PRACTICE AND PROCEDURE http://www.zimlii.org/ en Unitrack (Private) Limited v Telone (Private) Limited (SC 10 of 2018, Criminal Appeal SC 185 of 2014) [2014] ZWSC 10 (01 September 2014); http://www.zimlii.org/zw/judgment/supreme-court-zimbabwe/2014/10 <span class="field field--name-title field--type-string field--label-hidden">Unitrack (Private) Limited v Telone (Private) Limited (SC 10 of 2018, Criminal Appeal SC 185 of 2014) [2014] ZWSC 10 (01 September 2014);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/1459" hreflang="en">Arbitration</a></div> <div class="field__item"><a href="/taxonomy/term/2124" hreflang="x-default">Award</a></div> <div class="field__item"><a href="/taxonomy/term/2260" hreflang="x-default">enforcement</a></div> <div class="field__item"><a href="/taxonomy/term/2141" hreflang="x-default">PRACTICE AND PROCEDURE</a></div> <div class="field__item"><a href="/taxonomy/term/2248" hreflang="x-default">Rescission of judgment</a></div> <div class="field__item"><a href="/taxonomy/term/2249" hreflang="x-default">application for rescission of judgment</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:39</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.zimlii.org/files/judgments/zwsc/2014/10/2014-zwsc-10.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=32268">2014-zwsc-10.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2014/10/2014-zwsc-10.pdf" type="application/pdf; length=182474">2014-zwsc-10.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p><strong>DISTRIBUTABLE</strong><strong>   (9)</strong></p> <p><strong>UNITRACK     (PRIVATE)     LIMITED</strong></p> <p><strong>v</strong></p> <p><strong>TELONE     (PRIVATE)     LIMITED</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>ZIYAMBI JA, HLATSHWAYO JA &amp; MAVANGIRA AJA</strong></p> <p><strong>HARARE, SEPTEMBER 1, 2014 </strong></p> <p><em>T. Mpofu, </em>for the appellant</p> <p><em>L. Matapura,</em> for the respondent</p> <p><strong>MAVANGIRA AJA:     </strong>After hearing the parties on 1 September 2014 this Court pronounced:</p> <p>“It is the unanimous view of this Court that the appeal has merit and ought to succeed.</p> <p>Accordingly, it is ordered as follows:</p> <ol><li>The appeal is allowed with costs.</li> <li>The judgment of the court <em>a quo</em> is set aside and substituted with the following:</li> </ol><p>‘The application is dismissed with costs.’</p> <p>Reasons for this judgment will follow in due course.”</p> <p>The following are the reasons.</p> <p><strong>BACKGROUND</strong></p> <p>The appellant obtained an arbitral award dated 31 December 2008 requiring that the respondent pay it an amount equivalent to US$70 719,00  multiplied by the parallel market rate obtaining on the date of payment and within 48 hours of the uplifting of the award. Concerns arose regarding whether or not the award did not conflict with the public policy of Zimbabwe insofar as it referred to the parallel market rate.</p> <p> On 3 June 2013 the arbitration panel amended the award by severing the offending words such that the relevant portion of the award now read:</p> <p>“Tel One is to pay Unitrack an amount equal to US$70 719.00 obtaining on the day of payment, which is to be within 48 hours of the uplifting of this Award.”</p> <p>The award was not complied with. The appellant then applied, under HC4641/13, for the registration of the arbitral award as an order of the High Court for purposes of enforcement. The application for the registration of the arbitral award was served on the respondent’s legal practitioners. The respondent’s legal practitioners wrote a letter to the appellant’s, indicating that the application was premature and unnecessary at that stage. No opposition to the application was filed with the court.</p> <p>The application was granted by the High Court. Notably, in addition to the registration of the arbitral award, the order of the High Court further provided for the payment of interest. The arbitral award itself made no such provision. The order also provided for the costs of the application to be borne by the respondent on a legal practitioner/client scale.</p> <p>The respondent thereafter applied, in terms of Order 49 r 449 of the High Court Rules, 1971, for the rescission of the judgment on the premise that it was granted in its absence. Furthermore, that the order was erroneously sought and erroneously granted as the initial award had not made any provision relating to the payment of interest and costs. The High Court granted an order, in HC154/14, in the following terms:</p> <p>“IT IS ORDERED THAT:</p> <ol><li>The order issued by this Honourable Court under HC4641/13 dated 10th July 2013 be rescinded and or varied by the deletion from the order of that part of paragraph 2 thereof requiring applicant to pay interest on the sum of US$70 719,00 calculated at the rate of 5% per annum calculated from the 1st December 2008 to the date of payment in full.</li> <li>The respondent shall pay the costs of this application.”</li> </ol><p><strong>THIS APPEAL</strong></p> <p>The appellant has now appealed to this Court on the singular ground that the High Court in HC154/14 erred in finding that the order made by the same court in case No. HC 4641/13 was erroneously granted and that consequently it was liable to be rescinded or varied in terms of r 449 (1) of the High Court Rules, 1971.</p> <p>The appellant’s contention before this Court was that when the learned Judge in HC154/14 set aside the order in HC4641/13 and substituted it with what she thought was the correct order, she did so on the basis that the judge in HC4641/13 was wrong. It was contended that this constituted an incompetent review of the judgment or order of a judge of parallel jurisdiction. It was also argued that r 449 was not intended for and is not applicable in situations where a party who knows about proceedings instituted against it chooses to ignore them. It was further submitted that it was substantively wrong for the learned Judge in HC154/14 to find that there was no legal basis for the judge in HC4641/13 to accede to the application made for payment of interest.</p> <p>The respondent on the other hand contended that r 449 can be used to rescind judgments that are substantively wrong. It was submitted that in terms of r 449 a High Court judge can review the judgment or order of another High Court judge of parallel jurisdiction.</p> <p><strong>ISSUE FOR DETERMINATION</strong></p> <p>The issue for determination by this Court is whether the court <em>a quo</em> erred in applying r 449 to set aside the decision given earlier by another judge of the same jurisdiction.</p> <p><strong>THE LAW</strong></p> <p>Rule 449 of the High Court rules provides:</p> <p>“<strong>449. Correction, variation and rescission of judgments and orders</strong></p> <ol><li>The court or a judge may, in addition to any other power it or he may have, <em>mero motu</em> or upon the application of any party affected, correct, rescind or vary any judgment or order –</li> </ol><ul><li>that was erroneously sought or erroneously granted in the absence of any party affected thereby;” (my emphasis)</li> </ul><p>This appeal relates to the propriety of the application of r 449 by the court <em>a quo</em> in HH154/14.</p> <p>It is a general principle of our law that once a court or judicial officer renders a decision regarding issues that have been submitted to it or him, it or he lacks any power or legal authority to re-examine or revisit that decision. Once a decision is made, the term “<em>functus officio</em>” applies to the court or judicial officer concerned. Rule 449 is an exception to that principle and allows a court to revisit a decision that it has previously made, but only allows it in restricted circumstances. In <em>Tiriboyi v Nyoni &amp; Another</em> HH117/2004 the following was stated:</p> <p>“The purpose of r 449 appears to me to (be to) enable the court to revisit its orders and judgments to correct or set aside its orders and judgments given in error and where to allow such to stand on the excuse that the court is <em>functus officio</em> would result in an injustice and will destroy the very basis upon which the justice system rests. It is an exception to the general rule and must be resorted to only for the purposes of correcting an injustice that cannot be corrected in any other way.” (my emphasis).</p> <p>It seems to me that r 449 is meant for the correction of orders erroneously sought or erroneously granted and not orders that are erroneous in substance. In the South African case of <em>DA Weelson v Waterlinx Pool and Spa (Pty) Ltd</em> (13904/2007) [2013] ZAPGJHC 47 (1 March 2013), the court was dealing with r 42 (1) (a) whose provisions are similar to those of our r 449. At para [5] the court stated:</p> <p>“Rule 42 (1) provides that a court may of its own accord or upon application of any party affected by the order grant a rescission of the order or vary the order or judgment which has been erroneously sought or erroneously granted in the absence of any party affected thereby. The rule was introduced to cater for errors in judgment which are obviously wrong and are procedurally based.” (my emphasis)</p> <p>The order that was granted in HC4641/13 was not sought erroneously and was not granted erroneously, in the absence of the respondent. The respondent chose not to oppose the application preferring to complain to the appellant that the application was prematurely filed.</p> <p>The question whether a judge can alter the decision of another judge has been discussed in a number of cases. In <em>Pyramid Motor Corporation (Pvt) Ltd v Zimbabwe Banking Corporation</em> 1984 (2) ZLR 29, the court had this to say:</p> <p>“When Goldin J decided that case he was a judge of the High Court. As a judge of parallel jurisdiction, I think I can only refuse to follow his decision. To make a declaration that he wrongly decided the <strong>Rhostar</strong> case would I think, be treading on the prerogative of the Supreme Court.”</p> <p>On the facts of this case the court <em>a quo</em> in HC154/14 altered the decision of the court in HC4641/13 in circumstances where r 449 was inapplicable. The learned judge <em>a</em> <em>quo</em> stated at p 7 of the judgment:</p> <p>“It is common cause that the arbitral award did not provide for payment of interest. Therefore, the High Court order of 10 July 2013, which provided for payment of interest from 31 December 2008, was erroneously sought, and erroneously granted. There was no legal basis for acceding to that application for interest, in an application for registration of an arbitral award for purposes of execution in the absence of provision for interest in the award itself.”</p> <p>The quoted excerpt shows that the judge <em>a quo’s</em> decision was based on her assessment that the decision of the judge in HC 4641/13 was substantively wrong. It is possible that her assessment could be sound at law especially if regard is had to case authorities, as in <em>Conforce (Pvt) Ltd v City of Harare</em> 2000 (1) ZLR 445 (H) at 540D where the following was stated:</p> <p>“I agree that a court should not interfere with the Arbitrator’s Award so as to alter it to accord with what the court thinks the Arbitrator actually decided.”</p> <p>This Court is however not seized with the determination of the correctness or propriety of the decision in HC 4641/13. This Court is rather faced with the issue of the propriety of the decision of the High Court whereby a judge of the that Court reviewed an earlier decision by a judge of the same Court and therefore of parallel jurisdiction, and substituted the earlier order with one that she felt the earlier judge ought to have made, for the reason that she disagreed with the earlier court’s decision.</p> <p>The High Court had no power to so act. It trod on the prerogative of the Supreme Court.</p> <p>                        In <em>City of Mutare v Mawoyo</em> 1995 (1) ZLR 258 (HC) at 266E – 267C it was said:</p> <p>“In <em>Parker v Parker &amp; Ors</em> <em>supra</em> SCOTT J was asked to alter an order by SANDURA JP directing that an exception in case HC 3196/84 and an application in case HC 1108/85, both cases involving the same parties, be heard together on the same occasion. Declining jurisdiction, SCOTT J said at 85B:</p> <p>‘The whole thrust of the reasons advanced by Mr O’Meara seems to point to an assertion that in his view the order was wrongly made. As a judge of the High Court, it is not up to me to vary or alter an order of a judge of parallel jurisdiction, short of expanding on it.’</p> <p>Mr Wernberg’s argument was that the court has inherent powers to vary its orders. No authority was cited for this general proposition. Rule 449 (1) of the Rules of the High Court of Zimbabwe 1971 does not cover variations of the orders in the manner suggested by the applicant in this case. The order by BARTLETT J was not erroneously applied for or erroneously granted. The variation applied for does not involve the correction of an error or omission in the order so that it accurately expresses the intention of the court.</p> <p>I am being asked to delete ss 1 and 2 of the original order and substitute in their places the declarations requested by the applicant, without it being said what is to happen to the default judgment on which the order sought to be mutilated now stands. Although called an amendment, what is being applied for is to all intents and purposes a complete substitution of the terms and content of one order with those of another order.</p> <p>Can one set aside an order and substitute in its place a completely different matter without doing violence to the sense and substance of the judgment or the intention of the court that granted the order? The sense and substance of the original order will be changed….”</p> <p>The facts that confronted the court in HC154/14 do not fall within the kind of facts that are contemplated by r 449 or would justify the invocation of the rule. Even if the court in HC154/14 was substantively correct in its views on the issue of the provision for the payment of interest, and the court in HC4641/13 was wrong, the proper remedy available to the respondent in that situation would have been an appeal and not rescission as was sought herein. However, as indicated earlier, the substantive correctness of the decision of the court <em>a quo</em> in HC4641/13 is not for this Court to determine in these proceedings. It is the propriety of the application of r 449 in HC154/14 that is.</p> <p>                        It is for these reasons that we found that the appeal had merit and proceeded to grant the order that we did as recorded at the beginning of this judgment.</p> <p><strong>ZIYAMBI JA:</strong>                       I agree</p> <p><strong>HLATSHWAYO JA:</strong>           I agree</p> <p>Gill, Godlonton &amp; Gerrans, Appellant’s Legal Practitioners</p> <p>Dondo &amp; Partners, Respondent’s Legal Practitioners. </p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-7ed41e2864967c3870a8ba70179aea78cf32b6f271b677a8273cc1c5818bf63f"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p><strong>DISTRIBUTABLE</strong><strong>   (9)</strong></p> <p><strong>UNITRACK     (PRIVATE)     LIMITED</strong></p> <p><strong>v</strong></p> <p><strong>TELONE     (PRIVATE)     LIMITED</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>ZIYAMBI JA, HLATSHWAYO JA &amp; MAVANGIRA AJA</strong></p> <p><strong>HARARE, SEPTEMBER 1, 2014 </strong></p> <p><em>T. Mpofu, </em>for the appellant</p> <p><em>L. Matapura,</em> for the respondent</p> <p><strong>MAVANGIRA AJA:     </strong>After hearing the parties on 1 September 2014 this Court pronounced:</p> <p>“It is the unanimous view of this Court that the appeal has merit and ought to succeed.</p> <p>Accordingly, it is ordered as follows:</p> <ol><li>The appeal is allowed with costs.</li> <li>The judgment of the court <em>a quo</em> is set aside and substituted with the following:</li> </ol><p>‘The application is dismissed with costs.’</p> <p>Reasons for this judgment will follow in due course.”</p> <p>The following are the reasons.</p> <p><strong>BACKGROUND</strong></p> <p>The appellant obtained an arbitral award dated 31 December 2008 requiring that the respondent pay it an amount equivalent to US$70 719,00  multiplied by the parallel market rate obtaining on the date of payment and within 48 hours of the uplifting of the award. Concerns arose regarding whether or not the award did not conflict with the public policy of Zimbabwe insofar as it referred to the parallel market rate.</p> <p> On 3 June 2013 the arbitration panel amended the award by severing the offending words such that the relevant portion of the award now read:</p> <p>“Tel One is to pay Unitrack an amount equal to US$70 719.00 obtaining on the day of payment, which is to be within 48 hours of the uplifting of this Award.”</p> <p>The award was not complied with. The appellant then applied, under HC4641/13, for the registration of the arbitral award as an order of the High Court for purposes of enforcement. The application for the registration of the arbitral award was served on the respondent’s legal practitioners. The respondent’s legal practitioners wrote a letter to the appellant’s, indicating that the application was premature and unnecessary at that stage. No opposition to the application was filed with the court.</p> <p>The application was granted by the High Court. Notably, in addition to the registration of the arbitral award, the order of the High Court further provided for the payment of interest. The arbitral award itself made no such provision. The order also provided for the costs of the application to be borne by the respondent on a legal practitioner/client scale.</p> <p>The respondent thereafter applied, in terms of Order 49 r 449 of the High Court Rules, 1971, for the rescission of the judgment on the premise that it was granted in its absence. Furthermore, that the order was erroneously sought and erroneously granted as the initial award had not made any provision relating to the payment of interest and costs. The High Court granted an order, in HC154/14, in the following terms:</p> <p>“IT IS ORDERED THAT:</p> <ol><li>The order issued by this Honourable Court under HC4641/13 dated 10th July 2013 be rescinded and or varied by the deletion from the order of that part of paragraph 2 thereof requiring applicant to pay interest on the sum of US$70 719,00 calculated at the rate of 5% per annum calculated from the 1st December 2008 to the date of payment in full.</li> <li>The respondent shall pay the costs of this application.”</li> </ol><p><strong>THIS APPEAL</strong></p> <p>The appellant has now appealed to this Court on the singular ground that the High Court in HC154/14 erred in finding that the order made by the same court in case No. HC 4641/13 was erroneously granted and that consequently it was liable to be rescinded or varied in terms of r 449 (1) of the High Court Rules, 1971.</p> <p>The appellant’s contention before this Court was that when the learned Judge in HC154/14 set aside the order in HC4641/13 and substituted it with what she thought was the correct order, she did so on the basis that the judge in HC4641/13 was wrong. It was contended that this constituted an incompetent review of the judgment or order of a judge of parallel jurisdiction. It was also argued that r 449 was not intended for and is not applicable in situations where a party who knows about proceedings instituted against it chooses to ignore them. It was further submitted that it was substantively wrong for the learned Judge in HC154/14 to find that there was no legal basis for the judge in HC4641/13 to accede to the application made for payment of interest.</p> <p>The respondent on the other hand contended that r 449 can be used to rescind judgments that are substantively wrong. It was submitted that in terms of r 449 a High Court judge can review the judgment or order of another High Court judge of parallel jurisdiction.</p> <p><strong>ISSUE FOR DETERMINATION</strong></p> <p>The issue for determination by this Court is whether the court <em>a quo</em> erred in applying r 449 to set aside the decision given earlier by another judge of the same jurisdiction.</p> <p><strong>THE LAW</strong></p> <p>Rule 449 of the High Court rules provides:</p> <p>“<strong>449. Correction, variation and rescission of judgments and orders</strong></p> <ol><li>The court or a judge may, in addition to any other power it or he may have, <em>mero motu</em> or upon the application of any party affected, correct, rescind or vary any judgment or order –</li> </ol><ul><li>that was erroneously sought or erroneously granted in the absence of any party affected thereby;” (my emphasis)</li> </ul><p>This appeal relates to the propriety of the application of r 449 by the court <em>a quo</em> in HH154/14.</p> <p>It is a general principle of our law that once a court or judicial officer renders a decision regarding issues that have been submitted to it or him, it or he lacks any power or legal authority to re-examine or revisit that decision. Once a decision is made, the term “<em>functus officio</em>” applies to the court or judicial officer concerned. Rule 449 is an exception to that principle and allows a court to revisit a decision that it has previously made, but only allows it in restricted circumstances. In <em>Tiriboyi v Nyoni &amp; Another</em> HH117/2004 the following was stated:</p> <p>“The purpose of r 449 appears to me to (be to) enable the court to revisit its orders and judgments to correct or set aside its orders and judgments given in error and where to allow such to stand on the excuse that the court is <em>functus officio</em> would result in an injustice and will destroy the very basis upon which the justice system rests. It is an exception to the general rule and must be resorted to only for the purposes of correcting an injustice that cannot be corrected in any other way.” (my emphasis).</p> <p>It seems to me that r 449 is meant for the correction of orders erroneously sought or erroneously granted and not orders that are erroneous in substance. In the South African case of <em>DA Weelson v Waterlinx Pool and Spa (Pty) Ltd</em> (13904/2007) [2013] ZAPGJHC 47 (1 March 2013), the court was dealing with r 42 (1) (a) whose provisions are similar to those of our r 449. At para [5] the court stated:</p> <p>“Rule 42 (1) provides that a court may of its own accord or upon application of any party affected by the order grant a rescission of the order or vary the order or judgment which has been erroneously sought or erroneously granted in the absence of any party affected thereby. The rule was introduced to cater for errors in judgment which are obviously wrong and are procedurally based.” (my emphasis)</p> <p>The order that was granted in HC4641/13 was not sought erroneously and was not granted erroneously, in the absence of the respondent. The respondent chose not to oppose the application preferring to complain to the appellant that the application was prematurely filed.</p> <p>The question whether a judge can alter the decision of another judge has been discussed in a number of cases. In <em>Pyramid Motor Corporation (Pvt) Ltd v Zimbabwe Banking Corporation</em> 1984 (2) ZLR 29, the court had this to say:</p> <p>“When Goldin J decided that case he was a judge of the High Court. As a judge of parallel jurisdiction, I think I can only refuse to follow his decision. To make a declaration that he wrongly decided the <strong>Rhostar</strong> case would I think, be treading on the prerogative of the Supreme Court.”</p> <p>On the facts of this case the court <em>a quo</em> in HC154/14 altered the decision of the court in HC4641/13 in circumstances where r 449 was inapplicable. The learned judge <em>a</em> <em>quo</em> stated at p 7 of the judgment:</p> <p>“It is common cause that the arbitral award did not provide for payment of interest. Therefore, the High Court order of 10 July 2013, which provided for payment of interest from 31 December 2008, was erroneously sought, and erroneously granted. There was no legal basis for acceding to that application for interest, in an application for registration of an arbitral award for purposes of execution in the absence of provision for interest in the award itself.”</p> <p>The quoted excerpt shows that the judge <em>a quo’s</em> decision was based on her assessment that the decision of the judge in HC 4641/13 was substantively wrong. It is possible that her assessment could be sound at law especially if regard is had to case authorities, as in <em>Conforce (Pvt) Ltd v City of Harare</em> 2000 (1) ZLR 445 (H) at 540D where the following was stated:</p> <p>“I agree that a court should not interfere with the Arbitrator’s Award so as to alter it to accord with what the court thinks the Arbitrator actually decided.”</p> <p>This Court is however not seized with the determination of the correctness or propriety of the decision in HC 4641/13. This Court is rather faced with the issue of the propriety of the decision of the High Court whereby a judge of the that Court reviewed an earlier decision by a judge of the same Court and therefore of parallel jurisdiction, and substituted the earlier order with one that she felt the earlier judge ought to have made, for the reason that she disagreed with the earlier court’s decision.</p> <p>The High Court had no power to so act. It trod on the prerogative of the Supreme Court.</p> <p>                        In <em>City of Mutare v Mawoyo</em> 1995 (1) ZLR 258 (HC) at 266E – 267C it was said:</p> <p>“In <em>Parker v Parker &amp; Ors</em> <em>supra</em> SCOTT J was asked to alter an order by SANDURA JP directing that an exception in case HC 3196/84 and an application in case HC 1108/85, both cases involving the same parties, be heard together on the same occasion. Declining jurisdiction, SCOTT J said at 85B:</p> <p>‘The whole thrust of the reasons advanced by Mr O’Meara seems to point to an assertion that in his view the order was wrongly made. As a judge of the High Court, it is not up to me to vary or alter an order of a judge of parallel jurisdiction, short of expanding on it.’</p> <p>Mr Wernberg’s argument was that the court has inherent powers to vary its orders. No authority was cited for this general proposition. Rule 449 (1) of the Rules of the High Court of Zimbabwe 1971 does not cover variations of the orders in the manner suggested by the applicant in this case. The order by BARTLETT J was not erroneously applied for or erroneously granted. The variation applied for does not involve the correction of an error or omission in the order so that it accurately expresses the intention of the court.</p> <p>I am being asked to delete ss 1 and 2 of the original order and substitute in their places the declarations requested by the applicant, without it being said what is to happen to the default judgment on which the order sought to be mutilated now stands. Although called an amendment, what is being applied for is to all intents and purposes a complete substitution of the terms and content of one order with those of another order.</p> <p>Can one set aside an order and substitute in its place a completely different matter without doing violence to the sense and substance of the judgment or the intention of the court that granted the order? The sense and substance of the original order will be changed….”</p> <p>The facts that confronted the court in HC154/14 do not fall within the kind of facts that are contemplated by r 449 or would justify the invocation of the rule. Even if the court in HC154/14 was substantively correct in its views on the issue of the provision for the payment of interest, and the court in HC4641/13 was wrong, the proper remedy available to the respondent in that situation would have been an appeal and not rescission as was sought herein. However, as indicated earlier, the substantive correctness of the decision of the court <em>a quo</em> in HC4641/13 is not for this Court to determine in these proceedings. It is the propriety of the application of r 449 in HC154/14 that is.</p> <p>                        It is for these reasons that we found that the appeal had merit and proceeded to grant the order that we did as recorded at the beginning of this judgment.</p> <p><strong>ZIYAMBI JA:</strong>                       I agree</p> <p><strong>HLATSHWAYO JA:</strong>           I agree</p> <p>Gill, Godlonton &amp; Gerrans, Appellant’s Legal Practitioners</p> <p>Dondo &amp; Partners, Respondent’s Legal Practitioners. </p></span></div></div> </div> </div> Mon, 06 Sep 2021 13:39:22 +0000 Anonymous 10088 at http://www.zimlii.org Makoni v Makoni & Another (SC 7 of 2018, Civil Application SC 409 of 2016) [2018] ZWSC 7 (15 February 2018); http://www.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/7 <span class="field field--name-title field--type-string field--label-hidden">Makoni v Makoni &amp; Another (SC 7 of 2018, Civil Application SC 409 of 2016) [2018] ZWSC 7 (15 February 2018);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2083" hreflang="x-default">APPEAL</a></div> <div class="field__item"><a href="/taxonomy/term/2281" hreflang="x-default">Civil matter (Appeal)</a></div> <div class="field__item"><a href="/taxonomy/term/1574" hreflang="en">Condonation</a></div> <div class="field__item"><a href="/taxonomy/term/1615" hreflang="en">Costs</a></div> <div class="field__item"><a href="/taxonomy/term/2381" hreflang="x-default">Order of costs</a></div> <div class="field__item"><a href="/taxonomy/term/2184" hreflang="x-default">Taxation</a></div> <div class="field__item"><a href="/taxonomy/term/2141" hreflang="x-default">PRACTICE AND PROCEDURE</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:39</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/7/2018-zwsc-7.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26830">2018-zwsc-7.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/7/2018-zwsc-7.pdf" type="application/pdf; length=186046">2018-zwsc-7.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p><strong>DISTRIBUTABLE</strong><strong>   (7)</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>JULIUS     TAWONA     MAKONI</strong></p> <p><strong>V </strong></p> <ol><li><strong>PAULINE MUTSA MAKONI (2) THE REGISTRAR OF DEEDS</strong></li> </ol><p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>HARARE, 10 OCTOBER, 2016 &amp; FEBRUARY 15, 2018</strong></p> <p> </p> <p><em>F. Girach, </em>for the applicant</p> <p>Mr <em>S. Mpofu, </em>for the first respondent<em>.</em></p> <p> </p> <p><strong>IN CHAMBERS</strong></p> <p><strong>BHUNU JA:</strong>  This is an application for condonation of late noting of appeal and extension of time within which to file the appeal in terms of r 31 of the Supreme Court Rules, 1964.</p> <p>The parties were married but divorced in England. The court in England issued a decree <em>nisi</em> which the first respondent used to obtain an interdict in the local High Court. The interdict barred the applicant from dealing in the property known as No. 5 Reitfontein Close Highlands, Harare, which he claims to be his sole property.</p> <p>Aggrieved by the court <em>a quo’s</em> order, the appellant sought to appeal to this Court. He initially filed his notice of appeal on time but the application was struck off the roll with costs for want of compliance with r 29. The appeal was fatally defective in that it did not state the date on which the judgment appealed against was handed down, thereby prompting this application.</p> <p>The taxed costs amounted to $7 545.25.  (<strong>Seven Thousand five hundred and forty-five dollars twenty –five cents).</strong></p> <p>At the hearing Mr <em>Mpofu</em> counsel for the first respondent raised a point <em>in limine</em> objecting to the continuation of the proceedings before the applicant has settled the first respondent’s wasted costs. He accordingly moved for the proceedings to be stayed pending payment of the outstanding wasted costs.</p> <p> Mr <em>Girach</em> counsel for the applicant after taking brief instructions acknowledged that his client owed the first respondent the taxed costs. He however countered that his client is owed some untaxed costs by the first respondent. He then proposed that the first respondent’s costs be set off against the applicant’s untaxed costs. When it was pointed out to him that a liquidated amount cannot be set off against an illiquid amount he conceded the point but countered that the respondent should execute against applicant’s property.</p> <p>In further argument he submitted that justice must be dispensed quickly and fairly with due regard to the need to effect finality to ligation. It was his submission that the first respondent should effect execution for wasted costs awarded while the hearing proceeds to finality on the merits.</p> <p> He pointed out that the court had the discretion whether or not to stay the proceedings pending payment of the first respondent’s taxed costs. There is merit in that submission.</p> <p>The applicant’s attitude that the respondent should proceed with execution against his property evinces a mind set on piling wasted costs on the respondent. I come to that conclusion because he has advanced no reason why he cannot voluntarily sell his property to liquidate his liability to the respondent without incurring further costs for execution. That attitude gives credence to Mr <em>Mpofu’s</em> submission that it is unfair for the applicant to continuously bring proceedings against the first respondent without paying respondent’s wasted costs awarded by the court <em>a quo</em>.</p> <p>Considering that money may be hard to come by I held back delivering judgment in this application to give the applicant time to pay the outstanding wasted costs. I am in agreement with Mr <em>Mpofu</em> that it would be manifestly unfair and unjust for the applicant to continue piling proceedings on the 1st respondent without first making good the wasted taxed costs he caused the respondent to incur. In my considered view this may be meant to wear down the respondent with costs.</p> <p>It is now more than 15 months since the applicant was granted the opportunity to pay the respondent’s wasted costs. If by now he has not paid the respondent’s wasted costs, proceeding with the hearing in the absence of payment will cause the respondent serious prejudice if not grave injustice.</p> <p>In the event that to date the applicant has not paid the respondent’s wasted costs, the application for stay of proceedings succeeds. I note in passing that the order will not adversely affect the respondent since the interdict granted by the court <em>a quo</em> operates against the applicant in favour of the respondent. Any prejudice which the applicant may suffer arising from the stay of these proceedings is self-inflicted.</p> <p>It is accordingly ordered that:</p> <ol><li>The objection <em>in limine</em> be and is hereby sustained with costs.</li> <li>This application for condonation of late noting of appeal and extension of time within which to appeal to this court be and is hereby stayed until the applicant has paid the first respondent’s taxed costs in the court <em>a quo</em>.</li> </ol><p><em>Magwaliba &amp; Kwirira</em>, the applicant’s legal practitioners</p> <p><em>Munangati &amp; Associates, </em>incorporating<em> Goneso &amp; Associates</em>, the 1st respondent’s legal practitioners.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-f25ebaa8445b1650f4f99aa56d1b9418f39540b9d92e0008a1084ec3be4285f0"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p><strong>DISTRIBUTABLE</strong><strong>   (7)</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>JULIUS     TAWONA     MAKONI</strong></p> <p><strong>V </strong></p> <ol><li><strong>PAULINE MUTSA MAKONI (2) THE REGISTRAR OF DEEDS</strong></li> </ol><p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>HARARE, 10 OCTOBER, 2016 &amp; FEBRUARY 15, 2018</strong></p> <p> </p> <p><em>F. Girach, </em>for the applicant</p> <p>Mr <em>S. Mpofu, </em>for the first respondent<em>.</em></p> <p> </p> <p><strong>IN CHAMBERS</strong></p> <p><strong>BHUNU JA:</strong>  This is an application for condonation of late noting of appeal and extension of time within which to file the appeal in terms of r 31 of the Supreme Court Rules, 1964.</p> <p>The parties were married but divorced in England. The court in England issued a decree <em>nisi</em> which the first respondent used to obtain an interdict in the local High Court. The interdict barred the applicant from dealing in the property known as No. 5 Reitfontein Close Highlands, Harare, which he claims to be his sole property.</p> <p>Aggrieved by the court <em>a quo’s</em> order, the appellant sought to appeal to this Court. He initially filed his notice of appeal on time but the application was struck off the roll with costs for want of compliance with r 29. The appeal was fatally defective in that it did not state the date on which the judgment appealed against was handed down, thereby prompting this application.</p> <p>The taxed costs amounted to $7 545.25.  (<strong>Seven Thousand five hundred and forty-five dollars twenty –five cents).</strong></p> <p>At the hearing Mr <em>Mpofu</em> counsel for the first respondent raised a point <em>in limine</em> objecting to the continuation of the proceedings before the applicant has settled the first respondent’s wasted costs. He accordingly moved for the proceedings to be stayed pending payment of the outstanding wasted costs.</p> <p> Mr <em>Girach</em> counsel for the applicant after taking brief instructions acknowledged that his client owed the first respondent the taxed costs. He however countered that his client is owed some untaxed costs by the first respondent. He then proposed that the first respondent’s costs be set off against the applicant’s untaxed costs. When it was pointed out to him that a liquidated amount cannot be set off against an illiquid amount he conceded the point but countered that the respondent should execute against applicant’s property.</p> <p>In further argument he submitted that justice must be dispensed quickly and fairly with due regard to the need to effect finality to ligation. It was his submission that the first respondent should effect execution for wasted costs awarded while the hearing proceeds to finality on the merits.</p> <p> He pointed out that the court had the discretion whether or not to stay the proceedings pending payment of the first respondent’s taxed costs. There is merit in that submission.</p> <p>The applicant’s attitude that the respondent should proceed with execution against his property evinces a mind set on piling wasted costs on the respondent. I come to that conclusion because he has advanced no reason why he cannot voluntarily sell his property to liquidate his liability to the respondent without incurring further costs for execution. That attitude gives credence to Mr <em>Mpofu’s</em> submission that it is unfair for the applicant to continuously bring proceedings against the first respondent without paying respondent’s wasted costs awarded by the court <em>a quo</em>.</p> <p>Considering that money may be hard to come by I held back delivering judgment in this application to give the applicant time to pay the outstanding wasted costs. I am in agreement with Mr <em>Mpofu</em> that it would be manifestly unfair and unjust for the applicant to continue piling proceedings on the 1st respondent without first making good the wasted taxed costs he caused the respondent to incur. In my considered view this may be meant to wear down the respondent with costs.</p> <p>It is now more than 15 months since the applicant was granted the opportunity to pay the respondent’s wasted costs. If by now he has not paid the respondent’s wasted costs, proceeding with the hearing in the absence of payment will cause the respondent serious prejudice if not grave injustice.</p> <p>In the event that to date the applicant has not paid the respondent’s wasted costs, the application for stay of proceedings succeeds. I note in passing that the order will not adversely affect the respondent since the interdict granted by the court <em>a quo</em> operates against the applicant in favour of the respondent. Any prejudice which the applicant may suffer arising from the stay of these proceedings is self-inflicted.</p> <p>It is accordingly ordered that:</p> <ol><li>The objection <em>in limine</em> be and is hereby sustained with costs.</li> <li>This application for condonation of late noting of appeal and extension of time within which to appeal to this court be and is hereby stayed until the applicant has paid the first respondent’s taxed costs in the court <em>a quo</em>.</li> </ol><p><em>Magwaliba &amp; Kwirira</em>, the applicant’s legal practitioners</p> <p><em>Munangati &amp; Associates, </em>incorporating<em> Goneso &amp; Associates</em>, the 1st respondent’s legal practitioners.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p></span></div></div> </div> </div> Mon, 06 Sep 2021 13:39:19 +0000 Anonymous 10086 at http://www.zimlii.org Chaza v Chawareva & Another (SC 2 of 2018, Civil Appeal SC 576 of 2016) [2017] ZWSC 2 (26 October 2017); http://www.zimlii.org/zw/judgment/supreme-court-zimbabwe/2017/2-0 <span class="field field--name-title field--type-string field--label-hidden">Chaza v Chawareva &amp; Another (SC 2 of 2018, Civil Appeal SC 576 of 2016) [2017] ZWSC 2 (26 October 2017);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2141" hreflang="x-default">PRACTICE AND PROCEDURE</a></div> <div class="field__item"><a href="/taxonomy/term/2287" hreflang="x-default">Bar (PRACTICE AND PROCEDURE)</a></div> <div class="field__item"><a href="/taxonomy/term/2376" hreflang="x-default">failure to file plea</a></div> <div class="field__item"><a href="/taxonomy/term/1628" hreflang="en">Default Judgment</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:39</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.zimlii.org/files/judgments/zwsc/2017/2/2017-zwsc-2.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=21444">2017-zwsc-2.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2017/2/2017-zwsc-2_0.pdf" type="application/pdf; length=68175">2017-zwsc-2.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p><strong>EX TEMPORE</strong></p> <p> </p> <p><strong>LOVEMORE     CHAZA</strong></p> <p><strong>v</strong></p> <ol><li> <strong>NEVER CHAWAREVA (2) MINISTER OF LOCAL GOVERNMENT PUBLIC WORKS AND NATIONAL HOUSING</strong></li> </ol><p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA JA, HLATSHWAYO JA &amp; ZIYAMBI AJA</strong></p> <p><strong>HARARE, OCTOBER 26 2017</strong></p> <p><em>M. Mavhiringidze,</em> for the appellant</p> <p><em>F. Chiriwawadzimba</em>, for the first respondent</p> <p>No appearance for the second respondent</p> <p><strong>GWAUNZA JA</strong>:        In this matter Counsel for the first respondent raised a point in <em>limine</em> to the effect that the appellant having been barred in the court <em>a</em> <em>quo </em>for failure to file his heads of argument, had no right of audience before this court.</p> <p>She submitted that consideration by the court <em>a</em> <em>quo </em>of the merits of the matter, did not alter the legal position, that in fact the judgment <em>a</em> <em>quo </em>was given in default. Counsel relied for these contentions on a judgment of this court, <em>Zvinavashe v Ndlovu </em>2006 (2) ZLR 372 (S) where the following was stated at pg 375;</p> <p>“for the avoidance of doubt, it is declared that the giving of reasons for the default judgment in question by the court <em>a quo </em>was unnecessary and consequently of no force or effect.  It does not convert the default judgment into a judgment on the merits”.</p> <p>None of the authorities cited by the appellant contradict this position.   Since it was a default judgment, the proper course of action was for the appellant to have obtained a rescission thereof in the court <em>a quo.</em> Accordingly, this matter is not properly before us and it is our unanimous view that it should be struck off the roll.</p> <p>Notwithstanding that the point in <em>limine </em>was a point of law which could be raised at any time, our view is that each party should bear its own costs.  This is because the point was raised for the first time at this hearing, without any prior notice having been given to the appellants.</p> <p>In the result, it is ordered as follows:</p> <ol><li>The point in <em>limine </em>is upheld.</li> <li>The appeal be and is hereby struck off the roll.</li> <li>Each party is to bear its own costs.</li> </ol><p><strong>HLATSHWAYO JA:</strong>                       I agree</p> <p><strong>ZIYAMBI JA:</strong>                                   I agree</p> <p><em> Mavhiringidze &amp; Mashanyare</em>, appellant’s legal practitioners</p> <p><em>Mapendere &amp; Partners</em>, 1st respondents’ legal practitioners.</p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-75ed72c06cfef27a087b66955c0cf226095a39608eca0b78e301757ca8266138"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p><strong>EX TEMPORE</strong></p> <p> </p> <p><strong>LOVEMORE     CHAZA</strong></p> <p><strong>v</strong></p> <ol><li> <strong>NEVER CHAWAREVA (2) MINISTER OF LOCAL GOVERNMENT PUBLIC WORKS AND NATIONAL HOUSING</strong></li> </ol><p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA JA, HLATSHWAYO JA &amp; ZIYAMBI AJA</strong></p> <p><strong>HARARE, OCTOBER 26 2017</strong></p> <p><em>M. Mavhiringidze,</em> for the appellant</p> <p><em>F. Chiriwawadzimba</em>, for the first respondent</p> <p>No appearance for the second respondent</p> <p><strong>GWAUNZA JA</strong>:        In this matter Counsel for the first respondent raised a point in <em>limine</em> to the effect that the appellant having been barred in the court <em>a</em> <em>quo </em>for failure to file his heads of argument, had no right of audience before this court.</p> <p>She submitted that consideration by the court <em>a</em> <em>quo </em>of the merits of the matter, did not alter the legal position, that in fact the judgment <em>a</em> <em>quo </em>was given in default. Counsel relied for these contentions on a judgment of this court, <em>Zvinavashe v Ndlovu </em>2006 (2) ZLR 372 (S) where the following was stated at pg 375;</p> <p>“for the avoidance of doubt, it is declared that the giving of reasons for the default judgment in question by the court <em>a quo </em>was unnecessary and consequently of no force or effect.  It does not convert the default judgment into a judgment on the merits”.</p> <p>None of the authorities cited by the appellant contradict this position.   Since it was a default judgment, the proper course of action was for the appellant to have obtained a rescission thereof in the court <em>a quo.</em> Accordingly, this matter is not properly before us and it is our unanimous view that it should be struck off the roll.</p> <p>Notwithstanding that the point in <em>limine </em>was a point of law which could be raised at any time, our view is that each party should bear its own costs.  This is because the point was raised for the first time at this hearing, without any prior notice having been given to the appellants.</p> <p>In the result, it is ordered as follows:</p> <ol><li>The point in <em>limine </em>is upheld.</li> <li>The appeal be and is hereby struck off the roll.</li> <li>Each party is to bear its own costs.</li> </ol><p><strong>HLATSHWAYO JA:</strong>                       I agree</p> <p><strong>ZIYAMBI JA:</strong>                                   I agree</p> <p><em> Mavhiringidze &amp; Mashanyare</em>, appellant’s legal practitioners</p> <p><em>Mapendere &amp; Partners</em>, 1st respondents’ legal practitioners.