1991 [Part 1] ZLR

MALABA v TAKANGOVADA
1991 (1) ZLR 1 (HC)
Division: High Court, Harare
Judges: Greenland J
Subject Area: Opposed motion
Date: 8 & 21 December 1988
(OMITTED IN ERROR FROM EARLIER REPORTS)

Contract — sale of immovable property — condition precedent — effect- benefit of one

party — waiver — failure of condition precedent.
Contract — interpretation — intention of parties.
The respondent, in terms of a written agreement of sale, sold immovable property to the
applicant. The sale was conditional on the purchaser obtaining a bond within a specified
period. This condition was not fulfilled. The applicant sought specific performance of the
contract.
Held, the requirement of a bond was a condition precedent, and the failure to fulfil that
condition was fatal to the enforcement of the contract.
Cases cited:
Leo v Loots 1909 TS 366
Provident Land Trust Ltd v Union Government (Minister of Mines) 1911 AD 615
Corondimas & Anor v Badat 1946 AD 548
Wacks v Goldman 1965 (4) SA 386 (W)
Cotton Tail Homes (Pty) Ltd v Palm Fifteen (Pty) Ltd 1977 (1) SA 264 (W)
Mitchell’s Piano Saloons v Theunissen 1919 TPD 392
R v Katz 1959 (3) SA 408 (C)
Harris v Trustee of Buissinne (1840) 2 Menz 105
Wolf v Richards (1884) 3 HCG 102
Page 2 of 1991 (1) ZLR 1 (HC)
Quirk’s Trustees v Assignees of Liddle & Co (1885) 3 SC 322
Harvey & Anor v Martin (1888) 5 HCG 167
Jacobs v Petersen & Anor 1914 CPD 705
Birkback and Rose-Innes v Hill 1915 CPD 687
Horne v Hutt 1915 CPD 331
Hansen, Schrader & Co v de Gasperi 1903 TH 100
Lanfear v du Toit 1943 AD 59
Bon Accord Irrigation Board v Braine 1923 AD 480
Scottish Union & National Insurance Co Ltd v Native Recruiting Corporation Ltd 1934
AD 458
Union Government v Smith 1935 AD 232
Hughes NO v The Master & Anor 1960 (4) SA 936 (C)
Blaikie-Johnstone v Holliman 1971 (4) SA 108 (D)
Jonnes v Anglo-African Shipping Co (1936) Ltd 1972 (2) SA 827 (A)
Glyphis v Tuckers Land Holdings Ltd 1978 (1) SA 530 (A)
MacDuff & Co Ltd (in liquidation) v Johannesburg Consolidated Investment Co Ltd
1924 AD 573
Koenig v Johnson & Co Ltd 1935 AD 262
Laskey v Steadmet (Edms) Bpk 1976 (3) SA 696 (T)
Leal v Johnson 1978 (4) SA 706 (W)
Margo v Seegers 1980 (3) SA 708 (W)
Roberto v Bandeiro & Anor 1982 (1) SA 880 (W)
Design and Planning Service v Kruger 1974 (1) SA 689 (T)
Meyer v Barnardo & Anor 1984 (2) SA 580 (N)
Mekwa Nominees v Roberts 1985 (2) SA 498 (W)
Phillips v Townsend 1983 (3) SA 403 (C)
Hanomag SA (Pty) Ltd v Otto 1940 CPD 437
Robertson Municipality v Jansen 1944 CPD 526
van Diggelen v de Bruin & Anor 1954 (1) SA 188 (SWA)
Borstlap v Spangenberg en andere 1974 (3) SA 695 (A)
A N H Eastwood for the applicant
No appearance for the respondent
GREENLAND J: In this case the applicant seeks to enforce a contract of sale. Though
respondent has not appeared he has filed a notice of opposition and the papers reveal the
basis thereof.
That basis can be formulated thus: applicant, as purchaser, can have no right to
enforcement of the contract for the reason that the contract failed for lack of fulfilment of
a condition precedent.
Page 3 of 1991 (1) ZLR 1 (HC)
The contract’s potential for existence reposes in a written agreement. It is in standard
form with various numbered and un-numbered sections setting out details, terms and
conditions. The relevant portion of the agreement is reproduced as follows:
“PURCHASE PRICE AND TERMS OF PAYMENT: $60 000 (SIXTY THOUSAND
DOLLARS) payable in cash to the sellers conveyancers in order to effect transfer
See Special Conditions overleaf
1. THE SELLER shall give vacant possession of the property hereby sold to
the Purchaser on TRANSFER OR EARLIER ON MUTUAL AGREEMENT possession
should be made to it. The Seller cedes to the Purchaser all his rights under any Lease or
Leases which may be in existence in respect of the said property.
CONVEYANCERS: STUMBLES & ROWE (MR MEYBURGH)
SPECIAL CONDITIONS:
THIS Sale is subject in all respects to the following special conditions and to the general
conditions annexed hereto and if there shall be any special conditions applicable to the
sale which differ in any respect from such general conditions such special conditions
shall prevail.
1. ...
2. This sale is conditional upon the purchaser being offered a loan in
principle or otherwise on the usual terms and conditions from a Building Society or other
financial institution in the sum of $60 000 (SIXTY THOUSAND DOLLARS) or such
lesser amount as may be acceptable to the purchaser by not later than the 9th July 1988,
unless an extension of this period is agreed to by both parties; such loan to be secured by
means of a first mortgage bond registered over the property sold. The purchaser
undertakes to apply for such loan by not later than the 8th June 1988, and further agrees
not to withdraw such application once made, and agrees to accept such loan when
offered.
GENERAL CONDITIONS;
1. The Agent’s Commission on this Sale shall be paid by the Seller . . .
2. The Seller shall tender transfer of the property . . . within a reasonable
period . . .
Page 4 of 1991 (1) ZLR 1 (HC)
3. The rights of the Seller . . . shall not in any way be prejudiced by any
extensions of time . . .
4. The risk and profit . . . shall pass . . .
5. The property is sold as it stands . . .
6. The Purchaser acknowledges that he has acquainted himself fully with the
property . . .
7. Should either party fail to remedy any serious breach of this agreement
within 14 days of demand . . .
8. The Seller is not responsible for . . . any representations . . .”
Thereafter the agreement bears the signatures of the parties and the date of signing being
7 June 1988.
There can be no doubt that Clause 2 under the heading of “SPECIAL CONDITIONS”
takes the form of what is known as a condition precedent. Such condition:
“suspends the operation of all or some of the obligations flowing from the contract until
the occurrence of a future uncertain event . . .”
per Christie The Law of Contract in South Africa p 126. In the present matter the “future
uncertain event . . .” requiring fulfilment before a contract of sale came into being was to
be a building society loan being granted to applicant as purchaser.
For the sake of clarification and in order to put the central issue in perspective it is
appropriate to set out the following:
The first point to be made is that in such circumstances neither party can claim to have a
sale, ie that a contract of sale is actually in force. As Christie, supra, states at p 128-9:
“Undoubtedly the contract is binding in the sense that what binds the parties to each other
is no more and no less than the contract (ie agreement) into which they have entered, but
we are precluded by authority from saying that a contract of sale subject to a condition
precedent that has not been fulfilled is a sale.”
See Leo v Loots 1909 TS 366 at 370-1; Provident Land Trust Ltd v Union Government
(Minister of Mines) 1911 AD 615 at 627; Corondimas & Anor v Badat 1946 AD 548 at
551 and 558-9; Wacks v Goldman 1965 (4) SA 386
Page 5 of 1991 (1) ZLR 1 (HC)
(W) at 388; Cotton Tail Homes (Pty) Ltd v Palm Fifteen (Pty) Ltd 1977 (1) SA 264 (W)
at 269E and 273E.
Fixing the date on which a sale comes into existence is often important, eg for purposes
of fixing the date when transfer duty is due — see Provident Land Trust, supra, or in
relation to the running of prescription — see Mitchell’s Piano Saloons v Theunissen 1919
TPD 392, or on the question whether a prohibited or criminal sale has occurred — see
Corondimas & Anor v Badat, supra, and R v Katz 1959 (3) SA 408 (C). In all these
situations the date of the sale would not precede the date of fulfilment of the suspensive
condition for the simple reason that no sale exists until fulfilment thereof. Christie, supra,
goes on to point out several other implications which are necessarily present eg —
delivery before fulfilment does not pass ownership — Harris v Trustee of Buissinne
(1840) 2 Menz 105; Wolf v Richards (1884) 3 HCG 102 at 116; Quirk’s Trustees v
Assignees of Liddle & Co (1885) 3 SC 322, Harvey & Anor v Martin (1888) 5 HCG 167;
the risk remains with the Seller — Jacobs v Petersen & Anor 1914 CPD 705; Birkback
and Rose-Innes v Hill 1915 CPD 687 but see Horne v Hutt 1915 CPD 331.
To my mind the above-stated propositions accord with logic, common sense and the
fundamental principle that a court is required to give effect to the intention of the parties
as expressed in the contract. This is made clear by Solomon J in Hansen, Schrader & Co
v de Gasperi 1903 TH 100 at 103:
“Now, it is not for this Court to speculate as to what the intentions of the parties were
when they entered into the contract. That must be gathered from their language, and it is
the duty of the Court as far as possible to give to the language used by the parties its
ordinary grammatical meaning.”
In this respect Centlivres JA concludes at p 72 of the report on Lanfear v du Toit 1943
AD 59:
“The intention so gathered is presumed in law to be the common intention of the parties.”
See Bon Accord Irrigation Board v Braine 1923 AD 480 at 490; Scottish Union &
National Insurance Co Ltd v Native Recruiting Corporation Ltd 1934 AD 458 at 465;
Union Government v Smith 1935 AD 232 at 240-1; Hughes NO v The Master & Anor
1960 (4) SA 936 (C) at 939H; Blaikie-Johnstone v Holliman 1971 (4) SA 109 (D) at 114
C: Jonnes v Anglo-African
Page 6 of 1991 (1) ZLR 1 (HC)
Shipping Co (1936) Ltd 1972 (2) SA 827 (A) at 834E; Glyphis v Tuckers Land Holdings
Ltd 1978 (1) SA 530 (A) at 536-7 in support of the proposition stated by Solomon J, that
intention is to be gathered from the language employed.
Adopting this approach it is clear to me that Clause 2 under the heading of “SPECIAL
CONDITIONS” constitutes a condition precedent proper. The clauses under the heading
of “GENERAL CONDITIONS” constitute terms of the would be contract. These are the
conclusions that must be reached in the light of the general lay out of the agreement and
the plain meaning of the words employed. In particular:
(a) the words employed generally under and including the heading of “SPECIAL
CONDITIONS” reveal a clear intention to suspend the operation of the sale contract and
render its coming into being conditional on applicant, as purchaser, securing a loan in
order to finance the purchase price;
(b) applicant was required to achieve this facility by the 9th of July, 1988;
(c) applicant was obliged to
(i) make application for the loan by the day following upon signature, ie the
8th of June 1988;
(ii) accept a loan, if offered, in such amount as would be needed to finance the
purchase price.
To my mind the relevant clause has a dual character. It constitutes a condition precedent
and imposes obligations of a contractual nature upon the purchaser to ensure as far as the
purchaser is able fulfilment of the condition.
Try as I might I am unable to find anything in the words employed which lead to Clause
2 being construed as being “for the benefit of the purchaser” a proposition advanced by
Mr Eastwood appearing for applicant. Although the word “undertakes” is used in the last
sentence of Clause 2 it is clear from a reading of the whole sentence that the obligation is
contractual.
Essentially the agreement constitutes a contract to bring into being a contract of sale.
Once signed neither party could unilaterally resile or frustrate what was intended without
exposing that party to a claim for damages as envisaged in precedents such as MacDuff
& Co Ltd (in liquidation) v Johannesburg Consolidated Investment Co Ltd 1924 AD 573,
Koenig v Johnson & Co Ltd 1935 AD 262. Simply put a party to a conditional contract
may not frustrate that contract by designedly preventing fulfilment of the condition.
Page 7 of 1991 (1) ZLR 1 (HC)
Mr Eastwood, to whom I am indebted for a very helpful submission, relies heavily on a
line of South Africa decisions starting with Wacks v Goldman supra. See also Laskey v
Steadmet (Edms) Bpk 1976(3) SA 696 (T); Leal v Johnson 1978 (4) SA 706 (W); Margo
v Seegers 1980 (3) SA 708 (W); Roberto v Bandeiro & Anor 1982 (1) SA 880 (W);
Design and Planning Service v Kruger 1974 (1) SA 689 (T).
The principles that may be abstracted from these cases is that where an agreement
relating to the sale of immovable property is subject to a condition that the purchaser
obtain a bond such condition:
(a) is for the benefit of the purchaser;
(b) may be fulfilled or frustrated at the whim of the purchaser;
(c) may be waived by the purchaser;
(d) when so waived by the purchaser still leaves the purchaser with the right to
enforce the contract; and
(e) “. . . the failure to obtain a bond envisaged within the period laid down cannot be
relied upon by the Seller in order to avoid . . . obligation under the document . . .” per
Kumleben J in Meyer v Barnardo & Anor 1984 (2) SA 580 (N) at 583C.
Fortunately it is only necessary to hold that all the precedents relied on by Mr Eastwood,
cited above, Meyer, supra, excepted, are distinguishable on the facts. In none of these
precedents was the court faced with a clause so worded as to give it the dual character
referred to above.
I prefer the approach of Kumleben J in Meyer v Barnardo, supra, at p 585 where he
lucidly and instructively advocates that the intention of the parties must be gathered from
the plain meaning of the words in the relevant clause and such meaning must prevail.
Like Kumleben J, I too conclude that on the wording of the present clause it is not
possible to hold that the condition was for the exclusive benefit of the purchaser. To my
mind it was the seller who benefitted from the contractual obligation imposed on the
purchaser to ensure, as far as the purchaser would, the successful realization of the sale.
See also Mekwa Nominees v Roberts 1985 (2) SA 498 (W) and Phillips v Townsend
1983 (3) SA 403 (C).
It is common cause that —
(a) applicant did not secure the loan by the stipulated date;
(b) applicant, in no way prior to that date, indicated that she had waived the
condition;
(c) the date was not extended by mutual agreement; and
Page 8 of 1991 (1) ZLR 1 (HC)
(d) applicant did not, by stipulated date, offer or tender the purchase price.
Had she done so this court would have accepted that the condition had been fulfilled, not
in forma specifica but, per aequipollens. See Hanomag SA (Pty) Ltd v Otto 1940 CPD
437 at 443; Robertson Municipality v Jansen 1944 CPD 526 at 542; van Diggelen v de
Bruin & Anor 1954 (1) SA 188 (SWA) at 193A and Borstlap v Spangenberg en Andere
1974 (3) SA 695 (A). This is because plain common sense dictates that the common
intention was not so much that the building society would provide a loan but that the
purchase price would be raised by the stipulated date.
In my view the contract of sale failed to come into existence because the condition
precedent was not fulfilled. The condition itself was not for the exclusive benefit of the
purchaser but a term of the agreement which, in part, the purchaser was contractually
bound to ensure fulfilment of.
As no contract of sale ensued applicant has no enforceable rights in such sale. The
application is dismissed with costs.
Kantor & Immerman, applicant’s legal practitioners
George Seirlis & Associates, respondent’s legal practitioners
GOODHOPE ENTERPRISES (PVT) LTD v CAPS HOLDINGS LTD & ANOR
1991 (1) ZLR 9 (SC)
Division: Supreme Court, Harare
Judges: Dumbutshena CJ, McNally JA & Manyarara JA
Subject Area: Civil appeal
Date: 1 June & 11 June 1989
(OMITTED IN ERROR FROM EARLIER REPORTS)

Company — winding-up — failure to pay debts — inability due to acts of creditor —

discretion of court.
The respondents had financed the importation of scooters and spare parts by the
appellant. The goods were pledged to the respondents as security. The respondents
refused to release the goods until an outstanding debt was paid. The appellant contended
that it needed the goods in order to trade and pay its debt to the respondents. The
respondents sought the winding up of the appellant on the grounds that it was unable to
pay its debts. The rule nisi was confirmed by the High Court. On appeal the appellant
contended that the judge of the High Court had not properly exercised his discretion in
the matter.
Held, the refusal by the respondents to release the goods to the appellant should have led
the High Court to refuse the grant of a winding-up order.
Held, further, the judge of the High Court exercised his discretion on a wrong principle as
the respondents were fully secured creditors.
Cases cited:
Ebrahim (Pty) Ltd v Pakistan Bus Services (Pty) Ltd 1964 (4) SA 146 (N)
Ex parte Neethling & Ors 1951 (4) SA 331 (A)
Clarke v Protein Foods (Pvt) Ltd 1970 (2) RLR 278 (A)
Page 10 of 1991 (1) ZLR 9 (SC)
J B Colegrave, with him E Chatikobo, for the appellant
M R D Stonier for the respondent
DUMBUTSHENA CJ: On 19 January 1987 Goodhope Enterprises (Pvt) Ltd, hereinafter
referred to as the appellant, on the one hand and Caps Holdings Limited and its
subsidiary Executive Freight (Pvt) Ltd hereinafter referred to as respondents, on the other
hand, entered into an agreement. By this agreement the respondents agreed to finance the
appellant and to pay money for customs clearance of the appellant’s scooters held in
customs bond pending payment of customs dues. The appellant pledged the goods to be
customs cleared and other goods as security for monies due to the respondents. By 14
March 1988 the appellant was indebted to the respondents in the sum of $522 361,00 for
costs of goods, costs of shipping, sea freight, handling charges, customs clearing, storage,
interest and other charges. The appellant averred that if the value of the pledged goods
was taken into account the balance owing it itself was $148 887,98.
The material parts of the agreement, Annexure C to the Petition are paras 4, 5 and 6.
They read as follows:
“4. Pledge
That immediately upon clearance of the remaining goods held in customs
bond Goodhope hereby undertake to deliver the hereby pledge to Caps and/or Executive
Freight all of such goods to be held in their possession pending settlements of all sums
due by Goodhope to Cape and/or Executive Freight. Such goods are as described in
Annexure ‘A’ hereto.
5. Further Pledge
That Goodhope further undertakes to deliver to Caps and/or Executive
Freight certain goods previously cleared and assembled being delivery scooters as listed
in the attached schedule marked ‘B’ and hereby pledges such vehicles to Cape and/or
Executive Freight as further security for its indebtedness to such companies.
6. Release of Goods
That Caps and/or Executive Freight agree that they will from time to time
release to Goodhope some of the goods as and when same are sold provided however that
arrangements satisfactory and acceptable are made for payment towards the outstanding
amount.”
Page 11 of 1991 (1) ZLR 9 (SC)
Besides the goods that were cleared through customs by the respondents and pledged to
them, the appellant agreed to deliver to the respondents scooters that were previously
cleared and assembled. These were also held as security by the respondents. They were to
be released from their possession upon payment of all monies due to the respondents.
In terms of para 6 of the agreement the respondents agreed to release to the appellant
some of the goods when they had been sold on condition that satisfactory arrangements
were made for payment money towards the liquidation of the outstanding loan.
It appears from the papers that the terms of the agreement were not strictly followed.
Consequently the respondents suspended the operation of para 6. They stopped releasing
goods they held as security to the appellant. The conditions of the agreement were not
fulfilled. The appellant did not pay money towards the satisfaction of the amount of
money advanced to him by the respondents.
The respondents applied to the High Court for the winding up of the appellant company
in terms of s 179(f) of the Companies Act [Chapter 190]. A rule nisi was issued. On the
return day the court a quo confirmed the rule. The appellant now appeals to this court.
One of the grounds of appeal reads:
“[T]he learned judge erred in failing to appreciate that the respondents prevented the
appellant from fulfilling the terms of the agreement; . . .”
Mr Colegrave for the appellant did not argue that the appellant was able to pay its debts
because of the deeming provisions of s 178(a) of the Companies Act. He conceded that
the learned judge a quo was empowered to wind up the appellant company in terms of s
179(f) of the Act on the ground that the appellant company had failed to pay its debts.
He, however, contended that the learned judge a quo misdirected himself or exercised his
discretion wrongly when he said in his judgment.
“Respondent’s stance that the Petitioners are authors of the prejudice in that by refusing
to release the goods pledged they are incapacitating respondents from marketing the
goods and paying out of the proceeds therefrom is without merit. The written agreement
between the parties stipulates the arrangements and there can be no basis for departing
therefrom. In fact it would be inequitable to expect Petitioner to part with their security. It
could also be dangerous.”
Page 12 of 1991 (1) ZLR 9 (SC)
It was contended for the appellant that in terms of para 6 of the agreement the
respondents were bound to release to the appellant some of the goods so that they could
be sold and the proceeds paid to the respondents to off-set the debt. What went wrong,
Mr Colegrave argued, was that the purport of para 6 was changed and altered by the
respondents. This change, or more precisely the suspension of the release of goods to the
appellant, prevented the appellant from fulfilling the terms of the agreement. It was this
point and this particular ground of appeal which the learned judge a quo did not consider.
In my view the learned judge a quo did not appreciate appellant’s contention that it had
been “incapacitated” “from marketing the goods” and thereafter paying the respondents.
This was so because respondents had suspended para 6.
The reason proffered by the respondents in support of the suspension of the terms of para
6 was that the value of the kits under pledge appeared to be insufficient to meet the
balance outstanding. Mr Stonier, for the respondents, argued that the respondents were
entitled to withhold the release of the goods. He said they did not, by suspending the
earlier arrangements, depart from the terms of the agreement. It seems to me the
respondents breached the agreement because the operational part of the agreement was
contained in para 6. It enabled the appellant to sell the goods released to it by the
respondents. And, what is more important, with the proceeds of the sale, the appellant
would have been able to pay the respondents.
In my judgment the respondents must have appreciated when they agreed to take as
security goods which were the means of realising money for paying back the monies they
loaned to the appellant, that without selling those goods, the appellant would be unable to
raise money for repaying the loan. The appellant was in the business of selling three-
wheel pick-up vans and delivery vans. I cannot say without any evidence before me that
the appellant was able to raise any other form of security. Once the terms of para 6 were
suspended both the respondents and the appellant were bound to encounter difficulties.
It is clear from a reading of the judgment of the court a quo that the learned judge did not
apply his mind to the question raised on appeal. The question in issue is: Whether by
refusing to release the goods to the appellant the respondents were not preventing him
from doing business by selling the goods held as security by them? In my opinion they
contributed to the appellant’s inability to pay his debts. The court a quo should have
asked whether by refusing to release the goods for sale and thus rendering the appellant
incapable of generating funds with which to liquidate its indebted-
Page 13 of 1991 (1) ZLR 9 (SC)
ness to them, they were entitled to a winding up order. In my opinion these circumstances
would make the court form the opinion that it should not grant a winding up. I say this
because by departing from the terms of para 6 of the agreement and by withholding the
release of the goods the respondents kept readily realizable assets which would have been
available to the appellant and out of which or the proceeds of which the appellant would
pay its debts. See Ebrahim (Pty) Ltd v Pakistan Bus Service (Pty) Ltd 1964 (4) SA 146
(N) at 147F.
Although this point was referred to in the papers before him, the learned judge a quo
seemingly ignored it or he ignored it because counsel did not draw his attention to it.
The point I have referred to above is not one and the same with that considered by the
learned judge in his judgment when he said:
“It is also well established in law that the fact that a debt is secured does not disentitle a
creditor from bringing an application for the liquidation of a debtor. Visser v Bruce and
Company 1925 CPD 1, National Bank v Munnich’s Estate 1925 EDC 77, Malk v Ring
and Gelvan 1929 WLD, 224, R v Hohls 1959 (2) SA 656 (N) 657, Duminy v Beukes
1923 OPD 64, Cohen & Sons v De Beer 1924 WLD 29.”
The cases referred to above dealt with a different situation from the instant one. In those
cases the question that was considered was whether a fully secured creditor had locus
standi to apply for the sequestration of his debtor’s estate. The decisions make it clear
that a fully secured creditor can apply for the sequestration of his debtor’s estate.
The real issue in this case was whether it would be a proper exercise of discretion to
liquidate this particular company at the instance of these particular creditors in these
particular circumstances. The goods pledged as security in this case are the very goods
with which the appellant would generate money with which to pay the respondents. A
reading of para 6 shows that both the appellant and the respondents appreciated this
point. That is why in the instant case it was wrong to suspend the releasing of the goods
to the appellant. Those goods were real assets from whose proceeds of sale the agreement
would be honoured by the appellant. By refusing to release the goods the respondents
frustrated the appellant. In my judgment it was not just and equitable to confirm the rule.
Page 14 of 1991 (1) ZLR 9 (SC)
While it is easy for me to understand why the respondents refused to release the goods in
their possession, I find myself unable to accept Mr Stonier’s contention that the full
amount of the debt outstanding would not be paid and would no longer be secured were
the goods to be released to the appellant. The parties entered into this agreement well
aware of the fact that the respondents would release to the appellant the goods held by
them as security and the appellant would sell them and pay the proceeds to the
respondents in order to reduce or even liquidate the appellant’s indebtedness. As I have
remarked before I fail to appreciate why the respondents agreed to accept the goods as
security.
Mr Stonier further submitted that even if the respondents were to release the goods and
even if they were sold, not sufficient money would thereby be realised to off-set the
outstanding amount. That might be true. The appellant however contends that the amount
of $469 283,92 said to be still outstanding and which the respondents say would be
increased by storage charges, interest and sundry other charges, would be paid off
because of the “likelihood of any seller of these kits being able to take advantage of the
increasing worth or value of these kits. In other words, while the value of the kits in
March 1988 may have been just over $400 000,00 they would probably sell for very
much more today”. There is force in this argument. It is a notorious fact that prices of
scarce commodities in Zimbabwe rise at phenomenal rates. The appellant believed that
the kits would fetch much more than the price they would have fetched in March 1988.
The respondents do not believe so.
Mr Colegrave sought to reinforce the appellant’s contention by producing the report
prepared by Mr Beazley, the liquidator of the appellant company. Mr Stonier objected to
the production of the report. He said the figures in that report would be new evidence and
in any event Mr Beazley had not sworn an affidavit. Speaking for myself, I thought it
would be fair and proper to look at the report. The court allowed itself the privilege of
seeing the report. Mr Beazley had now sworn an affidavit. His report is of interest to this
court because of the view I have expressed on the suspension of the releasing of the
appellant’s assets held by the respondents. These assets may have been the appellant’s
only means of generating income for the liquidation of its indebtedness to the
respondents. Let me point out that I would have arrived at the conclusion I am about to
make without Mr Beazley’s report. The report does confirm, in my view, that the goods
are sufficient to realise enough income to offset the outstanding amount. The appellant
will pay interest on that sum at the rate of 15%. If the amount of interest is not covered by
the
Page 15 of 1991 (1) ZLR 9 (SC)
proceeds of the sale of goods, the appellant will have to raise the amount somehow.
Be that as it may, Mr Stonier further submitted that this court ought not to interfere with
the learned judge’s exercise of his discretion unless it is shown that he exercised it
capriciously, or upon wrong principle, or that he failed to bring to bear an unbiased
judgment on the question at issue or did not act for substantial reasons. See Ex parte
Neethling & Ors 1951 (4) SA 331 (A) at 335 and Clarke v Protein Foods (Pvt) Ltd 1970
(2) RLR 278 (A) at 281-282. In Ex parte Neethling & Ors, supra, Greenberg JA asked the
following questions at 335D-E:
“Can it be said in the present case that the court a quo has exercised its discretion
capriciously or upon a wrong principle, that it has not brought its unbiased judgment to
bear on the question or has not acted for substantial reasons?”
In the instant case it is not easy to say that the judge a quo did not act on a wrong
principle. On the question of fully secured creditors the learned judge failed to distinguish
the cases he cited and which I have referred to above from the circumstances and
principles governing the determination of this case. He did not apply his mind to the
question in issue which is the refusal by the respondents to release reliable assets to the
appellant. It may be he failed to apply his mind to that question because counsel did not
draw his attention to it. From a reading of the learned judge’s judgment I find no ground
for saying he exercised his discretion capriciously. All I can say is that he exercised his
discretion on a wrong principle, that is the entitlement of a fully secured creditor to apply
for a sequestration order against the debtor’s estate.
I appreciate Mr Stonier’s other submission that this court should determine whether the
court a quo exercised its discretion in the light of the situation then pertaining at the dates
the rule nisi was obtained and confirmed. In support of his submission Mr Stonier relied
on a passage in Clarke v Protein Foods (Pvt) Ltd, supra, at 280H-281A. In that case
Beadle CJ said:
“For one reason or another, some 12 months have elapsed since the delivery of the
judgment appealed against. In matters of this sort, it is absolutely essential that, if the
order of the court a quo is to be reversed on appeal, it must be reversed as soon as
possible after judgment has been given, because the affairs of a commercial company
may change from
Page 16 of 1991 (1) ZLR 9 (SC)
day to day. Even on the assumption that, under the circumstances existing a year ago, it
may have been desirable to place the respondent company under judicial management, it
by no means follows that the same circumstances exist today. It would be highly artificial
if this court, acting on the assumption that the circumstances were unchanged from what
they were a year ago, reversed the judge’s order, and now ordered that the respondent
company be placed under judicial management, only for it to emerge that circumstances
had changed and the respondent company had overcome its difficulties, because the
respondent company would then be placed in the position of having to apply forthwith to
have the order of judicial management discharged before it ever became operative.”
There is a difference between the circumstances in Clark’s case, supra and the instant
case. In this case the appellant in answer to the allegation that it was unable to pay its
debts within the meaning of s 178(a) of the Act asserted, in its replying affidavit, that the
selling price of the scooters was more than sufficient to settle the respondents’ claim. To
this the respondents say whether the selling price of the scooters will settle their claim
can only be determined after the scooters are sold some time in the future. It must be
remembered that they suspended the release of the goods to the appellant and thus
suspended their sale. They were not concerned with the future selling price of the goods
because the important issue to them was that the appellant had committed an act of
insolvency within the meaning of s 178(a) of the Act and what is more they refused to
release the goods to him.
What is at issue in the determination of this appeal is the fact that the respondents
effectively, by their suspension of the release of the goods to the appellant, stopped the
appellant trading in these goods and thus prevented it from raising money with which to
pay the respondents. Had the learned judge a quo applied his mind to this particular issue
he would have refused to confirm the rule. In my opinion for this reason alone the appeal
should be allowed.
As far as costs are concerned it seems fair to me that they should follow the event. Mr
Stonier argued that since the appellant conceded that it had committed an act of
insolvency, should the appeal succeed, the respondents should not be ordered to pay
costs. The only matter that worries me is that the respondents prevented the appellant
from trading in the goods they refused to release to it, thereby stopping him from raising
money with which to pay them. It is for this reason that I hold the view that it would be
just and fair for
Page 17 of 1991 (1) ZLR 9 (SC)
the respondents to pay the costs of appeal and for each party to pay its own costs in the
court below. Admittedly the appellant committed an act of insolvency. The respondents
were therefore entitled to apply for a sequestration order.
Accordingly the appeal is allowed with costs. The order of the court below is altered to
read:
“The rule nisi is discharged. Each party to pay its own costs.”
McNally JA: I agree.
Manyarara JA: I agree
Chirunda, Chihambakwe & Partners, appellant’s legal practitioners
Condy, Chadwick & Elliott, respondents’ legal practitioners
SECRETARY FOR TRANSPORT & ANOR v MAKWAVARARA
1991 (1) ZLR 18 (SC)
Division: Supreme Court, Harare.
Judges: Manyarara JA, Korsah JA & Ebrahim JA.
Subject Area: Civil appeal
Date: 15 October & 4 December 1990.

Review proceedings — audi alteram partem — right to legal representation.

The audi alteram partem rule requires no more than an opportunity to make
representations, to place one’s own version before a tribunal and to rebut evidence
against oneself. A person entitled to the benefit of the audi alteram partem rule need not
be afforded all the facilities which are allowed to a litigant in a judicial trial. He need not
be given an oral hearing; or allowed legal representation; he need not be given a right to
cross-examine; and he is not entitled to discovery of documents.
The appellant appealed from a decision of the High Court that the dismissal of the
respondent from his post as Principal Executive Officer in the Ministry of Transport in
terms of the Public Service (Officers) (Misconduct and Discharges) (Amendment)
Regulations (No. 1) of 1988 should be set aside. The respondent had been appraised of
the case that he had to answer; had been given ample opportunity to make representation
and had been given sight of all relevant documents. He had argued a quo, however, that
he had been denied the right to legal representation.
Held, that the rules of natural justice had not been breached, accordingly the respondent’s
dismissal was proper and that the appeal should succeed to that extent.
Cases cited:
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; [1984] 3
All ER 935 (HL)
PF-ZAPU v Minister of Justice, Legal & Parliamentary Affairs 1985 (1)
Page 19 of 1991 (1) ZLR 18 (SC)
ZLR 305 (SC); 1986 (1) SA 532 (ZS)
Heatherdale Farms (Pty) Ltd & Ors v Deputy Minister of Agriculture & Anor 1980 (3)
SA 476 (T)
Public Service Commission & Anor v Tsomondo 1988 (1) ZLR 427 (SC)
Public Service Commission & Anor v Mutsonziwa S-40-89 (not reported)
Mukono v Minister of Health & Anor S-99-90 (not reported)
R v Deputy Industrial Injuries Commission, ex parte Moore [1965] 1 QB 456; [1965] 1
All ER 81 (CA)
Secretary of State for Education and Science v Tameside Metropolitan Borough Council
[1977] AC 1014; [1976] 3 All ER 665 (CA)
Oskil Properties (Pty) Ltd v Chairman of the Rent Control Board & Ors 1985 (2) SA 234
(SE)
M R D Stonier for the appellant
D P Carter for the respondent
KORSAH JA: The Secretary for Transport and the Chairman of the Public Service
Commission appeal against the decision of the High Court dated 15 June 1989 —
(a) ordering that the dismissal of the respondent as stated in the Public Service
Commission’s letter dated 3rd March 1989 be and is hereby set aside;
(b) declaring that the respondent is entitled to his salary and allowances from the date
of suspension until the matter of his alleged misconduct is properly resolved; and
(c) that the appellants bear the costs of suit jointly and severally, the one paying the
other to be absolved.
The application in which the High Court made this order was preceded by another
application in case No. HC 1144/86 wherein the relief sought by the respondent was, by
consent, granted, and a consent order made to the effect that the suspension of the
respondent by the first appellant as Principal Executive Officer in the Ministry of
Transport on “the 19th day of August 1987 be and is hereby declared null and void”. The
effect of this consent judgment setting aside the suspension of the respondent was to give
the respondent full entitlement to his salary and allowances, minus any amount paid by
way of a suspension allowance, from the date of suspension, 19th August 1987, to 3rd
March 1989, when he was served with a letter of dismissal.
Page 20 of 1991 (1) ZLR 18 (SC)
[The learned judge dealt with the facts and then continued:]
Administrative action, it was conceded by both counsel, is subject to control by judicial
review under three heads:
(a) Illegality, where the decision-making authority has been guilty of an error in law;
(b) Irrationality, where the decision-making body has arrived at a decision “so
outrageous in its defiance of logic or of accepted moral standards that no sensible person
who had applied his mind to the question to be decided could have arrived at it”; per
Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985]
AC 374; [1984] 3 All ER 935 (HL) at 951A; and
(c) Procedural Impropriety, where the decision-making authority has failed in its duty
to act fairly. See PF-ZAPU v Minister of Justice, Legal and Parliamentary Affairs 1985
(1) ZLR 305 (SC) at 326-7; 1986 (1) SA 532 (ZS) at 548-549.
In this matter, there was no suggestion of illegality insofar as the determination by the
second appellant was concerned. And with regard to procedural impropriety, Mr Stonier
submitted, rightly in my view, that despite the respondent’s allegations of bias and malice
in his founding affidavit, he was unable to justify or substantiate such claims, and the
learned trial judge cannot be faulted for disregarding them.
Likewise, the respondent’s claim that the audi alteram partem rule was not observed was
also dismissed by the learned trial judge who, adopting the words of counsel for the
appellants in the court below, said:
“The audi alteram partem rule required no more than an opportunity to make
representations, to place one’s own version before the tribunal and to rebut evidence
against oneself. The applicant in this matter was given all those opportunities, and in
addition was given the chance to go through all the documents that he required in order to
present his case.”
In Heatherdale Farms (Pty) Ltd & Others v Deputy Minister of Agriculture & Anor 1980
(3) SA 476 (T) at 486D Colman J also noted that:
“It is clear on the authorities that a person who is entitled to the benefit of
Page 21 of 1991 (1) ZLR 18 (SC)
the audi alteram partem rule need not be afforded all the facilities which are allowed to a
litigant in a judicial trial. He need not be given an oral hearing; or allowed representation
by an attorney or counsel; he need not be given an opportunity to cross-examine; and he
is not entitled to discovery of documents.”
The respondent in the present appeal was granted ample opportunity to make
representation and admitted to having sight of all the relevant documents of account upon
which the charge of failing to account for the sum of $312, was grounded. In the
circumstances, the court of first instance rightly concluded that his right to a fair hearing
was not infringed.
It was contended by Mr Carter for the respondent that in terms of s 7 of SI 161 of 1986
where there was a material dispute of fact which the second appellant could not resolve
on the papers before it, the second appellant was obliged to refer such dispute to a
Commission of Enquiry which would determine whether or not the officer was guilty of
misconduct, and that the denial by the respondent that he had failed to account for the
sum of $312 raises such a material dispute, which should have been submitted for
determination by a Commission of Enquiry.
Mr Carter sought to derive support for this submission from the words of McNally JA in
Public Service Commission & Anor v Tsomondo 1988 (1) ZLR 427 (SC) at 441 reciting
that:
“In the present case there is a dispute of fact: the Commission says the officer took
bribes; he says he did not. The dispute could hardly be more material.”
In Tsomondo’s case, supra, the charge against the respondent was one of bribery. In such
a case, where there is a denial on the part of the officer of having received bribes, in the
absence of conclusive evidence in support of the charge there arises a need for the officer
to confront his accusers to establish how, where and when such bribes, if any, were
received by him, and from whom. Such disputes of facts could obviously not be resolved
on the papers without an opportunity being afforded the officer to challenge his accusers.
Likewise, in Public Service Commission & Anor v Mutsonziwa S-40-89, where charges
of theft were being denied by the respondent, there could not, on the facts, have been a
resolution of the material dispute without an
Page 22 of 1991 (1) ZLR 18 (SC)
opportunity being afforded the officer to confront his accusers at an enquiry. This is a far
cry from saying that where someone alleges an act of misconduct and the accused person
denies it, then there is a material dispute of fact which cannot be resolved on the papers.
McNally JA at page 8 of his judgment in the Mutsonziwa case, supra, posed the question:
“When can the Commission resolve such a dispute on the papers before it?” and
proceeded to answer it as follows:
“Generally speaking and for the reasons set out at pages 17-19 of Tsomondo supra,
questions of credibility cannot normally be decided by looking at pieces of paper and
believing one as against the other. There may be exceptions. The defence put forward
may be so utterly ridiculous that no reasonable tribunal can be expected to accept it. Or
there may be cases where the defence case refers to witnesses who will support the
allegations of the accused officer. If, then, statements are taken from those witnesses, and
they wholly fail to support the officer’s allegations, it may be reasonable for the
Commission to say that the dispute can be resolved against the officer without the
holding of an enquiry.”
In the instant appeal, the respondent was charged with the failure to take reasonable care
of or to account for public funds which he had handled. He was given every opportunity
to reply to the charge and to inspect all the books of accounts and receipts. He did not
deny receiving the original sum of $1 012,00. After going through the accounts books
and receipts, he said he recalls that the balance of $312 was collected by the late Mr
Mushayademo and that he recalls making him sign for it. Mr Mushayademo being dead
and there being no evidence of his having signed for the sum of $312, what would it avail
the respondent to have a Commission of Enquiry set up to investigate the matter?
The respondent also explained that he had instructed his staffing officer to ensure that
when the paysheets were eventually received from Harare International Airport Mr
Mushayademo must sign for the full May 1985 salary as he had received it in full.
However this instruction was overlooked until Mushayademo passed away after another
illness. The truth of the matter was that all the material incontrovertible documentary
evidence available was before the Commission and setting up a Commission of Enquiry
was unlikely to be productive of further intelligence regarding the amount of $312 which,
admittedly, had passed through the respondent’s hands and could not be accounted for.
Page 23 of 1991 (1) ZLR 18 (SC)
As in Mukono v Minister of Health & Anor S-99-90 at 7, the real issue is whether or not
the Commission acted reasonably in purporting to resolve the material dispute of facts
without resorting to a Board of Inquiry in terms of ss 16 and 17 of the Regulations?
Accepting that the Commission acts as a quasi-judicial body in the exercise of its
function of resolving disputes of fact on the papers, the strict rules of evidence do not
apply to it, even though it is bound to apply the rules of natural justice.
In the words of Diplock LJ in R v Deputy Industrial Injuries Commissioner, ex parte
Moore [1965] 1 QB 456; [1965] 1 All ER 81 (CA) at p 94E-G:
“The requirement that a person exercising quasi-judicial functions must base his decision
on evidence means no more than that it must be based on material which tends logically
to show the existence or non-existence of facts relevant to the issue to be determined, or
to show the likelihood or unlikelihood of the occurrence of some future event the
occurrence of which would be relevant. It means that he must not spin a coin or consult
an astrologer; but he may take into account any material which, as a matter of reason,
has some probative value in the sense mentioned above. If it is capable of having any
probative value, the weight to be attached to it is a matter for the person to whom
Parliament has entrusted the responsibility of deciding the issue. The supervisory
jurisdiction of the High Court does not entitle it to usurp this responsibility and to
substitute its own view for his.”
On the papers before it, could the second appellant be accused of being unreasonable in
concluding that the respondent had failed to take reasonable care of or to account for
public funds.
In Secretary of State for Education and Science v Tameside Metropolitan Borough
Council [1977] AC 1014 at 1025-1026; [1976] 3 All ER 665 (CA) at 671e-h Lord
Denning MR cautions that:
“No one can properly be labelled as being unreasonable unless he is not only wrong but
unreasonably wrong, so wrong that no reasonable person could sensibly take that view.
All the more so when a man — be he a judge or a Minister — is entrusted by Parliament
with the task of deciding whether another person has
Page 24 of 1991 (1) ZLR 18 (SC)
acted, is acting or is proposing to act unreasonably. Especially when the one who has to
decide has himself his own views — and perhaps his own strong views — as to what
should or should not be done. He must be very careful then not to fall into the error — a
very common error — of thinking that anyone with whom he disagrees is being
unreasonable. He may himself think the solution so obvious that the opposite view cannot
reasonably be held by anyone. But he must pause before doing so. He must ask himself:
“Is this person so very wrong? May he not quite reasonably take a different view?’ It is
only when the answer is: ‘He is completely wrong. No reasonable person could take that
view’, that he should condemn him as being unreasonable.”
On his own admission to the second appellant, the respondent could not account for the
sum of $312. What the court should do in such a case is to put itself in the shoes of the
second appellant and consider the evidence that was placed before the Commission, and
no other evidence, and then determine whether the Commission, on that evidence, acted
unreasonably in resolving the dispute of fact.
Mr Stonier submitted, rightly in my view, that, having been accorded access to all
relevant documents, the respondent still could not show what had happened to the sum of
$312, and that in the premises the determination by the second appellant was reasonable
and should not have been interfered with. See Oskil Properties (Pty) Ltd v Chairman of
the Rent Control Board & Others 1985 (2) SA 234 (SE) at p 237E.
The learned judge in the court of first instance sought to draw some distinction between
“failing to account” and “failing to properly account”. With respect, if the duty on the
respondent was to account, if he fails to properly account then he has not accounted —
either you account in full or you have not accounted, there is no halfway house of “failing
to properly account”.
Again, the learned trial judge alluded to an assertion in the respondent’s answering
affidavit alleging that when Mr Mushayademo signed the short receipt for the sum of
$312 he (the respondent) gave the original of the receipt to Mr Mushayademo and kept
the copy and that he now suspects that the copy has been tampered with.
I stated earlier that the High Court, in the exercise of its review powers over the
determinations by quasi-judicial bodies, must place itself in the position
Page 25 of 1991 (1) ZLR 18 (SC)
of the tribunal whose determination is being reviewed and assess the reasonableness or
otherwise of the determination on the basis of the evidence actually put before the
tribunal.
Before the resolution of the facts alleged to be in dispute by the second appellant the
respondent never alleged that he suspected that someone had tampered with the receipt
for $312. In fact no such allegation was made by the respondent in any of his several
communications with the second appellant prior to the determination by the second
appellant. Not even in his founding affidavit does the respondent raise the issue. He
makes the point that he suspects that the receipt had been tampered with only in his
answering affidavit. So that his suspicions were not before the second appellant as
evidence for consideration — that is if such vague suspicions can affect the determination
of the second appellant in a matter of this nature. The learned trial judge, in determining
the reasonableness of the second appellant’s determination, fell into error by considering
material which was not placed before the second appellant for its consideration in its
resolution of the dispute of fact.
On the facts actually placed before the second appellant, that the respondent had perused
all relevant documents and still could not account for the sum of $312 which he admitted
receiving, I do not think that the second appellant’s resolution of the material dispute of
fact on the papers can properly be categorised as being “so outrageous in its defiance of
logic or of accepted moral standards that no sensible person who had applied his mind to
the question to be decided could have arrived at it”; CCSU v Minister for the Civil
Service, supra.
In the result, the decision of the High Court —
(a) Ordering that the dismissal of the respondent as stated in the Public Service
Commission’s letter dated 3rd March 1989 be and is hereby dismissed, is set aside and in
its place is substituted the following:
“The application to have the determination of the second respondent contained in its
letter of 3rd March 1989 set aside is hereby dismissed”;
(b) The declaration that the appellant is entitled to his salary and allowances from the
date of suspension, 19th August 1987 to 3rd March 1989, together with costs, subject to
the deduction of any suspension allowance paid to him, is upheld.
Page 26 of 1991 (1) ZLR 18 (SC)
(c) As each party partially succeeded in the court of first instance and in this court,
each party is to bear its own costs in both courts.
Manyarara JA: I agree.
Ebrahim JA: I agree.
Civil Division, Attorney-General’s Office, appellant’s legal representatives
Chirunda, Chihambakwe & Partners, respondent’s legal representatives
MARUMAHOKO v CHAIRMAN OF THE PUBLIC SERVICE COMMISSION &
ANOR
1991 (1) ZLR 27 (HC)
Division: High Court, Harare
Judges: Adam J
Subject Area: Notice of motion
Date: 14 June & 19 December 1990

Constitutional Law — Public Services (Officers) (Misconduct and Discharge)

