Court name
Supreme Court of Zimbabwe
Case number
SC 2 of 2004
Civil Application 224 of 2003

Sithole v P G Industries (Zimbabwe) Ltd. t/a African Lumber Company (Pvt) Ltd. (24/03) (SC 2 of 2004, Civil Application 224 of 2003) [2004] ZWSC 2 (28 January 2004);

Law report citations
Media neutral citation
[2004] ZWSC 2
















Judgment
No. SC 2/04


Civil
Application No. 224/03








ECKEM
WILLIAM SITHOLE v





P.G.
INDUSTRIES (ZIMBABWE) LIMITED t/a THE
AFRICAN LUMBER COMPANY (PRIVATE) LIMITED








SUPREME COURT
OF ZIMBABWE


CHIDYAUSIKU
CJ, SANDURA  JA, ZIYAMBI JA, MALABA JA &
GWAUNZA  JA


HARARE,
JANUARY 13 & 29, 2004








The applicant
in person





No appearance
for the respondent





SANDURA  JA:
This application was brought in terms of s 24(1) of the
Constitution of Zimbabwe (“the Constitution”).
The applicant
(“Sithole”) seeks an order declaring,
inter
alia
, that his right
to a fair hearing within a reasonable time by an independent and
impartial court, enshrined in s 18(9) of the
Constitution, has
been violated. The application was not opposed.





The
background facts are as follows.






1. On 1 June 1995 Sithole
joined the respondent company (“the company”) as one of its
employees in Bulawayo. The company
had a Code of Conduct (“the
Code”) in terms of which the penalty for absenting oneself from
duty for three or more consecutive
days without a lawful excuse was a
final written warning.







2. On 4, 5 and 6 December 1995
Sithole did not turn up for work. He alleges that he had been
authorised to be away from work as
he was taking some examinations,
but that is denied by the company.







3. On 14 December 1995 the
company’s disciplinary committee found him guilty of absenting
himself from duty without a lawful
excuse and issued a final written
warning to him.







4. Thereafter, on 13 March
1996, the company’s operations manager transferred Sithole to the
company’s Mutare Branch, but
Sithole refused to go there.
Consequently, the operations manager suspended him from duty pending
dismissal. He cited two grounds.
The first was wilful
disobedience to a lawful order; and the second was acting in a manner
inconsistent with the fulfilment of
the express or implied conditions
of the contract of employment.







5. Subsequently, on 2 April
1996, the company’s disciplinary committee was convened. After
hearing the matter, the committee
found Sithole guilty on 22 April
1996 and recommended his dismissal. It is not clear from the record
whether he was found
guilty of one or both charges. Nevertheless,
his employment was terminated on 31 May 1996.







6. Aggrieved by the termination
of his employment, Sithole instituted a civil action, case no.
HC 3222/98, in the High Court
at Bulawayo on 20 August 1998
claiming,
inter alia,
damages for wrongful dismissal. The summons was served on the
company on 9 September 1998 and, thereafter, an appearance
to
defend was entered and a plea filed.







7. Subsequently, a pre-trial
conference was held on 30 June 1999. It was presided over by a
judge of the High Court. Sithole
was not legally represented, but
the company was. At the end of the pre-trial conference, the
learned judge issued the following
minute:







“IT IS RECORDED:


That
the plaintiff is advised to apply to re-instate his case to the
labour relations office.





That this
court declines to re-hear the disciplinary proceedings as this has
been determined in terms of the Code of Conduct.





That the
plaintiff pay costs.”









8. Dissatisfied with the outcome
of the pre-trial conference, Sithole noted an appeal to this Court on
15 December 1999. However,
the appeal was not timeously noted
and no extension of the time within which to appeal had been granted.







9. On the basis of the pre-trial
conference minute, the company had its bill of costs taxed and
allowed in the sum of $17 798.55.
Sithole was not present when
the bill was taxed because he had not seen the notice of taxation
sent to his address for service,
which was different from his
residential address. However, the notice had been sent a day before
the taxation, contrary to the
provisions of r 310(2) of the High
Court Rules, 1971 (“the Rules”), which require that at least
three days’ notice of
the taxation be given.