</p></span></div></div> </div> </div> Mon, 06 Sep 2021 13:39:14 +0000 Anonymous 10083 at http://www.zimlii.org Mutasa & Another v The Registrar of the Supreme Court & 2 Others (SC 27 of 2018, Civil Appeal SC 173 of 2017) [2018] ZWSC 27 (14 May 2018); http://www.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/27 <span class="field field--name-title field--type-string field--label-hidden">Mutasa &amp; Another v The Registrar of the Supreme Court &amp; 2 Others (SC 27 of 2018, Civil Appeal SC 173 of 2017) [2018] ZWSC 27 (14 May 2018);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2083" hreflang="x-default">APPEAL</a></div> <div class="field__item"><a href="/taxonomy/term/2084" hreflang="x-default">Appeal to Supreme Court</a></div> <div class="field__item"><a href="/taxonomy/term/2369" hreflang="x-default">Courts powers on appeal</a></div> <div class="field__item"><a href="/taxonomy/term/2370" hreflang="x-default">Striking out</a></div> <div class="field__item"><a href="/taxonomy/term/2141" hreflang="x-default">PRACTICE AND PROCEDURE</a></div> <div class="field__item"><a href="/taxonomy/term/2240" hreflang="x-default">Execution (PRACTICE AND PROCEDURE)</a></div> <div class="field__item"><a href="/taxonomy/term/1657" hreflang="en">Stay of Execution</a></div> <div class="field__item"><a href="/taxonomy/term/2190" hreflang="x-default">SUPREME COURT</a></div> <div class="field__item"><a href="/taxonomy/term/2371" hreflang="x-default">declaratory order (Supreme Court Powers of)</a></div> <div class="field__item"><a href="/taxonomy/term/2193" hreflang="x-default">Powers of Supreme Court</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:39</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/27/2018-zwsc-27.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=35106">2018-zwsc-27.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/27/2018-zwsc-27.pdf" type="application/pdf; length=227489">2018-zwsc-27.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p> </p> <p><strong>REPORTABLE</strong><strong>        (21)</strong></p> <p> </p> <p> </p> <ol><li> </li> </ol><p><strong>v</strong></p> <p><strong>(1)     THE      REGISTRAR      OF      SUPREME      COURT     (2)     NYAKUTOMBWA     MUGABE     LEGAL     COUNSEL     (3)     SHERIFF     OF     ZIMBABWE</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GUVAVA JA</strong></p> <p><strong>HARARE: FEBRUARY 14, 2018 &amp; MAY 14, 2018</strong></p> <p> </p> <p> </p> <p> </p> <p><em>D. T. Mwonzora</em>, for the applicants</p> <p><em>F. Mahere</em>, for the second respondent</p> <p> </p> <p> </p> <p><strong>CHAMBER APPLICATION</strong></p> <p> </p> <p><strong>GUVAVA JA</strong>:           This is a chamber application made in terms of r 12 of the Supreme Court Rules ,1964.</p> <p> </p> <p>The brief background to this application may be summarised as follows:</p> <p>The applicants are husband and wife. They approached the court <em>a quo,</em> by way of urgent chamber application, seeking a stay of execution and return of goods which had been removed pursuant to a writ of execution following a default judgment which was granted in favour of the second respondent. The default judgment, related to a claim by the second respondent, who was the legal practitioner for the second applicant, claiming unpaid legal fees for services rendered to the second applicant and his political colleagues.</p> <p>On 2 March 2017, the High Court granted a provisional order, for the return of all the goods that had been attached and removed in execution. The court also ordered first and second applicants to refrain from selling the goods until the dispute between the parties had been resolved.</p> <p> </p> <p>On 3 March 2017 the second respondent filed an appeal against the judgment of the court <em>a quo.</em> The applicants contend that the legal practitioners, should not have successfully filed the appeal without the leave of the court. It was their contention that as the order related to an interim order, the second respondent should have sought leave from the court a quo in compliance with s 43 of the High Court Act [<em>Chapter 7:06</em>].  They thus sought an order setting aside the decision of the registrar accepting the notice of appeal and an order declaring the appeal that was before the Supreme Court a nullity.</p> <p> </p> <p>The registrar filed a report in terms of r 12 of the Supreme Court Rules 1964 stating that they had accepted the notice of appeal as the order which had been granted was in the form of a mandatory interdict and thus did not require the leave of the court <em>a quo.</em> The second respondent denied that they required leave to appeal from the court <em>a quo</em>. He also argued that the matter was not properly before the court as the order sought could not be granted by a single judge in chambers. The second respondent also raised the point that the applicants were in fact seeking a declaratur and this could not be granted.</p> <p> </p> <p>It is trite that when the Supreme Court is seized with an appeal, such an appeal cannot be struck off the roll by one Judge in Chambers. In the case of <em>Blue Rangers Estates (Pvt) Ltd v Muduviri </em>2009 (1) ZLR 376 (SC), an applicant approached a single Supreme Court judge in Chambers seeking the relief that the matter be struck off the roll. Applicant therein alleged that the matter for which notice had been filed was interlocutory in nature and required leave to appeal in terms of s 43 of the High Court Act. It was counsel’s contention that without leave to appeal nothing was pending before the court. MALABA DCJ, as he was then, stated the following:</p> <p>“I agree with Mr <em>Mlotshwa </em>that a single Judge of the Supreme Court sitting in chambers has no power derived from any provision of the relevant statutes, <em>to make an order striking an appeal pending in the Supreme Court off the roll</em>. The answer to the question whether a single Judge sitting in chambers has power to hear and determine an application for an order striking an appeal off the roll lies in the relevant provisions of the Statute in terms of which the Supreme Court was created and the Rules regulating its proceedings. It is also necessary to take into account provisions of the enactments by which the right of access to the Supreme Court on appeal is given.” [<em>My emphasis</em>]</p> <p> </p> <p>Mr. <em>Mwonzora</em> for the applicants submitted that the above cited case could be distinguished from the present matter as they were seeking an order that the notice of appeal be declared a nullity on the basis that the Registrar should not have accepted it in the first place. He sought to make the distinction that this was not an application for the striking off of an appeal which was on the Supreme Court roll, but for the setting aside of a decision of the registrar who had improperly accept such notice of appeal.</p> <p> </p> <p>In my view this point brings to the fore the question of the role of the registrar when accepting process. The registrar’s office is established by s 169 (4) of the Constitution. The provision provides:</p> <p>“An Act of Parliament may provide for the conferring, by way of rules of court, upon a registrar of the Supreme Court, duly appointed thereto, of the jurisdiction and powers of the Supreme Court in civil cases in respect of—</p> <p> </p> <ul><li>the making of orders in uncontested cases, other than orders affecting status or the custody or guardianship of children;</li> <li>deciding preliminary or interlocutory matters, including applications for directions but not including matters affecting the liberty of the subject.”</li> </ul><p> </p> <p>Section 33 of the Supreme Court Act establishes the officers of the registrar in compliance with the Constitution. It provides:</p> <p><strong>“(1)</strong> There shall be a registrar of the Supreme Court and such deputy registrars, assistant registrars and other officers of the Supreme Court as may be required, whose offices shall be public offices and shall form part of the Judicial Service.”</p> <p>                       </p> <p>The role of the registrar is set out by the authors <em>Herbstein and Van Winsen, The Civil practice of Superior Courts of South Africa, (</em>3rd ed, Juta and Co Ltd, Cape Town) at p.35 as follows:</p> <p>“the Registrar is an official of the court, responsible for the smooth functioning of the court and is charged with multifarious duties which duties are administrative in nature. For the purposes of clarity, these duties include but are not limited to the issue of process, recording, preserving and directing the flow of all documents filed by the litigants. The Registrar is also responsible for the setting down of cases and issuance of court orders. It is common cause that the Supreme Court is a court of record and the Registrar is the custodian of all court records. Case management which includes maintaining records and scheduling hearings is also the Registrar’s prerogative.”</p> <p> </p> <p> </p> <p>From the above, it is clear that the registrar provides a full range of administrative and support services to the Judges by managing cases coming to court. However, he or she can also perform quasi-judicial functions but only in limited circumstances that are prescribed by statute. An examination of the Supreme Court Act and Rules clearly illustrates that it is not one of the functions of the registrar to decline a notice of appeal which has been filed in time. Where a notice of appeal is defective for whatever reason it is for the court seized with the matter to make such a determination.</p> <p> </p> <p>The registrar cannot refuse to receive a notice of appeal on the basis that it is defective, in the sense that it does not comply with r 29 of the Supreme Court Rules. The registrar may suggest to a party that their document is defective in order for them to make the necessary amendments and bring the document back for filing. However, because of the administrative nature of the registrar’s duties, if a party insists on filing its document as it is after such direction has been offered, the Registrar is obliged to accept the document.</p> <p> </p> <p>The rationale is that a registrar does not have the power to prevent a litigant from filing their court process, if it is filed within the times prescribed in the rules, as this falls outside the ambit of the registrar’s mandate.</p> <p> </p> <p>This is not a situation that is peculiar to this jurisdiction only but is found in a number of jurisdictions. I have examined the practice in various jurisdictions and found that it is the same. The registrar of the Supreme Court of Canada exercises the following functions:</p> <ul><li>Processing, recording, preserving and directing the flow of all documents filed by parties and recording all proceedings which take place during the life of a case.</li> <li>Providing information to litigants, the media and the public on the court's processes and activities and scheduling of cases.</li> </ul><p>iii.        Maintaining the court library and providing a full range of library and information services to judges, staff of the court and legal researchers.</p> <p>iv.        Publishing the Supreme Court reports.</p> <p>Providing administrative and operational support to the judges and court staff.</p> <p>v.         Providing protocol services to the judges.</p> <p> </p> <p>In Nigeria the duties of the registrars are also administrative in nature. Through these functions they aide in quick dispensation of justice, and this includes but is not limited to the following:</p> <p>i.          As the head of the registry, he ensures proper day to day administration of the       court registry.</p> <p>ii.         He co-ordinates the handling of all court processes e.g. issuance of hearing            notices, warrant of arrest, summons.</p> <p>iii.        He undertakes supervision of work of all staff deployed on litigation duties.</p> <p>iv.        He makes arrangement for court sitting and give necessary assistance to the           judge in the open court.</p> <p>v.         He helps in the administration of Oath and Affirmation on witnesses appearing      in court.</p> <p>vi.        He maintains record books in accordance with the rules of court and preparation of the court proceedings eg. rulings and judgments for interested litigants and lawyers in addition to when such matter is going on appeal.</p> <p>vii.       He must ensure proper maintenance and disposal of attached property and exhibits in his custody</p> <p>viii.  He must ensure the preparation of quarterly returns of cases filed and             disposed.</p> <p>ix.        He must see to the execution of court judgments and orders.</p> <p> </p> <p>It should be noted that once a notice of appeal has been filed with the registrar of this court, the appeal is, from that point, pending before the Supreme Court.</p> <p> </p> <p> In my view once the second respondent filed the notice of appeal within the prescribed time, it ceased to be an issue upon which the registrar’s decision could be questioned or one where a single judge of the Supreme Court could declare a nullity.</p> <p> </p> <p>                        I was thus not convinced by the argument that there was a distinction between this case and the Blue Rangers Case (<em>supra</em>) as the net effect of such an order would be the same. If the matter, were to be struck off the roll, it would no longer be before the court. Similarly, if the registrars decision accepting the notice of appeal were to be set aside on the basis that it did not comply with s 43 of the High Court Act, the matter would no longer be before the court.  In any event, as I have stated above, it should be stressed that once a matter has been filed with the registrar only that court can remove it from the roll on the basis that it does not comply either with the rules of the court or a statute.</p> <p> </p> <p>            In instances where the registrar has been granted quasi-judicial functions these are specifically spelt out either in the relevant legislation or the rules of this court. For instance where a party is called upon to inspect a record and he fails to do so within the prescribed time r 15 (8a) of the Supreme Court Rules specifically authorizes the registrar to deem the appeal abandoned. The rule also specifies the remedy that the party has against the decision of the registrar.</p> <p> </p> <p>In relation to the point raised on whether or not the Supreme Court has the jurisdiction to issue a declaratur in the first instance, the point has already been determined. In <em>Guwa v Willoughby’s Investments (Pvt) Ltd </em>2009 (1) LR 368 (S) a litigant approached a single Judge of the Supreme Court in Chambers seeking a notice of appeal to be set aside as a nullity. It was not disputed by the respondent that the notice of appeal was fatally defective, and the court stated that there was in effect nothing pending before the Supreme Court. However, in spite of this being apparent to both parties, the single Judge approached in Chambers made the point that the Supreme Court does not have the jurisdiction to make a declaration in the first instance. The Supreme Court is a creature of statute and as such is governed by the Statute that established it – the Supreme Court Act. Such courts are distinct from courts of original jurisdiction such as the High Court. A statutory body can only act within the confines of its enabling Act, and nowhere in the Supreme Court Act, is the Supreme Court given the jurisdiction to entertain, in the first instance, an application for a declaratur.</p> <p>In this case, the court stated that the Supreme Court, as an appellate court, cannot act in the first instance and issue such a declaratur, in spite of the parties accepting the notice of appeal to be invalid. On that basis the court declined to grant the relief sought as it highlighted that the court is not clothed with that authority and stated as follows:</p> <p>“In other words, whilst the Supreme Court may do nothing that the law does not permit, the High Court may do anything that the law does not forbid.”</p> <p> </p> <p> </p> <p>Clearly the Supreme Court cannot grant a declaratur in the first instance, even where the parties may be in agreement and approach the court by consent seeking an order beyond the courts’ jurisdiction, such consent does not and cannot compel a judge to issue an order beyond his or her jurisdictional authority.</p> <p> </p> <p>This application cannot therefore succeed. The Blue Rangers case presented the option for a respondent in an appeal to raise its opposition to a notice of appeal by way of a point in <em>limine</em> before the court. This application therefore was ill-founded and premature. The parties should have waited for their day in court to raise their objections to the notice of appeal.</p> <p> </p> <p>Ms <em>Mahere</em> applied to be awarded costs on a legal practitioner scale, on the basis that the case was ill conceived as the issues had already been determined by this court. Mr<em> Mwonzora</em> submitted that the applicant should not be visited with costs on a punitive scale as it was not clear from the rules that they could not approach a judge in chambers to impugn the registrar’s decision. I was inclined to agree with him that there was no decision dealing with the role of the registrar. However, in respect to the other points I was of the view that after the case authorities were highlighted to him he should not have persisted. Thus whilst I am not inclined to award costs on a punitive scale, I take the view that the second respondent has been successful in defending the application. He should be awarded costs on the ordinary scale.</p> <p>For the reasons given above, the application is dismissed with costs.</p> <p><em>Mwonzora &amp; Associates, Applicants Legal Practitioners</em></p> <p><em>Nyakutombwa, Mugabe Legal Counsel, 2nd Respondent’s Legal Practitioners</em></p> <p> </p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-6f163380f1920602658fb042d3ca804a81d86acf4a9c64f56f42396bed356be9"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p> </p> <p><strong>REPORTABLE</strong><strong>        (21)</strong></p> <p> </p> <p> </p> <ol><li> </li> </ol><p><strong>v</strong></p> <p><strong>(1)     THE      REGISTRAR      OF      SUPREME      COURT     (2)     NYAKUTOMBWA     MUGABE     LEGAL     COUNSEL     (3)     SHERIFF     OF     ZIMBABWE</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GUVAVA JA</strong></p> <p><strong>HARARE: FEBRUARY 14, 2018 &amp; MAY 14, 2018</strong></p> <p> </p> <p> </p> <p> </p> <p><em>D. T. Mwonzora</em>, for the applicants</p> <p><em>F. Mahere</em>, for the second respondent</p> <p> </p> <p> </p> <p><strong>CHAMBER APPLICATION</strong></p> <p> </p> <p><strong>GUVAVA JA</strong>:           This is a chamber application made in terms of r 12 of the Supreme Court Rules ,1964.</p> <p> </p> <p>The brief background to this application may be summarised as follows:</p> <p>The applicants are husband and wife. They approached the court <em>a quo,</em> by way of urgent chamber application, seeking a stay of execution and return of goods which had been removed pursuant to a writ of execution following a default judgment which was granted in favour of the second respondent. The default judgment, related to a claim by the second respondent, who was the legal practitioner for the second applicant, claiming unpaid legal fees for services rendered to the second applicant and his political colleagues.</p> <p>On 2 March 2017, the High Court granted a provisional order, for the return of all the goods that had been attached and removed in execution. The court also ordered first and second applicants to refrain from selling the goods until the dispute between the parties had been resolved.</p> <p> </p> <p>On 3 March 2017 the second respondent filed an appeal against the judgment of the court <em>a quo.</em> The applicants contend that the legal practitioners, should not have successfully filed the appeal without the leave of the court. It was their contention that as the order related to an interim order, the second respondent should have sought leave from the court a quo in compliance with s 43 of the High Court Act [<em>Chapter 7:06</em>].  They thus sought an order setting aside the decision of the registrar accepting the notice of appeal and an order declaring the appeal that was before the Supreme Court a nullity.</p> <p> </p> <p>The registrar filed a report in terms of r 12 of the Supreme Court Rules 1964 stating that they had accepted the notice of appeal as the order which had been granted was in the form of a mandatory interdict and thus did not require the leave of the court <em>a quo.</em> The second respondent denied that they required leave to appeal from the court <em>a quo</em>. He also argued that the matter was not properly before the court as the order sought could not be granted by a single judge in chambers. The second respondent also raised the point that the applicants were in fact seeking a declaratur and this could not be granted.</p> <p> </p> <p>It is trite that when the Supreme Court is seized with an appeal, such an appeal cannot be struck off the roll by one Judge in Chambers. In the case of <em>Blue Rangers Estates (Pvt) Ltd v Muduviri </em>2009 (1) ZLR 376 (SC), an applicant approached a single Supreme Court judge in Chambers seeking the relief that the matter be struck off the roll. Applicant therein alleged that the matter for which notice had been filed was interlocutory in nature and required leave to appeal in terms of s 43 of the High Court Act. It was counsel’s contention that without leave to appeal nothing was pending before the court. MALABA DCJ, as he was then, stated the following:</p> <p>“I agree with Mr <em>Mlotshwa </em>that a single Judge of the Supreme Court sitting in chambers has no power derived from any provision of the relevant statutes, <em>to make an order striking an appeal pending in the Supreme Court off the roll</em>. The answer to the question whether a single Judge sitting in chambers has power to hear and determine an application for an order striking an appeal off the roll lies in the relevant provisions of the Statute in terms of which the Supreme Court was created and the Rules regulating its proceedings. It is also necessary to take into account provisions of the enactments by which the right of access to the Supreme Court on appeal is given.” [<em>My emphasis</em>]</p> <p> </p> <p>Mr. <em>Mwonzora</em> for the applicants submitted that the above cited case could be distinguished from the present matter as they were seeking an order that the notice of appeal be declared a nullity on the basis that the Registrar should not have accepted it in the first place. He sought to make the distinction that this was not an application for the striking off of an appeal which was on the Supreme Court roll, but for the setting aside of a decision of the registrar who had improperly accept such notice of appeal.</p> <p> </p> <p>In my view this point brings to the fore the question of the role of the registrar when accepting process. The registrar’s office is established by s 169 (4) of the Constitution. The provision provides:</p> <p>“An Act of Parliament may provide for the conferring, by way of rules of court, upon a registrar of the Supreme Court, duly appointed thereto, of the jurisdiction and powers of the Supreme Court in civil cases in respect of—</p> <p> </p> <ul><li>the making of orders in uncontested cases, other than orders affecting status or the custody or guardianship of children;</li> <li>deciding preliminary or interlocutory matters, including applications for directions but not including matters affecting the liberty of the subject.”</li> </ul><p> </p> <p>Section 33 of the Supreme Court Act establishes the officers of the registrar in compliance with the Constitution. It provides:</p> <p><strong>“(1)</strong> There shall be a registrar of the Supreme Court and such deputy registrars, assistant registrars and other officers of the Supreme Court as may be required, whose offices shall be public offices and shall form part of the Judicial Service.”</p> <p>                       </p> <p>The role of the registrar is set out by the authors <em>Herbstein and Van Winsen, The Civil practice of Superior Courts of South Africa, (</em>3rd ed, Juta and Co Ltd, Cape Town) at p.35 as follows:</p> <p>“the Registrar is an official of the court, responsible for the smooth functioning of the court and is charged with multifarious duties which duties are administrative in nature. For the purposes of clarity, these duties include but are not limited to the issue of process, recording, preserving and directing the flow of all documents filed by the litigants. The Registrar is also responsible for the setting down of cases and issuance of court orders. It is common cause that the Supreme Court is a court of record and the Registrar is the custodian of all court records. Case management which includes maintaining records and scheduling hearings is also the Registrar’s prerogative.”</p> <p> </p> <p> </p> <p>From the above, it is clear that the registrar provides a full range of administrative and support services to the Judges by managing cases coming to court. However, he or she can also perform quasi-judicial functions but only in limited circumstances that are prescribed by statute. An examination of the Supreme Court Act and Rules clearly illustrates that it is not one of the functions of the registrar to decline a notice of appeal which has been filed in time. Where a notice of appeal is defective for whatever reason it is for the court seized with the matter to make such a determination.</p> <p> </p> <p>The registrar cannot refuse to receive a notice of appeal on the basis that it is defective, in the sense that it does not comply with r 29 of the Supreme Court Rules. The registrar may suggest to a party that their document is defective in order for them to make the necessary amendments and bring the document back for filing. However, because of the administrative nature of the registrar’s duties, if a party insists on filing its document as it is after such direction has been offered, the Registrar is obliged to accept the document.</p> <p> </p> <p>The rationale is that a registrar does not have the power to prevent a litigant from filing their court process, if it is filed within the times prescribed in the rules, as this falls outside the ambit of the registrar’s mandate.</p> <p> </p> <p>This is not a situation that is peculiar to this jurisdiction only but is found in a number of jurisdictions. I have examined the practice in various jurisdictions and found that it is the same. The registrar of the Supreme Court of Canada exercises the following functions:</p> <ul><li>Processing, recording, preserving and directing the flow of all documents filed by parties and recording all proceedings which take place during the life of a case.</li> <li>Providing information to litigants, the media and the public on the court's processes and activities and scheduling of cases.</li> </ul><p>iii.        Maintaining the court library and providing a full range of library and information services to judges, staff of the court and legal researchers.</p> <p>iv.        Publishing the Supreme Court reports.</p> <p>Providing administrative and operational support to the judges and court staff.</p> <p>v.         Providing protocol services to the judges.</p> <p> </p> <p>In Nigeria the duties of the registrars are also administrative in nature. Through these functions they aide in quick dispensation of justice, and this includes but is not limited to the following:</p> <p>i.          As the head of the registry, he ensures proper day to day administration of the       court registry.</p> <p>ii.         He co-ordinates the handling of all court processes e.g. issuance of hearing            notices, warrant of arrest, summons.</p> <p>iii.        He undertakes supervision of work of all staff deployed on litigation duties.</p> <p>iv.        He makes arrangement for court sitting and give necessary assistance to the           judge in the open court.</p> <p>v.         He helps in the administration of Oath and Affirmation on witnesses appearing      in court.</p> <p>vi.        He maintains record books in accordance with the rules of court and preparation of the court proceedings eg. rulings and judgments for interested litigants and lawyers in addition to when such matter is going on appeal.</p> <p>vii.       He must ensure proper maintenance and disposal of attached property and exhibits in his custody</p> <p>viii.  He must ensure the preparation of quarterly returns of cases filed and             disposed.</p> <p>ix.        He must see to the execution of court judgments and orders.</p> <p> </p> <p>It should be noted that once a notice of appeal has been filed with the registrar of this court, the appeal is, from that point, pending before the Supreme Court.</p> <p> </p> <p> In my view once the second respondent filed the notice of appeal within the prescribed time, it ceased to be an issue upon which the registrar’s decision could be questioned or one where a single judge of the Supreme Court could declare a nullity.</p> <p> </p> <p>                        I was thus not convinced by the argument that there was a distinction between this case and the Blue Rangers Case (<em>supra</em>) as the net effect of such an order would be the same. If the matter, were to be struck off the roll, it would no longer be before the court. Similarly, if the registrars decision accepting the notice of appeal were to be set aside on the basis that it did not comply with s 43 of the High Court Act, the matter would no longer be before the court.  In any event, as I have stated above, it should be stressed that once a matter has been filed with the registrar only that court can remove it from the roll on the basis that it does not comply either with the rules of the court or a statute.</p> <p> </p> <p>            In instances where the registrar has been granted quasi-judicial functions these are specifically spelt out either in the relevant legislation or the rules of this court. For instance where a party is called upon to inspect a record and he fails to do so within the prescribed time r 15 (8a) of the Supreme Court Rules specifically authorizes the registrar to deem the appeal abandoned. The rule also specifies the remedy that the party has against the decision of the registrar.</p> <p> </p> <p>In relation to the point raised on whether or not the Supreme Court has the jurisdiction to issue a declaratur in the first instance, the point has already been determined. In <em>Guwa v Willoughby’s Investments (Pvt) Ltd </em>2009 (1) LR 368 (S) a litigant approached a single Judge of the Supreme Court in Chambers seeking a notice of appeal to be set aside as a nullity. It was not disputed by the respondent that the notice of appeal was fatally defective, and the court stated that there was in effect nothing pending before the Supreme Court. However, in spite of this being apparent to both parties, the single Judge approached in Chambers made the point that the Supreme Court does not have the jurisdiction to make a declaration in the first instance. The Supreme Court is a creature of statute and as such is governed by the Statute that established it – the Supreme Court Act. Such courts are distinct from courts of original jurisdiction such as the High Court. A statutory body can only act within the confines of its enabling Act, and nowhere in the Supreme Court Act, is the Supreme Court given the jurisdiction to entertain, in the first instance, an application for a declaratur.</p> <p>In this case, the court stated that the Supreme Court, as an appellate court, cannot act in the first instance and issue such a declaratur, in spite of the parties accepting the notice of appeal to be invalid. On that basis the court declined to grant the relief sought as it highlighted that the court is not clothed with that authority and stated as follows:</p> <p>“In other words, whilst the Supreme Court may do nothing that the law does not permit, the High Court may do anything that the law does not forbid.”</p> <p> </p> <p> </p> <p>Clearly the Supreme Court cannot grant a declaratur in the first instance, even where the parties may be in agreement and approach the court by consent seeking an order beyond the courts’ jurisdiction, such consent does not and cannot compel a judge to issue an order beyond his or her jurisdictional authority.</p> <p> </p> <p>This application cannot therefore succeed. The Blue Rangers case presented the option for a respondent in an appeal to raise its opposition to a notice of appeal by way of a point in <em>limine</em> before the court. This application therefore was ill-founded and premature. The parties should have waited for their day in court to raise their objections to the notice of appeal.</p> <p> </p> <p>Ms <em>Mahere</em> applied to be awarded costs on a legal practitioner scale, on the basis that the case was ill conceived as the issues had already been determined by this court. Mr<em> Mwonzora</em> submitted that the applicant should not be visited with costs on a punitive scale as it was not clear from the rules that they could not approach a judge in chambers to impugn the registrar’s decision. I was inclined to agree with him that there was no decision dealing with the role of the registrar. However, in respect to the other points I was of the view that after the case authorities were highlighted to him he should not have persisted. Thus whilst I am not inclined to award costs on a punitive scale, I take the view that the second respondent has been successful in defending the application. He should be awarded costs on the ordinary scale.</p> <p>For the reasons given above, the application is dismissed with costs.</p> <p><em>Mwonzora &amp; Associates, Applicants Legal Practitioners</em></p> <p><em>Nyakutombwa, Mugabe Legal Counsel, 2nd Respondent’s Legal Practitioners</em></p> <p> </p></span></div></div> </div> </div> Mon, 06 Sep 2021 13:39:07 +0000 Anonymous 10079 at http://www.zimlii.org Medlog Zimbabwe (Private) Limited v Cost Benefit Holdings (Private) Limited (SC 24 of 2018, Civil Appeal SC 455 of 2016) [2018] ZWSC 24 (14 May 2018); http://www.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/24 <span class="field field--name-title field--type-string field--label-hidden">Medlog Zimbabwe (Private) Limited v Cost Benefit Holdings (Private) Limited (SC 24 of 2018, Civil Appeal SC 455 of 2016) [2018] ZWSC 24 (14 May 2018);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/1868" hreflang="en">Agency</a></div> <div class="field__item"><a href="/taxonomy/term/2366" hreflang="x-default">CARRIER</a></div> <div class="field__item"><a href="/taxonomy/term/2043" hreflang="en">Carriage of Goods</a></div> <div class="field__item"><a href="/taxonomy/term/2125" hreflang="x-default">CONTRACT</a></div> <div class="field__item"><a href="/taxonomy/term/2141" hreflang="x-default">PRACTICE AND PROCEDURE</a></div> <div class="field__item"><a href="/taxonomy/term/2367" hreflang="x-default">Action (PRACTICE AND PROCEDURE)</a></div> <div class="field__item"><a href="/taxonomy/term/1554" hreflang="en">Cause of action</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:39</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/24/2018-zwsc-24.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=44885">2018-zwsc-24.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/24/2018-zwsc-24.pdf" type="application/pdf; length=279675">2018-zwsc-24.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p> </p> <p><strong>REPORTABLE</strong><strong>        (18)</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>MEDLOG    ZIMBABWE     (PRIVATE)    LIMITED</strong></p> <p><strong>v</strong></p> <p><strong>COST     BENEFIT     HOLDINGS     (PRIVATE)     LIMITED</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GARWE JA, GOWORA JA &amp; GUVAVA JA</strong></p> <p><strong>HARARE: JULY 25, 2017 &amp; 14 MAY, 2018</strong></p> <p> </p> <p> </p> <p> </p> <p><em>E.T. Matinenga</em>, for the appellant</p> <p><em>J.B. Wood</em>, for the respondent</p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>GARWE JA</strong></p> <p>[1]        The respondent issued summons out of the High Court seeking an order for the release of its plastic bags which were being retained by the appellant, payment of the sum of US$157 350.05 representing the business it lost as a result of such retention and costs of suit on the scale of legal practitioner and client.  The respondent also sought payment of interest from the date of issue of summons to the date of payment in full.</p> <p> </p> <p>[2]        After hearing evidence and submissions from the parties, the court <em>a quo</em> ordered the appellant to pay the sum of $157 350.05 to the respondent being damages for loss of business, interest on that sum at the prescribed rate and costs of suit on the ordinary scale.  The present appeal is against that order.</p> <p> </p> <p><em>FACTUAL BACKGROUND</em></p> <p>[3]        The appellant is a company registered in accordance with the laws of Zimbabwe and carries on business from premises in Avondale, Harare.  It is an agent of the Mediterranean Shipping Company (“Mediterranean Shipping”), a company that operates worldwide with its core business being the carriage of containers. As agent, appellant’s responsibility is to fulfil the obligations of Mediterranean Shipping by facilitating delivery of containerised cargo to the clients of Mediterranean Shipping in Zimbabwe.     </p> <p> </p> <p>[4]        In this particular instance, at the behest of Mediterranean Shipping, the appellant supervised the movement by road of the plastic bags, which were in a container, from the Port of Beira to Mutare Dry Port.  In Mutare, the appellant instructed the employees of the Port not to release the goods until certain monies were paid by the respondent.  It is common cause that initially the appellant refused to release the container until a sum of money owed by the wife of one of the directors of the respondent had been paid.  Upon realising that the debt had nothing to do with the respondent, the appellant then demanded payment of the sum of $80.50 in respect of handling charges.  The respondent, believing the bags had been unlawfully retained by the appellant, instituted proceedings in October 2012 for the release of the bags, damages for loss of business and interest thereon at the prescribed rate.  The sum of $80.50 was only paid in August 2013 after which the plastic bags were then retrieved.</p> <p> </p> <p> </p> <p> </p> <p><em>PROCEEDINGS A QUO</em></p> <p>[5]        In its declaration, the respondent alleged that it had imported a container of plastic bags from Hong Kong and that it had engaged the appellant as its agent to facilitate the importation and clearing of the goods with the Zimbabwe Revenue Authority(“ZIMRA”). It alleged that, notwithstanding the fact that it had paid the import duty and appellant’s clearing fees, the appellant had refused to release the container on the basis that it was owed money from a previous transaction by the wife of one of the respondent’s directors.  It alleged that consequent upon the refusal by the appellant to release the container, a client who had placed an order with it for plastic bags had cancelled the order as a result of which the respondent had suffered damages in the amount claimed.</p> <p> </p> <p>[6]        In its plea, the appellant, as defendant, denied that it had entered into a contract of agency with the respondent.  It alleged that it had been contracted by the shipper (a term used in the freight business to denote the person who prepares the necessary documentation for the carriage of goods), Hong Kong Richer Int’l Group Limited (”Richer International”), to transport the cartons of plastic bags <em>CIF</em> Mutare.  It alleged that it duly discharged its obligations to deliver the container to Mutare Dry Port after which the respondent became liable to pay its administration fee relating to the Bill of Lading and the container in the sum of $80.50.  The appellant accepted that it refused to release the container before payment of the administration fee in the sum of $80.50 had been made.</p> <p> </p> <p>[7]        At a pre-trial conference before a judge in chambers, the parties agreed the issues to be determined at the trial.  The issues included, <em>inter alia</em>, whether a contract existed between the parties, and, if so, the terms thereof.  Further, whether the appellant was entitled to refuse to release the container until payment of the handling fee of $80.50 had been made and, if not, whether the respondent had suffered damages in the amount claimed in the summons.</p> <p> </p> <p>[8]        During <em>viva voce</em> evidence the respondent, represented by its managing director, Albert Kuwaza, stated as follows.  His company ordered the plastic bags from China and, through the supplier, engaged the appellant at its offices in China to transport the merchandise from China to Mutare, Zimbabwe.  Once the goods were in Mutare the appellant then demanded payment of the sum of $1750 which it alleged was owed by a Mrs Kuwaza, wife of one of the respondent’s directors, in respect of a previous transaction.  The issue of the handling fee of $80.50 was raised by the appellant for the first time in October 2012, way after a client who had placed an order for the bags had cancelled the purchase.</p> <p> </p> <p>[9]        Under cross-examination, he conceded that, in fact, the company with which he contracted in China was Richer International and that Richer International in turn contracted with Mediterranean Shipping to transport the goods to Mutare.  He further conceded that the clearing fees were paid directly to Green Motor Services, the company that was operating Mutare Dry Port and not to the appellant.  He told the court, further, that as far as he was concerned, the appellant, Mediterranean Shipping and Green Motor Services were part of the same company.</p> <p> </p> <p>[10]      Following the dismissal of an application for absolution at the close of the plaintiff’s case, the appellant’s managing director, Dr Giorgio Spambinato, gave evidence before the court <em>a quo</em>.  His evidence was as follows.  The appellant, which operates from offices situate at 27 Natal Road, Belgravia, Harare is an agent of Mediterranean Shipping. It has no offices outside Zimbabwe. The appellant’s role was to assist Mediterranean Shipping to execute its contractual obligation of moving cargo into and out of Zimbabwe.  In this case the appellant only supervised the movement by road of the container from the Port of Beira to Mutare.  It was not involved in the clearance of the goods with ZIMRA.  He confirmed that initially the appellant had insisted on payment of the sum of $1750 owed by a Mrs Kuwaza in respect of a previous transaction but, on realising the error, had personally instructed that the container be released on payment of the sum of $80.50. That sum represented the handling fee for facilitating the necessary documentation and supervising the speedy execution of delivery by sub-contractors and service providers.  He explained that in Zimbabwe it is customary for the agent handling the cargo on behalf of Mediterranean Shipping to recover the costs directly from the recipients of the cargo.  In other countries the handling fee is paid by Mediterranean Shipping.  Whatever role the appellant played in this case was in fulfilment of its agency agreement with Mediterranean Shipping.</p> <p> </p> <p>[11]      In its closing address <em>a quo</em>, the respondent submitted that the question whether there was a contract was “of no real consequence” and that “there needn’t have been a contract between them because the scenario can be resolved by the principles of <em>depositum …</em>” Further that, as depositary, the appellant had an obligation to return the goods to the respondent upon demand.  The respondent further submitted that it was clear from the summons and declaration that the claim “was vindicatory in nature, not contractual.”  Accordingly, respondent prayed for its claim for damages and interest thereon to be granted on the basis of <em>depositum</em>.</p> <p> </p> <p>[12]      In its address <em>a quo</em> the appellant submitted that, on the evidence led before the court, no contract had been proven.  The person with whom the respondent had communicated in China was not the appellant but an employee of Mediterranean Shipping.  More critically, the terms of the alleged contract between the respondent and the appellant had not been established.  Moreover, at no stage had the respondent deposited the goods with the appellant.</p> <p> </p> <p>[13]      In its judgment the court <em>a quo</em> found that Mr Kuwaza, the managing director of the respondent had been unclear as to the nature of the relationship between the appellant, Mediterranean Shipping, Richer International and the respondent.  The court remarked as follows at page 10 of its judgment:-</p> <p>“What is apparent from Mr Kuwaza’s evidence is that he did not produce any documents to show the existence of a contract between the plaintiff and the defendant.  From the evidence that is before me it is clear that the plaintiff entered into a shipping agreement with Mediterranean Shipping Company in Hong Kong, China in April 2012 for the shipment of its plastic container from China to Zimbabwe.  That contract did not involve the defendant.”</p> <p> </p> <p>[14]     However at pages 10-11 of the cyclostyled judgments the court <em>a quo</em> stated:-</p> <p>“I am of the considered view that the circumstances of this case show that there was a contract between the plaintiff and the defendant.  Although the defendant said that it was acting as an agent of Mediterranean Shipping Company its conduct towards the plaintiff shows that it also contracted with the plaintiff separately.  It is not disputed that the defendant facilitated the importation of the plaintiff’s cargo from the Port of Beira to Mutare.  Thereafter it demanded payment from the plaintiff for the service that it had rendered.  The parties did not enter into this contract verbally or in writing but they did so by their conduct.  By demanding payment from the plaintiff for the costs it incurred in facilitating the importation of the plaintiff’s cargo the defendant created a contract between itself and the plaintiff.  It made it a condition of the contract that if the administration fee was not paid, the plaintiff’s cargo was not going to be released.  If there was no contract between the plaintiff and the defendant, the defendant should have simply demanded payment of its fees from Mediterranean Shipping Company which it alleges to be its principal.  At law an agent’s duty is to perform his mandate on behalf of his principal and he accounts to his principal.  The agent’s remuneration is paid by the principal and not by a third party.  I therefore take it that the moment an agent starts demanding payment from the third party and not from his principal then it means that he is no longer acting in terms of the contract between himself and his principal, but he would have created his own contract with the third party.  That contract he would have created with the third party is separate from his contract with his principal.  