Regulations 1986 — whether exclusion of any obligation to inform affected parties as to
facts determined or to render reasons for the decision, to permit them to be heard thereon
in person and to make representations prior to the imposition of a penalty and the right to
legal representation render the same ultra vires s 18 of the Constitution of Zimbabwe to
this extent.
Administrative Law — Public Services (Officers) (Misconduct and Discharge)
Regulations — extent of effect of rules of natural justice thereon — when dispute of fact
arises — procedures to be adopted under the Regulations — need to afford affected party
adequate notice of hearing — whether decision valid if correct regardless of non
observance of vires of natural justice — need for affected party to be appraised of any
information to be used against him.
The applicant, a public servant, had been charged with misconduct pursuant to the Public
Services (Officers) (Misconduct and Discharge) Regulations 1986 it having been alleged
that he had used his position to acquire a motor vehicle directly from the manufacturer
and had thereafter sold it at a price considerably greater than that originally paid by him
and that his conduct was unbecoming, blemished the image of the Public Service and was
inconsistent with and prejudiced to the discharge of applicant’s duties.
Applicant, in response to an invitation to do so had made written represen-
Page 28 of 1991 (1) ZLR 27 (HC)
tations regarding these charges. The Commission however, relying upon the record of
evidence and findings of an earlier Commission of Enquiry found applicant guilty and
directed that he be dismissed.
Applicant sought to have these decisions set aside on review, inter alia, on the grounds
that the decision to discharge him was grossly unreasonable because the findings of the
Commission of Enquiry did not constitute evidence or, of they did, the first respondent
ought not to have acted upon them without first affording applicant an opportunity to deal
therewith.
Held, that there were procedural irregularities in that the letter informing the applicant of
the charges was not drafted by the appropriate official as required by the Regulations and
also because it spoke of “charges of misconduct” in contravention of the Regulations.
Held, further, that whereas ss 7 and 9 of the Regulations require the Public Service
Commission to determine objectively, whether or not a dispute of fact has arisen, capable
of resolution on the papers before it, and to hold an inquiry in the event of it finding that a
dispute has arisen, in either event the Regulations suggest that there is no need to advise
the officer concerned of the findings of fact or to afford him an opportunity to respond to
such findings before a determination of guilt be made.
Held, further, that under s 18 of the Constitution of Zimbabwe a person is entitled to a
fair hearing which entitlement includes ‘procedural fairness’ which, in this particular case
includes the right of the person concerned to be heard in person upon the findings of fact.
Held, further, that such procedural fairness includes generally, an entitlement to adequate
notice of the impending hearing and requires that the person concerned be appraised of
the information which is to be relied upon against him.
Held, further, that the Regulations are also ultra vires the Constitution of Zimbabwe to
the extent that they preclude an officer from legal representation.
Held, further, that whereas it has been held that the rules of natural justice do not require
a tribunal to supply reasons for its decisions, the exclusion of the necessity to do so
renders the Regulations ultra vires the Constitution to this extent.
Held, further, that once there has been a violation of the principles of natural justice, it is
immaterial whether the same decision would have been attained notwithstanding this
departure, the decision reached being nonetheless void.
Held, further, that there had been a dispute of fact incapable of resolution on the papers
and, in addition, that the Public Service Commission had taken account of factors of
which applicant had not been made aware.
Page 29 of 1991 (1) ZLR 27 (HC)
Cases cited:
Clan Transport Co (Pvt) Ltd v Swift Transport Services (Pvt) Ltd & Ors 1956 R&N 120
(SC); 1956 (3) SA 480 (FSC)
SA Medical and Dental Council v Lipron 1949 (3) SA 277 (A)
WC Greyling & Erasmus (Pty) Ltd v Johannesburg Local Road Transportation Board &
Ors 1982 (4) SA 427 (A)
Errington & Ors v Minister of Health [1935] 1 KB 249; [1935] All ER Rep 154 (CA)
Public Service Commission & Anor v Makorovodo S-187-89 (not reported)
Lee v Public Service Commission HH-440-87 (not reported)
Cone Textiles (Pvt) Ltd v C Pettigrew (Pvt) Ltd & Anor 1984 (1) ZLR 274 (SC)
Dube v Public Service Commission & Anor 1990 (2) ZLR 181 (HC)
Public Service Commission & Anor v Tsomondo 1988 (1) ZLR 427 (SC)
Ramhewa v Secretary of the Public Service Commission 1988 (1) ZLR 257 (HC)
Chairman of the Public Service Commission & Ors v Hall S-49-89 (not yet reported)
Metsola v Chairman of the Public Service Commission & Anor 1989 (3) ZLR 147 (SC)
Minister of Home Affairs & Anor v Fisher & Anor [1980] AC 319; [1979] 3 All ER 21
(PC)
Waddington v Miah [1974] 2 All ER 377 (HL)
S v Ncube & Ors 1988 (2) SA 702 (ZS)
S v A Juvenile 1989 (1) ZLR 529 (SC); 1990 (4) SA 151 (ZS)
R v Secretary of State for the Home Department, Ex parte Phansopkar & Anor [1976] QB
606; [1975] 3 All ER 497 (CA)
Don v Hoboken Land and Improvement Co (1856) 18 How 272; 15 L Ed 372 (US Sup
Ct)
Hurtado v California (1884) 110 US 516; 28 L Ed 372 (US Sup Ct)
Goldberg v Kelly (1970) 397 US 254; 25 L Ed 2d 287 (US Sup Ct)
Perry v Sindermann (1972) 408 US 593; 33 L Ed 2d 570 (US Sup Ct)
Board of Regents of State Colleges v Roth (1972) 408 US 564; 33 L Ed 2d 548 (US Sup
Ct)
Railway Express Agency v New York (1949) 336 US 106; 93 L Ed 533 (US Sup Ct)
Griffin v Illinois (1956) 351 US 12; 100 L Ed 891 (US Sup Ct)
Douglas v California (1963) 372 US 353; 9 L Ed 2d 811 (US Sup Ct)
Russell v Duke of Norfolk & Ors [1949] 1 All ER 109 (CA)
Jeewa v Dönges NO & Ors 1950 (3) SA 414 (A)
Page 30 of 1991 (1) ZLR 27 (HC)
Cole v Commonwealth of Australia (1961) 106 CLR 653 (HC of Aust)
Administrator, Transvaal & Ors v Traub & Ors 1989 (4) SA 731 (A)
Duke v The Queen (1972) 28 DLR (3d) 129 (SCC)
Singh et al v Minister of Employment and Immigration et al (1985) 14 CRR 13 (SCC)
Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180; 143 ER 414
Kanda v Government of Malaya [1962] AC 322 (PC)
Heatherdale Farms (Pty) Ltd & Ors v Deputy Minister of Agriculture & Anor 1980 (3)
SA 476 (T)
Cassem en ‘n ander v Oos-Kaapse Komitee van die Groepsgebiederaad en andere 1959
(3) SA 651 (A)
R v Judge Amphlett [1955] 2 KB 223
Bramdaw v Union Government 1930 NLR 324
R v Deputy Industrial Injuries Commission, Ex parte Moore [1965] 1 QB 456; [1965] 2
All ER 81 (CA)
Bushell & Anor v Secretary of State for the Environment [1981] AC 75; [1980] 2 All ER
608 (HL)
Maynard v Osmond [1977] QB 240; [1977] 1 All ER 64 (CA)
Minister of National Revenue v Wright’s Canadian Ropes Ltd [1947] AC 109 (PC)
R v Gaming Board of Great Britain, Ex parte Benaim and Khaida [1970] 2 QB 417;
[1970] 2 All ER 528 (CA)
Townships Board Transvaal v Garner NO 1961 (3) SA 437 (A)
Osmond v Public Service Board of New South Wales & Anor [1985] LRC (Const) 1041
(SC of NSW)
Public Service Board of New South Wales v Osmond [1987] LRC (Const) 681 (HC of
Australia)
Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 (HL); [1968] 1 All
ER 694 (HL)
Zimnat Insurance Co Ltd v Chawanda 1990 (2) ZLR 143 (SC); 1991 (2) SA 825 (ZS)
General Medical Council v Spackman [1943] AC 627; [1943] 2 All ER 337 (HL)
John v Rees [1970] Ch 345; [1969] 2 All ER 274 (ChD)
Bishi v Secretary for Education 1989 (2) ZLR 240 (HC)
Zinyemba v Ministry of the Public Service & Anor HH-45-90 (not reported)
Public Service Commission & Anor v Mutsonziwa S-40-89 (not reported)
Page 31 of 1991 (1) ZLR 27 (HC)
Goldfields Investment Ltd & Anor v City Council of Johannesburg & Anor 1938 TPD
551
Virginia Land & Estate Co Ltd v Virginia Valuation Court & Anor 1961 (4) SA 479 (O)
I Chatikobo for the applicant
G S Wernberg and B P Q Simelane for the respondents
ADAM J: The applicant seeks to set aside the finding of the Public Service Commission
that he was guilty of misconduct, as well as the decision to discharge him and that he
receive no salary from the date of his suspension October 5 1989 and that he be reinstated
to his position with full salary and other benefits from date of suspension to date of
reinstatement. By letter of October 5 1989, from “O Tungwarara for Secretary, Ministry
of the Public Service”, addressed to the applicant at the Ministry of National Supplies,
Central Mechanical Equipment Department, headed “Re: Charge of Misconduct”, the
applicant was charged with contravening paras 7 and 24 of the First Schedule to the
Public Service (Officers) (Misconduct and Discharge) Regulations, 1986 — Annexure
‘B’ to the applicant’s Founding Affidavit. It was there alleged that —
“being a Senior Administrative Officer in the Central Mechanical Equipment Department
you acquired directly from Leyland (Zimbabwe) a vehicle being a Nissan PG 720 pick up
truck for $22 087,20 and resold it at the much higher price of $55 000.
Your conduct in that respect was unbecoming and it blemished the image of the Public
Service. Your conduct was also inconsistent and prejudicial to the discharge of your
official duties.”
That letter also told him that in terms of s 4 of the same Regulations he was required to
reply to the allegations within fourteen days of its receipt and advised him that if he
wished to scrutinize the evidence that would be used to substantiate the charge he was to
contact the writer.
I should indicate the belated Certificate of Authentication, filed on the date of this
hearing and forming part of the record, from the Public Service Commission discloses
that the evidence solely relied upon was the conclusion of the Sandura Commission
Report of August, 1989, photocopy of Chapter 12 being attached as Annexure “A” to the
first respondent’s affidavit.
Page 32 of 1991 (1) ZLR 27 (HC)
[The learned Judge set out the evidence and the relevant Regulations, and continued:]
In his heads of argument the applicant submits that the Public Service Commission’s
decision to discharge the applicant was based on the findings of the Sandura Commission
and that this decision was unreasonable because there was no evidence to controvert the
detailed explanation given by the applicant as the findings of the Sandura Commission
did not constitute evidence since it is opinion upon which the Public Service Commission
should not have acted. Also, he argues that in any event if it were permissible to act on
the findings of the Sandura Commission, or even if the findings constituted evidence it
was still unreasonable to act on them without giving the applicant an opportunity to deal
with those findings. He maintains that by brushing aside the applicant’s explanation and
adopting the findings of the Sandura Commission, the Public Service Commission failed
to apply their mind to the issue thereby making the decision invalid on account of
unreasonableness. Clan Transport Co (Pvt) Ltd v Swift Transport Services (Pvt) Ltd &
Ors 1956 R&N 120 at 133; 1956 (3) SA 480 (FSC); SA Medical and Dental Council v
Lipron 1949 (3) SA 277 (A) at 283 and WC Greyling & Erasmus (Pty) Ltd v
Johannesburg Local Road Transportation Board & Ors 1982 (4) SA 427 (A) at 448. He
submits that the Public Service Commission took into account evidence which was not
before it — Errington & Ors v Minister of Health [1935] 1 KB 249 at 268; [1935] All ER
Rep 154 (CA) 173. As to the penalty he states that the applicant’s conduct did not
warrant the penalty imposed and that the response made by the first respondent in his
affidavit was not substantiated by the evidence. Also, he submits that the vehicle in
question was not controlled so it was stressed that its resale at a higher price did not
attract any disrepute on the applicant or the Public Service. Further, he argues that since
the applicant seeks a return into employment with the Public Service, if the decision of
the Public Service Commission as to misconduct is upheld then the matter of penalty
should be remitted to the first respondent to reconsider afresh.
In his heads of argument the first respondent submits that the issue was whether the
Public Service Commission was entitled on the evidence before it to conclude that the
applicant bought the vehicle for resale at a profit and whether it was entitled to determine
that this constituted a breach of paragraph 7 and/or 24 of the First Schedule. He argued
that WC Greyling & Erasmus (Pty) Ltd v Johannesburg Local Road Transportation Board
& Ors, supra, did not support the applicant as it was clear that the decision maker in that
case had ignored facts which were uncontroverted and therefore not in
Page 33 of 1991 (1) ZLR 27 (HC)
issue. Whereas in this case, the Sandura Commission, after hearing detailed evidence,
including that of the applicant, reached the basis for its conclusions not only upon the
improbability of this testimony before them but also upon the Sandura Commission’s
assessment of the applicant as a witness. He submits that the contention that the applicant
was not given an opportunity to comment or contradict the evidence before the Sandura
Commission is untenable since the complaint was not made by the applicant in his
affidavit — Public Service Commission & Anor v Makorovodo S-187-90 (not reported)
at 4, and this is not accepted evidence “from one side in absence of the other side” —
Errington v Minister of Health, supra, at 264. He argues that no gross unreasonableness
can be attributed to the Public Service Commission’s decision. Further, he asserts that
whereas the applicant in his Statement in Reply to the charge denied that he lied to the
Sandura Commission, it must be noted that this was not repeated by him in his affidavit.
He argues that with the Public Service Commission faced with the applicant’s bland and
improbable assertion regarding his intentions and the fact that he lied on oath to the
Sandura Commission, no gross unreasonableness can be said to exist. He maintains that a
reviewing court will only interfere with a tribunal’s decision where it has acted with such
gross unreasonableness as to bespeak of mala fides — Lee v Public Service Commission
HH-440-87 (not reported) and Cone Textiles (Pvt) Ltd v C Pettigrew (Pvt) Ltd & Anor
1984 (1) ZLR 427 (SC). He asserts that the same principles apply to the penalty imposed
by the Public Service Commission, which is also best qualified to deal with the penalty.
It was submitted on the applicant’s behalf that there was no good reason for the Public
Service Commission to reject the applicant’s explanation and also it was wrong of the
Public Service Commission to rely on the findings of fact of the Sandura Commission.
Alternatively, it was argued by Mr Chatikobo for the applicant that there was not enough
before the Public Service Commission, since it relied solely on Annexure “A” to the first
respondent’s affidavit, to compare with the applicant’s explanation and that failure to test
the applicant’s explanation amounted to a failure to direct the Public Service
Commission’s mind to the matter. Further, it was stressed that the findings of fact by the
Sandura Commission were disputed in the applicant’s explanation which meant this
could only be resolved by an enquiry.
As I have noted, the misconduct alleged was that of the contravention of paras 7 and 24
of the First Schedule in that the applicant, a Senior Administrative Officer, acquired
directly from Leyland (Zimbabwe) a Nissan PG 720 pick-up truck for $22 087 and resold
it at a much higher price of $55 000. It was
Page 34 of 1991 (1) ZLR 27 (HC)
this conduct which was unbecoming and it blemished the image of the Public Service and
it was also inconsistent and prejudicial to the discharge of his official duties.
It is not disputed that the applicant did acquire directly the motor vehicle for $22 087
from Leyland (Zimbabwe) and resold it for $55 000. But the misconduct levelled against
the applicant did not allege at all that “he had bought the motor vehicle with the sole
intention for resale at a profit”. Nor did it allege that when the applicant, under a plan
with Bertram, had purchased the vehicle directly from Leyland (Zimbabwe) he had done
so with the sole intention of reselling at an inflated price to make a substantial profit. Nor
did it allege that the applicant had acted improperly in using his position as Senior
Administrative Officer in obtaining the motor vehicle with the sole intention of reselling
it at a profit.
The specific wording in the present allegation of misconduct would, in my view, cover
countless numbers of transactions carried out routinely by many civil servants who
legitimately acquire things and occasionally subsequently resell at a higher price. To now
categorise such conduct as “unbecoming” in that it blemishes the image of the Public
Service and that it is “inconsistent and prejudicial to the discharge of official duties”
would at least require the Public Service Commission to explain why and how this has
come about.
It becomes necessary at this stage to relate what actually was required to be done in terms
of the 1986 Regulations. The applicant was with the Central Mechanical Equipment
Department of the Ministry of National Supplies and the letter of 5 October 1989
addressed to him talks of “Charge of Misconduct” and reveals that it was signed “for:
Secretary, Ministry of the Public Service”. In terms of the 1986 Regulations the “head of
office shall forthwith inform the officer in writing of the nature of the allegation”,
although following the same Regulation “head of department”, “head of Ministry” and
others could also do so. That letter of 5 October 1989 is flawed in that it was not from
the applicant’s “head of office, department or Ministry”. It is true reliance could be
placed on s 24(1) of the 1986 Regulations but unlike Dube v Public Service Commission
& Anor 1990 (2) ZLR 181 (HC), there is no confirmation in the first respondent’s
affidavit that either the Public Service Commission itself had assigned, or the applicant’s
“head of office” had delegated, disciplinary functions to the “Secretary, Ministry of the
Public Service” who shall, and the papers filed must clearly specify this, himself delegate
it to the author of the letter, being the signatory “O Tungwara”. The provisions of s 24(1)
are most explicit and require nothing less. Further the
Page 35 of 1991 (1) ZLR 27 (HC)
letter is also defective when it speaks of a “Charge of Misconduct” — Public Service
Commission & Anor v Tsomondo 1988 (1) ZLR 427 (SC) at 440. The same requirement
applies to the Public Service Commission’s determination and penalty as it relates to the
letter of 16 November 1989 — Annexure “A” to the applicant’s affidavit.
Turning to ss 7 and 19 of the 1986 Regulations, which provide that unless there is a
material dispute of fact insoluble on the papers, the Public Service Commission must
determine whether the officer is guilty of misconduct. This means that on the issue of
material disputes of fact the Public Service Commission must apply an objective test —
Ramhewa v Secretary of the Public Service Commission 1988 (1) ZLR 257 (HC) at 264.
Having resolved that there is no material dispute of facts the Public Service Commission
has to make what its findings of facts are. But where it resolves that there is a material
dispute of fact it must have an inquiry to be held, and it is only after the inquiry’s finding
of facts and it would also seem that he is not given a chance to address the Public Service
Commission before the determination of guilt — Chairman of the Public Service
Commission & Ors v Hall S-49-89 (not reported) at p 6. Also, pursuant to s 19(3) of the
1986 Regulations, where misconduct is found, the Public Service Commission must
proceed with the imposition of the penalty which seems to suggest that the officer again
is deprived of the opportunity to make representations on penalty.
CONSTITUTION OF ZIMBABWE
The Constitution of Zimbabwe under ss 3; 18(1); 18(9); 18(10); 18(11); 18(12); 18(13)
and 75(1)(d), (e) and (f) provides as follows:
“3. This Constitution is the supreme law of Zimbabwe and if any other law is inconsistent
with this Constitution that other law shall, to the extent of inconsistency, be void.
18. (1) Everyone is entitled to the protection of the law.
...
(9) 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 of obligations.
(10) 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 for the determination of the existence
or extent of any civil right or obligation before any adjudicating authority, including the
announce-
Page 36 of 1991 (1) ZLR 27 (HC)
ment of the decision of the court or other authority, shall e held in public.
(11) Nothing in subsection (10), shall prevent —
(a) the court or other adjudicating authority from excluding from the proceedings,
except the announcement of its decision, persons other than the parties thereto and their
legal representatives to such extent as the court or authority —
(i) may be law by empowered so to do and may consider necessary or
expedient in circumstances where publicity would prejudice the interests of justice, or in
interlocutory proceedings; or in the interests of public morality, the welfare of persons
under the age of twenty-one years or the protection of the private lives of persons
concerned in the proceedings, or
(ii) may by law be empowered to required so to do in the interests of defence,
public safety, public order or the economic interests of the State;
or
(b) the court from excluding proceedings preliminary to trial in respect of a criminal
offence persons other than the accused person and his legal representative when so
required by law, unless the accused person otherwise requests.
(12) Notwithstanding anything contained in subsection . . .; (10) or (11), if in any
proceedings before such court or other adjudicating authority as is referred to in
subsection . . . (9), . . ., a certificate in writing is produced to the Court or other authority
signed by a Minister that it would not be in the public interest for any matter to be
publicly disclosed, the court or other authority shall make arrangements for evidence
relating to that matter to be heard in camera and shall take such other action as may be
necessary or expedient to prevent the disclosure of that matter.
(13) Nothing contained in or done under the authority of any law shall be held to be in
contravention of —
(a) subsection . . . (9) to the extent that the law in question makes reasonable
provision relating to the grounds of privilege or public policy on which evidence shall not
be disclosed or witnesses are not competent or cannot be compelled to give evidence in
any proceedings;
75. (1) The functions of the Public Service Commission shall be —
...
(d) to exercise disciplinary powers in relation to persons employed
Page 37 of 1991 (1) ZLR 27 (HC)
in the Public Service or the Prison Service and to remove such persons from
office;
(e) to ensure the general well-being and good administration of the Public Service
and the Prison Service and the maintenance thereof in a high state of efficiency;
(f) to make regulations for the purposes stated in paragraph (e) and for the conditions
of service of members of the Public Service and Prison Service, which may include
provision for the punishment of members of the Public Service found guilty of
misconduct . . .”
Initially in Public Service Commission & Anor v Tsomondo, supra, at 439 McNally JA
said:
“It does not seem to me that it is even necessary to consider the officer’s constitutional
rights under s 18(9) of the Constitution. His rights are defined in the Statutory
Instrument.”
However, in Chairman of the Public Service Commission & Ors v Hall, supra, at 7
McNally JA went on to observe:
“It may be that in a country with a justiciable Bill of Rights one cannot apply the dictum
of Stratford ACJ in Sachs v Minister of Justice 1934 AD 11 at 38 where he said: ‘Sacred
though the maxim (audi alteram partem) is held to be, Parliament is free to violate it.’
Even if Parliament were free to violate it, one might ask whether a subordinate authority
such as the Commission is free to do so. It may be also that the denial of legal
representation under the 1986 Regulations will have a bearing on the question whether a
fair hearing is provided for under the Regulations.”
In light of the foregoing observation of McNally JA it cannot now be maintained that
what he said in Public Service Commission & Anor v Tsomondo, supra, at 439 has
foreclosed consideration of the officer’s constitutional entitlement under s 18 of the
Constitution of Zimbabwe.
Also, it is true that Gubbay JA (as he then was) in Metsola v Chairman of the Public
Service Commission & Anor 1989 (3) ZLR 147 (SC) said at 154E:
“The audi maxim is not a rule of fixed content, but varies with the circumstances. In its
fullest extent, it may include the right to be apprised
Page 38 of 1991 (1) ZLR 27 (HC)
of the information and reasons underlying the impending decision; to disclosure of
material documents; to a public hearing and, at that hearing, to appear with legal
representation and to examine and cross-examine witnesses. See generally, Baxter
Administrative Law at pp 545-547. The criterion, as I have noted, is one of fundamental
fairness and for that reason the principles of natural justice are always flexible. Thus the
‘right to be heard’ in appropriate circumstances may be confined to the submission of
written representations. It is not the equivalent of a ‘hearing’ as that term is ordinarily
understood. This was stressed by Colman J in Heatherdale Farms (Pty) Ltd & Ors v
Deputy Minister of Agriculture & Anor 1980 (3) SA 476 (T) . . . at 486.”
But Gubbay JA (as he then was) was concerned with a case under both the 1979 and
1986 Regulations and Colman J was dealing with the South African Animal Diseases and
Parasites Act and a confiscatory ministerial order under that Act, provisions of which did
not in express terms allow the aggrieved party an opportunity to be heard. However,
Gubbay JA (as he then was) in that same case went on to observe at 157B-158A:
“. . . The hearing occupied four days and was conducted on the lines of a criminal trial
with patience and impartiality. The appellant was ably represented by counsel, a facility
permitted under s 16(4)(b) of the 1979 Regulations but denied under s 17(2) of the 1986
Regulations. Witnesses were examined and cross-examined by both sides. The whole
matter was canvassed thoroughly and expertly and not just confined, as under the 1986
Regulations, to material disputes of fact referred by the Commission. The verbatim
record of evidence is over 300 pages and at the close of testimony both legal
representatives were heard in argument. The inquiring authority thereupon submitted a
full and well-constructed judgment which set out cogently the reasons for the finding of
misconduct. That finding seems to be to be unassailable, but of course, since the
Commission had to apply the 1986 Regulations the determination of guilt lay with it.
Nonetheless, the fact that it was presented with an analytical judgment, in which the
points advanced in favour of the appellant were discussed, is of significance. For the
existence of such judgment, prepared after a full hearing at which the appellant was
legally represented (which features I stress), taken in conjunction with the detailed
written representations made by the appellant in answer to the charge, the verbatim
transcript of all the evidence, in particular that of the appellant, and the documents
produced, in my opinion justified the Commission in not inviting the appellant to make
ant further represen-
Page 39 of 1991 (1) ZLR 27 (HC)
tations. To have done so would have added nothing of any relevance to what was already
before the Commission. See Glynn v Keele University & Anor [1971] 2 All ER 89 (ChD)
at 97F; Cinnamond & Ors v British Airports Authority [1980] 2 All ER 368 (CA) at
376J-377a.
I am satisfied that, in the circumstances of this case, the fact that the Commission did not
afford the appellant a specific opportunity to be heard does not mean that he was treated
unfairly, or that there was a failure to observe basic rules of natural justice. In short I hold
that he had no legitimate expectation of being heard before his guilt was finally
determined by the Commission.
This conclusion makes it unnecessary to decide whether in a case falling entirely under
the 1986 Regulations, the view expressed by the learned Judge President that the
application of the audi alteram partem principle is excluded by implication from the
provisions of s 19(1)(d) is sound. As is apparent from the remarks of my brother McNally
J in Hall’s case supra at p 7, the point is of some difficulty and I prefer to leave it open,
especially as I understand it is soon to come crisply before this court.”
Basically, the right guaranteed under s 18(9) of the Constitution of Zimbabwe is:
(a) a fair hearing;
(b) within a reasonable time;
(c) by an independent and impartial court or other adjudicating authority established
by law;
(d) to determine the existence or extent of the person’s civil rights or obligations.
Section 18(10) and 18(11) makes provisions for such proceedings, including
announcement of the decision, to be held in public.
The approach of superior courts to the constructions of Constitutions has been
authoritatively laid down by Lord Wilberforce in Minister of Home Affairs & Anor v
Fisher & Anor [1980] AC 319; [1979] 3 All ER 21 (PC) at 25-26:
“Here, however, we are concerned with a Constitution, brought into force certainly by an
Act of the United Kingdom Parliament; the Bermuda Constitution Act, 1967, but
established by a self-contained document set out in Sch 2 to the Bermuda Constitution
Order 1968. It can be seen that
Page 40 of 1991 (1) ZLR 27 (HC)
this instrument has certain special characteristics. (1) It is, particularly in Chapter I,
drafted in a broad and ample style which lays down principles of width and generality.
(2) Chapter I is headed ‘Protection of Fundamental Rights and Freedoms of the
Individuals’. It is known that this chapter as similar portions of other constitutional
instruments . . . was greatly influenced by the European Convention for the Protection of
Human Rights and Fundamental Freedoms.
. . . It was in turn influenced by the United Nations Universal Declaration of Human
Rights 1948. These antecedents, and the form of Chapter I itself, call for a generous
interpretation avoiding what has been called ‘the austerity of tabulated legalism’, suitable
to give to individuals the full measure of the fundamental rights and freedoms referred
to . . .
When therefore it becomes necessary to interpret ‘the subsequent provisions of’ Chapter I
. . . the question must . . . be asked whether the appellant’s premise, fundamental to their
argument, that these provisions are to be construed in the manner and according to the
rules which apply to Acts of Parliament, is sound. In their Lordships’ view there are two
possible answers to this. The first would be to say that, recognising the status of the
Constitution as, in effect, an Act of Parliament, there is room for interpreting it with less
rigidity, and greater generosity, than other Acts . . .
The second would be more radical: it would be to treat a constitutional instrument such as
this as sui generis, calling for principles of interpretation of its own, suitable to its
character as already described, without necessary acceptance of all the presumptions that
are relevant to legislation of private law. It is possible that, as regards the question now
for decision, either method would lead to the same result. But their Lordships prefer the
second. This is in no way to say that there are no rules of law which should apply to the
interpretation of a constitution. A constitution is a legal instrument giving rise, amongst
other things, to individual rights capable of enforcement in a court of law. Respect must
be paid to the language which has been used and to the traditions and usages which have
given meaning to that language. It is quite consistent with this, and with the recognition
that rules of interpretation may apply, to take as a point of departure for the process of
interpretation a recognition of the character and origin of the instrument, and to be guided
by the principle of giving full recognition and effect to those fundamental rights and
freedoms with a statement of which the Constitution commences.”
Page 41 of 1991 (1) ZLR 27 (HC)
INTERNATIONAL HUMAN RIGHTS INSTRUMENTS
Similar terminology as in s 18(9) of the Constitution of Zimbabwe is found in a number
of international human rights instruments. The Universal Declaration of Human Rights
1948 in Article 8 states:
“Everyone is entitled in full equality to a fair and public hearing by an independent and
impartial tribunal, in the determination of his rights and obligations.”
Also, Article 14.1 of the International Covenant on Civil and Political Rights 1966
indicates:
“14.1 All persons shall be equal before the courts and tribunals. In determination of . . .
his rights and obligations in a suit of law, everyone shall be entitled to a fair and public
hearing by a competent, independent and impartial tribunal established by law.”
While Article 6 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms 1950 provides:
“In the determination of civil rights and obligations . . . everyone is entitled to a fair and
public hearing within a reasonable time by an independent and impartial tribunal
established by law.”
Further, Article 8 of the Inter-American Convention on Human Rights 1969 indicates:
“Every person shall have the right to a hearing with due guarantee and within a
reasonable time, by a competent, independent and impartial tribunal, previously
established by law . . . for the determination of his rights or obligations of a civil, labour,
fiscal or any other nature.”
Also, Article 7.1 of the African Charter on Human and People’s Rights 1981 specifies:
“Every individual shall have the right to have his cause heard”
and elaborates that the right to an appeal to competent national organs against acts
violating that person’s fundamental rights must also be provided.
Page 42 of 1991 (1) ZLR 27 (HC)
These universal developments seem to articulate in some measure the “due process of
law” of the Fifth and Fourteenth Amendments to the United States Constitution. It hardly
needs to be mentioned that courts have taken such international and regional rights
instruments into account as an aid to interpretation — Waddington v Miah [1974] 2 All
ER 377 (HL) at 379. In S v Ncube & Ors 1988 (2) SA 702 (ZS) at 714 Gubbay JA (as he
then was) relied on the interpretation given by the European Court of Human Rights to
Article 3 of the European Convention on Human Rights when he considered s 15(1) of
the Zimbabwe Constitution, which approach was approved by Dumbutshena CJ in S v A
Juvenile 1989 (1) ZLR 151 (ZS) at 155; 1990 (4) SA 151 (ZS) at 155. Also, it has been
held that regard ought to be placed on such instruments, where it was relevant: R v
Secretary of State for the Home Department, Ex parte Phansopkar & Anor [1976] QB
606 at 626; [1975] 3 All ER 497 (CA).
AMERICAN AUTHORITIES
The Constitution of the United States of America under the Fifth Amendment provides
—
“No person shall . . . be deprived of life, liberty, or property, without due process of
law . . .”
and under the Fourteenth Amendment in Section 1 specifies —
“. . . No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law, nor deny to any person within its
jurisdiction the equal protection of the law.”
It was only well after the Civil War that the US Supreme Court began significant
developments under these Amendments. The “due process” clause governed both
procedure and also what came to be known as “substantive due process”. At first, on
procedural content the US Supreme Court in Don v Hoboken Land and Improvement Co
(1856) 18 How 272; 15 L Ed 372 (US Sup Ct) spoke of due process of law as having the
same meaning as “by the law of the land” in the English Magna Carta and sought
guidance from English practice. Subsequently after Hurtado v California (1884) 110 US
516; 28 L Ed 372 (US Sup Ct) it was not English practice itself but “principles of liberty
and justice” that determined due process. It was over quite some time that the US
Supreme Court under substantive due
Page 43 of 1991 (1) ZLR 27 (HC)
process evolved what formed constitutionally protected “liberty” and “property” under
these Amendments. Beginning with Goldberg v Kelly (1970) 397 US 254; 25 L Ed 2d
287 (US Sup Ct) the US Supreme Court acknowledged the rise of government as an
important source of wealth that dispensed money, benefits, services, contracts, franchises
and licences which usually also involved claims by individuals and so to adjudication. In
a number of cases involving claims the US Supreme Court upheld that the due process
mandated some form of adjudicatory hearings and dealt at length with the kind of
hearings that was required under those Amendments — Perry v Sindermann (1972) 408
US 593; 33 L Ed 2d 570 (US Sup Ct).
In Board of Regents of State Colleges v Roth (1972) 408 US 564; 33 L Ed 2d 548 (US
Sup Ct) Stewart J at 572 pronounced on “liberty” and “property” in the following
manner:
“‘Liberty’ and ‘property’ are broad and majestic terms . . . the Court has fully and finally
rejected the wooden distinction between ‘rights’ and ‘privileges’ that once seemed to
govern the applicability of procedural due process rights.
The Court has also made clear that the property interests protected by procedural due
process extends well beyond actual ownership of real estate, chattels, or money. By the
same token, the Court has required due process protection for deprivations of liberty
beyond the sort of formal constraints imposed by criminal process . . . For the words
‘liberty’ and ‘property’ in the Due Process Clause of the 14th Amendment must be given
some meaning.
While this Court has not attempted to define with exactness the liberty . . . guaranteed (by
the 14th Amendment), the term has received much consideration and some of the
included things have been definitely stated. Without doubt, it denotes not merely freedom
from bodily restraint but also the right of the individual to contract, to engage in any of
the common occupations of life, to acquire useful knowledge, to marry, establish a home
and bring up children, to worship God according to the dictates of his own conscience,
and generally to enjoy those privileges long recognized . . . as essential to the orderly
pursuit of happiness by free men. Meyer v Nebraska 262 US 390, 399. In a Constitution
for a free people, there can be no doubt that the meaning of ‘liberty’ must be broad
indeed. . . There might be cases in which a State refused to re-employ a person under
such circumstances that interests in liberty would be implicated.”
Page 44 of 1991 (1) ZLR 27 (HC)
At the same time the equal protection clause of the Fourteenth Amendment was also
touched. Initially it merely played a marginal role in judicial intervention — Railway
Express Agency v New York (1949) 336 US 106; 93 L Ed 533 (US Sup Ct). But during
the era of the Warren Court a dynamic period of equal protection scrutiny unfolded with
the US Supreme Court identifying appropriate areas for intervention — Griffin v Illinois
(1956) 351 US 12; 100 L Ed 891 (US Sup Ct). It was under the “fundamental rights or
interests” element, which allowed the US Supreme Court, just as in the case of
substantive due process, to articulate that certain protected constitutional rights could be
derived directly from the equal protection clause — Douglas v California (1963) 372 US
353; 9 L Ed 2d 811 (US Sup Ct).
SCOPE OF SECTION 18 OF THE ZIMBABWE CONSTITUTION
It is accepted that the notion of “fair hearing” includes “procedural fairness” and from
this the courts have generally formulated a sort of code of fair-play akin in some measure
to the due process of the United States Constitution. It was by speaking of natural justice,
as found in the two Latin maxims audi alteram partem (“hear the other side”) and nemo
judex in causa sua (“no man a judge in his own cause”), that the courts imposed upon
other adjudicating authorities the duty to act fairly. The form that natural justice took
varied, as was clearly recognised by Tucker LJ in Russell v Duke of Norfolk & Ors
[1949] 1 All ER 109 (CA) at 188E, when he said:
“The requirements of natural justice must depend on the circumstances of the case, the
nature of the inquiry, the rules under which the tribunal is acting, the subject matter that
is being dealt with, and so forth.”
In other words, it is true that under the maxims audi alteram partem and nemo judex in
causa sua adjudicating bodies did not necessarily have to adopt all those important
principles so fundamental to court proceedings — Jeewa v Dönges NO & Ors 1950 (3)
SA 414 (A) at 422-3.
It is correctly pointed out that the words “civil rights” are wide and their ambit is not
easily defined — Cole v Commonwealth of Australia (1961) 106 CLR 653 (HC of Aust)
at 656-657. Suffice to say that “civil rights and obligations” would certainly include, not
only, the prejudicial effect on “property” and “liberty” set forth by Stewart J in Board of
Regents v Roth, supra, but also, the recently extended use of what is said to be the
reasonable and legitimate expectations of the aggrieved person — Administrator,
Transvaal & Ors v Traub & Ors 1989 (4) SA 731 (A).
Page 45 of 1991 (1) ZLR 27 (HC)
In Duke v The Queen (1972) 28 DLR (3d) 129 (SCC), the Canadian Bill of Rights was
dealt with, s 2(e) of which reads:
“. . . no law of Canada shall be construed or applied so as to . . . deprive a person of the
right to a fair hearing in accordance with the principles of fundamental justice for the
determination of his rights and obligations.”
In considering those words Fautreux CJ said at 134:
“Without attempting to formulate any final definition of those words, I would take them
to mean, generally, that the tribunal which adjudicates upon his rights must act fairly, in
good faith, without bias and in a judicial temper, and must give to him the opportunity to
adequately to state his case.”
In Singh et al v Minister of Employment and Immigration et al (1985) 14 CRR 13 (SCC)
the Canadian Charter of Rights and Freedoms in the Constitution Act, 1982 was
considered, s 7 of which states:
“Everyone has the right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental justice.”
Wilson J observed at 46-47 and 53:
“It seems to me that in attempting to decide whether the appellants have been deprived of
the right to life, liberty and security of the person within the meaning of s.7 of the
Charter, we must begin to determine what rights the appellants have under the
Immigration Act. As noted earlier, s.5(1) of the Act excludes from persons other than
those described in s.4 the right to come and remain in Canada. The appellants therefore
do not have such a right . . .
We must therefore ask ourselves whether the deprivation of these rights constitutes a
deprivation of the right to life, liberty and security of person . . .
Certainly, it is true that the concept of the right to life, the right to liberty, and the right to
security of person are capable of a broad range of meaning . . .
All counsel are agreed that at a minimum the concept of ‘fundamental justice’ as it
appears in s.7 of the Charter includes the notion of
Page 46 of 1991 (1) ZLR 27 (HC)
procedural fairness articulated by Fautreux CJ in Duke v The Queen [1972], supra . . .
Do the procedures set out in the Act for adjudication . . . meet this test of procedural
fairness? Do they provide an adequate opportunity for a refugee claimant to state his
case and know the case he has to meet? . . . I am prepared to accept . . . that procedural
fairness may demand different things in different contexts. Thus it is possible that an oral
hearing before the decision-making is not required in every case in which s.7 of the
Charter is called into play. However, I must confess to some difficulty in reconciling . . .
that an oral hearing is not required in the context of this case
. . . If ‘the right to life, liberty and security of the person’ is properly construed as relating
only to matters such as death, physical liberty and physical punishment, it would seem on
the surface at least that these matters are of such fundamental importance that procedural
fairness would invariably require an oral hearing.”
It may well be true that under s 18(9), the constitutional entitlement to a fair hearing
minimally includes the procedural fairness alluded to by Wilson J. But in order to
consider whether this will suffice for purposes of the Constitution of Zimbabwe, this
court is obliged to construe subs (9) in conjunction with the other relevant subsections of
s 18. When that course is adopted, particularly in light of s 18(1), civil rights and
obligations in the manner in which they apply to this case are, in Wilson J’s words
“matters of such fundamental importance that procedural fairness would invariably
require an oral hearing”. I should indicate that nothing prevents regulations made under s
75(1)(f) of the Zimbabwe Constitution giving the affected individual the choice of an in
person hearing or making a written response.
Also, in connection with “fundamental importance” there are certain essential principles
which must be observed. These are, firstly, that prior adequate notice of the contemplated
action against the affected party must be given. In Cooper v Wandsworth Board of Works
(1863) 14 CB (NS) 180; 143 ER 414 Erle CJ stated:
“I think the board ought to have given notice to the plaintiff and allowed him to be heard.
The default in sending . . . the intention to build, is a default which may be explained.
There may be a great many excuses for the apparent default. The party may have
intended to conform to law. He may have actually conformed . . . I cannot conceive any
harm that could
Page 47 of 1991 (1) ZLR 27 (HC)
happen to the district board from hearing the party before they subjected him to a loss so
serious as the demolition of his house; but I can conceive a great many advantages which
might arise in the way of public order, in the way of doing substantial justice.”
Secondly, the aggrieved party must be apprised of the information that is being relied
upon against her so that she can effectively prepare, properly answer and make
representations. There is a duty of adequate disclosure. In Kanda v Government of
Malaya [1962] AC 322 (PC) Lord Denning said at 337:
“If the right to be heard is to be a real right which is worth anything, it must carry with it
a right in the accused man to know the case which is made against him. He must know
what evidence has been given and what statements have been made affecting him: and
then he must be given a fair opportunity to correct or contradict them.”
Also, as Colman J in Heatherdale Farms (Pty) Ltd & Ors v Deputy Minister of
Agriculture & Anor 1980 (3) SA 476 (T) at 486 observed:
“. . . the person concerned must be given a reasonable time in which to assemble the
relevant information and to prepare and put forward his representations.”
Thirdly, as mentioned previously a proper construction of s 18(9) of the Zimbabwe
Constitution mandates an in person hearing, although it has been held by courts that an
oral hearing is not a necessary requisite for natural justice — Cassem en ‘n andere v Oos-
Kaapse Komitee van die Groepsgebiederaad en andere 1959 (3) SA 651 (A) at 660 and R
v Judge Amphlett [1955] 2 KB 223 at 240. However, in Bramdaw v Union Government
1930 NLR 324 Tatham AJP at 332 said:
“. . . indeed, natural justice requires that the accused officer shall be present at the enquiry
and be heard by the person who makes the recommendation. The word ‘heard’ means
something more than the production of evidence. It includes comment on the evidence
and argument.”
Further, in R v Deputy Industrial Injuries Commission, Ex parte Moore [1965] 1 QB 456;
[1965] 1 All ER 81 (CA) Diplock LJ at 488 and 490 stated:
“. . . the rules of natural justice which he must observe can, in my view, be reduced to
two. First, he must base his decision on the evidence . . .
Page 48 of 1991 (1) ZLR 27 (HC)
In the context of the first rule, ‘evidence’ is not restricted to evidence which could be
admissible in a court of law . . .
These technical rules of evidence [however] form no part of the rules of natural justice.
The requirement that a person exercising quasi-judicial function must base his decision
on evidence means no more than it must be based upon material which tends logically to
show the existence or non-existence of facts relevant to the issue to be determined, or to
show the likelihood or unlikelihood of the occurrence of some future event the
occurrence of which would be relevant. It means that he must not spin a coin or consult
an astrologer, but he may take into account any material which, as a matter of reason, has
some probative value in the sense mentioned above. . . .
Where, however, there is a hearing . . . the second rule requires the deputy commissioner
(a) to consider such ‘evidence’ relevant to the question to be decided as any person
entitled to be represented wishes to put before him; (b) to inform every person
represented of any ‘evidence’ which the deputy commissioner proposes to take into
consideration, whether such ‘evidence’ be proferred by another person . . . or is
discovered by the deputy commissioner as a result of his own investigations; (c) to allow
each person represented to comment upon any such ‘evidence’ and, where the ‘evidence’
is given orally by witnesses, to put questions to those witnesses; and (d) to allow each
person represented to address argument to him on the whole of the case. This, in the
context of the Act and regulations fulfils the requirement of the second rule of natural
justice to listen fairly to all sides.”
While in Bushell & Anor v Secretary of State for the Environment [1981] AC 75 at 116;
[1980] 2 All ER 608 (HL) at 627-8 Lord Edmund-Davies said:
“The general law may, I think, be summarised in this way: (a) in holding an
administrative enquiry . . . the inspector was performing quasi-judicial duties; (b) he
must therefore discharge them in accordance with the rules of natural justice; (c) natural
justice requires that objectors . . . be allowed to cross-examine witnesses called for the
other side on all relevant matters, be they matters of fact or matters of expert opinion; (d)
in the exercise of jurisdiction outside the field of criminal law, the only restrictions on
cross-examinations are those general and well-defined exclusionary rules which govern
the admissibility of relevant evidence . . . beyond those restrictions there is no discretion
on the civil side to exclude cross-examination on relevant matters. . . . And there is
massive
Page 49 of 1991 (1) ZLR 27 (HC)
body of accepted decisions establishing that natural justice requires a party be given an
opportunity of challenging by cross-examination witnesses called by another party on
relevant issues: see, for example, . . . Errington & Ors v Minister of Health [1935] 1 KB
249, . . . per Maughan LJ, [at p 272] . . . Reg. v Deputy Industrial Injuries Commission,
Ex parte Moore [1965] 1 QB 456 per Diplock LJ, [at pp 488A, 490 E-G], Wednesbury
Corporation v Ministry of Housing and Local Government (No 2). . . [1966] 2 QB 275,
per Diplock LJ, [at pp 302G-303 A].”
On the right to legal representation, Lord Denning on Maynard v Osmond [1977] QB 240
at 252; [1977] 1 All ER 64 (CA) at 79 observed:
“On principle, if a man is charged with a serious offence which may have grave
consequence for him, he should be entitled to have a qualified lawyer to defend him.
Such has been agreed by the government of this country when it adhered to the European
Convention on Human Rights. But also, by analogy, it should be the same in most cases
when he is charged with a disciplinary offence before a disciplinary tribunal, at any rate
when the offence is one which may result in his dismissal from the force or other body to
which he belongs; or to loss of his livelihood; or, worse still, may ruin his character
forever.
I gave the reason in Pett v Greyhound Racing Association Ltd [1969] 1 QB 125, 132:
‘If justice is to be done, he ought to have the help of some one to speak for him. And who
better than a lawyer who has been trained for the task?’
He should, therefore, be entitled to have a lawyer if he wants one. But, even if he should
not be entitled as of right, I should have thought that as a general rule the tribunal should
have a discretion in the matter. Legal representation should not be forbidden altogether.
The tribunal should have a discretion to permit him to have a lawyer if they think it
would assist.”
As for a duty to give reasons for decisions, it has been held that as an aspect of natural
justice there is no such obligation as a general rule Minister of National Revenue v
Wright’s Canadian Ropes Ltd [1947] AC 109 (PC) at 123; R v Gaming Board of Great
Britain, Ex parte Benaim and Khaida [1970] 2 QB 417 at 431; [1970] 2 All ER 528 (CA)
and Townships Board Transvaal v Garner NO 1961 (3) SA 437 (A) at 445. However, the
New South Wales Court of Appeal in Osmond v Public Service Board of New South
Wales &
Page 50 of 1991 (1) ZLR 27 (HC)
Anor [1985] LRC (Const) 1041 (SC of NSW) through Kirby P at 1048-1052; 1057-1061
and 1063-1064 observed:
“To address the question whether the common law in a case such as this requires the
Board to give the appellant reasons for its decision, it is appropriate to review the steps
by which the common law in England, Australia and elsewhere has been developing the
notion of natural justice and the duty to act fairly. Specifically it is useful to review the
authorities with reference to the content of those notions as they relate to the entitlement
to have reasons stated for decisions affecting the person seeking those reasons. . . .
Regina v Gaming Board of Great Britain, Ex parte Benaim and Khaida [1970] 2 QB 417
was a decision of the English Court of Appeal . . . [which] held that the Board had acted
fairly and in accordance with natural justice . . . whilst the Board had to give the applicant
a sufficient indication of the objections against them to enable them to answer the
objections, it was not obliged to give reasons for forming the opinion that the certificate
should be refused. . . .
In Breen v Amalgamated Engineering Union & Ors [1971] 2 QB 175 Edmund-Davies LJ
(at p 195) and McGaw LJ (at p 200) made it clear that they agreed with Lord Denning
that Breen was entitled to be accorded natural justice. It was in this connection that Lord
Denning suggested at least in some circumstances, the common law imposed a duty upon
some decision-makers to state reasons for decisions adversely effecting others . . . It is to
be noted that the criterion remains the same as before: namely the variable concept of
fairness. The point of variance suggested to distinguish the Gaming Board case from
Breen was the notion of ‘legitimate expectation’. The possession of this expectation was
said to entitle the claimant to have the rules of natural justice complied with in his case
and to have reasons afforded him . . . In Alexander Machinery (Dudley) Ltd v Crabtree
[1914] 1 CR 120, 122 Sir John Donaldson, the President of the Industrial Relations
Court, had to consider the right to reasons. Interestingly, he expressed the rationale for
such a right in terms of the impossibility of otherwise determining whether there has been
an error of law . . . These observations were considered most recently by Lord Chief
Justice Lane (with whom Ackner and Oliver LJJ agreed) in R v Immigration Appeal
Tribunal ex parte Khan (Mahomed) [1983] 2 All ER 420, 423 Lord Lane CJ added his
own gloss:
‘Speaking for myself, I would not go so far as to endorse the proposition set forth by
Donaldson P that any failure to give reasons means a
Page 51 of 1991 (1) ZLR 27 (HC)
denial of natural justice and is itself an error of law. The important matter which must be
borne in mind by tribunals in the present type of circumstances must be apparent from
what they state by way of reasons first of all that they have considered the point which is
at issue between the parties, and they should indicate the evidence on which they have
come to their conclusions.
Where one gets a decision of a tribunal which either fails to set out the issue which
tribunal is determining either directly or by inference, or fails either directly or by
inference to set out the basis on which it is reached its determination on that issue, then
that is a matter which will be very closely regarded by this Court, and in normal
circumstances will result in the decision of the tribunal being quashed. The reason is this.
A party appearing before a tribunal is entitled to know, either expressly stated by it or
inferentially stated, what it is to which the tribunal is addressing its mind. In some cases it
may be perfectly obvious without any express reference to it by the tribunal; in other
cases it may not. Second, the appellant is entitled to know the basis of fact on which the
conclusion has been reached. Once again in many cases it may be quite obvious without
the necessity of expressly stating it, in other cases it may not’.
In Australia, the developments in the common law reflected in the above line of English
authority can also be seen in decisions of the High Court of Australia and this Court. . . .
In India, the Supreme Court of India has elaborated, in a series of recent cases, a general
requirement for administrative tribunals to give reasons for their decisions. Sometimes
the requirement has been founded on the ‘elementary requirements’ of a ‘quasi judicial
process’ (see eg . . . Govindrao v State of Madhya Pradesh AIR 1952 SC 1222, 1226);
sometimes in the Indian Constitution special leave to appeal to the Supreme Court (see eg
Mahabir Prasad v State of Utter Pradesh AIR 1970 SC 1302 . . . Bhagat Raja v Union of
India AIR 1967 SC 1606); sometimes in the review and supervisory jurisdiction of the
State High Courts (see eg Ranganath v Daulatrao AIR 1975 SC 2146); sometimes in the
rule of law (see eg Mahabir Prasad v State of Pradesh above at 1304), and more recently
in the principles of natural justice.
The use of the principles of natural justice . . . as a basis for the requirement to state
reasons, has received its most notable support in two important decisions of the Supreme
Court of India in which the leading judgments were written by Bhagwati J, namely
Siemens Engineering
Page 52 of 1991 (1) ZLR 27 (HC)
and Manufacturing Co v Union of India AIR 1976 SC 1785 and Meneka Gandhi v Union
of India AIR 1978 SC 597.
In Siemens Bhagwati J, said that the rule requiring reasons to be given was ‘like the
principle of audi alteram partem a basic principle of natural justice ‘ (id 1789).
The role of ‘natural justice’ in administrative law as an important principle intended to
‘invest law with fairness and to secure justice’ was stressed by Bhagwati J in Meneka
Gandhi (id. 625) . . . In that case the Supreme Court of India held that the Passport
Authority was obliged to supply reasons for impounding the Passport of Mrs Meneke
Gandhi. . . .
Numerous arguments of principle have been proposed in favour of a right to reasons for
the decisions of administrative tribunals. Some of them are helpfully collected at p 87 of
Dr G A Flick’s Book ‘Natural Justice’. In abbreviated form, they include: first, the
assurance which a reasoned opinion provides that the decision has been properly thought
out. Tribunals, such as the Board in the present case, presumably have reasons for their
decisions. The obligation to think out and articulate those reasons, justifying them in a
public way, is likely to provide a discipline that will ensure that the decision is better as a
consequence. Secondly, if the person has a right to appeal, the facility of reasons will
enable him to determine whether he should do so, and on what basis. Thirdly, reasons
will make the tribunal more amenable to the supervisory jurisdiction of the courts and
provide assurance that it has acted within its limited powers. Fourthly, reasoned decisions
will promote public confidence in the administrative process. Reference is made by Dr
Flick to the comment in In re Poyser and Mill’s Arbitration [1964] 2 QB 467, 478, that, if
a party is not given reasons he may be left with the real grievance that he was not told
why the decision has been made. In the words of Chilwell J in Connell v Auckland City
Council [1977] 1 NZLR 730, the failure to provide reasons will, in a modern community,
result in a litigant who is not only ‘disappointed’ but also ‘disturbed’ . . . The fifth value
of reasons suggested by Dr Flick, is that they constitute a check on the exercise of
discretion, prevent arbitrary action and provide guidance for future cases.
Professor Wade, in his discussion of the text, suggests that the courts ‘might well have
done as much’ [as recent legislation in Australia] on their own initiative to ensure the
facility of reasons by subordinate tribunals ‘since giving of reasons is required by the
ordinary man’s sense of justice and is also a health discipline for all who exercise power
over others’ (Wade Administrative Law 5 ed. 485) . . .
Page 53 of 1991 (1) ZLR 27 (HC)
A number of arguments have been . . . advanced against the obligation of subordinate
tribunals to give reasons for their decisions. Some of these are also mentioned by Dr
Flick, 89 . . . First, there is the cost and additional burden on administration involved in
the preparation of anything that goes beyond a mere statement of the ultimate reason . . .
Insofar as a statement of findings and the disclosure of the reasoning process that led to
the decision is required, fear is sometimes expressed that such an obligation would pose
an impossible burden on busy decision-makers, particularly those with a heavy case load.
It could lead to ‘canned’ reasons (Flick, 89) ie standard statements in stereotype form that
expose little of the decision maker’s true reasoning process. The second suggested
justification for the avoidance of reasons is that some decisions, by virtue of their nature
or number, should be unreviewable in the courts. It is said that an obligation to give
reasons would promote such review and, in turn, enhance legislation and concentration
upon form, to the diminution of effective discretionary decision-making. A third
objection is addressed to the manner in which an obligation to give reasons is introduced.
Administrative decision-making occurs in enormous variety. If an obligation to proffer
reasons when asked were imposed upon decision-makers as an attribute of the rules of
natural justice, might it not apply beyond the public offices and statutory bodies . . .
Would this impose upon an unknown variety of decision-makers a rigidity of action that
would make consequences unknown and unknowable to the Court? . . .
The overriding duty of public officials . . . is to act justly, fairly and in accordance with
their statute. Normally, this will require, where they have a power to make discretionary
decisions affecting others, an obligation to state the reasons for their decisions. That
obligation will exist where, to do otherwise, would render nugatory a facility, however
limited, to appeal against the decision. It will also exist where the absence of stated
reasons would diminish a facility to have the decision otherwise tested by judicial review
to ensure that it complies with the law and to ensure that matters have been taken into
account that should have been taken into account or that matters have not been taken into
account which ought not to have been taken into account.
The entitlement to reasons exists in any person who is directly affected by such a
decision ie has some interest in the subject matter and a legitimate expectation by reason
of that interest to have an explanation given when a decision is made adverse to him.”
Page 54 of 1991 (1) ZLR 27 (HC)
But on appeal the High Court of Australia over-ruled the New South Wales Court of
Appeal in Public Service Board of New South Wales v Osmond [1987] LRC (Const) 681
(HC of Australia) Gibbs CJ stated that there “is no general rule of common law, or
principle of natural justice, that requires reasons to be given”, and said that this was the
position that had been recognised by the House of Lords in Padfield v Minister of
Agriculture, Fisheries and Food [1968] AC 997 (HL) at 1049; [1968] 1 All ER 694 (HL).
However, this may have been the situation once but principles or standards of fairness
necessary for the attainment of justice are never rigid and do indeed evolve and develop
to meet changing circumstances and perceptions. This is aptly shown by Zimnat
Insurance Co Ltd v Chawanda 1990 (2) ZLR 143 (SC); 1991 (2) SA 825 (ZS) when the
Supreme Court of Zimbabwe at 153E-154F said:
“Even if [this was] . . . an encroachment upon the discretion reposed in the law-giver to
change the law, we would strongly defend the Judiciary’s right to do so. Law in a
developing country cannot afford to remain static. It must undoubtedly be stable, for
otherwise reliance upon it would be rendered impossible. But at the same time if the law
is to be a living force it must be dynamic and accommodating to change. It must adapt
itself to fluid economic and social norms and values and to altering views of justice. If it
fails to respond to those needs and is not based on human necessities and experience of
the actual affairs of man rather than on philosophical notions, it will . . . be cast off by the
people because it will cease to serve any useful purpose. Therefore the law must be
constantly on the move, vigilant and flexible to current economic and social
conditions. . . .
Today the expectations amongst people all over the world, and particularly in the
developing countries are rising, and the judicial process has a vital role to play in
moulding and developing the process of social change. The Judiciary can and must
operate the law so as to fulfil the necessary role of effecting such development.
It sometimes happens that the goal of social and economic change is reached more
quickly through legal development by the Judiciary than by the Legislature. This is
because judges have a certain amount of freedom or latitude in the process of
interpretation and application of the law. It is now acknowledged that judges do not
merely discover the law, but they also make law. They take part in the process of
creation. Law-making is an inherent and inevitable part of the judicial process.
Page 55 of 1991 (1) ZLR 27 (HC)
The opportunity to play a meaningful and constructive role in developing and moulding
the law to make it accord with the interests of the country may present itself where a
judge is concerned with the application of the common law, even though there is a spate
of judicial precedents which obstructs the taking of such a course. If judges hold to their
precedents too closely, they may well sacrifice the fundamental principles of justice and
fairness for which they stand. In a famous passage Lord Atkin, referring to judicial
precedents, said:
‘When these ghosts of the past stand in the path of justice clanking their medieval chains
the proper course is for the judge to pass through them, undeterred’.”
Further, the approach suggested by Kirby P clearly accords with what was said as long
ago as 1932 in the Report of the Committee on Minister’s Powers (Donoughmere Report,
Cmnd.4060) about a third principle of natural justice which was “that a party is entitled to
know the reasons for the decision” (referring to audi alteram partem and nemo judex in
causa sua as the other two principles). Also, as Professor Wade so vividly noted when
echoing the words of Administration under Law, A Report of Justice, 1971:
“No single factor has inhibited the development of English administrative law as
seriously as the absence of any general obligation upon public authorities to give reasons
for their decisions” (Wade Administrative Law 4 ed at 464).
Related closely to this is the issue of findings of fact. As Professor Baxter indicates:
“However, it is important not to confuse statement of reasons with statement of findings.
Indeed, it is conducive to clarity to draw, as is done in the United States, a distinction
between ‘basic’ findings and ‘ultimate’ findings as well. . . .
. . . From these basic findings . . . draw various inferences . . . These inferences and
conclusions are ultimate findings. In light of all the ultimate findings . . . [decision-
maker] will then make a choice from among those relevant to the exercise of its
discretionary power . . . Its choice or choices will be determined by the course of action it
considers ‘wisest’ . . . The explanations as to why it settles upon its final choice . . . are its
reasons.
The decisional process just described is relatively formal and sophisticated. In practice,
decisions are often reached less methodically and
Page 56 of 1991 (1) ZLR 27 (HC)
there is not always a clear distinction between objective facts and inferences. But the
three basis elements are present in any decision, whether simple or complex or whether
discretionary or not.
The distinction between the three elements is not of purely theoretical importance.
Failure to distinguish between them will lead to confused decision-making; inferences
may be mistaken for objective facts and legal prescriptions may be substituted for
reasons.” (Baxter Administrative Law, 1971 at 228-229.)
As for the contention that a fair hearing would have made no difference. Lord Wright in
General Medical Council v Spackman [1943] AC 627 at 644-5; [1943] 2 All ER 337
(HL) at 345 disposed of this most admirably when he said:
“If the principles of natural justice are violated in respect of any decision, it is indeed
immaterial whether the same decision would have been arrived at in the absence of the
departure from the essential principles of justice. The decision must be declared to be no
decision.”
Again, in John v Rees [1970] Ch 345 at 402; [1969] 2 All ER 274 at 309 Megarry J
forcefully observed:
“It may be that there are some who would decry the importance which courts attach to
observance of the rules of natural justice. ‘When something is obvious,’ they may say,
‘why force everybody to go through the tiresome waste of time involved in framing
charges and giving an opportunity to be heard? The result is obvious from the start.’
Those who take this view do not, I think, do themselves justice. As everybody who has
anything to do with the law well knows, the path of the law is strewn with examples of
open and shut cases which, somehow, were not; of unanswerable charges which, in the
event, were completely answered; of inexplicable conduct which was fully explained; of
fixed and unalterable determinations that, by discussion, suffered a change. Nor are those
with any knowledge of human nature who pause to think for a moment likely to
underestimate the feelings of resentment of those who find that a decision against them
has been made without their being afforded any opportunity to influence the course of
events.”
The 1986 Regulations in s 4 only permits a written reply to the allegations of misconduct.
Section 19(1)(a), where the Public Service Commission
Page 57 of 1991 (1) ZLR 27 (HC)
finds no material dispute of fact allows it to determine guilt on the written reply and
reports submitted without the Public Service Commission advising the officer concerned
of its finding of fact and giving such a person an opportunity to address or make
representations on the issue of guilt. Again s 19(1)(b), where upon receipt of the inquiry’s
findings of fact, the Public Service Commission determines guilt without advising the
aggrieved officer of the findings of fact and giving such an individual an opportunity to
address or make representations on the issue of guilt. Also under s 19(3) upon the finding
of guilt the Public Service Commission proceeds to determine the penalty. On the issue
of a finding of guilty in the manner provided by the 1986 Regulations, these certainly
offend the provisions of Zimbabwe Constitution as they do not afford an aggrieved
person a “fair hearing” as contemplated by s 18(9). As for the penalty provision, with the
greatest respect, Bishi v Secretary for Education 1989 (2) ZLR 240 (HC) cannot be
distinguished in the manner that was done in Dube v Public Service Commission & Anor,
supra. I do not believe that the fundamental imperatives of s 18(9) constitutional
entitlement, let alone the principles of natural justice, can be so easily ousted in the way
outlined in Dube v Public Service Commission & Anor, supra. As pointed out in Bishi v
Secretary of Education, supra, even if an express provision had been inserted in the 1986
Regulations this would still constitute a contravention of s 18(9) of the Zimbabwe
Constitution. See also Zinyemba v Ministry of the Public Service & Anor HH-45-90.
Further, to the extent that s 19(3) of the 1986 Regulations does not mandate reasons for
the decision made and penalty imposed it offends, not only against the principles of
natural justice, but also, s 18(9) of the Zimbabwe Constitution. Clearly s 17 of the 1986
Regulations, which relates to the inquiry on the issues of fact and expressly denies an
aggrieved person legal representation, is also ultra vires s 18(9) of the Zimbabwe
Constitution, which envisages that an affected party be given an opportunity to have legal
representation.
It is only when these fundamental imperatives are met can any legislation, whether in the
form of statutes or regulations, be said to be in conformity with the Constitution of
Zimbabwe.
The letter of 16 November 1989 — annexure “A” to the applicant’s founding affidavit,
does not provide reasons for the decision made and the penalty imposed by the Public
Service Commission. But the first respondent does disclose what the Public Service
Commission took into account. He avers that the applicant had acted improperly in using
his position in the Central
Page 58 of 1991 (1) ZLR 27 (HC)
Mechanical Equipment Department to obtain the motor vehicle and that this was done
with the intention of reselling it at a profit. He stresses that the Public Service
Commission took into account that there was no price control for this motor vehicle but
concluded that the lack of price control was due to an error in drafting and this did not
alter the Government’s intention to prevent profiteering. If what the first respondent
indicates were the factors that formed part of the alleged misconduct, these were not
contained in the letter of 5 October 1989, Annexure “B” to the applicant’s founding
affidavit. In there no reference is made to abuse of position or that the motor vehicle was
purchased specifically with the intention of resale at a profit or that the applicant was
made aware that although the motor vehicle was not covered by price control this was
due to an error in drafting which did not alter the Government’s intention of prevent
profiteering.
In the applicant’s written statement in reply, Annexure “C” to his founding affidavit, he
in fact does admit to purchasing the Nissan PG 720 pick up truck for $22 087,22 and
reselling it for $50 000 but persisted with the denials he made to the Sandura
Commission and that he had not lied to the Sandura Commission. He also denied that his
conduct amounted to unbecoming or indecorous behaviour and that he committed any act
inconsistent or prejudicial to the discharge of his official duties. He maintained he did not
commit any criminal offence and was never involved in illegal dealings.
In light of this, as McNally JA pointed out in Public Service Commission & Anor v
Mutsonziwa S-40-89 at 8 that where there is an allegation of an act of misconduct and a
denial, there is a material dispute of fact. It is true there was no dispute about the
purchase and resale at a higher price. But the same cannot be said about the applicant’s
denials that his conduct constituted unbecoming or indecorous behaviour and that he
committed an act which was inconsistent or prejudicial to the discharge of his official
duties unless the Public Service Commission holds that the purchase by a public servant
of an article once and its resale at a higher price constituted a contravention of paras 7
and 24 of the First Schedule of the 1986 Regulations. Nor can it apply to his denial that
he had committed a criminal offence or was involved in an illegal dealing. As McNally
JA observed in Public Service Commission & Anor v Mutsonziwa, supra, generally
“questions of credibility cannot normally be decided by looking at pieces of paper and
believing one as against another” and he agreed that there may be exceptions. It follows
that on what was before the Public Service Commission the dispute could not be resolved
on the papers.
Page 59 of 1991 (1) ZLR 27 (HC)
Also crucial is what the first respondent disclosed the Public Service Commission took
into account. In Goldfields Investment Ltd & Anor v City Council of Johannesburg &
Anor 1938 TPD 551 at 560-561 Schreiner J said:
“I . . . merely wish to add a few words on . . . gross irregularities . . . It seems to me, that
gross irregularities fall into two classes, those that take place openly, as part of the
conduct of the trial — they might be called patent irregularities — and those that take
place inside the mind of the judicial officer, which are only ascertainable from reasons
given by him and which might be called latent . . . The crucial question is whether it
prevented a fair trial of the issues. If it did . . . then it will amount to gross irregularity . . .
In matters relating to merits the magistrate may err by taking a wrong one of several
possible views, or he may err by mistaking or misunderstanding the point in issue. In the
latter case it may be said that he is in a sense failing to address his mind to the true point
to be decided and therefore failing to afford the parties a fair trial . . . But if the mistake
leads to the Court’s . . . misconceiving the whole nature of the inquiry, or of its
duties . . . therewith . . . the losing party has not had a fair trial.”
While in Virginia Land & Estate Co Ltd v Virginia Valuation Court & Anor 1961 (4) SA
479 (O) at 486, 489 and 491-492 Hofmeyer J stated:
“The attack launched against the first respondent’s findings . . . is based on two
procedural irregularities . . . the first respondent took into account matters which it should
not have considered and it failed to take into account matters which should have been
considered, resulting in findings which no reasonable person could arrive at. . . .
I proceed to the applicant’s . . . complaint, viz. that the first respondent took into account
which it should not have considered either because (a) they were irrelevant to the issue
which it had to decide or (b) such matters had not been proved in evidence or (c) if
relevant and properly cognisable by the first respondent, the applicant had not been told
that the first respondent was taking them into account. . . .
[I]t is, in my opinion, idle to deny that irrelevant considerations . . . were given
substantial weight in the first respondent deliberations. . . .
[T]he first respondent has not only relied upon entirely irrelevant matter but on
information which in the peculiar circumstances of the case operated gravely to the
prejudice of the applicant. Its assertion that it considered this factor with all the
evidence . . .before it and that due and
Page 60 of 1991 (1) ZLR 27 (HC)
proper consideration was given to all aspects before arriving at a decision does not
impress me and leaves the substance of the complaint uncontradicted.”
The Public Service Commission took into matters which the applicant was not made
aware of and which were highly prejudicial to him. This in itself would not allow the
decision of the Public Service Commission to be upheld.
To summarise, the 1986 Regulations are ultra vires the Constitution of Zimbabwe in that
they do not give an affected person an opportunity for an in person hearing in accordance
with the relevant provisions of s 18. If I am wrong on this aspect, nevertheless the 1986
Regulations are ultra vires the Constitution of Zimbabwe in that they do not make
provision for an aggrieved person to be informed of the findings of fact and to be given
an opportunity to address or make representation before the determination of guilt and on
the imposition of penalty. It is inconsistent with the Zimbabwe Constitution when they
deny legal representation at an inquiry on issues of fact and when they do not provide for
reasons to be given as to the determination of guilt and the imposition of penalty.
As McNally JA correctly observed in Public Service Commission & Anor v Tsomondo,
supra, at 439:
“As long as he is employed he is prima facie entitled to his salary. If he is to be deprived
of his salary then that deprivation must be justified.”
Accordingly it is ordered:
1 That the finding of the Public Service Commission that the applicant was
guilty of misconduct, as charged, be and it is hereby set aside;
2 That the decision of the Public Service Commission to discharge the
applicant from the Public Service and directing that he receive no salary or suspension
allowance from the date of his suspension on 5 October 1989 be and it is hereby set
aside;
3 That the costs of this application be borne by the Public Service
Commission.
Coghlan,Welsh & Guest, appellant’s legal practitioners
Civil Division, Attorney-General's Office, respondent’s legal practitioners
MHORA & ANOR v COMMISSIONER OF POLICE & ANOR
1991 (1) ZLR 61 (SC)
Division: Supreme Court, Harare
Judges: McNally JA (in Chambers in terms of Rule 36(1) of the Rules of the
Supreme Court of Zimbabwe)
Subject Area: Application
Date: 10 & 17 January 1991