10. In January 2000 the company
had a writ of execution issued against Sithole in order to recover
its taxed costs from him. Thereafter,
on 26 February 2000,
movable property belonging to Sithole was attached by the Deputy
Sheriff. It was listed in an inventory
as follows:







“Four-piece red lounge suite –
fair condition;






Phillips 20" colour TV –
fair condition;






Kitchen table
and four chairs – fair condition;





Kitchen unit –
scratches all over;





Kic double
door fridge





Panstar
black and white TV (12") – fair condition;





Approximate
value - $12 000.00”.







11. On 27 March 2000 Sithole
filed a chamber application in the High Court at Bulawayo, case no.
HC 1341/2000, seeking an order
setting aside the taxation of the
company’s costs and the attachment of his property. The matter
was placed before the learned
judge who had presided over the
pre-trial conference. It was subsequently dismissed with costs on
11 April 2000, and Sithole’s
property was later sold by public
auction on 14 April 2000.







12. On 5 July 2000, at the
request of the learned judge who had presided over the pre-trial
conference, Sithole and the company’s
legal practitioner appeared
before him in chambers. The learned judge informed them that the
pre-trial conference minute of 30 June
1999 had been issued by
mistake, and that if both of them agreed the minute would be
withdrawn. When they indicated their agreement,
the learned judge
issued the following order:







“IT IS ORDERED THAT: By consent





Order
granted on 30 June 1999 be and is hereby withdrawn.”









13. On 11 July 2000 Sithole
filed a notice of appeal in this Court against the dismissal of his
chamber application on 11 April
2000. The appeal was noted
because, notwithstanding the withdrawal of the pre-trial conference
minute, Sithole’s property, which
had been attached and sold in
execution, had not be returned to him or replaced by the company.
However, the appeal was noted out
of time, and no extension of the
time within which to appeal had been granted.







14. On 19 July 2000 the
learned judge who had presided over the pre-trial conference issued
the following order in chambers and
in the absence of the parties:







“IT IS ORDERED THAT:





Since
the matter is still incomplete, the costs, including those already
taxed and executed upon are to be held over for determination
at the
hearing of the application.”






From the
record, it does not appear that either party had applied for this
order, or any other order for that matter. In addition,
it is not
clear what application the learned judge was referring to in the
order.






15. When Sithole subsequently
wrote to the assistant registrar of the High Court at Bulawayo,
inquiring about the progress made in
the preparation of the court
record required in the appeal against the dismissal of his chamber
application he received the following
reply:






“It
is not clear to the writer why you have noted an appeal in the above
matter. On 19 July 2000 His Lordship issued a directive
as
follows:





‘Since
the matter is still incomplete, the costs, including those already
taxed and executed upon are to be held over for determination
at the
hearing of the application.’





Is it not the
same matter set down for 26-27 June 2001?”.






In the
circumstances, Sithole alleges that the assistant registrar, relying
on the irregular order issued by the learned judge on
19 July
2000, refused to prepare the court record which was required in the
prosecution of the appeal against the dismissal
of his chamber
application.






16. Sithole then decided to
concentrate on having the main civil action, case no. HC 3222/98,
set down for trial. In August
2002 the matter was set down for
hearing on 28, 29 and 30 January 2003, but in November 2002 the
company’s lawyer indicated that
he was not available on those
dates. As a result, the matter was not heard on those dates,
despite protests by Sithole’s lawyers.







17. Thereafter, the matter was
set down for trial on 13, 14, and 15 May 2003. The assistant
registrar of the High Court at Bulawayo
faxed the notice of set down
to Sithole, who was then working in Chinhoyi. Sithole then sent a
copy of the notice of set down to
the company, although the company’s
legal practitioner should have been officially notified of the trial
dates by the assistant
registrar.







18. On 12 May 2003 the
company’s legal practitioner wrote to the assistant registrar as
follows:






“We
understand from the plaintiff … that you offered 13 May 2003
as a trial date for the matter. Regrettably, we did not receive
that offer although we did point out to the plaintiff’s legal
practitioners that Mr Mathonsi, who is handling this matter,
is
appearing at the High Court in Harare and is therefore not available
on that date. …





We therefore
assume that the matter has not been set down and that an offer for
dates will be coming in due course.”