In <em>casu</em> this is what the defendant did.  It created its own contract with the plaintiff, which contract was separate from the one it had with Mediterranean Shipping Company.”</p> <p> </p> <p>[15]      At page 12 of its judgment, the court, without commenting on the submission by the respondent that it now relied on a contract of <em>depositum</em>, concluded by stating:-</p> <p>“If there was no contract between the 2 companies then the defendant should and would have demanded its fee from Mediterranean Shipping Company which is its principal.  If there was on (<em>sic</em>) contract the defendant had no business demanding that money from the plaintiff.  It also had no business withholding or refusing to release the plaintiff’s container on the basis that the handling fee had not been paid.  All the defendant’s payments would have been due from Mediterranean Shipping Company.  The plaintiff managed to prove that there was contract between itself and the defendant.”</p> <p> </p> <p> </p> <p>[16]     Based on the above findings, the court concluded that the appellant had wrongfully refused to release the container and that the respondent had proved its contractual damages.  It consequently made the order which is the subject of this appeal.</p> <p> </p> <p><em>GROUNDS OF APPEAL</em></p> <p>[17]             In its notice of appeal the appellant raised five grounds.  These are:-</p> <p>1.  The court <em>a quo</em> erred in finding that there was a contract between the appellant and the respondent when the latter was unable to identify the nature of the contract it relied upon and its terms – i.e. whether the contract was one of carriage, <em>depositum</em> or agency.</p> <p>2.  The court <em>a quo</em> erred in finding that there was a contract between the appellant and the respondent despite a contrary indication in the bill of lading and respondent’s lack of knowledge of the terms of the contract it alleged.</p> <p>3.  The court <em>a quo</em> erred in placing the onus of proving the terms of the contractual relationship between appellant and respondent on the former, albeit obliquely.</p> <p>4.  The court <em>a quo</em> erred in finding that-</p> <p>4.1       the contract for the sale of the plastic bags between the respondent and Nedol Investments (Private) Limited was not a sham; and</p> <p>4.2       the loss suffered by respondent, if any, was reasonably foreseen by appellant at the time of the conclusion of the alleged contract and despite the fact that the reasonable foreseeability was not specifically pleaded and proved.</p> <p>5. The court <em>a quo</em> erred in finding that the respondent had mitigated its loss.</p> <p> </p> <p><em>APPELLANT’S SUBMISSIONS BEFORE THIS COURT</em></p> <p>[18]      In its submissions before this Court, the appellant has argued that the respondent did not sufficiently identify the nature of the contract between the parties – in particular-whether it was one of agency or <em>depositum</em>.  The terms of the agreement, be it agency or <em>depositum,</em> remained unknown. It further submitted that the case for the respondent was muddled and that the judgment of the court <em>a quo</em> was equally confusing and confused.  Lastly, it submitted that whilst the facts show some relationship between the parties, the respondent had not proved the nature of the relationship that existed between them.</p> <p> </p> <p><em>RESPONDENT’S SUBMISSIONS BEFORE THIS COURT</em></p> <p>[19]      In its heads of argument, the respondent has submitted as follows. Its declaration in the court <em>a quo</em> made it clear that what it sought was the release of its goods arising from their unlawful detention.  Further, that even if there was no contract of agency between the parties, the respondent “was not without a remedy” and that there was a tacit contract of <em>depositum</em> between the parties. </p> <p> </p> <p>[20]      In paragraph 3 of its heads of argument, it has further stated:</p> <p>“The respondent had contended that the claim was of a vindicatory nature and that any contract between the parties was one of <em>depositum</em> …. As the appellant states, the court did not deal with these issues.  It is here noted that by the time the matter came before the court, the goods had been released and if the claim had originally been vindicatory in nature, it no longer was, which was probably the reason why the court <em>a quo</em> <em>allowed itself to be misled by the appellant to believe that the claim fell to be decided in contract.”</em> (my emphasis)</p> <p> </p> <p>[21]      At paragraph 10 of its heads of argument, the respondent has also stated:-</p> <p>“The absence of a contract, however, would not have left the respondent without a remedy because he would have a claim in delict for any loss incurred as a result of the unlawful possession of his property ….”</p> <p> </p> <p> </p> <p>[22]      Finally, at paragraphs 13 and 14 of its heads, the respondent has further argued:-</p> <p>“13.     Thus, as the respondent’s counsel contended at p 239, the issue whether there was a contract between the parties was really of no consequence and the appeal cannot succeed on the basis that no such contract was brought into being.</p> <p>14.       The court <em>a quo</em> found in effect that there was a tacit contract between the parties based on the fact that the appellant raised charges mentioned above against the respondent.”</p> <p> </p> <p> </p> <p><em>RESPONDENT’S SHIFTING CAUSE OF ACTION</em></p> <p>[23]      It is clear from the foregoing that the respondent, as plaintiff, changed its cause of action as the trial progressed.  In the declaration, the claim clearly arises from a contract of agency.  When the respondent realised that the evidence did not establish such agency, an aspect I deal with shortly, it then claimed, without amending its pleadings, relief on the basis of the <em>rei vindicatio </em>and a contract of <em>depositum</em>.  In its submissions before this Court, the respondent says, whatever the correct position might be on whether or not it had a contract with the appellant, it cannot be without a remedy.  The suggestion was made that it even had a claim arising out of delict.</p> <p> </p> <p>[24]      I am inclined to agree with learned counsel for the appellant that the cause of action <em>a quo</em> was most confusing.  The cause of action based on a contract of agency was abandoned in favour of the <em>rei vindicatio </em>and <em>depositum,</em> which had not been pleaded. No evidence was led on the terms of such contract. To add to the confusion, before this Court, the possibility of the claim arising out of delict has also been thrown in.  The manner in which the respondent handled its cause of action in the court <em>a quo</em> and before this Court is most unsatisfactory and not permissible.  Implicit in the submissions by the respondent in support of the judgment of the court <em>a quo</em> is that pleadings serve no purpose.</p> <p> </p> <p><em>THE IMPORTANT PURPOSE OF PLEADINGS</em></p> <p>[25]      The manner in which the respondent has handled its case both <em>a quo</em> and in this Court brings to the fore the question as to what the purpose of pleadings is.  In general the purpose of pleadings is to clarify the issues between the parties that require determination by a court of law.  Various decisions of the courts in this country and elsewhere have stressed this important principle.</p> <p>25.1     In <em>Durbach v Fairway Hotel, Ltd</em> 1949 (3) SA 1081 (SR) the court remarked:-</p> <p>“The whole purpose of pleadings is to bring clearly to the notice of the court and the parties to an action the issues upon which reliance is to be placed.”</p> <p> </p> <p>25.2     Harwood BA in his text <em>Odgers’ Principles of Pleading &amp; Practice in Civil Actions in the High Court of Justice</em> (16th edn, Stevens &amp; Sons Ltd, London, 1957) states at page 72:-</p> <p>            “The function of pleadings then is to ascertain with precision the matters on which the parties differ and the points on which they agree; and thus arrive at certain clear issues on which both parties desire a judicial decision.”</p> <p> </p> <p>25.3     In <em>Kali v Incorporated General Insurance Ltd</em> 1976 (2) SA 179 (D) at 182, the court remarked:</p> <p>            “The purpose of pleading is to clarify the issues between the parties and a pleader cannot be allowed to direct the attention of the other party to one issue and then, at the trial, attempt to canvass another.”</p> <p> </p> <p>25.4     In <em>Courtney–Clarke v Bassingthwaighte</em> 1991 (1) SA 684 (Nm), the court remarked at page 698:-</p> <p>            “In any case there is no precedent or principle allowing a court to give judgment in favour of a party on a cause of action never pleaded, alternatively there is no authority for ignoring the pleadings … and giving judgment in favour of a plaintiff on a cause of action never pleaded.  In such a case the least a party can do if he requires a substitution of or amendment of his cause of action, is to apply for an amendment.”</p> <p> </p> <p>25.5     In <em>Imprefed (Pty) Ltd v National Transport Commission</em> 1993 (3) SA 94(A), 108, the court cited with approval the case of <em>Robinson v Randfontein Estates GM Co. Ltd</em> 1925 AD 173 where at page 198 it was stated as follows:-</p> <p>            “The object of pleading is to define the issues; and parties will be kept strictly to their pleas where any departure would cause prejudice or would prevent full enquiry.  But within those limits the court has a wide discretion.  For pleadings are made for the court, not the court for pleadings.  And where a party has had every facility to place all the facts before the trial court and the investigation into all the circumstances has been as thorough and as patient as in this instance, there is no justification for interference by an appellate tribunal, merely because the pleading of the opponent has not been as explicit as it might have been.”</p> <p> </p> <p>25.6     In <em>Jowell v Bramwell-Jones</em> 1998 (1) SA 836 at 898 the court cited with approval the following remarks by the authors Jacob and Goldrein in their text <em>Pleadings: Principles and Practice </em>at p 8-9:</p> <p>            “As the parties are adversaries, it is left to each of them to formulate his case in his own way, subject to the basic rules of pleadings … For the sake of certainty and finality, each party is bound by his own pleading and cannot be allowed to raise a different or fresh case without due amendment properly made.  Each party thus knows the case he has to meet and cannot be taken by surprise at the trial.  The court itself is as much bound by the pleadings of the parties as they are themselves.  It is not part of the duty or function of the court to enter upon any enquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings.  Indeed, the court would be acting contrary to its own character and nature if it were to pronounce upon any claim or defence not made by the parties.  To do so would be to enter the realm of speculation.  … Moreover, in such event, the parties themselves, or at any rate one of them, might well feel aggrieved; for a decision given on a claim or defence not made, or raised by or against a party is equivalent to not hearing him at all and may thus be a denial of justice.  The court does not provide its own terms of reference or conduct its own inquiry into the merits of the case but accepts and acts upon the terms of reference which the parties have chosen and specified in their pleadings.  In the adversary system of litigation, therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither <em>party can complain if the agenda is strictly adhered to.</em>”  (my emphasis)</p> <p> </p> <p>25.7     The authors Cilliers AC, Loots C and Nel HC in their text <em>Herbstein and Van Winsen, The Civil Practice of the High Courts of South Africa</em> (5th edn, Juta and Co. Ltd, Cape Town 2009) quote the following passage from Halsbury’s <em>Laws of England, </em>4th edn (Reissue), Vol 36 para 1 in which the function of pleadings is said to be,</p> <p>            “… to give a fair notice of the case which has to be met and to define the issues on which the court will have to adjudicate in order to determine the matters in dispute between the parties.  It follows that the pleadings enable the parties to decide in advance of the trial what evidence will be needed.  From the pleadings the appropriate method of trial can be determined.  They also form a record which will be available if issues are sought to be litigated again.  The matters in issue are determined by the state of pleadings at the close if they are not subsequently amended.” (at page 558)</p> <p> </p> <p>25.8     In <em>Farrell v Secretary of State for Defence</em> (1980) 1 All ER 166 at page 173, Lord Edmund-Davies stated as follows,</p> <p>            “It has become fashionable these days to attach decreasing importance to pleadings, and it is beyond doubt that there have been times when an insistence on complete compliance with their technicalities put justice at risk, and indeed, may on occasion have led to its being defeated.  But pleadings continue to play an essential part in civil actions, and although there has been … a wide power to permit amendments, circumstances may arise when the grant of permission would work injustice or, at least, necessitate an adjournment which may prove particularly unfortunate in trial with a jury.  To shrug off criticism as ‘a mere pleading point’ is therefore bad law and bad practice.  For the primary purpose of pleadings remains, and it can still prove of vital importance.  That purpose is to define the issues and thereby to inform the parties in advance of the case they have to meet and so enable them to take steps to deal with it.”</p> <p> </p> <p>25.9     In a paper: <em>A Judge’s View Point</em>, the <em>Role of Pleadings</em> presented by Justices Rares of the Federal Court of Australia and Richard White of the Supreme Court of New South Wales at a judge’s symposium, the learned judges remarked:</p> <p>“Precise formulation of the applicant’s rights in the initiating document is of central importance.  This is because the pleading is the source from which many other consequences flow in the life of the litigation from filing at first instance through to final resolution in the High Court.  The pleading will be used as the reference point for the seeking of particulars, the administering of interrogatories (which is virtually extinct), the obtaining of an order for discovery if the court is satisfied this is required, the issue of subpoenas, the calling of evidence, the relevance and admissibility of evidence, the closing arguments, the reasons for judgments and the availability of arguments on appeal.  At all of these points, the following questions arise: “Was this issue pleaded?” and “How was this issue pleaded?”  The question is not the loose one whether the argument could possibly be raised on the evidence at the conclusion of a hearing but whether the issue has been pleaded …”</p> <p> </p> <p>[26]      I associate myself entirely with the above remarks made by eminent jurists both in this jurisdiction and internationally.  The position is therefore settled that pleadings serve the important purpose of clarifying or isolating the triable issues that separate the two litigants.  It is on those issues that a defendant prepares for trial and that a court is called upon to make a determination.  Therefore a party who pays little regard to its pleadings may well find itself in the difficult position of not being able to prove its stated cause of action against an opponent.</p> <p>  </p> <p><em>REQUISITES FOR PLEADING A CONTRACT</em></p> <p>[27]      In an action based on a contract, the material averments that must usually be made are the existence of the contract, the relevant terms of the contract and the applicability of those terms to the particular right forming the basis <em>ex contractu</em> of the claim – <em>Herbstein &amp; Van Winsen,</em> <em>The Civil Practice of the High Courts of South Africa</em>, op cit, p 569. </p> <p> </p> <p><em>WHETHER THE CONTRACT OF AGENCY WAS PROVED</em></p> <p>[28]      This was the basis of the respondent’s cause of action before the High Court.  The respondent’s managing director did not know the exact relationship between the appellant, Mediterranean Shipping and Richer International of Hong Kong.  From the evidence, it is clear that the appellant was not involved in the transactions that took place in China.  It does not conduct operations outside Zimbabwe. It only got involved, as agent of Mediterranean Shipping, in tracking the container once it landed in Beira and in having it transported to Mutare Dry Port.  It was also clear from the evidence that, as agent of Mediterranean Shipping, the appellant was supposed to receive payment from Mediterranean Shipping for its role in checking the Bill of Lading and ensuring that the cargo was delivered to Mutare Dry Port. The appellant’s managing director explained however that it is the practice in Zimbabwe for the recipient to be billed directly by the appellant.</p> <p> </p> <p>[29]      Clearly, no contract of agency was proved.  The fact that the appellant invoiced the respondent for handling fees does not, on its own, show the existence of a contract.  The exact relationship that existed between the two parties was not established.  In the circumstances, the court <em>a quo</em> should have granted the application for absolution from the instance which was made at the close of the case for the plaintiff.  The court <em>a quo </em>accepted that the respondent had not produced documents to show the existence of a contract.  The court further accepted that the respondent had entered into a shipping agreement with Mediterranean Shipping in Hong Kong and that the appellant was not involved.  The court also accepted that the appellant only got involved in supervising the movement of the container from Beira to Mutare at the behest of Mediterranean Shipping.  The court further found that although the parties had been involved in these transactions over the years, the respondent did not know that the appellant was merely an agent of Mediterranean Shipping.  Having made these findings,that really should have been the end of the matter.  The suggestion that, judging by the conduct of the parties, there must have been some other undefined contract between them, is not borne by the evidence.  In any event, the court did not state what type of contract this may have been and what its terms were.</p> <p> </p> <p>[30]      Of significance is the fact that the respondent itself accepted, in its closing submissions, that its claim was not based on agency but rather on <em>depositum.</em>  Having abandoned its claim based on a contract of agency, it was not for the court <em>a quo</em> to find, as it did, that there was some other undefined contract.  Once the respondent abandoned its pleadings, the court should have granted absolution from the instance.  The attempt by the respondent to rely on the <em>rei vindicatio </em>and <em>depositum</em>, as well as delict, clearly confirms that the respondent had not established any real cause of action against the appellant.</p> <p> </p> <p><em>DEPOSITUM NOT ESTABLISHED IN ANY EVENT</em></p> <p>[31]      Earlier in this judgment, I cited several decided cases in support of the proposition that pleadings serve the important purpose of identifying the issues that require determination by a court and also enabling a defendant to know the case he has to meet before the court.  To this principle however there is a qualification.  In a limited sense, a court can adjudicate on issues not raised on the pleadings even when no amendment has been applied for.</p> <p>31.1     In <em>Collen v Rietfontein Engineering Works </em>1948 (1) SA 413 (A), 433, CENTLIVRES JA, referring to an issue not raised on the pleadings but fully canvassed at the trial, said:</p> <p>”This court, therefore, has before it all the materials on which it is able to form an opinion, and this being the position it would be idle for it not to determine the real issue which emerged during the course of the trial.“</p> <p> </p> <p>31.2     Further in <em>Middleton v Carr</em> 1949 (2) SA 374 (A) at 385, SCHREINER JA, in</p> <p>similar vein, stated:</p> <p>“Where there has been full investigations of a matter, that is, where there is no reasonable ground for thinking that further examination of the facts might lead to a different conclusion, the court is entitled to, and generally should, treat the issue as if it had been expressly and timeously raised.”          </p> <p>31.3     In <em>Sager’s Motors (Pvt) Ltd v Patel</em> 1968 (2) RLR 267 (A), Lewis AJA accepted that the above remarks correctly reflected the position in this country.   At page 274 A – B he stated:</p> <p>”The <em>ratio decidendi </em>of the cases … referred to above is that where there has been a full and thorough investigation into all the circumstances of the case and a party has had every facility to place all the facts before the trial court, the court will not decline to adjudicate on an issue thus fully canvassed simply because the pleadings have not explicitly covered it.“</p> <p>31.4     The above remarks were cited with approval by this Court in <em>Guardian Security Services (Pvt) Ltd v ZBC</em> 2002 (1) ZLR  (S), 5 D – H, 6 A-B.  That a court can determine an issue that is fully canvassed but not pleaded is therefore now settled in this jurisdiction.</p> <p>[32]      Implicit in the submissions by the respondent, both <em>a quo </em>and in this court, is the suggestion that, although not pleaded, the existence of a contract of <em>depositum </em>was established on the evidence adduced before the court <em>a quo</em>.</p> <p>[33]      <em>Depositum,</em> as a concept, was, as would be expected, developed by the Romans.  A contract of <em>depositum</em>, or deposit, as we now call it, is “… a contract in which one person (<em>depositor</em>) gives another (<em>depositarius) </em>a thing to keep for him <em>gratis</em>, and to return it on demand … the ownership of the thing is not transferred, but ownership and possession remain with the depositor …. The receiver is not allowed to use it” – Hunter W.A., <em>A Systemic and Historical Exposition of Roman Law in the Order of a Code</em> (2nd Ed) William Maxwell and Son, London 1885.</p> <p>[34]      In <em>B.C. Plant Hire cc t/a BC Carriers v Grenco</em> (SA) (Pty) Ltd (2004) 1 All SA 612 (C), the court held that a contract of <em>depositum</em> comes into existence when one person (the depositor) entrusts a moveable thing to another person (depositary) who undertakes to care for it gratuitously and to return it at the request of the depositor.  The depositary does not benefit from the deposit in any way.  If the depositary uses the thing, then this is considered a <em>furtum usus</em>.  The depository can only be found liable where gross negligence (<em>culpa lata</em>) is established. See also <em>Ncube v Hamadziripi</em> 1996 (2) ZLR 403 (HC); <em>Munhuwa v Mhukahuru Bus Services</em> <em>(Pvt) Ltd</em> 1994 (2) ZLR 382 H; <em>Smith v Minister of Lands and Natural Resources</em> 1979 RLR 421(G); 1980(1) S.A 565 (ZH).</p> <p> </p> <p>[35]      In this case it was never the respondent’s case at any stage that it had given the container to the appellant for safe keeping or that the appellant had agreed to keep the container <em>gratis </em>and to return it on demand.   The appellant does not handle containers <em>ex gratia.  </em>To the contrary, the appellant was demanding payment of the handling fee of $80.50 before the container could be released to the respondent.  In short, the evidence did not establish the existence of a contract of <em>depositum</em>.</p> <p><em>DISPOSITION</em></p> <p>[36]      It is clear, from all the circumstances of this case, that the respondent did not establish any cause of action cognizable at law against the appellant.  It may, but I make no firm finding in this respect, have had a cause of action arising out of delict as suggested by its counsel before this Court.  However this was not the cause of action pleaded before the court <em>a quo </em>or established during the oral hearing.  The possibility of a cause of action arising from delict was, as already noted, raised for the first time in heads of argument filed before this Court.  The fact that the respondent abandoned its claim based on agency and then sought to rely on the <em>rei vindicatio</em> and <em>depositum</em> (without amending its pleadings) and also delict, leaves one in no doubt that the respondent was on a fishing expedition and was not clear, even in its own mind, what its cause of action against the appellant was.  In changing its cause of action at whim, as it did, the respondent breached the whole essence and purpose of pleadings.  It cannot in these circumstances be said to have proved its claim for contractual damages against the appellant.</p> <p> </p> <p>[37]      The appeal must therefore succeed.  Costs are to follow the event.</p> <p> </p> <p>[38]      It is accordingly ordered as follows:-</p> <p>            1.         The appeal succeeds with costs.</p> <p>            2.         The judgment of the court <em>a quo</em> is set aside and in</p> <p>                        its place the following is substituted:</p> <p>            “The plaintiff’s claim be and is hereby dismissed with costs.”</p> <p>                                    <strong>GOWORA JA</strong>                                   I agree</p> <p>                                    <strong>GUVAVA JA</strong>                                    I agree</p> <p><em>Honey &amp; Blackenberg,</em> appellant’s legal practitioners</p> <p><em>Venturas &amp; Samkange,</em> respondent’s legal practitioners</p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-2d7913c31a582e029a722b15528bcb00f374ef00839ac3ab0f2bcbc0825527ec"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p> </p> <p><strong>REPORTABLE</strong><strong>        (18)</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>MEDLOG    ZIMBABWE     (PRIVATE)    LIMITED</strong></p> <p><strong>v</strong></p> <p><strong>COST     BENEFIT     HOLDINGS     (PRIVATE)     LIMITED</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GARWE JA, GOWORA JA &amp; GUVAVA JA</strong></p> <p><strong>HARARE: JULY 25, 2017 &amp; 14 MAY, 2018</strong></p> <p> </p> <p> </p> <p> </p> <p><em>E.T. Matinenga</em>, for the appellant</p> <p><em>J.B. Wood</em>, for the respondent</p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>GARWE JA</strong></p> <p>[1]        The respondent issued summons out of the High Court seeking an order for the release of its plastic bags which were being retained by the appellant, payment of the sum of US$157 350.05 representing the business it lost as a result of such retention and costs of suit on the scale of legal practitioner and client.  The respondent also sought payment of interest from the date of issue of summons to the date of payment in full.</p> <p> </p> <p>[2]        After hearing evidence and submissions from the parties, the court <em>a quo</em> ordered the appellant to pay the sum of $157 350.05 to the respondent being damages for loss of business, interest on that sum at the prescribed rate and costs of suit on the ordinary scale.  The present appeal is against that order.</p> <p> </p> <p><em>FACTUAL BACKGROUND</em></p> <p>[3]        The appellant is a company registered in accordance with the laws of Zimbabwe and carries on business from premises in Avondale, Harare.  It is an agent of the Mediterranean Shipping Company (“Mediterranean Shipping”), a company that operates worldwide with its core business being the carriage of containers. As agent, appellant’s responsibility is to fulfil the obligations of Mediterranean Shipping by facilitating delivery of containerised cargo to the clients of Mediterranean Shipping in Zimbabwe.     </p> <p> </p> <p>[4]        In this particular instance, at the behest of Mediterranean Shipping, the appellant supervised the movement by road of the plastic bags, which were in a container, from the Port of Beira to Mutare Dry Port.  In Mutare, the appellant instructed the employees of the Port not to release the goods until certain monies were paid by the respondent.  It is common cause that initially the appellant refused to release the container until a sum of money owed by the wife of one of the directors of the respondent had been paid.  Upon realising that the debt had nothing to do with the respondent, the appellant then demanded payment of the sum of $80.50 in respect of handling charges.  The respondent, believing the bags had been unlawfully retained by the appellant, instituted proceedings in October 2012 for the release of the bags, damages for loss of business and interest thereon at the prescribed rate.  The sum of $80.50 was only paid in August 2013 after which the plastic bags were then retrieved.</p> <p> </p> <p> </p> <p> </p> <p><em>PROCEEDINGS A QUO</em></p> <p>[5]        In its declaration, the respondent alleged that it had imported a container of plastic bags from Hong Kong and that it had engaged the appellant as its agent to facilitate the importation and clearing of the goods with the Zimbabwe Revenue Authority(“ZIMRA”). It alleged that, notwithstanding the fact that it had paid the import duty and appellant’s clearing fees, the appellant had refused to release the container on the basis that it was owed money from a previous transaction by the wife of one of the respondent’s directors.  It alleged that consequent upon the refusal by the appellant to release the container, a client who had placed an order with it for plastic bags had cancelled the order as a result of which the respondent had suffered damages in the amount claimed.</p> <p> </p> <p>[6]        In its plea, the appellant, as defendant, denied that it had entered into a contract of agency with the respondent.  It alleged that it had been contracted by the shipper (a term used in the freight business to denote the person who prepares the necessary documentation for the carriage of goods), Hong Kong Richer Int’l Group Limited (”Richer International”), to transport the cartons of plastic bags <em>CIF</em> Mutare.  It alleged that it duly discharged its obligations to deliver the container to Mutare Dry Port after which the respondent became liable to pay its administration fee relating to the Bill of Lading and the container in the sum of $80.50.  The appellant accepted that it refused to release the container before payment of the administration fee in the sum of $80.50 had been made.</p> <p> </p> <p>[7]        At a pre-trial conference before a judge in chambers, the parties agreed the issues to be determined at the trial.  The issues included, <em>inter alia</em>, whether a contract existed between the parties, and, if so, the terms thereof.  Further, whether the appellant was entitled to refuse to release the container until payment of the handling fee of $80.50 had been made and, if not, whether the respondent had suffered damages in the amount claimed in the summons.</p> <p> </p> <p>[8]        During <em>viva voce</em> evidence the respondent, represented by its managing director, Albert Kuwaza, stated as follows.  His company ordered the plastic bags from China and, through the supplier, engaged the appellant at its offices in China to transport the merchandise from China to Mutare, Zimbabwe.  Once the goods were in Mutare the appellant then demanded payment of the sum of $1750 which it alleged was owed by a Mrs Kuwaza, wife of one of the respondent’s directors, in respect of a previous transaction.  The issue of the handling fee of $80.50 was raised by the appellant for the first time in October 2012, way after a client who had placed an order for the bags had cancelled the purchase.</p> <p> </p> <p>[9]        Under cross-examination, he conceded that, in fact, the company with which he contracted in China was Richer International and that Richer International in turn contracted with Mediterranean Shipping to transport the goods to Mutare.  He further conceded that the clearing fees were paid directly to Green Motor Services, the company that was operating Mutare Dry Port and not to the appellant.  He told the court, further, that as far as he was concerned, the appellant, Mediterranean Shipping and Green Motor Services were part of the same company.</p> <p> </p> <p>[10]      Following the dismissal of an application for absolution at the close of the plaintiff’s case, the appellant’s managing director, Dr Giorgio Spambinato, gave evidence before the court <em>a quo</em>.  His evidence was as follows.  The appellant, which operates from offices situate at 27 Natal Road, Belgravia, Harare is an agent of Mediterranean Shipping. It has no offices outside Zimbabwe. The appellant’s role was to assist Mediterranean Shipping to execute its contractual obligation of moving cargo into and out of Zimbabwe.  In this case the appellant only supervised the movement by road of the container from the Port of Beira to Mutare.  It was not involved in the clearance of the goods with ZIMRA.  He confirmed that initially the appellant had insisted on payment of the sum of $1750 owed by a Mrs Kuwaza in respect of a previous transaction but, on realising the error, had personally instructed that the container be released on payment of the sum of $80.50. That sum represented the handling fee for facilitating the necessary documentation and supervising the speedy execution of delivery by sub-contractors and service providers.  He explained that in Zimbabwe it is customary for the agent handling the cargo on behalf of Mediterranean Shipping to recover the costs directly from the recipients of the cargo.  In other countries the handling fee is paid by Mediterranean Shipping.  Whatever role the appellant played in this case was in fulfilment of its agency agreement with Mediterranean Shipping.</p> <p> </p> <p>[11]      In its closing address <em>a quo</em>, the respondent submitted that the question whether there was a contract was “of no real consequence” and that “there needn’t have been a contract between them because the scenario can be resolved by the principles of <em>depositum …</em>” Further that, as depositary, the appellant had an obligation to return the goods to the respondent upon demand.  The respondent further submitted that it was clear from the summons and declaration that the claim “was vindicatory in nature, not contractual.”  Accordingly, respondent prayed for its claim for damages and interest thereon to be granted on the basis of <em>depositum</em>.</p> <p> </p> <p>[12]      In its address <em>a quo</em> the appellant submitted that, on the evidence led before the court, no contract had been proven.  The person with whom the respondent had communicated in China was not the appellant but an employee of Mediterranean Shipping.  More critically, the terms of the alleged contract between the respondent and the appellant had not been established.  Moreover, at no stage had the respondent deposited the goods with the appellant.</p> <p> </p> <p>[13]      In its judgment the court <em>a quo</em> found that Mr Kuwaza, the managing director of the respondent had been unclear as to the nature of the relationship between the appellant, Mediterranean Shipping, Richer International and the respondent.  The court remarked as follows at page 10 of its judgment:-</p> <p>“What is apparent from Mr Kuwaza’s evidence is that he did not produce any documents to show the existence of a contract between the plaintiff and the defendant.  From the evidence that is before me it is clear that the plaintiff entered into a shipping agreement with Mediterranean Shipping Company in Hong Kong, China in April 2012 for the shipment of its plastic container from China to Zimbabwe.  That contract did not involve the defendant.”</p> <p> </p> <p>[14]     However at pages 10-11 of the cyclostyled judgments the court <em>a quo</em> stated:-</p> <p>“I am of the considered view that the circumstances of this case show that there was a contract between the plaintiff and the defendant.  Although the defendant said that it was acting as an agent of Mediterranean Shipping Company its conduct towards the plaintiff shows that it also contracted with the plaintiff separately.  It is not disputed that the defendant facilitated the importation of the plaintiff’s cargo from the Port of Beira to Mutare.  Thereafter it demanded payment from the plaintiff for the service that it had rendered.  The parties did not enter into this contract verbally or in writing but they did so by their conduct.  By demanding payment from the plaintiff for the costs it incurred in facilitating the importation of the plaintiff’s cargo the defendant created a contract between itself and the plaintiff.  It made it a condition of the contract that if the administration fee was not paid, the plaintiff’s cargo was not going to be released.  If there was no contract between the plaintiff and the defendant, the defendant should have simply demanded payment of its fees from Mediterranean Shipping Company which it alleges to be its principal.  At law an agent’s duty is to perform his mandate on behalf of his principal and he accounts to his principal.  The agent’s remuneration is paid by the principal and not by a third party.  I therefore take it that the moment an agent starts demanding payment from the third party and not from his principal then it means that he is no longer acting in terms of the contract between himself and his principal, but he would have created his own contract with the third party.  That contract he would have created with the third party is separate from his contract with his principal.  In <em>casu</em> this is what the defendant did.  It created its own contract with the plaintiff, which contract was separate from the one it had with Mediterranean Shipping Company.”</p> <p> </p> <p>[15]      At page 12 of its judgment, the court, without commenting on the submission by the respondent that it now relied on a contract of <em>depositum</em>, concluded by stating:-</p> <p>“If there was no contract between the 2 companies then the defendant should and would have demanded its fee from Mediterranean Shipping Company which is its principal.  If there was on (<em>sic</em>) contract the defendant had no business demanding that money from the plaintiff.  It also had no business withholding or refusing to release the plaintiff’s container on the basis that the handling fee had not been paid.  All the defendant’s payments would have been due from Mediterranean Shipping Company.  The plaintiff managed to prove that there was contract between itself and the defendant.”</p> <p> </p> <p> </p> <p>[16]     Based on the above findings, the court concluded that the appellant had wrongfully refused to release the container and that the respondent had proved its contractual damages.  It consequently made the order which is the subject of this appeal.</p> <p> </p> <p><em>GROUNDS OF APPEAL</em></p> <p>[17]             In its notice of appeal the appellant raised five grounds.  These are:-</p> <p>1.  The court <em>a quo</em> erred in finding that there was a contract between the appellant and the respondent when the latter was unable to identify the nature of the contract it relied upon and its terms – i.e. whether the contract was one of carriage, <em>depositum</em> or agency.</p> <p>2.  The court <em>a quo</em> erred in finding that there was a contract between the appellant and the respondent despite a contrary indication in the bill of lading and respondent’s lack of knowledge of the terms of the contract it alleged.</p> <p>3.  The court <em>a quo</em> erred in placing the onus of proving the terms of the contractual relationship between appellant and respondent on the former, albeit obliquely.</p> <p>4.  The court <em>a quo</em> erred in finding that-</p> <p>4.1       the contract for the sale of the plastic bags between the respondent and Nedol Investments (Private) Limited was not a sham; and</p> <p>4.2       the loss suffered by respondent, if any, was reasonably foreseen by appellant at the time of the conclusion of the alleged contract and despite the fact that the reasonable foreseeability was not specifically pleaded and proved.</p> <p>5. The court <em>a quo</em> erred in finding that the respondent had mitigated its loss.</p> <p> </p> <p><em>APPELLANT’S SUBMISSIONS BEFORE THIS COURT</em></p> <p>[18]      In its submissions before this Court, the appellant has argued that the respondent did not sufficiently identify the nature of the contract between the parties – in particular-whether it was one of agency or <em>depositum</em>.  The terms of the agreement, be it agency or <em>depositum,</em> remained unknown. It further submitted that the case for the respondent was muddled and that the judgment of the court <em>a quo</em> was equally confusing and confused.  Lastly, it submitted that whilst the facts show some relationship between the parties, the respondent had not proved the nature of the relationship that existed between them.</p> <p> </p> <p><em>RESPONDENT’S SUBMISSIONS BEFORE THIS COURT</em></p> <p>[19]      In its heads of argument, the respondent has submitted as follows. Its declaration in the court <em>a quo</em> made it clear that what it sought was the release of its goods arising from their unlawful detention.  Further, that even if there was no contract of agency between the parties, the respondent “was not without a remedy” and that there was a tacit contract of <em>depositum</em> between the parties. </p> <p> </p> <p>[20]      In paragraph 3 of its heads of argument, it has further stated:</p> <p>“The respondent had contended that the claim was of a vindicatory nature and that any contract between the parties was one of <em>depositum</em> …. As the appellant states, the court did not deal with these issues.  It is here noted that by the time the matter came before the court, the goods had been released and if the claim had originally been vindicatory in nature, it no longer was, which was probably the reason why the court <em>a quo</em> <em>allowed itself to be misled by the appellant to believe that the claim fell to be decided in contract.”</em> (my emphasis)</p> <p> </p> <p>[21]      At paragraph 10 of its heads of argument, the respondent has also stated:-</p> <p>“The absence of a contract, however, would not have left the respondent without a remedy because he would have a claim in delict for any loss incurred as a result of the unlawful possession of his property ….”</p> <p> </p> <p> </p> <p>[22]      Finally, at paragraphs 13 and 14 of its heads, the respondent has further argued:-</p> <p>“13.     Thus, as the respondent’s counsel contended at p 239, the issue whether there was a contract between the parties was really of no consequence and the appeal cannot succeed on the basis that no such contract was brought into being.</p> <p>14.       The court <em>a quo</em> found in effect that there was a tacit contract between the parties based on the fact that the appellant raised charges mentioned above against the respondent.”</p> <p> </p> <p> </p> <p><em>RESPONDENT’S SHIFTING CAUSE OF ACTION</em></p> <p>[23]      It is clear from the foregoing that the respondent, as plaintiff, changed its cause of action as the trial progressed.  In the declaration, the claim clearly arises from a contract of agency.  When the respondent realised that the evidence did not establish such agency, an aspect I deal with shortly, it then claimed, without amending its pleadings, relief on the basis of the <em>rei vindicatio </em>and a contract of <em>depositum</em>.  In its submissions before this Court, the respondent says, whatever the correct position might be on whether or not it had a contract with the appellant, it cannot be without a remedy.  The suggestion was made that it even had a claim arising out of delict.</p> <p> </p> <p>[24]      I am inclined to agree with learned counsel for the appellant that the cause of action <em>a quo</em> was most confusing.  The cause of action based on a contract of agency was abandoned in favour of the <em>rei vindicatio </em>and <em>depositum,</em> which had not been pleaded. No evidence was led on the terms of such contract. To add to the confusion, before this Court, the possibility of the claim arising out of delict has also been thrown in.  The manner in which the respondent handled its cause of action in the court <em>a quo</em> and before this Court is most unsatisfactory and not permissible.  Implicit in the submissions by the respondent in support of the judgment of the court <em>a quo</em> is that pleadings serve no purpose.</p> <p> </p> <p><em>THE IMPORTANT PURPOSE OF PLEADINGS</em></p> <p>[25]      The manner in which the respondent has handled its case both <em>a quo</em> and in this Court brings to the fore the question as to what the purpose of pleadings is.  In general the purpose of pleadings is to clarify the issues between the parties that require determination by a court of law.  Various decisions of the courts in this country and elsewhere have stressed this important principle.</p> <p>25.1     In <em>Durbach v Fairway Hotel, Ltd</em> 1949 (3) SA 1081 (SR) the court remarked:-</p> <p>“The whole purpose of pleadings is to bring clearly to the notice of the court and the parties to an action the issues upon which reliance is to be placed.”</p> <p> </p> <p>25.2     Harwood BA in his text <em>Odgers’ Principles of Pleading &amp; Practice in Civil Actions in the High Court of Justice</em> (16th edn, Stevens &amp; Sons Ltd, London, 1957) states at page 72:-</p> <p>            “The function of pleadings then is to ascertain with precision the matters on which the parties differ and the points on which they agree; and thus arrive at certain clear issues on which both parties desire a judicial decision.”</p> <p> </p> <p>25.3     In <em>Kali v Incorporated General Insurance Ltd</em> 1976 (2) SA 179 (D) at 182, the court remarked:</p> <p>            “The purpose of pleading is to clarify the issues between the parties and a pleader cannot be allowed to direct the attention of the other party to one issue and then, at the trial, attempt to canvass another.”</p> <p> </p> <p>25.4     In <em>Courtney–Clarke v Bassingthwaighte</em> 1991 (1) SA 684 (Nm), the court remarked at page 698:-</p> <p>            “In any case there is no precedent or principle allowing a court to give judgment in favour of a party on a cause of action never pleaded, alternatively there is no authority for ignoring the pleadings … and giving judgment in favour of a plaintiff on a cause of action never pleaded.  In such a case the least a party can do if he requires a substitution of or amendment of his cause of action, is to apply for an amendment.”</p> <p> </p> <p>25.5     In <em>Imprefed (Pty) Ltd v National Transport Commission</em> 1993 (3) SA 94(A), 108, the court cited with approval the case of <em>Robinson v Randfontein Estates GM Co. Ltd</em> 1925 AD 173 where at page 198 it was stated as follows:-</p> <p>            “The object of pleading is to define the issues; and parties will be kept strictly to their pleas where any departure would cause prejudice or would prevent full enquiry.  But within those limits the court has a wide discretion.  For pleadings are made for the court, not the court for pleadings.  