Practice and procedure — security for costs on appeal — public officials cited in their
personal capacities may be ordered to furnish security for costs on appeal.
The Commissioner of Police and the Minister of Home Affairs (respondents in this
application) had noted an appeal against a judgment of the High Court. The applicants in
the present matter (respondents in the appeal) applied for an order dismissing the appeal
by reason of the respondents’ failure to furnish security for costs or, alternatively, for an
order that such security be furnished.
Held, that since the respondents’ reason for refusing to give security was bona fide the
application for dismissal would not be granted.
Held, further, that in respect of the Minister the order under appeal had been given
against him personally and hence he could be ordered to furnish security for the costs of
his appeal. In respect of the Commissioner of Police, on the other hand, the order under
appeal had been made against him in his official capacity and so, in terms of Rule 46(a)
of the Supreme Court Rules, he could not be ordered to furnish security.
A N H Eastwood for the applicants
E W W Morris for the respondents
McNALLY JA: The respondents have noted an appeal against the decision of Gibson J,
in the High Court which was handed down on 29 August 1990
Page 62 of 1991 (1) ZLR 61 (SC)
— Judgment No. HH-179-90. The applicants now seek to have that application dismissed
by reason of the respondents’ failure to furnish security for costs. Alternatively they ask
for an order that security be furnished. The application is brought in terms of Rule 36(1)
of the Rules of this Court.
The respondents maintain that they are entitled to rely on Rule 46(4) of the Rules, which
states:
“No security need be furnished by the Government of (Zimbabwe) or by a municipal or
city council or by a town management board.”
The applicants’ case is that the respondents were sued both in their official capacities and
in their personal capacities. Government Ministers or other servants of the State are not
protected by Rule 46(4) when sued in their personal capacities.
In any events, says Mr Eastwood for the applicants, the respondents have so far shown
every inclination to avoid paying the applicants what the court says is owing to them. If
the respondents lose their appeal the probabilities are that they will not pay the
applicants’ costs. Therefore this is a case in which I should exercise the discretion
granted to me by the provisions of Rule 4 to “direct a departure from these Rules in any
way where this is required in the interests of justice . . .”.
The contention for the respondents is that the respondents have been cited as “The
Commissioner of Police” and “The Minister of Home Affairs”. This is the standard
formula for proceeding against the State, as prescribed by the State Liabilities Act
[Chapter 54]. In particular the respondents point to s 3A of the Act:
“Whenever any Minister of the State or public official is cited in any action or other
proceedings in his official capacity he shall be cited by his official title and not by name.”
This, read together with the provisions of ss 2 and 3 of the Act, make it clear, so the
respondents claim, that it is the State which is being sued. And the State does not have to
provide security for costs.
I think the applicants are correct when they say that the respondents were sued both in
their official and in their personal capacities. Whether the
Page 63 of 1991 (1) ZLR 61 (SC)
method of citation of the respondents in the heading of the Notice of Motion is correct or
not (and I have my doubts), the matter is put beyond doubt in the founding affidavit. In
paragraph 2 it is said:
“First respondent is the Minister of Home Affairs. . . . He is cited herein in his capacity as
the Minister . . . in terms of Section 3 of the State Liabilities Act (Chapter 54]. . . . He is
further cited in his personal capacity.”
Paragraph 3, in similar vein, states:
“Second respondent is the Commissioner of Police. . . . He is further cited in his personal
capacity.”
Moreover, there are two irresistible indications from the very form of the proceedings
themselves which support the contention that the proceedings were against the
respondents personally.
In the first place, judgment had already been given against the State (represented by the
Minister of Home Affairs) in an earlier decision by Greenland J. His Lordship Mr Justice
Greenland had ordered the Minister, in case no. 4302/87, to pay the respondents their
terminal benefits. It was his failure to do so which led to the later proceedings before Mrs
Justice Gibson. Had these later proceedings been merely against the State, exception
would have been taken on the grounds of res judicata. “You have already got your
judgment”, the State would have said, “so why are you back in court seeking the same
relief?”. The reason why the plea of res judicata was not raised, one must assume, was
that different relief was being sought against a different respondent. The proceedings
sought to compel the Minister personally to take the steps necessary to have the payments
made from the Consolidated Revenue Fund.
Secondly, the sanction proposed for failure to cause the payments to be made was a
personal penalty — the threat of being held in contempt. I am not quite sure why the
sanction was worded differently in each case. The sanction proposed against the Minister
was that he would be “declared to be in contempt of court”. The Commissioner was to be
required to obey the court’s order under pain of being “committed to gaol for 30 days”. In
both cases the sanction proposed is against the person of the respondent concerned.
It is true, of course, that the respondents denied the right of the applicants to sue them in
their personal capacities. But that very denial of the right is an
Page 64 of 1991 (1) ZLR 61 (SC)
admission of the fact. The question of the right was a major issue in the proceedings. But
it was an issue precisely because the respondents were being sued in their personal
capacities.
I am satisfied therefore that both respondents were sued in their personal capacities.
What is more important is whether judgment was given against them in their personal
capacities. If it was, and if they wish that judgment to be reversed on appeal, then they
must necessarily be appealing in their personal capacities.
Here, I think, with respect, that there has been some confusion on the part of the
respondents’ legal advisers. They clearly take the view that judgment should not have
been given against the respondents in their personal capacities. They may be right. They
may be wrong. That is not for me to decide. I am concerned with whether judgment was
given against them in their personal capacities. Not with whether it should have been.
It is clear to me that judgment was given against the Minister (the second respondent,
confusingly, in these proceedings although he was the first respondent in the court a quo)
in his personal capacity. He was ordered to comply with the order under pain of being
declared to be in contempt. It follows that he personally is the appellant. The State is not
the appellant. If the State had wanted to appeal it should have appealed against the
judgment of Greenland J.
The Minister therefore is not covered by the provisions of Rule 46(4).
The Commissioner of Police seems to me to be in a different situation. He was not
involved in the previous proceedings so there is no question of res judicata in his case. As
I understand the passages in Her Ladyship’s judgment at pp 6-7, beginning “As regards
the relief sought against the second respondent . . .” and ending “The question of
committal of the second respondent thus falls away”, her judgment was directed at the
Commissioner nomine officii, ie in his official capacity. She ordered him by consent to
furnish certain certificates and she declined to make a committal order against him.
Accordingly, although he was sued in his personal capacity, the order was made against
him in his official capacity, and he appeals in that capacity.
Page 65 of 1991 (1) ZLR 61 (SC)
It remains to consider whether I should accede to Mr Eastwood’s request that I apply the
provisions of Rule 4. Should I direct a departure from the Rules on the grounds that the
Commissioner has shown every indication that he will not (or the State on his behalf will
not) pay the costs of the appeal if he loses?
I do not think I am justified in doing so in regard to the Commissioner. He was not
involved in the case before Greenland J. He has not shown any propensity not to pay
what he is ordered to pay. I see no reason therefore to direct a departure from the Rules in
regard to security for costs in his case.
There was no dispute over the quantum of the security. Mr Eastwood asked for $5 000,
and, since he had succeeded in respect of one of the two respondents, I propose to order
security in the sum of $2 500.
As to the costs of this application, it seems to me that it would be proper to reserve the
question of costs for decision in the appeal hearing. Only when the whole issue is
unravelled will it be possible to decide the appropriate order as to costs as between the
appellants, the State, and the Minister personally.
Mr Eastwood properly did not press his claim for the dismissal of the appeal, since it was
clear that the appellants were refusing to give security for perfectly bona fide reasons.
Accordingly I make the following order:
1. That second respondent, the Minister of Home Affairs, is directed in his
personal capacity to furnish security to the Registrar of this court for the respondents’
costs of appeal in the sum of $2 500.
 2. The said sum is to be lodged with the Registrar within sixty days of the
date of this order, failing which the appeal of the second respondent will be dismissed
with costs.
3. It is declared that the first respondent, the Commissioner of Police, is
exempt from the need to furnish security by reason of the provisions of Rule 46(4).
4. The costs of this application are reserved for decision when the appeal is
decided.
Kantor & Immerman, applicants’ legal practitioners
Civil Division, Attorney-General’s Office, respondents’ legal practitioners
S v CHAWASARIRA
1991 (1) ZLR 66 (HC)
Division: High Court, Harare
Judges: Smith J & Reynolds J
Subject Area: Criminal review
Date: 23 January 1990

Criminal procedure (sentence) — whether different counts to be treated as one for

sentence.
The accused was charged with assault with intent to do grievous bodily harm and with
contravening s 9(b) as read with s 19(1) of the Dangerous Drugs Act [Chapter 319]. The
accused had stabbed his wife on the arm and shoulder, causing two small wounds. When
he was arrested and searched the police found a cigarette stub of dagga on him. He
pleaded guilty to and was convicted on both counts. The magistrate treated both counts as
one for sentence and sentenced the accused to a fine of $260 and, in addition, to three
months’ imprisonment, all of which was suspended for a period of three years on certain
conditions.
Held, that where an accused is convicted of two or more offences it is preferable that he
should be sentenced separately for each offence especially where the offences are entirely
different.
Held, further, that one globular sentence for two or more offences should only be
considered where the offences are of the same or similar nature and are closely linked in
time. If these two requirements are not satisfied then a separate sentence must be imposed
in respect of each offence.
Held, further, that the sentences imposed should be set aside and a separate sentence
imposed for each count.
Cases cited:
S v Nkosi 1965 (2) SA 414 (C)
S v Leshaba & Ors 1968 (4) SA 576 (T)
Page 67 of 1991 (1) ZLR 66 (HC)
S v Setlhare 1973 (2) SA 488 (O)
S v van Zyl 1974 (1) SA 113 (T)
S v van der Merwe 1974 (4) SA 523 (N)
S v Burger 1975 (2) SA 601 (C)
S v Gumede 1965 (4) SA 257 (N)
S v Chinjekure HH-35-85 (not reported)
SMITH J: The accused was charged with assault with intent to cause grievous bodily
harm and with contravening s 9(b) as read with s 19(1) of the Dangerous Drugs Act
[Chapter 319]. The accused stabbed his wife on the arm and shoulder, causing two small
wounds. When he was arrested and searched the police found a cigarette stub of dagga on
him. He pleaded guilty to both counts and was duly convicted. The magistrate treated
both counts as one for sentence and sentenced the accused to a fine of $260 and, in
addition, to three months’ imprisonment, all of which was suspended for three years on
condition that the accused did not, within that period, commit any offence of which
assault was an element for which he was sentenced to a fine exceeding $50 or
imprisonment without the option of a fine.
Where an accused is convicted of two or more offences it is preferable that he should be
sentenced separately for each offence especially where, as in this case, the offences were
entirely different. In this particular case it is impossible to say what proportion of the fine
related to the possession of dagga. In S v Nkosi 1965 (2) SA 414 (C) at p 415 Banks J
pointed out that although in South Africa globular sentences had in a number of cases
received judicial approval, the practice in England was to enter up judgment and sentence
separately on each count. At pp 415-416 he said:
“In the vast majority of cases no practical advantage results from imposing a globular
sentence. A reasonable sentence can usually be determined by deciding upon a
reasonable sentence for each offence and then by scaling down the sentences if the
cumulative effect renders the total unreasonable. An exception would seem to arise in
cases where it is decided to impose a reformatory sentence or a sentence of whipping, and
there may be other such cases. But as pointed out by Van den Heever J (as he then was),
in R v Frankfort Motors (Pty) Ltd 1946 OPD 255 at pp 267-8, the imposition of a
globular sentence often causes difficulties on appeal or on review and this seems to be the
reason underlying the practice in England.”
At p 416G he continued:
Page 68 of 1991 (1) ZLR 66 (HC)
“Whatever the position is, the practice of taking counts together for the purposes of
sentence is an undesirable one and it should only be resorted to in exceptional
circumstances.”
In S v Leshaba & Ors 1968 (4) SA 576 (T) the accused had been convicted of
contravening s 9(1) of the Motor Carrier Transportation Act, 39 of 1930, and also ss
77(1) and 78(1) of the Road Traffic Ordinance, 21 of 1966. At p 583H Cillie J said:
“It seems to me inadvisable to take these offences together for sentence. They are
separate, different and independent offences, and it would appear as if a separate sentence
on each of the different contraventions, where the accused has been found guilty on them
all in one trial, is preferable, because sight will then not be lost of the relative importance
of each of the contraventions.”
The views expressed in the two cases mentioned above have been cited with approval in
later cases. In S v Setlhare 1973 (2) SA 488 (O) the accused had been convicted of three
separate charges of contravening Ordinance 21 of 1966 (O) and the magistrate had, for
the purpose of sentence, taken all three convictions as one and imposed a globular
sentence of a fine, portion of which was suspended. On review Smuts J set aside the
sentence and remitted the case to the magistrates court for the imposition of a sentence on
each of the three charges. He referred to the Nkosi and Leshaba cases, supra, in support
of his action. In S v van Zyl 1974 (1) SA 113 (T) Coetzee J reiterated that the practice of
imposing only one sentence for more than one offence was undesirable and should only
be followed in exceptional cases. He said that even where the offences were created by
the same Ordinance and, broadly speaking, belonged to the same genus, it was preferable
to impose separate sentences.
In S v van der Merwe 1974 (4) SA 523 (N) Leon J set aside the single sentence imposed
by the magistrate in respect of two separate offences, namely exceeding the speed limit
and overtaking on a blind curve, and substituted two separate sentences. In S v Burger
1975 (2) SA 601 (C) Baker J held that one sentence in respect of a number or charges
could be imposed not only if they were of the same nature but, furthermore, if they were
in point of fact closely linked with each other. However, it was preferable in principle, as
far as imposing sentence was confirmed, to deal with each charge separately.
The case of S v Gumede 1965 (4) SA 257 (N) concerned an accused who had
Page 69 of 1991 (1) ZLR 66 (HC)
been convicted on two counts of contravening the Game Preservation Consolidation
Ordinance 11 of 1955 (N) — namely possession of a snare and hunting without a licence
or permit. The magistrate imposed a single sentence for the two offences. When
submitting the case for review he drew attention of Nkosi’s case, supra, and said that in
the light thereof he was doubtful whether it was proper for him to have treated the two
counts as one for sentence. At p 259C Fannin J said:
“This Court has, in the past, in many cases confirmed similar sentences passed by a
magistrate. It is however unnecessary now to consider whether this Court should follow
Nkosi’s case for, in the present case, the accused was at the same time and place found in
possession of the remains of a grey duiker and of a snare, and it seems in the highest
degree probable that the snare was used to catch the duiker in question. In those
circumstances it was, in my opinion, not improper to take the two counts together for the
purpose of sentence. The sentence as passed is therefore in order and is confirmed.”
I agree with the views expressed in the Nkosi and Leshaba cases, supra. Separate
punishments should, save in exceptional cases, be imposed for each separate charge. One
globular sentence for two or more offences should only be considered where the offences
are of the same or similar nature and are closely linked in point of time. If these two
requirements are not satisfied then a separate sentence must be imposed in respect of each
offence.
It is usual in cases of forgery and uttering for the purposes of sentencing the accused to
treat the conviction for forgery as one with the conviction for uttering the forged
instrument. As the offences are usually so interlinked there is no impropriety in so doing.
Likewise, where there are multiple cases of fraud or theft by conversion with the same
modus operandi, this court has on review confirmed cases where two or more of the
offences which are closely related in point of time or the amount involved have been
treated as one for the purposes of sentence. These cases are, however, the exception
rather than the rule See too S v Chinjekure HH-35-85 (not reported).
In the present case the offences are entirely dissimilar. There is no justification for
treating them as one for the purpose of sentence.
The convictions are confirmed but the sentences are set aside and the following
substituted —
Page 70 of 1991 (1) ZLR 66 (HC)
 Count 1. A fine of $200 or, in default of payment, two months’
imprisonment. In addition three months’ imprisonment all of which is suspended for
three years on condition that the accused does not commit within that period any offence
of which assault is an element for which he is sentenced to a fine exceeding $50 or
imprisonment without the option of a fine.
Count 2. A fine of $20 or, in default of payment, one week’s imprisonment.

Reynolds J agrees.
PICKERING v ZIMBABWE NEWSPAPERS (1980) LTD
1991 (1) ZLR 71 (HC)
Judges: Adam J
Subject Area: Opposed motion
Date: 30 October 1990 & 6 February 1991

Practice and procedure — set down of civil trial — requirements for urgent set-down.
Constitutional law — civil trial within reasonable period — applicable test —
requirements — s 18(9) of Constitution of Zimbabwe.
The applicant sought an order that his trial action against the respondent for damages be
heard as a matter of priority. The applicant relied on the constitutional right to a trial
within a reasonable time.
Held, the applicant had failed to show any breach of a constitutional right.
Held, the applicant had failed to establish on the facts that he was entitled to the relief he
sought.
Held, delay to infringe s 18(9) of Constitution of Zimbabwe should be inordinate delay of
such a lengthy period that public confidence in the administration must be shaken.
Cases cited:
Barker v Wingo (1972) 407 US 514 (US Sup Ct)
Fikilini v Attorney-General 1990 (1) ZLR 105 (SC)
R v Cameron [1982] 1 CRR 289
Bell v Director of Public Prosecutions [1985] AC 937; [1985] 2 All ER 585 (PC)
S v Corbett 1990 (1) ZLR 205 (SC)
S v Ruzario 1990 (1) ZLR 359 (SC)
R v Askov & Ors [1990] 2 SCR 1199 (SCC)
Munette Investments (Pty) Ltd & Ors v Administrator, Cape Province & Anor 1973 (4)
SA 491 (C)
Page 72 of 1991 (1) ZLR 71 (HC)
A P de Bourbon SC for the applicant
J S Sayce for the respondent
ADAM J: The applicant seeks by special leave, in terms of rule 225 of the High Court of
Zimbabwe Rules 1977, for the matter in Case No. HC 307/90 to be set down for hearing.
In his founding affidavit the applicant avers that he had issued summons in that matter on
25 January 1990 and that pleadings were closed and a pre-trial conference has been held
and that on 9 August 1990 his legal practitioners had made application for dates of trial.
He indicates that he fully appreciates that such trials should normally be heard in the
sequence of receipt of application for dates of trial but because of the article published by
the respondent on 14 January 1990 he has suffered both socially and in his business,
which allegations in the article have put considerable mental and emotional strain on him
and his family. He states that on 16 August 1990 the respondent maliciously published
what purported to be a report of a debate in Parliament of 15 August 1990 and which he
alleges maliciously defamed him. He contends that the continued publication by the
respondent is having a detrimental effect not only on himself but also on the public
confidence in the banking sector and because of this it is in the interests of the public
generally, of the banking sector in particular and in his own interests, that trial in Case
No. HC 307/90 should be heard as a matter of urgency. He indicates that until the matter
is heard the respondent is likely to continue giving prominence to the allegation against
the applicant. He states that should an early trial be ordered a fair hearing within a
reasonable time under the Constitution of Zimbabwe, for the determination of his civil
rights and obligations would have been met. He indicates that the respondent can suffer
no prejudice if this matter is heard as a matter of urgency.
In its opposing affidavit the respondent avers that it believes that insufficient grounds
exist for treating the matter in the exceptional fashion desired by the applicant and is
opposed to the matter being set down out of normal sequence. The respondent states that
it has no knowledge of the effect on the applicant but suggests that any strain upon the
applicant and his family is unlikely to be greater than many litigants in other cases
awaiting trial. The respondent rejects the assertion that it published the article on 16
August 1990 maliciously and contends that the article constituted a fair and a
substantially accurate report of the proceedings in Parliament and was published in good
faith. The respondent does not accept that the continued publication of articles is
necessarily having a detrimental effect on public confidence in the banking sector. It
states that the public may well consider the publication of the articles as showing that the
banking sector can bear public scrutiny. The respondent does not accept that the interests
of the public generally and of the
Page 73 of 1991 (1) ZLR 71 (HC)
banking sector in particular will be served by granting this application. In his answering
affidavit the applicant maintains his assertions in his founding affidavit and indicates that
he is advised that nearly seven hundred civil cases are awaiting set down and that Case
No. HC 307/90 is unlikely to be heard well before 1993.
In the heads of argument for the applicant Mr de Bourbon submits that in considering
whether or not to give such special leave for a set down the overriding consideration must
be interests of justice and this consideration would include the constitutional right to have
the matter determined within a reasonable time. The applicant argues that in this regard
the facilities available for the hearing of civil trials cannot defeat his constitutional right
— Barker v Wingo (1972) 407 US 514 (US Sup Ct). He further submits that a civil trial
of this nature should be set down within one year of its commencement, and certainly
within six months of the application for trial dates and suggests that any delay beyond
that cannot be treated as reasonable. He argues that this will have to be determined as a
matter of principle and that this case cannot be equated to an ordinary commercial claim.
He submits that until the claims made by the respondent are adjudicated upon, some
doubt must exist in the minds of people who know the applicant as to whether or not
there is justification for those comments so the applicant is entitled to vindicate his good
name as soon as possible.
In the respondent’s heads of arguments Mr Sayce submits that on the papers the applicant
has failed to make out a special case for purposes of r 225. He argues that the respondent
finds it very difficult to accept that the case is unlikely to be heard before 1993. He
further submits that it may well be the case that there was mental anguish for the
applicant and his family but such mental anguish was also being suffered by many other
litigants in non-commercial cases, occupying their place in the queue of cases for trial
and so the applicant is in no worse position than many others. He maintains that the
application should be determined as a matter of principle but the applicant was in no
worse position than many other litigants yet he asks for favourable treatment. He submits
that applicant argues that if the applicant’s rights were being infringed then so are those
of other litigants and should this court therefore accord favourable treatment to those like
the applicant who put themselves forward.
The respondent’s contention, strictly as it applied to r 225, without the issue of
constitutional entitlement, is that on the papers the applicant has failed to make out a
special case. I should state that it is common cause between the
Page 74 of 1991 (1) ZLR 71 (HC)
parties that this court has to consider the provisions of s 18(9) of the Constitution of
Zimbabwe. Section 18(9) reads:
“ (9) 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 and extent of his civil rights or obligations.”
The Supreme Court in Fikilini v Attorney-General 1990 (1) ZLR 105 (SC) stated that for
purposes of criminal trials unreasonable delay in terms of s 13(4) of the Constitution of
Zimbabwe there has to be an extraordinary delay caused by one reason or another in the
prosecution of an accused’s trial. The four factors articulated in Powell J in Barker v
Wingo, supra, were approved by the Supreme Court. In his judgment Dumbutshena CJ
also referred to R v Cameron [1982] 1 CRR 289 and Bell v Director of Public
Prosecutions [1985] AC 937; [1985] 2 All ER 585 (PC). Further, the Supreme Court of
Zimbabwe held that there are many factors which had to be considered before a court
could form the view that the accused had not been tried within a reasonable time and also
that the burden of proof was on the person who alleged that the delay was unreasonable.
In that case the appellant’s detention was challenged under s 13(4) of the Constitution
which required that a detained person be brought without undue delay before a court and
if the accused detained for a criminal offence was not tried within a reasonable time then
he must be released either unconditionally or upon reasonable conditions to ensure for his
appearance for trial at a later date. The appellant was arrested in September 1989 and on
the production of a Ministerial Certificate in terms of s 106(2) of the Criminal Procedure
and Evidence [Chapter 59] the magistrates court refused bail, which was unsuccessfully
challenged before the High Court on 17 November 1989. On 27 November 1989 he was
brought for further remand, at which time the magistrate refused a further remand since
the prosecution did not have a trial date and released the appellant on a warrant of
liberation. The appellant again was arrested and detained in terms of the Emergency
Powers (Maintenance of Law and Order) Regulations 1983. The State applied for a
review of the magistrate’s decision and the High Court on 27 December 1989 held that
there was gross irregularity in the proceedings in the magistrates court. An appeal was
filed to the Supreme Court and his grounds of appeal were amended to include that the
appellant had not been afforded a fair hearing within a reasonable time and so entitled to
be released in terms of s 13(4). The Supreme Court in determining whether the
appellant’s constitutional right to a fair trial by an independent tribunal within a
reasonable time had been
Page 75 of 1991 (1) ZLR 71 (HC)
infringed concluded that there had been no delay of any kind in the prosecution of the
case. It was the magistrate, without the appellant asking, who decided without more to
release the appellant.
In S v Corbett 1990 (1) ZLR 205 (SC) the Supreme Court was concerned with an undue
delay in the prosecution of an appeal and held that the same principles applied in Fikilini
v Attorney-General, supra, applied with equal force to an inordinate delay in the
prosecution of an appeal. The appellant was arrested on 17 March 1985 and on his
conviction for culpable homicide sentenced on 6 August 1987. His notice of appeal was
dated 7 August 1987 and the appeal was heard on 7 March 1989. The court was not
informed of the circumstances that caused the delay and did not know whether there were
problems with the expeditious transcription of the record. Dumbutshena CJ maintained
that regard must be taken of the shortage of transcribers and of the relevant equipment
but this could not outweigh the need to be fair to both the State and the appellant. The
Supreme Court, because of the inordinate delay in the prosecution of the appeal, together
with the fact that the appellant had spent 17 months in custody, altered the four month
term of imprisonment imposed to a fine of $600.
But in S v Ruzario 1990 (1) ZLR 359 (SC) where the appellant was involved in a violent
collision which resulted in the death of three of his passengers where two important State
witnesses were resident of South Africa and at some stage affidavits had been obtained
from them and they had returned to South Africa. At the trial for culpable homicide some
four years and four months later the affidavits were admitted by the magistrate as
evidence and there was also evidence from other State witnesses. The Supreme Court
held that although the magistrate was wrong in admitting the affidavits as evidence, there
was other evidence to support the conviction. The appellant had also attached the
sentence of four months’ imprisonment with labour due to the delay of four years in
bringing the appellant to trial which, it was argued, was so powerful a mitigating feature
as to render the sentence manifestly excessive which had to be reduced to a monetary
penalty. The court said that it appeared that the delay in part was due to the State’s
attempts to trace the two State witnesses from South Africa and it was mid-February
1986 when the State concluded that they could not be found and that for the subsequent
two-year delay no explanation was proffered by the State. Gubbay ACJ was prepared to
accept that such delay was due to negligence or inefficiency and not because the State
wanted to actively prejudice the appellant in his defence. The Supreme Court held that
once the appellant knew that the State was dragging its feet he ought to have asserted his
Page 76 of 1991 (1) ZLR 71 (HC)
constitutional right to a hearing within a reasonable time. So his failure to do so and
merely taking a passive position must inevitably affect the weight that would be given to
delay as a mitigating factor. The court concluded that the magistrate had taken into
account the four year delay in his penalty and so dismissed his appeal in its entirety.
In R v Cameron, supra, infringement of s 11(b) of the Canadian Charter of Rights and
Freedoms in Part I of the Constitution Act 1982 was considered. Section 11 provides:
“Any person charged with an offence has the right . . . (b) to be tried within a reasonable
time”. The accused was charged with a drug related offence on 3 June 1980, a
preliminary inquiry was concluded on 3 October 1980 when the accused was committed
to stand trial and the trial was set for 31 March 1981 but by consent of the parties
adjourned but a new trial date was set for 7 October 1981. On that date the trial
commenced but the main Crown witness refused to testify and was sentenced to a six-
month term of imprisonment for contempt of court and the Crown entered a stay of the
charge. On 12 May 1982 a summons was served upon the accused for his appearance in
court on that charge. The accused relied upon the seven months delay from the entry of
stay to the service of the summons and offered no evidence that he had suffered prejudice
but pointed out that there would be a further lapse of seven months during which
memories of all witnesses was bound to suffer. McDonald J said at 292-95:
“What approach should this Court take to the interpretation of s 11(b) . . . In my view
considerable assistance to the interpretation of s 11(b) can be afforded by reference to the
jurisprudence interpreting the ‘right to a speedy trial’ guaranteed by the Sixth
Amendment to the American Constitution, and the right to be tried ‘within a reasonable
time’, guaranteed by Article 6(1) of the European on Human Rights . . .. In Barker v
Wingo, Warden, 407 US 514 (1972), the Supreme Court of the United States held that, in
deciding whether an accused has been deprived of this right, what is to be applied is ‘a
balancing test, in which the conduct of both the prosecution and the defendant are
weighed (per Powell J). The remedy for the violation of this constitutional right is the
dismissal of the indictment or the vacation of the sentence : Strunk aka Wagner v US 412
US 434 (1973).
In Barker v Wingo, Powell J (at pp 519-20) pointed out that, apart from the interests of
the accused, society has an interest in the accused being tried promptly because a backlog
of cases enables accused persons ‘to negotiate more effectively for pleas of guilty to
lesser offences and
Page 77 of 1991 (1) ZLR 71 (HC)
otherwise manipulate the system, persons released on bond for lengthy periods awaiting
trial have an opportunity to commit other crimes . . ., the longer an accused is free
awaiting trial the more tempting becomes his opportunity to jump bail and escape . . .
delay between arrest and punishment may have a detrimental effect on rehabilitation’,
and the longer an accused is free awaiting trial the longer he is ‘disadvantaged by
restraint on his liberty and by living under a cloud of anxiety, suspicion, and often
hostility’ (at p 533).
Moreover, if the accused is kept in custody pending trial, lengthy exposure to
overcrowded conditions in local jails (like our urban centres) where there are little or no
recreational or rehabilitation programmes ‘has a destructive effective on human character
and makes the rehabilitation of the individual offender much more difficult, such
detention is costly to the state, and incarcerated persons cannot support their families’.
Powell J also pointed out that delay may work to the accused’s advantage and to the
weakening of the prosecution’s case if prosecution witnesses become unavailable or their
memories fade.
Powell J stressed that the right to a speedy trial is vague and amorphous in that it is
impossible to say definitely and with precision ‘how long is too long in a system where
justice is supposed to be swift and deliberate’, and that the remedy of dismissal of the
indictment, which is ‘the only possible remedy’, is ‘unsatisfactorily severe’ because it
may free a person guilty of a serious crime, without trial.
All these policy considerations, it seems to me, are equally appropriate to a determination
of whether an accused in Canada has been brought to trial ‘within a reasonable time’, as
are the factors which Powell J identified as one ‘which courts should assess in
determining whether a particular defendant has been deprived of his right’. They are (at
pp 530-2):
‘The length of delay is to some extent a triggering mechanism. Until there is some delay
which is presumptively prejudicial, there is no necessity for inquiry into the other factors
that go into the balance. Nevertheless, because of the imprecision of the right to speedy
trial, the length of delay that will provoke such an inquiry is necessarily dependent upon
the peculiar circumstances of the case. To take but one example, the delay that can be
tolerated for an ordinary street crime is considerably less than for a serious, complex
conspiracy charge. . . . the reason the government assigns to justify the delay . . .
Page 78 of 1991 (1) ZLR 71 (HC)
A deliberate attempt to delay the trial in order to hamper the defence should be weighed
heavily against the government. A more neutral reason such as negligence or
overcrowded courts should be weighed less heavily but nevertheless should be
considered since the ultimate responsibility for such circumstances must rest with the
government rather than with the defendant. Finally, a valid reason, such as a missing
witness, should serve to justify appropriate delay. . . . the third factor, the defendant’s
responsibility to assert his right. Whether and how a defendant asserts his right is closely
related to the other factors we have mentioned, the strength of his efforts will be affected
by the length of the delay, to some extent by the reason for the delay, and most
particularly by the personal prejudice, which is not always readily identifiable, that he
experiences. The more serious the deprivation, the more likely a defendant is to
complain. The defendant’s assertion of his speedy trial right, then, is entitled to strong
evidentiary weight in determining whether the defendant is being deprived of the right.
We emphasize that failure to assert the right will make it difficult for a defendant to prove
that he as denied a speedy trial.
A fourth factor is prejudice to the defendant. Prejudice, of course should be assessed in
the light of the interests of the defendants which the speedy trial might be designed to
protect. This court has identified three such interests : (i) to prevent oppressive pre-trial
incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the
possibility that the defence will be impaired. Of these, the most serious is the last,
because the inability of a defendant adequately to prepare his case skews the fairness of
the entire system. If witnesses die or disappear during a delay, the prejudice is obvious.
There is also prejudice if defence witnesses are unable to recall accurately events of the
distant past. Loss of memory, however, is not always reflected in the record because what
has been forgotten can rarely be shown’
These factors, said Powell J, are related to each other and ‘must be considered together
with such other circumstances as may be relevant’. These factors (at p 533):
‘. . . have no talismanic qualities; court’s must still engage in a difficult and sensitive
balancing process. But, because we are dealing with a fundamental right of the accused,
this process must be carried out with the full recognition that the accused’s interest in a
speedy trial is specifically affirmed in the constitution.’
. . . it is useful to note what the European Court of Human Rights has said in interpreting
Article 6(1) of the European Convention. In Koening v
Page 79 of 1991 (1) ZLR 71 (HC)
Federal Republic of Germany (1980) 2 EHRR 170, the court said:
‘The reasonableness of the duration of proceedings covered by Article 6(1) of the
Convention must be assessed in each case according to its circumstances When
enquiring into the reasonableness of the duration of criminal proceedings, the court has
had regard, inter alia, to the complexity of the case, to the applicant’s conduct and to the
manner in which the matter was dealt with by the administration and judicial
authorities’.”
In Bell v Director of Public Prosecutions, supra, the appellant was arrested on 18 May
1977 and convicted on 20 October 1988 of illegal possession of a firearm, robbery, etc. in
the Gun Court and sentenced to three concurrent sentences of seven, five and ten years.
On 7 March 1979 the Court of Appeal of Jamaica quashed the convictions and ordered a
re-trial and the Registrar of that Court of Appeal sent a written notice of this on 12 March
1989. The notice was not received by the Gun Court until 19 December 1979. The
original statements of witnesses had to be served on the appellant but these were not
traced. The case was mentioned in the Gun Court on 28 January, 8 and 15 February 1980
and again on 21 March 1980 when bail was granted to the appellant. He was represented
by counsel on some appearances and thereafter on 10 November 1981 the Crown offered
no evidence and the appellant was discharged. On 12 February 1982 the appellant was
rearrested and despite objections from the appellant’s lawyer, a re-trial was ordered for
11 May 1982. On 5 May 1981 the appellant by notice of motion applied for a declaration
that his rights under s 20(1) of the Constitution of Jamaica had been infringed in that the
appellant had not been afforded the right to a fair hearing within a reasonable time. His
application was dismissed by the Supreme Court on 3 June 1982 and by the Court of
Appeal of Jamaica on 19 May 1983. He was granted special leave to appeal by the Privy
Council on 11 April 1984. The appellant remained out on bail. On 30 April 1985 the
Privy Council held that the operative period of delay began on 7 March 1979 when a re-
trial was ordered and although the delay thereafter was 37 months in the Gun Court, this
would not amount to an unreasonable delay in a normal trial, given the conditions
prevailing in Jamaica, it was unreasonable in the case of the appellant’s re-trial and so his
rights to a fair hearing within a reasonable time had been infringed. Lord Templeman
cited with approval Barker v Wingo, supra, and “acknowledged the relevance and
importance of the four factors” discussed in that case. He observed at 591-3:
“The weight to be attached to each factor must however vary from jurisdiction to
jurisdiction and from case to case. Their Lordships accept
Page 80 of 1991 (1) ZLR 71 (HC)
the submission of the respondents that . . . the courts of Jamaica must balance the
fundamental right of the individual to fair trial within a reasonable time against the public
interest in the attainment of justice in the context of the prevailing system of legal
administration and the prevailing economic, social and cultural conditions to be found in
Jamaica. The administration of justice in Jamaica is faced with a problem, not unknown
in other countries, of disparity between the demand for legal services and the supply of
legal services. Delays are inevitable. The solution is not necessarily to be found in an
increase in the supply of legal services by the appointment of additional judges, the
creation of new courts and the qualification of additional lawyers. Expansion of legal
services necessarily depend on the financial resources available for that purpose.
Moreover, an injudicious attempt to expand an existing system of courts, judges and
practitioners could lead to deterioration in the quality of the justice administered and to
the conviction of the innocent and the acquittal of the guilty. The task of considering
these problems falls on the legislature of Jamaica, mindful of the provisions of the
Constitutions and mindful of the advice tendered from time to time by the judiciary, the
prosecution service and the legal profession of Jamaica. The task of deciding whether and
what periods of delay explicable by the burdens imposed on the courts by the weight of
criminal causes suffice to contravene the rights of a particular accused to a fair hearing
within a reasonable time falls on the courts of Jamaica and in particular on the members
of the Court of Appeal who have extensive knowledge and experience of conditions in
Jamaica. In the present case . . . a delay of two years in the Gun Court is a current average
period of delay in cases in which there are no problems for witnesses. The Court of
Appeal did not demur. Their Lordships accept the accuracy of the statement and the
conclusion, implicit in the statement, that in the present circumstances in Jamaica, such
delay does not by itself infringe the rights of an accused to a fair hearing within a
reasonable time. No doubt the courts and the prosecution authorities recognise the need to
take all reasonable steps to reduce the period of delay wherever possible.
Thus, their Lordships accept the submission of the respondent that in general the courts
of Jamaica are best equipped to decide whether in a particular case delay from whatever
cause contravenes the fundamental right granted by the Constitution of Jamaica. The
respondents explained, and their Lordships accept, that a particular current problem arises
from the difficulty in securing the attendance of witnesses. Witnesses absent themselves
through ignorance or fear, sometimes influenced by intimidation, crude or subtle. The
courts of Jamaica must
Page 81 of 1991 (1) ZLR 71 (HC)
constantly balance the claim of the accused to be tried, notwithstanding the absence of
witnesses, against the possibility, unproved and unprovable in many cases, that the
absence of a necessary witness has been procured or encouraged by someone acting in
the interests of the accused. The courts seek to prevent the exploitation of the rights
conferred by the Constitution and to weigh the rights of the accused to be tried against the
public interest in ensuring that the trial should only take place when the guilt or
innocence of the accused can fairly be established by all the relevant evidence. The Board
will therefore be reluctant to disagree with the considered view of the Court of Appeal of
Jamaica that the right of an accused to a fair hearing within a reasonable time has not
been infringed. But since no Court is infallible, there remains the power and duty of the
Board to correct any error of principle and to reverse a decision which, in the opinion of
the Board could only have been reached by a reliance on some irrelevant consideration or
by ignoring some decisive consideration. . . . Their Lordships have no doubt that the
operative period of delay began on 7 March 1979 when the Court of Appeal ordered a
retrial. From that date it was the duty of those charged with the administration of justice
to ensure that the order for a retrial was obeyed without avoidable delay. For the reasons
already advanced, their Lordships would in a normal case accept the view of the courts of
Jamaica that a delay of 32 months or thereabouts did not infringe the constitutional rights
of an accused.
But their Lordships consider that in the present case the courts fell into the error when
they compared the delay which occurred after the order for a retrial with the average
delay which occurs between arrest and trial.”
In a recent decision the Supreme Court of Canada considered once again s 11(b) of the
Canadian Charter of Rights and Freedoms in R v Askov & Ors [1990] 2 SCR 1199
(SCC), where three of the four accused were arrested and detained on 19 November 1983
while the fourth was arrested on 30 November 1983. The other three accused were
released on bail on 7 May 1984. The bail terms for all involved reporting to the police
and not communicating with their co-accused but these conditions were varied from time
to time to the accused’s benefit, however, the accused remained under considerable
restraint. Askov was re-arrested another charged on 1 October 1984. Prior to this while
the three accused were in custody the Crown in December 1983 was prepared to set an
early date for the preliminary enquiry
Page 82 of 1991 (1) ZLR 71 (HC)
but the accused requested that it be put over to 14 February 1984 when preliminary
enquiry was set for the first week of July and it commenced on 4 July 1984 but could not
be concluded so it was set over and was completed on 21 September 1984. On 1 October
1984 the presiding judge set the trial for 15 October 1985 since an earlier date could not
be set due to other cases which had priority either because such accused persons were in
custody or because the offence date was earlier. On 25 October 1985 when it was clear
that the matter could not be heard the legal practitioners for the Crown and the accused
appeared and the matter was postponed for trial to 2 September 1986. On 2 September
1986 there was application made to the trial judge to stay the proceedings on the grounds
that the trial had been unreasonably delayed and thereby infringed s 11(b) of the
Canadian Charter of Rights and Freedoms. The judge of the District court of Judicial
District of Peel granted the stay. His decision was upset by the Ontario Court of Appeal
but the Supreme Court of Canada reversed the decision of Ontario Court Appeal. Cory J
observed at 1208-1209; 1219; 1223-1236; 1238-1241 and 1243-1246:
“In the United States the Sixth Amendment ensures that ‘[i]n all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial’. The United States Supreme
Court considered the issue of Barker v Wingo 407 US 514 (1972). In that case Barker,
who was charged with murder, was brought to trial five years after the murder was
committed. The delay was caused by that necessity of trying an accomplice beforehand.
This prerequisite trial was extremely complication; the accomplice was tried no less than
six times. During this on going process, Barker initially had agreed to the continuances or
adjournments. He only began to assert his right to a speedy trial three and one-half years
after the charges were laid.
The court held that a flexible approach should be taken to cases involving delay and that
the multiple purposes or arms of the Sixth Amendment must be appreciated, Powell J,
giving the reasons for the court, recognized the general concern that all persons accused
with crimes should be treated according to fair and decent procedures. He particularly
noted that there were three individual interests which the right was designed to protect.
They were:
(i) to prevent oppressive pretrial incarceration;
(ii) to minimize the anxiety and concern of the accused; and
(iii) to limit the possibility that the defence will be impaired or prejudice.
However, Powell J, went on to observe that unlike other constitutional rights which only
have an individual interest, the right to speedy trial involved this added dimension of
societal interest . . . In order to balance
Page 83 of 1991 (1) ZLR 71 (HC)
the individual right and the communal aspect . . . balancing is undertaken by reference to
four factors identified by Powell J as the test for infringement of the right to a “speedy
trial”. They are as follows:
(i) the length of the delay;
(ii) the reason for the delay;
(iii) the accused’s assertion of the right; and
(iv) prejudice to the accused.
. . . I agree . . . that s 11(b) explicitly focuses upon the individual interest of liberty and
security of the person. Like other specific guarantees provided by s 11, this paragraph is
primarily concerned with an aspect of fundamental justice guaranteed by s 7 of the
Charter. There could be no greater frustration imaginable for innocent persons charged
with an offence than to be denied the opportunity of demonstrating their innocence for an
unconscionable time as a result of unreasonable delays in their trial. The time awaiting
trial must be exquisite agony for the accused persons and their immediate family. It is a
fundamental precept of our criminal law that every individual is presumed to be innocent
until proven guilty. It follows that on the same fundamental level of importance, all
accused persons . . . should be given the opportunity and to have their name cleared to
defend themselves and their reputation re-established at the earliest possible time.
i) The Length of the Delay
It is clear that the longer the delay, the more difficult it should be for a court to excuse
it . . . very lengthy delays may be such that they cannot be justified for any reason.
ii) Explanation for the Delay . . . may be usefully subdivided with the aspects of systemic
delay and the conduct of the accused amplified.
(a) The Conduct of the Crown (or Delay Attributable to the Crown)
Generally speaking, this category will comprise all of the potential factors causing delay
which flow from the nature of the case, the conduct of the Crown, including officers of
the State, and the inherent time requirements of the case. delays attributable to the actions
of the Crown or its officers will weigh in favour of the accused . . . It is under this
heading that the complexity of the case should be taken into account. Complex cases
which require longer time for preparation, a greater expenditure of resources by Crown
officers and the longer use of institutional facilities will justify delays longer than those
that would be acceptable in simple cases.
Page 84 of 1991 (1) ZLR 71 (HC)
(b) Systemic or Institutional Delays
. . . the question of delays caused by systemic or institutional limitations should also be
discussed under the heading of delays attributable to the Crown. This factor will often be
the most difficult to assess. A careful and sensitive balancing will be required in order to
properly assess the significance of this aspect of delay. Firstly, let us consider the
problem from the point of view of society. Section 11(b) applies to all Canadians in every
part of our land. In a country as vast and diverse as ours the institutional problems are
bound to differ greatly from province to province and from district to district in each
province. Differences of climate, terrain, population and financial resources will require
different solutions for the problem of providing adequate facilities and personnel. Lack of
financial resources may require imaginative answers to difficult problems . . . The
problems presented and solutions required will vary between heavily populated centre . . .
and the sparsely populated districts . . . Wise political decisions will be required with
regard to the allocation of scarce funds. Due deference will have to be given to those
political decisions as to the provisions of courtroom facilities . . . must, for example, be
balanced against the provision of health care and highways. Yet solutions must be
found . . . Similarly situated communities can provide a rough comparison and some
guidance as to what time period constitutes an unreasonable delay of the trial of an
accused person. That comparison should always be made with the most efficient of the
comparable jurisdictions.
The right guaranteed by s 11(b) is of such fundamental importance to the individual and
of such significance to the community as a whole that lack of institutional resources
cannot be employed to justify a continuing unreasonable postponement of trials. In Mills,
[Mills v The Queen (1986) SCR 863] Lamer J noted at p 935:
‘In an ideal world there would be no delays in bringing an accused to trial and there
would be no difficulties in securing fully adequate founding, personal and facilities of
criminal justice. As we do not live in such a world, some allowances must be made for
limited institutional resources’.
However, the lack of institutional resources can never be used as a basis for rendering the
s 11(b) guarantee meaningless . . . Where inordinate delays do occur, it is for those who
are responsible for the lack of facilities who should bear the public criticism that is bound
to arise as a result of staying of proceedings which must be the inevitable conse-
Page 85 of 1991 (1) ZLR 71 (HC)
quence of unreasonable delay. Members of the community will not and should not
condone or accept a situation where those alleged to have committed serious crimes are
never brought to trial solely as a result of unduly long delays. It is a serious consequence
with potentially dangerous overtones for the community. It is right and proper that there
be criticism of the situation when it occurs.
The response to the question of ‘how long is too long’ as it applies to institutional delays
will always be difficult to fashion in our country. The question must be answered in light
of the particular facts of each case. There can be no certain standard of a fixed time which
will be applicable in every region of the country. Nonetheless, an inquiry into what is
reasonable in any region should not be taken in isolation and must, of necessity, involve a
comparison with other jurisdiction. Consideration must be given to the geography, the
population and the material resources of the province and district. The comparison of
similar and this comparable districts must always be made with the better districts and not
the worst. . . . To summarize, when considering delays occasioned by inadequate
institutional resources, the question of how long a delay is too long may be resolved by
comparing the questioned jurisdiction to the standard maintained by the best comparable
jurisdiction in the country. The comparison need not be too precise or exact. Rather, it
should look to the appropriate ranges of delay to determine what is a reasonable limit. In
all cases it is incumbent upon the Crown to show that the institutional delay in question is
justifiable.
(c) The Conduct of the Accused (or Delays Attributable to the Accused)
It should be emphasised that an enquiry into the actions of the accused should be . . .
where the accused’s acts either directly caused the delay . . . or the acts of the accused are
shown to be a deliberate and calculated tactic employed to delay the trial. These direct
acts . . . such as seeking an adjournment to retain new counsel, must of course be
distinguished from . . . the delay caused by factors beyond the control of the accused or a
situation where the accused did nothing to prevent a delay caused by the Crown.
In addition . . . the burden of proving that the direct acts of the accused caused the delay
must fall upon the Crown. This would be true except in those cases where the effects of
the accused’s action are so clear and readily apparent that the intent of the accused to
cause a delay is the inference that must be drawn from the record of his or her actions.
Page 86 of 1991 (1) ZLR 71 (HC)
(iii) Waiver
The accused should not be required to assert the explicitly protected individual right to
trial within a reasonable time. It is now well established that any waiver of a Charter right
must be ‘clear and unequivocal . . . with full knowledge of the rights the procedure was
enacted to protect and of the effect the waiver will have on these rights’ . . . Failure to
assert the right would be insufficient in itself to impugn the motives of the accused . . .
Rather there must be something in the conduct of the accused that is sufficient to give rise
to the inference that the accused has understood that he or she had a s 11(b) guarantee,
understood its nature and has waived the right provided by that guarantee. Although no
particular magical incantation of words is required to waive a right, nevertheless the
waiver must be expressed in some manner. Silence or lack of objection cannot constitute
a lawful waiver . . . If the Crown is relying upon actions of the accused to demonstrate
waiver, then the onus will lie upon the Crown to prove that a specific waiver can be
inferred. It may well be that the setting of the trial dates and the agreement to those dates
by counsel for the accused may be sufficient to constitute waiver . . .
(iv) Prejudice to the Accused
It should be inferred that a very long and unreasonable delay has prejudiced the
accused . . . Nevertheless, it will be open to the Crown to attempt to demonstrate that the
accused has not been prejudiced . . . Furthermore . . . accused persons who have suffered
some additional form of prejudice are permitted to adduce evidence of prejudice on their
own initiative in order to strengthen their position in seeking a remedy . . . From the
foregoing review it is possible to give a brief summary of all the factors which should be
taken into account in considering whether the length of the delay of a trial has been
reasonable.
(i) The Length of the Delay
The longer the delay, the more difficult it should be for a court to excuse it. Very lengthy
delays may be such that they cannot be justified for any reason.
(ii) Explanation for the Delay
(a) Delays Attributable to the Crown
Delays attributable to the action of the Crown or officers of the Crown will weigh in
favour of the accused . . . Complex cases which require
Page 87 of 1991 (1) ZLR 71 (HC)
longer time . . . will justify delays longer than those acceptable in simple cases.
(b) Systemic or Institutional Delays
Delays occasioned by inadequate resources must weigh against the Crown. Institutional
delays should be considered in light of the comparative test referred to earlier. The
burden of justifying inadequate resources resulting in systemic delays will always fall
upon the Crown. There may be a transitional period to allow for a temporary period of
lenient treatment of systemic delay
(c) Delays Attributable to the Accused
Certain actions of the accused will justify delays. For example, a request for adjournment
or delays to retain different counsel.
There may as well be instances where it can be demonstrated by the Crown that the
actions of the accused were undertaken for the purposes of delaying the trial.
(iii) Waiver
If the accused waives his rights by consenting to or concurring in a delay, this must be
taken into account. However, for a waiver to be valid it must be informed, unequivocal
and freely given. The burden of showing that a waiver should be inferred falls upon the
Crown. An example of a waiver or concurrence that could be inferred is the consent by
counsel for the accused to a fixed date for trial.
(iv) Prejudice to the Accused
There is a general, and in the case of very long delays an often virtually irrebuttable
presumption of prejudice to the accused resulting from the passage of time. Where the
Crown can demonstrate that there was no prejudice to the accused flowing from a delay,
then such proof may serve to excuse the delay. It is also open to the accused to call
evidence to demonstrate actual prejudice to strengthen his position that he has been
prejudiced as a result of the delays.
(i) The Length of the Delay
No matter what standard of measure is used or what test is applied, the trial in this case
has been inordinately delayed. Even when the first . . . one year prior to preliminary
hearing is discounted as being in large part attributable to the request for adjournments by
the appellants, there remains a delay period of almost two years. The experienced trial
judge
Page 88 of 1991 (1) ZLR 71 (HC)
who has presided for many years in Peel District described the delay as ‘clearly excessive
and unreasonable’ . . .
The period of delay in the case at bar is so lengthy that unless there is some very strong
basis for justifying the delay . . . then it would be impossible for a court to tolerate such a
delay.
(iv) Prejudice to the Accused
The trial judge found that the appellants had been prejudiced by the delay . . . he noted
the lengthy period of incarceration for the three appellants and the restrictions contained
in the bail terms . . . There has been no attack on these findings. Consequently, it is
impossible to say that the Crown has discharged the burden that rested upon it to show
that the delay caused no prejudice to the appellants.
(ii) Explanation for the Delay
(a) Delays Attributable to the Crown
It is clear that delays cannot be attributable to any action of the Crown. At no time did the
Crown make any request for adjournments or take any step that delayed the trial of the
action in any way.
There is nothing in the case that is so complex or inherently difficult to justify a lengthy
delay . . .
(b) Systemic or Institutional Delays
This trial was to be heard in Brompton, in the District of Peel in Ontario. This district has
long been notorious for the inordinate length of time required to obtain a trial date. The
delays are said to be caused by lack of facilities. The evidence submitted contained a
study done by Professor Carl Baar . . . Professor Baar has concluded that the Peel District
. . . experiences extremely long delays that are out of ordinary compared to the rest of
Ontario, the rest of Canada or the United States . . . To make matters worse, the situation
in Peel District appears to have deteriorated from the time this case was initiated . . . It is
apparent that the situation in Peel District has been in a deplorable state for many
years . . . Nonetheless, something must be done. Urgent attention to the situation is
required The response of the Government of Ontario has been neither overwhelming nor
particularly successful . . . The extent and gravity of the problem in Peel is brought home
by reference to the comparative study done on 1987 by Professor Baar. That study
illustrated that in Canada, New Brunswick and Quebec were best able to bring their cases
to trial within thirty to ninety-day range. In terms of the time taken to
Page 89 of 1991 (1) ZLR 71 (HC)
completely dispose of a case from committal to disposition, the median total time in New
Brunswick’s lower courts (provincial courts) was 152 days. The median total time in
upper courts was 72 days. By comparison, in Ontario the best district was London with a
median total time of 239 days and the median upper court time of 105 days. Toronto,
Ottawa and St Catherines were all close together with median total times of between 315
and 349 days, and upper court times between 133 and 144 days.
Professor Baar wrote that ‘. . . Brompton District Court . . . median total time was 607
days and the median upper court time was 423 days’ . . . Professor Baar concluded that
the Peel District is generally substantially slower than the slowest United States
jurisdictions. Further, he noted that the delay in the present case was longer than ninety
per cent of all cases in terms of median total time among those heard even in Peel
District. This case therefore represents one of the worst from the point of view of delay in
the worst district not only in Canada, but . . . anywhere north of the Rio Grande. . . . A
review of the recent statistics kept by the courts in Montreal, Longueuil and Terrebonne
by comparison reveals how very unsatisfactory and intolerable is the state of affairs in
Peel. . . . The average time in the three districts to commence a trial is 84,3 days and if
from the total there is deducted those cases where a second trial was directed or defence
requested an adjournment, the waiting period is only 63,5 days.
Making a very rough comparison and more than doubling the longest waiting period to
make allowance for the special circumstances in Peel would indicate a period of delay in
a range of some six to eight months between committal and trial might be deemed to be
the outside limit of what is reasonable. The usual delays in Peel are more than four times
as long as those of busy metropolitan districts in the province of Quebec and the delay in
this case is more than eight times as long. The figures from the comparable districts
demonstrate that the Peel District situation is unreasonable and intolerable.
The delay in this case is such that it is impossible to come to any other conclusion than
that s 11(b) Charter rights guaranteed to the individual accused have been infringed. As
well, the societal interest in ensuring that the accused be brought to trial within a
reasonable time has been grossly offended and denigrated. Indeed the delay is of such an
inordinate length that public confidence in the administration of justice must be shaken.
Justice so delayed is an affront to the individual, to the community and to the very
administration of justice. The lack of
Page 90 of 1991 (1) ZLR 71 (HC)
institutional facilities cannot in this case be accepted as a basis for justifying the delay.
I am well aware that as a consequence of this decision, a stay of proceedings must be
directed. This is, to say the least, most unfortunate and regrettable. It is obvious that the
charges against the appellants are serious. Extortion and threatened armed violence tear at
the basic fabric of society. . . . There can be no doubt that it would be in the best interest
of society to proceed with the trial of those who are charged with posing a serious threat
to society. Yet, that trial can only be undertaken if the Charter right to trial within a
reasonable time has not been infringed . . . To conclude otherwise would render
meaningless a right enshrined in the Charter as the supreme law of the land.
(c) Delays Attributable to the Accused
At the outset, I would repeat that in this case it is clear that there was no direct action on
the part of the appellants which resulted in any delay apart from that which occurred prior
to the preliminary hearing. . . . The Court of Appeal found that the following actions of
the appellants were indicative of abuse of the right to trial within a reasonable time:
(1) the accused had a concealed plan aimed at waiting until the delay was
unreasonable before bringing their motion;
(2) that facilities may have existed to accommodate an earlier trial for the
accused; and
(3) that the accused expressed no concern or objection as regards the delay.
These conclusions differed from those of the trial judge, who round that the parties could
not be given an earlier date . . . The transcript demonstrates that
(1) counsel attended the trial co-ordinator’s office to find out the earliest
possible date and were told that it was June, 1986;
(2) the judge presiding at the assignment court noted that this information was
incorrect and told counsel that, with the exception of a week in April, the earliest trial
date available was September, 1986;
(3) at the assignment court Crown called five priority cases ahead of the case
at bar, for placement in . . . April. Those priority cases were either older cases than the
one at bar or involved a detained accused; and
(4) the Crown estimated that the case at bar would take two weeks while the
free days in April amounted to only one week.
Page 91 of 1991 (1) ZLR 71 (HC)
The difference of opinion between the trial judge and the Court of Appeal can be readily
understood in light of the explanation that the Court of Appeal was only provided with a
partial transcript of the day’s proceedings in the Assignment Court. It is the complete
transcript filed in this Court that makes it apparent that the trial judge was correct in his
assessment that there was no other trial date available. . . . The Crown was properly
giving priority to other cases and it was absolutely clear that it was impossible to fix an
earlier date for the trial of the case at bar. This fact, make known to all in the courtroom
by the judge, made it utterly futile for counsel for the appellants to complain about the
delay to the assignment court judge. Quite simply, the appellants had no chance as to the
date of their trial; they were assigned the earlier possible date.
The complete transcript also reveals that there was no evidence to even support a finding
that the appellants had a concealed plan to wait until the delay was unreasonable before
complaining or bringing a motion.
Indeed, the transcript of the proceedings of the Assignment Court indicates that in the
presence of counsel for the appellants, while dealing with one of the ‘priority cases’,
there was an objection registered by counsel in that case as to the delay in the trial. To
that objection the Assignment Court Judge replied:
All right. I have recorded your objection . . . but I don’t propose to do anything other than
to set a new trial date, without prejudice to your rights to move and seek whatever
remedy you consider might be available to you . . .’ . . . In summary, a review of the
complete transcript . . . makes it clear that there was nothing in the conduct of the accused
which could indicate that they were deliberately attempting to use the provisions in an
improper manner . . .
(ii) Waiver
A consideration of the waiver issue requires that answers be given to two question. The
first is whether the appellants specifically waived their rights to a trial within a reasonable
time. The second is whether their actions during the course of the proceedings were
tantamount to waiver . . .
The first question can be readily answered. On the facts of this case there was no explicit
waiver of their rights by the appellants . . . The term ‘waiver’ indicates that a choice has
been made between available options. When the entire record of proceedings on the
occasion when the last trial date was fixed is read, it becomes crystal clear that the
appellants
Page 92 of 1991 (1) ZLR 71 (HC)
had no choice as to the date of the trial. The first available dates were given and allotted
to these appellants. Unless some real option is available, there can be no choice exercised
and as a result waiver is impossible.
The silence of the appellants or their failure to raise an objection to a long delay is
certainly not enough in the circumstances to infer waiver. Rather the onus rests upon the
Crown to demonstrate that the actions amounted to an agreement to the delay or waiver
of their right.”
The foregoing cases all dealt with criminal proceedings. In the instant case civil
proceedings are involved and pursuant to r 214 of the High Court of Zimbabwe Rules,
1971, as amended, whenever the pleadings in civil cases are closed, discovery effected
and a pre-trial conference in terms of r 182 held, the plaintiff or defendant may request
the registrar of this Court to place the case on the lit according to r 215 the registrar
proceeds to allocate a date for hearing but only when a date for trial has been fixed, after
taking into consideration any objections by the parties, by the registrar is a notice of set-
down filed and such notice delivered to the opposite party. I should indicate that for Case
No. HC 307/90 the documents filed to date reveal that in response to the plaintiff’s
application for trial dates the registrar indicated on 29 October 1990 that the trial could be
held at anytime during 12 to 16 November 1990 but those dates were not fixed for trial
and no notice of set down was filed.
It is true that the principles considered in the foregoing cases all related to criminal
proceedings, but many of these are also applicable to other fair hearings within a
reasonable time for the determination of civil rights or obligations. It is clear that besides
the rights of the individual, societal interest is also involved, requiring a balance to be
made. The crucial question is “how long is too long” and as the Supreme Court of
Canada candidly observed in Askov’s case, supra, that a response to such a question
“will always be difficult to fashion” and must be determined in light of the particular
circumstances of each case. In that case, the Supreme Court of Canada, did after making
allowance for limited institutional resources, hold that when “the delay is of such
inordinate length that public confidence in the administration is shaken . . . that lack of
institutional facilities cannot . . . be accepted as a basis for justifying the delay”.
The applicant also places reliance on the averments concerning mental anguish as well as
continuing publications by the respondent as sufficient
Page 93 of 1991 (1) ZLR 71 (HC)
grounds for this court to grant special leave and so in this way the applicant’s
constitutional rights under s 18(9) would be upheld in that he would have a trial within a
reasonable time. He also asserts that he believes that his case is unlikely to be heard
before 1993. Further, Mr de Bourbon maintains that civil trials of this nature should be
set for trial within one year of its commencement and certainly within six months of the
application for trial dates and that any delay beyond that cannot be said to be reasonable.
A trial in such a case in the first term of 1993 would make it just over 29 months from 9
August 1990 , the date of the application for a trial date.
The onus is upon the applicant to show that such delay infringes the provisions of s 18(9)
of the Constitution of Zimbabwe. Cory J in Askov’s case, supra, held that the delay
should be inordinate delay of such a lengthy period that public confidence in the
administration of justice must be shaken. “Justice so delayed is an affront to the
individual, to the community and to the very administration of Justice.”
Not only has the applicant not established that trial in this case will not be held before
1993, but also that a trial in 1993 or a trial in this case not held within 6 months of the
application for a trial date would constitute an infringement of s 18(9) of the Constitution
of Zimbabwe. As Lamer J correctly observed in Mills v The Queen, supra, we do not live
in an ideal world, which means allowances must be made.
The general rule, as far as applications for matters to be heard as a matter of urgency, is
that this court must be satisfied that if the matter is not heard urgently or if special leave
is not granted, substantial injustice would result to the applicant — Munette Investments
(Pty) Ltd & Ors v Administrator, Cape Province & Anor 1973 (4) SA 491 (C) at 493.
It was correctly pointed out by Mr Sayce that the applicant is in no worse position than
other litigants in civil trials of like nature and to accord him favourable treatment ahead
of these other litigants would also be an infringement of their constitutional rights. It is no
answer to argue that these other litigants have not sought the assistance of this court in
order to assert their constitutional rights. Surely a litigant who complies with the Rules of
the High Court of Zimbabwe 1971 and makes application for a trial date is asking the
Registrar to allocate and fix a date for trial for that person. Such a litigant can only be
said to be seeking a date for trial within a reasonable time. To hold otherwise would be to
maintain that such a litigant desires that his constitutional rights under s 18(9) be
violated.
Page 94 of 1991 (1) ZLR 71 (HC)
It is only in most exceptional circumstances that special leave under r 255 of the Rules of
the High Court of Zimbabwe 1971 would be granted by this court. The applicant has not
discharged the onus placed upon him so that this court may exercise its discretion in his
favour. Accordingly the application is dismissed with costs.
Gill, Godlonton & Gerrans, applicant’s legal practitioners
Honey & Blanckenberg, respondent’s legal practitioners
PACHYDAKIS v MASTER OF THE HIGH COURT & ORS*
1991 (1) ZLR 95 (HC)
Division: High Court, Harare
Judges: Smith J
Subject Area: Civil application
Date: 26 November 1990 & 13 February 1991