19. On 13 May 2003 Sithole
appeared at the High Court in Bulawayo, but the company and its legal
practitioner did not. In the
circumstances, Sithole intended
applying for a default judgment after giving evidence on the
quantum
of damages. However, his plan was frustrated by the fact that the
court did not sit on that day. When he approached the trial
judge’s
clerk at about 11 am on that day, and made enquiries, he was
informed that the trial judge had received some communication
from
the company indicating that it was not aware that the matter had been
set down for trial on 13 May 2003. I presume that
the judge’s
clerk was referring to the letter written to the assistant registrar
by the company’s legal practitioner on 12 May
2003. For the
sake of clarity, I should state that the trial judge was not the
judge who had presided over the pre-trial conference
on 30 June
1999.







20. Undaunted by the clerk’s
explanation, Sithole requested the clerk to take him to the judge’s
chambers so that he could apply
for a default judgment in the matter
as the company was in default. The request was granted and he was
taken to the judge’s chambers,
where the judge informed him that as
a result of the letter received from the company’s lawyers he had
instructed the assistant
registrar to furnish him with evidence
indicating that the company had been notified of the trial dates.
In the circumstances,
Sithole did not make the application for a
default judgment.







21. On 15 May 2003, after
the assistant registrar had failed to produce the evidence required
by the judge, Sithole requested
the judge’s clerk to take him to
the judge’s chambers. When the request was communicated to the
judge, the judge refused to
see him. Thereafter, Sithole saw the
assistant registrar, who advised him to write a letter to the judge
which he, the assistant
registrar, would deliver to the judge. As
advised, Sithole wrote a letter to the learned judge on 15 May
2003, gave it to
the assistant registrar and left for Chinhoyi.







22. On or about 27 May 2003
the assistant registrar telephoned Sithole and informed him that the
company had misled the court
when it asserted, through its lawyers,
that it had not been notified of the trial dates. He added that the
matter had again been
set down for trial on 15 and 16 July 2003.
Sithole then telephoned the company’s legal practitioner and spoke
to his secretary,
who informed him that she had been instructed by
the legal practitioner not to accept any trial dates because he had
some other matters
to attend to.







23. On 1 July 2003 Sithole
wrote to the assistant registrar, informing him about what the
company’s legal practitioner’s
secretary had said, advising him
to make sure that the company or its legal practitioner was served
with the notice of set down,
and stating that if the company did not
appear at the trial on 15 July 2003 he would make an application
for a default judgment.
Thereafter, on 7 July 2003, the
company’s legal practitioners were served with the notice of set
down indicating that the
matter had been set down for trial on 15 and
16 July 2003.







24. On 15 July 2003 Sithole
appeared at the High Court, but the company and its legal
practitioner did not. When he made enquiries
with the assistant
registrar, he was informed that the company or its legal practitioner
had been in communication with the court
and that, as a result, the
trial could not commence on that day. The court did not, therefore,
sit and Sithole was not given an
opportunity to make an application
in respect of wasted costs.







25. Aggrieved by what had
happened in this case, especially the long delay in the commencement
of the trial, Sithole filed this application
on 22 August 2003,
seeking the following order:







“1. That the applicant’s
right to a fair trial within a reasonable period of time as enshrined
in sections 18(9) and 18(10) of the
Constitution was violated.





2. That a
judicial commission of enquiry be and is hereby established to
establish the circumstances leading to … –






i) the judgment of the court of
12 April 2000;





ii) the
judgment of the court of 19 July 2000;





iii) the
failure by the court to sit on 13 to 15 May 2003; and





iv) the
failure by the court to sit on 15 and 16 July 2003.






3. That the
respondent be and is hereby declared to be in wilful default of
appearance on 13 to 15 May 2003.





4. That the
respondent’s defence in case number HC 3222/98 be and is
hereby struck off.





5. That
judgment in case number HC 3222/98 be and is hereby entered for
the plaintiff in the sum of $1 531 755.78.





6. That the
amount be adjusted for inflation by a factor of 40, to read
$61 270 231.20.





7. That the
attachment and removal of the applicant’s movable property on
23 March 2000 be and is hereby declared illegal,
null and void.