And where a party has had every facility to place all the facts before the trial court and the investigation into all the circumstances has been as thorough and as patient as in this instance, there is no justification for interference by an appellate tribunal, merely because the pleading of the opponent has not been as explicit as it might have been.”</p> <p> </p> <p>25.6     In <em>Jowell v Bramwell-Jones</em> 1998 (1) SA 836 at 898 the court cited with approval the following remarks by the authors Jacob and Goldrein in their text <em>Pleadings: Principles and Practice </em>at p 8-9:</p> <p>            “As the parties are adversaries, it is left to each of them to formulate his case in his own way, subject to the basic rules of pleadings … For the sake of certainty and finality, each party is bound by his own pleading and cannot be allowed to raise a different or fresh case without due amendment properly made.  Each party thus knows the case he has to meet and cannot be taken by surprise at the trial.  The court itself is as much bound by the pleadings of the parties as they are themselves.  It is not part of the duty or function of the court to enter upon any enquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings.  Indeed, the court would be acting contrary to its own character and nature if it were to pronounce upon any claim or defence not made by the parties.  To do so would be to enter the realm of speculation.  … Moreover, in such event, the parties themselves, or at any rate one of them, might well feel aggrieved; for a decision given on a claim or defence not made, or raised by or against a party is equivalent to not hearing him at all and may thus be a denial of justice.  The court does not provide its own terms of reference or conduct its own inquiry into the merits of the case but accepts and acts upon the terms of reference which the parties have chosen and specified in their pleadings.  In the adversary system of litigation, therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither <em>party can complain if the agenda is strictly adhered to.</em>”  (my emphasis)</p> <p> </p> <p>25.7     The authors Cilliers AC, Loots C and Nel HC in their text <em>Herbstein and Van Winsen, The Civil Practice of the High Courts of South Africa</em> (5th edn, Juta and Co. Ltd, Cape Town 2009) quote the following passage from Halsbury’s <em>Laws of England, </em>4th edn (Reissue), Vol 36 para 1 in which the function of pleadings is said to be,</p> <p>            “… to give a fair notice of the case which has to be met and to define the issues on which the court will have to adjudicate in order to determine the matters in dispute between the parties.  It follows that the pleadings enable the parties to decide in advance of the trial what evidence will be needed.  From the pleadings the appropriate method of trial can be determined.  They also form a record which will be available if issues are sought to be litigated again.  The matters in issue are determined by the state of pleadings at the close if they are not subsequently amended.” (at page 558)</p> <p> </p> <p>25.8     In <em>Farrell v Secretary of State for Defence</em> (1980) 1 All ER 166 at page 173, Lord Edmund-Davies stated as follows,</p> <p>            “It has become fashionable these days to attach decreasing importance to pleadings, and it is beyond doubt that there have been times when an insistence on complete compliance with their technicalities put justice at risk, and indeed, may on occasion have led to its being defeated.  But pleadings continue to play an essential part in civil actions, and although there has been … a wide power to permit amendments, circumstances may arise when the grant of permission would work injustice or, at least, necessitate an adjournment which may prove particularly unfortunate in trial with a jury.  To shrug off criticism as ‘a mere pleading point’ is therefore bad law and bad practice.  For the primary purpose of pleadings remains, and it can still prove of vital importance.  That purpose is to define the issues and thereby to inform the parties in advance of the case they have to meet and so enable them to take steps to deal with it.”</p> <p> </p> <p>25.9     In a paper: <em>A Judge’s View Point</em>, the <em>Role of Pleadings</em> presented by Justices Rares of the Federal Court of Australia and Richard White of the Supreme Court of New South Wales at a judge’s symposium, the learned judges remarked:</p> <p>“Precise formulation of the applicant’s rights in the initiating document is of central importance.  This is because the pleading is the source from which many other consequences flow in the life of the litigation from filing at first instance through to final resolution in the High Court.  The pleading will be used as the reference point for the seeking of particulars, the administering of interrogatories (which is virtually extinct), the obtaining of an order for discovery if the court is satisfied this is required, the issue of subpoenas, the calling of evidence, the relevance and admissibility of evidence, the closing arguments, the reasons for judgments and the availability of arguments on appeal.  At all of these points, the following questions arise: “Was this issue pleaded?” and “How was this issue pleaded?”  The question is not the loose one whether the argument could possibly be raised on the evidence at the conclusion of a hearing but whether the issue has been pleaded …”</p> <p> </p> <p>[26]      I associate myself entirely with the above remarks made by eminent jurists both in this jurisdiction and internationally.  The position is therefore settled that pleadings serve the important purpose of clarifying or isolating the triable issues that separate the two litigants.  It is on those issues that a defendant prepares for trial and that a court is called upon to make a determination.  Therefore a party who pays little regard to its pleadings may well find itself in the difficult position of not being able to prove its stated cause of action against an opponent.</p> <p>  </p> <p><em>REQUISITES FOR PLEADING A CONTRACT</em></p> <p>[27]      In an action based on a contract, the material averments that must usually be made are the existence of the contract, the relevant terms of the contract and the applicability of those terms to the particular right forming the basis <em>ex contractu</em> of the claim – <em>Herbstein &amp; Van Winsen,</em> <em>The Civil Practice of the High Courts of South Africa</em>, op cit, p 569. </p> <p> </p> <p><em>WHETHER THE CONTRACT OF AGENCY WAS PROVED</em></p> <p>[28]      This was the basis of the respondent’s cause of action before the High Court.  The respondent’s managing director did not know the exact relationship between the appellant, Mediterranean Shipping and Richer International of Hong Kong.  From the evidence, it is clear that the appellant was not involved in the transactions that took place in China.  It does not conduct operations outside Zimbabwe. It only got involved, as agent of Mediterranean Shipping, in tracking the container once it landed in Beira and in having it transported to Mutare Dry Port.  It was also clear from the evidence that, as agent of Mediterranean Shipping, the appellant was supposed to receive payment from Mediterranean Shipping for its role in checking the Bill of Lading and ensuring that the cargo was delivered to Mutare Dry Port. The appellant’s managing director explained however that it is the practice in Zimbabwe for the recipient to be billed directly by the appellant.</p> <p> </p> <p>[29]      Clearly, no contract of agency was proved.  The fact that the appellant invoiced the respondent for handling fees does not, on its own, show the existence of a contract.  The exact relationship that existed between the two parties was not established.  In the circumstances, the court <em>a quo</em> should have granted the application for absolution from the instance which was made at the close of the case for the plaintiff.  The court <em>a quo </em>accepted that the respondent had not produced documents to show the existence of a contract.  The court further accepted that the respondent had entered into a shipping agreement with Mediterranean Shipping in Hong Kong and that the appellant was not involved.  The court also accepted that the appellant only got involved in supervising the movement of the container from Beira to Mutare at the behest of Mediterranean Shipping.  The court further found that although the parties had been involved in these transactions over the years, the respondent did not know that the appellant was merely an agent of Mediterranean Shipping.  Having made these findings,that really should have been the end of the matter.  The suggestion that, judging by the conduct of the parties, there must have been some other undefined contract between them, is not borne by the evidence.  In any event, the court did not state what type of contract this may have been and what its terms were.</p> <p> </p> <p>[30]      Of significance is the fact that the respondent itself accepted, in its closing submissions, that its claim was not based on agency but rather on <em>depositum.</em>  Having abandoned its claim based on a contract of agency, it was not for the court <em>a quo</em> to find, as it did, that there was some other undefined contract.  Once the respondent abandoned its pleadings, the court should have granted absolution from the instance.  The attempt by the respondent to rely on the <em>rei vindicatio </em>and <em>depositum</em>, as well as delict, clearly confirms that the respondent had not established any real cause of action against the appellant.</p> <p> </p> <p><em>DEPOSITUM NOT ESTABLISHED IN ANY EVENT</em></p> <p>[31]      Earlier in this judgment, I cited several decided cases in support of the proposition that pleadings serve the important purpose of identifying the issues that require determination by a court and also enabling a defendant to know the case he has to meet before the court.  To this principle however there is a qualification.  In a limited sense, a court can adjudicate on issues not raised on the pleadings even when no amendment has been applied for.</p> <p>31.1     In <em>Collen v Rietfontein Engineering Works </em>1948 (1) SA 413 (A), 433, CENTLIVRES JA, referring to an issue not raised on the pleadings but fully canvassed at the trial, said:</p> <p>”This court, therefore, has before it all the materials on which it is able to form an opinion, and this being the position it would be idle for it not to determine the real issue which emerged during the course of the trial.“</p> <p> </p> <p>31.2     Further in <em>Middleton v Carr</em> 1949 (2) SA 374 (A) at 385, SCHREINER JA, in</p> <p>similar vein, stated:</p> <p>“Where there has been full investigations of a matter, that is, where there is no reasonable ground for thinking that further examination of the facts might lead to a different conclusion, the court is entitled to, and generally should, treat the issue as if it had been expressly and timeously raised.”          </p> <p>31.3     In <em>Sager’s Motors (Pvt) Ltd v Patel</em> 1968 (2) RLR 267 (A), Lewis AJA accepted that the above remarks correctly reflected the position in this country.   At page 274 A – B he stated:</p> <p>”The <em>ratio decidendi </em>of the cases … referred to above is that where there has been a full and thorough investigation into all the circumstances of the case and a party has had every facility to place all the facts before the trial court, the court will not decline to adjudicate on an issue thus fully canvassed simply because the pleadings have not explicitly covered it.“</p> <p>31.4     The above remarks were cited with approval by this Court in <em>Guardian Security Services (Pvt) Ltd v ZBC</em> 2002 (1) ZLR  (S), 5 D – H, 6 A-B.  That a court can determine an issue that is fully canvassed but not pleaded is therefore now settled in this jurisdiction.</p> <p>[32]      Implicit in the submissions by the respondent, both <em>a quo </em>and in this court, is the suggestion that, although not pleaded, the existence of a contract of <em>depositum </em>was established on the evidence adduced before the court <em>a quo</em>.</p> <p>[33]      <em>Depositum,</em> as a concept, was, as would be expected, developed by the Romans.  A contract of <em>depositum</em>, or deposit, as we now call it, is “… a contract in which one person (<em>depositor</em>) gives another (<em>depositarius) </em>a thing to keep for him <em>gratis</em>, and to return it on demand … the ownership of the thing is not transferred, but ownership and possession remain with the depositor …. The receiver is not allowed to use it” – Hunter W.A., <em>A Systemic and Historical Exposition of Roman Law in the Order of a Code</em> (2nd Ed) William Maxwell and Son, London 1885.</p> <p>[34]      In <em>B.C. Plant Hire cc t/a BC Carriers v Grenco</em> (SA) (Pty) Ltd (2004) 1 All SA 612 (C), the court held that a contract of <em>depositum</em> comes into existence when one person (the depositor) entrusts a moveable thing to another person (depositary) who undertakes to care for it gratuitously and to return it at the request of the depositor.  The depositary does not benefit from the deposit in any way.  If the depositary uses the thing, then this is considered a <em>furtum usus</em>.  The depository can only be found liable where gross negligence (<em>culpa lata</em>) is established. See also <em>Ncube v Hamadziripi</em> 1996 (2) ZLR 403 (HC); <em>Munhuwa v Mhukahuru Bus Services</em> <em>(Pvt) Ltd</em> 1994 (2) ZLR 382 H; <em>Smith v Minister of Lands and Natural Resources</em> 1979 RLR 421(G); 1980(1) S.A 565 (ZH).</p> <p> </p> <p>[35]      In this case it was never the respondent’s case at any stage that it had given the container to the appellant for safe keeping or that the appellant had agreed to keep the container <em>gratis </em>and to return it on demand.   The appellant does not handle containers <em>ex gratia.  </em>To the contrary, the appellant was demanding payment of the handling fee of $80.50 before the container could be released to the respondent.  In short, the evidence did not establish the existence of a contract of <em>depositum</em>.</p> <p><em>DISPOSITION</em></p> <p>[36]      It is clear, from all the circumstances of this case, that the respondent did not establish any cause of action cognizable at law against the appellant.  It may, but I make no firm finding in this respect, have had a cause of action arising out of delict as suggested by its counsel before this Court.  However this was not the cause of action pleaded before the court <em>a quo </em>or established during the oral hearing.  The possibility of a cause of action arising from delict was, as already noted, raised for the first time in heads of argument filed before this Court.  The fact that the respondent abandoned its claim based on agency and then sought to rely on the <em>rei vindicatio</em> and <em>depositum</em> (without amending its pleadings) and also delict, leaves one in no doubt that the respondent was on a fishing expedition and was not clear, even in its own mind, what its cause of action against the appellant was.  In changing its cause of action at whim, as it did, the respondent breached the whole essence and purpose of pleadings.  It cannot in these circumstances be said to have proved its claim for contractual damages against the appellant.</p> <p> </p> <p>[37]      The appeal must therefore succeed.  Costs are to follow the event.</p> <p> </p> <p>[38]      It is accordingly ordered as follows:-</p> <p>            1.         The appeal succeeds with costs.</p> <p>            2.         The judgment of the court <em>a quo</em> is set aside and in</p> <p>                        its place the following is substituted:</p> <p>            “The plaintiff’s claim be and is hereby dismissed with costs.”</p> <p>                                    <strong>GOWORA JA</strong>                                   I agree</p> <p>                                    <strong>GUVAVA JA</strong>                                    I agree</p> <p><em>Honey &amp; Blackenberg,</em> appellant’s legal practitioners</p> <p><em>Venturas &amp; Samkange,</em> respondent’s legal practitioners</p></span></div></div> </div> </div> Mon, 06 Sep 2021 13:39:05 +0000 Anonymous 10077 at http://www.zimlii.org Smit Investment Holdings SA (Proprietary) Limited & Another v The Sheriff of Zimbabwe & Another (SC 33 of 2018, Civil Appeal SC 780 of 2017) [2018] ZWSC 33 (19 June 2018); http://www.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/33 <span class="field field--name-title field--type-string field--label-hidden">Smit Investment Holdings SA (Proprietary) Limited &amp; Another v The Sheriff of Zimbabwe &amp; Another (SC 33 of 2018, Civil Appeal SC 780 of 2017) [2018] ZWSC 33 (19 June 2018);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2141" hreflang="x-default">PRACTICE AND PROCEDURE</a></div> <div class="field__item"><a href="/taxonomy/term/2240" hreflang="x-default">Execution (PRACTICE AND PROCEDURE)</a></div> <div class="field__item"><a href="/taxonomy/term/2241" hreflang="x-default">sale (Execution)</a></div> <div class="field__item"><a href="/taxonomy/term/2156" hreflang="x-default">Interpleader proceedings</a></div> <div class="field__item"><a href="/taxonomy/term/2157" hreflang="x-default">property attached in execution</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:38</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/33/2018-zwsc-33.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=37338">2018-zwsc-33.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/33/2018-zwsc-33.pdf" type="application/pdf; length=122234">2018-zwsc-33.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p><strong>DISTRIBUTABLE   (24)</strong></p> <p> </p> <p> </p> <p><strong>(1)     SMIT     INVESTMENT     HOLDINGS     SA     (PROPRIETARY)     LIMITED     (2)     GENET     MINING     (PROPRIETARY)     LIMITED</strong></p> <p><strong>v</strong></p> <ol><li><strong>THE SHERIFFOF ZIMBABWE(2)PUNGWEMINING(PRIVATE) LIMITED</strong></li> </ol><p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>MALABA CJ, HLATSHWAYO JA &amp; PATEL JA</strong></p> <p><strong>HARARE, 26 JANUARY &amp; 19 JUNE, 2018</strong></p> <p> </p> <p> </p> <p> </p> <p><em>D. Tivadar</em>, for the appellants</p> <p><em>A. Moyo</em>, for the 1st respondent</p> <p><em>T. Mpofu, </em>for the 2nd respondent</p> <p> </p> <p> </p> <p> </p> <p>                        <strong>PATEL JA:</strong>               This is an appeal against the Judgement of the High Court in interpleader proceedings arising from the attachment of mining equipment carried out by the first respondent (the Sheriff) at Mbada Mine. The second respondent (the judgement creditor) had obtained judgement against Mbada Mine and the Sheriff, having attached certain movables at Mbada Mine, had advertised them for sale. The property attached comprises mining equipment, vehicles and office furniture. The claimants in the court <em>a quo</em> had filed separate interpleader applications which were consolidated and heard together, as the facts, the legal issues and the judgement creditor were the same.</p> <p>                        Both claimants averred that the items attached had been imported by Mbada Mine but actually belonged to them. Ownership in this equipment was reserved in their favour until it was fully paid for. According to the claimants, Mbada Mine still owes ZAR 42 million and ZAR 48 million to the claimants respectively. Therefore, the equipment was not executable as per the agreements between the claimants and Mbada Mine until the purchase prices had been fully paid.</p> <p> </p> <p>                        The judgement creditor averred that Mbada Mine had imported and was the owner of the equipment in question. The agreements relied upon by the claimants were a façade since the claimants had neither imported the equipment nor did it belong to them.</p> <p> </p> <p>Decision of the High Court and Grounds of Appeal</p> <p>                        The High Court considered the relevant legislation and accepted that goods may be imported by persons other than their owner. Also relevant was the definition of the word “holder” in the Mines and Minerals Act, in terms of which a holder of a registered mining location can import goods belonging to another and can benefit from the suspension of duty on goods imported for his mining operations. Any person who is not a holder as defined or imports goods for resale is not entitled to suspension of duty under the governing Customs Regulations.</p> <p> </p> <p>                        The court <em>a quo</em> found that the documents available showed that Mbada Mine, being a holder, had imported the disputed equipment into the country.  The claimants had not shown that they were the owners of that equipment. They had not produced the relevant importation documents issued by the customs authorities. They had only produced transportation documents and invoices which did not assist their claims. The documents relating to suspension of duty showed the claimants as suppliers rather than owners of the equipment in question. Moreover, there was nothing to show that the claimants had imported the equipment temporarily in the absence of temporary import permits or proof of duty paid on the equipment. Additionally, one document issued by the customs authorities showed that some of the goods had been imported permanently by Mbada Mine.  The equipment could only have been so imported if Mbada Mine had assumed permanent ownership. The claimants could not be owners of goods imported permanently by Mbada Mine.</p> <p> </p> <p>                        On the basis of these findings, the court <em>a quo</em> held that the probabilities favoured the judgment creditor’s assertion that the equipment belonged to Mbada Mine and that the agreements of sale relied upon were mere shams. The evidence suggested that there was collusion between Mbada Mine and the claimants in order to frustrate the execution process. The claimants had failed to persuade the court that they were the owners of the equipment in dispute. In the event, the court dismissed the claimants’ claims with costs and declared the claimed property specially executable.</p> <p> </p> <p>                        The grounds of appeal herein relate in essence to the ownership of the assets in question. The appellants assert that the question of ownership is governed by the agreements of sale and that ownership in the assets has not transferred from the appellants to Mbada Mine but remains vested in them pending full payment of the relevant purchase prices. They also assert that the importation process could not impact on the question of ownership or proprietary rights in the assets. The appellants could be the beneficial owners of equipment imported permanently by Mbada Mine. Lastly, they assert that the finding of collusion by the court <em>a quo</em> was not supported by the evidence before the court.</p> <p> </p> <p>It is not in dispute that Mbada Mine had imported the assets that were attached by the Sheriff. The point of contention is whether in so importing Mbada Mine had assumed the right of ownership in the assets. It is also not in dispute that initially, at some point, the appellants owned the assets in question.</p> <p> </p> <p>Arguments on Appeal</p> <p>The appellants argue that the fact that Mbada Mine was the one which imported the assets into the country did not mean that Mbada Mine was the owner of the assets.  They argue further that the court <em>a quo</em>’s reliance on importation documents was a misdirection since importation does not prove ownership. To buttress this submission, the appellants rely upon the definition of “importer” in the Customs and Excise Act. Having regard to this definition, the appellants argue that the mere fact that Mbada Mine had imported the assets did not prove that ownership vested in it. This is so because the definition of importer includes an owner or other person.</p> <p> </p> <p>It is further submitted for the appellants that the agreements entered into between Mbada Mine and themselves should have been taken into cognisance by the court <em>a quo</em> because this was the evidence that proved the fact that ownership of the assets remained with the appellants. They rely on the reservation clauses in the agreements which stipulate that the right of ownership in the assets would remain reserved with the appellants until the purchase price was paid in full.</p> <p> </p> <p>The appellants further argue that it was a misdirection on the court <em>a quo</em>’s part to simply dismiss evidence from the agreements on the ground that they were fraudulent and executed <em>ex post facto</em>. The appellants also rely on a letter addressed by Mbada Mine to the Sheriff which indicates that the assets that had been attached belonged to the appellants as Mbada Mine was still substantially indebted to them. They maintain that Mbada Mine was involved in the importation of the equipment only as the holder of a registered mining location. Essentially, the crux of the appellants’ argument is that one can be a holder and an importer but not necessarily the owner of the assets imported.</p> <p> </p> <p>The second respondent argues that the findings of the court <em>a quo</em> were on issues of fact and that the appellants have not challenged those findings as being grossly unreasonable. It further argues that the letter from Mbada Mine to the Sheriff relied upon by the appellants was unsigned and was therefore not authentic. It is also the second respondent’s submission that the letter from the Zimbabwe Revenue Authority (ZIMRA) to Mbada Mine, concerning the suspension of duty on the importation of the assets, implied that it was Mbada Mine that was the owner of the assets. This was because there was a clause in the letter stipulating that the assets were not to be sold.</p> <p> </p> <p>The question that this Court has to decide is whether the appellants have successfully discharged the onus of proving that they are the owners of the assets concerned. To answer this question, it is necessary to determine whether the reliance by the court below on importation documents to prove ownership was competent and whether the agreements showing the appellants’ ownership of the assets were genuine.</p> <p> </p> <p>Whether Importer must be the Owner </p> <p>I take the view that the court <em>a quo</em>’s reliance on importation documents to determine the issue of ownership was flawed and incorrect. This is so because the Customs and Excise Act [<em>Chapter 23:02</em>] makes it clear that a person who is not the owner can be an importer of goods. Section 2 of that Act states that an importer:</p> <p>“includes any owner of or other person possessed of or beneficially interested in any goods at any time before entry of the same has been made and the requirements of this Act fulfilled.” (my emphasis)</p> <p> </p> <p> </p> <p>The above provision is clear and unambiguous. An importer can either be the owner or anyone else who is possessed of or beneficially interested in the goods to be imported. It does not limit the definition of an importer to the owner alone. Mbada Mine possessed an interest in the assets as they were to be used at its mine. It was not disputed that it was Mbada Mine that had imported the assets. However, by holding that Mbada Mine was also their owner, simply by virtue of having imported the assets, the court <em>a quo </em>undoubtedly misdirected itself. It is abundantly clear under the Customs and Excise Act that even a non- owner may import goods.</p> <p> </p> <p>In relation to suspension of duty on the importation of mining equipment, the Customs and Excise (Suspension) Regulations 2003 (S.I. 257 of 2003) as amended, provide in s 9K(2) that:</p> <p>“suspension of duty shall be granted to a holder in respect of specified goods which, during the specified period, are imported by that holder for use solely and exclusively for mining development operations.”</p> <p> </p> <p> </p> <p>A “holder” of a mining location, in the context of the above Regulations, is defined in s 5 (1) of the Mines and Minerals Act [<em>Chapter 21:05</em>] as:</p> <p>“the person in whose name such location is registered with the mining commissioner or with the Board or with the Secretary …….. .”</p> <p> </p> <p> </p> <p>The above provisions make it clear that suspension of duty on imported mining equipment is provided for persons who are holders of registered mining locations in terms of the Mines and Minerals Act. There is nothing in the definition of an “importer” or “holder”, or in the provision which allows for suspension of duty, to indicate that the person importing the equipment has to be the owner of that equipment. For an importer to be entitled to suspension of duty, he has to be a holder of a registered mining location, and must show that the equipment will be used solely and exclusively for mining development operations.</p> <p> </p> <p>Having regard to the foregoing, I take the view that the court <em>a quo</em>’s reliance on importation documents to prove ownership of the assets in question was misguided and incorrect. The relevant statutory provisions are clear in that they do not speak of an owner of goods but rather of an importer and a holder, neither of which necessarily has to be the owner. To this end, the question of who imported the assets becomes of no consequence to the determination of ownership. The evidence of the former employee of Mbaba Mine is only helpful to the extent that it proves what is already common cause, to wit, that Mbada Mine was the importer of the equipment. He could not positively state whether Mbada Mine had purchased the equipment before it was imported or paid for it at any time thereafter.</p> <p> </p> <p>It was the second respondent’s argument that Mbada Mines had made itself out to be the owner by importing the assets on a permanent basis and that the letter from ZIMRA directing that the assets were not to be sold implied that ZIMRA was under the impression that the assets belonged to Mbada Mine. The second respondent contends that this impression could only be drawn from a representation by Mbada Mine that the assets belonged to it and no one else. While it may be a fact that Mbada Mine imported the assets on a permanent basis, that fact does not automatically mean that it did so on the premise that it was the owner of those assets. Nothing was advanced to substantiate the argument that permanent importation is only available to the owner and not an importer who does not own the assets. Indeed, nothing to buttress such argument was placed either before the court <em>a quo</em> or before this Court. In the event, the argument cannot succeed.</p> <p> </p> <p>Authenticity of Agreements and Proof of Ownership</p> <p>I now deal with the findings of the court <em>a quo</em> that there was collusion between Mbada and the appellants and that the contracts between Mbada and the appellants were mere shams. This will determine the critical issue as to whether or not the appellants were able to prove that they were the owners of the assets in question.</p> <p> </p> <p>It is trite law that in interpleader proceedings the claimant has to set out facts and evidence which constitute proof of ownership of the assets which are the subject of contention. This point was underscored in the case of <em>Muzanenhamo</em> v <em>Fishtown Investments (Pvt) Ltd &amp; Ors </em>SC 8/17, where it was held that the claimant must prove on a balance of probabilities that he owns the property. The question to be answered <em>in casu </em>is whether, on a preponderance of probabilities, the appellants proved that they were the owners of the assets that they claimed.</p> <p> </p> <p>In a bid to prove its ownership of the assets, the first appellant produced statements of account for Mbada Mine which showed that some payments but not all had been made by Mbada Mine. In addition, both appellants produced detailed agreements concluded with Mbada Mine (on 15 November 2012 and 22 July 2015 respectively) which stipulated that ownership of the assets would remain with the appellants until the full purchase price was paid. It was the court <em>a quo</em>’s finding that the agreements were not authentic and that there was collusion between the appellants and Mbada Mine. It was alleged by the second respondent that the agreements were doctored by Mbada Mine and the appellants <em>ex post facto</em> and that there was no paper trail to show that the assets belonged to the appellants. However, no evidence was led to substantiate the second respondent’s allegations of collusion. The court relied on the bald averment by the second respondent that the documents were not authentic and simply took that to be correct. It is the second respondent that levelled allegations of inauthenticity and collusion. Consequently, it is the second respondent that should have proven the same. This position was succinctly captured in the case of <em>Circle Tracking </em>v <em>Mahachi</em> SC 4/07, where the Court held that the principle that he who alleges must prove is a basic concept of our law. No evidence was adduced by the second respondent to substantiate the alleged inauthenticity of the agreements.</p> <p> </p> <p>The appellants produced documents which show that the assets had been purchased by them and initially belonged to them. They also produced the agreements concluded with Mbada Mine in 2012 and 2015 which show that ownership was reserved in favour of the appellants until the full purchase price was paid. The relevant provisions are contained in clauses 4.3 and 11.6 of the first appellant’s agreement and clause 7.7 of the second appellant’s agreement.</p> <p> </p> <p>The second respondent alleged that the documents supporting the appellants’ claims were a recent fabrication meant to frustrate the execution of the assets, but the dates when the agreements were concluded reveal that they were executed well before the second respondent instituted any legal proceedings in this matter. There is also nothing in the record to give credence to the allegations that the documents were fabricated by the appellants in collusion with Mbada Mine. It is my view, therefore, in the absence of any evidence to the contrary, that the agreements are genuine and that their provisions and the agreed compacts contained therein must be accepted as being authentic, as well as commercially and legally cognisable.</p> <p> </p> <p>Disposition</p> <p>In the result, I am amply satisfied that the appellants have proved on a preponderance of probabilities that they are the owners of the assets in question. It was incorrect and a misdirection for the court <em>a quo</em> to have relied so heavily on the aspect of importation as that aspect does not assist in the determination of ownership in the assets in question. The agreements produced by the appellants show that ownership in the assets would remain with them until the relevant purchase prices were paid in full, and such payments clearly did not take place. As for costs, they must ordinarily follow the outcome.</p> <p>     </p> <p>In the result, the appeal succeeds with costs. The judgment of the court<em> a quo</em> is set aside in its entirety and substituted with the following:</p> <p>     “1. The claimants’ claims are upheld.</p> <p>       2. The assets listed under schedules A and B are declared non-executable.</p> <p>       3. The judgment creditor shall pay the claimants’ and the applicant’s costs.”</p> <p> </p> <p> </p> <p>           <strong>MALABA CJ:           </strong>            I agree.</p> <p>            <strong>HLATSHWAYO JA:</strong>           I agree.</p> <p><em>Kantor &amp; Immerman</em>, appellants’ legal practitioners</p> <p><em>Dube, Banda, Nzarayapenga &amp; Partners</em>, 1st respondent’s legal practitioners</p> <p><em>Mhishi Nkomo Legal Practice, </em>2nd respondent’s legal practitioners</p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-1c69ce673c41a6b8bdd08e566f7f4ffc8f505fe4c0eb97b1693d1454238c4da9"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p><strong>DISTRIBUTABLE   (24)</strong></p> <p> </p> <p> </p> <p><strong>(1)     SMIT     INVESTMENT     HOLDINGS     SA     (PROPRIETARY)     LIMITED     (2)     GENET     MINING     (PROPRIETARY)     LIMITED</strong></p> <p><strong>v</strong></p> <ol><li><strong>THE SHERIFFOF ZIMBABWE(2)PUNGWEMINING(PRIVATE) LIMITED</strong></li> </ol><p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>MALABA CJ, HLATSHWAYO JA &amp; PATEL JA</strong></p> <p><strong>HARARE, 26 JANUARY &amp; 19 JUNE, 2018</strong></p> <p> </p> <p> </p> <p> </p> <p><em>D. Tivadar</em>, for the appellants</p> <p><em>A. Moyo</em>, for the 1st respondent</p> <p><em>T. Mpofu, </em>for the 2nd respondent</p> <p> </p> <p> </p> <p> </p> <p>                        <strong>PATEL JA:</strong>               This is an appeal against the Judgement of the High Court in interpleader proceedings arising from the attachment of mining equipment carried out by the first respondent (the Sheriff) at Mbada Mine. The second respondent (the judgement creditor) had obtained judgement against Mbada Mine and the Sheriff, having attached certain movables at Mbada Mine, had advertised them for sale. The property attached comprises mining equipment, vehicles and office furniture. The claimants in the court <em>a quo</em> had filed separate interpleader applications which were consolidated and heard together, as the facts, the legal issues and the judgement creditor were the same.</p> <p>                        Both claimants averred that the items attached had been imported by Mbada Mine but actually belonged to them. Ownership in this equipment was reserved in their favour until it was fully paid for. According to the claimants, Mbada Mine still owes ZAR 42 million and ZAR 48 million to the claimants respectively. Therefore, the equipment was not executable as per the agreements between the claimants and Mbada Mine until the purchase prices had been fully paid.</p> <p> </p> <p>                        The judgement creditor averred that Mbada Mine had imported and was the owner of the equipment in question. The agreements relied upon by the claimants were a façade since the claimants had neither imported the equipment nor did it belong to them.</p> <p> </p> <p>Decision of the High Court and Grounds of Appeal</p> <p>                        The High Court considered the relevant legislation and accepted that goods may be imported by persons other than their owner. Also relevant was the definition of the word “holder” in the Mines and Minerals Act, in terms of which a holder of a registered mining location can import goods belonging to another and can benefit from the suspension of duty on goods imported for his mining operations. Any person who is not a holder as defined or imports goods for resale is not entitled to suspension of duty under the governing Customs Regulations.</p> <p> </p> <p>                        The court <em>a quo</em> found that the documents available showed that Mbada Mine, being a holder, had imported the disputed equipment into the country.  The claimants had not shown that they were the owners of that equipment. They had not produced the relevant importation documents issued by the customs authorities. They had only produced transportation documents and invoices which did not assist their claims. The documents relating to suspension of duty showed the claimants as suppliers rather than owners of the equipment in question. Moreover, there was nothing to show that the claimants had imported the equipment temporarily in the absence of temporary import permits or proof of duty paid on the equipment. Additionally, one document issued by the customs authorities showed that some of the goods had been imported permanently by Mbada Mine.  The equipment could only have been so imported if Mbada Mine had assumed permanent ownership. The claimants could not be owners of goods imported permanently by Mbada Mine.</p> <p> </p> <p>                        On the basis of these findings, the court <em>a quo</em> held that the probabilities favoured the judgment creditor’s assertion that the equipment belonged to Mbada Mine and that the agreements of sale relied upon were mere shams. The evidence suggested that there was collusion between Mbada Mine and the claimants in order to frustrate the execution process. The claimants had failed to persuade the court that they were the owners of the equipment in dispute. In the event, the court dismissed the claimants’ claims with costs and declared the claimed property specially executable.</p> <p> </p> <p>                        The grounds of appeal herein relate in essence to the ownership of the assets in question. The appellants assert that the question of ownership is governed by the agreements of sale and that ownership in the assets has not transferred from the appellants to Mbada Mine but remains vested in them pending full payment of the relevant purchase prices. They also assert that the importation process could not impact on the question of ownership or proprietary rights in the assets. The appellants could be the beneficial owners of equipment imported permanently by Mbada Mine. Lastly, they assert that the finding of collusion by the court <em>a quo</em> was not supported by the evidence before the court.</p> <p> </p> <p>It is not in dispute that Mbada Mine had imported the assets that were attached by the Sheriff. The point of contention is whether in so importing Mbada Mine had assumed the right of ownership in the assets. It is also not in dispute that initially, at some point, the appellants owned the assets in question.</p> <p> </p> <p>Arguments on Appeal</p> <p>The appellants argue that the fact that Mbada Mine was the one which imported the assets into the country did not mean that Mbada Mine was the owner of the assets.  They argue further that the court <em>a quo</em>’s reliance on importation documents was a misdirection since importation does not prove ownership. To buttress this submission, the appellants rely upon the definition of “importer” in the Customs and Excise Act. Having regard to this definition, the appellants argue that the mere fact that Mbada Mine had imported the assets did not prove that ownership vested in it. This is so because the definition of importer includes an owner or other person.</p> <p> </p> <p>It is further submitted for the appellants that the agreements entered into between Mbada Mine and themselves should have been taken into cognisance by the court <em>a quo</em> because this was the evidence that proved the fact that ownership of the assets remained with the appellants. They rely on the reservation clauses in the agreements which stipulate that the right of ownership in the assets would remain reserved with the appellants until the purchase price was paid in full.</p> <p> </p> <p>The appellants further argue that it was a misdirection on the court <em>a quo</em>’s part to simply dismiss evidence from the agreements on the ground that they were fraudulent and executed <em>ex post facto</em>. The appellants also rely on a letter addressed by Mbada Mine to the Sheriff which indicates that the assets that had been attached belonged to the appellants as Mbada Mine was still substantially indebted to them. They maintain that Mbada Mine was involved in the importation of the equipment only as the holder of a registered mining location. Essentially, the crux of the appellants’ argument is that one can be a holder and an importer but not necessarily the owner of the assets imported.</p> <p> </p> <p>The second respondent argues that the findings of the court <em>a quo</em> were on issues of fact and that the appellants have not challenged those findings as being grossly unreasonable. It further argues that the letter from Mbada Mine to the Sheriff relied upon by the appellants was unsigned and was therefore not authentic. It is also the second respondent’s submission that the letter from the Zimbabwe Revenue Authority (ZIMRA) to Mbada Mine, concerning the suspension of duty on the importation of the assets, implied that it was Mbada Mine that was the owner of the assets. This was because there was a clause in the letter stipulating that the assets were not to be sold.</p> <p> </p> <p>The question that this Court has to decide is whether the appellants have successfully discharged the onus of proving that they are the owners of the assets concerned. To answer this question, it is necessary to determine whether the reliance by the court below on importation documents to prove ownership was competent and whether the agreements showing the appellants’ ownership of the assets were genuine.</p> <p> </p> <p>Whether Importer must be the Owner </p> <p>I take the view that the court <em>a quo</em>’s reliance on importation documents to determine the issue of ownership was flawed and incorrect. This is so because the Customs and Excise Act [<em>Chapter 23:02</em>] makes it clear that a person who is not the owner can be an importer of goods. Section 2 of that Act states that an importer:</p> <p>“includes any owner of or other person possessed of or beneficially interested in any goods at any time before entry of the same has been made and the requirements of this Act fulfilled.” (my emphasis)</p> <p> </p> <p> </p> <p>The above provision is clear and unambiguous. An importer can either be the owner or anyone else who is possessed of or beneficially interested in the goods to be imported. It does not limit the definition of an importer to the owner alone. Mbada Mine possessed an interest in the assets as they were to be used at its mine. It was not disputed that it was Mbada Mine that had imported the assets. However, by holding that Mbada Mine was also their owner, simply by virtue of having imported the assets, the court <em>a quo </em>undoubtedly misdirected itself. It is abundantly clear under the Customs and Excise Act that even a non- owner may import goods.</p> <p> </p> <p>In relation to suspension of duty on the importation of mining equipment, the Customs and Excise (Suspension) Regulations 2003 (S.I. 257 of 2003) as amended, provide in s 9K(2) that:</p> <p>“suspension of duty shall be granted to a holder in respect of specified goods which, during the specified period, are imported by that holder for use solely and exclusively for mining development operations.”</p> <p> </p> <p> </p> <p>A “holder” of a mining location, in the context of the above Regulations, is defined in s 5 (1) of the Mines and Minerals Act [<em>Chapter 21:05</em>] as:</p> <p>“the person in whose name such location is registered with the mining commissioner or with the Board or with the Secretary …….. .”</p> <p> </p> <p> </p> <p>The above provisions make it clear that suspension of duty on imported mining equipment is provided for persons who are holders of registered mining locations in terms of the Mines and Minerals Act. There is nothing in the definition of an “importer” or “holder”, or in the provision which allows for suspension of duty, to indicate that the person importing the equipment has to be the owner of that equipment. For an importer to be entitled to suspension of duty, he has to be a holder of a registered mining location, and must show that the equipment will be used solely and exclusively for mining development operations.