Succession — lost will — presumption that will destroyed “animo revocandi” —

rebuttable by evidence of testator’s conduct or intention.
The applicant’s late husband had executed a will ten years prior to his death by suicide in
terms of which he left his entire estate to the applicant. The will could not be found on his
death which gave rise to a rebuttable presumption that the testator had destroyed the will
animo revocandi.
It having previously been accepted by all parties that the testator had, in this will, left his
entire estate to his wife, she instituted proceedings that such will be accepted by the
Master.
Held, that the court had to be morally convinced that the will was not destroyed animo
cancellandi, from evidence of the testator’s conduct or intention or by inference from the
circumstances of the case.
Held, further, that the evidence led was sufficient to rebut the presumption in that it was
improbable that the testator had secretly destroyed his will with the avowed purpose of
disinheriting the applicant.
Cases cited:
Ex parte Slade 1922 TPD 220
Ex parte Warren 1955 (4) SA 326 (W)
Allan v Morrison & Ors [1900] AC 604 (PC)
Davis v Steel & Eriksen NO 1949 (3) SA 177 (W)
Page 96 of 1991 (1) ZLR 95 (HC)
A P de Bourbon SC for the applicant
No appearance for the first and second respondents
M J Gillespie for the third and fourth respondents
SMITH J: The applicant is the widow of Emmanuel Peter Pachydakis (hereinafter
referred to as “the deceased”) who died by suicide on 26 June 1986. On 12 May 1976
each of them had made a will in which the testator left his or her entire estate to the
surviving spouse unless the surviving spouse predeceased the testator or died within 30
days after the death of the testator, in which case the testator’s estate was left to the
applicant’s elder brother. On 13 April 1986 the applicant and the deceased entered into a
deed of separation. In terms of the typed document the deceased was to leave the
matrimonial home within 7 days from the date of signature of the agreement. That
provision was, however, altered in manuscript so as to provide that the deceased was to
vacate the matrimonial home on or before 30 September 1986. After the death of the
deceased his will could not be found. The first respondent and the second respondent,
which is the executor of the deceased’s estate, refused to accept the applicant as the
surviving spouse of the deceased because there was no proof that the parish priest who
had married the applicant and the deceased was a properly appointed marriage officer.
The second respondent accepted that the third and fourth respondents, who were sisters of
the deceased, were beneficiaries of his estate.
On 16 November 1989 an order of court was issued by consent in which it was declared
that —
(a) the applicant and the deceased were lawfully married to each other according to
the laws of Southern Rhodesia on 22 September 1962 and remained so married at the
time of the death of the deceased;
(b) the terms of the last will of the deceased were as claimed by the applicant, which
will had been duly executed by the deceased on 12 May 1976.
In terms of the order the issue of whether or not the deceased had revoked the
abovementioned will was referred for oral evidence in terms of Rule 159 of the Rules of
the High Court of Zimbabwe, 1971. The costs of the matter were reserved to be
determined by the court receiving the oral evidence.
Three witnesses gave oral evidence. They were Dr Hercher, a medical practitioner who
practised in Shurugwi, the town where the applicant and the deceased lived, Mrs
Carlsson, who lived in Shurugwi and had known the applicant and the deceased for six
years prior to his death and the applicant.
Page 97 of 1991 (1) ZLR 95 (HC)
Dr Hercher said that both the applicant and the deceased had been patients of his since he
started his practice in Shurugwi in 1974. He said that he had heard that the applicant and
the deceased had separated but despite the separation relations between the two had been
good and they remained on friendly terms. When he heard that the deceased had taken his
own life he had thought that it was a panic-reaction on the part of the deceased because
his separation from the applicant would not be tolerable. One evening, some 4 to 6 weeks
before the deceased’s death, the deceased had visited him after working hours. The
deceased had said that he still loved his wife and wanted to stay with her and that he
could not understand why she wanted the separation. The deceased had shown him his
will and said that he was leaving everything to his wife or, if she had predeceased him, to
her elder brother. The witness said that the deceased showed his will in order to
demonstrate that he still loved his wife. After showing his will and talking about his
domestic affairs the deceased had then spoken about his health. Then he had left, putting
his will between the covers of a black book in which there were some other loose papers.
The witness had thereafter seen the deceased once or twice and on each occasion the
latter had not said or done anything which would indicate that his attitude to his wife had
changed. The day before his death the deceased had visited the witness seeking
accommodation. The witness told the deceased that the flat he owned was already
occupied. The deceased then said that he would see if he could find accommodation in
Gweru and would go to see his sister, the third respondent. However he did not hold out
much hope because he said that his sister did not like him and did not care about him. On
the occasion of this visit the deceased had been relatively quiet.
Under cross-examination this witness said that the deceased had suffered from a heart
disturbance which had started in 1986. He was being treated for an extra beat of the heart.
He took valium, which was a sedative that acted on the central nervous system, slowing
down the rate of heart beats and normalising the extra beat. Some five to six weeks
before his death the deceased had been asked to visit the surgery and an
electrocardiogram had shown that the deceased was under enormous tension and also he
had high blood pressure. To prevent complications such as a stroke or myocardial
infarction, valium had been prescribed. The separation procedures had contributed to his
emotional tension. However, on many occasions the deceased had said that he still loved
his wife.
Mrs Carlsson said that she knew the applicant and the deceased for six years prior to the
death of the latter. She had learnt of the separation from the
Page 98 of 1991 (1) ZLR 95 (HC)
deceased. From her observations it appeared that the separation did not alter the relations
between the two. Certainly the attitude of the deceased towards his wife did not change.
After the separation the deceased had discussed with her the question of alternative
accommodation. When she said that he should have no trouble in that regard because he
had a sister in Gweru his reply was that his sister was not interested in his story. The
witness had seen the deceased a week before his death and at that time there was no
change in his attitude towards his wife. Under cross-examination she said that she had
never seen the applicant and the deceased quarrelling, their relationship had always been
harmonious.
The last witness was the applicant. She said that she and the deceased were married on 22
September, 1962 and they lived together until his death on 26 June 1986. Soon after their
marriage they had moved to South Africa, where they stayed for four years, then they
returned to this country. After staying in Zvishavani then at the Antelope Mine they
moved to Shurugwi. In 1976 they had each drawn up a will and the deceased kept both
documents. The next time the applicant saw the wills was in April 1986, two months
before the deceased’s death, when the deceased showed them to her. The applicant said
that the separation was her decision. She felt that they were no longer communicating
with each other and that they should separate for the sake of both of them. There was no
animosity on the part of either, although admittedly the deceased had not wanted the
separation. In fact he often spoke to the applicant’s mother about it and asked her to
speak to the applicant about a reconciliation. Towards the end the applicant felt sorry for
the deceased, he lost weight and was not feeling well. She thought that had it not been for
his death, there probably would have been a reconciliation. They continued living in the
same house and every day he came to the shop which the applicant had and did deliveries
for her. Every week he went to Gweru for her to get supplies for the shop. The applicant
and her parents, who lived in the house with them, were the only family he knew and
there was always a place set at the table for the deceased. The deceased seldom went out.
Earlier in the year the deceased had visited Greece, where he was born, to see whether he
would be eligible for a pension if he returned there. Whilst he was away the applicant
found that her life was calmer, more peaceful, and that was when she decided on the
separation.
They used to phone each other every day whilst he was in Greece and it was then that she
told him that she wanted a separation. He pleaded with her but she was adamant. He cut
short his holiday in Greece to come back home. She had suggested that he ask his sister,
the third respondent, for accommodation
Page 99 of 1991 (1) ZLR 95 (HC)
but the deceased said that his sister had refused his request, saying that he had made his
bed and must now lie on to. About two months before his death the deceased had called
the applicant to his room one evening before supper and told her that he wanted to give
her her will, saying that he had his. He told her that if she wanted to change her will she
should do so but she told him that she had no wish to do so, because all that they had had
been achieved by their joint endeavours. She likewise said to him that if he wanted to
change his will he should do so, especially as regards the property he owned in Greece
which he might want to leave to his other sister, the fourth respondent, who lived in
Greece. His response was that he might have his faults but he would never do anything
like that. He had thought about changing the one paragraph in his will so as to provide
that if the applicant predeceased him his estate would go to the children of the applicant’s
brother, rather than the brother, but on second thoughts he had decided not to change his
will. Thereafter the deceased had opened a drawer in his desk and put the will into it. The
applicant said that the deceased often sat at his desk and read the newspapers. She had
never seen the black book referred to by Dr Hercher and she had not found one after the
death of the deceased. After his death she had searched his desk and the rest of the room
but had not been able to find the will. She had written to the bank and to the deceased’s
legal practitioners but neither had the will. Later, when she was looking in her wardrobe,
she found the title deeds to their home and to other properties hidden there. They must
have been placed there by the deceased because he had kept them in his possession. She
felt that the deceased must have put the will somewhere for safe-keeping. If he had
destroyed the will he was the sort of person who would have made another to replace it.
After giving the applicant her will he had never mentioned the subject again and he had
never spoken about going to his lawyer to change his will. She did not think that the
deceased had wanted to commit suicide. He had wanted to frighten her and his sister, the
third respondent, because they were not there when he needed them. He did not want a
separation. It was an accident. He had told one of their employees that if he had not
returned by 5 pm the employee was to come and call him, although he had a watch. That
showed that he wanted to be found. In the last two weeks of his life the deceased had not
changed in his personality or in his attitude towards her. On the day of his death they had
had lunch together and discussed the World Cup football final which was to be played on
the Sunday. Thereafter they had played cards on the verandah until the applicant went to
the shop. The deceased had phoned her at 3 pm to ask whether there were any deliveries
he could do and then said, “fine, I’ll see you later”. She had not noticed anything strange
about his manner.
Page 100 of 1991 (1) ZLR 95 (HC)
In cross-examination the applicant said that when the deceased was in Greece she
realized that they had drifted apart and were no longer communicating. Although they
had lived together for 24 years she did not fully understand him. She had not gone with
him to Greece because they could not both leave the shop. One had to stay behind to
mind the business. The deceased’s health was not good because of his heart problem. He
always felt depressed and very tired. He wanted to sell the business and retire. She herself
would be prepared to sell if they got the right price. In terms of the deed of separation she
retained the business. She felt they had worked hard to build up the business and it would
be a pity to let it run down. As the deceased did not want to continue running the business
she felt that she had no option. They had discussed the separation and the deed of
separation several times. He had not wanted the separation but she had been adamant.
After the deed of separation was signed the deceased had changed and they seemed to get
on better and were on friendlier terms. Prior to the separation they had had arguments
about financial matters because the deceased was inclined to get too frustrated.
Afterwards, however, his attitude changed, he was quieter and did not argue about things
where previously he would have. The deceased had told her that he was still fond of her
and asked her please to reconsider. The deceased did not want to live alone so they had
agreed that he would live in the cottage which was just a few metres from the
matrimonial home and which the applicant had furnished for him. She did not pressure
the deceased to move into the cottage, telling him he could move when he was ready. He
said that he was going to try to find someone to live with him. She had agreed that he
could continue to have his meals with her and her parents. He had asked the third
respondent for accommodation and she had refused. The applicant said that she was not
aware of any thefts or of any property missing from the matrimonial home immediately
before or after the death of the deceased. She had searched and done everything she
thought necessary or reasonable to find the deceased’s will but to no avail.
The legal position in a case such as this is clear and was set out in Ex parte Slade 1922
TPD 220. In that case a will, executed by the testator, and which was last seen in his
possession, could not be found on his death. The court held that the presumption was that
the will had been destroyed by the testator animo revocandi. No general rule could be laid
down as to the nature of the evidence required to rebut such presumption but each
particular case was to be determined on the strength of the evidence laid before the court.
At p 222 de Waal J said:
“Several factors have to be taken into consideration, such as the magnitude
Page 101 of 1991 (1) ZLR 95 (HC)
or otherwise of the deceased testator’s estate; his relations towards his family — in this
case towards his wife; that nothing has happened since he made his will to make it
probable that he wished to destroy or alter it — as, for instance, the birth of further
children; and that the testator had made declarations in his lifetime not only of his
intention not to revoke his will, but of his desire to die testate.”
At p 225 the learned judge continued:
“What I have to determine is whether on all these facts the Court is morally convinced
that the will was not destroyed by the testator animo cancellandi.”
Mr de Bourbon submitted that the applicant had, on a balance of probabilities, discharged
the onus of rebutting the presumption referred to above. He pointed out the following
features. Whereas the typed draft of the deed of separation had provided that the deceased
was to leave the matrimonial home within seven days, that provision had been altered in
manuscript so as to refer to 30 September, so that at the time of his death the deceased
still had three months before he had to leave the matrimonial home. After signing the
deed of separation on 13 April the deceased had the matter of his estate on his mind. He
showed it to Dr Hercher, in the context of expressing his continued love for the applicant,
and said that he had no intention of changing it. Some two weeks later the matter was still
on his mind when he gave the applicant her will and discussed the possibility of the
parties altering their wills. He then made it clear to her that he had no intention of altering
his will. About that time he hid the title deeds to certain properties in the applicant’s
wardrobe. He submitted that the deceased was clearly a man who wanted his affairs dealt
with properly and was not the kind of man who would destroy his will without drawing
up a new one.
Mr Gillespie, on the other hand, submitted that there were no circumstances from which
one could draw a favourable inference to rebut the presumption. After the signing of the
deed of separation the deceased was in a state of emotional upset. He had a serious
medical condition, he had withdrawn into himself and was no longer able to
communicate his feelings. In his state the probabilities were that he would be more likely
to act in an uncharacteristic fashion. He destroyed his own life so why should he not
destroy his will? Mr Gillespie pointed out that there was nothing to suggest that the
deceased had hidden or lost his will. No other important documents were known to be
lost. The applicant had done everything she could to find the will but to no avail.
Page 102 of 1991 (1) ZLR 95 (HC)
Her belief that the deceased had not intended to take his life did not assist her case. If the
deceased had been driven to hang himself in order to demonstrate his feelings, he was
obviously in a state where he would commit impulsive and uncharacteristic actions.
The witnesses in this case all gave their evidence well and the court has no hesitation in
accepting their evidence. Dr Hercher and Mrs Carlsson had no motive to give false
evidence. The applicant obviously would be vitally affected by the outcome of this case.
She therefore had a compelling motive to colour or embroider her evidence to support her
case. It seems to the court, however, that she resisted any temptation to do so. She gave
her evidence clearly and calmly. In giving evidence as to what had happened between her
and the deceased she could have manufactured her evidence and no-one would have
controverted it. For instance she said that but for the death of the deceased there might
well have been a reconciliation between the two of them. When she was asked whether
the deceased knew that she said he did not. She could easily have said that she had told
him that. Another example is her evidence as to the deceased’s words when he gave her
her will. She said that that was the only occasion on which he had said that he had no
intention of changing his will. She could easily have said that the deceased had
mentioned that again on a later occasion. She could have said that other papers were
missing or stolen. She did none of these things. I can see no indication of an attempt to
bolster the applicant’s case with falsehoods. If she had been so disposed, I have little
doubt that she could have presented a more unassailable case, knowing that she could not
be contradicted directly by any witness. In Ex parte Warren 1955 (4) SA 326 (W), the
effect of the destruction of the will was that the estate of the testatrix devolved, through
intestate succession, on her relatives and not on her former friend who had been heiress in
terms of the will. That is not the position in this case. The destruction by the deceased of
his will would not have the effect of disinheriting the applicant. In the event of intestacy
she would still be entitled to a half share in the deceased’s estate. In the case of Allan v
Morrison & Ors [1900] AC 604 (PC), the testator, because of illness, was confined to his
house and his will had been kept in a safe in the house. He was not able to remove the
will from the house. When it could not be found after his death, both the court a quo and
the court of appeal were not morally convinced that the will was not destroyed by the
testator animo revocandi. In this case not only was the deceased able to leave his house at
will but the evidence of Dr Hercher showed that on at least one occasion he removed the
will from the house. The book in which Dr Hercher saw the deceased place the will was
not found after the death of the deceased.
Page 103 of 1991 (1) ZLR 95 (HC)
In Davis v Steel & Eriksen NO 1949 (3) SA 177 (W), at 183 Millin J referred to the
principle that when a will is traced to the possession of the testator and cannot be found
after his death there arises a presumption that it was destroyed by the testator animo
revocandi. He then went on to say that such presumption was not irrebuttable. It may be
rebutted —
“by direct evidence of the testator’s conduct or intention or by inference from the
circumstances of the case”.
The evidence in this case showed that the deceased and the applicant had lived and
worked together for almost 24 years and through their joint endeavours had built up a
successful business and acquired some property. Although they had entered into a deed of
separation, it was against the wishes of the deceased. He still loved the applicant and
wanted to carry on living in the matrimonial home. In fact they were still living together
and sharing board, though not bed. A cottage next door had been furnished for the
deceased to move into. The deceased apparently was not very close to his sisters, the
third and fourth respondents. They certainly had played no part in helping him and the
applicant to acquire assets that they had. On two occasions shortly before his death the
deceased had produced his will and said that in his will he had left everything to his wife
and that he had no intention of altering his will. Nothing happened in the last weeks
before his death to alter the relationship between him and the applicant and there was no
change in their circumstances. It would appear that in fact they were getting on better
than they had before the separation. The deceased regarded the applicant and her parents
as his family. He continued to live with them. He had no intention of moving to Greece to
live with the fourth respondent and when he had suggested living with the third
respondent in Gweru she had rejected him.
As was said by de Waal J in Slade’s case supra what I have to determine is whether on all
these facts the court is morally convinced that the will was not destroyed by the testator
animo cancellandi. The answer to this question must, I think, be in favour of the
applicant’s contention. I do not think that the deceased secretly destroyed his will with
the avowed purpose of disinheriting his wife and incline to the view that it was mislaid
and is still in existence or was inadvertently destroyed.
With regard to costs, both Mr de Bourbon and Mr Gillespie submitted that they should be
paid from the deceased’s estate. I agree with their submissions.
Page 104 of 1991 (1) ZLR 95 (HC)
It is ordered —
1) That the will of the late Peter Emmanuel Pachydakis, as referred to in
paragraph 2 of the order issued by the High Court on 16 November 1989, be accepted by
the Master of the High Court as the last will and testament of the late Peter Emmanuel
Pachydakis;
2) That the costs of the applicant and the respondents in respect of this
application and of the preceding notice of motion proceedings be borne by the estate of
the late Peter Emmanuel Pachydakis.
Condy, Chadwick & Elliott, applicant’s legal practitioners
Atherstone & Cook and Danziger & Partners, third and fourth respondents’ legal
practitioners
CONJWAYO v MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS
& ANOR*
1991 (1) ZLR 105 (SC)
Division: Supreme Court, Harare
Judges: Gubbay CJ, McNally JA, Manyarara JA, Korsah JA & Ebrahim JA
Subject Area: Constitutional application
Date: 24th January & 21st February 1991

Constitution — violation of s 15(1) of the Declaration of Rights — condemned prisoners’

rights — rights to freedom from inhuman and degrading treatment — rights of prisoners
to exercise and fresh air.
Whereas courts in many jurisdictions, including Zimbabwe, have traditionally adopted a
“hands off” attitude towards prison administration, it must nevertheless be recognised
that a prisoner does not leave his constitutional rights behind him when he goes to prison.
A policy of judicial restraint cannot encompass any failure to take cognisance of a valid
claim that a prison regulation or practice offends a fundamental constitutional protection.
The applicant was a prisoner under sentence of death, and was being held in a
windowless cell across the full front of which were a series of mesh covered iron bars
with a gate of similar construction. The cell measured 4,6 metres by 1,42 metres and
contained a self-flushing toilet, with a low concrete platform covered with a sleeping mat.
Meals were provided at 8 am 10.30 am and 1.20 pm. Drinking water was provided on
request. An electric light burned in the cell 24 hours a day. The applicant was allowed
half an hour’s exercise per weekday in the morning, outside in the exercise yard. In the
afternoon he was allowed half an hour to wash himself and his clothes inside, in the cell-
block. Over weekends
Page 106 of 1991 (1) ZLR 105 (SC)
and public holidays he was allowed no exercise at all, although he was allowed the half
an hour washing period.
During without prejudice negotiations in an exchange of correspondence, the contents of
which had nevertheless been placed before the court, the second respondent had offered
to allow the applicant exercise outside for an hour in the morning and an hour in the
afternoon, during week-days only, excluding the half-hour period for washing.
Held, that the applicant’s constitutional rights required that he have a minimum of one
hour‘s exercise outside in the exercise yard per day.
Held, further, however, that in view of the concessions made by the second respondent,
the applicant should have an additional hour‘s exercise in the afternoon on weekdays
only.
Cases cited:
Sunil Batra v Delhi Administration (1979) 1 SCR 392 (Sup Ct India)
Charles Sobhraj v Superintendent, Central Jail, Tihar, New Delhi (1979) 1 SCR 512 (Sup
Ct India)
Patnaik v Andrah Pradesh (1975) 2 SCR 24 (Sup Ct India)
Rhodes v Chapman (1981) 452 US 377; 69 L Ed 2d 59 (US Sup Ct)
Wolff v McDonnell (1974) 418 US 539; 41 L Ed 2d 935 (US Sup Ct)
Goldberg & Ors v Minister of Prisons & Ors 1979 (1) SA 14 (A)
Hassim & Anor v Officer Commanding Prison Command, Robben Island & Anor 1973
(3) SA 462 (C)
Cassiem & Anor v Commanding Officer Victor Verster Prison & Ors 1982 (2) SA 547
(C)
Nestor & Ors v Minister of Police & Ors 1984(4) SA 230 (SWA)
Estelle v Gamble (1976) 429 US 97; 50 L Ed 2d 251 (US Sup Ct)
Hutto v Finney (1978) 437 US 678; 57 L Ed 2d 522 (US Sup Ct)
McCann & Ors v The Queen (1975) 68 DLR (3d) 661 (Fed Ct Canada)
Collin et al v Kaplan (1982) 2 CRR 352 (Fed Ct Canada)
S v Ncube & Ors 1987 (2) ZLR 246 (SC); 1988 (2) SA 702 (ZS)
S v Masitere 1990 (2) ZLR 289 (SC); 1991 (1) SA 821 (ZS)
E W W Morris for the applicant
B Q P Simelane for the respondents
GUBBAY CJ: This is an application direct to this court under s 24 (1) of the
Constitution of Zimbabwe for redress in respect of an alleged violation of s 15 (1) of the
Declaration of Rights. The applicant is a 57-year-old Class D prisoner, presently under
sentence of death. The two main respondents are the Minister of Justice, Legal and
Parliamentary Affairs and the Director of Prisons.
Page 107 of 1991 (1) ZLR 105 (SC)
On 18 November 1988 the applicant and his co-accused, Kevin John Woods and Michael
Anthony Smith, were convicted in the High Court of the crime of murder and sentenced
to the ultimate punishment. It was found that they, with others, had conspired to kill, by
means of a Renault 5 motor vehicle booby-trapped with explosives, six persons believed
by them to be members of the military wing of the African National Congress of South
Africa, who happened to be residing at 16 Jungle Road, Trenance, Bulawayo. The plan
was put into operation on 1 January 1988. The deceased, Obert Mwanza, an unemployed
person, was engaged for reward to drive the Renault 5, alone, to the address in question.
He was totally unaware that it had been primed with a powerful explosive device. Upon
arrival at the front of the premises he sounded the hooter and then drove to the rear.
When the hooter was blown for the second time there was a huge explosion. It resulted in
the instantaneous death of Mwanza, whose body was mutilated beyond recognition, and
in one of the residents sustaining the loss of an eye. The house was extensively damaged.
Adjacent to it was a crater about two-and-a-half metres in diameter and twenty
centimetres deep. Pieces of the bodywork of the Renault 5, as well as remnants of human
flesh and clothing worn by the deceased, were scattered over a radius of fifty metres.
It was accepted by the trial court that the aim of the applicant and his colleagues was to
eliminate, by this operation, personnel of the African National Congress of South Africa,
and not to harm the deceased, who had no connection with that political organisation.
Hence the convictions were based upon a constructive intent to kill the deceased. An
appeal by the applicant, against both conviction and sentence, is pending before this
court.
Since the passing of sentence the applicant has been incarcerated in the condemned
section of Chikurubi Maximum Security Prison, a Grade IV prison. Pursuant to s 110 of
the Prisons Act [Chapter 21] he is being confined in a cell, separately, under constant
supervision both by day and by night. The cell is 4,6 metres long by 1,42 metres wide.
The side and rear walls are solid and windowless. Across the full front of the cell are a
number of closely spaced vertical iron bars; attached thereto is a steel mesh screen or
grill in which is a lockable gate of similar construction. Inside the cell is a self-flushing
toilet and a low concrete platform covered by a sleeping mat. Drinking water is provided,
upon request, by the warders. Meals are served at 8 am, 10.30 am and 1.20 pm. The
applicant is permitted to read the Bible, and novels, but nothing else.
The cell, which is located on the ground floor of the prison complex, is one of eleven set
aside for offenders who are under sentence of death. A row of
Page 108 of 1991 (1) ZLR 105 (SC)
five cells faces another row of six. In a small area at right angles to both rows are a wash
basin and shower cubicle.
The only other prisoners in the same condemned section are Woods and Smith. The
applicant is able to see them through the mesh screen. They are permitted to talk to one
another and to the warders. An electric light burns in each cell and is never extinguished.
It supplies the sole source of illumination (see s 74 of Standing Orders issued by the
Director of Prisons in terms of s 12 of the Prisons Act).
A fairly large wedge-shaped yard adjoins the condemned section of the prison. It is
enclosed on each side by very high walls and is open to the sky. Initially, the applicant
was allowed virtually unrestricted access to this exercise yard during daylight hours until
4 pm; and the facility extended over week-ends and public holidays. He was thus able to
take daily exercise in the open air and enjoy whatever sunshine was available.
The situation altered drastically, however, following upon the conviction of one Dennis
Charles Beahan, on 28 June 1989. He was found guilty of having conspired with others to
forcibly effect the release from lawful custody of Woods, Smith and the applicant, and to
remove them from Zimbabwe. In the implementation of stricter security measures
deemed essential, the Director of Prisons reduced the period of the applicant’s access to
the exercise yard to half an hour on week-days only. This restriction prevails. Every
afternoon the applicant is allowed out of his cell, but still within the small condemned
section, for the purpose of showering, attending to his laundry, washing eating utensils,
and sweeping the cell. The extent of this period is also half an hour. This means that
during the week the applicant is locked in his cell for twenty-three hours each day, and
over week-ends and public holidays, for half an hour more.
From 18 November 1988 until the middle of September 1990 it was the practice of the
warders attached to the condemned section of the prison to remove and withhold from the
applicant, between the hours of 4 pm and 7 am, every item of clothing. Additional
blankets were provided during the cold winter months. It is claimed by the Director of
Prisons that the need at the time to maintain absolute security prompted this action, which
was discontinued as soon as conditions had improved. Whatever the reason for the
deprivation — and I may say its cessation coincided remarkably with the institution of
these proceedings in which the practice is bitterly complained of — it was not in dispute
that it constituted treatment of a degrading nature.
Page 109 of 1991 (1) ZLR 105 (SC)
However that may be, the applicant’s remaining plea is that the periods over which he is
confined to his cell, both on week-days and particularly over week-ends and public
holidays, without access to sunshine, the open air and the ability to exercise effectively,
are so excessive as to amount to inhuman treatment; the commission of which he is
protected against by s 15 (1) of the Constitution. It was urged that, although there is no
evidence that the applicant’s physical health is deteriorating, this court should interfere,
nonetheless, to the extent of directing that the applicant be permitted daily access to the
exercise yard for one hour in the morning and one hour in the afternoon.
Traditionally courts in many jurisdictions have adopted a broad “hands off” attitude
towards matters of prison administration. This stems from a healthy sense of realism that
prison administrators are responsible for securing their institutions against escape or
unauthorised entry, for the preservation of internal order and discipline, and for
rehabilitating, as far as is humanly possible, the inmates placed in their custody. The
proper discharge of these duties is often beset with obstacles. It requires expertise,
comprehensive planning and a commitment of resources, all of which are peculiarly
within the province of the legislative and executive branches of government. Courts
recognise that they are ill-equipped to deal with such problems.
But a policy of judicial restraint cannot encompass any failure to take cognisance of a
valid claim that a prison regulation or practice offends a fundamental constitutional
protection.
Fortunately the view no longer obtains that in consequence of his crime a prisoner
forfeits, not only his liberty, but all his personal rights, except those which the law in its
humanity grants him. For while prison officials must be accorded latitude and
understanding in the administration of prison affairs, and prisoners are necessarily subject
to appropriate rules and regulations, it remains the continuing responsibility of courts to
enforce the constitutional rights of all persons, prisoners included.
In Sunil Batra v Delhi Administration (1979) 1 SCR 392 (Sup Ct India) Desai J,
delivering the lead judgment, laid down the following broad principles: In the first place,
it was not open to debate that prisoners were not wholly deprived of their fundamental
rights and no iron curtain could be drawn between a prison and the Constitution.
Secondly, prisoners were entitled to all constitutional rights, save those inevitably lost as
an incident of confinement. Thirdly, conviction for a crime did not reduce the prisoner
into a non-
Page 110 of 1991 (1) ZLR 105 (SC)
person, whose rights were subject to the whim of the supervising administration. Finally,
the court had to strike a just balance between de-humanising prison atmosphere on the
one hand, and the preservation of internal order and discipline, the maintenance of
institutional security, and the rehabilitation of prisoners, on the other.
In a similar view of the position of the courts, yet expressed in more graphic and
colourful language, Krishna Iyer J, in Charles Sobhraj v Superintendent, Central Jail,
Tihar, New Delhi (1979) 1 SCR 512 (Sup Ct India) at 518-519, said:
“Whenever fundamental rights are flouted or legislative protection ignored, to any
prisoner;’s prejudice, this court’s writ will run, breaking through stone walls and iron
bars, to right the wrong and restore the rule of law. Then the parrot-cry of discipline will
not deter, of security will not scare, of discretion will not dissuade, the judicial process.
For if courts ‘cave in’ when great rights are gouged (out) within the sound-proof, sight-
proof precincts of prison houses, where, often dissenters and minorities are caged,
Bastilles will be re-enacted. . . . Therefore we affirm that imprisonment does not spell
farewell to fundamental rights although, by a realistic re-appraisal, courts will refuse to
recognise the full panoply of Part III enjoyed by a free citizen.”
The learned judge then added a word of caution at 519
“The court must not rush in where the jailor fears to tread. While the country may not
make the prison boss the sole sadistic arbiter of incarcerated humans, the community may
be in no mood to hand over central prisons to be run by courts. Each instrumentality must
function within its province.”
See also Patnaik v Andrah Pradesh (1975) 2 SCR 24 (Sup Ct India) at 26 per
Chandrachud J.
The same sentiments are discernible in Justice Brennan’s separate concurring opinion in
Rhodes v Chapman (1981) 452 US 337, where at 361 he remarked:
“The task of the courts in cases challenging prison conditions is to ‘determine whether a
challenged punishment comports with human dignity’. . . . Such determinations are
necessarily imprecise and indefinite, . . .; they require careful scrutiny of challenged
conditions, and application of realistic yet humane standards.
Page 111 of 1991 (1) ZLR 105 (SC)
In performing this responsibility, this Court and the lower courts have been especially
deferential to prison authorities ‘in the adoption and execution of policies and practices
that in their judgment are needed to preserve internal order and discipline and to maintain
institutional security’. . . . Many conditions of confinement, however, including over-
crowding, poor sanitation, and inadequate safety precautions, arise from neglect rather
than policy. . . . There is no reason of comity, judicial restraint, or recognition of
expertise for courts to defer to negligent omissions of officials who lack the resources or
motivation to operate prisons within limits of decency. Courts must and do recognise the
primacy of the legislative and executive authorities in the administration of prisons;
however, if the prison authorities do not conform to constitutional minima, the courts are
under an obligation to take steps to remedy the violations.”
See also Wolff v McDonnell (1974) 418 US 539 at 555-556.
Interestingly enough in South Africa, where the transgression of a fundamental human
right is not susceptible of constitutional attack as such, much the same approach was
adopted by Corbett JA (as he then was) in his dissenting judgment in Goldberg and Ors v
Minister of Prisons and Ors 1979 (1) SA 14 (A). He stressed at 39C that it is a recognised
common law principle that:
“. . . a convicted and sentenced prisoner retains all the basic rights and liberties (using the
word in its Hohfeldian sense) of an ordinary citizen except those taken away from him by
law, expressly or by implication, or those necessarily inconsistent with the circumstances
in which he, as a prisoner, is placed”;
and that there is:
“. . . a substantial residuum of basic rights which he cannot be denied; and if he is denied
them, then he is entitled,in my view, to legal redress.”
See also Hassim & Anor v Officer Commanding Prison Command, Robben Island &
Anor 1973 (3) SA 462 (C) at 472H-473B; Cassiem & Anor v Commanding Officer
Victor Verster Prison & Ors 1982 (2) SA 547 (C) at 553 C-E; and Nestor & Ors v
Minister of Police & Ors 1984 (4) SA 230 (SWA) at 250F-I.
A survey of the cases dealing with the fundamental rights of prisoners illustrates well a
refusal by the courts to allow an impenetrable barrier to be placed between prisons and
the Constitution.
Page 112 of 1991 (1) ZLR 105 (SC)
The United States Supreme Court has, generally, treated challenges to prison conditions,
as a whole, under the cruel and unusual punishments clause of the Eighth Amendment to
the Constitution. That august body has held the clause to have been violated where
prisoners were confined, without proper diet, in excessively crowded and unsanitary
conditions, and knowingly denied needed medical care (see Estelle v Gamble 429 US
97); and where an average of four, and sometimes as many as eleven, prisoners were
crowded into windowless cells eight feet by ten feet containing no furniture other than a
source of water and a toilet that could be flushed from outside the cell (see Hutto v
Finney (1978) 437 US 678). On the other hand, a claim that double-celling of two
inmates in a single cell in a maximum security prison was violative of the protection, was
dismissed (see Rhodes v Chapman, supra, Justice Marshall dissenting).
In Sunil Batra v Delhi Administration, supra, the Supreme Court of India ruled that to
detain a prisoner under sentence of death in solitary confinement on the alleged ground of
security, was in breach of his constitutional rights.
In Canada it has been held by the Federal Court that oppressive conditions of solitary
confinement at a British Columbia Penitentiary amounted to cruel and unusual treatment
under s 2(b) of the Bill of Rights (see McCann v The Queen (1975) 68 DLR (3d) 661);
but that double-celling did not, under s 12 of the Charter of Rights and Freedoms (see
Collin et al v Kaplan et al (1982) 2 CRR 352 (Fed Ct Canada).
Adopting as correct the basic principle enunciated and emphasised in the authorities
referred to that a prisoner, whether he be under sentence of death or merely a petty thief,
does not shed his fundamental constitutional rights at the prison gate, the critical issue to
be resolved is whether the confinement of the applicant, in a small single cell, for a
minimum of twenty-three and one half hours every week-day and twenty-four hours on
Saturdays, Sundays and public holidays (except for half an hour each day in which he is
allowed out of his cell to attend to his ablutions), without access to natural light and fresh
air, and with only a limited ability to exercise his body, infringes his fundamental right
under s 15 (1) of the Constitution not to be subjected to inhuman treatment. Is the action
of the Director of Prisons in enforcing this regime lawful?
The concept against which this particular protection should be construed is somewhat
nebulous. As previously decided by this court, it is nothing less than the dignity of man.
Section 15 (1) is a provision that embodies broad and
Page 113 of 1991 (1) ZLR 105 (SC)
idealistic notions of dignity, humanity and decency. It guarantees that punishment or
institutionalised treatment of offenders be exercised within the ambit of civilised
standards. Punishment or treatment incompatible with the evolving standards of decency
that mark the progress of a maturing society, or which involve the infliction of
unnecessary suffering, is repulsive. What might not have been regarded as inhuman
decades ago may be revolting to the new sensitivities which emerge as civilisation
advances. See S v Ncube and Ors 1987 (2) ZLR 246 (SC) at 267A-D; 1988 (2) SA 702
(ZS) at 717A-D.
In determining the issue, I am mindful that there is no provision in the Prisons Act, the
Prison Regulations 1956 (FGN 109/56 as amended) or the Standing Orders, dealing with
the period of exercise permitted to prisoners who have been sentenced to death; it falls to
the discretion of the Director of Prisons. And, secondly, that the applicant has not been
ordered to undergo imprisonment as part of the punishment for the crime committed. He
is incarcerated pending a decision, either in the appeal to this court, or by the President
who may exercise a prerogative of mercy, as to whether he is to be put to death. So his
punishment has not commenced.
It was not in contention that, should this court be disposed to uphold the applicant’s claim
that the period of exercise he is being permitted on week-days, or denied over week-ends
and public holidays, is inhuman, then any variation thereof must be taken in the open air.
Counsel for the respondents understandably found himself in difficulty in seeking to
justify the denial of access to the exercise yard over week-ends and public holidays. He
suggested that this deprivation was due to the reduction of prison staff over these periods.
That may be so, though no such reason was advanced (or any other) by the Director of
Prisons in his opposing affidavit. Staffing problems over week-ends and public holidays
cannot be permitted to disadvantage the applicant and result in a situation in which he is
denied the opportunity of daily exercise, a facility, as I shall show, enjoyed even by
prisoners undergoing solitary confinement. After all, prison officers are always liable for
duty (see s 17 of the Prisons Act).
I entertain no doubt that to confine a human being in a small cell over week-ends for 47
hours (with the two daily half hour periods out of the cell but within the condemned
section itself and not in the open air), and for a much longer period where a public
holiday falls on a day immediately preceding or subsequent to a week-end, is plainly
offensive to one’s notion of humanity
Page 114 of 1991 (1) ZLR 105 (SC)
and decency. It transgresses the boundaries of civilised standards and involves the
infliction of unnecessary suffering.
Consequent upon the view expressed above, the next aspect of the matter is whether, in
the particular circumstances which obtain, the applicant is entitled to be granted more
than half an hour’s exercise period every day in the open air.
It seems to me self-evident that the applicant, whose confinement is non-punitive, ought
not to be subjected to a greater degree of restriction in relation to the period of exercise,
than that specified in subsections (3) and (4) of s 102, and s 179, of the Prison
Regulations, for a prisoner undergoing solitary confinement on spare or reduced diet as
part of his punishment.
The former subsections read:
“ (3) A prisoner undergoing solitary confinement shall be exercised for one hour each
day;
(4) A prisoner undergoing solitary confinement may be permitted to bathe himself
during the daily period of exercise referred to in subsection (3).”
And s 179 :
“A prisoner sentenced to solitary confinement for more than three days shall be exercised
daily.”
Although recently it was decided in S v Masitere 1990 (2) ZLR 289 (SC); 1991(1) SA
821 (ZS) that the punishment of solitary confinement is unconstitutional, the above-
quoted provisions are instructive in that they prescribed the minimum exercise period to
which prisoners undergoing solitary confinement were entitled.
Previously under s 174 (1) of the Prison Regulations the period on spare diet and solitary
confinement to be served was not to exceed two consecutive days in each week; and
under s 174 (2) the period on reduced diet was not to exceed fourteen consecutive days at
a time with an interval of at least fourteen days. Clearly, in my view, it was envisaged
that during these intermissions the prisoner was not to be limited to an exercise time of
one hour each day. He was to revert to the status of an ordinary prisoner. There was to be
no differentiation in treatment.
Page 115 of 1991 (1) ZLR 105 (SC)
Section 72 of the Prison Regulations is also relevant. It lays down that :
“Prisoners who are not employed in association with one another or who are employed in
sedentary work such as tailoring or mat-making shall, if circumstances permit, be
permitted to exercise in the open air for one hour each day.”
No exercise period is specified in respect of prisoners employed in non-sedentary work. I
assume the reason for this is that the nature of the work assigned to them is considered to
be exercise in itself and is such as to afford access to the open air.
In justification of the strict curtailment of the exercise period the Director of Prisons
points to the fact that the applicant is a high security prisoner, to the foiled escape attempt
of nearly three years ago, and to his belief that this country is still under attack by enemy
agents. He is apprehensive that were the applicant to be permitted a longer period in the
exercise yard, steps might be taken to effect his removal by means of a helicopter. He
gives the assurance that as soon as an overhead net has been fitted, thereby improving the
security in the exercise yard, the present period will be reviewed.
It seems to me that the possibility of the applicant being whisked away by helicopter is
remote. When in the exercise yard he is under constant supervision and, no doubt, would
be immediately withdrawn from there should any suspicious aerial activity be noticed.
Moreover, the timing of such an attempt would involve, of necessity, knowledge of the
exact period the applicant would be in the exercise yard as opposed to the cells.
Nor has the Director of Prisons been entirely consistent in his assessment of the
seriousness of the existing security situation. In September 1990 it was said that in view
of improved conditions it was no longer necessary to continue the practice of removing
the applicant’s clothing. And in a letter written to the applicant’s legal practitioners, a
copy of which was annexed to the opposing affidavit, it was suggested that if the
applicant were prepared to abandon this litigation without an order as to costs, the
Director of Prisons, in turn, would be disposed to increase the exercise period to two
hours per week-day. One can only infer from this that he was completely satisfied that
such additional time in the exercise yard would not jeopardise security.
I would also reiterate that where provision is made in the Prison Regulations in relation to
the exercise of prisoners, the period specified is not less than one
Page 116 of 1991 (1) ZLR 105 (SC)
hour per day. Indeed the advice the Director of Prisons received from the Prisons Medical
Officer was “that an hour’s exercise per day is not detrimental to (his) health” (my
emphasis).
While the fact that a security problem attaches to the applicant must be recognised and
afforded significant weight, nonetheless there must be mutual accommodation between
such institutional need and the provisions of the Constitution. A just balance must be
struck. It is not an acceptable proposition that undue harshness under the guise of prison
security or discipline attracts immunity from judicial review.
In my opinion, to deprive the applicant of access to fresh air, sunlight and the ability to
exercise properly for a period of twenty-three-and-a-half hours per day, by holding him in
a confined space, is virtually to treat him as non-human. I think it repugnant to the
attitude of contemporary society. The emphasis must always be on man’s basic dignity,
on civilised precepts and on flexibility and improvement in standards of decency as
society progresses and matures.
Were it not for the indication in the letter written on behalf of the Director of Prisons that
he was not averse to increasing the exercise period to two hours per week-day, I would
have left it to him to resolve what further time, if any, over one hour was to be allowed
the applicant on these days. The “concession”, however, does not cover week-ends and
public holidays. While in relation to each such day it is competent for this court to
declare that the minimum exercise period, in order not to offend s 15 (1) of the
Constitution, be not less than one hour, it lacks the expertise and knowledge of prison
administration to determine what maximum period is appropriate. That decision must
accordingly remain with the Director of Prisons.
Both counsel requested that in the event of the application succeeding costs be awarded
solely against the Minister of Justice, Legal and Parliamentary Affairs, since the
administration of the Prisons Act is assigned to him. I am prepared to so order.
In the result:
(i) It is directed that the applicant be allowed to exercise in the open air,
every week-day, for one hour in the morning and one hour in the afternoon, exclusive of
the time taken by him to bathe;
Page 117 of 1991 (1) ZLR 105 (SC)
(ii) It is further directed that the applicant be allowed to exercise in the open
air on every Saturday, Sunday and Public Holiday for a minimum of one hour, exclusive
of the time taken by him to bathe;
(iii) The costs of this application will be borne by the first respondent.
McNally JA: I agree.
Manyarara JA: I agree.
Korsah JA: I agree.
Ebrahim JA: I agree.
Coghlan, Welsh and Guest, applicant’s legal representatives
Civil Division, Attorney-General’s Office, respondents’ legal representatives
ATTORNEY-GENERAL v BLUMEARS & ANOR
1991 (1) ZLR 118 (SC)
Division: Supreme Court, Harare
Judges: Gubbay CJ, Korsah JA & Ebrahim JA
Subject Area: Appeal from a decision on review
Date: 21 February & 4 March 1991

Constitution — s 3(2)(e) — meaning — degree of proof required at remand stage of

proceedings .
Criminal procedure — remand — reasonable suspicion that offence committed — degree
of proof required.
Costs — constitutional case — approach.
The two respondents were arrested on an allegation of exporting gold. They opposed
being placed on remand on the basis that no reasonable suspicion existed that they had
committed the offence alleged. The magistrate found in favour of the prosecution, but on
review to the High Court his decision was set aside. The Attorney-General appealed.
Held, an accused person is entitled to challenge the power and right of the State to place
him on remand.
Held, the test at the stage of remand is whether or not the State has established facts or
grounds from which the magistrate can objectively determine whether or not a reasonable
suspicion exists that the accused person committed the offence alleged against him.
Held, on the facts, that the allegations by the prosecutor were sufficient to enable such a
determination to be made in favour of the State.
Held, as the constitutional point was one of importance generally, there would be no
order as to costs.
Semble, prosecutors should be more open and forthright when informing a remand court
of the facts relied upon as establishing the nexus between the offence and the accused.
Page 119 of 1991 (1) ZLR 118 (SC)
Cases cited:
McNabb v United States (1943) 318 US 332; 87 L Ed 819
S v Ganyu 1977 (2) RLR 97 (A); 1977 (4) SA 810 (RA)
Bull v Attorney-General, Zimbabwe & Anor 1986 (1) ZLR 117 (SC); 1986 (3) SA 886
(ZS)
Attorney-General v Matewere & Anor 1983 (2) ZLR 339 (SC)
Bull v Attorney-General 1987 (1) ZLR 36 (SC); [1988] LRC (Const) 324
Hewlett v Minister of Finance & Anor 1981 ZLR 571 (SC); 1982 (1) SA 490 (ZS)
Zimbabwe Township Developers (Pvt) Ltd v Lou’s Shoes (Pvt) Ltd 1983 (2) ZLR 376
(SC); 1984 (2) SA 778 (ZS)
Bull v Minister of Home Affairs 1986 (1) ZLR 202 (SC); 1986 (3) SA 875 (ZS)
A V M Chikumira for the appellant
A P de Bourbon SC for the respondent
GUBBAY CJ: On Thursday 16 August 1990, the two respondents, who are brothers and
business associates, were arrested, without warrant, under s 36 of the Criminal Procedure
and Evidence Act [Chapter 59] by members of the Criminal Investigation Department,
Gold Section. During the course of the afternoon, a warned and cautioned statement was
recorded from each respondent in the presence of his legal practitioner. The first
respondent was informed in the preamble thereto that the enquiry concerned an allegation
that during the period between 1 and 30 November 1988 he had unlawfully dealt in, or
possessed, or exported from Zimbabwe, gold weighing approximately 11988 kilograms.
The allegation of which the second respondent was informed was identical, save that the
quantity of gold was stated to be 15 771 kilograms and the period, 1 March to 31
December 1988. The reply of both respondents was a blanket denial.
On the Monday morning following their arrest, the respondents were brought before a
magistrate for initial remand. They were represented by counsel. Placed before the
magistrate was a “Request for Remand” form, signed and dated by the investigating
officer. It contained the personal particulars of the two respondents and the words “export
gold” in the space provided for the description of the offence. On the reverse side was a
typewritten summary of facts, which read:
“Both accused persons are brothers and directors of some companies. Accused one
William Paul Blumears is a Jeweller and is the Managing
Page 120 of 1991 (1) ZLR 118 (SC)
Director of Jewellery Centre, Union Avenue, Harare and his brother Keith John Blumears
is the Managing Director of Progress Iron Craft (Pvt) Ltd, Factory Number 4, Williams
Way, Msasa, Harare. During the period between March, 1988 and December 1988, the
accused in connivance exported to West Germany 27 kilograms of raw gold and one
kilogram of platinum all valued at 517 121,19 DM (German Marks) which is
approximately Z$700 000,00; and nothing was recovered. The gold was refined and sold
in West Germany and the money banked in a bank in West Germany.”
In applying for a remand of the respondents in custody to 3 September 1990 the
prosecutor, after citing the charge as a contravention of s 5(1)(a)(i) of the Exchange
Control Act [Chapter 164] as read with s 16(1)(e) of the Exchange Control Regulations
1971 (GN 399/77), went on to say that:
“. . . on a total of four separate occasions in the period extending between March 1988
and December 1988 the two accused persons who are brothers and acting in concert with
each other exported from Zimbabwe to West Germany 27 kilograms of gold and 1
kilogram of platinum in contravention of the law. Following information received
enquiries were conducted by the police resulting in uncovering documentation proving
the exportation of the gold and platinum. The approximate value of the minerals is
700 000,00 Zimbabwe dollars. Because of the sensitive nature of the investigations, the
State cannot produce evidence until the trial. The police are still involved in further
investigations.”
Contending that the facts outlined did not meet the requirements of s 13(2)(e) of the
Constitution of Zimbabwe, that the deprivation of the personal liberty of each respondent
could only be lawfully effected:
“upon reasonable suspicion of his having committed, or being about to commit, a
criminal offence”
counsel for the respondents invited the prosecutor to avail himself of the opportunity to
comply with this constitutional safeguard. The prosecutor’s response was that :
“The documentation (which was physically in his possession) establishes a reasonable
suspicion that the minerals were exported.”
Unpersuaded by this further pronouncement the respondent’s counsel opposed the
application for their remand. He called upon the legal practitioner instruct-
Page 121 of 1991 (1) ZLR 118 (SC)
ing him to testify. His evidence was designed to show that the facts alleged by the
prosecutor were unreliable, being at variance with what was put to the respondents in the
preambles to their warned and cautioned statements. In the main, however, the
differences were due to a subsequent belief on the part of the State that the respondents
had exported the gold in concert and not individually, each being liable for the quantity of
gold exported by the other. The exportation of the one kilogram of platinum was a new
allegation, but its introduction may well have been based on information which emerged
after the warned and cautioned statements had been taken.
Undoubtedly an accused person is entitled to challenge the power and right of the State to
place him on remand. He may do so upon a submission that insufficient facts have been
alleged for the court to objectively find the existence of a reasonable suspicion of his
having committed, or being about to commit, the criminal offence in question. Where in
possession of immutable evidence, which if disclosed to the court would completely
demolish the reasonable suspicion arising from the facts alleged by the prosecutor, he
may, at his option, adduce such proof.
This aside, I am satisfied that the evidence led on behalf of the respondents was not
nearly cogent enough to oblige the magistrate to reject the facts recounted by the
prosecutor at face value. Nor did I understand Mr de Bourbon, who appeared for the
respondents, to suggest the contrary.
In the event, the magistrate remanded the respondents in custody to 27 August 1990. His
reasons for so ordering were extremely brief and not clearly expressed. There is some
uncertainty if he appreciated that it was for him to decide whether the facts alleged by the
prosecutor were such as to give grounds for a suspicion, that was reasonable, that the
respondents had exported gold and platinum from Zimbabwe, in contravention of the
Exchange Control legislation, assuming those facts to be capable of proof.
The respondents brought the ruling of the magistrate on review before the High Court.
The specified ground was that it was “so outrageous in its defiance of logic and accepted
standards that no sensible person who applied his mind to the matter would have arrived
at the same decision”. The application succeeded before Chambakare J who set aside the
order of the magistrate that the respondents be placed on remand. However pending the
determination of an appeal noted by the Attorney-General against that judgment, it was
ordered, by consent, that the respondents were to be released subject to the fulfilment of
certain monetary and other conditions.
Page 122 of 1991 (1) ZLR 118 (SC)
The standard for the deprivation of personal liberty under s 13(2)(e) of the Constitution
are facts and circumstances sufficient to warrant a prudent man in suspecting that the
accused person had committed, or was about to commit, a criminal offence. This standard
represents a necessary accommodation between the individual’s fundamental right to the
protection of his personal liberty and the State’s duty to control crime. It seeks on the one
hand, to safeguard the individual from rash and unreasonable interference with liberty
and privacy, and from unfounded charges of crime; yet on the other, to give fair leeway
for enforcing the law in the community’s protection. The criterion of reasonable
suspicion is a practical, non-technical concept which affords the best compromise for
reconciling these often opposing interests. Requiring more would unduly hamper the
legitimate enforcement of the law. To allow less would be to leave law-abiding persons at
the mercy of the whim or caprice of the authorities.
Viewed in the context of s 13(2)(e) of the Constitution, the remand procedure which
precedes the trial offers the accused person a neutral and detached determination of the
existence of “reasonable suspicion” by someone independent of the police and
prosecution. It is a most meaningful administrative step consequent upon arrest; for it
should never be overlooked that to remand an accused in custody, or even out of custody
but subject to burdensome conditions, awaiting trial, may jeopardize his employment,
interrupt or diminish his source of income, and impair his family and social relationships.
The importance and necessity of this protective process is no better underscored than in
the wise words of Justice Frankfurter in McNabb v United States (1943) 318 US 332 at
343; 87 L Ed 819 at 825-826:
“A democratic society, in which respect for the dignity of all men is central, naturally
guards against the misuse of the law enforcement process. Zeal in tracking down crime is
not in itself an assurance of soberness of judgment. Disinterestedness in law enforcement
does not alone prevent disregard of cherished liberties. Experience has therefore
counseled that safeguards must be provided against the dangers of the overzealous as
well as the despotic. The lawful instruments of the criminal law cannot be entrusted to a
single functionary. The complicated process of criminal justice is therefore divided into
different parts, responsibility for which is separately vested in the various participants
upon whom the criminal law relies for its vindication.”
As mentioned en passant, the adversary safeguards customarily employed at
Page 123 of 1991 (1) ZLR 118 (SC)
a trial such as, the presentation of witnesses, the full exploration of their testimony on
cross-examination and the application of the hearsay rule, are not essential for the
determination of “reasonable suspicion” required by s 13(2)(e) of the Constitution. That
issue is capable of being reliably determined without an adversary hearing. The standard
is the same as that for arrest without warrant. It does not require the fine resolution of
conflicting evidence that guilt beyond a reasonable doubt demands, or even a
preponderance of probability. Certainty as to the truth is not involved for otherwise it
ceases to be suspicion and becomes fact. See S v Ganyu 1977 (2) RLR 97 (A) at 104F;
1977 (4) SA 810 (RA) at 813C-D, per McDonald CJ. Suspicion, after all, is nothing more
than a state of conjecture or surmise whereof proof is lacking.
This is not the first occasion at which the impact of s 13(2)(e) of the Constitution has
come before this Court for consideration. In Bull v Attorney-General, Zimbabwe & Anor
1986 (1) ZLR 117 (SC); 1986 (3) SA 886 (ZS) Beck JA, after stressing that the onus of
demonstrating the legality of a deprivation of personal liberty rests with the State,
continued at 888D-G thus:
“It is not open to doubt . . . that the question whether a reasonable suspicion exists that
the men in question have contravened, or were about to contravene, s 4(1)(d) (i) of the
Official Secrets Act, is to be tested objectively. Conditions of this kind on the existence
of which the lawful right to exercise a given power is made to depend must, when put in
issue, be objectively demonstrated: S v Purcell-Gilpin 1971 (3) SA 548 (RA) (1971 (1)
RLR 241); United Democratic Front (Western Cape Region) v Theron NO 1984 (1) SA
315 (C); Ndabeni v Minister of Law and Order and Another 1984 (3) SA 500 (D);
Inland Revenue Commissioners and Another v Rossminster Ltd [1980] AC 952 ([1980] 1
All ER 80 (HL) at 92h-93b and 104a). To that end the Court must be informed of the
grounds upon which reliance is placed for the existence of the reasonable suspicion —
Katofa v Administrator-General for South West Africa and Another 1985 (4) SA 211
(SWA).”
Bull’s case, supra, was preceded by Attorney-General v Matewere & Anor 1983 (2) ZLR
339 (SC) in which the effect of s 13(2)(e) on what had been done to the arrested persons
under the authority derived from the provisions of the Criminal Procedure and Evidence
Act, did not arise for decision, because at that time (being prior to 18 April 1985)
anything done under the authority of an existing law enjoyed protection against
unconstitutionality by
Page 124 of 1991 (1) ZLR 118 (SC)
virtue of ss 26(2)(b) and (3)(b) of the Constitution. The only observation of Georges CJ
which still remains apposite, is that a remand court, as the tester of the existence of
reasonable suspicion, is not permitted to qualify allegations of fact put before it by
drawing inferences of doubtful validity in favour of the accused (see at 345A-C); nor I
would add in favour of the State.
I wish firmly to dispel any impression that may arise (albeit, in my view, without
warrant) from the decisions referred to, that it is only where the accused person claims a
violation of the protection afforded by s 13(2)(e) of the Constitution, that the remand
court must satisfy itself that there has been due compliance therewith by the State. Put
differently, that it is the obligation of an accused person to protest an unlawful
deprivation of personal liberty and that until he does so there is no duty on the part of the
judicial officer, before whom he appears, to obtain information from the prosecutor of the
grounds upon which reliance is placed for the existence of the reasonable suspicion that
he has committed, or is about to commit, a criminal offence, and to determine, on the
facts presented, whether the onus has been discharged. The vast majority of accused
persons detained under arrest and who appear for remand, are unrepresented. It is no
exaggeration to say that most of them are totally unaware of their constitutional rights
and have no access to legal advice. The courts are there to ensure fair play and to offer
protection to those in need of it. Unless therefore, this elementary but nonetheless vital
enquiry is undertaken, the possibility of an unfounded invasion of liberty cannot be
discounted. It is the judicial safeguard of an impartial determination which stands
between an accused person arrested without warrant and, perhaps, the over zealous peace
officer, engaged in the often competitive function of unearthing crime, who was the first
to adjudge him. This grave responsibility does not terminate with the decision at the
initial remand that a deprivation of liberty is warranted. It is to be exercised at all
subsequent remands pending the trial, for the situation may change. Investigations may
reveal that, for one reason or another, the reasonable suspicion once justified is no longer
maintainable. So there is a double obligation: on the prosecutor to assure the court that
the grounds upon which reliance was formerly placed for the existence of the reasonable
suspicion have not altered in favour of the accused; and on the court to ensure that this is
so. In short, the protective process is always on-going.
I turn, finally, to the pertinent and closely debated question of whether the State
established grounds from which it could objectively be held that a reasonable suspicion
existed that the respondents had committed the offence for which they were placed on
remand.
Page 125 of 1991 (1) ZLR 118 (SC)
Of course, if the facts presented do not constitute a criminal offence known to the law,
then cadit quaestio — the assumption that the State is able to prove those facts would be
of no relevance. And if this requirement is met, then such facts must sufficiently link the
accused with the commission of the offence in the sense that they create a reasonable
suspicion of his having committed it, or being about to commit it.
It was accepted by counsel that the facts appearing on the reverse side of the Request for
Remand form, and those spoken to by the prosecutor, if proved, would amount to a
contravention of the Exchange Control legislation. Their arguments ranged on whether or
not the second requirement, that of connecting the respondents to the criminal offence,
emerged from the facts with adequate clarity so as to demonstrate objectively a
reasonable suspicion of the offence having been committed by them.
Certainly, the second sentence of the typewritten summary did no more than provide
particulars of the offence. The phrase “nothing was recovered”, and the final sentence
“the gold was refined and sold in West Germany and the money banked in a bank in
West Germany”, failed to associate either respondent with such actions. It was not stated
that they had anything to do with the refining of the gold, that it had been sold by them in
West Germany, or that the proceeds from that sale were credited to an account held by
them at a West German bank.
With regard to the prosecutor’s verbatim presentation it was acknowledged by Mr
Chikumira, for the Attorney-General, and by Mr de Bourbon, that the critical statement
was “following information received enquiries were conducted by the police resulting in
uncovering documentation proving the exportation of the gold and platinum”.
What Mr de Bourbon was quick to allude to was the absence of the closing words “by the
accused”. Without them, so it was strongly urged, the vital link was missing, for the
identity of those responsible for the exportation of the gold and platinum remained vague
and ambiguous. I am unable to agree. This particular statement made by the prosecutor
was not to be viewed disjunctively, but conjunctively in the context of the facts
preceding it. The prosecutor did not say that the police had uncovered documentation
“proving an exportation of gold and platinum”, but “the exportation of the gold and
platinum” (my emphasis). Having earlier alleged that the respondents, in concert with
each other, had exported from Zimbabwe to West Germany 27 kilograms of gold and one
kilogram of platinum, it followed, so it seems to
Page 126 of 1991 (1) ZLR 118 (SC)
me, both grammatically and as a matter of irresistible deduction, that he was conveying
that, ex facie the documentation in his possession, it was the respondents who were the
exporters; and that what had been exported were the 27 kilograms of gold and the one
kilogram of platinum previously mentioned.
Notwithstanding this conclusion, which I must confess, was not reached too easily, I
consider that prosecutors would be well advised to be more open and forthright when
informing a remand court of the facts relied upon as establishing the nexus between the
offence and the accused, than the prosecutor was in this matter. Understandably, what
facts to reveal, and what to conceal, at this early stage of the proceedings, may
occasionally pose an agonising decision, especially where the investigation being
undertaken is of a sensitive nature and it is believed that interference by, or on behalf of,
the accused may occur if over much is made known. But concealment, symptomatic of a
desire to be uncooperative and to hinder the defence, should never be resorted to. If such
be the case, the prosecutor would have only himself to blame in the event of his
application for a remand in custody being refused.
Mr Chikumira advised that if the appeal were to succeed it was not the intention of the
Attorney-General to procure the return of the respondents to custody. What had prompted
the appeal was the opportunity to obtain guidance from this Court. If I may say so that is
a commendable attitude, and I trust this judgment will provide some clarification on the
issue so ably argued.
It is competent in an appeal of this nature to order that costs should follow the result. See
Bull v Attorney-General of Zimbabwe 1987 (1) ZLR 35 (SC). Nonetheless a
constitutional point was involved with regard to which the answer was not self-evident
and which the Attorney-General viewed as important. Furthermore, in resolving it, the
argument presented by Mr de Bourbon was of much assistance to this Court. In line with
the approach to costs adopted in Hewlett v Minister of Finance & Anor 1981 ZLR 571
(SC) at 596; 1982 (1) SA 490 (ZS) at 508A; Zimbabwe Township Developers (Pvt) Ltd
v Lou’s Shoes (Pvt) Ltd 1983 (2) ZLR 376 (SC) at 385; 1984 (2) SA 778 (ZS) at 785G-
H; and Bull v Minister of Home Affairs 1986 (1) ZLR 202 (SC); 1986 (3) SA 875 (ZS)
at 876B-C, I consider the respondents should not be penalised because a decision adverse
to them has been given.
Accordingly, I would allow the appeal and alter the order of the court a quo to read:
Page 127 of 1991 (1) ZLR 118 (SC)
“The application is dismissed.”
Korsah JA: I agree.
Ebrahim JA: I agree.
Gollop & Blank, respondents’ legal representatives
S v LEVY
1991 (1) ZLR 128 (SC)
Division: Supreme Court, Harare
Judges: Gubbay CJ, McNally JA & Manyarara JA
Subject Area: Criminal appeal
Date: 7 February & 11 March 1991