8. That the
respondent in case number HC 1341/2000 be and is hereby ordered
to buy brand new replacement property of the same
make and type as
that attached and sold in execution on 14 April 2000.






9. That the respondent be and is
hereby ordered to deliver the property referred to in para 8
above to number 30, 8
th Avenue,
Alaska, Chinhoyi, within two weeks of the date of the granting of the
order.






10. That the
respondent in case number HC 1341/2000 be and is hereby ordered
to pay punitive damages in the sum of $3 000.00
per day from
23 March 2000 to date of restoration of property to the
applicant.





11. That the
respondent reimburses the applicant his out of pocket expenses
resulting from the abortive trial on 13 to 15 May 2003
and 15 to
16 July 2003 in the sum of $150 000.00.”








However,
after this application had been filed in this Court, the assistant
registrar of the High Court at Bulawayo wrote to Sithole
on 26 August
2003, informing him that the civil action had been set down for trial
on 28 and 29 October 2003. Subsequently,
on 28 October 2003
the learned judge presiding over the trial informed the parties that,
as Sithole had filed a constitutional
application in this Court, the
High Court could not proceed with the trial but had to wait for this
Court’s decision in the application.
Presumably, the trial was
then postponed
sine
die
, but the papers do
not say so.






I now wish to consider the
relief sought by Sithole in each paragraph of the draft order and
determine whether it should be granted.





PARAGRAPH
1





In
this paragraph Sithole seeks two declarations. The first is that
his right to a fair hearing within a reasonable time by an
independent and impartial court, enshrined in s 18(9) of the
Constitution, was violated; and the second is that his right to
have
court proceedings held in public, and the announcement of the court’s
decision made in public, as enshrined in s 18(10)
of the
Constitution, was violated. I shall deal with the two sections in
turn.





Section 18(9)
of the Constitution reads as follows:





“Subject
to the provisions of this Constitution, every person is entitled to
be afforded a fair hearing within a reasonable time
by an independent
and impartial court or other adjudicating authority established by
law in the determination of the existence or
extent of his civil
rights or obligations.”





Bearing in
mind what happened in this case, as outlined above, there can be no
doubt that Sithole’s right to a fair hearing within
a reasonable
time was violated.






It all started on 30 June
1999 when the judge presiding over the pre-trial conference
determined, wrongly in my view, that Sithole’s
civil action against
the company would not be heard by the High Court, and advised Sithole
“to apply to re-instate his case to
the labour relations office”.
In my view, the learned judge did not have the power to issue such
an order at a pre-trial conference
except, perhaps, with the
concurrence of both parties. As it is clear from the papers that
the order was not issued with Sithole’s
concurrence, it was a
nullity.





The purpose
of a pre-trial conference is set out in r 182(2) of the Rules,
which reads as follows:





“At
a pre-trial conference the parties shall attempt to reach agreement
on possible ways of expediting or curtailing the duration
of the
trial and on the following matters –






(a) the obtaining of admissions
of fact and of documents;





(b) the
holding of any inspection or examination;





(c) the
exchange of reports of experts;





(d) the giving
of further particulars reasonably required for the purpose of the
trial;





(e) plans,
diagrams, photographs, models and the like, to be used at the trial;





(f) the
consolidation of trials;






(g) the quantum
of damages;






(h) a
definition of the real issues and the manner in which any particular
issue may be proved;





(i) an
estimation of the probable duration of the trial;





(j) the
preparation of correspondence and other documents to be handed in at
the trial in the form of a paged bundle with copies for
the court and
all the parties;






and,
if it is practicable to do so, the parties shall attempt to reach a
settlement of all or any of the matters in dispute between
them.”





As already
indicated, on the basis of the pre-trial conference minute issued by
the learned judge, the company had its bill of costs
taxed and
allowed in the sum of $17 798.55. The notice of taxation was
sent to Sithole the day before the taxation and Sithole
did not see
it until after the taxation. It is clear that r 310(2) of the
Rules was not complied with by the company because
Sithole was not
given sufficient notice of the taxation. Subrules (1) and (2) of
r 310 read as follows:





“(1) Notice
of taxation to the party against whom any order for costs has been
awarded shall be necessary in every case except
where the party
against whom costs have been awarded has either not entered an
appearance to defend or has failed to appear before
the court either
in person or by legal practitioner.