</p> <p> </p> <p>Having regard to the foregoing, I take the view that the court <em>a quo</em>’s reliance on importation documents to prove ownership of the assets in question was misguided and incorrect. The relevant statutory provisions are clear in that they do not speak of an owner of goods but rather of an importer and a holder, neither of which necessarily has to be the owner. To this end, the question of who imported the assets becomes of no consequence to the determination of ownership. The evidence of the former employee of Mbaba Mine is only helpful to the extent that it proves what is already common cause, to wit, that Mbada Mine was the importer of the equipment. He could not positively state whether Mbada Mine had purchased the equipment before it was imported or paid for it at any time thereafter.</p> <p> </p> <p>It was the second respondent’s argument that Mbada Mines had made itself out to be the owner by importing the assets on a permanent basis and that the letter from ZIMRA directing that the assets were not to be sold implied that ZIMRA was under the impression that the assets belonged to Mbada Mine. The second respondent contends that this impression could only be drawn from a representation by Mbada Mine that the assets belonged to it and no one else. While it may be a fact that Mbada Mine imported the assets on a permanent basis, that fact does not automatically mean that it did so on the premise that it was the owner of those assets. Nothing was advanced to substantiate the argument that permanent importation is only available to the owner and not an importer who does not own the assets. Indeed, nothing to buttress such argument was placed either before the court <em>a quo</em> or before this Court. In the event, the argument cannot succeed.</p> <p> </p> <p>Authenticity of Agreements and Proof of Ownership</p> <p>I now deal with the findings of the court <em>a quo</em> that there was collusion between Mbada and the appellants and that the contracts between Mbada and the appellants were mere shams. This will determine the critical issue as to whether or not the appellants were able to prove that they were the owners of the assets in question.</p> <p> </p> <p>It is trite law that in interpleader proceedings the claimant has to set out facts and evidence which constitute proof of ownership of the assets which are the subject of contention. This point was underscored in the case of <em>Muzanenhamo</em> v <em>Fishtown Investments (Pvt) Ltd &amp; Ors </em>SC 8/17, where it was held that the claimant must prove on a balance of probabilities that he owns the property. The question to be answered <em>in casu </em>is whether, on a preponderance of probabilities, the appellants proved that they were the owners of the assets that they claimed.</p> <p> </p> <p>In a bid to prove its ownership of the assets, the first appellant produced statements of account for Mbada Mine which showed that some payments but not all had been made by Mbada Mine. In addition, both appellants produced detailed agreements concluded with Mbada Mine (on 15 November 2012 and 22 July 2015 respectively) which stipulated that ownership of the assets would remain with the appellants until the full purchase price was paid. It was the court <em>a quo</em>’s finding that the agreements were not authentic and that there was collusion between the appellants and Mbada Mine. It was alleged by the second respondent that the agreements were doctored by Mbada Mine and the appellants <em>ex post facto</em> and that there was no paper trail to show that the assets belonged to the appellants. However, no evidence was led to substantiate the second respondent’s allegations of collusion. The court relied on the bald averment by the second respondent that the documents were not authentic and simply took that to be correct. It is the second respondent that levelled allegations of inauthenticity and collusion. Consequently, it is the second respondent that should have proven the same. This position was succinctly captured in the case of <em>Circle Tracking </em>v <em>Mahachi</em> SC 4/07, where the Court held that the principle that he who alleges must prove is a basic concept of our law. No evidence was adduced by the second respondent to substantiate the alleged inauthenticity of the agreements.</p> <p> </p> <p>The appellants produced documents which show that the assets had been purchased by them and initially belonged to them. They also produced the agreements concluded with Mbada Mine in 2012 and 2015 which show that ownership was reserved in favour of the appellants until the full purchase price was paid. The relevant provisions are contained in clauses 4.3 and 11.6 of the first appellant’s agreement and clause 7.7 of the second appellant’s agreement.</p> <p> </p> <p>The second respondent alleged that the documents supporting the appellants’ claims were a recent fabrication meant to frustrate the execution of the assets, but the dates when the agreements were concluded reveal that they were executed well before the second respondent instituted any legal proceedings in this matter. There is also nothing in the record to give credence to the allegations that the documents were fabricated by the appellants in collusion with Mbada Mine. It is my view, therefore, in the absence of any evidence to the contrary, that the agreements are genuine and that their provisions and the agreed compacts contained therein must be accepted as being authentic, as well as commercially and legally cognisable.</p> <p> </p> <p>Disposition</p> <p>In the result, I am amply satisfied that the appellants have proved on a preponderance of probabilities that they are the owners of the assets in question. It was incorrect and a misdirection for the court <em>a quo</em> to have relied so heavily on the aspect of importation as that aspect does not assist in the determination of ownership in the assets in question. The agreements produced by the appellants show that ownership in the assets would remain with them until the relevant purchase prices were paid in full, and such payments clearly did not take place. As for costs, they must ordinarily follow the outcome.</p> <p>     </p> <p>In the result, the appeal succeeds with costs. The judgment of the court<em> a quo</em> is set aside in its entirety and substituted with the following:</p> <p>     “1. The claimants’ claims are upheld.</p> <p>       2. The assets listed under schedules A and B are declared non-executable.</p> <p>       3. The judgment creditor shall pay the claimants’ and the applicant’s costs.”</p> <p> </p> <p> </p> <p>           <strong>MALABA CJ:           </strong>            I agree.</p> <p>            <strong>HLATSHWAYO JA:</strong>           I agree.</p> <p><em>Kantor &amp; Immerman</em>, appellants’ legal practitioners</p> <p><em>Dube, Banda, Nzarayapenga &amp; Partners</em>, 1st respondent’s legal practitioners</p> <p><em>Mhishi Nkomo Legal Practice, </em>2nd respondent’s legal practitioners</p></span></div></div> </div> </div> Mon, 06 Sep 2021 13:38:55 +0000 Anonymous 10072 at http://www.zimlii.org Minister of Mines and Mining Development & 3 Others v Grandwell Holdings (Private) Limited & 2 Others (SC 34 of 2018, Civil Appeal SC 165 of 2016) [2018] ZWSC 34 (19 June 2018); http://www.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/34 <span class="field field--name-title field--type-string field--label-hidden">Minister of Mines and Mining Development &amp; 3 Others v Grandwell Holdings (Private) Limited &amp; 2 Others (SC 34 of 2018, Civil Appeal SC 165 of 2016) [2018] ZWSC 34 (19 June 2018);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2141" hreflang="x-default">PRACTICE AND PROCEDURE</a></div> <div class="field__item"><a href="/taxonomy/term/1585" hreflang="en">Locus Standi</a></div> <div class="field__item"><a href="/taxonomy/term/2215" hreflang="x-default">PROPERTY AND REAL RIGHTS</a></div> <div class="field__item"><a href="/taxonomy/term/2217" hreflang="x-default">Ownership</a></div> <div class="field__item"><a href="/taxonomy/term/2359" hreflang="x-default">acquisition of ownership</a></div> <div class="field__item"><a href="/taxonomy/term/2146" hreflang="x-default">SPOLIATION</a></div> <div class="field__item"><a href="/taxonomy/term/2147" hreflang="x-default">Order (SPOLIATION)</a></div> <div class="field__item"><a href="/taxonomy/term/2148" hreflang="x-default">Possession protected by spoliatory remedies</a></div> <div class="field__item"><a href="/taxonomy/term/2149" hreflang="x-default">What is (SPOLIATION)</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:38</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/34/2018-zwsc-34.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=50870">2018-zwsc-34.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/34/2018-zwsc-34.pdf" type="application/pdf; length=288649">2018-zwsc-34.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p><strong>REPORTABLE</strong><strong>        (23)                                           </strong></p> <p> </p> <ol><li> </li> </ol><p><strong>vs</strong></p> <ol><li> </li> </ol><p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>PATEL JA, GUVAVA JA &amp; UCHENA JA </strong></p> <p><strong>HARARE, 22 JUNE 2017 &amp; 19 JUNE 2018</strong></p> <p> </p> <p> </p> <p><em>L. Uriri,</em> for the first appellant</p> <p><em>J.R. Tsivama</em>, for the second, third &amp; fourth appellants</p> <p><em>T. Mpofu</em> with <em>E.T Moyo</em>, for the first respondent</p> <p>No appearance for the second &amp; third respondents</p> <p> </p> <p><strong>UCHENA JA:                </strong>This is an appeal against part of the judgment of the High Court granting a spoliation order and other consequential relief in an application at the instance of a shareholder on behalf of a company.</p> <p>        </p> <p>The facts leading to the application before the court <em>a quo </em>are as follows.</p> <p>The first respondent (Grandwell Holdings (Private) Limited) a private foreign company entered into a commercial arrangement with the Government of Zimbabwe for the purpose of mining diamonds in the Chiadzwa area in Manicaland Province. In 2009 the third appellant (Marange Resources ((Private) Limited) a wholly owned subsidiary of the second respondent (Zimbabwe Mining Development Corporation) and Grandwell Holdings (Private) Limited signed an agreement. The agreement resulted in the incorporation of the second respondent, Mbada Diamonds (Private) Limited, a private company, owned 50 percent by first respondent, and 50 percent by third appellant. Mbada Diamonds was to mine diamonds at Chiadzwa on special grants granted to Marange Resources (Private) Limited.</p> <p> </p> <p>Marange Resources (Private) Limited and Zimbabwe Mining Development Corporation are companies controlled by the Government of Zimbabwe. This extended Government’s influence to the operations of Mbada Diamonds through Marange Resources (Private) Limited which has a 50 percent shareholding in Mbada Diamonds.</p> <p>          </p> <p>In 2015 the Government of Zimbabwe through the first appellant crafted a policy to merge all diamond mining companies at Chiadzwa into one single entity, the fourth appellant (Zimbabwe Consolidated Diamond Company). The parties engaged with a view of agreeing over this initiative. Meetings were convened from about March 2015. Grandwell was hesitant, but said it was not opposed in principle. It required a blueprint on the merger to enable it to decide whether or not Mbada Diamonds should join the merger. Communication between parties to the proposed merger continued in good faith. According to Grandwell’s chairman, David Kassel, Grandwell’s engagement was <em>bona fide</em>.</p> <p> </p> <p>The engagement continued till the events of 22 February 2016. According to paras 43 and 44 of the first respondent’s founding affidavit the shareholders of Mbada Diamonds held a meeting to resolve on whether or not Mbada should join the proposed merger of diamond mining companies. That meeting ended with what the first respondent called a deadlock as the shareholders could not agree on whether or not to join the merger without further information. Marange Resources (Private) Limited (the third appellant) was willing to join the merger on the available information. Grandwell though not opposed to the merger was taking a cautious approach. It wanted a blueprint with information which could help it make a decision on that issue. It had placed it on record that it was in principle not opposed to the merger. According to para 39 of its founding affidavit it was not taking a position of non-co -operation as it would “seek to accommodate Government requirements wherever reasonably possible”. It was therefore not a deadlock as to whether or not Mbada could eventually join the merger. The difference between the shareholders was therefore merely on their then current positions.</p> <p> </p> <p>On 22 February 2016 the Government through the Secretary for Mines and Mining Development wrote to Mbada Diamonds advising it, among other things, that it had discovered that the special grants entitling it to mine diamonds had expired, and that, with no title, Mbada Diamonds had to cease all mining activities with immediate effect and vacate the mining site. Mbada Diamonds was given 90 days to remove all its equipment and other valuables. Any further access to the mining site would be upon request to the first appellant.</p> <p>            </p> <p>On the same day, the first appellant called a press conference to announce the new development that Mbada Diamonds and other diamond mining companies no longer had valid special grants or other rights on the basis of which they could continue with their mining operations. The first appellant further announced that those companies should cease operating and vacate the mining locations within 90 days. The first appellant specifically directed those companies to remove all their machinery, equipment and other related materials from the mining locations.  </p> <p>         On 27 February 2016 the first respondent brought an urgent chamber application in the court <em>a</em> <em>quo</em> seeking an interdict and a spoliation order. The first respondent alleged that when the first appellant issued a press statement, Mbada Diamonds’ operations were forcibly stopped by armed police assisted by some of Mbada Diamonds’ senior employees. It alleged that after the first appellant’s announcement, the police and officials from the first appellant moved into Mbada Diamond’s processing plants and shut them down. Mbada Diamonds’ security team was disbanded and evicted from site and other employees were forcibly evicted both from their work stations and their on-site residences. Security systems were paralysed. The first respondent also alleged that Marange Resources (Private) Limited the other shareholder of Mbada Diamonds, was in support of the initiative to consolidate the mining companies into a single entity and was therefore acting in concert with the first appellant to despoil the second respondent. The evidence on record does not support the allegation that Marange Resources (Pvt) Ltd directly participated in despoiling Mbada Diamonds. It merely proves Marange’s willingness to join the merger before receiving further information while Grandwell needed further information before it could decide on whether or not Mbada Diamonds should join the merger.</p> <p> </p> <p>It was on these facts that the first respondent sought an interim order declaring that the conduct of the appellants in removing Mbada Diamonds’ representatives from its mining site and effectively assuming control of Mbada Diamond’s mine constitutes an act of spoliation. The first respondent also sought an order directing the appellants to vacate Mbada Diamond’s mining site with immediate effect and interdicting the appellants from interfering with Mbada Diamonds’ operations. Mbada Diamonds through an affidavit signed by its Chief Executive Officer Luciyano supported the first respondent’s application.</p> <p> </p> <p>The application was opposed by the appellants who raised several preliminary points including that the first respondent as a shareholder of Mbada Diamonds had no <em>locus standi </em>to institute an action on behalf of the company. The appellants argued that Mbada Diamonds should have made the application to enforce its rights. The first respondent argued that it was entitled to institute proceedings on behalf of the company through a derivative action. The appellants argued that derivative action was not available to the first respondent.</p> <p> </p> <p>The court <em>a</em> <em>quo</em> dismissed the preliminary point raised by the appellants and held that derivative action was available to the first respondent. The court <em>a</em> <em>quo</em> held that it would have been futile for the first respondent to seek a resolution to sue the appellants given the stance Marange Resources (Private) Limited had already taken towards the intended merger. The court <em>a quo</em> found that since Marange Resources (Private) Limited was acting in concert with the other appellants, it would have been futile for the first respondent to have called for a meeting to resolve that Mbada Diamonds should vindicate its rights. The court <em>a quo</em> held that the circumstances of the case justified the procedure adopted by the first respondent. In any event the court <em>a</em> <em>quo</em> also found that the first respondent, as a shareholder of the second respondent, had a direct interest in the second respondent and therefore had the necessary <em>locus standi</em> to institute the proceedings.</p> <p> </p> <p>On the merits the court <em>a</em> <em>quo</em> held that the appellants committed an act of spoliation on the second respondent (Mbada Diamonds). The court therefore granted the application for spoliation. The first appellant was aggrieved by that decision and appealed to this court on the following grounds:</p> <ol><li>The court <em>a</em> <em>quo</em> erred in not finding that, to the extent the first respondent had alleged facts which went beyond the question of spoliation and rather sought to assert a right to mine and consequently, of possession; the appellant was entitled to demonstrate the absence of the same and that, upon the court a <em>quo</em> accepting the absence of such rights, the first respondent could not be granted the relief of spoliation.</li> <li>The court <em>a</em> <em>quo</em> erred in finding that the shareholder’s derivative action was available to the first respondent when the founding affidavit had not made out a case for the same, and that, in any event, the first respondent had <em>locus</em> <em>standi in judicio</em> to institute the proceedings.</li> <li>The court <em>a quo</em> further erred in finding that the first respondent had peaceful and undisturbed possession of the mining concessions in its capacity as project manager and that, therefore, it was entitled to spoliatory relief in its personal capacity when the founding affidavit did not make such allegation and relief was not sought on that basis.</li> <li>The court <em>a quo</em> further erred in finding that the appellant had committed an act of spoliation against the fifth respondent when, in the circumstances, the appellant was not found to have done anything to evict the fifth respondent from mining concessions.</li> <li>The court <em>a quo</em> further erred in entitling, authorising and empowering the fifth respondent’s security personnel, with all its chain of command, to remain at the mining concessions until resolution of a matter that was resolved on the 22 February 2016 when the relevant statutory functionary exercised his discretion against the further extension/renewal of the special mining grants in question.</li> </ol><p> </p> <p>The second, third and fourth appellants were also aggrieved by the decision of the court<em> a quo </em>and appealed to this Court on the following grounds.</p> <ol><li>The court <em>a</em> <em>quo</em> erred in finding that the appellants had committed acts of spoliation against the first and second respondents in the absence of evidence or even an allegation that the appellants evicted the said respondents and in the face of evidence from sixth respondent to the effect that its actions and presence at the mining site were for purposes of preventing unlawful mining activities as well as securing State property.   </li> <li>The court <em>a</em> <em>quo</em> erred in finding that the first respondent had been despoiled when no evidence had been placed before it, or even alleged, regarding any peaceful and undisturbed possession of the mining site or spoliation by the appellants.</li> <li>The court <em>a</em> <em>quo</em> erred in finding that the first respondent had <em>locus standi</em> and or that the shareholder’s derivative action was available to the first respondent in the absence of evidence that the second respondent was unwilling or unable to institute the proceedings.</li> <li>The court <em>a</em> <em>quo</em> erred in concluding that the appellants (including the first appellant) were effectively a single economic unit when their relationship is defined by law and each acted or exercised its rights as provided by law.</li> </ol><p> </p> <p>Having read the record and considered the submissions made by counsel for the appellants and the first respondent, I find that, although the appeal is premised on many grounds, only two issues arise for determination.</p> <ol><li>Whether or not the first respondent had <em>locus standi</em> to bring the application on behalf of the second respondent through derivative action, or whether or not derivative action was available to the first respondent.</li> <li>Whether or not the appellants despoiled the second respondent.</li> </ol><p> </p> <p>I will consider and determine the first issue.</p> <p> </p> <p> </p> <p> </p> <p><strong>Whether or not derivative action was available to the First Respondent.</strong></p> <p>Mr <em>Uriri</em> for the first appellant challenged the first respondent’s right to institute the application in the court <em>a</em> <em>quo </em>on behalf of the second respondent, a company which in terms of the law is entitled to enforce its own rights. Mr <em>Tsivama</em> for the second, third, and fourth appellants agreed with Mr <em>Uriri</em>’s submissions. It was argued for the appellants that the first respondent did not have the right to institute action on behalf of the second respondent without evidence that the second respondent was unable to institute the proceedings to protect its interests. On the other hand Mr <em>Mpofu</em> for the first respondent argued that its right to institute the application arose from derivative action since the second respondent was not able to act on its own behalf. The issue is therefore on when a shareholder of a company can institute proceedings on behalf of a company.</p> <p> </p> <p>It is a trite principle of company law that a company should itself enforce its rights when it is wronged. This was considered as the rule in <em>Foss v Harbottle </em>[1843] 2 Hare 461, 67 ER 189. The rule in <em>Foss v Harbottle</em> is that, the proper plaintiff in an action in respect of a wrong alleged to be done against a company is <em>prima facie</em> the company itself. Thus as a general rule, where the company is wronged, the proper plaintiff to institute an action to remedy the wrong is the company itself. No other person has the right to institute an action on behalf of the company if the company is able to vindicate its rights. However, the rule as explained in <em>Foss v Harbottle</em> is not inflexible and can be relaxed where necessary in the interest of justice. Gibson, <em>South African Mercantile and Company Law</em>, 8th Ed at pages 370-371, states the following:  </p> <p>“But the rule in <em>Foss v Harbottle</em> is not universal. It is subject to exceptions. It does not apply where the interests of justice require the rule to be dispensed with (<em>Russell v Wakefield Waterworks Co (1875) LR 20 Eq 474).</em> <strong>So where a wrong has been done to a company, a court will allow dissentient members to bring an action in their own names against those responsible, where the latter hold and control the majority of the shares in the company and will not allow any action to be brought in the name of the company.</strong> “<strong>(</strong>emphasis added)</p> <p> </p> <p>The rule in <em>Foss v Harbottle</em> does not in appropriate circumstances prevent an individual member from suing through derivative action. Derivative action is an exception to the rule in <em>Foss v Harbottle.</em> In Zimbabwe, derivative action has been recognised in many cases. (<em>See L Piras and Sons </em>(Private) Limited<em> v Piras </em>1993 (3) ZLR 245 (S)<em> and Lameck Kufandada v Dairiboard Zimbabwe and Others </em>HH 564/15). In the <em>Piras</em> case GUBBAY CJ said the following:</p> <p>“The derivative action is an exception to the rule in <em>Foss v Harbottle </em>(1843) 67 ER 189 and was expounded thus by Lord Denning MR in <em>Wallersteiner v Moir (No 2) </em>[1975] 1 All ER 849 (CA) at 857 d-f:</p> <p>“It is a fundamental principle of our law that a company is a legal person, with its own corporate identity, separate and distinct from the directors or shareholders, and with its own property rights and interests to which alone it is entitled. If it is defrauded by a wrongdoer, the company itself is the one person to sue for the damage. Such is the rule in <em>Foss v Harbottle.</em> The rule is easy enough to apply when the company is defrauded by outsiders. The company itself is the only person who can sue. Likewise, when it is defrauded by insiders of a minor kind, once again the company is the only person who can sue. <strong>But suppose it is defrauded by insiders who control its affairs — by directors who hold a majority of the shares — who then can sue for damages? Those directors are themselves the wrongdoers. If a board meeting is held, they will not authorise proceedings to be taken by the company against themselves. If a general meeting is called, they will vote down any suggestion that the company should sue them themselves. Yet the company is the one person who is damnified. It is the one person who should sue. In one way or another some means must be found for the company to sue. Otherwise the law would fail in its purpose. Injustice would be done without redress.”</strong></p> <p> </p> <p><strong>The nature, then, of a derivative action is that it is a device designed to enable the court to do justice to a company controlled by its wrongdoers and prevents a serious wrong from going unremedied. A shareholder is allowed to appear as the plaintiff. He acts, not as representative of the other shareholders, but as a representative of the company to enforce rights derived from the company. The action is brought by him in his own capacity to vindicate the company’s rights.” </strong>(emphasis added)</p> <p> </p> <p>It is important to note that derivative action is available when certain requirements are met.  It must be clear that the company has been prevented from instituting proceedings by alleged wrongdoers in control of the company. It must be alleged and proved that the wrongdoers (the majority shareholders or the other shareholder in the case of equal shareholders) have refused to institute the action and have prevented the company from instituting action using their majority or equal votes. In order for the company to institute proceedings on its own behalf, the shareholders must agree through a resolution. Thus if the majority shareholder, using his majority vote, or the equal shareholder using his equal vote, blocks the attempt by the company to institute action to remedy the wrong, the minority or other equal shareholder is entitled to approach the court through derivative action.</p> <p> </p> <p>In this case, Mr <em>Uriri</em> for the first appellant, submitted that derivative action was not available to the first respondent because there was no finding that the second respondent was prevented from instituting proceedings and that there are no findings that the second respondent refused or failed to act in its own interest. Mr <em>Uriri </em>relied on the fact that the second respondent itself responded to the application filed by the first respondent. According to the first appellant this shows that the second respondent was capable of instituting the proceedings to safeguard its interests. In support of that, Mr <em>Tsivama,</em> counsel for the second to fourth respondents, submitted that in order for the court to find whether or not derivative action was available to the first respondent, the court ought to ask itself whether there was any wrongdoing against the company by the majority shareholders or those in control of the company, before the party which seeks to rely on derivative action can succeed.</p> <p>           </p> <p>On the other hand, Mr <em>Mpofu</em> for the first respondent submitted that derivative action was justified on the basis that the seeking of a resolution for the second respondent to institute proceedings would be a futile exercise since the third appellant, the other shareholder of the second respondent, would have made that impossible. Mr <em>Mpofu</em> further submitted that the futility of the meeting was known as the first respondent tried to call for the meeting with the other shareholder. Mr <em>Mpofu</em> submitted that an attempt was made to call for a shareholders’ meeting but was declined by the other shareholder.</p> <p>  </p> <p>A perusal of the record reveals that there is no evidence that an attempt was made for the shareholders of Mbada Diamonds to convene a meeting to decide whether or not Mbada should institute spoliation proceedings to protect its rights. There are only two shareholders of Mbada Diamonds, the first respondent (Grandwell) and the third appellant (Marange Resources). There is no evidence on record that the other shareholder actively prevented the company from instituting such proceedings. On record is a letter from the first and second respondents’ South African legal practitioners threatening to institute proceedings on their behalf.</p> <p> </p> <p>Whether or not the first respondent attempted to call for a meeting with the third respondent is a question of fact which must be proved by evidence. In this case, it was not proved that an attempt was made. As a result, it was not established that the second respondent was actively prevented by the third appellant from instituting the proceedings <em>a quo</em> in its own name.</p> <p> </p> <p>According to Gower L.C.M <em>Principles of Modern Company Law </em>pages 649-650, for derivative action to be justified:</p> <p>“It must be shown that the alleged wrongdoers control the company. <strong>The clearest way of doing this will be to show that both the directors and the general meeting have been invited to institute proceedings in the name of the company and have refused to do so, and that the refusal was because of the votes cast by the wrongdoers</strong>. However, the <strong>English cases recognise that there is no point in formally asking the directors to institute the proceedings if they are to be the defendants, and that it is not necessary to convene a general meeting and to invite it to resolve upon proceedings in the company’s name, provided that the court can be satisfied <em>aliunde</em> that the wrongdoers are in effective control.”</strong> (emphasis added)</p> <p>         </p> <p> </p> <p>It is therefore clear that derivative action can be relied on in two circumstances. In the first situation, it must be proved that a meeting was called for the shareholders to pass a resolution for the company to institute proceedings. In the event that the other shareholders refused or prevented the meeting from taking place, the other shareholders can rely on derivative action to institute action on behalf of the company. However, this is not what happened in this case. No attempt was made by the shareholders of Mbada Diamonds to convene a meeting to pass a resolution for the company to institute the proceedings.</p> <p> </p> <p>The court <em>a quo</em>, conscious of there being no such evidence, at pages 12 to 13 of its judgment, said:</p> <p>“In<em> casu, </em>the position of the American courts, as stated by Gower above, seemed to have been Mr Hashiti’s point. He submitted that in the absence of an invitation by Grandwell to Marange for a meeting to pass a resolution to sue in the name of Mbada; that in the absence of evidence that such an invitation had been turned down; that coupled with Werksmans’ letter aforesaid, and Luciyano’s affidavit, it could not be said Mbada had been unable to bring the urgent chamber application by itself and that therefore the derivative action was not available to Grandwell.”</p> <p> </p> <p><strong>I recognise the force of the respondent’s argument. But in my view, the position of the English courts seems to accord more with notions of justice and the spirit of the derivative action. The law must not be rendered impotent. </strong>In <em>casu</em>, the Minister moved with exceeding speed. For six or seven years’ operations at Chiadzwa had gone on unhindered. But on 22 February 2016, in one fell swoop, things were turned upside down. Mining was abruptly terminated; Mbada’s personnel were forcibly expelled from site; inadequate security had exposed the precious diamonds, the expensive equipment, personal belongings, and more to destruction and theft. The situation was one of dire emergency. Werksmans letter of demand of 23 February 2016, sent by email, had been ignored. There had been no let-up in the looting, forcing Grandwell, four days later, to run to the law.</p> <p> </p> <p>Marange itself had already passed a resolution to adopt the Minister’s plans for the consolidation of diamond mining companies, including Mbada into one single entity without agreement with Grandwell, its co-shareholder. This was in spite of the outstanding details Grandwell had requested on the proposed scheme. <strong>Further, the evidence showed that it was officials from Mbada, as the Minister’s representatives, with the assistance of the police, who had executed the Minister’s directives.</strong></p> <p> </p> <p><strong>In my view, the spirit of the derivative action, being an exception to the rule in Foss v Harbottle, is that</strong> “—<strong>the claims of justice would be found superior to any difficulties arising out of technical rules respecting the mode in which corporations are required to sue.”</strong></p> <p> </p> <p>These are the reasons which swayed the court <em>a quo</em> to allow derivative action by Grandwell (the first respondent).</p> <p> </p> <p>The second situation, which basically reflects the English position, is that if it is proved that calling a meeting was an exercise in futility, the other shareholder can institute proceedings on behalf of the company without seeking a resolution that the company institute the proceedings. For the shareholder who seeks to rely on derivative action to rely on this option, the court must be satisfied that the majority shareholders or equal shareholders, who are the wrongdoers and would not want the company to institute proceedings, are in effective control. The second respondent is owned by the first respondent and the third appellant in equal shares of 50 percent each. This means, if a meeting was to be called to pass a resolution for the company to sue and one shareholder votes against such a resolution, the company could not sue in its own name. It can also be established that the other shareholder was in effective negative control.</p> <p> </p> <p>According to evidence on record Marange Resources was chaired by the Secretary of Mines who authored the letter of 22 February 2016. The same Secretary also chaired the second and fourth appellants. The special grants which enabled Mbada to mine belonged to Marange Resources which is wholly owned by the second appellant. The Zimbabwe Consolidated Diamond Company, fourth appellant, which was to replace Mbada Diamonds and other diamond mining companies into mere 50 percent shareholders, is chaired by the Secretary of Mines. The Secretary’s office was responsible for crafting Government policy. It was responsible for the granting of special grants. It also was entitled to make definitive orders on mining operations as it did on 22 February 2016. In view of the above there is no doubt that, in spite of formal equality as between the two shareholders, power and control were on Marange Resources’ side. The Secretary’s word was administratively final.     </p> <p> </p> <p>It was also established and proved that the third appellant as the other shareholder opposed the application. That alone made it pointless to call for a meeting to resolve that the company institute application proceedings which the other equal shareholder was opposing. There was clearly no chance that such a resolution could be passed. Therefore, derivative action was justified, because it would have been futile to call for a meeting to resolve that the company should sue in its own name. Marange Resources would clearly not have agreed that Mbada Diamonds should apply for an order against its own chairman and the Minister’s decisions and conduct.</p> <p> </p> <p>In this case the first respondent relied on an assumption that the third appellant would have made it impossible for the resolution to be passed.  That assumption is supported by sufficient evidence that it would have been futile to call for a meeting to resolve that Mbada Diamonds should make the application. The futility was clearly explained by the court <em>a quo.</em> It entitled the first respondent to rely on derivative action. There was proof that the third appellant was fully entangled to the will of its chairman and the other appellant companies he chaired. There was therefore evidence <em>aliunde</em> that it was impossible for the second respondent to institute spoliation proceedings in its own name.</p> <p>    </p> <p>It is clear that the right to institute proceedings using derivative action is meant to remedy wrongdoing against a company by its directors or majority or equal shareholders. In this case, the court <em>a quo</em> correctly relied on the futility of expecting the first respondent to call for a meeting to resolve that the company should sue the appellants for spoliation as the other equal shareholder’s position on the application was known. It was opposing the application. It clearly would not have supported a resolution for the company to make an application it was opposing. The first respondent was therefore entitled to rely on derivative action to sue on behalf of the second respondent.</p> <p> </p> <p> </p> <p><strong>GUVAVA JA</strong>:                I fully concur with UCHENA JA’s assessment of the facts leading up to the institution of the proceedings <em>a quo</em> and his conclusion on the first respondent’s entitlement to sue by way of derivative action on behalf of the second respondent. Once it has been found that the first respondent had <em>locus standi</em> to bring the application then the second issue must be determined.</p> <p> </p> <p><strong>Whether or not the appellants despoiled the second respondent</strong>.</p> <p>In my view, the facts of this case disclose a classic text book case of spoliation. In the case of <em>Botha &amp; Anor v Barrett</em> 1996 (2) ZLR 73 (S) GUBBAY CJ stated as follows at p 79 D-E:</p> <p>“It is clear law that in order to obtain a spoliation order two allegations must be made and proved. These are:</p> <p>That the applicant was in peaceful and undisturbed possession of the property; and,</p> <p>That the respondent deprived him of the possession forcibly or wrongfully against his consent.”</p> <p> </p> <p> </p> <p>In order to make a determination of whether or not the second respondent was despoiled it is necessary to prove the two factors stated above.</p> <p> </p> <p>I propose to deal with each factor in turn.</p> <p> </p> <ul><li>Whether or not the second respondent was in peaceful possession.</li> </ul><p>It was submitted, firstly, by the appellants that the second respondent was not in peaceful possession as the special grants entitling it to mine had expired. The appellants’ argument was that, since the possession was unlawful, it could not be peaceful.</p> <p> </p> <p>It has been stated in a number of cases that issues of rights are irrelevant in spoliation proceedings. In <em>Yeko v Oana </em>1973 (4) SA 735 (AD) at 739 G it was stated that:</p> <p>“The fundamental principle of the remedy is that no one is allowed to take the law into his own hands. All that the spoliata has to prove, is possession of a kind which warrants the protection accorded by the remedy, and that he was unlawfully ousted.”</p> <p> </p> <p> </p> <p>In the case of <em>Chisveto v Minister of Local Government and Town Planning </em>1984 (1) ZLR 248 (H) the court remarked:</p> <p>“Lawfulness of possession does not enter into it. The purpose of the <em>mandamus van spolie</em> is to preserve law and order and to discourage persons from taking the law into their own hands. To give effect to these principles, it is necessary for the status <em>quo ante </em>to be restored until such time as a competent court of law assess the relative merits of the claims by each party…  In fact, the classic generalisation is sometimes made that in respect of spoliation actions even a robber or thief is entitled to be restored possession of the stolen property.”</p> <p> </p> <p> </p> <p>It is apparent from the facts of this case that the first respondent, being a 50 per cent shareholder of the second respondent, was in possession of the mining fields through the second respondent. Possession in legal terms depicts both the mental and physical elements. It is not in dispute that the second respondent was in physical possession of the mining fields at the relevant time and was carrying out mining operations.</p> <p> </p> <p>Secondly, the appellants also alleged that there was no evidence on the record that the appellants had committed the acts complained of. The first appellant stated that the mere fact that he had called a press conference and stated that the possession of the respondents was unlawful does not in itself amount to spoliation. In any event he argues that he was not at the scene nor was any evidence given to link him to the persons who had despoiled the respondents.</p> <p> </p> <p>It is not in dispute that agents of the State descended on the Mine premises on 22 February 2016. It was alleged in the founding affidavit that ZMDC and Marange were the implementing agents of the scheme which culminated in Mbada Diamonds being removed from the mining site. The evidence given by the second respondent clearly stated that the armed police were hired by the first to fourth appellants.</p> <p> </p> <p>In my view it would be an absurdity to find that the police and the other officials would have acted in the manner they did without the authorisation and knowledge of the first appellant. The acts complained of were carried out immediately after the delivery of the letter from the permanent secretary of the first appellant stating that the special grants had expired. This was immediately followed by the press conference held by the first appellant reiterating that position and giving the second respondent notice to vacate the mining claims. It seems to me that the facts, as set out, establish that the first appellant was primarily instrumental in the removal of the second respondent from the mining site.</p> <p>   </p> <p>I am satisfied that the court <em>a quo</em> correctly found that the second respondent was in peaceful possession before the appellants acted in common purpose in removing the second respondent from its peaceful possession of the mining site.</p> <p> </p> <ul><li>Whether or not the second respondent was forcibly and wrongfully deprived of possession</li> </ul><p>It is not in dispute that on 22 February 2016, after the press conference by the first appellant, armed police and officials from the Ministry of Mines moved onto the mining site which was being operated by second respondent and forcibly shut down its operations. The security team of second respondent was disabled and its employees were evicted from both their work stations and their on-site accommodation. These actions were conducted without a court order.</p> <p> </p> <p>All Mbada Diamonds employees were rounded up and their communication with the outside world was cut off. They were also subsequently forced off and barred from the mining site. The officials proceeded to switch off the machines and equipment which were in operation. The armed police officers remained on site and stopped employees from accessing the plant. Mbada employees were threatened with violence and were forced to leave the mine during the evening of the 23 February 2016. The third respondent, the Commissioner General of Police, confirmed that the police had acted in the manner complained of. In my view, in spite of the protestations of the third respondent, the police would not have acted in such a manner if they had not been called upon to do so by the appellants, who stood to benefit from the unlawful removal of the second respondent.</p> <p> </p> <p>There is no doubt in my mind that these facts show that the second respondent was removed without its consent. The removal was unlawful as it was carried out without due process.</p> <p> </p> <p>The court <em>a quo</em> thus correctly found that the second respondent had been unlawfully removed without its consent.</p> <p> </p> <p>It seems to me that the factors which must be proved in order to grant spoliatory relief had been met and the court <em>a quo</em> was correct to grant the order as prayed.</p> <p> </p> <p> </p> <p><strong>PATEL JA:</strong>                    I have read the separate opinions rendered by UCHENA JA and GUVAVA JA on the two issues for determination in this matter. I fully endorse and concur with their respective conclusions for the following reasons.</p> <p> </p> <p>As regards the first issue, the question of <em>locus standi a quo</em>, the authorities cited above relate primarily to the situation where an aggrieved minority in a company seeks to represent it in a derivative action against an oppressive majority. <em>In casu</em>, the position is slightly different in that the situation to be addressed is that of one 50 per cent shareholder taking up cudgels as against the other equal shareholder. Neither holds a majority shareholding in the company but either is capable of frustrating the legitimate claims of the other by declining to participate in matters concerning the good governance and best interests of the company. It is in this sense that either shareholder can be said to be in effective negative control of the company. As is aptly reasoned by UCHENA JA, this scenario fully justifies the entitlement of either shareholder to proceed against the other by way of a derivative action in order to protect or vindicate its rights.</p> <p> </p> <p>As for the second issue revolving around the question of spoliation, I can do no more than adopt the succinct reasoning of GUVAVA JA. There can be no doubt that Mbada Diamonds was in peaceful and undisturbed possession of the mining location in question at the relevant time, irrespective of the continuing validity or otherwise of its special grants and notwithstanding the supposed expiry of its right to carry out mining operations in that location. It is equally indisputable that the appellants, acting in concert, contrived to abruptly and unceremoniously deprive Mbada Diamonds of its possession of the mining location, forcibly and wrongfully against its consent, through the agency of the Commissioner General of Police and his cohorts.