Interpretation of statutes — interpretative criteria are aids to construction — references in

legislation to action or conduct — presumed to be references to lawful action or conduct.
Words and phrases — meaning of “value” — usually means market value or exchange
value — absence of market value — court must do its best to assess what the commercial
value should be.
Statutes — Control of Goods (Price Control) Regulations 1954 — s 18 (3) — value
means best price lawfully obtainable.
The various interpretative criteria are aids to construction and should not be regarded as
immutable principles.
It is a recognised canon of construction of statutes that any reference in any law to any
action or conduct is presumed, unless the contrary intention appears from the statute
itself, to be a reference to a lawful action or conduct. S v Mapheele 1963 (2) SA 651 (A)
at p 655D followed.
Where the word “value”is an ambiguous word, it normally means “market value” or
“exchange value”. Where, however, there is no market value, the court must do its best to
assess what the commercial value should be.
The word “value” however in the context of s 18(3) of the Control of Goods (Price
Control) Regulations, 1954 means the best price lawfully obtainable and not an unlawful
black market price.
Cases cited:
S v Levy 1989 (2) ZLR 12 (HC)
Page 129 of 1991 (1) ZLR 128 (SC)
S v Shava 1989 (2) ZLR 107 (HC)
S v Mutumbuka & Anor 1989 (2) ZLR 217 (HC)
S v Gondo 1990 (2) ZLR 171 (SC)
S v Makina 1983 (1) ZLR 202 (HC)
S v Makandigona 1981 ZLR 408 (A)
Abbott v Commissioner for Inland Revenue 1963 (4) SA 552 (C)
Pietermaritzburg Corporation v South African Breweries Ltd 1911 AD 501
SA Railways v Theron 1917 TPD 67
van der Merwe NO v van der Merwe 1973 (1) SA 436 (C)
Sarembock v Medical Leasing Services (Pty) Ltd & Anor 1991 (1) SA 344 (A)
BM & Ors v Commissioner of Taxes 1970 (1) RLR 13 (G); 1971 (1) SA 506 (R)
Todd v Administrator, Transvaal 1972 (2) SA 874 (A)
S v Mapheele, supra
Gatooma Rural Council v Crook 1974 (1) RLR 321 (A); 1974 (3) SA 840 (RA)
May & Ors v Reserve Bank of Zimbabwe 1985 (2) ZLR 358 (SC); 1986 (3) SA 107 (ZS)
Attorney-General v Slatter & Ors 1984 (1) ZLR 306 (SC); 1984 (3) SA 798 (ZS)
Klerck NO v Kaye 1989 (3) SA 669 (C)
Kauluma & Ors v Minister of Defence & Anor 1987 (2) SA 833 (A)
S v Avari S-4-86 (not reported)
A P de Bourbon SC for the appellant
I Houston for the respondent
McNALLY JA: The appellant was convicted in the High Court on 6 June 1989, on his
plea of guilty, of a contravention of s 18(3) as read with s 18(1)(b) of the Control of
Goods (Price Control) Regulations 1954, (FGN 255 of 1954).
The offence arose out of the purchase and sale of a 1987 Toyota Cressida motor car. He
bought it new on 16 October 1987 for $29 821,58. He sold it on 23 September 1988 for
$105 000. The maximum controlled re-sale price (SI 578/81 as amended by SI 36/88)
was $24 457.
There were various mitigatory features put before the court in relation to sentence, but the
main question to be determined in this appeal against sentence was the size of the
maximum fine permitted by the Regulations.
Page 130 of 1991 (1) ZLR 128 (SC)
Section 18(3) of the Regulations provides that an offender is liable, in a case involving a
commodity, “to a fine not exceeding the value of such commodity or $5 000, whichever
is the greater”.
What is “value” in this context? Is it the controlled price, which is the highest price
lawfully obtainable for the vehicle, ie $24 457? Is it the market price, in the sense of a
black-market price or unlawful price? And, if it is the (black) market price, is that price
to be ascertained by evidence, or is it to be taken to be the actual price obtained in the
particular case?
In the High Court, both in this case 1989 (2) ZLR 12, and in S v Shava 1989 (2) ZLR 107
(HC) and S v Mutumbuka & Another 1989 (2) ZLR 217 (HC), it has been held that value
is not the controlled price. Some judges have said in effect that the value is the black
market value, which value is usually to be ascertained by looking at the price paid in the
particular instance. Others have said the value is the price paid. Both lines of reasoning
lead to the same conclusion.
In this court, in the case of S v Gondo 1990 (2) ZLR 171 (SC) the matter was considered
in passing but not discussed. No argument on this issue was addressed to the court and
the matter was left in abeyance as the following extract indicates:
“I have read the judgments with some care. Without having the benefit of argument to the
contrary, my prima facie view is that they correctly decide that the law-maker did not
intend ‘value’ to mean the selling price specified by the Minister, as permissible under s 3
(1) of the Price Control Order. I say no more, for I understand that appeals are
pending . . . This judgment is not, therefore, to be taken as finally disposing of the issue.”
The reasoning of Mr Justice Smith in the present case was set forth with his customary
lucidity. He came to the conclusion that the maximum fine he was authorised to impose
was $105 000 “the value of the Toyota Cressida”. He came to this conclusion for two
reasons.
First he decided that “value”, by reference to decided cases and legal dictionaries,
ordinarily means “market value” or “exchange value”. The fact that “market value” or
“exchange value” in this case meant “black market value” was unimportant. It did not
mean the court was condoning illegal trading. The court, he said, “is merely accepting the
current situation”. He pointed out that the very reason for price controls was usually that
market values were escalating unreasonably.
Page 131 of 1991 (1) ZLR 128 (SC)
Second, he decided that it accorded with justice and commonsense to give this
interpretation to “value”. The intention of the legislature must have been to authorise a
fine greater than the unlawful profit. In the present case, to impose a fine of $24 457
when the appellant had made a profit of $80 543 would not, he concluded, accord with
justice or commonsense.
Let me start by considering that second reason. It is of course correct to say that a man
should not be allowed to benefit from his crime, but it does not always follow that it is
necessary, or even just, to deprive him of his whole profit by way of a fine. There may be
cases where the profit is taken away by other means. I gave some instances of this
situation in S v Makina 1983 (1) ZLR 202 (HC) particularly at 204F.
In the present case, s 16 of the very Regulations under which the appellant was charged
made provision for an order to be made by the Minister, whether or not the seller had
been prosecuted, “that he should refund to the purchaser, or, if his whereabouts cannot
readily be ascertained, to the Consolidated Revenue Fund, a sum not exceeding twice the
amount by which the selling price exceeded the controlled price.”
The existence of this provision, I think, destroys the significance of the learned judge’s
second argument. It does not mean that we cannot give “value” the “higher” meaning for
which he opted. But it does mean that we are not compelled by logic to adopt that
“higher” meaning. We cannot say “the legislature must have intended ‘value’ to mean
‘black market value’ because otherwise the offender’s punishment would be no
punishment at all but a mere reduction in his profit”.
There is nothing unjust or contrary to commonsense in a provision whereby the fine is set
at a figure lower than the unlawful profit made, so long as there is another provision
precisely aimed at taking away that profit. In short the existence of s 16 renders
colourless the second argument relied on by the learned judge.
I turn then to consider the first and primary argument. This argument is based squarely on
the basic rules of interpretation.
The earlier penal section made it an offence to sell controlled goods at a price which
exceeded the appropriate price at which it was permissible to sell such controlled goods.
In 1980 it was decided to fix the maximum penalty by reference to the value of the
commodity concerned.
Page 132 of 1991 (1) ZLR 128 (SC)
The learned judge relied on the interpretative criterion that where the draftsman departed
from the previous formula relating to appropriate price (ie the controlled price) and
adopted a new formula relating to value, the intention must have been to introduce a new
concept. That new concept must relate the maximum penalty not to the appropriate or
controlled price, but to some other figure which must be the black market value. See
Bennion Statutory Interpretation p 376, under the heading “Different words to be given
different meaning”. See also S v Makandigona 1981 ZLR 408 (A) at 413C-G; 1981 (4)
SA 439 (ZA) at 443B-F. It must be noted, however, that such criteria are aids to
construction, not immutable principles. (See Abbott v Commissioner for Inland Revenue
1963 (4) SA 552 (C) at 556E.) In an addition to page 376 Bennion, in the first
supplement to his book, says:
“Two enactments intended to have the same meaning may use different words where the
draftsman of the later provision was unaware of the former.”
I am not convinced that the amendment to the Regulations shows a change of concept.
The original regulations (and one must bear in mind that these were drafted in 1954 under
Federal Government legislation) simply set out a list of twelve offences, one of which (s
18 (f)) was that any person who:
“sells or agrees to sell any controlled goods at a price which exceeds the appropriate price
at which it is permissible for him to sell such controlled goods under any order . . . shall
be guilty of an offence.”
The penalty was not in the regulations but in the Act itself (Federal Act No. 12 of 1954).
It provided generally, for the contravention of any order by a first offender:
“. . . a fine not exceeding one hundred pounds ($200) or in default of payment
imprisonment for a period not exceeding six months” (s 7).
This became s 6 of [Chapter 280] of the Statute Law of Rhodesia. In 1976 s 6 was
repealed and replaced. The President was empowered (s 29 of Act 42 of 1976) to
prescribe offences and penalties in regulations, and a ceiling of $5 000 or five years or
both was introduced for such penalties. However, the President did not in fact prescribe
any penalties.
In 1978 the Act was again amended by s 28 of Act 41 of 1978. The permissible level of
penalties was both increased and made more flexible by
Page 133 of 1991 (1) ZLR 128 (SC)
the introduction of the concept of “value”. Thus s 6 of the Act now reads:
“No penalty prescribed in regulations made in terms of section 3 shall exceed —
(a) in the case of an offence which involves any goods or commodity, a fine of an
amount equivalent to the value of such goods or commodity or a fine of $5000,
whichever is the greater, or
(b) in any other case a fine of $5000;
or imprisonment for a period of five years or both such fine and such imprisonment.”
It is I think of major significance that when the Act was amended in 1978 the concept of
value was introduced while the regulations as they stood still spoke of “a price which
exceeds the appropriate price”. Section 18(f) of the Regulations co-existed with the
amended s 6 (2) of the Act.
In other words the one concept did not replace the other. The penal provisions of the Act
were made wider and more flexible by the use of the “value” concept while the other
wording remained in the regulations. Moreover the Act had to use different and wider
wording than was in the regulations because the Act was providing a penalty for more
offences than merely the offence set out in s 18(f) of the regulations. Its wording had
therefore to be wider. The Act dealt not only with price control but also with
“distribution, disposal, purchase and sale . . . control of imports . . . and exports”.
Despite the change in 1978, the Government still did not use its powers to make
regulations prescribing penalties until 1980. It was in Statutory Instrument 370 of 1980
that the original s 18 of FGN 255 of 1954 was at last repealed and replaced.
The new section created quite differently worded general offences in subs 18(1). There
was nothing as specific as the old s 18(f). Section 18(1)(b),which is the section under
which the appellant was charged, reads:
“No person shall . . . without lawful excuse, refuse or fail to comply with any order or
direction of the Minister or request of an inspector made in terms of these regulations.”
Statutory Instrument 578 of 1981 is just such an “order of the Minister” and it lays down
the maximum sale price of certain vehicles. Thus, under the new form, there was no need
for the old section 18(f).
Page 134 of 1991 (1) ZLR 128 (SC)
The conclusion one must reach from this rather wearisome analysis is that this is not a
case where different words must be given different meanings. It is a case where the
structure of the Act and of the regulations changed. Originally there was a simple penalty
provision in the Act and twelve specific offences detailed in the Regulations. Now the
Act is permissive and the Regulations contain three generalised offences and one very
flexible penalty provision. The use of the word “value” in the current penalty provision
merely follows the introduction of that concept into the Act in 1978. It was not
introduced as something different from “a price which exceeds the appropriate price” but
simply as a more general term, to apply to a wider range of offences.
Or, to put it differently, the formula “a price which exceeds the appropriate price” was
used to define the offence. The formula relating to value was used to define the limits of
the penalty. The two expressions were never in conflict. The one did not replace the
other.
In short I do not agree that “value” must necessarily mean something other than the
controlled price. It may, or it may not, but the decision is not assisted by applying the
interpretative criterion that different words must be given different meanings.
We must go back to the first principles of interpretation.
There is no doubt that “value” is an ambiguous word. It requires interpretation. However
certain statements can be made about its meaning.
1. It is accepted that it normally means “market value” or “exchange value”.
Pietermaritzburg Corporation v South African Breweries Ltd 1911 AD 501 at 533; SA
Railways v Theron 1917 TPD 71; van der Merwe NO v van der Merwe 1973 (1) SA 436
(C) at 438H; Sarembock v Medical Leasing Services (Pty) Ltd & Another 1991 (1) SA
344 (A) at 352B. Strouds Judicial Dictionary 5 Ed. BM & Others v Commissioner of
Taxes 1970 (1) RLR 13 at 24-25; 1971 (1) SA 506 (R) at 517-518.
But surely when a controlled price is introduced, that controlled price
becomes the market value? That is the price at which such goods are lawfully bought and
sold.
2. Where there is no market the court must do its best to assess what the
commercial value should be. Todd v Administrator, Transvaal 1972 (2)
Page 135 of 1991 (1) ZLR 128 (SC)
SA 874 (A); Gatooma Rural Council v Crook 1974 (1) RLR 321 (A);
1974 (3) SA 840 (FA); May & Ors v Reserve Bank of Zimbabwe 1985 (2) ZLR 358
(SC); 1986 (3) SA 107 (ZS).
That situation does not arise in the present case.
3. In deciding whether “value” should be interpreted to mean “black market
value” one must take account of the words of Botha JA in S v Mapheele 1963 (2) SA 651
(AD) at 655D:
“It is a recognised canon of construction of statutes that any reference in any law to any
action or conduct is presumed, unless the contrary intention appears from the statute
itself, to be a reference to a lawful or valid action or conduct”.
See also Attorney-General v Slatter & Ors 1984 (1) ZLR 306 (SC) at 317;
1984 (3) SA 798 (ZS) at 806 D-E. Klerck NO v Kaye 1989 (3) SA 669 (C) at 676B. (And
for a case which on the facts went the other way see Kauluma & Ors v Minister of
Defence & Anor 1987 (2) SA 833 (A) at 856 et seq.)
In the English law this canon of construction is apparently known as construction in
bonam partem, as to which see Bennion, supra, at 298 and Maxwell on the Interpretation
of Statutes 12 Ed at 174 et seq.
It has been argued by Mr Houston, who appeared for the State, that it is not unusual for
the courts to recognise an illegal value. He pointed to the situation in drug-peddling cases
such as S v Avari S-4-86 where in assessing the penalty to be imposed the court relied on
evidence as to the “street value” of drugs which could not lawfully be sold except under
prescription. It seems to me that this involves a different principle. The court was not
using the word “value” to mean “unlawful value”. It was not defining “value”.
In Avari’s case supra and similar cases the court takes account of the profitability of the
illegal trading in order to assess a proper penalty. If a man has made $10 000 illegally it
would be ridiculous to fine him $100. If he stands to make $10 000 a slap on the wrist
will not deter him or his suppliers or those anxious to follow his example and get rich
quick. The principle involved is simply the old principle that a wrong-doer should not
benefit from his wrongdoing.
Page 136 of 1991 (1) ZLR 128 (SC)
In this case the legislature has used the word “value” to define the upper limit of the
court’s jurisdiction in relation to punishment. There does not seem to me to be any reason
to suppose that it meant “unlawful value” or “black market value”. If it had meant that it
would have said “in the case of goods or commodities sold in breach of the Price Control
Regulations the maximum fine shall be the price at which the goods or commodities were
sold” or “twice the unlawful profit made on the transaction” or similar words.
It seems to me unthinkable that we should assume that when the legislature used the word
“value” it meant “unlawful value”. The only argument in favour of that essentially
unacceptable interpretation would be that otherwise the penalty would be ridiculously too
low. As we have seen, that argument falls away because of the existence of a parallel
administrative remedy in s 16. The Minister may intervene and order a refund of up to
twice the profit made, either to the purchaser, or, if he is not readily ascertainable, to the
State. That parallel remedy, now replaced by s 34 of SI 153B of 1989, may not be
entirely satisfactory in practice, but the fact is that it exists precisely in order to fill the
gap between the upper limit of the fine and the excess profit of the offender.
I am driven to the conclusion therefore that there is no good reason for the court to
assume that when the lawgiver set the upper limit of the fine in this case as the value of
the car in issue, it meant the black market value of that car. Had it not been for the
existence of s 16 we might with great reluctance have been driven by the canons of
purposive construction to that conclusion. But that situation does not arise.
The law, with respect, is unsatisfactory. I venture to suggest that the new law, and in
particular s 34 of SI 153B of 1989, is even more unsatisfactory. Indeed, without wishing
in any way to interfere in matters of economic policy, I think it is the duty of the court to
point out that this particular piece of legislation in relation to the price of motor vehicles
has made criminals out of more ordinary citizens than any other legislation since the
“anti-terrorist” legislation prior to independence.
The tragedy of this enactment lies not only in the fact that so many ordinarily honest
citizens are tempted to break it, but also in the fact that it is so randomly enforced. So
many offend, so few are prosecuted. These are the hall-marks of bad law.
It remains only to apply the conclusion to which I have come, to the facts of
Page 137 of 1991 (1) ZLR 128 (SC)
this case. If the maximum fine which can be imposed is equivalent to the lawful value of
the car in question, that maximum fine is $24 457.
The appellant’s moral blameworthiness is relatively low. It was not alleged that he
acquired the vehicle for purposes of making an illegal profit on resale. He kept it for
almost a year before re-selling. The price was suggested by the purchaser.
On the other hand one cannot be blind to the fact that this is an economic crime, and a
large profit has been made unlawfully. Personal considerations cannot loom too large. I
would impose a fine of $20 000, in default of payment, three months’ imprisonment with
labour.
Accordingly the appeal against sentence succeeds to the extent that the fine of $95 000
or, in default of payment, six months’ imprisonment with labour is set aside. Instead the
appellant is sentenced to a fine of $20 000 or, in default of payment, three months’
imprisonment with labour.
Gubbay CJ: I agree.
Manyarara JA: I agree.
Atherstone & Cook, appellant’s legal practitioners
S v MUKOMBE
1991 (1) ZLR 138 (SC)
Division: Supreme Court, Harare
Judges: McNally JA, Manyarara JA & Ebrahim JA
Subject Area: Criminal appeal
Date: 11 February & 19 March 1991

Criminal procedure sentence — murder — consideration of extenuating circumstances.

Conviction and sentence set aside and the matter remitted to the trial court for further
evidence.
The accused was sentenced to death for the murder of his wife. The trial court found no
extenuating circumstances. The killing was without motive and there was no psychiatric
evidence as to the accused’s state of mind at the time.
Held, that in the absence of evidence of motive or mental or emotional fragility there was
a real probability that the accused acted from a sense of diminished responsibility.
Held, that it was proper that where a person is charged with murder, the trial court should
investigate fully the mental condition of an accused person and this would include
receiving reports of the accused’s family, friends, co-workers and former employers.
Held, that the accused’s conviction and sentence be set aside and the matter be remitted
to the trial court for further consideration of the accused’s mental and emotional state.
Cases cited:
S v Taanorwa 1987 (1) ZLR 62 (SC)
M Madziwanzira for the appellant
A O Agyemang for the respondent
Page 139 of 1991 (1) ZLR 138 (SC)
McNALLY JA: There is no doubt in this case that the appellant killed his wife. He came
towards her as she was washing some clothes at a rock in the Muparadzi River near her
home in village 4, Chinyika West, near Headlands. It was the morning of 4 April 1987.
He called out her name and she replied: “What is the matter?” Then, without any
warning, and without her showing any sign of expecting trouble, he threw an axe at her,
knocking her over into the water. He then took a knife out of his pocket and stabbed her
twice. She ran away a short distance and he caught up with her. He then stabbed her a
third time, in the chest. This was the fatal blow.
The appellant ran away and hid, but later gave himself up to the police. He paid damages
to her parents. He put up a number of conflicting explanations as to why he had killed his
wife. He said he had seen her just before the incident committing adultery. He said she
was “insulting him too much”. He said she assaulted him painfully at the river, causing
him to lash out in pain and anger. All this the trial court rightly disbelieved. It was
nonsense.
The court therefore found him guilty of murder with an actual intent to kill. In
considering the question of diminished responsibility the court decided that there was no
evidence before it which would justify such a conclusion. Accordingly, in the absence of
extenuating circumstances the sentence of death was passed.
The absence of positive evidence of mental or emotional fragility (and I use that word to
include diminished responsibility as well as true mental disorder or defect) is not at all
uncommon. The only clue may be, as I said in S v Taanorwa 1987 (1) ZLR 62 (SC), the
“odd, or inexplicable or sometimes bizarre” behaviour of the killer. In the present case it
seems to me unfortunate that defence counsel at the trial did not, apparently, interview
the appellant’s family, friends, co-workers and former employers, in an attempt to
discover whether he had any history of strange behaviour. It should have been apparent to
defence counsel that his client’s version of events was unlikely to be believed. In such
cases, as I once tried to explain in a speech reported in Legal Forum Vol 1 No 2 at p 3,
and in particular at paras 8 and 9, defence counsel should bear in mind the possibility of a
second or third line of defence:
“Drink, dagga, provocation and insanity are always or nearly always possibilities,
especially in apparently motiveless killings. I know the State does not have to establish a
motive, but the absence of a motive should always set alarm signals ringing in the mind
of a defence counsel.”
Page 140 of 1991 (1) ZLR 138 (SC)
This is such a case. Not only is there no evidence of motive. There is positive evidence of
an absence of motive. The learned judge himself asked the mother of the deceased:
“Q. Are you able to throw any light as to why the accused should have killed
your daughter?”
A. I cannot throw any light at all, I have no knowledge why the accused
killed my daughter because they were quite happy.”
Moreover there was no immediately preceding quarrel. That very morning they had all
been together, and the mother said:
“I was also surprised because they were quite happy when I left them, the deceased was
cooking sadza for the accused her husband and warming some water for him and then the
deceased came to the field where we were and eventually one kills the other. I was
surprised how it came to that way.”
Generally, she said:
“The relations between them were very good.”
That evidence of the mother is positive evidence that there was no reason for the killing. I
do not say it is positive proof, because there may be a reason of which no-one is aware.
But certainly, since we are dealing with a small rural family, one would expect that if
there was a rational reason for the killing, it would have been known to the deceased’s
relatives. The fact that they can offer no rational reason is surely evidence amounting to
proof, on a balance of probabilities, that the killing was an irrational act. And if that is so,
is not the killer, in the absence of psychiatric evidence, to be regarded as a man suffering
from diminished responsibility?
I should add that in this case there is some evidence of superstitious beliefs in the
background which may or may not be relevant. The deceased had a previous husband.
His mother had strongly disapproved of the marriage. Because of this, it was said, he
committed suicide. As a result there was apparently some perceived need to “appease the
spirits” before the marriage between the deceased and the appellant could be finally
approved.
I have given some thought to the question whether it is necessary to refer the matter back
to the trial court, or whether this court could not, on the evidence,
Page 141 of 1991 (1) ZLR 138 (SC)
make a finding of diminished responsibility, and thus a finding of extenuating
circumstances.
The practice in the past has usually been to refer the matter back. Essentially this is
because a full and proper investigation may reveal not merely diminished responsibility
but mental disorder or defect justifying a special verdict. The cases in this connection
have very carefully been discussed and analysed in two articles by G Feltoe in Legal
Forum Vol 1 Nos 4 and 5 dated June and September 1989, and entitled “Investigating the
Mental Condition of Persons charged with Murder”.
Accordingly, and in order to leave open the possibility of a special verdict, the conviction
and sentence will be set aside, and the matter remitted to the High Court for further
consideration of the appellant’s mental/emotional state. The appellant should undergo
psychiatric examination, but before that is done the State and pro deo counsel for the
defence should endeavour to obtain information from the appellant’s family, friends, co-
workers and former employers which may be of value in the psychiatric investigation.
The trial court’s attention is directed to the comments in Taanorwa, supra, and the articles
referred to above. Finally it is pointed out that even if it is not possible to obtain
meaningful background information on the appellant, and if as a consequence the
psychiatric evidence is inconclusive, the trial court may nevertheless come to the
conclusion, on the stark facts as they presently exist, that the appellant’s mental condition
warrants a finding of diminished responsibility.
The conviction and sentence are hereby set aside and the matter is remitted to the High
Court for further investigation and consideration in the light of this judgment.
Manyarara JA: I agree.
Ebrahim JA: I agree.
Gambe, Chinyenze & Associates, appellant’s legal practitioners
S v MAKAWA & ANOR
1991 (1) ZLR 142 (SC)
Division: Supreme Court, Harare
Judges: Ebrahim JA (In Chambers, in terms of s 9A of the Supreme Court of
Zimbabwe Act 1981)
Subject Area: Criminal appeal
Date: 26 March 1991

Criminal procedure — appeal — failure to give reasons for judgment — gross

irregularity.
Assault — by police officers — need to investigate.
Traps — evidence of — no corroboration required — evidence to be approached with
caution.
Parks and Wild Life Act 1975 — s 37(b) — possession of rhino horns — need to explain
nature of offence and the attendant penalties to accused before conviction.
Appellants were charged, tried and convicted of contravening s 37(b) of the Parks and
Wild Life Act 1975 in that they were found in possession of two rhinoceros horns. They
had pleaded not guilty and at their trial they alleged that they had been mistreated by the
police who had assaulted them with a view to extracting confessions, but they had not
succumbed to the assaults. In convicting them the trial court did not give reasons for its
judgment, although it was apparent that the convictions were based on the evidence of
traps.
Held, that as appeals are argued and decided on the contents of the record of the
proceedings in the lower court, a failure to give reasons for judgment is a gross
irregularity. Without reasons an appellate court is hamstrung in its endeavours to
determine if the conviction was justified.
Held, that although allegations of police mistreatment are commonly made and are often
found to be spurious, the frequency with which they are
Page 143 of 1991 (1) ZLR 142 (SC)
made justifies that a thorough investigation be made. When an accused person stands in
jeopardy of a criminal conviction if a confession made as a result of mistreatment is
accepted, it is incumbent on the judicial officer to investigate to the fullest extent the
veracity of the allegations.
Held, further, that although the evidence of a trap requires no corroboration, such
evidence must be treated with caution.
Semble, where a person is charged with a serious offence such as a contravention of s
37(b) of the Parks and Wild Life Act 1975, which carries minimum mandatory penalties,
a failure to explain to the accused before conviction that he stands in jeopardy of a heavy
mandatory sentence vitiates the propriety of the conviction.
Cases cited:
Muroogasen v R 1952 SR 143
S v Mapiye S-214-88 (not reported)
R v Jokoniya 1964 RLR 236 (G)
R v d’Enis 1966 RLR 457 (A); 1966 (4) SA 214 (RA)
Practice Note 4 of 1966 (Appellate Division) 1966 RLR 755 (A)
R v Dhlumayo & Anor 1948 (2) SA 677 (A)
Watt (or Thomas) v Thomas [1947] 1 All ER 582 (HL)
Joyce v Yeomans [1981] 2 All ER 21 (CA)
S v Chaerera 1988 (2) ZLR 226 (SC)
S v Maharangwe S-5-90 (not reported)
S v Khanyile & Anor 1988 (3) SA 795 (N)
EBRAHIM JA: In this case the State filed a notice conceding that the convictions could
not be supported. As the concession was proper, the case was withdrawn from the roll to
be dealt with in Chambers. I shall now set out the reasons why the appeal must succeed:
The appellants were convicted of contravening s 37(b) of the Parks and Wild Life Act
1975. It was alleged that they had been in joint possession of two rhinoceros horns
without a permit. The horns had been officially valued at $50 000. Each appellant
pleaded not guilty but was found guilty and sentenced to pay a fine of $15 000 or, in
default of payment, to serve five years’ imprisonment with labour.
The record before me is totally inadequate for purposes of appeal. The appellants’ legal
representative drew attention to the fact that the notice of appeal had been prepared
“without the benefit of the court record”. In a replying memorandum to the notice of
appeal (included in the record) the
Page 144 of 1991 (1) ZLR 142 (SC)
magistrate commented:
“It is a pity that the notice of appeal was prepared before the judgment. It is therefore
based on what the legal representative of the appellants assumed was going to be the
basis for conviction.
The court placed due weight to all circumstances on discrepancies and also took the
necessary caution in relation to the evidence of the informer (sic).”
Notwithstanding these somewhat righteous sentiments, no judgment has to date (almost
three years after the trial) been forthcoming.
The appellants were caught in a police “trap”. The State alleged that a friend of the first
appellant’s husband, one Dickson Banda, was asked by the appellants to find a buyer for
two rhinoceros horns. They specified that the buyer should be a white man. Banda
reported the request to the police who thereupon enlisted the aid of a white man, John
Morrison, to pose as a potential buyer. That latter gave evidence substantially
corroborating Banda’s testimony.
The appellants throughout the trial leading to their convictions were steadfast in their
denials of involvement in this offence. They alleged that the police had tortured them to
obtain admissions of guilt. Yet they denied involvement despite this discomfort. The first
appellant, in reply to a question towards the end of her evidence-in-chief, stated “My
thumb cannot stretch any longer” following police assaults. There is no record of the
magistrate requesting a demonstration of this phenomenon, simple though it would have
been to have done so. The second appellant alleged assaults on the head and chest by
police details. She became ill while in prison and was taken to hospital at the
recommendation of a magistrate who visited the prison. This allegation also seems to
have fallen on deaf ears, although it surely would have been easily verified from hospital
records.
I am well aware that allegations of police maltreatment are commonly made by accused
persons and that such allegations are often spurious. But the frequency with which they
are made ought not to justify ignoring them. It is a matter of gravity to the State that
policemen have abused their positions in this manner. It is even more serious to allege
that the reason for such abuse was to force the victim to say or do something he would
not otherwise have said or done. Where an accused person stands in jeopardy of a
criminal conviction, should the statement made because of the alleged maltreatment
Page 145 of 1991 (1) ZLR 142 (SC)
be believed, it is incumbent on the judicial officer to investigate to the fullest possible
extent the veracity of the allegations.
In this case, the appellants maintain that they did not succumb to the maltreatment and
make the admissions demanded of them. Their convictions were based solely on evidence
led in court. Nonetheless, in the circumstances of this case, it would have been a telling
point for the defence case had the appellants proved that the police had improperly
attempted to force confessions from them.
As far as one can tell in the absence of a reasoned judgment, the convictions were based
on a substantial concordance between the evidence of Banda and Morrison.
Corroboration of the evidence of traps is not a requirement (see, for example Muroogasen
v R 1952 SR 143). However, this rule cannot be taken as absolute. From the remnant of
the record available to me, it is clear that the magistrate regarded Morrison’s evidence as
coloured to some extent by his conservationist views. The extent of this colouration and
the weight the magistrate attached to it are factors which ought to have been included in
the judgment. Regrettably this is unavailable.
Banda’s evidence ought also to have been approached with caution. An informer such as
he, who gives unsolicited incriminating evidence to the police, cannot but arouse
suspicion as to his motives. His explanation for so doing — that he became afraid of the
consequences of negotiating the sale of the horns — might be true. On the other hand,
elsewhere in his evidence he denies knowledge of the value of rhinoceros horns and
intimates ignorance of the campaign to protect the species.
It seems to me that to base a conviction on evidence so patently questionable would, in
the best of circumstances, be ill-advised. The magistrate might have had sound reason for
so doing, but as his reasoning process (in the form of a written judgment) has not been
supplied, I have no way of testing it for purposes of this appeal.
The situation arising when it appears that insufficient evidence has been supplied to
enable an appellate tribunal to decide on appeal raises thorny procedural problems. Not
the least of these is the question of when the appellate tribunal is justified in interfering
with the decision of a lower court to the extent of saying that the decision was wrong and
reversing it.
Page 146 of 1991 (1) ZLR 142 (SC)
Fortunately the situation is not without precedent.
In S v Mapiye S-214-88, the former Chief Justice dealt with a case in which the
magistrate had omitted from the appeal record the evidence relating to a second charge on
the charge sheet yet had convicted the appellant on both charges. It is instructive to quote
the final paragraph of that judgment:
“To confirm the conviction on the second count, would, in my view, result in a failure of
justice. The omission to consider and to give reasons for convicting the appellant on
Count Two is fatal to the prosecution case. It is a gross irregularity. Appeals are argued
and decided on the contents of a certified record of the trial proceedings. If those contents
are stored in the mind of the trial magistrate, they are not good enough.” (My emphasis.)
Strictly speaking, this passage, and especially the sentence which I have taken the liberty
of underlining, is decisive as regards the disposition of this matter. Although there are
indications in this case that the magistrate may have considered the case, a large portion
of those considerations remained stored in his mind instead of being committed to paper.
In the circumstances, this amounts to an omission to consider and give reasons. There is a
gross irregularity in the proceedings. See R v Jokoniya 1964 RLR 236 (G); R v d’Enis
1966 RLR 457 (A); 1966 (4) SA 214 (RA); and Practice Note 4 of 1966 (Appellate
Division) 1966 RLR 755 (A).
There are a number of subsidiary points which bear further elucidation:
With respect to Dumbutshena CJ, I think it would be beneficial to examine in greater
detail the legal niceties of an appeal in such cases. An appellate court is bound to be
reluctant to overturn the decision of a trial court which will have the advantage of hearing
verbal evidence, observing the witnesses, and generally acquiring a “feel” for the case;
see, inter alia, R v Dhlumayo & Anor 1948 (2) SA 677 (A); Watt (or Thomas) v Thomas
[1947] 1 All ER 582 (HL); Joyce v Yeomans [1981] 2 All ER 21 (CA).
Dhlumayo’s case, to which Dumbutshena CJ referred in Mapiye, supra, dealt essentially
with the situation where the appeal is on a question of fact. In the course of his opinion in
Watt’s case, supra, (House of Lords precedent to which the South African Judges of
Appeal referred in the former case) Viscount Simon pointed out (at p 583H) that a lack of
evidence to support a particular conclusion is really a question of law. If there is no such
evidence
Page 147 of 1991 (1) ZLR 142 (SC)
an appellate court will say so and there is no need for the further consideration of how the
decision was reached.
In this case, I am unable to say, on the basis of the evidence made available to me, that
the magistrate was justified in concluding that the appellants had either committed the
offence charged, or (on the supposition that I had been so satisfied) that their convictions
warranted, in law or in fact, the severe sentences imposed.
The offence of unlawful possession of rhinoceros horn is punishable by a mandatory
minimum sentence which the magistrate, having found the appellants guilty as charged,
was obliged to impose. The crimes for which mandatory minimum sentence must be
imposed have proliferated of late and certain procedures, amounting now almost to rules
of practice, have been developed by the judicial system in an attempt to ensure that these
severe penalties are imposed only in the situations contemplated by the Legislature.
Possibly the most important procedures of this nature relate to the finding of special
reasons which, if found, restore the trial court’s discretion to the sentencing process. The
vital importance of ensuring that accused persons (and especially undefended accused
persons) know what special reasons are is self-evident and has been stressed by various
courts time and again. See S v Chaerera 1988 (2) ZLR 226 (SC) and S v Maharangwe S-
5-90.
There is not a jot of evidence in this case that the magistrate mentioned to the appellants,
prior to either conviction or sentence, that they stood in jeopardy of a heavy mandatory
minimum sentence, nor that they could avoid this on a show of special reasons. This
factor alone would have sufficed to ensure the success of the appeal against sentence.
Finally, in the context of fairness and due process (which were two factors conspicuously
lacking in the present case) I would, as did McNally JA in Chaerera’s case, supra, draw
the attention of the magistrate concerned and those interested in improving criminal
justice to the judgment of Didcott J in S v Khanyile & Anor 1988 (3) SA 795 (N).
In the result the appeal succeeds and the conviction and sentence in respect of each
appellant is set aside.
My brother Korsah JA agrees with this judgment.
A J A Peck, appellant’s legal practitioners
MASAWI v CHABATA & ANOR
1991 (1) ZLR 148 (HC)
Division: High Court, Harare
Judges: Greenland J
Subject Area: Civil trial
Date: 4, 5 & 27 March 1991

Delict — damages for wrongful arrest and imprisonment — quantum of damages

assessed — requirements of the actio injuriarum.
The plaintiff was arrested wrongfully by police in his home. He was taken to the police
station where he was detained unlawfully for a few hours. He was insulted and
humiliated by the police but he was not assaulted. The requirements of a lawful arrest
were considered together with determining when an arrest is made.
Held, that for the purpose of the actio injuriarum an unlawful arrest had been made and
maintained by threats.
Held, further, that the contumelia suffered by the plaintiff was objectively an integral part
of the arrest and therefore, even though not specifically pleaded, could be taken into
account in the assessment of damages.
Held, that in an assessment of damages the liberty of the individual is a fundamental right
in a free society which right should be guarded and preserved.
Cases cited:
Bird v Jones (1845) 7 QB 742
Tsose v Minister of Justice 1951 (3) SA 10 (A)
Beckenstrater v Rottcher & Anor 1955 (1) SA 129 (A)
Makomberedze v Minister of State (Security) 1986 (1) ZLR 73 (HC); 1986 (4) SA 267
(ZH)
Botha v Lues 1983 (4) SA 496 (A)
S v Ncube & Anor 1982 (1) ZLR 212 (SC); 1982 (4) SA 419 (ZS)
Page 149 of 1991 (1) ZLR 148 (HC)
S v van Vuuren 1983 (4) SA 662 (T)
R v Mazema 1948 (2) SA 152 (F)
Anderson v Booth [1969] 2 QB 216; [1969] 2 All ER 271
R v Jones [1965] Crim LR 222
R v Inwood [1973] 2 All ER 645 (CA)
Newman v Prinsloo & Anor 1973 (1) SA 125 (W)
Ingram v Minister of Justice 1962 (3) SA 225 (W)
Stambolie v Commissioner of Police 1989 (3) ZLR 287 (SC); 1990 (2) SA 369 (ZS)
Murape v Chikwaka 1977 (1) RLR 39 (G)
Granger v Minister of State (Security) 1985 (1) ZLR 153 (HC)
Minister of Home Affairs v Allan 1986 (1) ZLR 263 (SC)
Bennett v Minister of Police & Anor 1980 (3) SA 24 (C)
Holgate-Mohammed v Duke [1984] 1 All ER 1054
Chitunya v Minister of Home Affairs HH-261-89 (not reported)
R v Long 1970 (1) RLR (A); 1970 (2) SA 153 (RA)
S v Hove S-64-88 (not reported)
S v Masuku & Anor 1989 (3) ZLR 33 (SC)
Thandani v Minister of Law and Order 1991 (1) SA 702 (E)
H Simpson for the plaintiff
First defendant in person
K Ngozo for the second defendant
GREENLAND J: In this case plaintiff seeks $10 000 in damages for wrongful and
unlawful arrest and imprisonment.
The facts which are common cause or indisputable, on the evidence given by both sides,
may be summarised as follows:
(i) Plaintiff runs an estate agency which was retained by first defendant, “Mr
Chabata”, in order to administer and lease out the latter’s residential property at 67,
Broughton Drive, Sunridge, Harare.
(ii) In accordance with his mandate plaintiff leased the property to a Mr
Bonde in terms of a written lease (Ex.1). In terms thereof the lease period was for six
months. The expiry date was stipulated as 31 April 1988. However, in terms of clause 9
of the lease, Mr Bonde, as lessee, was granted the option to renew the lease on one
month’s written notice to the lessor. It is quite plain that he did not exercise this option in
terms thereof. However it is clear also that Mr Bonde had no intention to vacate.

Page 150 of 1991 (1) ZLR 148 (HC)

(iii) This did not please Mr Chabata who required re-possession for personal
occupation. In early April he visited Mr Bonde. The latter was unco-operative. Later that
month he telephoned plaintiff only to be told that contractually he was required to give
Mr Bonde two months notice to vacate.
(iv) Mr Chabata became frustrated and angry in the extreme. On 1 May 1988,
a day after expiry of the written lease, he attempted to move into his still occupied
premises. He was resisted by Mr Bonde and family. In desperation, at 5 pm that day, he
and his family invaded the home of plaintiff, his estate agent. They remained there until
after dark and proceeded to bed down for the night in the lounge much to the
understandable consternation of plaintiff’s wife.
 (v) Plaintiff was absent. He returned to this chaotic and emotionally charged
scene that was now his home at about midnight. Mr Chabata was absent. However
because Mrs Chabata and her children required shelter plaintiff and his wife had little
option but to accept the situation. They furnished their “guests” with blankets and retired
to bed.
(vi) The comfort of sleep was to be shortlived. At about 3 am they were
awakened by a knock at their bedroom door. The police had arrived having apparently
been afforded entry by Mrs Chabata then “camped” in the lounge with her children.
There were two police officers present inside. They required plaintiff to attend at the
police station for the purpose of “settling” the dispute. After a discussion plaintiff left the
comfort and sanctuary of bed and home and drove, in convoy with the police, to the
police station.
(vii) At the police station he was transferred to a police vehicle. The police
drove him, in convoy with Mr Chabata, to 67, Broughton Drive, Sunridge. Hooting at the
gate failed to induce a response from the sleeping Bonde family. A police officer jumped
over the locked gate and knocked on the bedroom window. In the result Mrs Bonde
eventually emerged.
(viii) She was told that her husband was required at the police station. She
explained that he was absent being away at Chinhoyi. After a discussion she was driven
away to the police station leaving the sanctuary of her home and four young children. It
was now about 4 to 5 am.
Page 151 of 1991 (1) ZLR 148 (HC)
(ix) At the station the dispute as to whether Mr Chabata was entitled to re-
possession of his Bonde occupied home was discussed. The written lease was produced
and analysed clause by clause. It was revealed that plaintiff had accepted rent for May
even though the lease had expired on 30 April, the day before. Plaintiff was castigated by
the police. Other police officers contributed to the debate. In part plaintiff was labelled as
“dishonest”. In the result he backed down.
(x) The result was that by 8 am that morning the Bonde family vacated 67,
Broughton Drive and Mr Chabata took occupation. Plaintiff “installed” the Bonde family
in a different residence at personal cost of $30 per month being the difference between
the rent Mr Bonde had been required to pay for the Chabata residence and the residence
they were compelled to move to.
By the time the matter was “settled” in the above stated manner plaintiff
had been without sleep or rest for over 24 hours. The above constitutes the background to
the matter and the facts which, as said, are either common cause or indisputable on the
evidence.
The police officer involved, Inspector Bungo, admits that plaintiff was away from home
from approximately 3.20 am to approximately 6 am, a period of approximately 2 hours
40 minutes. The crucial factual issue for determination is whether or not his sojourn with
the police was freely embarked upon or was it in consequence of impaired volition
induced by illicit police pressure.
A superficial objective view supports neither side.
As regards the police they were undoubtedly faced with an emotionally charged
potentially explosive situation. It was right and proper that they assume measures to
diffuse the situation. Such measures would include inviting all parties involved to the
neutral ground of a police station where proper resolution of the dispute would take
place. This is the claim of the defence and it is supported by the evidence of the Inspector
and Mr Chabata.
As regards plaintiff he was of the firm view that the Bonde family were in lawful
occupation and required two months’ notice to vacate. (Incidentally this stance was
correct although plaintiff arrived at it for the wrong legal reasons.) What is important is
that his stance was bona fide and firm. There could have been no point in attending at the
police station.
Page 152 of 1991 (1) ZLR 148 (HC)
On this bare unadorned objective picture the probabilities are fairly evenly balanced.
Plaintiff may or may not have left home voluntarily in consequence of an invitation
civilly extended.
However having seen the witnesses and assessed their evidence, performance and
demeanour I have little hesitation in concluding that truth and probability are with the
plaintiff.
In a nutshell he claims that his decision to accompany the police was induced by illicit
actual and implied pressure. The police told him that if he refused to co-operate they
would use force. The force referred to was not specified. They did however specify that
he would “be locked up”. Their manner, demeanour and tone was aggressive, harsh,
insistent and intimidatory. One of them was in possession of what appeared to be a
machine pistol slung over the shoulder. In the circumstances he concluded that he had
little option but to succumb to their orders. This impaired volition persisted for the period
he was with the police. At the police station he was subjected to general and specific
ridicule and contempt including being described as a crook and a fraudster.
Plaintiff struck me as a truthful witness although sometimes unreliable on matters of
detail. This unreliability is apparently due to defects in memory. This is understandable
bearing in mind the time that has elapsed. Also it is clear that plaintiff’s intellectual
capacity is not of a particularly high order.
He is supported by the following factors. Plaintiff is not a young man. He arrived home
tired and in need of rest. He suffers from high blood pressure. At the time the police
arrived he had already accepted the fact of the Chabata family bedding down in his
lounge for the night. Indeed they had been furnished with blankets. It is difficult to see
how, in these circumstances, he would have willingly left the comfort of bed to go to the
police station to discuss a civil dispute. Civil disputes are not resolved in this way at that
time of night. What would a discussion achieve at that time of night? Surely it was
inconceivable that the Bonde family could be evicted at that time of night and the
Chabata family moved in? Surely a meeting at the police station was an exercise in
futility which no sensible mature mind would subscribe to?
Also it is a fact that the police had been instructed to bring all parties to the police station.
It was a mandate with an imperative complexion. That much is clear from the evidence of
Mr Chabata who overheard the orders being given. It is clear therefore that they would
not have lightly allowed their mission to be frustrated.
Page 153 of 1991 (1) ZLR 148 (HC)
To this must be added the fact that the Inspector admits that plaintiff was resistant. He
was never able to properly explain what changed the man’s mind or attitude. Also it is a
fact that plaintiff was accompanied by a police officer when he drove from home even
though he had agreed to go. This is consistent with coercion.
Plaintiff is fully corroborated by his wife who was an impressive witness and furnished a
far more detailed and clearer picture of the circumstances of plaintiff leaving home. On
this evidence there is no doubt that plaintiff had no choice but to comply with what was,
in effect, an order.
It is pertinent to point out that Mr Chabata makes the same assessment of the reason for
Mrs Bonde leaving her home. He said, as she says, that the woman had “no choice”. Mrs
Bonde elaborated to say that the police were of the view that if she attended then it was
likely that her husband whom they believed was in hiding would relent and follow.
Mr Simpson, for plaintiff, is right in submitting that the Bonde incident is an important
and certain indication of the police frame of mind and code of behaviour that night. In
terms thereof the persons whose presence at the station they were charged with securing
were really given no choice. Mrs Bonde was required to leave her home and children in
the dead of night. In my view so was plaintiff. The police were efficiently, though
insensitively, discharging the mandate deposed to by the defence witness Mr Chabata.
Insofar as this witness alleges that plaintiff reacted willingly to a cordial invitation I have
no hesitation in disbelieving him. It is clear that he did not witness the conversation at
plaintiff’s home. He said the conversation took place outside whereas plaintiff, his wife
and the Inspector all said it took place inside the residence.
Inspector Bungo gave his evidence well. This is only to be expected. He is a police
officer of eleven years experience. However nothing about his performance induces any
doubt in my mind that plaintiff (and Mrs Bonde) were given no option but to accompany
the police. It should be noted that he is contradicted on this aspect as regards Mrs Bonde
by the other defence witness Mr Chabata who also contradicts him on the issue of
whether or not plaintiff was labelled as dishonest at the police station.
The following facts are therefore found as proved:
(a) at approximately 3 am two police officers entered plaintiff’s home and in a
subsequent conversation insisted that plaintiff accompany them;
Page 154 of 1991 (1) ZLR 148 (HC)
(b) their motive for such insistence was to discharge a mandate from their superiors
in terms of which they were required to secure the presence, at the police station, of all
parties to a civil dispute involving a residence;
(c) for various objective and subjective reasons, including the fact that he was very
tired and the fact that there seemed little sense in attempting to settle an occupation
dispute at that time of night, plaintiff persistently declined to accompany the police and to
attend at the police station;
(d) this resistance was overcome by the insistent, aggressive, harsh and intimidatory
manner and tone of the police officers who also made it clear that if he failed to co-
operate they were prepared to use force and even lock him up. The fact that one officer
had an exposed weapon contributed to the capitulation of plaintiff’s resistance;
(e) in the result plaintiff accompanied the police and remained in their company from
approximately 3.20 am until approximately 6 am, not voluntarily, but because of
impaired volition induced by illegitimate police pressure. This was a classical case of
where:
“. . . though little may be said, much is meant and perfectly understood” Bird v Jones
(1845) 7 QB 742 at 748, per Williams J;
(f) at the police station the police canvassed the merits of the civil dispute, arrived at
conclusions against those held by plaintiff, and, in the process subjected him to general
ridicule and contempt, including labelling him as a crook and fraudster. Plaintiff had little
option but to co-operate in an exercise, implemented immediately, in terms of which the
Bonde family were evicted from a residence which plaintiff, as an estate agent, was
administering, and the Chabata family afforded occupation.
On the facts thus found has plaintiff proved a case in damages? The relevant paragraphs
of his declaration read:
“4. On or about the 1st May 1988 and at 3 Friend Close, Cranborne Park,
Harare, the first defendant caused duly attested members of the Zimbabwe Republic
Police in the employ of second defendant and acting within the scope of their
employment to arrest the plaintiff and to remove him to 67 Broughton Drive, Sunridge,
Harare and later to Harare Central Police Station.
5. The said arrest and imprisonment were wrongful and unlawful and without
justification or excuse.
6. By reason of the aforesaid wrongful arrest and imprisonment the plaintiff
has suffered damages in the sum of $10 000,00.”
Page 155 of 1991 (1) ZLR 148 (HC)
From this pleading can be abstracted two causes of action specified co nomine —
wrongful arrest and wrongful imprisonment.
Mr Simpson, for plaintiff, understandably submits that, on the facts an unlawful and
wrongful arrest of plaintiff occurred in terms of a wide or liberal meaning of the word
arrest. Mr Ngozo, for second defendant (the Minister of Home Affairs), submits that the
facts do not disclose an arrest as it was neither the motive nor intention of the police to
arrest the plaintiff. No act of physical confinement, express or symbolic, was executed
neither did plaintiff claim in evidence that, at any stage, he believed he was under arrest.
The issue for determination therefore is where a man accompanies police officers in the
circumstances particularised in para (e) above is it to be held that such person is under
arrest?
A preliminary but vital step is to recognise that the motive for perpetrating an arrest is not
a crucial factor in determining the issue. This was authoritatively set out by Schreiner JA,
in Tsose v Minister of Justice 1951 (3) SA 10 (A) at 17G. His statement that:
“. . . just as the best motive will not cure an otherwise illegal arrest so the worst motive
will not render an otherwise legal arrest illegal”
was expressly approved by van den Heever JA in the Beckenstrater v Rottcher & Anor
1955 (1) SA 129 (A) at 140. As I accept the correctness of this approach it follows that
the fact that the police intended only to settle a civil dispute in taking and keeping
plaintiff in their company does not materially affect the issue as to whether or not they, in
fact, arrested him.
Next it is relevant to point to the truism that the unlawfulness of an arrest in no way
detracts from the fact of its existence. To put it simply, the fact that a purported arrest
fails to comply with, or is in breach of statutory prescription does not render it a non-
event, quite the reverse, it renders it actionable in delict at the behest of the unlawfully
arrested party. The law reports are replete with examples, eg, Makomberedze v Minister
of State (Security) 1986 (1) ZLR 73 (HC); 1986 (4) SA 267 (ZH) and Botha v Lues 1983
(4) SA 496 (A).
In order to test whether what plaintiff has proved constitutes an arrest it is useful and
logical to compare the essential nature of what he was subject to with what occurs in a
lawfully executed arrest.
Shorn of technical trimmings a lawful arrest is constituted by the police
Page 156 of 1991 (1) ZLR 148 (HC)
officer verbally and, if necessary, physically subjecting a person to his control. The
person is subjected to this control by the express or implied threat of lawfully sanctioned
force.
In the present case plaintiff was undoubtedly subjected to the control of the police
officers, such subjugation being induced by threats expressed and implied.
Except that the threats in the present case had no lawful sanction common to both
scenarios is the essential ingredient of a person being subjected to physical control.
In my view therefore, on a simple common sense and logic test, there is really no
difference between the two situations if one is seeking to determine the existence of an
arrest in the present case as a matter of fact.
The element of control must be regarded as decisive. Not surprisingly the fact of a lawful
arrest will not disable a person accused of escaping from lawful custody avoiding
conviction if the facts show that control was absent. See S v Ncube & Anor 1982 (1) ZLR
212 (SC); 1982 (4) SA 419 (ZS) an instructive judgment by Beck JA, as he then was, and
the precedents cited therein.
Plaintiff has proved the element of control. More specifically, as found in para (e)
above,he has proved that, for approximately 2 hours 40 mins, he was under the complete
direction and control of the police officers. I hold that he has proved that he was under
arrest. I am fortified in that conclusion by the approach of Ackerman J, in S v van Vuuren
1983 (4) SA 662 (T) who held that in determining whether an arrest has occurred:
“the central idea is one of physical subjection”
quoting Hoexter J, as he then was, in R v Mazema 1948 (2) SA 152 (E) at 154:
“A person is under arrest as soon as the police assume control over his movements”
and Halsbury’s Laws of England, 4th ed, Vol II para 99:
“Arrest consists in the seizure or touching of a persons body with a view to his restraint;
words may, however, amount to an arrest if, in the circumstances of the case, they are
calculated to bring, and do bring, to a person’s notice that he is under compulsion and
thereafter submits to the compulsion.”
Page 157 of 1991 (1) ZLR 148 (HC)
See Anderson v Booth [1969] 2 QB 216; [1969] 2 All ER 271 (QB). Cf R v Jones, ex
parte Moore [1965] Crim LR 222 and R v Inwood [1973] 2 All ER 645 (A).
In Anderson supra it was held that an arrest is constituted when any form of words are
used which, in the circumstances, are calculated to bring, and do bring, to the notice of a
person that he is under compulsion to which he thereafter submits.
Such act of arrest is actionable in delict falling under the general heading of injuria of
which McKerron The Law of Delict 7 ed properly states at p 9:
“In short long before the time of Justinian the actio injuriarum had come to be regarded
as a general remedy for any wrongful aggression upon the person, dignity or reputation of
another. D.47.10.1.2.”
He expands this fundamental statement at p 53:
“The interests of personality protected by the actio injuriarum are those interests ‘which
every man has, as a matter of natural right, in the possession of an unimpaired person,
dignity and reputation’. The plaintiff must show that the act complained of constituted an
impairment of his person, his dignity, or his reputation.
Examples of such acts are assaults of all kinds, the unjustifiable infliction of any restraint
upon the liberty of another . . .
It is an injuria to prevent a person from dealing with his own property . . .or indeed from
exercising any right, whether public or private. Voet 47.10.7; and see Kleyn v Snyman
1936 OPD 19” (my emphasis)
The arrest of plaintiff, as particularised hereinbefore, constitutes an unjustified infliction
of restraint upon the liberty of plaintiff and a wrongful aggression upon his person and
dignity.
For the sake of completeness it is relevant to set out the judicial approach in such
situations. This was comprehensively canvassed by Margo J, in Newman v Prinsloo &
Anor 1973 (1) SA 125 (W) at 127A citing Vieyra AJ, in Ingram v Minister of Justice
1962 (3) SA 225 (W) at 227D:
“In my view this is correct. All interferences with the liberty of the citizen are prima facie
odious and it is for the person responsible to establish
Page 158 of 1991 (1) ZLR 148 (HC)
why in the particular circumstances such interference is legally justified: see Theron v
Steenkamp 1928 CPD 429 at 432. The English Law is similar: see Clerk & Lindsell on
Torts, 11th ed, p 293; Dumbell v Roberts (1944) 1 All ER 326 at p 331”
and later at p 127C —
“In Thompson and Another v Minister of Police and Another, 1971 (1) SA 371 (E)
Eksteen J, at p 374H, dealing with the delict of wrongful arrest said:
‘The arrest itself is prima facie such an odious interference with the liberty of the citizen
that animus injuriandi is thereby presumed in our law, and no allegation of actual
subjective animus injuriandi is necessary (Foulds v Smith 1950 (1) SA 1 (AD) at p 11).
In such an action the plaintiff need only prove the arrest itself and the onus will then lie
on the person responsible to establish that it was legally justified’.”
See also the long line of judicial precedents thereafter cited and the approach of Gubbay
JA (as he then was) in Stambolie v Commissioner of Police 1989 (3) ZLR 287 (SC) at
301G; 1990 (2) SA 369 (ZS) at 376J.
Second defendant has not proved any justification for the actions of the police. He is cited
as a nominal defendant in control of the Ministry of Home Affairs the employers of the
police in question and vicariously liable because, at the time, the police were about their
official duties and acted within the course and scope of employment.
Incidentally plaintiff has also pleaded and proved a case of wrongful or false
imprisonment as defined by McKerron, supra, at p 159 and Salmond Law of Torts 17 ed
p 123. However as I have already found for him on the basis of wrongful arrest and being
by no means satisfied that the concept of false imprisonment, thus defined, which has its
roots in the English concept of trespass, is part of Roman Dutch law I do not propose to
make any findings in respect thereof. The point was not raised in Stambolie, supra.
First defendant did not enter appearance. However there was simply no evidence to prove
that he instigated, directed or controlled the arrest. He lodged a complaint of a civil
dispute. It cannot be inferred that he either foresaw or intended the arrest of plaintiff. In
the result default judgment against this defendant was refused at the close of plaintiff’s
case.
Page 159 of 1991 (1) ZLR 148 (HC)
As regards quantum it must be borne in mind that the primary object of the actio
injuriarum is to punish the defendant by the infliction of a pecuniary penalty, payable to
plaintiff as a solatium for the injury to his feelings. The court has to relate the moral
blameworthiness of the wrongdoer to the inconvenience, physical discomfort and mental
anguish suffered by the victim.
Because of the various subjective aspects involved, which must necessarily be peculiar to
the case, precedents can only be of general assistance. Such general assistance in
approach is gleaned from precedents such as Murape v Chikwaka 1977 (1) RLR 39 (G);
Granger v Minister of State (Security) 1985 (1) ZLR 153 (HC); Makomberedze v
Minister of State (Security), supra, and Minister of Home Affairs v Allan 1986 (1) ZLR
263 (SC).
Allan’s case, supra, is particularly relevant and is, of course, binding on me. The general
principle of approach that may be abstracted from this case is that where the police, in
arresting a subject, act without malice but out of understandable genuinely held motives
which are not improper and limit their actions to the resolution of a problem genuinely
perceived exemplary damages are not indicated.
Allan “was inconvenienced and put to unnecessary worry by some clumsy but well-
intentioned actions of the police”. “In all he spent perhaps twenty hours under technical
arrest”, ie mostly at the house of a friend under what is commonly referred to as “house
arrest”.
In the present case plaintiff was deprived of his liberty for some 2 hours 40 minutes as a
result of the misguided but well intentioned actions of the police. Having seen Inspector
Bungo give evidence I have no doubt that the police genuinely believed that theirs was
the best course of action to avoid a potentially explosive situation getting out of control.
It is all too easy to now take an armchair view of the matter and say that they ought to
have counselled Mr Chabata to let things await morning when lawyers could be contacted
at their homes even though the day would be a Sunday.
The police were heavy handed, abrasive and intimidatory. Therein lies their moral
blameworthiness. Also they commenced the delict in the sanctuary of plaintiff’s home at
a most unearthly hour. One child was distressed by the arrest of plaintiff and started to
cry.
However plaintiff was not subjected to any physical force or maltreatment.
Page 160 of 1991 (1) ZLR 148 (HC)
Neither did he believe he would be as long as he co-operated. This aspect is important
also for the following reasons.
Plaintiff was humiliated and insulted at the police station. However he has not specified
contumelia in his claim. Can the aspect of contumelia be included in aggravation of the
punitive damages for wrongful arrest? The answer would appear to be in the affirmative
if the insults were objectively an integral part of the arrest, ie, perpetrated in the course of
the arrest. See Bennett v Minister of Police & Anor 1980 (3) SA 24 (C) at 37.
As said the arrest was effected and maintained by the threats. As McNally JA states in
Allan, supra, at p 271, quoting Lord Diplock in Holgate-Mohammed v Duke [1984] 1 All
ER 1054 at 1056 —
“. . . arrest is a continuing act; it starts with the arrester taking a person into his
custody . . . and it continues until the person so restrained is either released from custody
or . . .remanded in custody . . .”
It does seem to me therefore that where the arrest is effected and maintained by means of
verbal pressure and, at some stage during such “continuing” arrest, such verbal pressure
includes insults the contumelia occasioned thereby is an integral part of such continuing
arrest and aggravates the damages indicated even if not specifically pleaded. The
approach of Smith J, in Granger, supra, and Chidyausiku J, in Chitunya v Minister of
Home Affairs HH-261-89 (not reported) must therefore be distinguished. In each of these
cases plaintiff had specifically confined his claim to contumelia omitting to claim for the
loss of liberty.
Plaintiff was treated in a highhanded and undignified manner. He was greatly
inconvenienced being denied sleep for over 24 hours in consequence. He experienced a
certain amount of mental anguish at the fact of the arrest and implications of the threats.
He was generally demeaned and specifically insulted being labelled a crook and a
fraudster. The whole saga had the effect, not unintended, of severely bruising plaintiff’s
personal feelings and demeaning his personal and professional pride and integrity in the
presence of others including clients.
Also the observation that comparisons are odious simply does not detract from the fact of
close similarity between the facts of this case and the criminal offences of plagium which
is always treated very seriously by the courts. See R v Long 1970 (1) RLR 1 (A); 1970
(2) SA 153 (RA); S v Hove S-64-88 (not
Page 161 of 1991 (1) ZLR 148 (HC)
reported) and S v Masuku & Anor 1989(3) ZLR 33 (SC).
Liberty is a sacrosanct fundamental human right which must be meaningfully protected
by the courts. A court must guard against trivialising a human rights breach involving
liberty simply because it is categorised as civil. Like the criminal sanction for plagium
the civil sanction under the actio injuriarum is penal in nature.
I would respectfully associate myself with the approach of Van Rensburg J, in Thandani
v Minister of Law and Order 1991 (1) SA 702 (E) at 707B:
“In considering quantum sight must not be lost of the fact that the liberty of the individual
is one of the fundamental rights of a man in a free society which should be jealously
guarded at all times and there is a duty on our Courts to preserve this right against
infringement. Unlawful arrest and detention constitutes a serious inroad into the freedom
and the rights of an individual. In the words of Broome JP in May v Union Government
1954 (3) SA 120 (N) at 130F:
‘Our law has always regarded the deprivation of personal liberty as a serious injury’.”
Taking all these factors into account I would assess the sum of $3 000,00 as fair, just and
indicative of the inherent seriousness of this civil wrong.
There will be judgment for plaintiff against second defendant in the sum of $3 000,00
together with costs.
A J A Peck, plaintiff’s legal practitioners
Civil Division, Attorney-General’s Office, second defendant’s legal practitioners
S v MUTEKEDE & ORS
1991 (1) ZLR 162 (HC)
Division: High Court, Harare
Judges: Smith J
Subject Area: 17 April 1991
Date: Criminal review