(2) In
all cases where a notice of taxation is necessary,
three
days’ notice

together with a copy of the bill of costs
shall
be given
by the legal
practitioner of the party whose costs are to be taxed to the other
party or his legal practitioner.” (emphasis added).





The
exception mentioned in r 310(1) does not apply to Sithole and,
consequently, he should have been given three days’ notice
of the
taxation. It is clear from the wording of r 310(2) that this
is peremptory. As the Rule was not complied with, the
taxation was
a nullity.





In fact, as
the order issued by the learned judge at the pre-trial conference was
a nullity, everything which depended upon that
order for its validity
was also a nullity. That includes not only the taxation of costs
but also the warrant of execution and the
sale of Sithole’s
property by public auction.





As
LORD DENNING stated in
MacFoy
v United Africa Co Ltd

[1961] 3 All ER 1169 (PC) at 1172I:





“If
an act is void, then it is in law a nullity. It is not only bad,
but incurably bad. There is no need for an order of the court
to
set it aside. It is automatically null and void without more ado,
though it is sometimes convenient to have the court declare
it to be
so. And every proceeding which is founded on it is also bad and
incurably bad. You cannot put something on nothing and
expect it to
stay there. It will collapse.”





Although the
order issued by the learned judge at the pre-trial conference was
subsequently withdrawn by him, with the consent of
both parties on
5 July 2000, the learned judge did nothing to ensure that the
adverse consequences of his order were reversed.





In addition,
after the order had been withdrawn, the civil action was set down for
trial on seven occasions, according to Sithole,
and on all those
occasions the company came up with one excuse or another for the
postponement of the matter. This allegation and
others have not
been contradicted by the company.





On most of
the occasions when the matter was postponed, it would appear that the
excuse given by the lawyers representing the company
was that the
legal practitioner handling the matter was engaged on other matters.
However, as Sithole submitted, the matter could
have been handled by
another member of the firm. Alternatively, the legal practitioner
concerned should have renounced agency and
advised the company to
instruct other lawyers to represent it at the trial if he was too
busy to do so.





The summons
commencing the civil action was issued on 20 August 1998 and by
28 October 2003, more than five years later,
no trial had taken
place, despite the fact that the matter had been set down for trial
on at least seven occasions. In addition,
there was no good reason
for the postponements. In a way, Sithole was justified in
submitting that the company was afraid of meeting
him in court.





In the
circumstances, I am satisfied that Sithole’s right to a fair
hearing within a reasonable time, enshrined in s 18(9)
of the
Constitution, was violated.





I now wish
to deal with Sithole’s submission that the provisions of s 18(10)
of the Constitution were also violated.





The section
reads as follows:





“Except
in the case of a trial such as is referred to in subsection (14)
or with the agreement of all the parties thereto,
all proceedings of
every court and proceedings for the determination of the existence or
extent of any civil right or obligation
before any other adjudicating
authority, including the announcement of the decision of the court or
other authority, shall be held
in public.”





The right
enshrined in this section is qualified by s 18(11) of the
Constitution, but that qualification does not apply in
this case.
In addition, the exception mentioned in s 18(10) does not apply.





It was
Sithole’s submission that s 18(10) of the Constitution was
contravened in relation to him because on each occasion
when the
matter was postponed without his consent, the proceedings leading to
the postponement, and the announcement of that postponement,
did not
take place in court, nor did they take place in chambers after the
parties had made their submissions on the issue of postponing
the
matter. On the contrary, he was merely informed by the assistant
registrar or the judge’s clerk that the court was not sitting
because the company had written to the judge, presumably seeking a
postponement.





In the
circumstances, he submitted that he was deprived of the opportunity
of arguing against the postponement of the matter, and
applying for
wasted costs in the event that his argument against postponement was
rejected.





In my view,
this is a valid submission. Where a matter has been set down for
trial, and there is no agreement on its postponement,
the party
seeking a postponement must make an application for the postponement
either in chambers or in court, after notifying the
other party, and
the presiding judge must make a ruling on the matter, and on the
issue of wasted costs if the postponement is granted.