</p> <p>In the result, both appeals in this matter must fail. It is accordingly ordered that the appeals herein be and are hereby dismissed with costs.</p> <p> </p> <p> </p> <p><strong>GUVAVA JA:</strong>                I agree.</p> <p> </p> <p><strong>UCHENA JA:</strong>                 I agree.</p> <p> </p> <p> </p> <p><em>Civil Division, Attorney-General’s Office,</em> appellant’s legal practitioners</p> <p> </p> <p><em>Sawyer &amp; Mkushi, </em>second, third and fourth appellants’ legal practitioners</p> <p> </p> <p><em>Scanlen &amp; Holderness, </em>first respondent’s legal practitioners</p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-bf20326568c316f09fa4c4ccb0652ccd2fe66298d045390caf64c174f602427a"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p><strong>REPORTABLE</strong><strong>        (23)                                           </strong></p> <p> </p> <ol><li> </li> </ol><p><strong>vs</strong></p> <ol><li> </li> </ol><p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>PATEL JA, GUVAVA JA &amp; UCHENA JA </strong></p> <p><strong>HARARE, 22 JUNE 2017 &amp; 19 JUNE 2018</strong></p> <p> </p> <p> </p> <p><em>L. Uriri,</em> for the first appellant</p> <p><em>J.R. Tsivama</em>, for the second, third &amp; fourth appellants</p> <p><em>T. Mpofu</em> with <em>E.T Moyo</em>, for the first respondent</p> <p>No appearance for the second &amp; third respondents</p> <p> </p> <p><strong>UCHENA JA:                </strong>This is an appeal against part of the judgment of the High Court granting a spoliation order and other consequential relief in an application at the instance of a shareholder on behalf of a company.</p> <p>        </p> <p>The facts leading to the application before the court <em>a quo </em>are as follows.</p> <p>The first respondent (Grandwell Holdings (Private) Limited) a private foreign company entered into a commercial arrangement with the Government of Zimbabwe for the purpose of mining diamonds in the Chiadzwa area in Manicaland Province. In 2009 the third appellant (Marange Resources ((Private) Limited) a wholly owned subsidiary of the second respondent (Zimbabwe Mining Development Corporation) and Grandwell Holdings (Private) Limited signed an agreement. The agreement resulted in the incorporation of the second respondent, Mbada Diamonds (Private) Limited, a private company, owned 50 percent by first respondent, and 50 percent by third appellant. Mbada Diamonds was to mine diamonds at Chiadzwa on special grants granted to Marange Resources (Private) Limited.</p> <p> </p> <p>Marange Resources (Private) Limited and Zimbabwe Mining Development Corporation are companies controlled by the Government of Zimbabwe. This extended Government’s influence to the operations of Mbada Diamonds through Marange Resources (Private) Limited which has a 50 percent shareholding in Mbada Diamonds.</p> <p>          </p> <p>In 2015 the Government of Zimbabwe through the first appellant crafted a policy to merge all diamond mining companies at Chiadzwa into one single entity, the fourth appellant (Zimbabwe Consolidated Diamond Company). The parties engaged with a view of agreeing over this initiative. Meetings were convened from about March 2015. Grandwell was hesitant, but said it was not opposed in principle. It required a blueprint on the merger to enable it to decide whether or not Mbada Diamonds should join the merger. Communication between parties to the proposed merger continued in good faith. According to Grandwell’s chairman, David Kassel, Grandwell’s engagement was <em>bona fide</em>.</p> <p> </p> <p>The engagement continued till the events of 22 February 2016. According to paras 43 and 44 of the first respondent’s founding affidavit the shareholders of Mbada Diamonds held a meeting to resolve on whether or not Mbada should join the proposed merger of diamond mining companies. That meeting ended with what the first respondent called a deadlock as the shareholders could not agree on whether or not to join the merger without further information. Marange Resources (Private) Limited (the third appellant) was willing to join the merger on the available information. Grandwell though not opposed to the merger was taking a cautious approach. It wanted a blueprint with information which could help it make a decision on that issue. It had placed it on record that it was in principle not opposed to the merger. According to para 39 of its founding affidavit it was not taking a position of non-co -operation as it would “seek to accommodate Government requirements wherever reasonably possible”. It was therefore not a deadlock as to whether or not Mbada could eventually join the merger. The difference between the shareholders was therefore merely on their then current positions.</p> <p> </p> <p>On 22 February 2016 the Government through the Secretary for Mines and Mining Development wrote to Mbada Diamonds advising it, among other things, that it had discovered that the special grants entitling it to mine diamonds had expired, and that, with no title, Mbada Diamonds had to cease all mining activities with immediate effect and vacate the mining site. Mbada Diamonds was given 90 days to remove all its equipment and other valuables. Any further access to the mining site would be upon request to the first appellant.</p> <p>            </p> <p>On the same day, the first appellant called a press conference to announce the new development that Mbada Diamonds and other diamond mining companies no longer had valid special grants or other rights on the basis of which they could continue with their mining operations. The first appellant further announced that those companies should cease operating and vacate the mining locations within 90 days. The first appellant specifically directed those companies to remove all their machinery, equipment and other related materials from the mining locations.  </p> <p>         On 27 February 2016 the first respondent brought an urgent chamber application in the court <em>a</em> <em>quo</em> seeking an interdict and a spoliation order. The first respondent alleged that when the first appellant issued a press statement, Mbada Diamonds’ operations were forcibly stopped by armed police assisted by some of Mbada Diamonds’ senior employees. It alleged that after the first appellant’s announcement, the police and officials from the first appellant moved into Mbada Diamond’s processing plants and shut them down. Mbada Diamonds’ security team was disbanded and evicted from site and other employees were forcibly evicted both from their work stations and their on-site residences. Security systems were paralysed. The first respondent also alleged that Marange Resources (Private) Limited the other shareholder of Mbada Diamonds, was in support of the initiative to consolidate the mining companies into a single entity and was therefore acting in concert with the first appellant to despoil the second respondent. The evidence on record does not support the allegation that Marange Resources (Pvt) Ltd directly participated in despoiling Mbada Diamonds. It merely proves Marange’s willingness to join the merger before receiving further information while Grandwell needed further information before it could decide on whether or not Mbada Diamonds should join the merger.</p> <p> </p> <p>It was on these facts that the first respondent sought an interim order declaring that the conduct of the appellants in removing Mbada Diamonds’ representatives from its mining site and effectively assuming control of Mbada Diamond’s mine constitutes an act of spoliation. The first respondent also sought an order directing the appellants to vacate Mbada Diamond’s mining site with immediate effect and interdicting the appellants from interfering with Mbada Diamonds’ operations. Mbada Diamonds through an affidavit signed by its Chief Executive Officer Luciyano supported the first respondent’s application.</p> <p> </p> <p>The application was opposed by the appellants who raised several preliminary points including that the first respondent as a shareholder of Mbada Diamonds had no <em>locus standi </em>to institute an action on behalf of the company. The appellants argued that Mbada Diamonds should have made the application to enforce its rights. The first respondent argued that it was entitled to institute proceedings on behalf of the company through a derivative action. The appellants argued that derivative action was not available to the first respondent.</p> <p> </p> <p>The court <em>a</em> <em>quo</em> dismissed the preliminary point raised by the appellants and held that derivative action was available to the first respondent. The court <em>a</em> <em>quo</em> held that it would have been futile for the first respondent to seek a resolution to sue the appellants given the stance Marange Resources (Private) Limited had already taken towards the intended merger. The court <em>a quo</em> found that since Marange Resources (Private) Limited was acting in concert with the other appellants, it would have been futile for the first respondent to have called for a meeting to resolve that Mbada Diamonds should vindicate its rights. The court <em>a quo</em> held that the circumstances of the case justified the procedure adopted by the first respondent. In any event the court <em>a</em> <em>quo</em> also found that the first respondent, as a shareholder of the second respondent, had a direct interest in the second respondent and therefore had the necessary <em>locus standi</em> to institute the proceedings.</p> <p> </p> <p>On the merits the court <em>a</em> <em>quo</em> held that the appellants committed an act of spoliation on the second respondent (Mbada Diamonds). The court therefore granted the application for spoliation. The first appellant was aggrieved by that decision and appealed to this court on the following grounds:</p> <ol><li>The court <em>a</em> <em>quo</em> erred in not finding that, to the extent the first respondent had alleged facts which went beyond the question of spoliation and rather sought to assert a right to mine and consequently, of possession; the appellant was entitled to demonstrate the absence of the same and that, upon the court a <em>quo</em> accepting the absence of such rights, the first respondent could not be granted the relief of spoliation.</li> <li>The court <em>a</em> <em>quo</em> erred in finding that the shareholder’s derivative action was available to the first respondent when the founding affidavit had not made out a case for the same, and that, in any event, the first respondent had <em>locus</em> <em>standi in judicio</em> to institute the proceedings.</li> <li>The court <em>a quo</em> further erred in finding that the first respondent had peaceful and undisturbed possession of the mining concessions in its capacity as project manager and that, therefore, it was entitled to spoliatory relief in its personal capacity when the founding affidavit did not make such allegation and relief was not sought on that basis.</li> <li>The court <em>a quo</em> further erred in finding that the appellant had committed an act of spoliation against the fifth respondent when, in the circumstances, the appellant was not found to have done anything to evict the fifth respondent from mining concessions.</li> <li>The court <em>a quo</em> further erred in entitling, authorising and empowering the fifth respondent’s security personnel, with all its chain of command, to remain at the mining concessions until resolution of a matter that was resolved on the 22 February 2016 when the relevant statutory functionary exercised his discretion against the further extension/renewal of the special mining grants in question.</li> </ol><p> </p> <p>The second, third and fourth appellants were also aggrieved by the decision of the court<em> a quo </em>and appealed to this Court on the following grounds.</p> <ol><li>The court <em>a</em> <em>quo</em> erred in finding that the appellants had committed acts of spoliation against the first and second respondents in the absence of evidence or even an allegation that the appellants evicted the said respondents and in the face of evidence from sixth respondent to the effect that its actions and presence at the mining site were for purposes of preventing unlawful mining activities as well as securing State property.   </li> <li>The court <em>a</em> <em>quo</em> erred in finding that the first respondent had been despoiled when no evidence had been placed before it, or even alleged, regarding any peaceful and undisturbed possession of the mining site or spoliation by the appellants.</li> <li>The court <em>a</em> <em>quo</em> erred in finding that the first respondent had <em>locus standi</em> and or that the shareholder’s derivative action was available to the first respondent in the absence of evidence that the second respondent was unwilling or unable to institute the proceedings.</li> <li>The court <em>a</em> <em>quo</em> erred in concluding that the appellants (including the first appellant) were effectively a single economic unit when their relationship is defined by law and each acted or exercised its rights as provided by law.</li> </ol><p> </p> <p>Having read the record and considered the submissions made by counsel for the appellants and the first respondent, I find that, although the appeal is premised on many grounds, only two issues arise for determination.</p> <ol><li>Whether or not the first respondent had <em>locus standi</em> to bring the application on behalf of the second respondent through derivative action, or whether or not derivative action was available to the first respondent.</li> <li>Whether or not the appellants despoiled the second respondent.</li> </ol><p> </p> <p>I will consider and determine the first issue.</p> <p> </p> <p> </p> <p> </p> <p><strong>Whether or not derivative action was available to the First Respondent.</strong></p> <p>Mr <em>Uriri</em> for the first appellant challenged the first respondent’s right to institute the application in the court <em>a</em> <em>quo </em>on behalf of the second respondent, a company which in terms of the law is entitled to enforce its own rights. Mr <em>Tsivama</em> for the second, third, and fourth appellants agreed with Mr <em>Uriri</em>’s submissions. It was argued for the appellants that the first respondent did not have the right to institute action on behalf of the second respondent without evidence that the second respondent was unable to institute the proceedings to protect its interests. On the other hand Mr <em>Mpofu</em> for the first respondent argued that its right to institute the application arose from derivative action since the second respondent was not able to act on its own behalf. The issue is therefore on when a shareholder of a company can institute proceedings on behalf of a company.</p> <p> </p> <p>It is a trite principle of company law that a company should itself enforce its rights when it is wronged. This was considered as the rule in <em>Foss v Harbottle </em>[1843] 2 Hare 461, 67 ER 189. The rule in <em>Foss v Harbottle</em> is that, the proper plaintiff in an action in respect of a wrong alleged to be done against a company is <em>prima facie</em> the company itself. Thus as a general rule, where the company is wronged, the proper plaintiff to institute an action to remedy the wrong is the company itself. No other person has the right to institute an action on behalf of the company if the company is able to vindicate its rights. However, the rule as explained in <em>Foss v Harbottle</em> is not inflexible and can be relaxed where necessary in the interest of justice. Gibson, <em>South African Mercantile and Company Law</em>, 8th Ed at pages 370-371, states the following:  </p> <p>“But the rule in <em>Foss v Harbottle</em> is not universal. It is subject to exceptions. It does not apply where the interests of justice require the rule to be dispensed with (<em>Russell v Wakefield Waterworks Co (1875) LR 20 Eq 474).</em> <strong>So where a wrong has been done to a company, a court will allow dissentient members to bring an action in their own names against those responsible, where the latter hold and control the majority of the shares in the company and will not allow any action to be brought in the name of the company.</strong> “<strong>(</strong>emphasis added)</p> <p> </p> <p>The rule in <em>Foss v Harbottle</em> does not in appropriate circumstances prevent an individual member from suing through derivative action. Derivative action is an exception to the rule in <em>Foss v Harbottle.</em> In Zimbabwe, derivative action has been recognised in many cases. (<em>See L Piras and Sons </em>(Private) Limited<em> v Piras </em>1993 (3) ZLR 245 (S)<em> and Lameck Kufandada v Dairiboard Zimbabwe and Others </em>HH 564/15). In the <em>Piras</em> case GUBBAY CJ said the following:</p> <p>“The derivative action is an exception to the rule in <em>Foss v Harbottle </em>(1843) 67 ER 189 and was expounded thus by Lord Denning MR in <em>Wallersteiner v Moir (No 2) </em>[1975] 1 All ER 849 (CA) at 857 d-f:</p> <p>“It is a fundamental principle of our law that a company is a legal person, with its own corporate identity, separate and distinct from the directors or shareholders, and with its own property rights and interests to which alone it is entitled. If it is defrauded by a wrongdoer, the company itself is the one person to sue for the damage. Such is the rule in <em>Foss v Harbottle.</em> The rule is easy enough to apply when the company is defrauded by outsiders. The company itself is the only person who can sue. Likewise, when it is defrauded by insiders of a minor kind, once again the company is the only person who can sue. <strong>But suppose it is defrauded by insiders who control its affairs — by directors who hold a majority of the shares — who then can sue for damages? Those directors are themselves the wrongdoers. If a board meeting is held, they will not authorise proceedings to be taken by the company against themselves. If a general meeting is called, they will vote down any suggestion that the company should sue them themselves. Yet the company is the one person who is damnified. It is the one person who should sue. In one way or another some means must be found for the company to sue. Otherwise the law would fail in its purpose. Injustice would be done without redress.”</strong></p> <p> </p> <p><strong>The nature, then, of a derivative action is that it is a device designed to enable the court to do justice to a company controlled by its wrongdoers and prevents a serious wrong from going unremedied. A shareholder is allowed to appear as the plaintiff. He acts, not as representative of the other shareholders, but as a representative of the company to enforce rights derived from the company. The action is brought by him in his own capacity to vindicate the company’s rights.” </strong>(emphasis added)</p> <p> </p> <p>It is important to note that derivative action is available when certain requirements are met.  It must be clear that the company has been prevented from instituting proceedings by alleged wrongdoers in control of the company. It must be alleged and proved that the wrongdoers (the majority shareholders or the other shareholder in the case of equal shareholders) have refused to institute the action and have prevented the company from instituting action using their majority or equal votes. In order for the company to institute proceedings on its own behalf, the shareholders must agree through a resolution. Thus if the majority shareholder, using his majority vote, or the equal shareholder using his equal vote, blocks the attempt by the company to institute action to remedy the wrong, the minority or other equal shareholder is entitled to approach the court through derivative action.</p> <p> </p> <p>In this case, Mr <em>Uriri</em> for the first appellant, submitted that derivative action was not available to the first respondent because there was no finding that the second respondent was prevented from instituting proceedings and that there are no findings that the second respondent refused or failed to act in its own interest. Mr <em>Uriri </em>relied on the fact that the second respondent itself responded to the application filed by the first respondent. According to the first appellant this shows that the second respondent was capable of instituting the proceedings to safeguard its interests. In support of that, Mr <em>Tsivama,</em> counsel for the second to fourth respondents, submitted that in order for the court to find whether or not derivative action was available to the first respondent, the court ought to ask itself whether there was any wrongdoing against the company by the majority shareholders or those in control of the company, before the party which seeks to rely on derivative action can succeed.</p> <p>           </p> <p>On the other hand, Mr <em>Mpofu</em> for the first respondent submitted that derivative action was justified on the basis that the seeking of a resolution for the second respondent to institute proceedings would be a futile exercise since the third appellant, the other shareholder of the second respondent, would have made that impossible. Mr <em>Mpofu</em> further submitted that the futility of the meeting was known as the first respondent tried to call for the meeting with the other shareholder. Mr <em>Mpofu</em> submitted that an attempt was made to call for a shareholders’ meeting but was declined by the other shareholder.</p> <p>  </p> <p>A perusal of the record reveals that there is no evidence that an attempt was made for the shareholders of Mbada Diamonds to convene a meeting to decide whether or not Mbada should institute spoliation proceedings to protect its rights. There are only two shareholders of Mbada Diamonds, the first respondent (Grandwell) and the third appellant (Marange Resources). There is no evidence on record that the other shareholder actively prevented the company from instituting such proceedings. On record is a letter from the first and second respondents’ South African legal practitioners threatening to institute proceedings on their behalf.</p> <p> </p> <p>Whether or not the first respondent attempted to call for a meeting with the third respondent is a question of fact which must be proved by evidence. In this case, it was not proved that an attempt was made. As a result, it was not established that the second respondent was actively prevented by the third appellant from instituting the proceedings <em>a quo</em> in its own name.</p> <p> </p> <p>According to Gower L.C.M <em>Principles of Modern Company Law </em>pages 649-650, for derivative action to be justified:</p> <p>“It must be shown that the alleged wrongdoers control the company. <strong>The clearest way of doing this will be to show that both the directors and the general meeting have been invited to institute proceedings in the name of the company and have refused to do so, and that the refusal was because of the votes cast by the wrongdoers</strong>. However, the <strong>English cases recognise that there is no point in formally asking the directors to institute the proceedings if they are to be the defendants, and that it is not necessary to convene a general meeting and to invite it to resolve upon proceedings in the company’s name, provided that the court can be satisfied <em>aliunde</em> that the wrongdoers are in effective control.”</strong> (emphasis added)</p> <p>         </p> <p> </p> <p>It is therefore clear that derivative action can be relied on in two circumstances. In the first situation, it must be proved that a meeting was called for the shareholders to pass a resolution for the company to institute proceedings. In the event that the other shareholders refused or prevented the meeting from taking place, the other shareholders can rely on derivative action to institute action on behalf of the company. However, this is not what happened in this case. No attempt was made by the shareholders of Mbada Diamonds to convene a meeting to pass a resolution for the company to institute the proceedings.</p> <p> </p> <p>The court <em>a quo</em>, conscious of there being no such evidence, at pages 12 to 13 of its judgment, said:</p> <p>“In<em> casu, </em>the position of the American courts, as stated by Gower above, seemed to have been Mr Hashiti’s point. He submitted that in the absence of an invitation by Grandwell to Marange for a meeting to pass a resolution to sue in the name of Mbada; that in the absence of evidence that such an invitation had been turned down; that coupled with Werksmans’ letter aforesaid, and Luciyano’s affidavit, it could not be said Mbada had been unable to bring the urgent chamber application by itself and that therefore the derivative action was not available to Grandwell.”</p> <p> </p> <p><strong>I recognise the force of the respondent’s argument. But in my view, the position of the English courts seems to accord more with notions of justice and the spirit of the derivative action. The law must not be rendered impotent. </strong>In <em>casu</em>, the Minister moved with exceeding speed. For six or seven years’ operations at Chiadzwa had gone on unhindered. But on 22 February 2016, in one fell swoop, things were turned upside down. Mining was abruptly terminated; Mbada’s personnel were forcibly expelled from site; inadequate security had exposed the precious diamonds, the expensive equipment, personal belongings, and more to destruction and theft. The situation was one of dire emergency. Werksmans letter of demand of 23 February 2016, sent by email, had been ignored. There had been no let-up in the looting, forcing Grandwell, four days later, to run to the law.</p> <p> </p> <p>Marange itself had already passed a resolution to adopt the Minister’s plans for the consolidation of diamond mining companies, including Mbada into one single entity without agreement with Grandwell, its co-shareholder. This was in spite of the outstanding details Grandwell had requested on the proposed scheme. <strong>Further, the evidence showed that it was officials from Mbada, as the Minister’s representatives, with the assistance of the police, who had executed the Minister’s directives.</strong></p> <p> </p> <p><strong>In my view, the spirit of the derivative action, being an exception to the rule in Foss v Harbottle, is that</strong> “—<strong>the claims of justice would be found superior to any difficulties arising out of technical rules respecting the mode in which corporations are required to sue.”</strong></p> <p> </p> <p>These are the reasons which swayed the court <em>a quo</em> to allow derivative action by Grandwell (the first respondent).</p> <p> </p> <p>The second situation, which basically reflects the English position, is that if it is proved that calling a meeting was an exercise in futility, the other shareholder can institute proceedings on behalf of the company without seeking a resolution that the company institute the proceedings. For the shareholder who seeks to rely on derivative action to rely on this option, the court must be satisfied that the majority shareholders or equal shareholders, who are the wrongdoers and would not want the company to institute proceedings, are in effective control. The second respondent is owned by the first respondent and the third appellant in equal shares of 50 percent each. This means, if a meeting was to be called to pass a resolution for the company to sue and one shareholder votes against such a resolution, the company could not sue in its own name. It can also be established that the other shareholder was in effective negative control.</p> <p> </p> <p>According to evidence on record Marange Resources was chaired by the Secretary of Mines who authored the letter of 22 February 2016. The same Secretary also chaired the second and fourth appellants. The special grants which enabled Mbada to mine belonged to Marange Resources which is wholly owned by the second appellant. The Zimbabwe Consolidated Diamond Company, fourth appellant, which was to replace Mbada Diamonds and other diamond mining companies into mere 50 percent shareholders, is chaired by the Secretary of Mines. The Secretary’s office was responsible for crafting Government policy. It was responsible for the granting of special grants. It also was entitled to make definitive orders on mining operations as it did on 22 February 2016. In view of the above there is no doubt that, in spite of formal equality as between the two shareholders, power and control were on Marange Resources’ side. The Secretary’s word was administratively final.     </p> <p> </p> <p>It was also established and proved that the third appellant as the other shareholder opposed the application. That alone made it pointless to call for a meeting to resolve that the company institute application proceedings which the other equal shareholder was opposing. There was clearly no chance that such a resolution could be passed. Therefore, derivative action was justified, because it would have been futile to call for a meeting to resolve that the company should sue in its own name. Marange Resources would clearly not have agreed that Mbada Diamonds should apply for an order against its own chairman and the Minister’s decisions and conduct.</p> <p> </p> <p>In this case the first respondent relied on an assumption that the third appellant would have made it impossible for the resolution to be passed.  That assumption is supported by sufficient evidence that it would have been futile to call for a meeting to resolve that Mbada Diamonds should make the application. The futility was clearly explained by the court <em>a quo.</em> It entitled the first respondent to rely on derivative action. There was proof that the third appellant was fully entangled to the will of its chairman and the other appellant companies he chaired. There was therefore evidence <em>aliunde</em> that it was impossible for the second respondent to institute spoliation proceedings in its own name.</p> <p>    </p> <p>It is clear that the right to institute proceedings using derivative action is meant to remedy wrongdoing against a company by its directors or majority or equal shareholders. In this case, the court <em>a quo</em> correctly relied on the futility of expecting the first respondent to call for a meeting to resolve that the company should sue the appellants for spoliation as the other equal shareholder’s position on the application was known. It was opposing the application. It clearly would not have supported a resolution for the company to make an application it was opposing. The first respondent was therefore entitled to rely on derivative action to sue on behalf of the second respondent.</p> <p> </p> <p> </p> <p><strong>GUVAVA JA</strong>:                I fully concur with UCHENA JA’s assessment of the facts leading up to the institution of the proceedings <em>a quo</em> and his conclusion on the first respondent’s entitlement to sue by way of derivative action on behalf of the second respondent. Once it has been found that the first respondent had <em>locus standi</em> to bring the application then the second issue must be determined.</p> <p> </p> <p><strong>Whether or not the appellants despoiled the second respondent</strong>.</p> <p>In my view, the facts of this case disclose a classic text book case of spoliation. In the case of <em>Botha &amp; Anor v Barrett</em> 1996 (2) ZLR 73 (S) GUBBAY CJ stated as follows at p 79 D-E:</p> <p>“It is clear law that in order to obtain a spoliation order two allegations must be made and proved. These are:</p> <p>That the applicant was in peaceful and undisturbed possession of the property; and,</p> <p>That the respondent deprived him of the possession forcibly or wrongfully against his consent.”</p> <p> </p> <p> </p> <p>In order to make a determination of whether or not the second respondent was despoiled it is necessary to prove the two factors stated above.</p> <p> </p> <p>I propose to deal with each factor in turn.</p> <p> </p> <ul><li>Whether or not the second respondent was in peaceful possession.</li> </ul><p>It was submitted, firstly, by the appellants that the second respondent was not in peaceful possession as the special grants entitling it to mine had expired. The appellants’ argument was that, since the possession was unlawful, it could not be peaceful.</p> <p> </p> <p>It has been stated in a number of cases that issues of rights are irrelevant in spoliation proceedings. In <em>Yeko v Oana </em>1973 (4) SA 735 (AD) at 739 G it was stated that:</p> <p>“The fundamental principle of the remedy is that no one is allowed to take the law into his own hands. All that the spoliata has to prove, is possession of a kind which warrants the protection accorded by the remedy, and that he was unlawfully ousted.”</p> <p> </p> <p> </p> <p>In the case of <em>Chisveto v Minister of Local Government and Town Planning </em>1984 (1) ZLR 248 (H) the court remarked:</p> <p>“Lawfulness of possession does not enter into it. The purpose of the <em>mandamus van spolie</em> is to preserve law and order and to discourage persons from taking the law into their own hands. To give effect to these principles, it is necessary for the status <em>quo ante </em>to be restored until such time as a competent court of law assess the relative merits of the claims by each party…  In fact, the classic generalisation is sometimes made that in respect of spoliation actions even a robber or thief is entitled to be restored possession of the stolen property.”</p> <p> </p> <p> </p> <p>It is apparent from the facts of this case that the first respondent, being a 50 per cent shareholder of the second respondent, was in possession of the mining fields through the second respondent. Possession in legal terms depicts both the mental and physical elements. It is not in dispute that the second respondent was in physical possession of the mining fields at the relevant time and was carrying out mining operations.</p> <p> </p> <p>Secondly, the appellants also alleged that there was no evidence on the record that the appellants had committed the acts complained of. The first appellant stated that the mere fact that he had called a press conference and stated that the possession of the respondents was unlawful does not in itself amount to spoliation. In any event he argues that he was not at the scene nor was any evidence given to link him to the persons who had despoiled the respondents.</p> <p> </p> <p>It is not in dispute that agents of the State descended on the Mine premises on 22 February 2016. It was alleged in the founding affidavit that ZMDC and Marange were the implementing agents of the scheme which culminated in Mbada Diamonds being removed from the mining site. The evidence given by the second respondent clearly stated that the armed police were hired by the first to fourth appellants.</p> <p> </p> <p>In my view it would be an absurdity to find that the police and the other officials would have acted in the manner they did without the authorisation and knowledge of the first appellant. The acts complained of were carried out immediately after the delivery of the letter from the permanent secretary of the first appellant stating that the special grants had expired. This was immediately followed by the press conference held by the first appellant reiterating that position and giving the second respondent notice to vacate the mining claims. It seems to me that the facts, as set out, establish that the first appellant was primarily instrumental in the removal of the second respondent from the mining site.</p> <p>   </p> <p>I am satisfied that the court <em>a quo</em> correctly found that the second respondent was in peaceful possession before the appellants acted in common purpose in removing the second respondent from its peaceful possession of the mining site.</p> <p> </p> <ul><li>Whether or not the second respondent was forcibly and wrongfully deprived of possession</li> </ul><p>It is not in dispute that on 22 February 2016, after the press conference by the first appellant, armed police and officials from the Ministry of Mines moved onto the mining site which was being operated by second respondent and forcibly shut down its operations. The security team of second respondent was disabled and its employees were evicted from both their work stations and their on-site accommodation. These actions were conducted without a court order.</p> <p> </p> <p>All Mbada Diamonds employees were rounded up and their communication with the outside world was cut off. They were also subsequently forced off and barred from the mining site. The officials proceeded to switch off the machines and equipment which were in operation. The armed police officers remained on site and stopped employees from accessing the plant. Mbada employees were threatened with violence and were forced to leave the mine during the evening of the 23 February 2016. The third respondent, the Commissioner General of Police, confirmed that the police had acted in the manner complained of. In my view, in spite of the protestations of the third respondent, the police would not have acted in such a manner if they had not been called upon to do so by the appellants, who stood to benefit from the unlawful removal of the second respondent.</p> <p> </p> <p>There is no doubt in my mind that these facts show that the second respondent was removed without its consent. The removal was unlawful as it was carried out without due process.</p> <p> </p> <p>The court <em>a quo</em> thus correctly found that the second respondent had been unlawfully removed without its consent.</p> <p> </p> <p>It seems to me that the factors which must be proved in order to grant spoliatory relief had been met and the court <em>a quo</em> was correct to grant the order as prayed.</p> <p> </p> <p> </p> <p><strong>PATEL JA:</strong>                    I have read the separate opinions rendered by UCHENA JA and GUVAVA JA on the two issues for determination in this matter. I fully endorse and concur with their respective conclusions for the following reasons.</p> <p> </p> <p>As regards the first issue, the question of <em>locus standi a quo</em>, the authorities cited above relate primarily to the situation where an aggrieved minority in a company seeks to represent it in a derivative action against an oppressive majority. <em>In casu</em>, the position is slightly different in that the situation to be addressed is that of one 50 per cent shareholder taking up cudgels as against the other equal shareholder. Neither holds a majority shareholding in the company but either is capable of frustrating the legitimate claims of the other by declining to participate in matters concerning the good governance and best interests of the company. It is in this sense that either shareholder can be said to be in effective negative control of the company. As is aptly reasoned by UCHENA JA, this scenario fully justifies the entitlement of either shareholder to proceed against the other by way of a derivative action in order to protect or vindicate its rights.</p> <p> </p> <p>As for the second issue revolving around the question of spoliation, I can do no more than adopt the succinct reasoning of GUVAVA JA. There can be no doubt that Mbada Diamonds was in peaceful and undisturbed possession of the mining location in question at the relevant time, irrespective of the continuing validity or otherwise of its special grants and notwithstanding the supposed expiry of its right to carry out mining operations in that location. It is equally indisputable that the appellants, acting in concert, contrived to abruptly and unceremoniously deprive Mbada Diamonds of its possession of the mining location, forcibly and wrongfully against its consent, through the agency of the Commissioner General of Police and his cohorts.</p> <p>In the result, both appeals in this matter must fail. It is accordingly ordered that the appeals herein be and are hereby dismissed with costs.</p> <p> </p> <p> </p> <p><strong>GUVAVA JA:</strong>                I agree.</p> <p> </p> <p><strong>UCHENA JA:</strong>                 I agree.</p> <p> </p> <p> </p> <p><em>Civil Division, Attorney-General’s Office,</em> appellant’s legal practitioners</p> <p> </p> <p><em>Sawyer &amp; Mkushi, </em>second, third and fourth appellants’ legal practitioners</p> <p> </p> <p><em>Scanlen &amp; Holderness, </em>first respondent’s legal practitioners</p></span></div></div> </div> </div> Mon, 06 Sep 2021 13:38:55 +0000 Anonymous 10071 at http://www.zimlii.org Bonnyview Estates (Private) Limited v Zimbabwe Platinum Mines (Private) Limited & Another (SC 58 of 2018, Civil Appeal 411 of 2017) [2018] ZWSC 58 (26 September 2018); http://www.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/58 <span class="field field--name-title field--type-string field--label-hidden">Bonnyview Estates (Private) Limited v Zimbabwe Platinum Mines (Private) Limited &amp; Another (SC 58 of 2018, Civil Appeal 411 of 2017) [2018] ZWSC 58 (26 September 2018);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2083" hreflang="x-default">APPEAL</a></div> <div class="field__item"><a href="/taxonomy/term/1574" hreflang="en">Condonation</a></div> <div class="field__item"><a href="/taxonomy/term/2030" hreflang="en">Land</a></div> <div class="field__item"><a href="/taxonomy/term/2345" hreflang="x-default">Acquisition of land</a></div> <div class="field__item"><a href="/taxonomy/term/2141" hreflang="x-default">PRACTICE AND PROCEDURE</a></div> <div class="field__item"><a href="/taxonomy/term/2323" hreflang="x-default">Application (PRACTICE AND PROCEDURE)</a></div> <div class="field__item"><a href="/taxonomy/term/2324" hreflang="x-default">chamber application</a></div> <div class="field__item"><a href="/taxonomy/term/2215" hreflang="x-default">PROPERTY AND REAL RIGHTS</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:38</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/58/2018-zwsc-58.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=31394">2018-zwsc-58.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/58/2018-zwsc-58.pdf" type="application/pdf; length=177749">2018-zwsc-58.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p><strong>DISTRIBUTABLE</strong><strong>        (52)</strong>                                                                                    </p> <p> </p> <p> </p> <p><strong>BONNYVIEW  ESTATES  (PRIVATE)  LIMITED</strong></p> <p><strong>v</strong></p> <p><strong>(1)    ZIMBABWE  PLATINUM  MINES  (PRIVATE)  LIMITED   (2)    THE MINISTRY OF  LANDS  AND  RURAL  RESETTLEMENT</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>MAKARAU JA, </strong></p> <p><strong>HARARE, JULY 19, 2018 &amp; SEPTEMBER 26, 2018.</strong></p> <p> </p> <p> </p> <p> </p> <p><em>F Chinwadzimba</em> for the applicant</p> <p><em>D Muchada</em> for the first respondent</p> <p>Second respondent in default.</p> <p> </p> <p> </p> <p><strong>IN CHAMBERS </strong></p> <p> </p> <p> </p> <p> </p> <p><strong>MAKARAU JA</strong>:-           This is a chamber application for condonation for the late filing of an appeal and extension of time within which to note an appeal in terms of r 31(3) of the Supreme Court Rules, 1964.</p> <p> </p> <p>The facts giving rise to this application are common cause.</p> <p> </p> <p>On 21 June 2017, the High Court dismissed with costs an application filed by the applicant, seeking an order declaring that the applicant was entitled to all benefits deriving from the first respondent’s occupation of a section of a farm known as Bulfield Farm, over which it had passed a servitude in favour of the first respondent. On 12 July 2017, the applicant duly noted an appeal against the decision. Whilst it filed the notice of appeal within the prescribed period, the appellant failed to serve a copy of the notice of appeal on the Registrar of the High Court within the period, thereby rendering the notice out of time and fatally defective. The applicant then filed this application seeking condonation for the late filing of the notice of appeal.</p> <p> </p> <p>The period of delay in serving the Registrar of the High Court with the notice of appeal was one day. The delay between the date the applicant became aware of the defect in the notice of appeal and the filing of the present application is ten months.</p> <p> </p> <p>In the draft notice of appeal attached to this application, the applicant raises one ground of appeal as follows:</p> <p>“The court <em>a quo</em> erred and misdirected itself at law in finding that the appellant did not</p> <p> have <em>locus standi in judico</em> to institute action seeking the relief it sought against 1st  </p> <p>respondent arising out of a purported compulsory acquisition of portion of Bulfield Farm</p> <p>by 2nd respondent, which portion of Bulfield Farm was the subject of a notarial deed</p> <p>of servitude registered in favour of the 1st respondent on 11th July 1995.”</p> <p> </p> <p> </p> <p>The application for condonation and extension of time within which to note an appeal was not opposed. At the hearing of the matter, counsel for the first respondent indicated that he was content to have the application granted as he was confident that he would have his day in court when the appeal was argued.</p> <p> </p> <p>Notwithstanding the consent of the first respondent to the order sought, I am not persuaded to grant this application.</p> <p> </p> <p>Condonation is an indulgence granted when the court is satisfied that there is good and sufficient cause for condoning the non- compliance with the Rules. Good and sufficient cause is established by considering cumulatively, the extent of the delay, the explanation for that delay and the strength of the applicant’s case on appeal, or the prospects of its success. This is trite.</p> <p> </p> <p>In <em>casu</em>, as stated above, the delay that resulted in the notice of appeal being out of time was negligible. It was a delay of one day.  However, the delay between the dates when the applicant realised its failure to serve the notice of appeal on time and the date of this application, being some ten months, was not only inordinate but was neither adverted to nor explained in the application. In the interests of allowing access to justice, I may have been inclined to overlook the delay if the applicant had some prospects of success on appeal. It is the absence of any prospect of success on appeal in this case, that has moved me to deny this application.</p> <p> </p> <p>The applicant has raised the ground of appeal that I have set out in full above. This is not a ground of appeal that can be properly raised in this matter.</p> <p> </p> <p>             The applicant was the owner of the land in question, holding a deed of transfer in respect of the land. In that capacity, it passed a servitude in favour of the respondent’s predecessor in title over part of the land in 1995 and in respect of which it was paid the sum of $4 million. In addition to the rights granted to it under the servitude, the respondent also concluded a lease agreement with the applicant in respect of the property.  In 2000, the farm was compulsorily acquired under the Land Acquisition Act [<em>Chapter 20.10</em>].  The lease agreement between the parties expired by effluxion of time but the respondent remained in occupation of the land. It refused to renew the lease agreement on the basis that the land had been acquired by the State and the applicant has lost all title to it.