Criminal law — malicious injury to property — defences — claim of right — duress —

necessary averments.
The six accused were convicted on their pleas of malicious injury to property. Having
noted an appeal, they sought to review the proceedings. They alleged that their actions
were authorised by their employer, alternatively that they were coerced to destroy the
property.
Held, on the facts accepted at the trial, there was no basis of finding that the accused
acted under a claim or right, or through duress.
Cases cited:
R v Canestra 1951 (2) SA 371 (A)
R v Damascus & Ors 1965 RLR 477 (A); 1965 (4) SA 598 (RA)
R v van der Merwe 1950 (4) SA 124 (O)
SMITH J: The accused were charged with malicious injury to property. The outline of
the State case read as follows:
“1. The complainant resides at Togarepi Farm, Shamva. He shares the farm
with two other partners of whom one is Dr Herbert Ushewokunze (Minister).
2. The six accused are all employed by Dr Herbert Ushewokunze and they
are currently residing at the same farm.
Page 163 of 1991 (1) ZLR 162 (HC)
3. On the 14th day of January, 1991 at about 1400 hours, all the six accused,
acting in common purpose, went to the maize lands belonging to the complainant They
had some hoes.
4. Upon arrival at the maize lands, they began to slash and destroy some
maize plants. They destroyed a total of four hundred and fifty maize plants which had an
average height of about one and half metres.”
The accused did not appear in court on 17 January 1991 as ordered and so warrants for
their arrest were issued. They were arrested and appeared in court on 18 January. They
were found guilty of contempt of court and each fined $50. When the charge of malicious
injury to property was put to accused No 1 he said:
“I understand the charge and admit destroying the complainant’s property but I was
acting on my employer’s instructions.”
Accused No. 2 said:
“Same for me. Mr Ushewokunze sent us a letter. I admit destroying the maize plants.”
The other four accused admitted the charge. When the outline of the State case was read
to them they said that they were correct and “Mr Ushewokunze instructed us”. When they
were asked whether they knew that their conduct in destroying the complainant’s crops
was unlawful they all said “yes, but I was afraid of losing my job”.
The accused were all convicted and each was sentenced to a fine of $250.
Legal practitioners acting for the accused lodged an appeal but have deferred the appeal
pending these review proceedings. They wrote to the magistrate saying “If our Client
(sic) is not happy with the outcome of the review proceedings the appeal will be
prosecuted”. The main grounds of appeal will be the convictions for malicious injury to
property were based on the allegations that the accused destroyed the property in
question, namely the maize plants, following specific instructions of the owner thereof
namely Togarepi Property Investments (Pvt) Ltd and that the explanations given by the
accused disclosed a valid defence of claim of right and/or ignorance or mistake of fact
and law. In relation to the contempt of court it was alleged
Page 164 of 1991 (1) ZLR 162 (HC)
that the failure of the accused to attend court on 17 January was neither intentional nor
wilful and that the summons had not been properly served.
There was no evidence before the court that the farm belonged to a company. The State
outline alleged that the farm was shared by three partners. The accused never raised the
defence of claim of right or ignorance or mistake of fact or law. In fact they admitted that
the maize was the complainant’s and that they destroyed it because their employer
instructed them to do so. They did not say that they thought that the maize plants
belonged to their employer or that they destroyed the wrong plants. They said that they
knew that they were acting unlawfully but they were scared of losing their jobs if they did
not carry out their employer’s instructions.
It is obvious that the accused destroyed the complainant’s property because they were
instructed to do so by their employer. There was no other motive. They were scared that
they would lose their jobs if they refused to obey the instructions. Was the defence of
necessity available to them? I do not think so. In R v Canestra 1951 (2) SA 317 (A) the
court held that necessity did not extend to threats of mere pecuniary loss such as fear of
losing one’s employment or livelihood. At p 324H Schreiner JA said:
“Nevertheless it seems to me to be clear that the defence of necessity has not been made
out. The only necessity compelling the appellant to risk contravening the regulation is
economic and that is not a form of necessity that the law recognises. If he cannot avoid
infringing the law without abandoning his occupation then he and his fellow fishermen
must seek some other means of livelihood.”
In R v Damascus & Ors 1965 RLR 477 (A), 1965 (4) SA 598 (RA) Macdonald J, as he
then was, analysed the defence of compulsion and concluded, inter alia, at 483I-484A; p
603A:
“Generally speaking it is only threats of death or grievous bodily harm which are likely to
expose a person to such a motive and there is every justification for limiting the defence
to threats of such a nature and for excluding threats against property.”

There have been cases where fear of lesser injury to the person and a threat of damage to
property have sufficed. However the courts have invariably stressed the necessity to
confine the defence within the strictest and narrowest limits. In R v van der Merwe 1950
(4) SA 124 (O) at 126A Horwitz J, after
Page 165 of 1991 (1) ZLR 162 (HC)
stating the principles relating to a plea of necessity, continued:
“As was pointed out, however in Mahomed’s case, exemptions from criminal liability
based upon the broad principle stated by Stephen must be confined within the strictest
and narrowest limits because of the dangers attendant upon allowing a plea of necessity
to excuse criminal acts, and this doctrine of limitation was expressly approved of in Rex
v Britz (1949 (3) SALR 293 at pp 302-303 (AD)). While in Mahomed’s case all the
members of the Bench expressly, or by implication, held that the onus of establishing this
excuse for otherwise criminal conduct lay upon the accused, the position was
reconsidered in the light of more recent decisions in our Courts and in England in Rex v
Britz (1949 (3) SALR 293 (AD)). Mr de Villiers, however, did not contend that the onus
was on the Crown but conceded that by virtue of the provisions of Reg. 187 the onus
rested upon his client. In the light of this concession, and bearing in mind the strictest
limits to which the legal excuse must be confined, I proceed to review the evidence on
this suggested defence.”
The accused have not alleged that their employer uttered any threat which caused them to
fear that they would lose their jobs if they did not carry out his instructions. It is not
possible, from the record, to discover the basis for their fears.
In the light of these factors, I consider that the trial magistrate acted correctly in
convicting the accused on the charge of malicious injury to property. The defence of
necessity is not available to the accused. Furthermore, from the record it is obvious that a
claim of right or of ignorance or mistake of fact and law could not succeed.
With regard to the conviction for contempt of court, the summons was served on each
accused. A mere statement that one has transport problems cannot excuse failure to
appear in court. In this day and age in Zimbabwe the vast majority of the population have
transport problems.
The sentences imposed by the magistrate on the two counts cannot be impugned as being
excessive.
Accordingly the proceedings are confirmed.
S v TSHUMA
1991 (1) ZLR 166 (SC)
Division: Supreme Court, Bulawayo
Judges: Gubbay CJ, Korsah JA & Ebrahim JA
Subject Area: Criminal appeal
Date: 3 April & 7 May 1991

Criminal procedure (sentence) — murder — extenuating circumstances — influence of

alcohol may be extenuating.
The appellant was convicted of murder with actual intent and sentenced to death. The
trial court found that there were no extenuating circumstances as, even though the
appellant had consumed alcohol, he knew what he was doing when he deliberately killed
the deceased.
Held, that in considering the presence or absence of extenuating circumstances, the
relevant question for determination is whether or not the consumption of alcohol had any
effect on the appellant.
Held, further, that the influence of alcohol on the appellant’s behaviour was shown to be
sufficient for a finding of extenuating circumstances.
Held, accordingly, that the sentence of death be set aside and substituted by a sentence of
twenty years’ imprisonment with labour.
Cases cited:
S v Kamusewu 1988 (1) ZLR 182 (SC)
S v Chiradza AD-44-81 (not reported)
S v Chamunorwa & Ors S-137-86 (not reported)
S v Mangwende AD-170-78 (not reported)
J Moyo for the appellant
G A J Hooper for the respondent
EBRAHIM JA: The appellant was convicted of murder with actual intent to
Page 167 of 1991 (1) ZLR 166 (SC)
kill. The court found no extenuating circumstances and the appellant was sentenced to
death. Mr Moyo, who represented the appellant in this Court, has abandoned his appeal
against conviction but has persisted with his appeal against sentence.
[The learned Judge of Appeal outlined the facts and then continued:]
The Post Mortem Report was put in as evidence by consent, and this reveals that the
deceased died as a result of a stab wound to the heart, which led to haemorrhage and
shock. The doctor was of the view that a severe degree of force was used.
The learned trial judge and his assessors made favourable findings on the quality of the
witnesses called by the State. I can find no fault with these conclusions. The witnesses
not only corroborated each other on a number of material aspects but their evidence reads
well and the learned trial judge was impressed with their demeanour and the general
manner in which they gave their evidence. The witnesses do not appear to have been
shaken under cross-examination.
The appellant for his part gave evidence and called no witnesses.
[The learned Judge of Appeal outlined the appellant’s case and then continued:]
The trial judge analysed the appellant’s evidence with great care and found himself
unable to accept the appellant’s assertion that he had been struck by the deceased with a
stool. He found it improbable that this could have occurred and yet no-one witnessed the
incident. The appellant conceded that he had seen Edward Moyo at the beerdrink and yet
Edward Moyo never saw the appellant assaulted by the deceased. The owner of the
homestead where the beerdrink was held was never called as a defence witness to
confirm the appellant’s allegation that he had been assaulted and left unconscious. No
explanation for this failure was proffered.
[The learned Judge of Appeal dealt further with the evidence and continued:]
The learned trial judge, faced with this evidence of the appellant, preferred the
corroborated version of the State’s witnesses and concluded as follows:
“There is no doubt in our minds that the intention to kill was actual. The accused and
Fogus armed themselves with spears, weapons, the accused
Page 168 of 1991 (1) ZLR 166 (SC)
admits, whose only purpose is killing. When they went after the deceased and his
companions they had only one intention — to kill. Indeed they were heard threatening to
kill the deceased and his companions at the beerdrink and during the attack they were
also heard to shout that they intended to kill and that they wanted two dead bodies. The
way and the area the spear was plunged into the deceased’s body already indicates an
intention to kill. The spear was deliberately plunged 6 cm deep into the chest, a most
vulnerable part of the body.
We do not agree that the accused was at the time so drunk that he lost his faculties or that
he did not appreciate what he was doing. Although we accept that he had some drink in
him we accept the witnesses’ evidence that he knew what he was doing. The actions of
the accused after the beerdrink do not indicate that he did not know what he was doing.
On the way he was said to have taken part in trying to stop the quarrel. Thereafter, he
went home, armed himself and then followed the deceased and his companions. He then
ambushed them and then chased after them. These are not the actions of a person who
was so drunk as not to appreciate what he was doing.
All in all we are satisfied that the State has proved beyond reasonable doubt that the
accused committed murder. He is therefore found guilty of murder with actual intent.”
I am satisfied that this reasoning is entirely justified and it is therefore understandable
that Mr Moyo found himself unable to argue that the verdict of murder with an actual
intent to kill can be faulted.
Mr Moyo, however, did not abandon the appeal against sentence and submitted that the
trial court ought to have found that there were extenuating circumstances. Mr Hooper,
whilst submitting that the trial court was correct in its finding that there were no
extenuating circumstances, conceded that the learned trial judge had misdirected himself
in his interpretation of the ratio decidendi in the case of S v Kamusewu 1988 (1) ZLR
182.
The learned judge made the following observations in his findings on extenuating
circumstances:
“. . . I cannot, with the greatest of respect, reconcile the finding in Kamusewu v S, supra,
with a number of cases decided by the Supreme Court which cases appeared not to have
been taken into consideration in the Kamusewu case.”
Page 169 of 1991 (1) ZLR 166 (SC)
The learned judge than analysed in detail the cases of S v Chiradza AD-44-81 (not
reported), S v Chamunorwa & Ors S-137-86 (not reported), S v Mangwende AD-170-78
(not reported), and concluded:
“In conclusion I should state that I am inclined to follow the views expressed in the latter
cases that I have cited in that a court should not find extenuating circumstances where it
is found that the accused despite having taken alcohol knew what he was doing when he
deliberately killed the deceased. The accused knew what he was doing when he killed the
deceased even though he had consumed some alcohol.”
With respect to the learned trial judge, I am of the view that there is no difference in what
was said on the issue of extenuating circumstances in the Chiradza, Chamunorwa and
Mangwende cases if properly read, compared to what was said in the Kamusewu case.
The trial judge was wrong in how he interpreted these cases in comparison with the
Kamusewu case. They do not support what the learned Judge said in the passage I have
cited supra. In S v Kamusewu, supra McNally JA stated at 189A:
“The mindlessness and wanton brutality of his actions support the conclusion that what
the appellant did was done at a time when his normal inhibitions had been clouded by his
consumption of alcohol.”
The same ratio can be found in the cases of S v Chiradza and S v Chamunorwa, supra.
The relevant question which was required to be determined was what effect had the
consumption of alcohol been on the appellant. It is not always easy to separate the extent
of intoxication from the issue of intent, but the level of intoxication does not always as a
matter of course affect an offender’s mens rea. The consumption of alcohol is normally
considered as a factor to be taken into account when consideration is given to whether
extenuating circumstances exist or not unless an offender partakes of alcohol to boost his
courage.
In this case the learned trial judge failed to take into account a material mitigating feature
in assessing the issue of extenuating circumstances. He said in his findings on
extenuating circumstances: “. . . that a court should not find extenuating circumstances
where it is found that the accused despite having taken alcohol knew what he was doing
when he deliberately killed the deceased”. It is apparent that he confused the issue of
intent with the issue of mitigation, a different consideration altogether. For it would be
improper to hold that a person who deliberately and knowingly commits an offence
Page 170 of 1991 (1) ZLR 166 (SC)
cannot benefit from any mitigatory features which may exist in his conduct.
In assessing whether there were any extenuating circumstances in this case, the trial court
was required to consider the whole background of this case. The mitigating features have
to be balanced against the aggravating features and in particular on the facts of this case
the deliberate act to kill exhibited by the appellant. It does not necessarily follow that
because there are mitigating features extenuating circumstances have to be found. What
is required is that the mitigating features have to be balanced against the aggravating
features, and the judicial officer is then required to arrive at a moral judgment.
In the present case, most fortunately for the appellant, there is evidence that he had been
drinking long before the assault and had been doing so for almost a whole day. There is
evidence of a situation of unrest between the appellant and the deceased which continued
on the way home. There was the irrational behaviour of the appellant in assaulting the
deceased’s mother and the child she was carrying. His drinking at the very least appears
to have affected his inhibitions, that is, by lessening his inhibitions. His conduct towards
the deceased’s mother and the child she was carrying is so unreasonable that it can only
be attributed to his level of intoxication.
Against these features account must be taken of the fact that the appellant armed himself
with a spear, a dangerous weapon, with intent. He used severe force with a dangerous
weapon with a deliberate intent to kill. The stabbing was not spontaneous, as he ran from
the scene where he was quarrelling with the deceased and returned armed with a weapon
and stabbed the deceased. It was not a one man affair, as he arrived with Fogus to launch
the attack.
This is a borderline case but, weighing all the factors, the scale must come down in
favour of a finding of extenuating circumstances.
In my view, a proper finding is that the influence of alcohol on the appellant’s behaviour
was shown to be sufficient for a finding of extenuating circumstances. But, having said
that, there is little more to be said in his favour. This was a brutal killing and he deserves
a severe punishment.
I would enter a finding of extenuating circumstances, set aside the death sentence, and
substitute a sentence of twenty years’ imprisonment with labour. To that extent the appeal
succeeds.
Page 171 of 1991 (1) ZLR 166 (SC)
Gubbay CJ: I agree.
Korsah JA: I agree.
Calderwood, Bryce Hendrie & Partners, appellant’s legal practitioners
S v CHIBANDA
1991 (1) ZLR 172 (SC)
Division: Supreme Court, Harare sitting as Court Martial Appeal Court
Judges: McNally JA, Korsah JA & Ebrahim JA
Subject Area: Appeal from court martial
Date: 14 March & 7 May 1991

Appeal — courts martial — verdict of panel only to be interfered with where summary of
judge advocate misdirected or verdict ambiguous or wrong in law — Court Martial
Appeal Court — if conviction unaltered no interference with sentence.
Courts — courts martial — panel — in analogous position to that of jury — appeal —
verdict unassailable unless judge advocate misdirected in summing up or verdict
ambiguous or wrong in law — Court Martial Appeal Court — sentence must stand if
conviction unaltered.
Legislation — Defence Act [Chapter 94], s 87.
The decision of the panel of a court martial is, like the verdict of a jury, unassailable
unless the judge advocate was misdirected in his summing up or the verdict is ambiguous
or wrong in law. The Court Martial Appeal Court has no power to interfere with sentence
on appeal unless it has altered the conviction.
Cases cited:
S v Mutonhodza S-98-89 (not reported)
S v Steele 1972 (1) RLR 377 (A)
J Dondo for the appellant
A Guvava for the respondent
EBRAHIM JA: The appellant, a member of the Zimbabwe National Army,
Page 173 of 1991 (1) ZLR 172 (SC)
appeared before a court martial, constituted by a judge advocate and a panel of five
officers, charged with committing a foreign offence in contravention of s 39(1)(b) of the
First Schedule to the Defence Act [Chapter 94], it being alleged that he wrongfully and
unlawfully murdered a Mozambican woman in the Sofala Province of Mozambique on 16
July 1987.
After the summing-up of the judge advocate, the panel convicted the appellant of murder
with an actual intent but found that there were extenuating circumstances and sentenced
him to a period of thirty years’ imprisonment with labour.
Thereafter, the appellant addressed an appeal to the court, praying that his conviction by
the court martial be quashed and substituted with a verdict of culpable homicide and that
the sentence be set aside and substituted with a more lenient sentence.
Several features of the case against the appellant are common cause and are summarised
hereunder:
[The learned Judge of Appeal then analysed the evidence.]
Faced with this evidence it is not surprising therefore that the panel of officers
comprising the court martial determined this matter on the prosecution’s version of
events.
This is not the only difficulty faced by the appellant in this case. In the case of S v
Mutonhodza S-98-89, Korsah JA said:
“Proceedings at a court martial constituted by a judge advocate and a panel are akin to
proceedings before a judge and jury in the sense that the verdict returned is that of the
panel or the jury. That verdict is unassailable unless the judge advocate or judge can be
shown to have misdirected the panel or the jury in his summing up, or unless the verdict
is ambiguous or wrong in law.”
No attack has been levelled against the summing-up of the judge advocate. Indeed, I am
of the view that there is no basis for criticising his manner of summing-up. He appears to
have addressed the panel of officers in an entirely proper and objective manner. It was
not a ground of appeal that the judge advocate misdirected himself in his summing-up
and therefore the appellant’s appeal cannot succeed.
Page 174 of 1991 (1) ZLR 172 (SC)
[The learned Judge of Appeal then analysed the summing-up of the judge advocate.]
The verdict of the panel was amply supported by the evidence before it and was neither
vague nor wrong in law. The appellant had armed himself with an unauthorised weapon,
proceeded to the deceased’s residence at night, no doubt encouraged by the presence of
his companion, demanded money with threats, caused the man of the house to escape
from the scene and fired his lethal weapon, causing the death of the deceased. I,
therefore, can find no fault with the verdict of the panel.
The appellant also appealed against the severity of the sentence imposed on him,
submitting that the sentence is so excessive as to induce a sense of shock. We have
presided in this appeal as the Court Martial Appeal Court; see s 87 of the Defence Act
[Chapter 94]. Our powers as an Appeal Court in appeals emanating from a court martial
are regulated by s 90 of the Defence Act. From the provisions of this section is apparent
that, unless the Appeal Court interferes with the conviction by a court martial, it has no
power to alter the sentence imposed. There has been no interference with the conviction
in this case and we therefore cannot interfere with the sentence imposed on the appellant.
See S v Steele 1972 (2) RLR 377 (A).
It may be that this is a matter for consideration by the Law Development Commission.
In the result his appeal both against conviction and sentence is dismissed.
McNally JA: I agree.
Korsah JA: I agree.
P A Chinamasa, Manyika & Co, appellant’s legal practitioners
S v NYAJENA
1991 (1) ZLR 175 (SC)
Division: Supreme Court, Harare
Judges: Manyarara JA, Korsah JA & Ebrahim JA
Subject Area: Criminal appeal
Date: 7 March & 7 May 1991

Criminal procedure — plea of guilty — alteration of plea to one of not guilty.

Criminal Procedure and Evidence Act [Chapter 59] — s 255A — procedure in terms of
— discharge of onus.
Sentence — appropriateness of custodial sentence — effect of delay — factors arising
after commission of offence and after sentence — relevant of where delay is excessive.
Where an accused person, after verdict, seeks to withdraw his unequivocal plea of guilty,
he is required to show, on a balance of probabilities, that the plea was not voluntarily and
understandingly or correctly made.
Held, after analysing the evidence adduced on behalf of the appellant, that he had failed
to discharge the onus of showing that his plea of guilty was not made voluntarily.
Held, setting aside the custodial sentences imposed by the lower court, that while
reaffirming the principles laid down in cases such as S v Corbett 1990 (1) ZLR 205 (SC);
S v Ruzario 1990 (1) ZLR 359 (SC); S v Kundishora 1990 (2) ZLR 30 (SC), and S v
Badze 1990 (1) ZLR 369 (SC) on the issue of delay, that there were unique features in the
present case which warranted a departure from the principles laid down in these cases.
Such factors include inter alia that during the lengthy interval between the arraignment of
the appellant and the conclusion of the appeal the appellant had obtained an
undergraduate degree and was in the process of obtaining a Master’s degree and that
appellant had since the noting of his appeal pestered the Clerk of Court about the
preparation of his record
Page 176 of 1991 (1) ZLR 175 (SC)
with little success. Consequently the appeal court substituted monetary penalties for the
terms of imprisonment imposed by the trial court although in the opinion of the appeal
court such custodial sentences were appropriate.
Cases cited:
S v Onward Mudimu 1971 (1) RLR 172 (G); 1971 (4) SA 283 (R)
S v Haruperi 1984 (1) ZLR 258 (HC)
S v Maseko 1986 (2) ZLR 52 (SC); 1986 (4) SA 958 (ZS)
S v Corbett 1990 (1) ZLR 205 (SC)
S v Ruzario 1990 (1) ZLR 359 (SC)
S v Kundishora 1990 (2) ZLR 30 (SC)
S v Badze 1990 (1) ZLR 369 (SC)
E Chatikobo for the appellant
I Houston for the respondent
EBRAHIM JA: The appellant was on 16 June 1988 convicted of five counts of receiving
stolen property and one count of attempting to defeat or obstruct the course of justice. All
counts were treated as one for sentence and he was sentenced to thirty months’
imprisonment with labour, of which fifteen months was suspended for three years on
condition of good behaviour.
The appellant first appeared before the trial magistrate on 13 November 1986 and the
charges were put to him. He was represented by a legal practitioner, Mr Makonese. In
response to the charges the appellant pleaded guilty to all six counts. Mr Makonese then
made the following statement to the presiding magistrate:
“I appear for accused. The pleas in respect of six counts are in accordance with my
instructions. The statement of agreed facts has been read to the accused and he agreed
with the contents and nothing to add thereto (sic). I have also explained the essential
elements of all six charges and he understands the charges and pleads guilty to the
charges and may be found guilty on all six charges on his pleas.”
[The learned judge of appeal dealt with the facts and continued:]
After the appellant’s plea had been recorded and he had been found guilty, Mr Makonese
applied for a postponement to 3 December 1986, indicating that he wished to prepare an
address in mitigation of sentence on behalf of the
Page 177 of 1991 (1) ZLR 175 (SC)
appellant. The prosecutor did not oppose the application, as he wished to carry out a
check to determine whether the appellant had any previous convictions. The appellant’s
trial did not recommence until 8 January 1987. It is not clear from the record why the trial
did not resume on 3 December 1986.
On 8 January 1987 the appellant was no longer represented by Mr Makonese but on that
day Mr James represented him and made an application to have the pleas of guilty
recorded on behalf of the appellant altered to pleas of not guilty, in terms of s 255A of the
Criminal Procedure and Evidence Act [Chapter 59].
This section and its South African equivalent (s 113) has received judicial interpretation
in a number of cases in recent years: see S v Onward Mudimu 1971 (1) RLR 172 (G);
191 (4) SA 283 (R); S v Haruperi 1984 (1) ZLR 258 (HC); and S v Maseko 1986 (2)
ZLR 52 (SC); 1986 (4) SA 958 (ZS). It is apparent from these authorities that where an
accused person, after verdict, seeks to withdraw his unequivocal plea of guilty he is
required to show, on a balance of probabilities, that the plea was not voluntarily and
understandingly or correctly made; see S v Maseko, supra.
The appellant sought to discharge this onus by giving evidence himself and calling a
witness to support his allegations that he had been unduly influenced to plead guilty. In
addition a medical report by a doctor was produced to the court in an attempt to support
his assertion that he had been assaulted.
[The learned judge then analysed the evidence and concluded:]
Faced with this evidence the prosecutor declined to call any evidence in rebuttal. She had
tested the applicant’s evidence by cross-examining him at length and did the same with
Dube. At the end of the evidence led on behalf of the appellant she moved for a dismissal
of his application, holding the view that the appellant had failed to satisfy the onus which
rested on him. I am satisfied that she was entitled to approach the matter as she did. She
had satisfactorily established through cross-examination that the appellant and his witness
were not worthy of belief and that doctor’s evidence was at best of little value. The
magistrate accepted her submissions and dismissed the application to alter the pleas
tendered by the appellant.
It is my view that the magistrate was justified in doing so. The appellant had the benefit
of legal representation when the guilty pleas were tendered. He
Page 178 of 1991 (1) ZLR 175 (SC)
is obviously a man of some sophistication. It is inconceivable that he would have
tendered pleas of guilty when he was innocent just because he had received threats or had
been assaulted by the police. The appellant failed to discharge the onus upon him, and the
magistrate was therefore correct in refusing his application.
The appeal against the refusal of the magistrate to set aside the pleas of guilty therefore
fails.
The appellant also lodged an appeal against sentence. The overall effect of the sentence is
not excessive and, had it not been for the fact that there are a number of very special
features which have arisen since the sentence was imposed on him, I would not have
interfered with the sentence imposed. There are, however, very special circumstances in
this case, unique circumstances in fact, which justify the interference with the sentence
imposed.
The court has, in a number of recent cases, dealt with the issue of delay; see S v Corbett
1990 (1) ZLR 205 (SC); S v Ruzario 1990 (1) ZLR 359 (SC); S v Kundishora 1990 (2)
ZLR 30 (SC); and S v Badze 1990 (1) ZLR 369 (SC). In S v Kundishora, supra, Gubbay
ACJ (as he then was) said:
“. . . this was a case in which the appellant was blatantly guilty. He put up a thoroughly
dishonest defence and one which had no prospect of success. If he had confessed his guilt
when the fraud first came to light, thereby saving the State valuable time and effort, I feel
sure he would have been dealt with far more expeditiously. I do not wish to be taken to
imply that in all cases where an accused is convicted upon a plea of not guilty, he cannot
effectively complain about the State’s delay in bringing him to trial, because he ought to
have admitted his guilt at the outset. What I am saying is that where it must have been
appreciated that there is no defence to the crime charged, yet notwithstanding the
offender denies its commission, it seems to me illogical, and prejudicial to the interests of
justice, to allow him to rely on an ensuing delay, largely brought about by his own
dishonest approach to the charge, so as to avoid the imposition of a deserved custodial
sentence. If this were so, there would be some advantage to persons who had committed
crimes which normally attract prison sentences, and who were not being held in custody,
to deny guilt in the hope that a delay in bringing them to trial would ensure that they were
not sent to goal.”
In a more recent judgment Gubbay ACJ (as he then was), whilst commenting
Page 179 of 1991 (1) ZLR 175 (SC)
on his dictum referred to above in the Badze case, supra, made the following observation:
“The appellant’s situation is analagous. She noted an appeal in what was a hopeless case
rather than accept her punishment and put the whole matter behind her. Any prolonged
mental anguish which she has suffered flowed from that decision. To allow her at this
stage to rely on the subsequent procedural delay to avoid a merited period of
incarceration, would amount to a failure of justice. As a precedent, it would give rise to
the danger of encouraging convicted persons to note frivolous and vexatious appeals in
the knowledge that (provided they were able to secure admission to bail) any undue delay
in obtaining determination of their case on appeal would ensure that ultimately they were
not deprived of their liberty.”
I fully endorse the views of the learned Chief Justice and would reaffirm this court’s
approach, in these terms, when dealing with the issue of delay.
The appellant was unassailably guilty of the offences charged and the sentence imposed
on him was eminently appropriate, being beyond any meaningful challenge. But there are
very special and unique circumstances to this case, factors which I doubt will be repeated
again. Factors which in my view justify the interference with the sentence imposed.
The five counts of receiving stolen property were committed in 1983 and the appellant
was only arrested in connexion with these offences in 1986. The fact that he managed to
evade justice for all those years is not in itself a feature which would warrant interference
with an appropriate sentence imposed on him. There are, however, other features which
require consideration.
The appellant was brought before the trial court in November 1986 and pleaded guilty to
all the counts he was charged with. On 8 January 1987 he attempted to have his pleas of
guilty altered to pleas of not guilty. An inquiry was commenced but this was not finalised
until 16 June 1988, a period of almost eighteen months. The record does not reveal what
caused the delay in finalising the application to withdraw his pleas of guilty.
He was sentenced on 16 June 1988 and four days later he lodged an appeal against
conviction and sentence. His legal practitioner wrote twelve letters from 11 November
1988 to 8 August 1990, attempting to secure a copy of the record of the proceedings of
the appellant’s trial, and finally he received a
Page 180 of 1991 (1) ZLR 175 (SC)
copy of the required record. The appeal was heard in this court on 7 March 1991, a period
of two years and eight months after the completion of the trial in the magistrate’s court. I
would indicate, however, that the Registrar of this court allocated a date of hearing as
soon as he received the record.
In the intervening period, the appellant has attained a Bachelor of Science Economics
Honours Degree (Lower Second Division) from the University of Zimbabwe. In effect
the appellant, despite having been convicted on 16 June 1988, pursued his studies and
obtained a degree whilst awaiting his fate for his transgressions of 1983.
By the time the appeal finally reached this court the appellant was a registered graduate
student with Leeds University in England, where he is currently pursuing a Masters
Degree.
Eight years have therefore elapsed from the time the appellant committed five of the
offences to the time this appeal was heard in this court. After he was sentenced every
effort was made by his legal practitioner to have his appeal prosecuted. In the mean time
he has rehabilitated himself by obtaining an undergraduate degree and is currently
pursuing a graduate degree. In other words he has striven to make himself a useful
member of society. It seems to me that no useful purpose could be served by
incarcerating him.
It is against the background of these facts that I am satisfied that it would be proper to set
aside the custodial sentence imposed on the appellant and substitute a fine and a
suspended term of imprisonment:
Counts 1 to 5, the counts relating to the receiving of stolen property, are taken as one for
the purposes of sentence. The appellant is fined $4 500 or, in default of payment, five
months’ imprisonment with labour. In addition he is sentenced to a period of twenty-four
months’ imprisonment with labour, of which twelve months is suspended for three years
on condition that the accused does not commit any offence involving dishonesty during
that period, for which he is sentenced to imprisonment without the option of a fine.
A further period of twelve months is suspended on condition that he repays, through the
Clerk of the Court, Masvingo, by 30 June 1991, the following amounts: $2 588 to the
CMED, Masvingo; and $2 272 to Colbro Tyres, Masvingo.
Page 181 of 1991 (1) ZLR 175 (SC)
On Count 6 he is sentenced to pay a fine of $500 or, in default of payment, one month’s
imprisonment with labour.
He is to pay the total fine by 31 June 1991.
Manyarara JA: I agree.
Korsah JA: I agree.
James, Moyo-Majwabu & Nyoni, appellant’s legal practitioners
MUZANENHAMO & ANOR v KATANGA & ORS
1991 (1) ZLR 182 (SC)
Division: Supreme Court, Harare
Judges: McNally JA, Korsah JA & Ebrahim JA
Subject Area: Civil appeal
Date: 11 March & 8 May 1991

Husband and wife — whether a wife’s proprietary rights under s 7 Matrimonial Causes
Act 1985 preclude the husband from disposing of matrimonial property pending divorce
— rights of third parties who purchase such property — rights of a wife to occupation of
the home due to her status as a wife.
Spoliation order — whether such an order operates to preclude the transfer of immovable
property, possession of which has thereby been secured.
After the separation of first and second respondents, being respectively husband and wife,
but before second respondent instituted divorce proceedings, first respondent sold the
immovable property owned by him in Harare to the appellants. The sale having been
frustrated by second respondent’s refusal to permit the building society inspector access
to the premises, first respondent forcibly ejected the wife therefrom. Second respondent
having thereafter obtained a spoliation order restoring possession of the home to her,
appellants applied to the High Court on notice of motion seeking to enforce the sale to
them. First respondent tendered payment of half the proceeds of the sale to second
respondent. The High Court having refused this application on the grounds inter alia that
second respondent had an interest in the property under s 7 of the Matrimonial Causes
Act 1985 which interest was the subject of the dispute between the first and second
respondents in the pending divorce action and also that the Registrar of Deeds, fourth
respondent, had been correct in refusing to register transfer of the property because of the
existence of the spoliation order. On appeal,
Page 183 of 1991 (1) ZLR 182 (SC)
Held, that the right of a wife to remain in occupation (based on a claim under s 7 of the
Matrimonial Causes Act 1985) as against her husband depends upon the exercise of
purely discretionary remedies but that the rights as between the spouses are personal inter
se and do not affect third parties, regardless of whether the latter are aware of the dispute.
Held, further, that a wife cannot prevent her husband from disposing of assets unless he is
thereby attempting to defeat her just rights and that the second respondent had not shown
any equitable consideration which warranted intervention on her behalf by the court.
Held, further, that a wife’s right of occupation due to her status as a wife is essentially a
matter of equity and the courts will intervene where, for example, the husband disposes
of the home as a policy of harassment arising our of the divorce proceedings.
Held, further however, that even if the husband is the defaulting party he may eject the
wife from the matrimonial home provided he offers her suitable alternative
accommodation.
Held, further, that the existence of the spoliation order, relating as it did only to
possession of the home, did not preclude transfer of the property to the appellants and, as
they were not party to the spoliation proceedings, was no bar to a claim by them for
second respondent’s ejectment.
Cases cited:
National Provincial Bank Ltd v Ainsworth [1965] 2 All ER 472; [1965] AC 1175 (HL)
Chhokar v Chhokar 1984 FLR 313
Jackson v Jackson [1971] 3 All ER 774 (CA)
Cattle Breeders Farm (Pvt) Ltd v Veldman (2) 1973 (2) RLR 261 (A); 1974 (1) SA 163
(RA)
Owen v Owen 1968 (1) SA 480 (E)
G S Wernberg for the appellants
H Simpson for the second respondent
McNALLY JA: This is a dispute about a house (Stand 964 Kambuzuma). The real
contest is between the Muzanenhamos, who have bought the house from Mr Katanga,
and Mrs R C Katanga, his wife, who refuses to move out of the house. She is estranged
from her husband. He is only too anxious to sell and transfer the house. She claims her
husband has a duty to provide her with accommodation. She says Stand 964 Kambuzuma
is the matrimonial residence. She has made a claim to that residence in the matrimonial
proceedings, which seem to be moving at a very leisurely pace since summons was
issued in July 1988.
Page 184 of 1991 (1) ZLR 182 (SC)
The relevant sequence of events is as follows. Mr Katanga bought the house under Deed
of Transfer 5300/80 dated 24 September 1980. In December 1984 he was transferred to
Mutare. He acquired a home there. His wife joined him in June 1985, but there was
discord and she came back to Harare. She says he evicted her. She returned to Stand 964
and lived there.
In early 1987 Mr Katanga sold Stand 964 to the Muzanenhamos. But when the Building
Society Inspector came to value the property Mrs Katanga would not let him inspect it.
So the bond application fell away, the sale fell through and the estate agent returned the
Muzanenhamo’s deposit of $9 500.
In September 1987 Mr Katanga and the Muzanenhamos renegotiated. They made a new
agreement. They knew Mrs Katanga would object and prevent the Building Society
Inspector from valuating the property. So they tried to force her out. They instituted
magistrates court proceedings for eviction. She entered appearance to defend. They
withdrew the action. Then Mr Katanga, with the knowledge of the Muzanenhamos,
forcibly evicted her.
Mrs Katanga’s response was to obtain a spoliation order against her husband from the
High Court on 16 December 1987. The court ordered that possession of the immovable
property at number 964, section 3, Kambuzuma, Harare be restored to the petitioner
permanently. Mr Katanga sought rescission of that order unsuccessfully in 1988, and it is
said there is an appeal pending to this court.
However that appeal is not now before us. We are concerned with an appeal from another
High Court application made by the Muzanenhamos in September 1988. They sought
relief on two levels. First they sought a declaration that Stand 964 had been sold to them
by Mr Katanga and an order compelling Mr Katanga to transfer the stand to them.
Secondly they sought to evict her and to delete the word “permanently” from the order of
16 December 1987.
In fact Mr Katanga had tried to transfer the stand to the Muzanenhamos, but the Registrar
of Deeds had considered himself obliged to refuse to register the transfer. He treated the
spoliation order as a caveat. However he abides by the judgment of this court.
The application was refused by the High Court. It is that decision which is now before us.
Mr Wernberg, who appeared for the appellants, summed up their case in his general
submissions as follows:
Page 185 of 1991 (1) ZLR 182 (SC)
“It is respectfully submitted that the learned judge a quo erred in the following respects:
A. In finding that it was unnecessary for him to decide whether the Fourth
Respondent was correct in refusing to register the transfer of the property in question and
in assuming that he was correct in so holding;
B. In holding that the Appellants’ motion was not brought against the Fourth
Respondent in this respect. (It was. The Fourth Respondent is the Registrar of Deeds).
C. In holding that Second Respondent was entitled to resist Appellants’
motion compelling transfer, ostensibly on the basis of her claim to an interest in the
property in question.”
Perhaps one can begin by reminding oneself that ownership and possession are two
different things. A landlord owns, a tenant possesses. Possession by the tenant does not
prevent the landlord from selling. The purchaser may take ownership subject to the lease.
Ownership and possession may reside in two different people simultaneously. I
appreciate that the wife is not a tenant. But her position is closer to that of tenant than to
that of owner.
It is important therefore to determine the nature of Mrs Katanga’s right in the property.
She does not claim ownership. She claims two things. First, a right of occupation based
on the spoliation order and alternatively on her right as a wife to occupy the matrimonial
home. Second, a right to claim transfer of the stand to herself in the division of
matrimonial assets on divorce, by virtue of the provision of s 7 of the Matrimonial Causes
Act, 33 of 1985.
Her right of occupation based on the spoliation order is a personal right against Mr
Katanga. He was the other party in those proceedings. The Muzanenhamos were not. So
it seems to me there are three questions to be answered in connection with her occupation
of the stand:
1. Can the Muzanenhamos evict her in the face of the spoliation order?
2. Can the Muzanenhamos evict her in the fact of her claim to a right of
occupation as a wife?
3. Can the Muzanenhamos evict her or claim transfer to themselves in the
face of her claim, in the matrimonial proceedings, to transfer of the house into her name?
Page 186 of 1991 (1) ZLR 182 (SC)
The first question was not dealt with in argument before us. Certainly it seems clear that
the order of 16 December 1987 (the spoliation order) is not before us by way of appeal.
We cannot interfere with it. Particularly we cannot, as requested, delete the word
“permanently” from the order then made, however anomalous that word may be.
On the other hand there is no doubt that the spoliation order regulates rights as between
Mr and Mrs Katanga. It is not an order binding as against the Muzanenhamos, who were
not parties to that action. It gives Mrs Katanga no more than a personal right as against
her husband.
It may be argued that the Muzanenhamos were aware of the dispute between the
Katangas and knew that she would resist the sale of the house to them and any attempt to
evict her. I accept that this is true, but I do not see any basis for saying that in
consequence the spoliation order is binding on them.
Lord Upjohn made this point very firmly in National Provincial Bank Ltd v Ainsworth
[1965] 2 All ER 472; [1965] AC 1175 (HL) at 485G when he said:
“The right of the wife to remain in occupation even as against her deserting husband is
incapable of precise definition; it depends so much on all the circumstances of the case,
on the exercise of purely discretionary remedies, and the right to remain may change
overnight by the act or behaviour of either spouse. So, as a matter of broad principle, I am
of the opinion that the rights of husband and wife must be regarded as purely personal
inter se and that these rights as a matter of law do not affect third parties.”
He made it clear that this applied whether or not the third party was aware of the dispute.
I conclude therefore that if the other problems can be overcome, the mere existence of the
spoliation order is no bar to an order of eviction in favour of the Muzanenhamos.
No justice will, on the face of it, be done to her by allowing the transfer to go through.
And since her attempt to stop the transfer is based on equity alone, a finding that equity is
satisfied if the transfer to the Muzanenhamos takes place is fatal to her cause. It might
have been different if he had been attempting to defeat her claim for relief in the
matrimonial proceedings. But I do not believe that a wife can raise such a claim just
because the husband
Page 187 of 1991 (1) ZLR 182 (SC)
is disposing of an asset. There must be some evidence that he is disposing of the asset “at
undervalue to a scoundrel, the accomplice of the husband” (Chhokar v Chhokar 1984
FLR 313), or that in some way he is attempting to defeat her just rights. In England,
under their far more complex and comprehensive legislation, the test is “Am I satisfied
that the disposition was made with the intention of defeating the wife’s claim for
financial relief?” If the answer is “no” as it must be here, the court will not stop the
disposition. See generally Rayden & Jackson on Divorce Vol I, 15 ed pp 886-7 and the
Noter-up to page 887.
I conclude therefore that Mrs Katanga has not shown any equitable consideration which
would or should cause the court to intervene on her behalf to stop the prima facie lawful
wish of Mr Katanga to sell his property to the Muzanenhamos.
Once it is accepted that there is no equitable basis for denying the husband’s prima facie
right to transfer the property registered in his own name, the other questions resolve
themselves relatively simply.
There can be no proper basis for the Registrar of Deeds to regard the ruling of 16
December 1987 as a ruling to ownership. It is a ruling only in relation to possession or
occupation and a ruling only as between Mrs Katanga and Mr Katanga. The interdict
does not prohibit transfer either expressly or by necessary implication. The Registrar has,
as I have said, made a report in which he simply notes that on the issuing of the rule nisi
which led to the order of 16 December 1987 “an examiners caveat was noted pending
determination of the case”. He makes no further submissions and concludes “I have no
objection to the application (by the Muzanenhamos) and I would abide by the findings of
this Honourable Court”.
I turn secondly to consider whether she may have a right of occupation arising from her
status as a wife. This is always a difficult problem for the courts to solve. See for
example Jackson v Jackson [1971] 3 All ER 774 (CA); Cattle Breeders Farm (Pvt) Ltd v
Veldman (2) 1973 (2) RLR 261 (A) and Owen v Owen 1968 (1) SA 480 (E).
It is essentially a matter of equity. The courts will intervene where, for instance, the
husband sells the house as part of a policy of harassment arising out of divorce
proceedings. Here that is not the case. He had been transferred to Mutare and had
acquired a property there. He sought to sell the Harare property long before the divorce
proceedings began. As the then Chief
Page 188 of 1991 (1) ZLR 182 (SC)
Justice said in the Cattle Breeders case, supra, at 267E:
“A long line of cases seem to have laid down the proposition that even if the husband
may be the defaulting party, he may eject the wife from the matrimonial home, provided
he offers her suitable alternative accommodation or offers her the means of acquiring
such suitable accommodation.”
Here the husband has offered her half the net proceeds of the house if the sale and
transfer is allowed to go through and if she vacates the property. I do not see this as a
case where equitable considerations demand that she be allowed to stay on in occupation
of the stand.
The final question for us to decide is whether she can prevent transfer of the property into
the name of the Muzanenhamos?
It seems to me that her claim to stop transfer because of the possibility that she might
succeed in obtaining transfer herself as a result of the divorce proceedings, is a shadowy
claim indeed. The power of the court under s 7 of the Matrimonial Causes Act is a
discretionary and equitable power. Stand 964 is not “the matrimonial home”. That home
was established in Mutare after the husband was transferred there and she joined him.
She claims he drove her out, but nonetheless, the Mutare property had become the
matrimonial home. Stand 964 is no more than a property of Mr Katanga in the proceeds
of which she has a potential interest. But it is, as Mr Wernberg puts it, an interest in the
nature of a mere spes, a hope. And as I have noted Mr Katanga has undertaken to let her
have half the net proceeds on sale (provided she yields vacant possession). That seems to
me to satisfy the criterion of equity.
I can see no basis on which the Registrar can properly refuse to register the transfer. It
seems to me with respect that the learned judge should have decided that issue in favour
of the Muzanenhamos.
Accordingly it seems to me that the appellants must succeed in this appeal, and are
entitled to the relief they seek, except for the order that would delete the word
“permanently” from an order which is not before us.
In the premises the appeal is allowed with costs against the second respondent, and the
order of the court a quo is amended to read: There will be an order in terms of the draft
annexure L, save that the word “permanently” is
Page 189 of 1991 (1) ZLR 182 (SC)
deleted from the penultimate paragraph and the final paragraph is amended so as to
provide that the second respondent pays the applicants’ costs.
Korsah JA: I agree.
Ebrahim JA: I agree.
A J A Peck, appellant’s legal practitioner
TRANSPORT AND CRANE HIRE (PVT) LTD v HUBERT DAVIES & CO (PVT)
LTD
1991 (1) ZLR 190 (SC)
Division: Supreme Court, Harare
Judges: McNally JA, Korsah JA & Ebrahim JA
Subject Area: Civil appeal
Date: 25 January & 8 May 1991

Contract — exemption and limitation clauses — interpretation — fundamental breach.