Since that
is not what happened on each occasion when the matter was postponed
without Sithole’s consent, I am satisfied that
s 18(10) of the
Constitution was contravened in relation to him.





PARAGRAPH
2





In
this paragraph of the draft order, Sithole seeks an order setting up
a judicial commission of inquiry to investigate the manner
in which
the judges of the High Court at Bulawayo handled his case.





Quite
clearly, this Court does not have the power to issue such an order.
The conduct of the judges concerned could only be investigated
if the
CHIEF JUSTICE was of the view that such an investigation was
warranted, in which case he would act in terms of s 87(3)
of the
Constitution, which reads as follows:





“If,
in the case of a judge of the Supreme Court or the High Court other
than the Chief Justice, the Chief Justice advises the
President that
the question of removal from office of the judge concerned ought to
be investigated, the President shall appoint a
tribunal to inquire
into the matter.”








PARAGRAPHS
3, 4, 5, AND 6





These
paragraphs read as follows:






“3. That the respondent be and
is hereby declared to be in wilful default of appearance on 13 to 15
May 2003.





4. That the
respondent’s defence in case number HC 3222/98 be and is
hereby struck off.





5. That
judgment in case number HC 3222/98 be and is hereby entered for
the plaintiff in the sum of $1 531 755.78.





6. That the
amount be adjusted for inflation by a factor of 40, to read
$61 270 231.20.”






I
have decided to consider these four paragraphs together because they
are all connected in that if the relief sought in para 3
is not
granted the other paragraphs fall away.





In my view,
the relief sought in para 3 cannot be granted because there is
no evidence indicating that the assistant registrar
notified the
company or its legal practitioners that the matter had been set down
for trial on 13, 14, and 15 May 2003. The evidence
on record shows
that after Sithole informed the company’s legal practitioner that
the matter had been set down for trial on 13,
14 and 15 May 2003, the
legal practitioner wrote to the assistant registrar on 12 May
2003, stating that he had not been informed
of the trial dates by
him, and that if he had been informed he would have indicated to him
that he was unavailable on those dates
because he was under an
obligation to appear in the High Court in Harare on those dates.





Indeed, when
the learned judge who was to preside over the matter asked the
assistant registrar, on 13 May 2003, to produce
proof of service
of the notice of set down on the company or its legal practitioners
he was unable to do so.






In the circumstances, the company
was not in wilful default, and the relief sought in paras 3, 4, 5 and
6 of the draft order cannot
be granted.





PARAGRAPH
7





In
this paragraph, Sithole seeks a declaration to the effect that the
attachment and removal of his property on 23 March 2000
was null
and void.





In my view,
he is entitled to this declaration, for the reasons which I have
already given in this judgment.





PARAGRAPHS 8,
9 AND 10





It
is convenient to deal with these three paragraphs together because
they all relate to case no. HC 1341/2000, the chamber
application filed by Sithole on 27 March 2000 seeking an order
setting aside the taxation of the costs awarded to the company
at the
pre-trial conference, and the attachment of Sithole’s property.





The three
paragraphs read as follows:






“8. That the respondent in case
number HC 1341/2000 be and is hereby ordered to buy brand new
replacement property of the same
make and type as that attached and
sold in execution on 14 April 2000.






9. That the respondent be and is
hereby ordered to deliver the property referred to in para 8
above to number 30, 8
th Avenue,
Alaska, Chinhoyi, within two weeks of the date of the granting of the
order.






10. That the
respondent in case number HC 1341/2000 be and is hereby ordered
to pay punitive damages in the sum of $3 000.00
per day from
23 March 2000 to date of restoration of property to the
applicant.”






Whilst
it is correct that Sithole’s property was wrongfully attached and
sold, it is clear from the inventory compiled by the
Deputy Sheriff
on 26 February 2000, the date when the property was attached,
that the property was not new. Sithole is not,
therefore entitled
to new property of the same make and type as that attached and sold.





Had the
property been recently attached and sold, it would have been
appropriate to order its return to him. However, that is
not the
case. The property was attached on 26 February 2000 and sold
by public auction on 14 April 2000. In all probability,
the
present condition of the property is no longer what it was at the
time of attachment.