</p> <p> </p> <p>Before the court <em>a quo</em>, the applicant conceded that the land over which it had passed a servitude in favour of the respondent’s predecessor was compulsorily acquired by the State.</p> <p> </p> <p>In cannot be disputed that acquisition of the land by the State necessarily meant the extinction of rights in the land held by the applicant as owner and the consequent loss of <em>locus standi</em> on its part to bring any action based on the extinguished rights, which was the <em>ratio decidendi</em> of the court <em>a quo’s</em> decision. The correctness of this finding is beyond reproach.  To its credit, the applicant does not seek to challenge it on appeal. Instead and incorrectly so, the applicant seeks to challenge the correctness or otherwise of the acquisition of the land itself by the second respondent on behalf of the State. It argued that it intends on appeal, to raise the constitutionality or otherwise of the acquisition of its land by the State as the land in dispute is not agricultural.</p> <p> </p> <p>With respect, this issue was not before the court <em>a quo</em> and therefore cannot be an issue on appeal.  It is clearly an incompetent ground of appeal in the matter.  An incompetent ground of appeal cannot be raised or sustained on appeal and it therefore does not and cannot enjoy any prospects of success on appeal. A ground of appeal that enjoys prospects of success on appeal is one that if successfully argued on appeal will result in the setting aside of the decision appealed against. An improperly raised ground of appeal cannot be argued on appeal and will thus have no effect on the judgment appealed against.</p> <p> </p> <p>I am fortified in my decision to deny this application by the concession by both parties in the hearing before me that the point sought to be raised by the sole ground of appeal was not raised <em>a quo</em>. It is therefore a novel point, calling not only for fresh arguments but for a fresh determination on appeal. This Court is loath to assume the jurisdiction of the lower court and pronounce at first instance on issues that were not canvassed and fully argued before the court <em>a quo</em>. (See <em>ANZ Grindlays Bank (Zim) (Private) Limited v Hungwe</em> 1994 (2) ZLR 1 (S)).</p> <p> </p> <p>I have considered whether or not the applicant is entitled to raise this point for the first time on appeal as a point of law. It is not. Two principles stand in its way. Firstly, this is the sole ground of appeal that it intends to raise. It is not additional to any other valid ground of appeal. As it is an incompetent ground of appeal it cannot be the basis of any valid appeal before this Court.  Secondly, the point that the applicant seeks to argue for the first time on appeal does not arise from the pleadings that were before the court <em>a quo</em>.  The constitutionality or otherwise of the acquisition of the land was not challenged before the court <em>a quo</em>. (See <em>Austerlands (Pvt) Ltd &amp; Anor v Trade and Investment Bank Limited</em> SC 92/05).</p> <p> </p> <p>On the basis of the foregoing, I remain of the firm view that this application cannot succeed. </p> <p> </p> <p>Regarding costs, the respondent was willing to have this application granted with no order as to costs in its favour. During the hearing, when I expressed my reservations on the propriety of its concession, it did not change its position regarding costs. Accordingly, I will make no order as to costs.</p> <p> </p> <p>In the result, I make the following order:</p> <p>The application is dismissed with costs.</p> <p> </p> <p>                       </p> <p> </p> <p> </p> <p> </p> <p><em>Venturas &amp; Samkange</em>, applicant’s legal practitioners.</p> <p><em>Dube, Manikai &amp; Hwacha</em>, 1st respondent’s Legal Practitioners.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-1fb0ff11806b07b16712c4a185b000047303129fb287f40568f97d3dab190ee0"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p><strong>DISTRIBUTABLE</strong><strong>        (52)</strong>                                                                                    </p> <p> </p> <p> </p> <p><strong>BONNYVIEW  ESTATES  (PRIVATE)  LIMITED</strong></p> <p><strong>v</strong></p> <p><strong>(1)    ZIMBABWE  PLATINUM  MINES  (PRIVATE)  LIMITED   (2)    THE MINISTRY OF  LANDS  AND  RURAL  RESETTLEMENT</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>MAKARAU JA, </strong></p> <p><strong>HARARE, JULY 19, 2018 &amp; SEPTEMBER 26, 2018.</strong></p> <p> </p> <p> </p> <p> </p> <p><em>F Chinwadzimba</em> for the applicant</p> <p><em>D Muchada</em> for the first respondent</p> <p>Second respondent in default.</p> <p> </p> <p> </p> <p><strong>IN CHAMBERS </strong></p> <p> </p> <p> </p> <p> </p> <p><strong>MAKARAU JA</strong>:-           This is a chamber application for condonation for the late filing of an appeal and extension of time within which to note an appeal in terms of r 31(3) of the Supreme Court Rules, 1964.</p> <p> </p> <p>The facts giving rise to this application are common cause.</p> <p> </p> <p>On 21 June 2017, the High Court dismissed with costs an application filed by the applicant, seeking an order declaring that the applicant was entitled to all benefits deriving from the first respondent’s occupation of a section of a farm known as Bulfield Farm, over which it had passed a servitude in favour of the first respondent. On 12 July 2017, the applicant duly noted an appeal against the decision. Whilst it filed the notice of appeal within the prescribed period, the appellant failed to serve a copy of the notice of appeal on the Registrar of the High Court within the period, thereby rendering the notice out of time and fatally defective. The applicant then filed this application seeking condonation for the late filing of the notice of appeal.</p> <p> </p> <p>The period of delay in serving the Registrar of the High Court with the notice of appeal was one day. The delay between the date the applicant became aware of the defect in the notice of appeal and the filing of the present application is ten months.</p> <p> </p> <p>In the draft notice of appeal attached to this application, the applicant raises one ground of appeal as follows:</p> <p>“The court <em>a quo</em> erred and misdirected itself at law in finding that the appellant did not</p> <p> have <em>locus standi in judico</em> to institute action seeking the relief it sought against 1st  </p> <p>respondent arising out of a purported compulsory acquisition of portion of Bulfield Farm</p> <p>by 2nd respondent, which portion of Bulfield Farm was the subject of a notarial deed</p> <p>of servitude registered in favour of the 1st respondent on 11th July 1995.”</p> <p> </p> <p> </p> <p>The application for condonation and extension of time within which to note an appeal was not opposed. At the hearing of the matter, counsel for the first respondent indicated that he was content to have the application granted as he was confident that he would have his day in court when the appeal was argued.</p> <p> </p> <p>Notwithstanding the consent of the first respondent to the order sought, I am not persuaded to grant this application.</p> <p> </p> <p>Condonation is an indulgence granted when the court is satisfied that there is good and sufficient cause for condoning the non- compliance with the Rules. Good and sufficient cause is established by considering cumulatively, the extent of the delay, the explanation for that delay and the strength of the applicant’s case on appeal, or the prospects of its success. This is trite.</p> <p> </p> <p>In <em>casu</em>, as stated above, the delay that resulted in the notice of appeal being out of time was negligible. It was a delay of one day.  However, the delay between the dates when the applicant realised its failure to serve the notice of appeal on time and the date of this application, being some ten months, was not only inordinate but was neither adverted to nor explained in the application. In the interests of allowing access to justice, I may have been inclined to overlook the delay if the applicant had some prospects of success on appeal. It is the absence of any prospect of success on appeal in this case, that has moved me to deny this application.</p> <p> </p> <p>The applicant has raised the ground of appeal that I have set out in full above. This is not a ground of appeal that can be properly raised in this matter.</p> <p> </p> <p>             The applicant was the owner of the land in question, holding a deed of transfer in respect of the land. In that capacity, it passed a servitude in favour of the respondent’s predecessor in title over part of the land in 1995 and in respect of which it was paid the sum of $4 million. In addition to the rights granted to it under the servitude, the respondent also concluded a lease agreement with the applicant in respect of the property.  In 2000, the farm was compulsorily acquired under the Land Acquisition Act [<em>Chapter 20.10</em>].  The lease agreement between the parties expired by effluxion of time but the respondent remained in occupation of the land. It refused to renew the lease agreement on the basis that the land had been acquired by the State and the applicant has lost all title to it.</p> <p> </p> <p>Before the court <em>a quo</em>, the applicant conceded that the land over which it had passed a servitude in favour of the respondent’s predecessor was compulsorily acquired by the State.</p> <p> </p> <p>In cannot be disputed that acquisition of the land by the State necessarily meant the extinction of rights in the land held by the applicant as owner and the consequent loss of <em>locus standi</em> on its part to bring any action based on the extinguished rights, which was the <em>ratio decidendi</em> of the court <em>a quo’s</em> decision. The correctness of this finding is beyond reproach.  To its credit, the applicant does not seek to challenge it on appeal. Instead and incorrectly so, the applicant seeks to challenge the correctness or otherwise of the acquisition of the land itself by the second respondent on behalf of the State. It argued that it intends on appeal, to raise the constitutionality or otherwise of the acquisition of its land by the State as the land in dispute is not agricultural.</p> <p> </p> <p>With respect, this issue was not before the court <em>a quo</em> and therefore cannot be an issue on appeal.  It is clearly an incompetent ground of appeal in the matter.  An incompetent ground of appeal cannot be raised or sustained on appeal and it therefore does not and cannot enjoy any prospects of success on appeal. A ground of appeal that enjoys prospects of success on appeal is one that if successfully argued on appeal will result in the setting aside of the decision appealed against. An improperly raised ground of appeal cannot be argued on appeal and will thus have no effect on the judgment appealed against.</p> <p> </p> <p>I am fortified in my decision to deny this application by the concession by both parties in the hearing before me that the point sought to be raised by the sole ground of appeal was not raised <em>a quo</em>. It is therefore a novel point, calling not only for fresh arguments but for a fresh determination on appeal. This Court is loath to assume the jurisdiction of the lower court and pronounce at first instance on issues that were not canvassed and fully argued before the court <em>a quo</em>. (See <em>ANZ Grindlays Bank (Zim) (Private) Limited v Hungwe</em> 1994 (2) ZLR 1 (S)).</p> <p> </p> <p>I have considered whether or not the applicant is entitled to raise this point for the first time on appeal as a point of law. It is not. Two principles stand in its way. Firstly, this is the sole ground of appeal that it intends to raise. It is not additional to any other valid ground of appeal. As it is an incompetent ground of appeal it cannot be the basis of any valid appeal before this Court.  Secondly, the point that the applicant seeks to argue for the first time on appeal does not arise from the pleadings that were before the court <em>a quo</em>.  The constitutionality or otherwise of the acquisition of the land was not challenged before the court <em>a quo</em>. (See <em>Austerlands (Pvt) Ltd &amp; Anor v Trade and Investment Bank Limited</em> SC 92/05).</p> <p> </p> <p>On the basis of the foregoing, I remain of the firm view that this application cannot succeed. </p> <p> </p> <p>Regarding costs, the respondent was willing to have this application granted with no order as to costs in its favour. During the hearing, when I expressed my reservations on the propriety of its concession, it did not change its position regarding costs. Accordingly, I will make no order as to costs.</p> <p> </p> <p>In the result, I make the following order:</p> <p>The application is dismissed with costs.</p> <p> </p> <p>                       </p> <p> </p> <p> </p> <p> </p> <p><em>Venturas &amp; Samkange</em>, applicant’s legal practitioners.</p> <p><em>Dube, Manikai &amp; Hwacha</em>, 1st respondent’s Legal Practitioners.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p></span></div></div> </div> </div> Mon, 06 Sep 2021 13:38:40 +0000 Anonymous 10064 at http://www.zimlii.org Sibanda & 2 Others v The Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) Inc (SC 49 of 2018, Civil Appeal SC 272 of 2015) [2018] ZWSC 49 (27 July 2018); http://www.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/49 <span class="field field--name-title field--type-string field--label-hidden">Sibanda &amp; 2 Others v The Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) Inc (SC 49 of 2018, Civil Appeal SC 272 of 2015) [2018] ZWSC 49 (27 July 2018);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2234" hreflang="x-default">CHURCH</a></div> <div class="field__item"><a href="/taxonomy/term/2235" hreflang="x-default">Dispute</a></div> <div class="field__item"><a href="/taxonomy/term/1939" hreflang="en">Property</a></div> <div class="field__item"><a href="/taxonomy/term/2141" hreflang="x-default">PRACTICE AND PROCEDURE</a></div> <div class="field__item"><a href="/taxonomy/term/1585" hreflang="en">Locus Standi</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:38</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-vnd-openxmlformats-officedocument-wordprocessingml-document file--x-office-document"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/49/2018-zwsc-49.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=54759">2018-zwsc-49.docx</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/49/2018-zwsc-49.pdf" type="application/pdf; length=212807">2018-zwsc-49.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p><strong>REPORTABLE</strong><strong>        (37)</strong></p> <p> </p> <ol><li> </li> </ol><p><strong>v</strong></p> <p><strong>THE     APOSTOLIC     FAITH     MISSION     OF     PORTLAND     OREGON      (SOUTHERN     AFRICAN     HEADQUARTERS)     INC.</strong></p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>BEFORE: GOWORA JA, HLATSHWAYO JA &amp; UCHENA AJA</strong></p> <p><strong>HARARE, 20 NOVEMBER, 2015 &amp; JULY 27, 2018</strong></p> <p> </p> <p> </p> <p><em>F. Girach, </em>for the appellants</p> <p><em>T. Mpofu </em>with<em> N. Chamisa, </em>for the respondent</p> <p> </p> <p> </p> <p><em>                        </em><strong>HLATSHWAYO JA: </strong>          This is an appeal against the whole judgment of the High Court of Zimbabwe dated 20 May 2015.</p> <p>The order sought to be impugned reads as follows:</p> <p>“IT IS DECLARED THAT,</p> <ol><li>1st, 2nd, 3rd and 4th Respondent are no longer members of Applicant and have lost all rights to fellowship under applicant or to make use of any of its properties or amenities as well as its name.</li> <li> </li> <li> </li> </ol><ol><li>LAND AND BUILDINGS</li> </ol><ol><li>Bulawayo: church at Stand 61000, Size Road, and adjacent stands for youth and women, Western Commonage No 6 Pelandaba;</li> <li>Stand 36E, 37E, 38E,39E,40E, 54E, 55E Bekezela Street, Pelandaba;</li> <li>House at No 16 Amantje Road, Four Winds, Bulawayo;</li> <li>Greengables Farm, the remaining extent of subsdivision B of Dunstaal, Khami;</li> <li>Plot 11 and 12, Shamrock Road, Gweru;</li> <li>Lower Gweru at Gwabada Farm and Ekukhanyeni Weaving Centre;</li> <li>Kwekwe: Stand no 383 Mbizo Township Church and residence, Amaveni tiownship church;</li> <li>Kadoma: Stand no 4 Bwanali Street, Rimuka Township church and mission residence;</li> <li>Chegutu: Stand 2134 Heroes Township Church and Mission residence at 550 Pfupajena Township;</li> <li>Masvingo stand 14 Mucheke Township, Masvingo;</li> <li>Mutare: Stand No 7 Machekaire Street, Dangamvura Township, Mutare;</li> <li>Buhera Murambinda Township Church stand;</li> <li>Nyanga: Church at Bonde Kraal;</li> <li>Mount Selinda: Chako Township Church Stand;</li> <li>Chinhoyi Stand 1159 Hunyani township Church and residence</li> <li>Mahororo Business Centre Church Hurungwe;</li> <li>Beitbridge Stand 2384 Dulibadzimu and residence at No 9;</li> <li>Victoria Falls: Stand 2647 Victoria Falls;</li> <li>Kariba: stand 1727 Nyamhunga Township;</li> <li>Chiredzi:51 Makaza Triangle, No 6 Nzimbe Township Trangle;</li> <li>Mwenezi: Sarahuru Township Church;</li> <li>Mutoko: Mutoko Business Centre, Church Stand;</li> <li>Pilgrims’ Progress restaurant Kadoma;</li> <li>Pilgrims’ Progress restaurant Gweru;</li> <li>Bindura: 19/34 Musvosve Street Stand at Chipadze Township and Trojan Mine;</li> <li>All motor vehicles and church assets under their control;</li> <li>Chipinda Church Stand; and</li> <li>Hwange: No 2 Glencoe Road, Railton, Hwange.</li> </ol><p> </p> <ol><li> </li> </ol><p> </p> <p> </p> <p> </p> <p>The background to this matter is clearly set out in the judgment of the court <em>a quo</em> and may be summarized as follows:</p> <p> </p> <p>The Apostolic Faith Mission of Portland, Oregon, is a church corporation of the State of Oregon, USA, which church was established in 1906 with its headquarters in Portland, Oregon, and is hereinafter referred to as the “mother or parent church”. It is headed by a Superintendent General. One of the mother/parent church’s premier goals is to disseminate biblical truth and evangelise the world.  In advancing this goal, the Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) was established in 1955 (hereinafter referred to as the “local church”).  The Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) is the respondent <em>in casu</em>.</p> <p> </p> <p>The mother church has other branches in a plethora of Southern Africa countries, <em>inter alia</em>, South Africa, Malawi and Angola. The local church is governed by a Constitution like any of the other branches of the mother church in Southern Africa. The first constitution of the respondent was promulgated in 1968 and then amended in 1985 and 1996. In terms of Article 1 of the respondent’s amended constitution, the respondent was established as a branch of the mother/parent church. The appellants sought to further amend the constitution in 2012 which purported amendment, however, was not endorsed by the mother church.  </p> <p> </p> <p>The first appellant was appointed Overseer of the respondent in 1985. It was during the stewardship of the first appellant that an issue arose concerning the existence of two choirs in the respondent’s church.  The pith of the dispute related to whether there was need for the choir to wear a uniform and dress in a particular manner. The mother church was informed of the dispute and it directed that both choirs be disbanded. The first appellant did not act in accordance with this direction from the mother church.  Rather, the first appellant wrote to the mother church indicating that he would consider withdrawing from the Board and from being an overseer if the issue of uniforms was not dealt with to his satisfaction.</p> <p> </p> <p>The director responsible for Africa, one Reverend Baltzell, visited the respondent with the intention of retiring the first appellant and appointing a replacement. Alive to this fact, the first appellant instituted legal action.  Subsequently, Darrel D. Lee, the Superintendent General, wrote to the first appellant communicating his removal from the position of Southern Africa Overseer with effect from 21 April, 2005, leaving him as an ordinary member of the church.</p> <p> </p> <p>Aggrieved by his removal, the first appellant instituted legal action which saw him obtaining a provisional order in terms of which he would remain overseer of the respondent. This provisional order was, however, subsequently discharged. The first appellant appealed against this judgment. The appeal, however, lapsed and was deemed dismissed.  On 7 February 2008, following an application made by the first appellant, the respondent’s removal was invalidated, unopposed, under case HC/1170/05 and the subsequent application for rescission was dismissed.</p> <p> </p> <p>The application <em>a quo</em> was however not premised on the previous removal of the first appellant.  The material events that led to the appealed judgment are set out hereunder, as outlined <em>a quo</em>:</p> <p>“In November 2011 the head of the parent church visited the country and the (first appellant) barred him from accessing the church branches and buildings for conducting services. This matter spilled into the courts again with the parties subsequently agreeing to resolve their differences outside the court.  In the same month, the first (appellant) issued summons for the eviction of pastors he did not agree with, from church premises. He appointed new pastors and replaced those he perceived to be siding with the parent church. This development culminated in further tensions in the church.  On 25 January 2012, the first (appellant) was suspended from membership of the church by the parent church.  The reason for this was that he had breached the cannons of the church and violated spiritual doctrines by continuing to litigate against the faithful and that he had failed to submit to the authority of the church in breach of the church’s constitution.  Further, that his conduct had led to the creation of disharmony within the church and that he had appropriated the church’s assets to his own use.  The other complaint was that he was effecting amendments to the constitution without authority”.</p> <p>  </p> <p> </p> <p>The letter of 25 January 2012 suspended the first appellant “immediately from all activities associated with the church” and stated further that “during the suspension and pending the finalization of investigations and any subsequent disciplinary hearing that might be conducted against you, you shall not set your feet (<em>sic</em>) at any of the church’s premises. You shall also not conduct any church service. You shall also be expected not to interfere with church members wherever located in Southern Africa ...” Against these charges, the first appellant instructed his legal practitioners to write to the head of the parent church. The contents of this letter dated 3 February 2012 read as follows:</p> <p>“Dear Sir</p> <p>RE APOSTOLIC FAITH MISSION OF PORTLAND AND OREGON UNITED STATES OF AMERICA VS REVEREND RICHARD SIBANDA AND APOSTOLIC FAITH MISSION OF PORTLAND PREGON (SOUTHERN AFRICAN HEADQUARTERS) AND THE BOARD OF TRUSTEES – CONSTITUTIONAL AMENDMENT</p> <p>We refer to the above matter and advise as you may well know that we are lawyers for the Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) Inc. And the Board of Trustees of same and of course Reverend Sibanda the Overseer of the Southern African Headquarters.;</p> <ol><li>The Southern African Headquarters is a legal person governed by its own constitution and we advise that the constitution was formed by the Board of Directors of Southern Africa duly convened and called for that purpose.</li> <li>The same constitution is subject to amendment by the same Board of Directors duly convened for that particular purpose.</li> <li>The historical relationship between Southern Africa and America was born out of historical issues of the refusal by the Colonial Government to accord indigenous people the right to preach the Gospel without external white missionaries. For the record, America and Southern Africa have a spiritual relationship; a look at the previous constitutions and your reference to the history of the church in Southern Africa will vindicate this position.</li> <li>In our view, a look at the Amendments is not only reasonable but logical and was inevitable and on p8 are the proposed trustees chosen by the people of Southern Africa. The choice is yours, to either understand the amendments and try to build on a great relationship with Southern Africa under an affiliate status or choose to listen to people who appear to be feeding you with false information. For your information the whole Board of Directors and the Board of Elders and the Brothers and Sisters in the faith in the greater Southern Africa are prepared to proceed with the amendments of the constitution.</li> <li>For the record, our clients collectively have decided that they will not accept the leadership from America. The Board of Directors, Elders and Church members have enough sense and intelligence to choose their own leadership. Finally the same God you serve is the same God they serve and He will give them guidance on succession issues.</li> </ol><p> </p> <p>May we have your response, if any, within seven days?”</p> <p> </p> <p> </p> <p>The episodes that followed after this letter are that the first appellant was called to a disciplinary hearing to respond to the charges preferred against him. The charges were, <em>inter alia,</em> that the first appellant had violated Articles VI and VII of the Respondent’s Constitution by deliberately refusing to submit to the authority of the parent/mother church and that the first appellant had violated the Constitution as read with doctrinal rules of the Apostolic Faith Church of Portland, Oregon (Southern Africa Headquarters) in that in or around December 2011, first appellant had elected to settle his personal disputes with church brethren in the High Court of Zimbabwe rather than as dictated by the Bible.</p> <p> </p> <p>The first appellant did not attend the disciplinary hearing to determine charges laid against him set for 22 March 2012. The hearing nevertheless went ahead and it was resolved that the first appellant’s suspension be “confirmed”.  Rev Onias Z. Gumbo was then appointed as Overseer in the place of the first appellant.  Undeterred by the suspension, the first appellant maintains that he is still the Overseer of the respondent. On 22 March 2014 the appellants issued summons against the superintendent of the parent church challenging the first appellant’s suspension and seeking nullification of Reverend Gumbo’s appointment and an order interdicting him from interfering with the church operations.  The parent church counterclaimed seeking a declaration of the lawfulness of the suspension and the interdiction of the appellants from acting as overseer and board of directors of the local church.  This action does not seem to have been pursued to finality, for reasons that are not clear from the record.  Instead, the respondent filed an application for a declaratory order in the court <em>a quo </em>essentially seeking the same relief as in the counterclaim. The terms of the order prayed for, which order was granted by the court <em>a quo</em>, have already been quoted above<em>.</em></p> <p> </p> <p>Aggrieved by that order, the appellants noted this appeal on the following grounds of appeal:</p> <p>“1.       The High Court erred in finding that the respondent, being a <em>universitas </em>with power to sue and be sued in its own name, could not secede from the Apostolic Faith Mission of Portland Oregon.</p> <ol><li>The High Court further erred in finding that the respondent had an interest in suing its overseer and its board of trustees, the Appellants, when the letter of the 3rd of February 2012 was written on behalf of the respondent, its leadership and its members.</li> <li>The High Court further misdirected itself in finding that the letter of the 3rd of February 2012 amounted to a resignation by the (appellants) from the (respondent) or a denunciation of the doctrine of the church.</li> <li>The High Court misdirected itself in finding that the (appellants) had shown conduct as to amount to sensation (<em>sic</em>) (secession?) when there was no evidence to that effect.</li> <li>The High Court misdirected itself in finding as it did that the (appellants) had adopted a new constitution for the applicant when in fact they had not proceeded with the proposed amendments.</li> <li>The High Court further erred in failing to find that the (respondent) church, through the overseer, the 1st (appellant), had the authority to appoint its own leadership, that is the board of trustees and therefore the communication that the applicant’s leadership would be appointed locally could not amount to denunciation of the American church.”</li> </ol><p> </p> <p> </p> <p> </p> <p>At the hearing of this matter additional grounds of appeal were moved and granted through an amendment as follows:</p> <ol><li>The learned judge in the court <em>a quo</em> erred in not finding that the respondent did not have the requisite capacity to bring the action in this matter and/or that it required the support of the church in Oregon, USA.</li> <li>The learned judge in the court <em>a quo</em> erred in not finding that the application was, in any event, fatally defective as the deponent to the founding papers was barred from representing respondent.</li> <li>The learned judge of the court <em>a quo</em> erred in finding that the first appellant ceased to be District Superintendent and ought to have found therefore that the application was a nullity.</li> </ol><p>The appellants then prayed for the setting aside of the judgment of the High Court and its substitution with an order dismissing the declaratory application with costs.</p> <p> </p> <p>The laxity and inattentiveness in drafting the notice of appeal by the appellants’ counsel has necessitated the insertion in brackets of the proper parties before this Court.  The appellants in their grounds of appeal cite the parties as if they are still before the High Court. The appeal should relate to “Appellants” and “Respondent” and not “Applicant” and “Respondents.”  This lack of attentiveness by legal practitioners is the kind of carelessness that should never manifest at this level of litigation.</p> <p> </p> <p>This Court therefore is seized with an appeal seeking to overturn a declaratory order granted a <em>quo</em>. From a close reading of the grounds of appeal, two questions call for determination and these are:</p> <ol><li>Whether the respondent had the requisite <em>locus standi</em> to sue?</li> <li>Whether the appellants had ceased to be members of the respondent?</li> </ol><p>The just mentioned questions shall be dealt with hereunder.</p> <p> </p> <p><em>Whether the respondent had the requisite locus standi to sue?</em></p> <p>The appellants contend that the respondent did not have the requisite <em>locus standi</em> to bring the application before the court <em>a quo</em>. The appellants point to Article VII of the respondent’s Constitution as the basis of the argument against respondent’s <em>locus standi</em> in the court <em>a quo</em>. Article VII of the respondent’s Constitution reads as follows:</p> <p>“The Government of the religious organisation shall be vested in the Board of Directors consisting of not less than three (3) or more than seven (7) members…”</p> <p> </p> <p> </p> <p>The appellants’ interpretation of Article VII of the respondent’s constitution is that it is only the Board of Directors that has <em>locus standi </em>to institute legal proceedings. The appellants further note that there is no provision in the respondent’s constitution that gives the local chapter/local church any direct right to institute legal proceedings. To buttress this argument, the appellants take the point that the degree of control exercised by the mother church over the local church shows that the proper applicant in the court a <em>quo</em> ought to have been the parent church.</p> <p> </p> <p>It is common cause that the respondent is an organisation clothed with legal personality. As a legal <em>persona</em>, the respondent has rights, duties and capacities independent of its own members. The respondent therefore has a right to sue and be sued in its own name. This right however cannot be exercised in instances where the respondent has no substantial interest in the matter. In other words, the respondent as a legal person need to have <em>locus standi</em> in order to be afforded audience in a court of law. It is trite that <em>locus standi</em> is the capacity of a party to bring a matter before a court of law. The law is clear on the point that to establish <em>locus standi</em>, a party must show a direct and substantial interest in the matter. See <em>United Watch &amp; Diamond Company (Pty) Ltd &amp; Ors v Disa Hotels Ltd &amp; Anor</em> 1972 (4) SA 409 (c) at 415 A-C and <em>Matambanadzo v Goven</em> SC 23-04.</p> <p> </p> <p><em>In</em> <em>casu</em>, it is common cause that the respondent is a branch of the parent church.  However, the respondent is endowed with powers to sue and be sued in its own name. It is further common cause that the respondent is under the leadership appointed by the parent church. The constitution of the respondent is approved by the mother church. The first appellant has been in control of the respondent’s assets on the basis of being an overseer appointed by the mother church. The main allegation a <em>quo</em> was that the appellants were no longer members of the respondent and hence should cease to control the assets of the respondent.</p> <p> </p> <p>The respondent as a branch of the mother church had an unfettered direct interest in the matter in that the first appellant purported to act on the respondent’s behalf when he was on suspension.  The first appellant had been divested of the power to act on behalf of the respondent. It is common cause that the first appellant was on suspension when he caused the letter of 3 February 2012 to be drafted. He purported to communicate to the mother church an incorrect position that the respondent was also the author of the letter in question. The respondent who had not authored the letter in question surely has a direct interest in a matter where its previous leader purports to act on its behalf without its authority.  Therefore, the respondent’s <em>locus standi </em>in the court a <em>quo </em>cannot be gainsaid.</p> <p> </p> <p>In too many church or voluntary association-related disputes, the parties attempt to abuse the issue of <em>locus standi</em> in order to outwit each other and avoid the merits of the matter being adjudicated upon or even to completely frustrate any legal resolution of the matter.  It is high time that the court, as it has done <em>in</em> <em>casu</em>, takes a robust approach and leans in favour of finding that <em>locus standi</em> exists and proceeds to judicially determine the issues.  A party who is suspended from an organisation must in the first place legally confront such suspension instead of resorting to the devious ruse of challenging the <em>locus standi</em> of such organisation or any person appointed in their stead, in order to escape judicial scrutiny of their conduct.</p> <p> </p> <p><em>Whether the appellants had ceased to be members of the respondent?</em></p> <p> The appellants contend that the letter of 3 February 2012 written by their legal practitioners to the mother church did not communicate their resignation from the mother church. Against this contention is a specific finding made by the court <em>a quo </em>that the first appellant had resigned from the respondent’s church. The contents of the letter have been quoted above.</p> <p> </p> <p>It must be noted that the letter was written on 3 February 2012, days after the suspension of the first appellant from the respondent’s church.  The first appellant had been suspended from the respondent’s church on 25 January 2012.  The terms of the suspension were <em>inter alia</em> that the first appellant was suspended immediately from all activities associated with the respondent church. It therefore follows that any activity that the first appellant purportedly did on behalf of the church after his suspension was null and void.  As long as the suspension was still in force, any purported act by the first appellant on behalf of the respondent was of no effect.</p> <p> </p> <p>The letter in question was written by the law firm, Cheda and Partners, on the instructions of the first appellant who had been suspended from the respondent church. The author of the letter at law is undoubtedly the first appellant.  It is worth observing that the legal practitioners who wrote the letter in question state that they are lawyers for the respondent, the first appellant and the Board of Trustees of the respondent.  In this letter, the first appellant sought to act on behalf of the respondent as noted from the cited parties. The contents of the letter therefore <em>prima facie</em> reflects that the first appellant was representing the respondent. This could not be possible as the first appellant had been suspended by the respondent.</p> <p> </p> <p>Be that as it may, the pertinent question that this Court is seized with is whether the letter communicates a resignation by the appellants from the respondent’ church. In the event that this Court is to find that it communicates a resignation, does it then follow that the appellants are no longer members of the respondent despite the absence of dismissal of the appellants by the respondent.</p> <p> </p> <p>It is also worth noting the letter in question contains very strong doctrinal issues.  Is it a form of schism, a declaration of independence from the parent church? In the case of <em>Independent African Church v Maheya</em> 1998(1) ZLR 552(H), DEVITTIE J reflects on the historical schisms generated by the passion of church conflicts, thus:</p> <p>Even at birth, the Christian Church experienced a great schism…It came about when a convert of the early church, Paul, adapted Ch ristianity to meet the needs of all mankind and freed it from the local and national parameters…</p> <p>Another schism which took place in early times was the Reformation.  The growth of national consciousness in medieval times in part motivated the great conflict the Catholic Church and Protestantism.  The spirit of nationalism could not accommodate the claims of the papacy, a non-national authority, to moral dictatorship.  This schism has raged for centuries and continues to this day…</p> <p>In like vein, the spirit of freedom radiated by the advent of democratic government in Zimbabwe in 1980 precipitated a rapid growth of independent churches in Zimbabwe. I use the word “independent” to denote churches with no association or affiliation to the established churches.”p.553</p> <p>           </p> <p> </p> <p>However, before the ink was dry on the above judgment, the schism had spread to local branches of established churches and the relationship between the parent churches and their local branches is currently undergoing serious strains as the present case clearly demonstrates.  The relationship between the metropole-based parent churches and their peripheral local branches that was forged under brutal colonial conquest and tenuously survived the bitter struggles of independence must now respond to the democratic dispensation demands and not wish away the tensions as mere ruses of charlatans and greedy leaders of the poor peripheral congregations.</p> <p> </p> <p>But how are the church property disputes to be resolved.  The <em>Maheya</em> case provides some useful indications.  Quoting several USA Supreme court cases, the learned judge in that case teases out a number of useful principles.  From the case of <em>Watson v Jones</em> 80 US (13 Wall) 679 (1871), the following principles emerge:</p> <p>“The Federal Courts are competent to enforce express terms contained in trust instruments governing the use of ownership of property.<em>However, courts may not resolve or inquire into matters of religious doctrine in order to determine entitlement to property</em>.” (emphasis added)</p> <p> </p> <p> </p> <p> </p> <p>                        In the case of <em>Presbyterian Church in the United States v Mary Elizabeth Hulle Memorial Presbyterian Church</em> 393 US 440 (1969), the Supreme Court held:</p> <p>“…there are <em>neutral principles of law</em>, developed for use in all property disputes, which can be applied without `establishing’ churches to which property is awarded.  But First Amendment values are plainly jeopardised when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice.” (emphasis added)</p> <p> </p> <p> </p> <p> </p> <p>In <em>Jones v Woolf</em> 443 US 595 (1979), the “neutral principles” approach was supported by the Supreme Court, thus: </p> <p>“This method relies exclusively on objective, well established concepts of trust and property law and formulae familiar to lawyers and judges.  It thereby promises to free civil courts completely from the entanglement of religious doctrine, policy and practice.”</p> <p> </p> <p> </p> <p> </p> <p>Thus, the principles developed in the USA for resolution of church property disputes which may be applied with much benefit in our jurisdiction may be summarized as follows:</p> <ol><li>Civil Courts will enforce express terms governing the use and ownership of property contained in church documents, such as constitutions, trust instruments, canons, etc.</li> <li>Civil Courts may not resolve or inquire into matters of religious doctrine in order to determine entitlement to property.</li> <li>Civil Courts may apply <em>neutral principles of law</em>, which are objective, well established concepts of trust and property law and formulae familiar to lawyers and judges and avoid entanglement in religious doctrinal issues, policy and practice whether pertaining to the ritual of liturgy of worship or the tenets of faith.</li> </ol><p> </p> <p>Applying the above principles to the facts of this matter:</p> <ul><li>In resolving church property disputes, it is improper to get entangled in the doctrinal issues as the court <em>a quo</em>, in my view, unfortunately did.The question of choir uniforms and how they are to be worn, whether the appellants exhibited behaviour amounting to schism or denounced the founding principles of respondent or their propensity to seek legal redress in disputes with congregants contrary to Biblical teachings are all doctrinal issues that cannot be the bases of resolving the property dispute. The exceptional circumstances in the case of <em>Church of the Province of Central Africa Ltd &amp; Anor v Diocesan Trustees for the Diocese of Harare</em> SC 48/12 (hereinafter the “CPCA case”) are distinguishable from the current one.In the <em>CPCA</em> case, <em>supra, </em>people who had been members of the board of trustees for the church but <em>withdrew their membership from the church and formed a new church organization</em> were held to have resigned from their offices thereby losing the right to control the original church’s property such as buildings, houses, schools, motor vehicles and funds in banks. In this regard, MALABA JA (as he then was) had this to say in the <em>CPCA</em> case:</li> </ul><p>“The court does not discuss the truth or reasonableness of any of the doctrines of the religious group.It does not decide whether any of the doctrines are or are not based on a just interpretation of the language of the Holy Scriptures.While the court does not take notice of religious opinions with a view to deciding whether they are right or wrong, it might notice them as facts pointing to whether a person has withdrawn his or her membership from the church and should possess and control church property.”</p> <p> </p> <ul><li>This Court accepts as a correct statement of law made in <em>Independent African Church v Maheya</em> 1998(1) ZLR 552(H) at p 556E and relied upon in the <em>CPCA</em> case <em>supra</em> that disputes over ownership or possession and control of church property should be resolved, in the first instance, on the basis of the interpretation and application of the law of voluntary associations.Therefore, the constitution of a voluntary association and rules governing it can be relied upon in solving property disputes.This is in line with the first principle noted above that civil courts will enforce express terms governing the use and ownership of property contained in church documents, such as constitutions, trust instruments, canons, etc.</li> <li>Finally, the court may have resort to <em>neutral principles of law</em>, which are objective, well established concepts of trust and property law.In the present case, the question to answer is whether the first appellant, having been suspended from the respondent, and while that suspension subsists, can retain control of the property and assets of respondent?This issue can be resolved without the court entangling itself in doctrinal issues of whether questioning the relationship between the parent and local churches, the way the 1st appellant did, amounts to secession or schism or at what stage suggesting constitutional arrangements becomes rebellion against fundamental tenets of the faith and ceases to be a normal, albeit vigorous, democratic discourse? When can a church member be held to have so denounced the fundamental principles that lie at the heart of a church that he or she divests himself or herself from being a member of the respective church and becomes disentitled from access to its properties?The best answer is that it is a matter of opinion, a matter of degree and an issue of doctrinal intricacies that courts are ordinarily unfamiliar with. It was, therefore, a misdirection for the court below to base its decision on these doctrinal imponderables.</li> </ul><p> </p> <p>In <em>Jakazi &amp; Anor v Anglican Church of the Province of Central Africa</em> SC 10/13, this Court dealt with the issue of resignation as an objective fact. In communicating resignation, a party gives notice. The giving of notice is a unilateral act which needs no acceptance. Whether or not a party resigned is a question of fact. The sentiments of this court in the <em>CPCA</em> case are instructive with regard to resignation of church members:</p> <p>“Where the evidence shows that the individual exercised his/her right to terminate the relationship with the Church the resignation takes effect immediately the conduct is committed. This is so unless there is a special provision by virtue of which it takes effect upon acceptance by the person who is given the right to receive written notice and decide whether to accept the resignation or not. The law is clear.Whether it is under article 4 or 13 resignation is a unilateral act. Its validity does not depend upon acceptance by the person to whom it is directed.Acceptance determines when the resignation takes effect. In the final analysis it is for the court and not the individual concerned to decide whether his conduct amounts to resignation or not.”</p> <p> </p> <p> </p> <p> </p> <p>It must be emphasized that the ideal position is for voluntary associations to discipline their own members, either by dismissing or suspending them in terms of their set procedures.  