The appellant purchased a Foden truck which the respondent had assembled. After
travelling 43 730 km, the steering column of the truck was found to have been improperly
assembled by the respondent, causing it to come apart and cause the truck to veer off the
road and overturn. The appellant sued for damages based on the negligence of the
respondent. In the High Court, it was held that the respondent had acted negligently, but
that it could avoid liability by virtue of an exemption clause in the written contract
between the parties. The appellant appealed against the finding that the exemption clause
applied.
Held, (per Korsah JA) the breach of contract was a fundamental breach, and the
exemption clause could not exempt the respondent from liability for such fundamental
breach.
Held, (per McNally JA) the negligent assembly of the steering column was not an act
intended to be covered by the exemption clause, properly construed, based on a policy
approach to interpretation of such clauses in a contract.
Cases cited:
Bristow v Lycett 1971 (2) RLR 206 (A); 1971 (4) SA 223 (RA)
Swart & Anor v Cape Fabrix (Pty) Ltd 1979 (1) SA 195 (A)
Agricultural Supply Association v Olivier 1952 (2) SA 661 (T)
Page 191 of 1991 (1) ZLR 190 (SC)
Cardboard Packing Utilities (Pty) Ltd v Edblo Transvaal Ltd 1960 (3) SA 178 (W)
Minister of Education v Stuttaford & Co (Rhodesia) (Pvt) Ltd 1980 (4) SA 517 (Z)
Smith & Ors v South Wales Switchgear Ltd [1978] 1 All ER 18 (HL)
Canada Steamship Lines Ltd v Regem [1952] AC 192; [1952] 1 All ER 305 (PC)
Hall-Thermotank Natal (Pty) Ltd v Hardman 1968 (4) SA 818 (D)
UGS Finance Ltd v National Mortgage Bank of Greece and National Bank of Greece SA
[1964] 1 Lloyd’s Rep 446 (CA)
Suisse Atlantique Société D’Armement Maritime SA v NV Rottherdamsche Kolen
Centrale [1966] 2 All ER 61 (HL); [1967] 1 AC 361
Cap Palos, The [1921] P 458; [1921] All ER Rep 249 (CA)
George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd [1983] QB 284; [1983] 1 All
ER 108 (CA); [1983] 2 AC 803; [1983] 2 All ER 737 (HL)
Blower v van Noorden 1909 TS 890
Liverpool City Council v Irwin [1976] QB 319; [1975] 3 All ER 658 (CA)
Zimnat Insurance Co Ltd v Chawanda 1990 (2) ZLR 143 (SC); 1991 (2) SA 825 (ZS)
Kroonstad Westelike Boere Ko-operatiewe Vereniging Bpk v Botha & Anor 1964 (3) SA
561 (A)
Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd 1977 (3) SA 670 (A)
Gannet Manufacturing Co (Pty) Ltd v Postaflex (Pty) Ltd 1981 (3) SA 216 (C)
Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd & Anor [1983] 1 All ER 101 (HL)
Alderslade v Hendon Laundry Ltd [1945] KB 189; [1945] 1 All ER 244 (CA)
Cotton Marketing Board of Zimbabwe v National Railways of Zimbabwe 1988 (1) ZLR
304 (SC); 1990 (1) SA 582 (ZS)
SA Railways and Harbours v Lyle Shipping Co Ltd 1958 (3) SA 416 (A)
Government of the Republic of South Africa v Fibre Spinners & Weavers (Pty) Ltd 1978
(2) SA 794 (A)
A P de Bourbon SC for the appellant
J B Colegrave for the respondent
KORSAH JA: This appeal is from a decision of the High Court, Harare,
Page 192 of 1991 (1) ZLR 190 (SC)
dismissing the appellant’s claim for damages against the respondent. The appellant, as
plaintiff, claimed from the respondent, as defendant, in an action before that court:
“1. Payment of the sum of $138 883,12 being damages sustained by plaintiff
as a result of defendant’s negligence in assembling the steering mechanism of a Foden
Truck Registration Number 405-552 Q purchased by plaintiff from defendant in or about
February 1983;
2. Interest a tempore morae.
3. Costs of Suit.”
The background to this action is that in or around February 1983 the appellant bought
from the respondent a Foden Truck assembled by the respondent.
On 19 September 1983, while the Foden Truck was being drive by an employee of the
appellant on the road between Beitbridge and Bulawayo it veered off the road, overturned
and caught fire. It was a total write-off. It was common cause that the Foden Truck left
the road because the driver lost the use of the steering. The loss of the steering was due to
improper assembling of the steering column, which caused the down-shaft top section of
the steering column to separate from the universal joint into which it should have been
fitted and secured by a pinch-bolt. The down-shaft top section has an annular groove into
which the pinch-bolt should fit and then be tightened. If this is done the steering column
will not separate.
It was common cause that, immediately prior to the accident, the pinch-bolt was fitted
into the universal joint, but the down-shaft top section was not pushed all the way into the
yoke of the universal joint, and because of this the pinch-bolt did not fit into the annular
groove. The down-shaft top section rested on top of the pinch-bolt.
At the time of the accident the Foden Truck had travelled a distance of 43 730 kilometres
and had been in service with the appellant for seven months. The respondent had given a
guarantee against defects in relation to the Foden Truck until it had travelled 75 000
kilometres or been in service for a period of nine months.
The respondent maintained that it initially assembled the steering column properly, but
that it was subsequently misassembled by the appellant during
Page 193 of 1991 (1) ZLR 190 (SC)
repairs, service or modification of the Foden Truck. It was maintained by the respondent
in the alternative that if it assembled the steering column incorrectly the appellant,
through its employees during the lubrication or service it performed on the vehicle, was
at all material times aware that the steering column was incorrectly assembled and it was
accordingly unsafe and dangerous to drive the Foden Truck and that, in spite of
knowledge of the unsafe condition of the steering column, the appellant deliberately and
voluntarily took the risk of driving the Foden Truck and thus contributed to the damage
sustained.
The respondent maintained further in the alternative that if the improper assembly of the
steering column was the responsibility of the respondent, then the respondent’s liability is
excluded in terms of an exclusionary clause contained in a paragraph entitled
“GUARANTEE” incorporated in a letter dated 11 November 1982, written by the
respondent to the appellant.
The learned trial judge rightly summed up the issues for determination as follows:
“(a) Was the steering column misassembled or incorrectly assembled? Was it
incorrectly assembled by the defendant at the time of the original assembly or by the
plaintiff subsequent to the original assembly?
(b) If the incorrect assembly of the steering column was by the defendant
during the original assembly did the plaintiff become aware of the misassembly or did
(its) failure to notice it amount to contributory negligence?
(c) If the incorrect assembly of the steering was by the defendant did it
contract out of liability for such incorrect assembly of the steering column?”
After an incisive analysis of the evidence placed before him, the learned trial judge
concluded that the respondent was at fault for the original improper assembly of the
steering column. He reasoned thus:
“If the defendant correctly assembled the steering column who then misassembled it, one
might ask. In my view it is highly improbable that the plaintiff’s employees did this on
the one or two occasions that they serviced the vehicle. Service of a vehicle involves
lubrication, greasing and change of filters. It does not involve adjustment of the steering
Page 194 of 1991 (1) ZLR 190 (SC)
column. Indeed the Foden Truck was still under guarantee and if there were problems
with the steering one would have expected the vehicle to be taken to the defendant for
repair at no cost to the plaintiff.
I am therefore satisfied by the evidence before me that, on a balance of probabilities, it
was the defendant that incorrectly assembled the steering column of the Foden Truck. I
have come to this conclusion because Mr Popiel’s report shows that the Foden Truck
could have travelled 43 000 kilometres with an incorrectly assembled steering column. I
find Mr Thompson’s evidence to the contrary unreliable. The witness marks at the bottom
and splines of the down-shaft were probably caused by tests carried out post accident. It
is highly improbable that plaintiff’s employees would interfere with a correctly
assembled steering column during service of the Foden Truck. If anything they would
have had reason to interfere with the steering column if it had been incorrectly assembled
by the defendant. The finding of another Foden Truck in the defendant’s workshop with a
similarly incorrectly assembled steering column has also influenced me in coming to this
conclusion.
I am also satisfied that the service of the Foden Truck was done by plaintiff’s employees
who were of a very low level of mechanical skill. These employees were not sufficiently
skilled to be able to appreciate that the steering column was incorrectly assembled even if
they had seen the offending universal joint during service. I am not satisfied that they saw
the offending universal joint during servicing of the Foden Truck as it was likely to have
been covered. On this basis the defendant’s further defence of the plaintiff’s negligence
being the proximate cause of the accident and the plaintiff’s contributory negligence
fails.”
This reasoning by which the learned trial judge dealt with the first two issues and
concluded that the respondent was responsible for the misassembly of the steering
column of the Foden Truck is unexceptionable. He considered the whole of the evidence
placed before him and found, on a balance of probabilities, that the incorrect assembly
occurred at the respondent’s factory.
Notwithstanding the finding that the incorrect assembly of the steering column, which
was the proximate cause of the accident, was the result of negligence of the respondent’s
employees, the learned trial judge held that the respondent was protected from liability by
virtue of the letter of 11 November 1982 and, in particular, that portion under the heading
“GUARANTEE”. The relevant passage reads:
Page 195 of 1991 (1) ZLR 190 (SC)
“The Company hereby guarantees with a period of nine months or 75 000 km of delivery,
at its option, either to repair or to replace any part which may prove to be defective
through bad material or workmanship. This guarantee is in lieu of any guarantee implied
in law and in substitution of any other liability on the part of the Company in respect of
any other materials referred to, or of the work undertaken by the Company in the Tender.
Liability for direct or consequential loss of whatsoever nature or howsoever arising is
expressly excluded. The customer shall be liable for the labour, transport and other costs
incurred by the Company in connection with any repair or replacement effected in
accordance with the provisions of this clause.” (Emphasis supplied.)
At common law, the right of a contracting party to claim damages for a breach of contract
may be excluded by the express terms of the contract, provided that the language
employed to do so is plain. Even liability for negligence may be excluded if words are
used which sufficiently indicate that the parties intended, in the context of the agreement,
that such should be the case.
It was accepted by Mr de Bourbon and Mr Colegrave that such an exemption or
exclusionary clause must not be taken out of context, but read as part of the contract as a
whole. In Bristow v Lycett 1971 (2) RLR 206 (A) at 221G-H; 1971 (4) SA 223 (RA) at
236 Beadle CJ acknowledged that:
“The exemption clause is, after all, nothing more than a clause in a contract. There is no
special magic to an exemption clause in this case. Its meaning must be ascertained in the
same way as any other clause in a contract, by ascertaining what the parties must have
intended to cover and bearing in mind the rules applicable to implied or tacit contracts.”
Rumpff CJ also observed in Swart & Anor v Cape Fabrix (Pty) Ltd 1979 (1) SA 195 (A)
at 202 (translation) that:
“What must naturally be accepted is that, when the meaning of words in a contract have
to be determined, they cannot possibly be cut out and posted on a clean sheet of paper
and then considered with a view to then determining the meaning thereof. It is self-
evident that a person must look at the words used having regard to the nature and purpose
of the contract, and also at the context of the words in the contract as a whole.”
Mr Colegrave, however contended that if the language of an exclusionary clause is
sufficiently clear, then a court of law must give effect to it. He cited
Page 196 of 1991 (1) ZLR 190 (SC)
in support of this contention Agricultural Supply Association v Olivier 1952 (2) SA 661
(T) per Steyn J at p 665C and Cardboard Packing Utilities (Pty) Ltd v Edblo Transvaal
Ltd 1960 (3) SA 178 (W) at 179. I am in entire agreement with Mr Colegrave that if the
words of an exclusionary clause are sufficiently clear then effect must be given to them
by a court of law. But are the words of the exclusionary clause in the instant case so clear
that they call for instant application without regard being had to other parts of the
contract?
Mr de Bourbon submitted that the exclusionary clause does not assist the respondent
because:
“(a) the loss did not fall within the terms of the exemption clause; and/or
(b) the breach of contract was so fundamental as to go to the root of the
contract, and the terms of the contract did not cover such a breach.”
Mr de Bourbon argued that the exclusionary clause forms part of the general guarantee
given by the respondent, and must be interpreted as being part and parcel of that
guarantee, and not of general application. If I understood him correctly then what he
means is that the exclusionary clause is operational only when the guarantee can be
invoked and cannot exist in isolation.
The guarantee was limited to a period of nine months or 75 000 kilometres. It was made
applicable to “any part which may prove to be defective through bad material or
workmanship” and the obligation of the respondent was to repair or replace such a part.
In the present case, so Mr de Bourbon contended, the appellant had no knowledge of the
fact that a part was defective and had no right to invoke the guarantee until it had such
knowledge. But the total write-off of the vehicle occurred before the appellant had that
knowledge.
It seems to me that there is merit in this argument; for if the guarantee could not operate
to cover a situation in which the appellant would not reasonably be aware of the defective
part or workmanship, then the exclusionary clause, which forms part of that guarantee
and cannot be read in isolation, is equally inoperable.
Mr Colegrave, on the other hand, contended that this approach, of necessity, involves
reading words into the exemption clause which are not there; and that this cannot be
done. He argued that the words “. . . of whatsoever nature
Page 197 of 1991 (1) ZLR 190 (SC)
or howsoever arising . . .” could hardly be wider in their import or their ambit, and that by
the use of such words any liability is excluded. For support of this submission he relied
on the dictum by Squires J in Minister of Education v Stuttaford & Co (Rhodesia) (Pvt)
Ltd 1980 (4) SA 517 (Z) at 523E-H, that:
“. . . there is ample judicial authority to the effect that the word ‘any’ is of wide and even
indefinite connotation, and ordinarily means ‘of whatever kind’. Conversely, it excludes
limitation when it is used adjectivally as qualifying words like ‘loss’ or ‘damage’. In
Hayne & Co v Kaffrarian Steam Mill Co Ltd 1914 AD 363 at 371, for example, Innes JA
said:
‘In its natural and ordinary sense, “any” — unless restricted by the context — is an
indefinite term which includes all of the things to which it relates.’
Applying that to the words of this provision, ‘any loss’ thus ordinarily means loss of
whatever kind.
I am bound to say, in considering such a clause, therefore, that I can see nothing which
limits the ambit of the losses here contemplated so as to exclude a loss caused by
negligence. It is true that it is not unknown for clauses to add additional words such as ‘of
whatever kind’ or ‘howsoever caused’, or terminology of a similar kind. These are said to
have an additional effect but, in reading some of the cases in which such language
appears, they seem to be added ex abundanti cautela. ‘Any loss’ must mean any kind of
loss, and this must connote however it is caused. This would therefore include loss which
resulted from negligence.”
With respect, the Stuttaford case, supra, is distinguishable from the present case. Squires
J was there dealing with an averages clause limiting the liability of the carrier. He found
that the defendant’s servants were guilty of ordinary negligence and not such negligence
as affected the very root of the contract so as to entitle the plaintiff to a repudiation of the
contract. It is contended by Mr de Bourbon, that the breach was so fundamental as to go
to the very root of the contract, and the terms of the exemption clause did not cover such
a breach.
In England the guide-lines that are applicable in interpreting clauses which purport to
exempt one party to a contract from liability, and which I find illuminating, were re-
stated in summary form in the speech of Lord Fraser of Tullybelton in Smith & Ors v
South Wales Switchgear Ltd [1978] 1 All ER 18 (HL) at 25d-g as follows (quoting from
the speech of Lord Morton
Page 198 of 1991 (1) ZLR 190 (SC)
of Henryton in Canada Steamship Lines Ltd v Regem [1952] AC 192; [1952] 1 All ER
305 (PC) at 310:
“(i) If the clause contains language which expressly exempts the person in whose favour
it is made (hereafter called ‘the proferens’) from the consequence of negligence of his
own servants, effect must be given to that provision. . . . (ii) If there is no express
reference to negligence, the court must consider whether the words used are wide
enough, in their ordinary meaning, to cover negligence on the part of the servants of the
proferens. If a doubt arises at this point, it must be resolved against the proferens. . . . (iii)
If the words used are wide enough for the above purpose, the court must then consider
whether ‘the head of damage may be based on some ground other than that of
negligence’, to quote again Lord Greene MR in the Alderslade case. The ‘other ground’
must not be so fanciful or remote that the proferens cannot be supposed to have desired
protection against it, but subject to this qualification, which is, no doubt, to be implied
from Lord Greene’s words, the existence of a possible head of damage other than that of
negligence is fatal to the proferens even if the words used are, prima facie, wide enough
to cover negligence on the part of his servants.”
The words “Liability for direct or consequential loss of whatsoever nature or howsoever
arising is expressly excluded” certainly do not appear to be wide enough to satisfy the
first test because there is no clear and unmistakable reference to negligence or to a
synonym for it. However, insofar as the words of the exemption clause do not make
express reference to negligence the Court has to consider whether the words, in their
ordinary meaning, are wide enough to cover negligence on the part of the servants of the
respondent. That is the second test. Of course, the words “. . . of whatsoever nature or
howsoever arising . . .” are wide enough to cover negligence on the part of the
respondent’s servants. However, the intention of the parties must be gathered from the
entire wording of the clause, and in construing the clause other parts of the contract
which throw light on the meaning to be assigned to the words cannot be overlooked.
The first part of the clause recites that:
“The Company hereby guarantees within a period of nine months or 75 000 km of
delivery, at its option, either to repair or replace any part which may prove to be defective
through bad material or workmanship.”
Page 199 of 1991 (1) ZLR 190 (SC)
The first part of the clause obviously gives the appellant a right to demand that the
respondent repairs or replaces a part which proves defective, either because the material
used was bad or the workmanship was not up to standard.
If the exclusionary clause, which recites that “Liability for direct or consequential loss of
whatsoever nature or howsoever arising is expressly excluded” is interpreted to cover
negligence then it takes away with one hand the guarantee offered with the other. The
result would be to say that if, during the period covered by the guarantee, any loss is
suffered by the appellant as a result of any part being defective through the use of bad
material or workmanship, of which the appellant could not with due diligence have been
aware, the proferens is not invoked if the appellant was aware of a defect due to the use
of bad material or workmanship. This presupposes actual knowledge on the part of the
appellant. How else could the guarantee be invoked?
Reading the guarantee together with the exclusionary clause, it seems to me that it was
not the intention of the parties that during the currency of the guarantee the proferens
would be excluded from liability for a breach of a condition which goes to the very root
of the contract and for which, with the exercise of all due diligence on the part of the
purchaser, the purchaser could not reasonably have become aware.
The question is: Was it in the contemplation of the parties, as reasonable men, that the
appellant was accepting the risk of misassembly of a vital component of the vehicle? No-
one could doubt that the purchaser of a vehicle would not normally accept the risk of
receiving a vehicle with an essential component, such as a steering column, incorrectly
assembled, any more than the purchaser of a pistol would accept the risk that the gun he
purchases will propel the bullet towards him when he pulls the trigger, rather than
towards the object of his aim. I think breaches of this nature constitute fundamental
breaches because they constitute performance which is useless for its intended purpose.
While accepting that there is no rule of law to the effect that an exemption clause would
not avail a party who has committed a fundamental breach of contract, Henning J, after
indicating that an exclusionary clause must be construed in the light of the provisions of
the contract as a whole, remarked in Hall-Thermotank Natal (Pty) Ltd v Hardman 1968
(4) SA 818 (D) at 835F-G that:
Page 200 of 1991 (1) ZLR 190 (SC)
“In spite of the emphatic language of the exemption clause in this case it appears to me
that the parties could hardly have intended that the plaintiff would be exonerated from
liability if it failed to perform its obligations at all, or if its performance proved useless,
or if it committed a breach going to the root of the contract. After all the parties must
have had in mind that both of them would carry out the terms of the contract. It is most
unlikely that they contemplated that the plaintiff would be excused from the consequence
of a fundamental breach. The clause is in my view to be construed as affording limited
protection to the plaintiff against faults or imperfections in the product of its labours,
which is otherwise substantially in accordance with the contract.”
In the Hall-Thermotank case, supra, as in the instant case, the proferens guaranteed the
“equipment” for a stated period “from the date of starting up thereof” against defective
workmanship and material, and undertook to replace or repair free of charge any part
failing due to such causes. The clause expressly limited the liability of the proferens to
such replacements and repair, and provided that the liability of the proferens was not to
extend to any consequential loss and/or damage due to any cause or causes whatsoever.
In the interpretation of the exemption clause, we are not dealing with a task more esoteric
than applying the ordinary canons of construction to the provisions of the contract. It is
essential to ascertain whether such a clause, having regard to the intentions of the parties,
to be gathered from the contract as a whole, can be interpreted to cover fundamental
breach. As Pearson LJ observed in UGS Finance Ltd v National Mortgage Bank of
Greece and National Bank of Greece SA [1964] 1 Lloyd’s Rep 446 (CA) at 453:
“As to the question of ‘fundamental breach’, I think there is a rule of construction that
normally an exception or exclusion clause or similar provision in a contract should be
construed as not applying to a situation created by a fundamental breach of the contract.
This is not an independent rule of law imposed by the Court on the parties willy-nilly in
disregard of their contractual intention. On the contrary it is a rule of construction based
on the presumed intention of the contracting parties. It involves the implication of a term
to give to the contract that business efficacy which the parties as reasonable men must
have intended it to have. This rule of construction is not new in principle but it has
become prominent in recent years in consequence of the tendency to have standard forms
of contract containing exceptions clause drawn in extravagantly wide terms, which
produce absurd results if applied literally.” (Emphasis added.)
Page 201 of 1991 (1) ZLR 190 (SC)
Similar views were succinctly expressed by Lord Reid in Suisse Atlantique Société
D’Armement Maritime SA v NV Rottherdamsche Kolen Centrale [1966] 2 All ER 61 at
71 -F; [1967] 1 AC 361 (HL) at 398 thus:
“As a matter of construction, it may appear that the terms of the exclusion clause are not
wide enough to cover the kind of breach which has been committed. Such clauses must
be construed strictly and, if ambiguous, the narrower meaning will be taken. Or it may
appear that the terms of the clause are so wide that they cannot be applied literally; that
may be because this would lead to an absurdity, or because it would defeat the main
object of the contract or perhaps for other reasons.”
This is a far cry from saying that a contractor may not make a valid contract that he is not
to be liable for any failure to perform his contract, including even wilful default; but he
must use very clear words to express that purpose. See The Cap Palos [1921] P 458 at
471; [1921] All ER Rep 249 (CA) at 254 per Atkin LJ.
In my view, to interpret the exclusionary clause as the respondent contends would mean
that, upon the total write-off of the Foden Truck as a result of the misassembly of the
steering column by the respondent, all the appellant would be entitled to, if at all, is a
steering column properly assembled. This is the absurdity which all the authorities cited,
in the absence of clear and unambiguous words to the contrary, seek to avoid.
Where on a proper construction of the exclusionary clause, it is found to have no
application to the loss sustained by the innocent party, nor to the claim brought by such
innocent party subsequent to such loss, then each party is entitled to treat such
fundamental breach as a repudiation, bring the contract to an end and sue for damages.
Then, as Lord Reid commented in the Suisse Atlantique case, supra, at p 71 (All ER) and
398 (AC):
“Then the whole contract has ceased to exist, including the exclusion clause, and I do not
see how that clause can then be used to exclude an action for loss which will be suffered
by an innocent party after it has ceased to exist . . .”
In my view, upon a proper interpretation of the contract, the breach of contract was so
fundamental as to go to the root of the contract, and the terms of the exclusionary clause
did not cover such a breach.
Page 202 of 1991 (1) ZLR 190 (SC)
Accordingly, the appeal is allowed and the order of the High Court dismissing the
appellant’s claim and awarding costs to the respondent is hereby set aside and substituted
with the following:
“(1) Judgment is granted in favour of the plaintiff in the agreed sum of
damages of $105 366,50;
(2) Interest a tempore morae from 9 November 1988; and
(3) Costs of suit.”
In addition the appellant is awarded the costs of this appeal.
McNALLY JA: I have had the advantage of reading the judgment of my brother,
Korsah. I am in full agreement with his conclusion that the exemption clause does not
operate to indemnify the respondent in this case. I am equally in agreement with him, and
with the learned judge in the court a quo, that the accident which resulted in the tragic
death of the driver and the total destruction of the vehicle was due to the negligent
assembling of the steering column of the vehicle by the respondent. This led to the
steering column collapsing and the vehicle crashing out of control.
I do not propose to elaborate further on the factual conclusions, but I would like to set out
my reasoning on the effect of the exclusion clause.
THE GENERAL EFFECT OF EXCLUSION CLAUSES
This exclusion clause is in a form generally similar to many such clauses. It masquerades
as a guarantee, but in fact takes away a great deal more than it gives.
As long ago as 1956 Professor Hahlo, in an article in (1956) 73 SALJ 443, set out as an
example a typical motor car “warranty”. He comments at 443-4:
“The ‘warranty’ is beautifully printed, there is an impressive seal on it, and the very word
‘warranty’ inspires confidence. It is safe to assume that the average buyer is pleased
when he receives it, thinking that something valuable has been given to him. In truth he
would be far better off if there were no warranty. So far from giving him rights which he
would otherwise not have, the ‘warranty’ cuts down on practically every right which our
common law gives to a buyer of a defective article.”
Page 203 of 1991 (1) ZLR 190 (SC)
He goes on to give a number of instances, one of which is:
“Thirdly there can never be a claim for consequential damages. If the buyer crashes on
the way home from the salesroom because there is a defect in the steering mechanism, he
has no action against the seller except for the replacement of the defective part.”
THE COURT’S REACTION TO SUCH CLAUSES
The courts, primarily in England but followed in South Africa and Zimbabwe, were
hostile to these exemption clauses. Their attitude is expressed, as only he can do it, by
Lord Denning in George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd [1983] QB
284 at 296-7; [1983] 1 All ER 108 (CA) at 113-4. The decision was approved on appeal
in [1983] 2 AC 803; [1983] 2 All ER 737 (HL) and Lord Denning’s reasoning was
specifically approved in the speech of Lord Diplock. This is what Lord Denning said:
“None of you nowadays will remember the trouble we had, when I was called to the Bar,
with exemption clauses. They were printed in small print on the back of tickets and order
forms and invoices. They were contained in catalogues for timetables. They were held to
be binding on any person who took them without objection. No one ever did object. He
never read them or knew what was in them. No matter how unreasonable they were, he
was bound. All this was done in the name of ‘freedom of contract’. But the freedom was
all on the side of the big concern which had the use of the printing press . . . It was a
bleak winter for our law of contract . . . Faced with this abuse of power, the strong against
the weak, by the use of the small print of the conditions, the judges did what they could to
put a curb on it. They still had before them the idol, ‘freedom of contract’. They still knelt
down and worshipped it, but they concealed under their cloaks a secret weapon. They
used it to stab the idol in the back. This weapon was called ‘the true construction of the
contract’. They used it with great skill and ingenuity. They used it so as to depart from
the natural meaning of the words of the exemption clause and to put on them a strained
and unnatural construction. In case after case, they said that the words were not strong
enough to give the big concern exemption from liability, or that in the circumstances the
big concern was not entitled to rely on the exemption clause . . . But when the clause was
itself reasonable and gave rise to a reasonable result, the judges upheld it, at any rate
when the clause did not exclude liability entirely but only limited it to a reasonable
amount.”
Page 204 of 1991 (1) ZLR 190 (SC)
Lord Denning then went on to deal with the effect of legislative intervention:
“In 1969 there was a change of climate. Out of winter into spring. It came with the first
report of the Law Commission on Exemption Clauses in Contracts, . . . which was
implemented in the Supply of Goods (Implied Terms) Act 1973. In 1975 there was a
further change. Out of spring into summer. It came with their second report on
Exemption Clauses . . . which was implemented by the Unfair Contract Terms Act 1977.”
These legislative interventions introduced the concept of reasonableness. The courts were
authorised to determine whether an exemption clause was reasonable or not. It was no
longer necessary to put “strained” interpretations on such clauses.
In South Africa there has been limited intervention by the Legislature and in Zimbabwe
none at all except for the provisions of ss 7 and 11 of the Hire-Purchase Act [Chapter
284]. These do not concern us in the present case. We therefore still rely on what Lord
Denning calls “strained and unnatural constructions.”
It must be said that Lord Denning’s admission was made only in 1983, long after the
intervention of Parliament had made those “strained and unnatural constructions”
unnecessary. Prior to that the courts had always protested that they were indeed looking
for the true meaning of the contract.
I do not think we should pretend that the court’s approach to the interpretation of
exemption clauses is based on a search for the “true meaning”. I think we must accept
that we are dealing with what I would call “policy-based interpretation”. The cases in
England and South Africa and Zimbabwe show, to my mind quite clearly, that the courts
interpret exemption clauses in a way which can only be described as artificial. A great
deal of ingenuity is expended in trying to show that these artificial interpretations are in
fact true and natural interpretations. I do not think the effort is worth the candle. It is the
old story of the courts claiming that they do not make law but only interpret it. That is not
so. See Blower v van Noorden 1909 TS 890 at 905; Liverpool City Council v Irwin
[1976] QB 319 at 332; [1975] 3 All ER 658 (CA) at 666; Zimnat Insurance Co Ltd v
Chawanda 1990 (2) ZLR 143 (SC); 1991 (2) SA 825 (ZS) in fine.
I say this because later in this judgment I will refer to cases whose approach to the
interpretation of exemption clauses cannot, to my mind, be defended
Page 205 of 1991 (1) ZLR 190 (SC)
on the grounds of grammar or logic. They are “policy-based interpretations”. They are
well-established in the law. I agree with them. But I do not defend them on the basis that
they interpret language truly and naturally. They can only be defended on the ground that
they are accepted and established policy-based interpretations.
THE EXEMPTION CLAUSE IN THIS CASE
I propose to consider it in four parts, and to ignore the last sentence which is of no
importance. The first part is the so-called ‘guarantee’:
“The Company hereby guarantees within a period of nine months or 75 000 km of
delivery, at its option, either to repair or to replace any part which may prove to be
defective through bad material or workmanship.”
The company, of course, is only an assembly company. It does not manufacture the parts,
which are mostly imported from abroad. So it will seldom if ever be the fault of the
company if a part turns out to be defective “through bad material or workmanship”. Yet
in our law a “merchant seller” may, in a proper case, be held liable for latent defects of
which he was not aware and for which he was not to blame. This form of strict liability
(another policy-based decision) was first clearly enunciated in Kroonstad Westelike
Boere Ko-operatiewe Vereniging Bpk v Botha & Anor 1964 (3) SA 561 (A) at 571H and
is now well-established. See Holmdene Brickworks (Pty) Ltd v Roberts Construction Co
Ltd 1977 (3) SA 670 (A) and Gannet Manufacturing Co (Pty) Ltd v Postaflex (Pty) Ltd
1981 (3) SA 216 (C).
So this undertaking may well have been implied in the contract even had it not been
expressed. Nor is it a very extensive commitment.
The next part of the clause follows:
“This guarantee is in lieu of any guarantee implied in law, and in substitution of any other
liability on the part of the company in respect of (the) goods and materials referred
to . . . ”
This makes it clear that the assembler repudiates any further liability in respect of the
“goods and materials referred to” (ie the parts). In other words it is contracting out of
liability for consequential damage caused by latent defects in the parts, for which it might
otherwise be liable in terms of the strict liability principle set out in the Kroonstad case,
supra.
Page 206 of 1991 (1) ZLR 190 (SC)
This part of the clause may be described as a limitation clause rather than an exclusion
clause properly so called. For the significance of this distinction I refer to the speech of
Lord Frazer of Tullybelton in Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd &
Anor [1983] 1 All ER 101 (HL) at 105h to 106a. It is certainly arguable, bearing in mind
that the assembler has agreed to repair or replace defective parts, and that he is not really
in a position to know whether or not they are defective since he is not the manufacturer,
that this limitation on his liability is reasonable.
The third part of the guarantee/exemption clause necessitates a repetition of some of the
words already cited in order that it can be properly understood. It reads:
“This guarantee is in lieu of any guarantee implied in law, and in substitution of any other
liability on the part of the company in respect of [and here follow the important words]
the work undertaken by the company in the tender.”
This introduces an entirely new concept. It is one thing for the assembler to contract out
of his absolute liability for defects in the manufacture of parts which he has not himself
manufactured. He has at least offered some quid pro quo in the form of an undertaking to
replace or repair such parts. But here he is attempting to contract out of any responsibility
for his own work. This is a true exemption clause, not merely a limitation clause.
“Clauses of limitation are not regarded by the courts with the same hostility as clauses of
exclusion” as Lord Wilberforce said in the Ailsa Craig case, supra, at 102-103.
These words are slipped in, one might say almost surreptitiously, at the end of a clause,
which might otherwise not be unreasonable. Unfortunately no attention was paid to these
words in the argument before us. Yet without them the next following words would have
little significance.
The next following words are these:
“Liability for direct or consequential loss of whatsoever nature or howsoever arising is
expressly excluded.”
Without the crucial clause to which I have referred, these words would clearly refer only
to the assembler’s responsibility for the sins of the manufacturer. They would merely
reinforce the assembler’s repudiation of
Page 207 of 1991 (1) ZLR 190 (SC)
liability for direct or consequential loss of whatsoever nature or howsoever arising in
respect of defective parts supplied by the manufacturer.
But because the crucial clause has been included, the contention is that the assembler is
not to be held liable for his own negligence in assembling parts which were not defective
in any way. It was only because the parts were assembled negligently by the assembling
company’s employees that the accident took place and the damage was suffered.
HOW DO THE COURTS INTERPRET SUCH A CLAUSE?
The short answer is “very restrictively”. In order to understand how restrictively, we must
look at the cases. And in looking at the cases, we must bear in mind what I said earlier,
namely that the courts’ method of interpretation is a policy-based method. It is not
necessarily grammatically logical. The way in which the courts interpret words in an
exemption case is different from the way they interpret similar words in other clauses.
The first case on which I rely is Alderslade v Hendon Laundry Ltd [1945] KB 189;
[1945] 1 All ER 244 (CA) at 245 in which Lord Greene MR said this:
“. . . where the head of damage . . . is one which rests on negligence and nothing else, the
clause must be construed as extending to that head of damage, because if it were not so
construed it would lack subject-matter. Where, on the other hand, the head of damage
may be based on some ground other than that of negligence, the general principle is that
the clause must be confined to loss occurring through that other cause to the exclusion of
loss arising through negligence. The reason for that is that if a contracting party wishes in
such a case to limit his liability in respect of negligence, he must do so in clear terms, and
in the absence of such clear terms the clause is to be construed as relating to a different
kind of liability and not to liability based on negligence.”
This passage was expressly approved by Dumbutshena CJ in Cotton Marketing Board of
Zimbabwe v National Railways of Zimbabwe 1988 (1) ZLR 304 (SC) at 319-320; 1990
(1) SA 582 (ZS) at 594.
The next case on which I rely is one cited by Korsah JA in his judgment. It is Canada
Steamship Lines Ltd v Regem, supra. At p 310 Lord Morton of Henryton said this:
“(i) If the clause contains language which expressly exempts the person
Page 208 of 1991 (1) ZLR 190 (SC)
in whose favour it is made (hereafter called the proferens) from the
consequence of negligence of his own servants, effect must be given to that provision . . .
(ii) If there is no express reference to negligence, the court must consider
whether the words used are wide enough, in their ordinary meaning, to cover negligence
on the part of the servants of the proferens. If a doubt arises at this point it must be
resolved against the proferens . . .
(iii) If the words used are wide enough for the above purpose, the court must
then consider whether the . . . ‘head or damage may be based on some ground other than
that of negligence’ to quote again Lord Greene MR in the Alderslade case. The ‘other
ground’ must not be so fanciful or remote that the proferens cannot be supposed to have
desired protection against it, but subject to this qualification, which is, no doubt, to be
implied from Lord Greene’s words, the existence of a possible head of damage other than
that of negligence is fatal to the proferens even if the words used are, prima facie, wide
enough to cover negligence on the part of his servants.”
These last words “even if . . .” are the clearest indication of what I have called “policy-
based interpretation” in the case of exemption clauses.
Next I refer to a Roman-Dutch decision, also approved in the Cotton Marketing Board
judgment, supra. It is the judgment of Steyn CJ in SA Railways and Harbours v Lyle
Shipping Co Ltd 1958 (3) SA 416 (A) at 419C-E. The Chief Justice said this:
“The rule to be applied in construing an exemption of this nature appears from Essa v
Divaris 1947 (1) SA 753 (AD) at p 756. Generally speaking, where in law the liability for
the damages which the clause purports to eliminate, can rest upon negligence only, the
exemption must be read to exclude liability for negligence, for otherwise it would be
deprived of all effect: but where in law such liability could be based on some ground
other than negligence, it is excluded only to the extent to which it may be so based, and
not where it is founded on negligence.”
Finally I rely upon the words of Dumbutshena CJ in the Cotton Marketing Board case,
supra, where after referring with approval to the cases I have cited, he said (at 325C):
Page 209 of 1991 (1) ZLR 190 (SC)
“In my opinion, for this exemption clause to exclude liability arising from negligence,
there must be express reference to negligence. I do not believe that the words are wide
enough, in their ordinary meaning, to cover negligence on the part of the servant of the
respondent. And if the words are wide enough to cover negligence, I believe the had of
damage may be based on some ground other than that of negligence.”
HOW DO WE APPLY THIS “POLICY BASED” METHOD OF INTERPRETATION
TO THE EXEMPTION CLAUSE IN THIS CASE?
I propose to follow the three-stage inquiry set out by Lord Morton in the Canada
Steamship Lines case, supra.
Clearly the exemption clause does not expressly refer to negligence. That answers the
first point. Clearly the words used are wide enough, in their ordinary meaning, to cover
negligence on the part of the servants of the proferens. In this connection I adopt and
accept the reasoning of Squires J in Minister of Education v Stuttaford & Co (Rhodesia)
(Pvt) Ltd, supra, at 523E-H, that “any loss” must include loss arising from negligence.
See also the speech of Lord Frazer of Tullybelton in the Ailsa Craig case, supra 15 107g.
But that is not the end of the matter. We have to answer the third question, which
introduces the “policy-based interpretation”. I repeat that question:
“If the words used are wide enough for the above purpose, the court must then consider
whether the head of damage may be based on some ground other than negligence.”
In my view there is clearly at least one other ground, which is neither fanciful nor remote.
It is the ground of the strict liability of the merchant seller, which arises regardless of
negligence. Late delivery might be another ground. Accordingly I would interpret the
exemption clause as applying to those grounds, and not to that of negligence. It follows
that the respondent has not discharged the onus of satisfying the court that his negligence
is covered by the exemption clause. (See Chitty on Contracts: General Principles, 26 ed
para 956.)
It seems to me, in conclusion, that if a party to a contract wishes to exempt himself from
liability for his own negligence, he should say so in so many words, unless the context
indicates that the exemption clause relates only to negligence. Ideally, he should add
words to the effect that the other party
Page 210 of 1991 (1) ZLR 190 (SC)
should take out insurance to cover any possible risk of loss from the negligence of the
proferens. This is what happened in the case of Government of the Republic of South
Africa v Fibre Spinners & Weavers (Pty) Ltd 1978 (2) SA 794 (A). In that case the court
was satisfied that the exemption clause did not exclude the liability of the proferens for
its own negligence. A major, if not the major, factor in that decision was that it was
convenient for both parties, and expressly agreed, that the defendant (who was in the
position of the respondent in this case) would insure the goods at an agreed rate. The
agreement to insure was a satisfactory quid pro quo for the exemption.
There was no reference to insurance in the present case, except for a passing reference to
the fact that the appellants had insurers. One does not know whether the respondents
were insured for product liability.
For the reasons I have given I would agree, with respect, with the order proposed by
Korsah JA. I note that the figure of damages is an agreed figure, intended to put the
appellant in the position it would have been in had the contract been fulfilled. In other
words it was a figure based on a contractual rather than delictual damages.
Ebrahim JA: I agree.
Atherstone & Cook, appellant’s legal practitioners
Granger & Harvey, respondent’s legal practitioners
S v NICOLLE
1991 (1) ZLR 211 (SC)
Division: Supreme Court, Harare
Judges: McNally JA, Korsah JA & Ebrahim JA
Subject Area: Criminal appeal
Date: 26 March & 13 May 1991

Criminal law — private defence — search of suspected poacher — use of force to

overcome resistance justifiable both in defence of self and in defence of property.
Criminal procedure — search — landowner’s powers of search and seizure over poacher
— entitled to use reasonable force to overcome resistance — State outline —
discrepancies between outline and evidence of State witness — adverse inference against
witness in absence of explanation.
Evidence — accused — evidence not to be rejected merely for reason of it being
exculpatory — complainant — tendency to exaggerate wrong not to be overlooked.
Interpretation of statutes — implied powers — where implication necessary.
Legislation — Parks and Wild Life Act 1975, s 86(1) — Criminal Procedure and
Evidence Act [Chapter 59], s 136(4a).
The appellant had been convicted of an assault upon a poacher on land of which he was
the appropriate authority. The evidence of the poacher diverged in material respects from
the outline of the State case. The effect of the outline was such as to corroborate the
appellant’s defence that the assault was an instance of the application of justifiable force
to overcome the poacher’s unlawful resistance to a lawful search and seizure and was in
addition the use of reasonable force in defence of property, the poached fish.
Held, the appropriate authority over land is entitled to use reasonable force to overcome
unlawful resistance to a lawful search.
Page 212 of 1991 (1) ZLR 211 (SC)
Held, a landowner is entitled to use reasonable force in defence of his property in order to
recover from a poacher fish which have been unlawfully caught.
Cases cited:
S v Seda 1980 ZLR 109 (G)
R v Sene 1964 RLR 559 (A); 1965 (2) SA 144 (RA)
S v Reed 1971 (1) RLR 315 (A); 1972 (2) SA 34
Tribal Trust Land Development Corporation Ltd v Cone Textiles (Pvt) Ltd 1978 RLR
365 (G); 1978 (4) SA 659 (R)
Ex parte Minister of Justice In re: S v van Wyk 1967 (1) SA 488 (A)
S v Smart 1971 (1) RLR 256 (A)
M J Gillespie for the appellant
A Guvava for the respondent
KORSAH JA: The appellant was convicted of assault common and sentenced to pay a
fine of $80 or, in default of payment, serve a period of forty days’ imprisonment with
labour. He appeals against both conviction and sentence.
The incidents giving rise to the charges levelled against the appellant, though relatively
simple, raise some interesting legal issues.
Around 8 am on 20 November 989, Alice Potera, the complainant, went to the Blanket
Dam at Gwanda in the company of Esinath Mpofu to fish. The appellant is a director of
Sondela Mpofu (Pvt) Ltd, the company which owns Blanket Farm and upon which the
dam in question is situate. At about 11.45 am the appellant arrived at the dam and found
the two women fishing in the dam. Paragraphs 6 to 11 of the “Outline of State case” read
as follows:
 “6. After the accused had arrested the complainant and her sister for fishing
illegally he then took their rods, broke them and threw them into the water.
7. The accused went on to grab the bag that contained fish which Alice was
holding. Alice resisted and the accused persisted.
8. Thereafter the accused grabbed Alice by the shoulders, pushed her
towards the water and as she neared the water Alice pushed the accused away. Then the
accused kicked Alice once in the right abdomen with his booted foot.
Page 213 of 1991 (1) ZLR 211 (SC)
9. Alice cried out and advised the accused that he had hurt her and thereafter
the accused went away.
10. Alice did not sustain injury.
11. The assault was unlawful.”
The evidence in support of the State’s allegations which was given by the complainant
and corroborated by Esinath Mpofu was that they had been told not to fish at Sheet Dam,
but of Blanket Dam they knew of no such injunction. They said after the appellant had
broken their fishing tackles and thrown them into the water, he took a paper bag
containing sandals and threw that as well into the water. Then he grabbed the
complainant around the shoulders and commenced pushing her towards the water. After
the complainant had retreated some steps, she realised that she had been pushed too close
to the water and so she shoved the complainant back, and the complainant then kicked
her on her right lower abdomen. She screamed in pain and told the appellant that he had
injured her and that he had hurt her where she had undergone an operation The appellant
called her a liar and told her that if she and her companion remained at the dam site he
would set the dogs on them. After which, the appellant collected the bags containing the
fish from the water, where the complainant and Esinath had placed them, and took them
away with him.
The evidence of the State witnesses was therefore distinctly at variance with the
allegations contained in the outline of the State case, that it was during the struggle
between the complainant and the appellant for possession of the bag of fish that the
appellant kicked the complainant in the region of her lower abdomen.
The appellant both in his defence outline and in evidence said that he grabbed hold of the
bag containing fish, but the complainant resisted his efforts to prise it from her, and that
he then applied his right foot as a lever to the left side of the complainant’s abdomen in
order to prise the bag from her and succeeded in so obtaining possession of the bag of
fish, which he disposed of by throwing into the water before departing.
Subsection (4a) of s 163 of the Criminal Procedure and Evidence Act [Chapter 59] which
provides that:
“In a trial before a magistrate, if the accused pleads not guilty or a plea of not guilty is
entered in terms of section one hundred and sixty-six:
(a) the Prosecutor shall make a statement outlining the nature of his case and the
material facts on which he relies;”
Page 214 of 1991 (1) ZLR 211 (SC)
places an onus on the prosecution to outline the evidence on which it intends to rely in
proof of the charge levelled against the accused and the contents of such a statement
constitute a part of the prosecution’s case against the accused.
Subsection (4b) of s 163 places a similar burden on an accused person to make a
statement outlining the nature of his defence, although in his case he can exercise his
right to remain silent subject of course to the limitation placed thereon. Commenting on
the importance of the part played by the respective outlines of cases in a criminal trial
Squires J said in S v Seda 1980 ZLR 109 (G) at 110H-111A:
“They perform a similar function to the pleadings in a civil trial, and serve not only to
identify what may be in issue between the State and the accused, but to advise each of the
substance of the matters that are in issue, with the obvious advantages this affords of
avoiding delay in completing the trial. In addition, it must always be appreciated that just
as any significant and unexplained departure by the accused in his evidence from the
outline of the defence which he makes, may be a matter for comment or even adverse
conclusions, so does such a consequence affect what is said by the State witnesses.”
While citing the above dictum of Squires J with approval, I hasten to point out that
whereas the outline of defence is prepared from what the accused person tells counsel,
and is tendered in evidence with his approval, the outline of State case is not prepared on
the instructions of the complainant and is certainly not approved by the complainant
before it is tendered in evidence, and does not constitute part of the complainant’s
testimony. I would suggest that the reason for drawing an adverse conclusion when the
outline of State case is seriously at variance with the evidence of the prosecution
witnesses is that because of the conflict between the two a doubt is raised as to whether
the State witnesses are being truthful. Such a conflict may easily be explained by the
production of the complainant’s statement to the police. But if this is not done, so long as
that conflict is unresolved at the end of the hearing, the benefit of the doubt must be
accorded to the accused; for it would not be possible to say that the State has proved the
case which it undertook from the onset to prove, and has therefore proved its case beyond
a reasonable doubt.
Mr Gillespie contended, rightly in my view, that two very important assertions in the
State outline, favourable to the appellant, were contradicted without explanation. These
were that (a) the complainant held the bag of fish,
Page 215 of 1991 (1) ZLR 211 (SC)
and (b) the complainant resisted its seizure. The learned trial magistrate did not apply his
mind to these serious discrepancies between the outline of State case and the evidence.
He did not demand an explanation and none was proffered by the prosecutor. The learned
trial magistrate accepted without explanation the evidence of the prosecution witnesses,
which was at variance with the outline of State case, and rejected, without adequate
foundation, the appellant’s defence which was, in part, supported by the outline of State
case.
The learned trial magistrate reasoned thus:
“It appeared to this court that the accused only employed this explanation of him levering
his foot against the complainant so as to lessen his moral blameworthiness and make the
incident seem trivial. Considering the accused’s aggression that he employed the very
moment that he got to the complainant and her sister this court finds that in fact the
accused first pushed the complainant towards the water and when she pushed him back
he then kicked her in the abdomen.”
It is apparent from the foregoing that the learned trial magistrate rejected the appellant’s
account of the incident merely because he thought it was calculated to diminish the
appellant’s culpability, and for no other reason. Beadle CJ cautioned in R v Sene 1964
RLR 559 (A) at 560D-E that:
“This was not a proper approach to the appellant’s evidence. An accused’s evidence
should not be rejected out of hand simply because he was the only witness who was
likely to gain anything by giving false evidence. On this approach, other things being
equal, whenever there is a conflict between the police and an accused person, the
evidence of police ought to be accepted and the evidence of the accused rejected,
because, in all cases where accused gives evidence protesting his innocence, he has
something to gain, whereas the police can hardly be said to have a similar cogent
motive.”
Mr Gillespie submitted that by rejecting the evidence of the appellant in preference to
that of the prosecution witnesses, on the basis that the appellant wanted to lessen his
moral blameworthiness, the learned trial magistrate had “discarded that ancient humanity
and wisdom that cautions one that a person feeling aggrieved is at least as likely to
exaggerate any wrong perceived by himself as may be the wrongdoer in minimising his
fault”. The appellant had deprived them of their catch.
Page 216 of 1991 (1) ZLR 211 (SC)
Having regard to the unexplained material discrepancies between the outline of State case
and the evidence adduced by the prosecution, and the fact that the outline of State case
was, in part, corroborative of that portion of the appellant’s evidence which was at
variance with the testimony of the prosecution witnesses, the learned trial magistrate
should have found that the prosecution had not proved its case beyond a reasonable
doubt.
Mr Gillespie further contended that apart from any authority conferred on the appellant to
arrest under the Criminal Procedure and Evidence Act [Chapter 59] (see s 33 thereof) the
appellant was imbued with authority under s 86(1) of the Parks and Wild Life Act 1975,
not only to arrest, but also to search and seize. The section provides as follows:
“86 (1) The appropriate authority for alienated land or any person authorised thereto by
it may, without warrant, search any premises, hut, tent, camping place, vehicle, boat,
aircraft or receptacle whatsoever on such land if such appropriate authority or authorized
person has reasonable grounds to suspect that there is contained therein any animal, fish,
plant, meat, trophy, or article or thing which may afford evidence of the commission of
an offence in terms of this Act and may seize any such animal, fish, plant, meat, trophy,
article or thing found by him.”
Subsection (2) of s 86 makes it unlawful for any person to hinder, obstruct or resist a
person exercising his powers in terms of subs (1) above. Mr Gillespie submitted that it is
a necessary implication of the enactment that the appellant might use reasonable force to
overcome any resistance by the complainant. See S v Reed 1971 (1) RLR 315 (A) 316C-
D; Tribal Trust Land Development Corporation Ltd v Cone Textiles (Pvt) Ltd 1978 RLR
365 (G) at 372-3. This, the appellant did by using his right foot as a lever to the left side
of the complainant’s abdomen in order to prise the bag containing the day’s catch from
the complainant, when the complainant, as stated in the outline of State case, resisted the
appellant’s attempt to seize the bag. The medical report which states that “No signs of
external injury but patient had tenderness over the scar on the abdominal wall” is
colourless, and does not suggest the use of more than reasonable force.
Thus, taking into account such evidence on record as supports the outline of State case,
the appellant was entitled by law to act as he did, and his conviction was wrong in law.
Again, I cannot find fault with Mr Gillespie’s further submission that in
Page 217 of 1991 (1) ZLR 211 (SC)
addition to the aforegoing, on the acceptable evidence, the conduct of the complainant,
both in poaching the fish and in resisting the search and seizure, was an unlawful assault
against property which the appellant was entitled to defend against the use of reasonable
force. See Ex parte Minister of Justice In re: S v van Wyk 1967 (1) SA 488 (A) 509A-D
where Trollip AJA expressed the view that:
“What conditions must be fulfilled before killing or seriously injuring another in defence
of property can be justified, need not be precisely determined in the present case; the
minimum requirements would be somewhat similar to the general limits set aside for self-
defence: (1) reasonable grounds for the defender to think that, because of the offender’s
unlawful conduct, there was the danger of serious damage to or destruction or loss of the
property; (2) the means used in defending it and resulting in the offender’s death or injury
were not excessive having regard to all the circumstances, such as the nature and extent
of the danger, the value of the property, the time and place of the occurrence, etc; and (3)
they were the only means whereby he could avoid the danger.”
See also S v Smart 1971 (1) RLR 256 (A) 258I. It seems to me that, on the acceptable
evidence before the trial court, the appellant used no more force than was reasonable to
regain control of his property.
To confirm the verdict of the trial court, in the circumstances, would, in my view, result
in a travesty of justice.
The appeal is allowed, the conviction is quashed and the sentence imposed set aside.
McNally JA: I agree.
Ebrahim JA: I agree.
Joel Pincus, Konson & Wolhuter, appellant’s legal practitioners
S v DUBE
1991 (1) ZLR 218 (SC)
Division: Supreme Court, Bulawayo
Judges: Manyarara JA & Korsah JA
Subject Area: Criminal appeal
Date: 4 April & 13 May 1991

Criminal law — assault with intent to do grievous bodily harm — whether actual harm
inflicted relevant.
Following a quarrel with the complainants at a shebeen, appellant and his two friends
followed complainants from the shebeen and assaulted each one in turn. The first
complainant, a woman, was punched, kicked and thereafter stabbed in the forehead with a
knife by one of appellant’s friends while she lay on the ground. The woman’s husband
was also stabbed on the hand when he attempted to render assistance to his wife.
Appellant and his friends thereafter assaulted the other complainants in turn. He was
charged with and convicted of one count of assault with intent to do grievous bodily harm
and two counts of common assault. On appeal against the conviction for assault with
intent to do grievous bodily harm:
Held, on a charge of assault with intent to do grievous bodily harm, the question as to
whether grievous bodily harm is in fact inflicted on the victim is immaterial in
determining liability; it is simply the intention to do is harm that is in question.
Held, further that the crime of assault with intent to do grievous bodily harm may be
committed even though the physical injuries are slight. Conversely, the crime committed
may be mere common assault even though bodily harm of a serious nature has in fact
been inflicted.
Held, further, that dolus eventualis is sufficient although provocation or intoxication may
negative the ‘special intention’ required, namely to do grievous bodily harm, with the
result that the accused is guilty of
Page 219 of 1991 (1) ZLR 218 (SC)
common assault only.
Held, further, that the requisite intent must be inferred from the evidence of the
application of force on the person of another.
Held, further, that street thuggery is a type of offence which can be committed only with
actual or constructive intent to do grievous bodily harm, in that it is essentially a type of
violence directed against the victim recklessly or without regard to the consequences.
Quaere, whether the absence of medical evidence ipso facto raises reasonable doubt that
the assailant intended to do grievous bodily harm.
Cases cited:
S v Melrose 1984 (2) ZLR 217 (SC); 1985 (1) SA 720 (ZS)
S v Harry & Anor S-146-88 (not reported)
R v Edwards 1957 R&N 107 (SR)
S v Pedersen 1976 (1) PH H 25 (RA); AD-133-75
S v Chidu S-139-89 (not reported)
G Nyoni for the appellant
G A J Hooper for the respondent
MANYARARA JA: The appellant was convicted of one count of assault with intent to
do grievous bodily harm and two counts of common assault. He was sentenced to a total
of thirteen months’ imprisonment with labour, of which six months’ imprisonment was
suspended. He appeals against the finding that he intended to do grievous bodily harm in
the first count and against the whole of the sentence imposed in respect of all three
counts.
Mr Hooper, who appears for the State, submits that the disputed finding is “open to
question”, but he leaves it to the court to decide the issue whether or not the conviction is
nonetheless proper. He supports the sentences imposed as appropriate for the offences.
It is common cause that on 24 March 1989 the appellant and his two friends, Martin
Chitura and George Sibanda, were drinking beer at a shebeen operating from house No.
3312, Luveve in Bulawayo. Also patronising the shebeen on the occasion were the four
complainants, Jeffrey Tawana and his wife Cynthia, Newman Mfuni, Mundiya Ndlovu
and a fifth person, a lady named Charity. There was a quarrel between the two groups
when Jeffrey accidentally spilt some beer on George’s clothes. The dispute was quelled
by the shebeen operator and the drinking continued uneventfully.
Page 220 of 1991 (1) ZLR 218 (SC)
However, when the four complainants and Charity left the premises the appellant’s group
followed them. The former sensed trouble from the belligerent language the latter were
using. Charity and Cynthia decided to seek refuge in a nearby house. But as the two
women ran towards the house, one of Cynthia’s shoes came off. She returned to retrieve
the shoe and the appellant and his two friends converged on her. They punched her with
clenched fists and when she fell down they kicked her several times with their booted feet
as she lay on the ground. George produced a knife and stabbed her on the forehead,
causing a deep cut.
Jeffrey heard Cynthia’s cries for help and he came to her rescue. George stabbed him on
the hand and he retreated. But by then Cynthia had managed to flee and the couple ended
up in the house to which Charity had already escaped.
Presently there was a knock on the door but Jeffrey refused to let in the person who
knocked. Shortly thereafter there was a second knock. Jeffrey ascertained that it was
Newman and he let him in. Newman’s mouth was swollen and he had bruises on his face.
He too had been assaulted by the appellant’s gang. Mundiya was the last to seek refuge in
the house and he arrived in the same battered state as Newman. The matter was
subsequently reported to the police.
George was not before the court when the trial commenced. The charges against him
were accordingly withdrawn before plea and the trial proceeded in respect of Martin as
the first accused and the appellant as the second accused.
Both accused were convicted of assault with intent to do grievous bodily harm to Cynthia
(Count One) and sentenced to nine months’ imprisonment with labour. The appellant
alone was acquitted and discharged in respect of the assault on Jeffrey (Count Two). He
was convicted of common assault on the remaining two counts and sentenced to two
months’ imprisonment with labour in respect of each such count.
As I have said, counsel have agreed to narrow the issue on appeal against conviction to
whether the gang assault with fists and booted feet on Cynthia was committed with intent
to do grievous bodily harm. This is because the magistrate says that his verdict was
influenced largely by the use of a knife in the attack.
Page 221 of 1991 (1) ZLR 218 (SC)
It is on this basis that Mr Nyoni argues that the appellant should have been convicted
only of common assault on the principles enunciated in S v Melrose 1984 (2) ZLR 217
(SC); 1985 (1) SA 720 (ZS) and S v Harry & Anor S-146-88, among several authorities
on the subject.
Mr Hooper conceded that there is no evidence to show that Cynthia suffered any injury
other than the knife wound inflicted on her by George. He does not dispute that, in the
absence of medical evidence showing that Cynthia suffered any injuries from the first
blows and the kicks freely admitted by the appellant, the magistrate might have returned
a verdict of common assault.
But, so Mr Hooper continues his argument, the magistrate should have disregarded the
injury to the forehead and the use of a knife and then asked himself the question whether
or not there was any evidence to show that the appellant’s gang, acting with common
purpose, intended that Cynthia should suffer more injury than she in fact suffered.
Mr Hooper also cites S v Melrose and S v Harry & Anor, supra, and summarises his
contention as follows:
“Despite the dicta in the abovementioned cases it is submitted that where three men set
upon a defenceless woman and proceed to kick her with booted feet whilst she is lying on
the ground, it can be inferred that at the very least they were indifferent as to whether or
not she suffered grievous bodily harm. It should be noted that the assault on the
complainant terminated when her husband came on the scene and the assailants then
turned their attention on him. These latter facts distinguish this case from the cases
referred to (Melrose and Harry, supra) where the assailants stopped because they
appeared to feel that they had inflicted sufficient injury for their purpose.”
It suffices to refer to the headnote in S v Melrose, supra, which deals with the conflicting
arguments of counsel as follows:
“Held, that there was some dispute in the decided cases on the precise meaning,
one line of cases holding that the harm must be such as ‘seriously to interfere with health’
and the other that ‘grievous bodily harm’ means no more nor less than ‘really serious
bodily harm’.
Held, further, that in the present case it was not necessary to decide which
formulation was correct. The facts from which the appellant’s
Page 222 of 1991 (1) ZLR 218 (SC)
intention could be inferred showed that the injury actually sustained were
no less serious than had been intended. Since the injuries were not very serious, it would
be wrong to hold that the appellant had intended to inflict harm which ‘seriously
interfered with health’ or was ‘really serious’. Accordingly, the appellant should have
been convicted of common assault.
Held, further, that this was one of those cases where the medical report was
lacking in detail and should have been amplified by viva voce evidence. Prosecutors
should regard it as the rule rather than the exception that the doctor’s verbal evidence is
necessary and magistrates should remember that it is their right — indeed, their duty —
in any case where they believe viva voce evidence would be of assistance to require the
doctor to attend court.”
The case is referred to with approval in S v Harry & Anor, supra, at p 6 as follows:
“It does not seem to me to matter which definition of grievous bodily harm one uses. The
two definitions are set out in S v Melrose, supra. I do not think the injuries suffered by
the complainant were either ‘such as seriously to interfere with health’ or ‘really serious
bodily harm’. Without attempting to define where common assault ends and assault with
intent begins, I would point out that here we have bruises but no cracked ribs, a cut
mouth but no missing teeth, a bruised eyebrow but no laceration or concussion. The
complainant was taken to hospital for examination but he was not detained there, unless
for the purpose of stitching his elbow. There were no long or even medium term
consequences of the assault. In an accident report he would have been fairly described as
escaping with minor injuries. Even the magistrate found that he suffered no serious
injury. In fact he said so on three separate occasions in his judgment” per McNally JA.
Our courts have invariably applied the principles enunciated by Beadle J (as he then was)
in R v Edwards 1957 R&N 107 (SR) and I respectfully associate myself with the
correctness of the learned judge’s remarks. However, I am beginning to have certain
misgivings about what I perceive as a progressively narrow interpretation of the
statement of law appearing at p 112D-E of the judgment, which reads as follows:
“I therefore come to the conclusion that so far as assault with intent to do grievous bodily
harm is concerned, it is sufficient to prove that the
Page 223 of 1991 (1) ZLR 218 (SC)
accused committed the crime knowing that his act was likely to cause grievous bodily
harm and that he committed it in circumstances which show that he was reckless and
careless as to whether or not such harm resulted. If that was his state of mind, then I think
the Crown has proved all the intent required to establish this crime.”
It is trite that the “crime” to which the passage refers is assault with intent to do grievous
bodily harm. The actus reus is assault of a qualified form, qualified by an intention to do
grievous bodily harm. The position is lucidly set out by Professor Snyman in his work,
Criminal Law, at p 397, as follows:
“7 Assault with intent to do grievous bodily harm. Under the influence of English law a
number of qualified forms of assault have developed. The assault is qualified by a certain
intention. Each of these qualified forms is in fact a separate, substantive crime, not
merely an aggravated form of assault.
The most important is the crime known as assault with intent to do grievous bodily harm.
All the requirements for an assault set out above apply to this crime, but in addition there
must be intent to do grievous bodily harm. Whether grievous bodily harm is in fact
inflicted on the victim is immaterial in determining liability (though it is usually of great
importance for the purpose of sentence). It is simply the intention to do such harm that is
in question. Whether X in fact had intent to do grievous bodily harm is a factual question.
Important factors which may indicate that he had such an intention are, for example, the
nature of the weapon or instrument used, the degree of violence, the part of the body
aimed at, and the nature of the injuries inflicted, if any. The crime may be committed
even though the physical injuries are slight. In Joseph (1964 (4) SA 54 (RA)), for
example, X drove a truck and deliberately swerved towards Y, but did not actually hit
him. He was nevertheless convicted of assault with intent to do grievous bodily harm.
Conversely, the crime committed may be mere common assault even though bodily harm
of a serious nature has in fact been inflicted.
Dolus eventualis is sufficient. Provocation and/or intoxication may negative the “special
intention” required, namely to do grievous bodily harm, with the result that X is guilty of
common assault only.
The somewhat vague expression “grievous bodily harm” has seldom been explained in
more precise terms by the courts. It need not necessarily be of a permanent dangerous
nature. Thus merely twisting
Page 224 of 1991 (1) ZLR 218 (SC)
somebody’s arm is not usually indicative of an intention to do grievous bodily harm, but
where somebody is lying prostrate kicking his face with a heavy boot does reveal such an
intention.” (The emphasis is mine.)
One of the cases cited by the learned author is S v Pedersen 1976 (1) PH H 25 (RA); AD-
133-75 decided by the same learned judge who decided R v Edwards, supra, Beadle ACJ
(as he had then become). The second headnote to the report of Pedersen’s case, supra,
reads as follows:
“Appellant next submitted that he had no intention of causing grievous bodily harm. It
might well be true that he had no actual intent but a constructive intent was certainly
there. Kicking a man in the face with heavy gum boots always entailed a real likelihood
of grievous bodily harm resulting and appellant had been quite reckless in his acts.”
On a charge of assault with intent to do grievous bodily harm the evidence on the
application of force on the person of another is invariably common cause from which the
requisite intent must be inferred.
As Professor Snyman indicates, the influence of English law has so dominated the
development of the offence that it seems to me that we may sometimes slip into the error
of equating the offence with an “aggravated form of assault”, which is a different offence.
Worse still, we may unconsciously apply to the offence of assault with intent to do
grievous bodily harm the principles relating to the English offence of assault occasioning
actual bodily harm and in so doing acquit or convict on the wrong basis. See Smith and
Hogan’s Criminal Law, 6 ed, pp 396-397.
This is precisely the line of argument which has been adopted on the appellant’s behalf,
that is to say :
1. That no “instrument” in the conventional sense was used;
2. That it was not proved that the blows with clenched fists and booted feet
were aimed at any vulnerable part of the victim’s body;
3. That the degree of force used is unascertainable; and
4. That there is no medical evidence of any injury to the victim resulting
from the assault.
Page 225 of 1991 (1) ZLR 218 (SC)
The magistrate summarised his findings of fact as follows:
“The two accused and George then fell upon her (ie Cynthia). She got kicked by all the
three men. She fell and tried to rise. She got kicked all the more. Accused 2 punched her
and as she put it she ‘saw the stars’. She cannot say the number of blows that she
received.”
The record tells us that the appellant and his gang, no doubt fortified by the alcohol they
had consumed, practically hunted down each of the four complainants. The purpose of
the hunt was to give each of the complainants a thorough beating for no reason
whatsoever. They caught up with Charity and Cynthia but Charity managed to escape as
Cynthia retraced her steps to retrieve her shoe. The gang of three men punched and
kicked Cynthia severely as she lay on the ground, without caring where the blows landed.
They did not desist of their own free will but because they found a new target in
Cynthia’s husband when he came to her rescue. The gang was on the warpath, its
bloodlust having been increased by Cynthia’s cries of distress. These factors, in my
respectful view, distinguish the case from S v Harry & Anor, supra, and the other cases
and I would find that there was here a constructive intent to do grievous bodily harm on
the principles explained in Snyman’s Criminal Law, supra.
But Mr Nyoni raises a further factor, which has rarely if ever been lacking in convictions
of this offence. This is the medical evidence of the injuries occasioned by the assault. The
argument is invariably that the absence of medical evidence ipso facto raises a reasonable
doubt that the assailant intended to do grievous bodily harm.
I am not attracted to this line of reasoning, and of the extent that the available authorities
may suggest that this is the law I would respectfully decline to follow them in the present
case.
One cannot overlook the fact that it is the same doctor who attended to Cynthia who also
attended to the three other complainants in this case. A comparison of his reports,
exhibits 1 to 4, shows that it is in the cases of Cynthia and her husband Jeffrey alone that
he has recorded only the stab wounds each suffered in the attack. He has omitted
therefrom any injuries caused by the assault with fists and booted feet on all four
complainants, which appear only on the medical reports of Newman and Mundiya who
were not knifed.
Page 226 of 1991 (1) ZLR 218 (SC)
The inference I draw from this state of affairs is that the doctor concerned himself only
with what appeared to him to be the most serious injury suffered by each complainant. In
the cases of Cynthia and Jeffrey it was the knife wounds, whilst in the cases of Newman
and Mundiya, who did not suffer any knife wounds, it is the bruises etcetera of which
they complained.
The offence against Cynthia was committed in the course of street thuggery by the
appellant’s gang. My view is that street thuggery is a type of offence which can be
committed only with actual or constructive intent to do grievous bodily harm, in that it is
essentially a type of violence directed against the victim recklessly or without regard to
the consequences. Whether grievous bodily harm is in fact inflicted in the course of this
form of assault is immaterial in determining liability, although it is usually of great
importance for the purposes of sentence as Professor Snyman states. This is the
explanation for the decision in S v Chidu S-139-89 in which an assault with open hands
was nonetheless held to be assault with intent to do grievous bodily harm.
Therefore, I would dismiss the appeal against the conviction of assault with intent to do
grievous bodily harm on the first count.
[The appeal against sentence was allowed on the facts.]
Korsah JA: I agree.
James, Moyo-Majwabu & Nyoni, appellant’s legal practitioners
S v Blanket Mine (Pvt) Ltd
1991 (1) ZLR 227 (SC)
Division: Supreme Court, Bulawayo
Judges: Manyarara JA & Korsah JA
Subject Area: Criminal Appeal
Date: 2 April and 13 May 1991

Criminal law — culpable homicide — negligence — foreseeability of harm or death —

breach of statutory duty — failure to comply with safety regulations.
Criminal procedure (sentence) — culpable homicide — deterrence.
The deceased died as a result of inhalation of cyanide gas whilst working at the mine
owned by the appellant. No adequate face mask was available for use by the deceased.
Such was a breach of safety regulations published under the Hazardous Substances and
Articles Act [Chapter 322].
Held, the appellant was negligent in not providing a proper face mask, and the death of an
employee was reasonably foreseeable in those circumstances.
Held, the sentence of $5 000,00 was appropriate having regard to the fact that a man lost
his life. The facts show a wanton disregard for the safety of the employees.
Cases cited:
Lochgelly Iron & Coal Co Ltd v M’Mullan [1934] AC 1 (HL)
East Suffolk Rivers Catchment Board v Kent & Anor [1941] AC 74; [1940] 4 All ER 527
(HL)
de Jong v Industrial Merchandising Co (Pvt) Ltd 1972 (2) RLR 132 (G); 1972 (4) SA 441
(R)
Vorster & Anor v AA Mutual Assurance Association Ltd 1982 (1) SA 145 (T)
Page 228 of 1991 (1) ZLR 227 (SC)
S v Van As 1976 (2) SA 921 (A)
R v Tatham 1968 (2) RLR 1 (A); 1968 (3) SA 130 (RA)
A P de Bourbon SC for the appellant
J Makowane for the respondent
KORSAH JA: The appellant company was convicted of culpable homicide and
sentenced to pay a fine of $5 000. It appeals against both the conviction and sentence
imposed.
Most of the facts are common cause. The deceased, Dela Moyo, was employed by the
appellant company as a cyanide plant assistant operator at its Blanket Mine at Gwanda.
On 31 March 1988, he completed his eight hour shift at 4 pm and proceeded to the
beerhall where he consumed beer until midnight, when he left the beerhall to go home.
While he was on his way home, he was recalled to report on duty to replace another
worker who had not reported for work.
The general practice at the beginning of most shifts was for the cyanide plant assistant to
carry dry cyanide flakes up the steps to the agitator in open buckets; and this was what
was required of the deceased when he was recalled for duty after midnight.