In the
circumstances, the best way of compensating Sithole for the loss of
his property is to order that he be paid what his property,
in the
condition it was at the time of attachment, would be worth at the
time of the trial. Expert evidence will, obviously, be
required to
establish that value, which will have to be determined by the High
Court after hearing the parties and/or their witnesses.





Paragraph 9,
therefore, falls away.






However, paragraph 10
requires consideration. In that paragraph, Sithole seeks damages in
the sum of $3 000.00 per day
from 23 March 2000 to the date
of the delivery of the new replacement property to him. The
significance of 23 March 2000
is that it is the date on which
the property was removed from Sithole’s premises after it had been
attached on 26 February
2000.






As Sithole has been unlawfully
deprived of the use of his property since the date of its removal
from his residence, the company’s
liability to pay him damages is
established. However, the
quantum
of those damages shall be determined by the High Court after hearing
evidence from the parties and/or their witnesses.





PARAGRAPH
11





In
this paragraph, Sithole seeks an order directing the company to pay
to him the sum of $150 000.00, being expenses allegedly
incurred
by him when he appeared at the High Court in Bulawayo on 13, 14, and
15 May 2003, and on 15 and 16 July 2003, when the civil
action, which
had been set down for trial on those dates, was postponed without his
consent.





In my view,
this claim should be dealt with by the High Court at the trial of the
civil action.





Finally, I
wish to deal with the powers of this Court in applications brought to
it in terms of s 24(1) of the Constitution.
In this regard,
s 24(4) of the Constitution, in relevant part, reads as follows:





“The
Supreme Court … may make such orders, issue such writs and give
such directions as it may consider appropriate for the purpose
of
enforcing or securing the enforcement of the Declaration of Rights
…”.





It
is clear from the wording of the section that, as far as remedies are
concerned, this Court has a very wide discretion in applications
of
this nature. Thus, in
In
re Mlambo
1991 (2) ZLR
339 (S) at 355 B-C, 1992 (4) SA 144 (ZS) at 155 I-J, this
Court commented on s 24(4) of the Constitution
as follows:





“It
is difficult to imagine language which would give this Court a wider
and less fettered discretion.”





Bearing
that in mind, as well as the need to determine all the issues between
the parties as soon as possible, I shall direct that
case no
HC 3222/98 be set down for trial by the High Court in Bulawayo
as a matter of urgency. Secondly, I shall direct the
High Court to
determine what Sithole’s property, in the condition in which it was
at the time of attachment, would be worth at
the time of the trial.
That value will constitute the compensation payable to Sithole for
the loss of his property. Thirdly,
I shall direct the High Court to
determine the
quantum
of damages payable to Sithole for the unlawful deprivation of the use
of his property from the date it was removed from his residence
to
the date of the commencement of the trial. And fourthly, I shall
direct the High Court to determine whether the sum of $150 000.00,
allegedly spent by Sithole when he appeared at the High Court in
Bulawayo on 13, 14 and 15 May 2003 and on 15 and 16 July 2003, and
the matter was postponed without his consent, is recoverable from the
company.





In the
circumstances, the following order is made –






1. It is declared that the
applicant’s rights, in terms of ss 18(9) and 18(10) of the
Constitution of Zimbabwe, were violated.







2. It is declared that the
attachment and removal of the applicant’s property from his
residence on or about 23 March 2000
were wrongful and unlawful.







3. The assistant registrar of the
High Court at Bulawayo shall set down for hearing case no. HC 3222/98
as a matter of urgency.







4. At the hearing of case no.
HC 3222/98, the High Court shall deal with the following
additional issues –







(a) the compensation to be paid
to the applicant for the loss of his property in accordance with the
formula set out in this judgment;







(b) The quantum
of the damages payable to the applicant for the unlawful deprivation
of the use of his property from the date it was removed from
his
residence to the date of the commencement of the trial; and







(c) whether the sum of
$150 000.00, allegedly spent by the applicant when he appeared
at the High Court for trial in May and
July 2003, is recoverable from
the respondent.







5. The costs of this application
shall be paid by the respondent.









CHIDYAUSIKU
CJ: I agree.








ZIYAMBI JA:
I agree.








MALABA JA:
I agree.








GWAUNZA JA:
I agree.










Coghlan & Welsh,
respondent's legal practitioners