In this case, the respondent conducted a disciplinary hearing against the first appellant for charges preferred against him. The disciplinary hearing proceeded in the absence of the first appellant despite his being properly served. At this disciplinary hearing, the decision to suspend the first appellant was “confirmed”.  What is baffling in this case is that the respondent or the mother church, despite having powers to dismiss the appellants, resolved to simply “confirm” or uphold the suspension of the first appellant. A declaration that the appellants are no longer members of the respondent was only sought in the court a <em>quo</em>.  Now, if the church itself, seized with the alleged doctrinal infractions of the first appellant at a disciplinary hearing, opts not to dismiss the appellant but rather to merely uphold the suspension, on what basis would a civil court of law, unschooled in the intricacies of doctrinal niceties, be expected to pronounce the first appellant no longer fit to maintain membership of the church?</p> <p> </p> <p>It is for the church to dismiss the appellants and not for this court to do so in its stead. The respondent is enjoined to take steps to terminate its relationship with a member who denounces its authority, and the civil court will give due deference to that decision in the absence of arbitrariness, bias or unreasonableness.  What was placed before the court was in fact a process upholding the first appellant’s suspension. Nothing shows that appellants were dismissed and therefore ceased to be members of the respondent. Suspension cannot by any stretch of imagination be a method of terminating a relationship between parties. The first appellant therefore remains suspended and not dismissed from the respondent.</p> <p> </p> <p>There is no record of the second, third and fourth appellants being charged with any misconduct let alone being suspended or dismissed from the respondent’s church. There is therefore no basis in my view to declare that the second, third and fourth appellants ceased to be members of the respondent. The court <em>a quo</em> erred in doing so.</p> <p> </p> <p>All in all, therefore, there is sufficient ground to allow the appeal, with each party bearing its own costs. That part of the order of the court <em>a quo </em>declaring the 1st, 2nd,3rd and 4th appellants as having ceased to the members of the respondent is not supportable, has to be set aside and replaced with an order declaring the 1st appellant and all those claiming through him to be barred from controlling or accessing respondent’s properties or amenities on account of 1st appellant’s extant suspension. All specific references to the 2nd, 3rd and 4th appellants in the order of the court <em>a quo</em> are also improper and have to be removed. Given this partial success by the appellants, it is proper that each party shall bear its own costs.</p> <p> </p> <p>Accordingly, it is hereby ordered that:</p> <ol><li>The appeal is allowed with each party bearing its own costs.</li> <li>The judgment of the High Court in case No. HC 1451/13 be and is hereby set aside and substituted as follows:-</li> </ol><p>“IT IS DECLARED, WITH EACH PARTY BEARING ITS OWN COSTS, THAT:</p> <ul><li>The 1st respondent having been suspended on 25 January 2012 by theparent church, and while that suspension remains extant, has no right to personally, or by anyone claiming through him, make use of any of the applicant’s properties or amenities as well as its name.</li> <li>The 1st respondent, or anyone claiming through him, shall immediately stop and shall at all times desist from making use of applicant’s name or any such name which may reasonably be confused with applicant’s name and which may give the impression that they have any continuing association with applicant.</li> <li>The 1st respondent, or anyone claiming through him, shall immediately relinquish possession and use of all of applicant’s properties both movable and immovable whether held by them directly or by those claiming the right of use or occupation through them which are set out in ‘c1’ below and shall concede such use and possession to the applicant.</li> </ul><ol><li>LAND AND BUILDINGS</li> </ol><ul><li>Bulawayo: church at Stand 61000, Size Road, and adjacent stands for youth and women, Western Commonage No 6 Pelandaba;</li> <li>Stand 36E, 37E, 38E,39E,40E, 54E, 55E Bekezela Street, Pelandaba;</li> <li>House at No 16 Amantje Road, Four Winds, Bulawayo;</li> <li>Greengables Farm, the remaining extent of subsdivision B of Dunstaal, Khami;</li> <li>Plot 11 and 12, Shamrock Road, Gweru;</li> <li>Lower Gweru at Gwabada Farm and Ekukhanyeni Weaving Centre;</li> <li>Kwekwe: Stand no 383 Mbizo Township Church and residence, Amaveni Township church;</li> <li>Kadoma: Stand no 4 Bwanali Street, Rimuka Township church and mission residence;</li> <li>Chegutu: Stand 2134 Heroes Township Church and Mission residence at 550 Pfupajena Township;</li> <li>Masvingo stand 14 Mucheke Township, Masvingo;</li> <li>Mutare: Stand No 7 Machekaire Street, Dangamvura Township, Mutare;</li> <li>Buhera Murambinda Township Church stand;</li> <li>Nyanga: Church at Bonde Kraal;</li> <li>Mount Selinda: Chako Township Church Stand;</li> <li>Chinhoyi Stand 1159 Hunyani township Church and residence</li> <li>Mahororo Business centre church Hurungwe;</li> <li>Beitbridge Stand 2384 Dulibadzimu and residence at No 9;</li> <li>Victoria Falls: Stand 2647 Victoria Falls;</li> <li>Kariba: stand 1727 Nyamhunga Township;</li> <li>Chiredzi:51 Makaza Triangle, No 6 Nzimbe Township Trangle;</li> <li>Mwenezi: Sarahuru Township Church;</li> <li>Mutoko: Mutoko Business Centre, Church Stand;</li> <li>Pilgrims’ Progress restaurant Kadoma;</li> <li>Pilgrims’ Progress restaurant Gweru;</li> <li>Bindura: 19/34 Musvosve Street Stand at Chipadze Township and Trojan Mine;</li> <li>All motor vehicles and church assets under their control;</li> <li>Chipinda Church Stand, and</li> <li>Hwange: No 2 Glencoe Road, Railton, Hwange.</li> </ul><p><strong>GOWORA JA:</strong>                      I agree</p> <p><strong>UCHENA JA:</strong>                        I agree</p> <p><em>Majoko &amp; Majoko</em> c/o <em>G. N. Mlotshwa</em> &amp; Co, appellants’ legal practitioners</p> <p><em>Dube-Banda Nzarayapenga &amp; Partners</em>, respondent’s legal practitioners</p> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-2c0e2a78d54d554d7e8f80428a76bea5f67d99b4a2325f85082017d01f078962"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p><strong>REPORTABLE</strong><strong>        (37)</strong></p> <p> </p> <ol><li> </li> </ol><p><strong>v</strong></p> <p><strong>THE     APOSTOLIC     FAITH     MISSION     OF     PORTLAND     OREGON      (SOUTHERN     AFRICAN     HEADQUARTERS)     INC.</strong></p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>BEFORE: GOWORA JA, HLATSHWAYO JA &amp; UCHENA AJA</strong></p> <p><strong>HARARE, 20 NOVEMBER, 2015 &amp; JULY 27, 2018</strong></p> <p> </p> <p> </p> <p><em>F. Girach, </em>for the appellants</p> <p><em>T. Mpofu </em>with<em> N. Chamisa, </em>for the respondent</p> <p> </p> <p> </p> <p><em>                        </em><strong>HLATSHWAYO JA: </strong>          This is an appeal against the whole judgment of the High Court of Zimbabwe dated 20 May 2015.</p> <p>The order sought to be impugned reads as follows:</p> <p>“IT IS DECLARED THAT,</p> <ol><li>1st, 2nd, 3rd and 4th Respondent are no longer members of Applicant and have lost all rights to fellowship under applicant or to make use of any of its properties or amenities as well as its name.</li> <li> </li> <li> </li> </ol><ol><li>LAND AND BUILDINGS</li> </ol><ol><li>Bulawayo: church at Stand 61000, Size Road, and adjacent stands for youth and women, Western Commonage No 6 Pelandaba;</li> <li>Stand 36E, 37E, 38E,39E,40E, 54E, 55E Bekezela Street, Pelandaba;</li> <li>House at No 16 Amantje Road, Four Winds, Bulawayo;</li> <li>Greengables Farm, the remaining extent of subsdivision B of Dunstaal, Khami;</li> <li>Plot 11 and 12, Shamrock Road, Gweru;</li> <li>Lower Gweru at Gwabada Farm and Ekukhanyeni Weaving Centre;</li> <li>Kwekwe: Stand no 383 Mbizo Township Church and residence, Amaveni tiownship church;</li> <li>Kadoma: Stand no 4 Bwanali Street, Rimuka Township church and mission residence;</li> <li>Chegutu: Stand 2134 Heroes Township Church and Mission residence at 550 Pfupajena Township;</li> <li>Masvingo stand 14 Mucheke Township, Masvingo;</li> <li>Mutare: Stand No 7 Machekaire Street, Dangamvura Township, Mutare;</li> <li>Buhera Murambinda Township Church stand;</li> <li>Nyanga: Church at Bonde Kraal;</li> <li>Mount Selinda: Chako Township Church Stand;</li> <li>Chinhoyi Stand 1159 Hunyani township Church and residence</li> <li>Mahororo Business Centre Church Hurungwe;</li> <li>Beitbridge Stand 2384 Dulibadzimu and residence at No 9;</li> <li>Victoria Falls: Stand 2647 Victoria Falls;</li> <li>Kariba: stand 1727 Nyamhunga Township;</li> <li>Chiredzi:51 Makaza Triangle, No 6 Nzimbe Township Trangle;</li> <li>Mwenezi: Sarahuru Township Church;</li> <li>Mutoko: Mutoko Business Centre, Church Stand;</li> <li>Pilgrims’ Progress restaurant Kadoma;</li> <li>Pilgrims’ Progress restaurant Gweru;</li> <li>Bindura: 19/34 Musvosve Street Stand at Chipadze Township and Trojan Mine;</li> <li>All motor vehicles and church assets under their control;</li> <li>Chipinda Church Stand; and</li> <li>Hwange: No 2 Glencoe Road, Railton, Hwange.</li> </ol><p> </p> <ol><li> </li> </ol><p> </p> <p> </p> <p> </p> <p>The background to this matter is clearly set out in the judgment of the court <em>a quo</em> and may be summarized as follows:</p> <p> </p> <p>The Apostolic Faith Mission of Portland, Oregon, is a church corporation of the State of Oregon, USA, which church was established in 1906 with its headquarters in Portland, Oregon, and is hereinafter referred to as the “mother or parent church”. It is headed by a Superintendent General. One of the mother/parent church’s premier goals is to disseminate biblical truth and evangelise the world.  In advancing this goal, the Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) was established in 1955 (hereinafter referred to as the “local church”).  The Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) is the respondent <em>in casu</em>.</p> <p> </p> <p>The mother church has other branches in a plethora of Southern Africa countries, <em>inter alia</em>, South Africa, Malawi and Angola. The local church is governed by a Constitution like any of the other branches of the mother church in Southern Africa. The first constitution of the respondent was promulgated in 1968 and then amended in 1985 and 1996. In terms of Article 1 of the respondent’s amended constitution, the respondent was established as a branch of the mother/parent church. The appellants sought to further amend the constitution in 2012 which purported amendment, however, was not endorsed by the mother church.  </p> <p> </p> <p>The first appellant was appointed Overseer of the respondent in 1985. It was during the stewardship of the first appellant that an issue arose concerning the existence of two choirs in the respondent’s church.  The pith of the dispute related to whether there was need for the choir to wear a uniform and dress in a particular manner. The mother church was informed of the dispute and it directed that both choirs be disbanded. The first appellant did not act in accordance with this direction from the mother church.  Rather, the first appellant wrote to the mother church indicating that he would consider withdrawing from the Board and from being an overseer if the issue of uniforms was not dealt with to his satisfaction.</p> <p> </p> <p>The director responsible for Africa, one Reverend Baltzell, visited the respondent with the intention of retiring the first appellant and appointing a replacement. Alive to this fact, the first appellant instituted legal action.  Subsequently, Darrel D. Lee, the Superintendent General, wrote to the first appellant communicating his removal from the position of Southern Africa Overseer with effect from 21 April, 2005, leaving him as an ordinary member of the church.</p> <p> </p> <p>Aggrieved by his removal, the first appellant instituted legal action which saw him obtaining a provisional order in terms of which he would remain overseer of the respondent. This provisional order was, however, subsequently discharged. The first appellant appealed against this judgment. The appeal, however, lapsed and was deemed dismissed.  On 7 February 2008, following an application made by the first appellant, the respondent’s removal was invalidated, unopposed, under case HC/1170/05 and the subsequent application for rescission was dismissed.</p> <p> </p> <p>The application <em>a quo</em> was however not premised on the previous removal of the first appellant.  The material events that led to the appealed judgment are set out hereunder, as outlined <em>a quo</em>:</p> <p>“In November 2011 the head of the parent church visited the country and the (first appellant) barred him from accessing the church branches and buildings for conducting services. This matter spilled into the courts again with the parties subsequently agreeing to resolve their differences outside the court.  In the same month, the first (appellant) issued summons for the eviction of pastors he did not agree with, from church premises. He appointed new pastors and replaced those he perceived to be siding with the parent church. This development culminated in further tensions in the church.  On 25 January 2012, the first (appellant) was suspended from membership of the church by the parent church.  The reason for this was that he had breached the cannons of the church and violated spiritual doctrines by continuing to litigate against the faithful and that he had failed to submit to the authority of the church in breach of the church’s constitution.  Further, that his conduct had led to the creation of disharmony within the church and that he had appropriated the church’s assets to his own use.  The other complaint was that he was effecting amendments to the constitution without authority”.</p> <p>  </p> <p> </p> <p>The letter of 25 January 2012 suspended the first appellant “immediately from all activities associated with the church” and stated further that “during the suspension and pending the finalization of investigations and any subsequent disciplinary hearing that might be conducted against you, you shall not set your feet (<em>sic</em>) at any of the church’s premises. You shall also not conduct any church service. You shall also be expected not to interfere with church members wherever located in Southern Africa ...” Against these charges, the first appellant instructed his legal practitioners to write to the head of the parent church. The contents of this letter dated 3 February 2012 read as follows:</p> <p>“Dear Sir</p> <p>RE APOSTOLIC FAITH MISSION OF PORTLAND AND OREGON UNITED STATES OF AMERICA VS REVEREND RICHARD SIBANDA AND APOSTOLIC FAITH MISSION OF PORTLAND PREGON (SOUTHERN AFRICAN HEADQUARTERS) AND THE BOARD OF TRUSTEES – CONSTITUTIONAL AMENDMENT</p> <p>We refer to the above matter and advise as you may well know that we are lawyers for the Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) Inc. And the Board of Trustees of same and of course Reverend Sibanda the Overseer of the Southern African Headquarters.;</p> <ol><li>The Southern African Headquarters is a legal person governed by its own constitution and we advise that the constitution was formed by the Board of Directors of Southern Africa duly convened and called for that purpose.</li> <li>The same constitution is subject to amendment by the same Board of Directors duly convened for that particular purpose.</li> <li>The historical relationship between Southern Africa and America was born out of historical issues of the refusal by the Colonial Government to accord indigenous people the right to preach the Gospel without external white missionaries. For the record, America and Southern Africa have a spiritual relationship; a look at the previous constitutions and your reference to the history of the church in Southern Africa will vindicate this position.</li> <li>In our view, a look at the Amendments is not only reasonable but logical and was inevitable and on p8 are the proposed trustees chosen by the people of Southern Africa. The choice is yours, to either understand the amendments and try to build on a great relationship with Southern Africa under an affiliate status or choose to listen to people who appear to be feeding you with false information. For your information the whole Board of Directors and the Board of Elders and the Brothers and Sisters in the faith in the greater Southern Africa are prepared to proceed with the amendments of the constitution.</li> <li>For the record, our clients collectively have decided that they will not accept the leadership from America. The Board of Directors, Elders and Church members have enough sense and intelligence to choose their own leadership. Finally the same God you serve is the same God they serve and He will give them guidance on succession issues.</li> </ol><p> </p> <p>May we have your response, if any, within seven days?”</p> <p> </p> <p> </p> <p>The episodes that followed after this letter are that the first appellant was called to a disciplinary hearing to respond to the charges preferred against him. The charges were, <em>inter alia,</em> that the first appellant had violated Articles VI and VII of the Respondent’s Constitution by deliberately refusing to submit to the authority of the parent/mother church and that the first appellant had violated the Constitution as read with doctrinal rules of the Apostolic Faith Church of Portland, Oregon (Southern Africa Headquarters) in that in or around December 2011, first appellant had elected to settle his personal disputes with church brethren in the High Court of Zimbabwe rather than as dictated by the Bible.</p> <p> </p> <p>The first appellant did not attend the disciplinary hearing to determine charges laid against him set for 22 March 2012. The hearing nevertheless went ahead and it was resolved that the first appellant’s suspension be “confirmed”.  Rev Onias Z. Gumbo was then appointed as Overseer in the place of the first appellant.  Undeterred by the suspension, the first appellant maintains that he is still the Overseer of the respondent. On 22 March 2014 the appellants issued summons against the superintendent of the parent church challenging the first appellant’s suspension and seeking nullification of Reverend Gumbo’s appointment and an order interdicting him from interfering with the church operations.  The parent church counterclaimed seeking a declaration of the lawfulness of the suspension and the interdiction of the appellants from acting as overseer and board of directors of the local church.  This action does not seem to have been pursued to finality, for reasons that are not clear from the record.  Instead, the respondent filed an application for a declaratory order in the court <em>a quo </em>essentially seeking the same relief as in the counterclaim. The terms of the order prayed for, which order was granted by the court <em>a quo</em>, have already been quoted above<em>.</em></p> <p> </p> <p>Aggrieved by that order, the appellants noted this appeal on the following grounds of appeal:</p> <p>“1.       The High Court erred in finding that the respondent, being a <em>universitas </em>with power to sue and be sued in its own name, could not secede from the Apostolic Faith Mission of Portland Oregon.</p> <ol><li>The High Court further erred in finding that the respondent had an interest in suing its overseer and its board of trustees, the Appellants, when the letter of the 3rd of February 2012 was written on behalf of the respondent, its leadership and its members.</li> <li>The High Court further misdirected itself in finding that the letter of the 3rd of February 2012 amounted to a resignation by the (appellants) from the (respondent) or a denunciation of the doctrine of the church.</li> <li>The High Court misdirected itself in finding that the (appellants) had shown conduct as to amount to sensation (<em>sic</em>) (secession?) when there was no evidence to that effect.</li> <li>The High Court misdirected itself in finding as it did that the (appellants) had adopted a new constitution for the applicant when in fact they had not proceeded with the proposed amendments.</li> <li>The High Court further erred in failing to find that the (respondent) church, through the overseer, the 1st (appellant), had the authority to appoint its own leadership, that is the board of trustees and therefore the communication that the applicant’s leadership would be appointed locally could not amount to denunciation of the American church.”</li> </ol><p> </p> <p> </p> <p> </p> <p>At the hearing of this matter additional grounds of appeal were moved and granted through an amendment as follows:</p> <ol><li>The learned judge in the court <em>a quo</em> erred in not finding that the respondent did not have the requisite capacity to bring the action in this matter and/or that it required the support of the church in Oregon, USA.</li> <li>The learned judge in the court <em>a quo</em> erred in not finding that the application was, in any event, fatally defective as the deponent to the founding papers was barred from representing respondent.</li> <li>The learned judge of the court <em>a quo</em> erred in finding that the first appellant ceased to be District Superintendent and ought to have found therefore that the application was a nullity.</li> </ol><p>The appellants then prayed for the setting aside of the judgment of the High Court and its substitution with an order dismissing the declaratory application with costs.</p> <p> </p> <p>The laxity and inattentiveness in drafting the notice of appeal by the appellants’ counsel has necessitated the insertion in brackets of the proper parties before this Court.  The appellants in their grounds of appeal cite the parties as if they are still before the High Court. The appeal should relate to “Appellants” and “Respondent” and not “Applicant” and “Respondents.”  This lack of attentiveness by legal practitioners is the kind of carelessness that should never manifest at this level of litigation.</p> <p> </p> <p>This Court therefore is seized with an appeal seeking to overturn a declaratory order granted a <em>quo</em>. From a close reading of the grounds of appeal, two questions call for determination and these are:</p> <ol><li>Whether the respondent had the requisite <em>locus standi</em> to sue?</li> <li>Whether the appellants had ceased to be members of the respondent?</li> </ol><p>The just mentioned questions shall be dealt with hereunder.</p> <p> </p> <p><em>Whether the respondent had the requisite locus standi to sue?</em></p> <p>The appellants contend that the respondent did not have the requisite <em>locus standi</em> to bring the application before the court <em>a quo</em>. The appellants point to Article VII of the respondent’s Constitution as the basis of the argument against respondent’s <em>locus standi</em> in the court <em>a quo</em>. Article VII of the respondent’s Constitution reads as follows:</p> <p>“The Government of the religious organisation shall be vested in the Board of Directors consisting of not less than three (3) or more than seven (7) members…”</p> <p> </p> <p> </p> <p>The appellants’ interpretation of Article VII of the respondent’s constitution is that it is only the Board of Directors that has <em>locus standi </em>to institute legal proceedings. The appellants further note that there is no provision in the respondent’s constitution that gives the local chapter/local church any direct right to institute legal proceedings. To buttress this argument, the appellants take the point that the degree of control exercised by the mother church over the local church shows that the proper applicant in the court a <em>quo</em> ought to have been the parent church.</p> <p> </p> <p>It is common cause that the respondent is an organisation clothed with legal personality. As a legal <em>persona</em>, the respondent has rights, duties and capacities independent of its own members. The respondent therefore has a right to sue and be sued in its own name. This right however cannot be exercised in instances where the respondent has no substantial interest in the matter. In other words, the respondent as a legal person need to have <em>locus standi</em> in order to be afforded audience in a court of law. It is trite that <em>locus standi</em> is the capacity of a party to bring a matter before a court of law. The law is clear on the point that to establish <em>locus standi</em>, a party must show a direct and substantial interest in the matter. See <em>United Watch &amp; Diamond Company (Pty) Ltd &amp; Ors v Disa Hotels Ltd &amp; Anor</em> 1972 (4) SA 409 (c) at 415 A-C and <em>Matambanadzo v Goven</em> SC 23-04.</p> <p> </p> <p><em>In</em> <em>casu</em>, it is common cause that the respondent is a branch of the parent church.  However, the respondent is endowed with powers to sue and be sued in its own name. It is further common cause that the respondent is under the leadership appointed by the parent church. The constitution of the respondent is approved by the mother church. The first appellant has been in control of the respondent’s assets on the basis of being an overseer appointed by the mother church. The main allegation a <em>quo</em> was that the appellants were no longer members of the respondent and hence should cease to control the assets of the respondent.</p> <p> </p> <p>The respondent as a branch of the mother church had an unfettered direct interest in the matter in that the first appellant purported to act on the respondent’s behalf when he was on suspension.  The first appellant had been divested of the power to act on behalf of the respondent. It is common cause that the first appellant was on suspension when he caused the letter of 3 February 2012 to be drafted. He purported to communicate to the mother church an incorrect position that the respondent was also the author of the letter in question. The respondent who had not authored the letter in question surely has a direct interest in a matter where its previous leader purports to act on its behalf without its authority.  Therefore, the respondent’s <em>locus standi </em>in the court a <em>quo </em>cannot be gainsaid.</p> <p> </p> <p>In too many church or voluntary association-related disputes, the parties attempt to abuse the issue of <em>locus standi</em> in order to outwit each other and avoid the merits of the matter being adjudicated upon or even to completely frustrate any legal resolution of the matter.  It is high time that the court, as it has done <em>in</em> <em>casu</em>, takes a robust approach and leans in favour of finding that <em>locus standi</em> exists and proceeds to judicially determine the issues.  A party who is suspended from an organisation must in the first place legally confront such suspension instead of resorting to the devious ruse of challenging the <em>locus standi</em> of such organisation or any person appointed in their stead, in order to escape judicial scrutiny of their conduct.</p> <p> </p> <p><em>Whether the appellants had ceased to be members of the respondent?</em></p> <p> The appellants contend that the letter of 3 February 2012 written by their legal practitioners to the mother church did not communicate their resignation from the mother church. Against this contention is a specific finding made by the court <em>a quo </em>that the first appellant had resigned from the respondent’s church. The contents of the letter have been quoted above.</p> <p> </p> <p>It must be noted that the letter was written on 3 February 2012, days after the suspension of the first appellant from the respondent’s church.  The first appellant had been suspended from the respondent’s church on 25 January 2012.  The terms of the suspension were <em>inter alia</em> that the first appellant was suspended immediately from all activities associated with the respondent church. It therefore follows that any activity that the first appellant purportedly did on behalf of the church after his suspension was null and void.  As long as the suspension was still in force, any purported act by the first appellant on behalf of the respondent was of no effect.</p> <p> </p> <p>The letter in question was written by the law firm, Cheda and Partners, on the instructions of the first appellant who had been suspended from the respondent church. The author of the letter at law is undoubtedly the first appellant.  It is worth observing that the legal practitioners who wrote the letter in question state that they are lawyers for the respondent, the first appellant and the Board of Trustees of the respondent.  In this letter, the first appellant sought to act on behalf of the respondent as noted from the cited parties. The contents of the letter therefore <em>prima facie</em> reflects that the first appellant was representing the respondent. This could not be possible as the first appellant had been suspended by the respondent.</p> <p> </p> <p>Be that as it may, the pertinent question that this Court is seized with is whether the letter communicates a resignation by the appellants from the respondent’ church. In the event that this Court is to find that it communicates a resignation, does it then follow that the appellants are no longer members of the respondent despite the absence of dismissal of the appellants by the respondent.</p> <p> </p> <p>It is also worth noting the letter in question contains very strong doctrinal issues.  Is it a form of schism, a declaration of independence from the parent church? In the case of <em>Independent African Church v Maheya</em> 1998(1) ZLR 552(H), DEVITTIE J reflects on the historical schisms generated by the passion of church conflicts, thus:</p> <p>Even at birth, the Christian Church experienced a great schism…It came about when a convert of the early church, Paul, adapted Ch ristianity to meet the needs of all mankind and freed it from the local and national parameters…</p> <p>Another schism which took place in early times was the Reformation.  The growth of national consciousness in medieval times in part motivated the great conflict the Catholic Church and Protestantism.  The spirit of nationalism could not accommodate the claims of the papacy, a non-national authority, to moral dictatorship.  This schism has raged for centuries and continues to this day…</p> <p>In like vein, the spirit of freedom radiated by the advent of democratic government in Zimbabwe in 1980 precipitated a rapid growth of independent churches in Zimbabwe. I use the word “independent” to denote churches with no association or affiliation to the established churches.”p.553</p> <p>           </p> <p> </p> <p>However, before the ink was dry on the above judgment, the schism had spread to local branches of established churches and the relationship between the parent churches and their local branches is currently undergoing serious strains as the present case clearly demonstrates.  The relationship between the metropole-based parent churches and their peripheral local branches that was forged under brutal colonial conquest and tenuously survived the bitter struggles of independence must now respond to the democratic dispensation demands and not wish away the tensions as mere ruses of charlatans and greedy leaders of the poor peripheral congregations.</p> <p> </p> <p>But how are the church property disputes to be resolved.  The <em>Maheya</em> case provides some useful indications.  Quoting several USA Supreme court cases, the learned judge in that case teases out a number of useful principles.  From the case of <em>Watson v Jones</em> 80 US (13 Wall) 679 (1871), the following principles emerge:</p> <p>“The Federal Courts are competent to enforce express terms contained in trust instruments governing the use of ownership of property.<em>However, courts may not resolve or inquire into matters of religious doctrine in order to determine entitlement to property</em>.” (emphasis added)</p> <p> </p> <p> </p> <p> </p> <p>                        In the case of <em>Presbyterian Church in the United States v Mary Elizabeth Hulle Memorial Presbyterian Church</em> 393 US 440 (1969), the Supreme Court held:</p> <p>“…there are <em>neutral principles of law</em>, developed for use in all property disputes, which can be applied without `establishing’ churches to which property is awarded.  But First Amendment values are plainly jeopardised when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice.” (emphasis added)</p> <p> </p> <p> </p> <p> </p> <p>In <em>Jones v Woolf</em> 443 US 595 (1979), the “neutral principles” approach was supported by the Supreme Court, thus: </p> <p>“This method relies exclusively on objective, well established concepts of trust and property law and formulae familiar to lawyers and judges.  It thereby promises to free civil courts completely from the entanglement of religious doctrine, policy and practice.”</p> <p> </p> <p> </p> <p> </p> <p>Thus, the principles developed in the USA for resolution of church property disputes which may be applied with much benefit in our jurisdiction may be summarized as follows:</p> <ol><li>Civil Courts will enforce express terms governing the use and ownership of property contained in church documents, such as constitutions, trust instruments, canons, etc.</li> <li>Civil Courts may not resolve or inquire into matters of religious doctrine in order to determine entitlement to property.</li> <li>Civil Courts may apply <em>neutral principles of law</em>, which are objective, well established concepts of trust and property law and formulae familiar to lawyers and judges and avoid entanglement in religious doctrinal issues, policy and practice whether pertaining to the ritual of liturgy of worship or the tenets of faith.</li> </ol><p> </p> <p>Applying the above principles to the facts of this matter:</p> <ul><li>In resolving church property disputes, it is improper to get entangled in the doctrinal issues as the court <em>a quo</em>, in my view, unfortunately did.The question of choir uniforms and how they are to be worn, whether the appellants exhibited behaviour amounting to schism or denounced the founding principles of respondent or their propensity to seek legal redress in disputes with congregants contrary to Biblical teachings are all doctrinal issues that cannot be the bases of resolving the property dispute. The exceptional circumstances in the case of <em>Church of the Province of Central Africa Ltd &amp; Anor v Diocesan Trustees for the Diocese of Harare</em> SC 48/12 (hereinafter the “CPCA case”) are distinguishable from the current one.In the <em>CPCA</em> case, <em>supra, </em>people who had been members of the board of trustees for the church but <em>withdrew their membership from the church and formed a new church organization</em> were held to have resigned from their offices thereby losing the right to control the original church’s property such as buildings, houses, schools, motor vehicles and funds in banks. In this regard, MALABA JA (as he then was) had this to say in the <em>CPCA</em> case:</li> </ul><p>“The court does not discuss the truth or reasonableness of any of the doctrines of the religious group.It does not decide whether any of the doctrines are or are not based on a just interpretation of the language of the Holy Scriptures.While the court does not take notice of religious opinions with a view to deciding whether they are right or wrong, it might notice them as facts pointing to whether a person has withdrawn his or her membership from the church and should possess and control church property.”</p> <p> </p> <ul><li>This Court accepts as a correct statement of law made in <em>Independent African Church v Maheya</em> 1998(1) ZLR 552(H) at p 556E and relied upon in the <em>CPCA</em> case <em>supra</em> that disputes over ownership or possession and control of church property should be resolved, in the first instance, on the basis of the interpretation and application of the law of voluntary associations.Therefore, the constitution of a voluntary association and rules governing it can be relied upon in solving property disputes.This is in line with the first principle noted above that civil courts will enforce express terms governing the use and ownership of property contained in church documents, such as constitutions, trust instruments, canons, etc.</li> <li>Finally, the court may have resort to <em>neutral principles of law</em>, which are objective, well established concepts of trust and property law.In the present case, the question to answer is whether the first appellant, having been suspended from the respondent, and while that suspension subsists, can retain control of the property and assets of respondent?This issue can be resolved without the court entangling itself in doctrinal issues of whether questioning the relationship between the parent and local churches, the way the 1st appellant did, amounts to secession or schism or at what stage suggesting constitutional arrangements becomes rebellion against fundamental tenets of the faith and ceases to be a normal, albeit vigorous, democratic discourse? When can a church member be held to have so denounced the fundamental principles that lie at the heart of a church that he or she divests himself or herself from being a member of the respective church and becomes disentitled from access to its properties?The best answer is that it is a matter of opinion, a matter of degree and an issue of doctrinal intricacies that courts are ordinarily unfamiliar with. It was, therefore, a misdirection for the court below to base its decision on these doctrinal imponderables.</li> </ul><p> </p> <p>In <em>Jakazi &amp; Anor v Anglican Church of the Province of Central Africa</em> SC 10/13, this Court dealt with the issue of resignation as an objective fact. In communicating resignation, a party gives notice. The giving of notice is a unilateral act which needs no acceptance. Whether or not a party resigned is a question of fact. The sentiments of this court in the <em>CPCA</em> case are instructive with regard to resignation of church members:</p> <p>“Where the evidence shows that the individual exercised his/her right to terminate the relationship with the Church the resignation takes effect immediately the conduct is committed. This is so unless there is a special provision by virtue of which it takes effect upon acceptance by the person who is given the right to receive written notice and decide whether to accept the resignation or not. The law is clear.Whether it is under article 4 or 13 resignation is a unilateral act. Its validity does not depend upon acceptance by the person to whom it is directed.Acceptance determines when the resignation takes effect. In the final analysis it is for the court and not the individual concerned to decide whether his conduct amounts to resignation or not.”</p> <p> </p> <p> </p> <p> </p> <p>It must be emphasized that the ideal position is for voluntary associations to discipline their own members, either by dismissing or suspending them in terms of their set procedures.  In this case, the respondent conducted a disciplinary hearing against the first appellant for charges preferred against him. The disciplinary hearing proceeded in the absence of the first appellant despite his being properly served. At this disciplinary hearing, the decision to suspend the first appellant was “confirmed”.  What is baffling in this case is that the respondent or the mother church, despite having powers to dismiss the appellants, resolved to simply “confirm” or uphold the suspension of the first appellant. A declaration that the appellants are no longer members of the respondent was only sought in the court a <em>quo</em>.  Now, if the church itself, seized with the alleged doctrinal infractions of the first appellant at a disciplinary hearing, opts not to dismiss the appellant but rather to merely uphold the suspension, on what basis would a civil court of law, unschooled in the intricacies of doctrinal niceties, be expected to pronounce the first appellant no longer fit to maintain membership of the church?</p> <p> </p> <p>It is for the church to dismiss the appellants and not for this court to do so in its stead. The respondent is enjoined to take steps to terminate its relationship with a member who denounces its authority, and the civil court will give due deference to that decision in the absence of arbitrariness, bias or unreasonableness.  What was placed before the court was in fact a process upholding the first appellant’s suspension. Nothing shows that appellants were dismissed and therefore ceased to be members of the respondent. Suspension cannot by any stretch of imagination be a method of terminating a relationship between parties. The first appellant therefore remains suspended and not dismissed from the respondent.</p> <p> </p> <p>There is no record of the second, third and fourth appellants being charged with any misconduct let alone being suspended or dismissed from the respondent’s church. There is therefore no basis in my view to declare that the second, third and fourth appellants ceased to be members of the respondent. The court <em>a quo</em> erred in doing so.</p> <p> </p> <p>All in all, therefore, there is sufficient ground to allow the appeal, with each party bearing its own costs. That part of the order of the court <em>a quo </em>declaring the 1st, 2nd,3rd and 4th appellants as having ceased to the members of the respondent is not supportable, has to be set aside and replaced with an order declaring the 1st appellant and all those claiming through him to be barred from controlling or accessing respondent’s properties or amenities on account of 1st appellant’s extant suspension. All specific references to the 2nd, 3rd and 4th appellants in the order of the court <em>a quo</em> are also improper and have to be removed. Given this partial success by the appellants, it is proper that each party shall bear its own costs.</p> <p> </p> <p>Accordingly, it is hereby ordered that:</p> <ol><li>The appeal is allowed with each party bearing its own costs.</li> <li>The judgment of the High Court in case No. HC 1451/13 be and is hereby set aside and substituted as follows:-</li> </ol><p>“IT IS DECLARED, WITH EACH PARTY BEARING ITS OWN COSTS, THAT:</p> <ul><li>The 1st respondent having been suspended on 25 January 2012 by theparent church, and while that suspension remains extant, has no right to personally, or by anyone claiming through him, make use of any of the applicant’s properties or amenities as well as its name.</li> <li>The 1st respondent, or anyone claiming through him, shall immediately stop and shall at all times desist from making use of applicant’s name or any such name which may reasonably be confused with applicant’s name and which may give the impression that they have any continuing association with applicant.</li> <li>The 1st respondent, or anyone claiming through him, shall immediately relinquish possession and use of all of applicant’s properties both movable and immovable whether held by them directly or by those claiming the right of use or occupation through them which are set out in ‘c1’ below and shall concede such use and possession to the applicant.</li> </ul><ol><li>LAND AND BUILDINGS</li> </ol><ul><li>Bulawayo: church at Stand 61000, Size Road, and adjacent stands for youth and women, Western Commonage No 6 Pelandaba;</li> <li>Stand 36E, 37E, 38E,39E,40E, 54E, 55E Bekezela Street, Pelandaba;</li> <li>House at No 16 Amantje Road, Four Winds, Bulawayo;</li> <li>Greengables Farm, the remaining extent of subsdivision B of Dunstaal, Khami;</li> <li>Plot 11 and 12, Shamrock Road, Gweru;</li> <li>Lower Gweru at Gwabada Farm and Ekukhanyeni Weaving Centre;</li> <li>Kwekwe: Stand no 383 Mbizo Township Church and residence, Amaveni Township church;</li> <li>Kadoma: Stand no 4 Bwanali Street, Rimuka Township church and mission residence;</li> <li>Chegutu: Stand 2134 Heroes Township Church and Mission residence at 550 Pfupajena Township;</li> <li>Masvingo stand 14 Mucheke Township, Masvingo;</li> <li>Mutare: Stand No 7 Machekaire Street, Dangamvura Township, Mutare;</li> <li>Buhera Murambinda Township Church stand;</li> <li>Nyanga: Church at Bonde Kraal;</li> <li>Mount Selinda: Chako Township Church Stand;</li> <li>Chinhoyi Stand 1159 Hunyani township Church and residence</li> <li>Mahororo Business centre church Hurungwe;</li> <li>Beitbridge Stand 2384 Dulibadzimu and residence at No 9;</li> <li>Victoria Falls: Stand 2647 Victoria Falls;</li> <li>Kariba: stand 1727 Nyamhunga Township;</li> <li>Chiredzi:51 Makaza Triangle, No 6 Nzimbe Township Trangle;</li> <li>Mwenezi: Sarahuru Township Church;</li> <li>Mutoko: Mutoko Business Centre, Church Stand;</li> <li>Pilgrims’ Progress restaurant Kadoma;</li> <li>Pilgrims’ Progress restaurant Gweru;</li> <li>Bindura: 19/34 Musvosve Street Stand at Chipadze Township and Trojan Mine;</li> <li>All motor vehicles and church assets under their control;</li> <li>Chipinda Church Stand, and</li> <li>Hwange: No 2 Glencoe Road, Railton, Hwange.</li> </ul><p><strong>GOWORA JA:</strong>                      I agree</p> <p><strong>UCHENA JA:</strong>                        I agree</p> <p><em>Majoko &amp; Majoko</em> c/o <em>G. N. Mlotshwa</em> &amp; Co, appellants’ legal practitioners</p> <p><em>Dube-Banda Nzarayapenga &amp; Partners</em>, respondent’s legal practitioners</p></span></div></div> </div> </div> Mon, 06 Sep 2021 13:38:29 +0000 Anonymous 10056 at http://www.zimlii.org Ahmed v Docking Station Safaris Private t/a CC Sales (SC 70 of 2018, Civil Appeal SC 177 of 2018) [2018] ZWSC 70 (01 November 2018); http://www.zimlii.org/zw/judgment/supreme-court-zimbabwe/2018/70 <span class="field field--name-title field--type-string field--label-hidden">Ahmed v Docking Station Safaris Private t/a CC Sales (SC 70 of 2018, Civil Appeal SC 177 of 2018) [2018] ZWSC 70 (01 November 2018);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/2141" hreflang="x-default">PRACTICE AND PROCEDURE</a></div> <div class="field__item"><a href="/taxonomy/term/2323" hreflang="x-default">Application (PRACTICE AND PROCEDURE)</a></div> <div class="field__item"><a href="/taxonomy/term/2338" hreflang="x-default">AFFIDAVIT See PRACTICE AND PROCEDURE (Affidavit)</a></div> <div class="field__item"><a href="/taxonomy/term/2324" hreflang="x-default">chamber application</a></div> <div class="field__item"><a href="/taxonomy/term/1577" hreflang="en">Dismissal of Application</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 09/06/2021 - 13:38</span> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.zimlii.org/files/judgments/zwsc/2018/70/2018-zwsc-70.pdf" type="application/pdf; length=317388">2018-zwsc-70.pdf</a></span> </div> </div> </div> <div class="field field--name-field-law-report-citations field--type-string field--label-above"> <div class="field__label">Law report citations</div> <div class='field__items'> <div class="field__item"> </div> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-0745f945776887232434da58e41c483c135df56759692c4ac863363842a5663c"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="800px" src="/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fmedia.zimlii.org%2Ffiles%2Fjudgments%2Fzwsc%2F2018%2F70%2F2018-zwsc-70.pdf" data-src="https://media.zimlii.org/files/judgments/zwsc/2018/70/2018-zwsc-70.pdf" title="2018-zwsc-70.pdf"></iframe></span></div></div> </div> </div> Mon, 06 Sep 2021 13:38:22 +0000 Anonymous 10051 at http://www.zimlii.org