At about 1.30 in the morning of 1 April 1988, the deceased was found lying prone on the
steps leading to the agitator tanks. Of the two cyanide buckets he was carrying, one was
on the step above his head and the other was under his chest, pinned to his body. He was
dead. His death was due to the inhalation of cyanide gas from the buckets.
The deceased had no respirator with him. And it was alleged by the prosecution that the
absence of a respirator was because the appellant did not supply the deceased with a
respirator, and that the management negligently failed to supply a respirator to the
deceased when he was working with a hazardous substance and thus negligently caused
his death.
That the deceased died of cyanide poisoning was not, and could not be, denied by the
appellant because of the medical evidence. The absence of a respirator at the time the
deceased was discovered lying on the steps leading to the agitator was also not denied.
But the appellant company strenuously denied that it had caused the death of the
deceased by negligently failing to provide the deceased with a respirator.
Page 229 of 1991 (1) ZLR 227 (SC)
In its “Defence Outline” the appellant alleged that all workers employed in the cyanide
section and working with cyanide were required to wear a respirator, and that a respirator
was at all times available and was in particular available at the time the deceased met his
death.
The appellant was charged with the common law offence of culpable homicide and not an
infraction of any of the provisions of the Hazardous Substances and Articles (Protective
Clothing: General) Regulations 1984 (SI 263 of 1984) as was assumed by the respondent.
Those Regulations were wholly irrelevant to the facts of this matter. The true position
was that SI 263 of 1984 was repealed by s 13 of the Hazardous Substances and Articles
(Protective Clothing: Pesticides) Regulations 1985 (SI 205 of 1985). As SI 205 of 1985
deals only with Pesticides, it has no bearing on the facts of this appeal. The legislation
which may have some application in this matter is the Hazardous Substances and Articles
(Group III : General) Regulations 1981 (SI 315 of 1981), the Regulations which were
extant at the time of the commission of the offence alleged. By s 2 the Regulations apply
to any substances, other than those described in the Third Schedule. Under the caption
“Precautions to be taken by users and repackers” appears s 7 (1) which provides as
follows:
“7. (1) No person shall use any substance specified in column one of the First Schedule,
or open the container and repack such a substance in any other container, unless he
ensures that —
(a) all persons involved take all the necessary precautions in the handling of that
substance, including the wearing of appropriate protective clothing; and
(b) appropriate measures are taken for the safety of any other person who may be at
risk from exposure to that substance; and
(c) there are immediately available all the requirements for the administration of
appropriate first-aid treatment, and that there is a person capable of taking, and
immediately available to take the necessary action in the event of an accident.”
There was at no time any controversy that cyanide is a toxic poison as described under s
3 of the Regulations. Substances containing or consisting of toxic substances fall under
the Second Schedule to the Regulations.
The trial court, assuming that SI 205 of 1985 had any application to the facts of the case,
said the following were the issues to be resolved in a determination of the matter:
Page 230 of 1991 (1) ZLR 227 (SC)
(a) whether a respirator was indeed available;
(b) whether that respirator was fit to be used by the deceased, and if answers to the
above are in the affirmative;
(c) whether the deceased was made aware of the dangers of working with cyanide
without a respirator.
If, indeed, the trial court was in error in setting out the above as the issues to be resolved,
that error was not a very grave one; for by s 3 of SI 315 of 1981:
“protective clothing means —
(a) clothing made from protective material; and
(b) face-masks, face-shields, goggles and respirators with appropriate cartridges or
cannisters;
specifically designed to afford protection to the wearer from the hazards presented by the
substance.”
It was argued upon us, by counsel for the appellant, that as the appellant was charged
with the common law offence of culpable homicide the prosecution must prove that the
appellant did not exercise the standard of care expected of the diligent paterfamilias in
society (the reasonable man test) and not the standard of care imposed by statute.
I think it is well accepted that the word “negligence” in criminal cases does not have a
different connotation from “negligence” when used in civil matters. In civil matters all
that matters is that there was a duty of care owed to the victim and that that duty has been
breached to his detriment. The source of the rule of law imposing that duty is irrelevant.
As Lord Wright observed in Lochgelly Iron & Coal Co Ltd v M’Mullan [1934] AC 1
(HL) at 25:
“In strict legal analysis, negligence means more than heedless or careless conduct,
whether in omission or commission: it properly connotes the complex concept of duty,
breach, and damage thereby suffered by the person to whom the duty was owing: on all
this the liability depends, and if this liability is attached by law formally to the employer,
as happens in the case of a breach of a statutory duty, the whole position is I apprehend
correctly described as ‘personal negligence of the employer’.”
Lord Atkin with accustomed clarity of language drew the distinction between (1) A
statutory duty to do or abstain from doing something and (2)
Page 231 of 1991 (1) ZLR 227 (SC)
A common law duty to conduct oneself with reasonable care so as not to injure persons
liable to be affected by ones conduct, in East Suffolk Rivers Catchment Board v Kent &
Anor [1941] AC 74 at 88-89; [1940] 4 All ER 527 (HL) at 533-534 thus —
“(1) The duty imposed by statute is primarily a duty owed to the State.
Occasionally penalties are imposed by the statute for breach; . . . The duty is not
necessarily a duty owed to a private citizen. The duty may, however, be imposed for the
protection of particular citizens or class of citizens in which case a person of the
protected class can sue for injury to him due to the breach. The cases as to breach of the
Factory or Coal Mines Act are instances. As a rule the statutory duty involves the notion
of taking care not to injure and in such cases actions for breach of statutory duty come
within the category of negligence: See Lochgelly Iron and Coal Co v M’Mullan.
(2) But apart from a public duty to the public, every person whether
discharging a public duty or not is under a common law obligation to some persons in
some circumstances to conduct himself with reasonable care so as not to injure those
persons likely to be affected by his want of care. This duty exists whether a person is
performing a public duty, or merely exercising a power which he possesses either under
statutory authority or in pursuance of his ordinary rights as a citizen. To whom the
obligation is owed is, as I see it, the principal question in the present case.”
In the instant matter there can be no doubt that, both under the common law and under
statutory authority, the appellant owed a duty to the deceased as a member of a protected
class and so the source of the rule of law imposing the duty to take care is irrelevant.
I am not unaware of the dicta in de Jong v Industrial Merchandising Co (Pvt) Ltd 1972
(2) RLR 132 (G) at 137; 1972 (4) SA 441 (R) at 445, to the effect that the mere failure to
comply with regulations does not necessarily amount to negligence. De Jong’s case,
supra, was a motor traffic case. It has for long been accepted that speed by itself is not
indicative of negligence. This is because the duty imposed by statute to drive within
certain speed limits is a duty owed to the State. It is not necessarily a duty owed to a
private citizen, and exceeding the speed limits specified in any regulations, even if no
accident results therefrom, attracts a penalty. But excessive speed in conjunction with
other factors which show that the driver was not acting reasonably in the circumstances
may amount to negligence. In de Jong’s
Page 232 of 1991 (1) ZLR 227 (SC)
case, supra, apart from a breach of the speed limit there were no such additional factors.
In Vorster & Anor v AA Mutual Assurance Association Ltd 1982 (1) SA 145 (T) on the
other hand, Goldstone J with reference to the regulation making the wearing of seat-belts
compulsory in South Africa said at 154 of the judgment:
“This legislation is designed for only one purpose, viz to prevent or reduce the severity of
injury to passengers in motor vehicles involved in collisions. The failure to observe such
a provision constitutes some evidence, if not prima facie evidence, of negligence in
relation to injuries sustained or rendered more severe because of such failure . . .”
It seems to me that on the facts of the case before him, Goldstone J rightly took the view
that the duty to wear seat-belts was imposed for the protection of particular citizens or
class of citizens and, as such, a breach of the duty constitutes evidence of negligence.
In my judgment the provisions of the Regulations requiring the appellant to ensure that
all persons involved in work with specified hazardous substances take all necessary
precautions in the handling of that substance, including the wearing of appropriate
protective clothing, were made for the protection of particular citizens or class of citizens
of which the victim was a party and the breach of them constitutes some evidence, if not
prima facie evidence, of negligence.
I now turn to the standard care which was expected of the appellant. It was common
cause at the trial that no respirator meeting the requirements of SI 263 of 1984 (the
repealed Regulations) was available to the deceased. Under SI 263 of 1984, a “Respirator
means a close fitting mask equipped with disposable cartridges designed to protect the
wearer against inhalation of hazardous substances in the form of gases, vapours or
fumes”. The Regulations extant at the material time specify the necessity to provide
“face-masks, face shields, goggles and respirators” with “appropriate cartridges and
cannisters; specially designed to afford protection to the wearer from the hazards
presented by the substance”. It was not denied that the appellant knew that cyanide was a
toxic substance which had the capacity to produce personal injury or illness through
ingestion, by absorption through the skin, or by inhalation, and was required to provide
adequate protective clothing for its employees who handled such a hazardous substance.
Page 233 of 1991 (1) ZLR 227 (SC)
Evidence was led to establish that respirators meeting the requirements of the Regulations
were not available in the country. There was some evidence that Mine Inspectors at Head
Office had authorised the use of foam rubber masks as a substitute for respirators. It is
difficult to imagine how an authorisation by Mine Inspectors could override the
provisions of a Statutory Instrument. It is clear to me that unless the provisions of a
Statutory Instrument are repealed, they remain in force, and a person who breaches them
cannot escape criminal liability on the basis of an authorisation by some official to breach
them. The Mine Inspectors had no authority to override the provisions of the Regulations,
and the appellant was under no duty to obey them, even if those orders had not been so
manifestly illegal that the appellant should have known them to run counter to the
Regulations, if respirators were the appropriate protective gear in regard to the handling
of cyanide.
Accepting, however, that the Regulations also make mention of face masks as a form of
protective clothing, and the evidence that a face-mask, consisting of a piece of foam
rubber held by strings tied behind the head, was furnished by the appellant for use by the
cyanide plant assistant operators to cover their mouths and noses, the question is: was the
mask in use at the material time adequate for the purpose for which it was intended?
The evidence of the company employees seems to suggest that the mask did not afford
adequate protection. Mr Chikumba, who was a plant operator at the mine, said of the
mask:
“It was something very old, something quite tatty, the workers were refusing to wear
it . . . it was dirty. They were refusing to share this one respirator, they thought it was a
health hazard.”
Mr Thabani Moyo, another plant operator at the mine who testified for the appellant,
conceded that the mask was tatty. Another defence witness Mr Allan Zhou also conceded
that “tatty” meant torn. He said the mask was issued some three years before the accident
giving rise to the appellant’s prosecution. This was confirmed by Mr Brian Deacon, who
was the Mill Manager.
Both Mr Chikumba and Mr Zhou said they made repeated requests for new masks for use
by the employees of the appellant, but their requests fell on deaf ears. If the face mask
was in good serviceable condition these persistent requests to furnish new ones would not
have been made.
Page 234 of 1991 (1) ZLR 227 (SC)
The picture the evidence portrays is that whereas each assistant plant operator is
supposed to have a mask of his own, the appellant provided all of them with only one;
that this one mask was made of foam rubber and was old, being over three years old, and
dirty and practically in ribbons. Even if the Regulations permit the use of face masks, it
can hardly be urged that the mask provided by the appellant met, in the circumstances,
with the requirements of the Regulations.
It is said that the standard of care expected of the appellant is that of the ordinary
reasonable man and that by furnishing a foam rubber mask for use by the cyanide
assistant plant operators he had discharged the duty cast on him by the law; that the test
to apply is the objective test of negligence and the courts cannot require, under the guise
of the ordinary reasonable man, a standard of conduct which is impractical.
I am fully in agreement with this submission by counsel. I even accept that the
Regulations permit of the use of face masks. But having regard to the highly toxic
substance the deceased had to handle, the age and the condition of the mask available to
the deceased, can it be said that the appellant had discharged that standard of care which
is expected of a reasonable man, in the same circumstances?
As Rumpff CJ observed in S v Van As 1976 (2) SA 921 (A) at 928E (translation):
“Since times immemorial we use in our law the diligens paterfamilias as a person who in
particular circumstances will act in a particular manner. What he would have done is
regarded as reasonable. We do not use the diligentissimus paterfamilias, and what the
diligens paterfamilias would have done in a particular case the judicial officer must
decide to the best of his ability. The diligens paterfamilias is of course a fiction and all
too frequently he is not a pater. In the application of the law he is viewed ‘objectively’,
but in essence he is viewed both ‘objectively’ as well as ‘subjectively’ because he
represents a particular group or type of persons who are in the same circumstances as he
is, with the same ability and knowledge. If a person, therefore, does not foresee what
other persons in the group could and should have foreseen, then that element of culpa, viz
omission to foresee, is present. That foreseeability and care are related to each other and
that a lack of care usually flows from an omission to foresee, can in my opinion, hardly
be denied. The foreseeability of death, as a possibility, in the case of culpable homicide,
does of
Page 235 of 1991 (1) ZLR 227 (SC)
course, also not require the foreseeability of the precise manner in which the death
occurred, as long as the possibility of death, as a result, was foreseeable.”
In the instant appeal, despite the persistent requests for new face-masks, and there was no
evidence that foam-rubber was not available in the country, the appellant failed to furnish
the cyanide assistants with new face-masks for three years. In my view, knowing how
hazardous the substance which the cyanide assistants had to handle was, the appellant
exhibited utter indifference to an obvious risk to health, or actually foresaw the risk but
was determined nevertheless to run it. He must in the circumstances have foreseen the
possibility of injury to his employees.
It is of no consequence that the immediate cause of death of the deceased was as a result
of him not wearing a face mask. If the appellant had furnished the cyanide assistants with
adequate face-masks, both as to numbers and serviceability, the deceased no doubt would
have used such a mask. It is to be noted that the duty of care owed by the appellant to the
deceased under the Regulations did not end with the provision of face-masks adequate for
the purpose for which they were intended, but also extended to ensuring that all persons
involved in the handling of the hazardous substance take the necessary precautions
stipulated in the Regulations. And this also the appellant failed to do.
In law, the appellant’s act need not be the sole cause or event the main cause of the
victim’s death, it being enough that the act contributed significantly to the result. See R v
Tatham 1968 (2) RLR 1 (A); 1968 (3) SA 130 (RA). The appellant should have foreseen
something untoward and unexpected, but within the range of human experience, might
happen to cause death from the determination to run the risk of not supplying his
employees with adequate protective clothing, and ensuring that they use them.
I am of the view that the appellant’s conduct contributed significantly to the death of the
deceased and was the predominant and substantial cause of the accident. The appeal
against conviction must, therefore, fail.
As regards sentence, the offence charged was the common law offence of culpable
homicide, and not a breach of the Regulations. A breach of the Regulations was only
relied upon to establish the appellant’s negligent act which contributed to the demise of
the deceased. As such subs (2) of s 9 of the Regulations which recites that:
Page 236 of 1991 (1) ZLR 227 (SC)
“Any person who is convicted of an offence referred to in sub-section (1) shall be liable
to a fine not exceeding one thousand dollars or to six months’ imprisonment, or to both
such fine and imprisonment,”
does not apply. The punishment to be imposed was within the discretion of the trial court.
In a case where death results from non-compliance with regulations made to protect the
victim against such an event, the financial penalty to be imposed should be measured in
accordance with the moral blameworthiness of the culprit. The incautious neglect of the
appellant to provide the cyanide assistants with adequate protective face-masks, despite
persistent requests for such masks, shows a wanton disregard for the safety of his
employees and puts the appellant’s blameworthiness in a very high order.
The learned trial magistrate also expressed the view that the sentence imposed, it was
hoped, would deter other employers from flouting regulations made for the protection
and safety of their workmen in their places of employment.
A person lost his life because the appellant would not purchase a piece of foam rubber
big enough to cover a person’s nose and mouth. Such avarice or utter disregard for the
safety of employees which result in the loss of human life must, in my opinion, be visited
with a sentence of appropriate severity. By this approach the sentence to a fine of $5 000
does not appear to me to be grossly excessive.
Accordingly the appeal against both conviction and sentence are dismissed.
Manyarara JA: I agree
Webb, Low & Barry, appellant’s legal representatives
S v S (A JUVENILE)
1991 (1) ZLR 237 (HC)
Division: High Court, Harare
Judges: Adam J
Subject Area: Criminal review
Date: 15 May 1991

Criminal procedure — record lost — duties of Clerk of Court where presiding magistrate
is functus officio — record to be reconstructed from best secondary evidence available
Duties of Clerk of Court in part-heard matters — plea of guilty — record to be
reconstructed preferably under the direction and supervision of presiding magistrate —
permissible if there is no prejudice to the accused — plea of not guilty — duty of Clerk
of Court to obtain the best secondary evidence — witnesses to be re-called to confirm
accuracy of reconstructed record — right of accused and State to cross-examine as to the
correctness of re-constructed record.
Where an accused has been convicted and sentenced and the record is irretrievably lost
prior to review by the High Court, the Clerk of the Court (rather than the magistrate who
is functus officio) shall state such on affidavit. He should then obtain from the magistrate,
the witnesses and others present at the trial, affidavits as to the contents of the record.
Thereafter he should give both the State and the accused an opportunity to peruse these
so they may give their version as well. The Clerk of the Court should then send this
reconstructed record, from the best secondary evidence, for review.
In part heard matters, the magistrate is not functus officio. It is, therefore, the duty of the
Clerk of the Court, preferably under the direction and supervision of the presiding
magistrate, to reconstruct the record as best he can. Where the accused has pleaded
guilty, as long as there is no
Page 238 of 1991 (1) ZLR 237 (HC)
prejudice to him, the record restored in this manner by the presiding magistrate would be
adequate.
Where the accused has pleaded not guilty in part heard matters, the task of the Clerk of
the Court is again to obtain the best secondary evidence. Thereafter, once the evidence
and record is restored, the presiding magistrate must recall all the witnesses in order to
enquire whether this agrees with the evidence given by them previously. The accused and
the State should be allowed to cross-examine the witnesses as to the correctness of the
contents of the evidence and the record itself. Where the secondary evidence cannot be
obtained, as long as the accused is not prejudiced, all the witnesses may be recalled to
give evidence once again.
Cases cited:
R v Nortje 1950 (4) SA 725 (E)
R v Wolmarans & Anor 1942 TPD 279
R v Masemang 1950 (2) SA 488 (A)
S v Van Sitters 1962 (4) SA 296 (C)
S v Marais 1966 (2) SA 514 (T)
S v Manera 1989 (3) ZLR 92 (SC)
S v Mankaji & Ors 1974 (4) SA 113 (T)
S v Catsoulis 1974 (4) SA 371 (T)
S v Whitney & Anor 1975 (3) SA 453 (N)
ADAM J: The accused, a juvenile, was convicted on her guilty plea on 18 March 1991
of theft and the proceedings were adjourned in order to ascertain whether or not she had
any previous convictions. On 20 March 1991, prior to sentence, it appeared that the entire
record was lost. On that date the presiding magistrate had before him a completely new
indictment showing the proceedings as of 18 March 1991 and handwritten entries
pertaining to the guilty plea as well as judgment of guilty and in addition, the sentence
imposed dated 20 March 1991. There was also a handwritten record of what was shown
as the “Facts” as well as a document with the heading “Reconstructed Record” which
purports to relate as to what transpired on 18 March 1991. All the above it seems was
done after 18 March 1991. This record also reveals that on 20 March 1991 the public
prosecutor informed the trial court that the record could not be found and a request that
the trial magistrate reconstruct another record since he had prepared a new indictment.
The record continues that the “reconstructed record was read to the accused and that she
indicated she agreed with it.” The record of proceedings also contains that was stated in
mitigation and the reasons for sentence.
Page 239 of 1991 (1) ZLR 237 (HC)
On the foregoing being received by the Regional Magistrate, his minute of 3 April 1991
informed the trial magistrate that the reconstruction did not appear to have been done
according to law and that the procedure that should have been followed was that
mentioned in R v Nortje 1950 (4) SA 725 (E) and that this should be done. In his reply
minute of 10 April 1991 the trial magistrate agreed that the clerk of court’s affidavit
showing that the record was lost should have preceded his decision to reconstruct the
partial record and informed the Regional Magistrate that as he was seized with the matter
he had reconstructed the record during the course of the trial so this was sufficient
compliance with procedural law and the lack of the clerk of court’s affidavit did not
vitiate the proceedings.
It is true that in R v Nortje’s case, supra, where the accused pleaded guilty, was found
guilty and sentenced and before the record could be sent it was lost, the court ordered the
clerk of court to submit the best secondary evidence, following R v Wolmarans & Anor
1942 TPD 279, and also laid down the procedure that should be followed.
In R v Masemang 1950 (2) SA 488 (A), where the record of evidence was lost, the
Appellate Division determined the appeal with the agreement of the parties on the notes
of the judge at the trial and a reconstructed record and held that this constituted an
adequate and satisfactory secondary evidence upon which an appeal could be heard.
In S v Van Sitters 1962 (4) SA 296 (C), on appeal, the evidence on tapes recorded by
mechanical means and other important exhibits were lost, the Court (which had earlier
ordered the clerk of court to obtain the best secondary evidence) on being informed by
the trial magistrate that his notes were short and insufficient to supply the lost evidence
together with other affidavits filed indicated that the deponents were unaware of the
nature of the evidence given at the trial, set aside the proceedings since the accused had
been seriously frustrated and prejudiced. In S v Marais 1966 (2) SA 514 (T) Classens J
said at 516-517:
“. . . A full opportunity has already been given to the State to rectify the matter. The
appellant has been seriously frustrated and prejudiced owing to a fault on the part of the
State’s servants. She is entitled to an appeal as of right . . . She has been frustrated in a
basic right. She has been deprived of this through no fault of her own.
If during a trial anything happens which results in prejudice to an accused
Page 240 of 1991 (1) ZLR 237 (HC)
of such a nature that there has been a failure of justice, the conviction cannot stand. It
seems to me that if something happens, affecting the appeal, as happened in this case,
which makes a just hearing of the appeal impossible, through no fault on the part of the
appellant, then likewise the appellant is prejudiced, and there may be a failure of justice.
If this failure cannot be rectified, as in this case, it seems to me that the conviction cannot
stand, because it cannot be said that there has not been a failure of justice.”
This case was approved of by our Supreme Court in S v Manera 1989 (3) ZLR 92 (SC).
Similarly in S v Mankaji & Ors 1974 (4) SA 113 (T), where the record required for
automatic review was lost and the best secondary evidence could not be assembled, the
court set aside the conviction and sentence since a proper review could only take place if
a complete and correct record of proceedings is submitted to a judge.
In S v Catsoulis 1974 (4) SA 371 (T), where the record was lost prior to the closing of the
State’s case, Marais J most cogently observed at 372-4 (see Translations at 830-1):
“In a case like the present certain things should not be confused. One should distinguish
for instance between the trial of an accused and the administrative task in connection
therewith, e.g. the recording of the evidence. Once an accused has pleaded, he is entitled
to have his case heard and finalised. (See sec.169(6) of Act 56 of 1955). The fact that the
record has been lost, is no concern of the accused. The evidence given, has been heard by
the trial court and forms part of the case, whether or not it has been recorded or is still on
record. It would be an entirely different thing should the trial court, i.e. the magistrate,
not be available to proceed with that trial. In such a case a trial de novo would be
necessary, because the first proceedings could be considered void.
This is not the case here. The proceedings in court remain valid, despite the
disappearance of the record. The trial should obviously proceed from where it was left
off. There is no legal ground upon which a retrial at this stage can be ordered either by
the trial court or the Supreme Court.
It was held in the leading case of R v Wolmarans & Anor 1942 TPD 279 that no retrial
could be ordered in the Transvaal should the record be lost after the completion of the
hearing, but before it could be reviewed. The
Page 241 of 1991 (1) ZLR 237 (HC)
only way out was to reconstruct the record as best as possible from secondary evidence
and then to submit it to the Supreme Court. The facts of the present case differ from those
in Wolmarans’ case, but the question from where this Court or the trial court would
derive the power to consider the proceedings, prior to the loss of the record to be void and
to order a re-trial, remains equally unanswered in this case as was the similar question in
Wolmarans case.
...
In the present part-heard case the position is, in my opinion as follows: that the trial was,
up to the stage reached, a proper, valid trial and there is neither reason nor jurisdiction to
declare the part-heard trial to be a nullity; that it is the administrative task of the
magistrate and/or the clerk of the court to compile afresh a record of the completed part
of the trial in any manner which is fair and reliable as possible; that this embraces an
administrative enquiry and action and has nothing to do with the trial as such; that at the
resumption of the trial, after the record has been restored as well as possible the
magistrate is . . .entitled to recall any witnesses to give evidence, to lay his reconstructed
evidence before him and to ask whether it tallies with the evidence which he originally
gave at the trial. The witness will then be subject to cross-examination by the defence on
his answers to the magistrate’s questions on the correctness of the record and on the
contents of his evidence against the accused. Thereafter the trial can take its normal
course.”
In S v Whitney & Anor 1975 (3) SA 453 (N) Van Heerden J said at 455:
“The reconstruction of a trial record can seldom be entirely satisfactory and whichever
procedure is adopted in an attempt to achieve a reconstruction has its own limitations. It
seems . . . that the simpler procedure laid down in Wolmarans’ case . . . and the steps
conveniently set out in Nortje’s case should generally be followed as far as they may be
applicable . . . I respectfully agree . . . that it would be particularly valuable if the clerk of
the court performed his task under the direction and supervision of a magistrate, not
necessarily but preferably the presiding magistrate.”
Turning to the instant case as so correctly pointed out by the trial magistrate the
proceedings before him had not terminated and he was not functus officio. As Marais J
said the trial, up till the adjournment in order to ascertain the question of previous
convictions, was a valid trial and what was needed was the administrative task of
compiling the record of proceedings from the best
Page 242 of 1991 (1) ZLR 237 (HC)
available secondary evidence. This required that it be done “in any manner which is fair
and reliable as possible”. In R v Wolmarans, supra, Greenberg JP held that the clerk of
the court must submit the best secondary evidence that he can obtain of the record and
said that he did not propose to prescribe to him in detail how this was to be done but
instead drew his attention to the report of the Attorney General to that court in which it
was revealed that the duty of the clerk of the court was to approach the witnesses and
others present at the trial to obtain an affidavit proof of what the record contained and to
give both parties an opportunity to peruse this so that they may give their versions as
well. Even in R v Nortje, supra, Reynolds J in ordering the clerk of the court to submit
the best secondary evidence he can obtain of the contents of the record, went on to
observe that “it may be as well to as say that as far as possible” the clerk of the court
should adopt the steps mentioned in that case. He did not lay down that was the only
procedure to be followed.
It is clear from the foregoing that the practice has been for some considerable time well
regulated in that the duty of the clerk of the court was to submit the best secondary
evidence that he could obtain.
To summarise, where the accused has pleaded guilty, found guilty and sentenced or has
pleaded not guilty, been found guilty and sentenced and the record is irretrievably lost
prior to review by this court, since the trial court is functus officio, the clerk of the court
must by affidavit indicate that the record is irretrievably lost and should obtain from the
presiding magistrate, witnesses and others present at the trial affidavits as to the contents
of the record and thereafter he must give both parties an opportunity to peruse this so they
may give their version as well. This reconstructed record from the best available
secondary evidence must be sent for review.
On the other hand in part-heard matters, the trial court is not functus officio, the
administrative task of the clerk of the court preferably under the direction and supervision
of the presiding magistrate is to reconstruct the record as best he can. Where the accused
has pleaded guilty, as long as there is no prejudice to him, the record restored by the trial
magistrate in the way he did would be adequate. Where the accused has pleaded not
guilty in part-heard matters the administrative task is once again to obtain the best
secondary evidence. Thereafter, once the evidence and record is restored, the presiding
magistrate must recall all the witnesses in order to enquire whether this agrees with the
evidence given by them previously The accused and the State should be allowed to
cross-examine the witnesses as to the correctness of the contents of the evidence and the
record itself. Where secondary evidence cannot be
Page 243 of 1991 (1) ZLR 237 (HC)
obtained including due to the failure of the mechanically recorded evidence, as long as
the accused is not prejudiced, all the witnesses may be recalled to give evidence once
again. Thereafter the trial must continue in the normal way.
It is most important for all concerned that records of proceedings including exhibits must
be preserved with utmost care. Those operating recording machines must constantly
guard against defective recordings.
In all the circumstances of this case it cannot be said that the proceedings were irregular
in any way. The proceedings are confirmed as being in accordance with real and
substantial justice.
S v MARANGE & ORS
1991 (1) ZLR 244 (SC)
Division: Supreme Court, Harare
Judges: McNally JA, Korsah JA & Ebrahim JA
Subject Area: Criminal appeal
Date: 14 March & 16 May 1991

Criminal law — statutory offences — Parks and Wild Life Act 1975 — s 47(2) — illegal
hunting — onus on prosecution to prove necessary intent.
Criminal procedure — consequences of prosecution failure to inform accused person of
case he has to meet.
Evidence — circumstantial evidence — dangers inherent in drawing conclusions
therefrom — similar fact evidence — general purpose.
Statutory presumption of guilt — circumstances in which onus on accused to prove that it
does not apply.
Legislation — Parks and Wild Life Act 1975 s 2 — s 47(2) — s 84(15) — presumption
of guilt cast upon accused — onus on accused — when presumption can be invoked.
On a charge of illegal hunting in contravention of s 47(2) of the Parks and Wild Life Act
1975 the evidence merely established that the first and second appellants had just alighted
from the vehicle on a public road and that there were five kudu grazing about fifty metres
from where they stood. Their loaded rifle was in the vehicle.
Held, the evidence tendered was not probative of an intention on the part of the first
appellant to hunt.
Held, further, that when the first appellant was arrested he had not yet committed the
offence charged.
Held, further, that accordingly, none of the other appellants were guilty of any offence.
Page 245 of 1991 (1) ZLR 244 (SC)
Cases cited:
S v Green 1962 (3) SA 886 (A)
Teper v R [1952] AC 480; [1952] 2 All ER 447 (PC)
R v Difford 1937 AD 370
R v Hlongwane 1938 NPD 46
S Mushonga for the appellants
A Guvava for the respondents
KORSAH JA: The appellants were convicted of illegal hunting in contravention of s
47(2) of the Parks and Wild Life Act 1975 (“the Act”), and sentenced to varying terms of
imprisonment. They appealed against their convictions and sentences imposed.
The facts are that on 15 October 1989 the five appellants left the first appellant’s home in
Kadoma in a Peugeot pick-up driven by the first appellant. The second appellant,
Mackenzie Bizbani, sat in the passenger seat next to the driver; while the other three
appellants, all of whom were women and two of whom were the wives of the first and
second appellants respectively, sat in the body of the pick-up. The first appellant had with
him, to the knowledge of the other appellants, a .22 rifle, No. LA 55976.
At or near Twin Tops Ranch at Battlefields, fifty kilometres from Kadoma, the first
appellant stopped the vehicle. Mr Douglas Kok (the complainant), who runs a safari
business on the nearby ranch, for reasons which shall hereafter be given, followed the
appellants’ vehicle when first sighted near the ranch by his scouts up to the point where
the appellant stopped his vehicle. The time was about 4.30 pm.
The complainant said that about fifty metres from the spot where the first appellant had
parked his vehicle were five kudus grazing by the roadside. The first and second
appellants were out of the vehicle when he got to them. He asked the first appellant why
he had stopped his vehicle in that vicinity and was informed by the first appellant that he
had stopped because the engine was boiling. The complainant checked the engine and
found that it was not boiling. He said he enquired of the first appellant whether he had a
firearm and the first appellant denied having a weapon. It was only when the complainant
threatened to search his vehicle that the first appellant admitted being in possession of a
firearm and produced the .22 rifle from the floor beneath the driver’s seat and handed it
over to the complainant. The rifle had a live round in the chamber, the catch was off, and
it had four rounds in the magazine.
Page 246 of 1991 (1) ZLR 244 (SC)
The complainant asked for the destination of the appellants and the first appellant
informed him that they were going to the next resettlement area, which was a further
twenty-five kilometres from the Ranch. The complainant arrested the first appellant and
drove him in his (the complainant’s) vehicle to Battlefields Police Station. Although the
second appellant, at the request of the complainant, had agreed to follow them to the
police station in the first appellant’s vehicle, he did not do so.
The complainant said that he followed the first appellant’s vehicle because of certain
information that he had received from his scouts and a neighbour’s son. Part of the
information upon which the complainant acted emanated from Kudakwashe Masere, who
is one of his game scouts residing at Twin Tops Ranch.
Kudakwashe testified that at about 4.30 pm on 8 October 1989, just a week before the
arrest of the appellants, he saw the same blue Peugeot pick-up drive past their compound
with four people in it. About three kilometres from the compound the Peugeot pick-up
turned into a road leading to a dam nearby. He followed the vehicle and heard two shots
being fired. As he approached the vehicle, the vehicle drove past him with only two
persons on the vehicle. They lay in wait for the vehicle all night, expecting it to return for
the other two occupants, but it did not return. He made a report of the incident to the
complainant.
On 15 October 1989 Kudakwashe observed the same motor vehicle drive past their
compound at around the same time as on 8 October 1989. He informed the complainant,
who instructed the game scouts to get into his vehicle, and then proceeded to tail the
appellants to where the first appellant had stopped his vehicle. Kudakwashe had,
however, to admit under cross-examination that not once, on the occasions that he saw
the first appellant’s vehicle, did he see the vehicle transporting any game, but also said
that on all the occasions that he had sighted the first appellant’s vehicle never had he
observed it carrying vegetables.
The road passing through Twin Tops Ranch and on which the first appellant parked his
vehicle is a public thoroughfare. The appellants all denied that they were on that road
with the intention to hunt or kill any animal. The onus was, therefore, on the prosecution
to prove that they possessed the necessary intent.
The first appellant said he was the owner of a vegetable market at Kadoma.
Page 247 of 1991 (1) ZLR 244 (SC)
On 15 October 1989 he wanted to go to the resettlement area to buy vegetables. He drove
his car to the Battlefields area and took the road to the resettlement area. They drove past
a ranch where there were humps on the road. Having passed the ranch he noticed that
there was a motor vehicle following them. After a distance of three kilometres from the
ranch the vehicle trailing him overtook him and stopped him. The complainant asked why
he was driving so slowly and he told the complainant that he was having problems with
his motor vehicle. He said the complainant asked him whether he had a rifle, he answered
in the affirmative, but refused to give it to the complainant; whereupon the complainant
checked the front part of the driver’s seat and recovered the .22 rifle from the floor.
I must state here and now that insofar as discrepancies appear in the accounts of the
complainant and the first appellant, I am inclined to give greater credence to the
testimony of the complainant than to that of the first appellant; not only because the
complainant had nothing to gain by fabricating a story against a man who was a stranger
to him but also because the complainant’s testimony was fully corroborated by that of
Kudakwashe and had a ring of truth about it. But even so, was the evidence proffered by
the prosecution probative of an intention on the part of the first appellant to hunt?
The definition of “hunt” in s 2 of the Act is:
“(a) to kill, injure, shoot at or capture; or
 (b) with intent to kill, injure, shoot at or capture, to wilfully disturb or molest
by any method; or
(c) with intent to kill, injure, shoot at or capture, to lie in wait for, follow or
search for;”
Of these heads the one most likely to apply to the appellants is (c), as the accepted facts
were that the appellants were trailed and found standing by their car on a public
thoroughfare with kudus grazing fifty metres from where the car was parked. The State’s
case could be put no higher than that.
The learned trial magistrate reasoned that:
“Accused accepts that he had driven past the same ranch on previous occasions and that
this is a road used by other motorists proceeding to the resettlement area. But it is clear
from the evidence of the State witnesses that this particular motor vehicle attracted
specific attention of the game scouts. It could not have been because of its colour or
white tyre alone
Page 248 of 1991 (1) ZLR 244 (SC)
but its movements. Its movements must have led the game scouts to suspect or believe
that it was being used in poaching. So convinced was the second State witness that the
motor vehicle was being used in poaching that he put it to Accused No. 1 that he had a
firearm in the motor vehicle. The Accused had no good reason at all for the possession of
the rifle. Accused No. 1 knew that it was supposed to be kept at home under lock and
key. If he was going to the resettlement area to buy vegetables he had no pressing reason
to arm himself. He admits that he had live rounds. In fact he had a bullet in the chamber.
He also had a few rounds in the magazine. Surely if he was not on a mission whose
object was to use the firearm would he have had to prepare the firearm in readiness for
use at any given time during the course of the journey? He obviously would not. I am
satisfied that the fact that Accused No. 1 had the loaded rifle conveniently placed on the
floor of the motor vehicle just below the driver’s seat was because he intended to use it
when need arose.”
The learned trial magistrate came to this conclusion because of the overwhelming weight
of the circumstantial evidence placed before him.
Firstly, the learned trial magistrate placed great reliance on similar fact evidence and
rightly emphasised in his reply to the grounds of appeal against conviction that he was
legally entitled so to do. Ogilvie Thompson JA observed in S v Green 1962 (3) SA 886
(A) at p 894B-C that:
“For, as was stated in R v Katz & Anor, supra, and reaffirmed in R v Roets, supra, the
general exclusionary rule that the prosecution may not prove that the accused has
committed crimes other than the one charged is not an absolute one. In the words of
Watermeyer CJ in R v Katz & Anor, supra, at p 79:
‘It only operates to exclude such evidence when such evidence is solely relevant to show
that the accused, by reason of his bad character or his commission of other crimes, had a
criminal propensity and was, therefore, likely to commit the crime with which he was
charged. If, for any other reason, it is relevant to the question before the Court it is
admissible’.”
In the instant case the fact that the first appellant’s vehicle had previously been observed
in suspicious circumstances may assist in drawing the inference that he was once again in
the vicinity of the ranch for some illegal purpose. But from the circumstantial evidence
adduced, inclusive of the
Page 249 of 1991 (1) ZLR 244 (SC)
similar fact evidence, all that one can really infer is that the first appellant was there for
some unlawful purpose, possibly even with an intention to hunt, but does that constitute
the offence charged? Before I answer this question, I wish to draw attention to the
dangers inherent in drawing conclusions from circumstantial evidence. Lord Normand
observed in Teper v R [1952] AC 480 at 489 that:
“Circumstantial evidence may sometimes be conclusive, but it must always be narrowly
examined, if only because evidence of this kind may be fabricated to cast doubt on
another. Joseph commanded the steward of his house, ‘put my cup, the silver cup, in the
sacks’ “mouth of the youngest,” and when the cup was found there Benjamin’s brethren
too hastily assumed that he must have stolen it. It is also necessary before drawing the
inference of the accused’s guilt from circumstantial evidence to be sure that there are no
other co-existing circumstances which would weaken or destroy the inference.”
I ask myself, is the inference that the first appellant was hunting at Twin Tops Ranch the
only one to be drawn from the circumstantial evidence? While the circumstantial
evidence leaves me with a strong suspicion that he was up to no good, it cannot be said
that the circumstantial evidence proffered excludes any other conclusion. Even if the first
appellant’s explanation that he was on his way to purchase vegetables from the
resettlement area does not have a ring of truth about it, it still is not inconsistent with the
circumstantial evidence and remains a possible explanation of his presence on a public
thoroughfare adjacent to the ranch. At best, the circumstantial evidence raised no more
than a very strong suspicion that the first appellant was there to hunt. The learned trial
magistrate could not have been satisfied that the explanation was false. R v Difford 1937
AD 370. The learned trial magistrate fell into error when he concluded that the
circumstantial evidence adduced led irresistibly to the conclusion that the first appellant
was guilty of a contravention of s 47(2) as charged.
It seems to me that the State appreciated the error into which the learned trial magistrate
fallen and attempted to mend its fences by raising in its heads of argument, for the first
time on appeal, the presumption of guilt which subs (15) of s 84 of the Act casts upon the
first appellant. The said section recites that:
“(15) If any person is seen or found —
(a) on any land, on which there are animals, in possession of any
Page 250 of 1991 (1) ZLR 244 (SC)
weapon capable of killing any animal by the discharge of any missile or with a
free ranging dog; or
(b) within one hundred metres of any waters in possession of any gear, device or
appliance capable of being used for fishing;
he shall be deemed to have entered upon such land for the purpose of hunting or fishing,
as the case may be, without authority in terms of this Act unless it is proved that he —
(i) had such authority to enter upon such land for the purpose of hunting or
fishing;
(ii) was not upon such land for that purpose.” (Emphasis supplied.)
To begin with, at no time during their trial were the appellants apprised of the onus that
lay on them. It seems to me that an accused person is entitled to be informed of the case
which he has to meet and failure on the part of the prosecution to so inform him may
result in the prosecution proving nothing against the accused. See R v Hlongwane 1938
NPD 46. On the other hand, the State may proffer sufficient evidence in support of the
offence to cast upon the accused the onus of proving that the presumption does not apply.
The question is: Did the prosecution lead sufficient evidence to raise the presumption
that the appellants were hunting?
The presumption can only be invoked if any a person is found on any land on which there
are animals. The appellants were found on a public thoroughfare and not on Twin Tops
Ranch. But even if the phrase any land can be stretched to cover a public thoroughfare
adjacent to a safari area, there is still another obstacle which the State failed to surmount.
The State should at least have adduced evidence that the first appellant did injure, shoot
at or capture, or lie in wait for, follow or search for any animal in terms of the definition
of “hunt”. All that the evidence established was that the first and second appellants had
just alighted from the vehicle and that there were five kudus grazing about fifty metres
from where they stood. The rifle was still in the vehicle. Even though there was a live
bullet in the chamber it can hardly be said that they were lying in wait for any animal
when they were arrested by the complainant. Perhaps if the complainant had waited for
the first appellant to take the rifle out of the vehicle one may have been persuaded to the
view that they were lying in wait with intent to kill, injure, shoot at or capture an animal.
It seems to me, for want of a better phrase, that the complainant jumped the gun, when he
arrested the first appellant in the circumstances that he did; for he had not yet committed
the offence charged.
Page 251 of 1991 (1) ZLR 244 (SC)
If the first appellant was not guilty of the offence charged, then none of the other
appellants were guilty of any offence.
In the result, the appeals succeed; the convictions are quashed, and the sentences imposed
are set aside.
McNally JA: I agree.
Ebrahim JA: I agree.
Mushonga & Associates, appellants’ legal practitioners
S v WOLDERMAR
1991 (1) ZLR 252 (SC)
Division: Supreme Court, Bulawayo
Judges: Manyarara JA & Korsah JA
Subject Area: Criminal appeal
Date: 3 April & 20 May 1991

Criminal law — Road Traffic Act 1976 — s 46(1) — offence of “driving whilst drunk”
— circumstances in which offence is proved.
Criminal law — Road Traffic Act 1976 — s 68(6) — offence of failing to provide a
sample of blood for analysis — whether “reasonable excuse” for such failure exists —
principles for determination of existence or otherwise of “reasonable excuse” — whether
fear of contracting AIDS may constitute such excuse.
Whilst negligence does not amount by itself to proof of drunken driving it is nevertheless
most important evidence proving intoxication.
The appellant had declined to provide a sample of her blood for testing of its alcohol
content on the ground of her fear of contracting the HIV virus from the needle used to
extract the sample. In the absence of previous local decisions as to the meaning of
“reasonable excuse” the court adopted the following principles:
(i) Whether or not an excuse for failure to give a blood sample is reasonable
is a question of mixed law and fact.
(ii) The onus of proving that the accused had no reasonable excuse for
refusing to provide a blood sample lies on the State but the accused carries the evidential
burden of laying a foundation for it.
(iii) In practice most cases of reasonable excuse will be predicated on medical
grounds and may relate to the physical health or mental condition of the motorist.
(iv) The test of reasonable excuse is an objective one and the grounds upon
which the excuse is predicated must be of a very extreme
Page 253 of 1991 (1) ZLR 252 (SC)
character to constitute reasonable excuse.
(v) What constitutes reasonable excuse must be determined in relation to the
provision creating the offence: its effect abridges personal liberty and it can be properly
inferred that this was the intention of the law-maker.
(vi) Honest and reasonable belief in the existence of facts which objectively
constitute reasonable excuse is no defence if the accused’s view of the facts is wrong.
(vii) It is impractical to place rigid limits on what may constitute reasonable
excuse in advance of all the possible factual situations which may arise. At the end of the
day, reasonable excuse involves a consideration of whether a reasonable man in the
motorist’s position would be acting sensibly in refusing to provide a blood sample and of
how far the admission of the excuse would defeat the overriding intention to protect the
public from drunken drivers.
The evidence adduced at the trial established that the appellant did not mention to the
doctor authorised to take a sample of her blood any fear she had of contracting AIDS
through an unsterile needle nor did she give any reason for her refusal to give blood.
Held, accordingly, that the appellant had failed to lay any foundation for her claim to
have had a reasonable excuse for declining to provide a sample.
Cases cited:
R v Peterson & Ors 1970 (1) RLR 49 (G); 1971 (2) SA 130 (R)
S v Zikhali S-221-81 (not reported)
S v Collington 1970 (2) RLR 6 (G); 1970 (4) SA 325 (R)
S v Glegg 1973 (1) SA 34 (A)
R v Sibanda & Ors 1965 RLR 363 (A); 1965 (4) SA 241 (RA)
S v Brumpton 1976 (3) SA 236 (T)
J S Sayce for the appellant
G A J Hooper for the respondent
MANYARARA JA: This case raises for probably the first time in this jurisdiction the
question whether fear of being infected with the HIV virus (commonly called AIDS) is
reasonable excuse for refusing to give a blood sample in terms of statute.
The appellant is a married woman aged 42 years. She was convicted in the Bulawayo
Magistrates Court on 27 July 1990 on two counts of contravening the Road Traffic Act,
1976. The first count related to her driving whilst under
Page 254 of 1991 (1) ZLR 252 (SC)
the influence of alcohol to such an extent as to be incapable of having proper control of a
vehicle which is a contravention of s 46(1) of the Act. It is the second count which raises
the novel question I have mentioned, that without reasonable excuse she refused to permit
the taking of a blood sample in contravention of s 68(6) of the Act.
The sentence imposed on each count was a fine of $250 or, in default of payment, two
months’ imprisonment with labour and prohibition from driving all classes of motor
vehicle for a period of six months. The two prohibition orders were ordered to run
concurrently and her driver’s licence was ordered cancelled.
The appeal is against both convictions only and Mr Sayce appears for the appellant. His
argument relating to the first count is that there was no evidence apart from that of his
client as to how the accident occurred. On the second count, he argues that she had
reasonable excuse for refusing to give a blood sample because the doctor in attendance
failed to satisfy her that the needle was sterile.
A ground of appeal alleging that there was an improper splitting of charges has been
correctly abandoned at the hearing in the light of the test laid down in cases like R v
Peterson & Ors 1970 (1) RLR 49 (G); 1971 (2) SA 130 (R), and nothing further will be
said on this ground.
The events leading to the prosecution are these:
On 13 July 1989 at about 5.30 pm the appellant and her brother, Brian Stewart
MacMaster, drove to a Bulawayo cemetery in their separate vehicles to view a newly-laid
tombstone on their mother’s grave. She had died about one month before. The appellant
and MacMaster were in the cemetery for approximately half an hour. Thereafter they
proceeded home, stopping on the way for a drink at the Legion Club situated at the corner
of Main Street and Sixth Avenue. They stayed at the Club for about an hour, in the course
of which the appellant consumed two tots of vodka with soda. On leaving the Club, the
appellant drove ahead of MacMaster along Main Street and turned left into Leopold
Takawira Avenue. MacMaster was stopped by the red robot at the intersection.
When the appellant approached the intersection of Leopold Takawira Avenue with Fife
Street, she collided with the rear of a vehicle which was in front of her and was stationary
at a red robot. She caused damage to the vehicle
Page 255 of 1991 (1) ZLR 252 (SC)
which she has since had repaired at a cost of $250. The collision occurred just before 7.45
pm.
The police arrived at the scene after the vehicles had been removed and the parties were
already at the nearby Central Police Station. Patrol Officer Carlson and Constable
Maguta were on duty. They suspected that the appellant was drunk so they conveyed her
to the Traffic Office where Inspector Hamamuti conducted the usual tests and he also
formed the opinion that she was drunk.
However, the breathalyser was out of order and Hamamuti instructed Carlson and
Maguta to convey the appellant to the Central Hospital to give a blood sample. She was
reluctant to go. But after some persuasion by MacMaster who had followed her to the
Traffic Office she got into the police vehicle. MacMaster again followed her to the
hospital. On arrival at the hospital, the appellant refused to give the required sample of
blood despite further attempts by MacMaster to get her to comply.
MacMaster did not witness the accident. All he saw after he entered Leopold Takawira
Avenue was the coming on of a vehicle’s brake lights ahead of him and the sudden
opening of car doors. He followed the appellant to Police Central and remained nearby
throughout the subsequent events of that evening.
I shall consider firstly the drunken driving charge. There was no eye witness to the
collision. The evidence for the State commenced with the arrival of the parties at Police
Central.
Maguta said that there was a distinct smell of alcohol on the appellant’s breath when he
and Carlson spoke to her. She was uncooperative when he asked her for her particulars.
She also refused to accompany him to the scene of the accident which MacMaster
confirmed.
Carlson confirms that he sent Maguta to return to the scene with the complainant leaving
the appellant at the Police Station. His evidence proceeds as follows:
“Outside the Charge Office at Bulawayo Central I asked the accused if she had been
drinking. She said she had had a few drinks and all that she wanted was to have the
accident sorted out. . . . I witnessed that accused’s eyes were glassy and there was a
distinct smell of alcohol from her mouth. I then informed the Traffic Duty Inspector
(Hamamuti) that
Page 256 of 1991 (1) ZLR 252 (SC)
we had a possible suspect of drunken driving (and) we conveyed the accused to
Traffic . . .”
Maguta says that the appellant was “agitated and very angry” when she was brought
before Inspector Hamamuti at the Traffic Office. Carlson is uncertain of her mood at the
time.
Hamamuti observed the appellant from 8.21 pm to 8.42 pm and recorded his observations
on the pro forma document. He noted that there was a “faint smell of alcohol” on her
breath and she told him that she had consumed two tots of vodka. Her pupils were
contracted, her speech loud and she staggered. He demonstrated to her how she should
walk along a straight seam on the floor tiles and she failed to do so. He found her
talkative but polite but she banged the table when he told her that the breathalyser was
out of order and she would be taken to the Central Hospital for a blood-alcohol test. He
formed the impression that she was “moderately drunk (and) incapable of having proper
control of a vehicle”.
Carlson confirms Hamamuti’s evidence of the appellant’s failure to walk in a straight line
and that she appeared to be unsteady on her feet. He says that at this stage he left the
office but returned when he heard a loud bang on the table. Hamamuti had then instructed
him and Maguta to take the appellant to the hospital to give a blood sample.
The appellant’s explanation for the collision is that the sight of her mother’s grave upset
her emotionally and the cause of the collision was the emotional state she was in rather
than the alcohol she had consumed, although she was only “an occasional drinker”. She
says that when she approached the intersection where the accident occurred she
“misjudged the distance” between her vehicle and the vehicle in front during a moment of
inattention and applied her brakes when it was too late to avoid the collision.
Her explanation of her behaviour in Hamamuti’s office proceeds as follows:
“At Bulawayo Traffic after being told of the blood test, I had a relapse of emotion. I can’t
recall banging the table, but then I was upset. I thought I was able to stand on my feet. I
recall walking along a line. I could not see it very clearly as it was (a line of) tiles on the
floor. The line was a seam between two sets of tiles.”
The prosecutor cross-examined the appellant in the following manner:
Page 257 of 1991 (1) ZLR 252 (SC)
“On the day in question you had your brother? — Yes.
You went to drink at the Legion Club from the cemetery? — Yes.
You well knew you were to drive a motor vehicle back home thereafter? — That’s right,
hence I only had two drinks.
What two drinks? — 1 tot in a glass and a bottle of soda in each glass.
You were upset? — Yes.
Why did you decide to drink and drive when upset rather than let your brother drive? —
My brother needed his own car when we left for the cemetery. I was completely capable
of driving.
What then made you bump into the rear of the motor vehicle which was stationary? — I
applied brakes but the car didn’t stop in time.
By failing to apply brakes in time you failed to keep the car under proper control? —
Yes I misjudged distance.
Not correct that alcohol you had taken impaired your judgment? — I don’t think that the
two drinks affected my driving.
When police told you the breath machine was out of order what made you to be upset
again? — I didn’t want to go for a blood test.”
In her evidence-in-chief, the appellant says that when Maguta and Carlson said that they
were taking her to the Traffic Office she assumed it was for a breath test and she was
upset when she was told of a blood test. She was asked in cross-examination what she
expected the police to do if the breathalyser was not working and her reply was that she
did not know but expected that “another method had been found these days”. The point
was not pursued. The appellant did not recall banging on the table and denied the
possibility that she might have consumed more than two tots of vodka at the Club.
The cross-examination continued as follows:
“Correct that the Duty Inspector demonstrated to you how to walk in a straight line? —
He showed me, how to do it, yes.
Correct that you walked from left to right? — I could not see how I was walking, but I
think I was walking correctly.
You could not see the line clearly due to alcohol influence? — It wasn’t a line, but a
seam.”
Although there was no medical evidence because of the malfunctioning of the
breathalyser and the appellant’s refusal to give a blood sample, the
Page 258 of 1991 (1) ZLR 252 (SC)
magistrate was satisfied that the State had proved beyond reasonable doubt that the
appellant drove whilst drunk. He relied on the following factors —
(1) The appellant’s admission that she had consumed alcohol before the
accident occurred;
(2) That thereafter, whilst driving her motor vehicle, she collided with a
stationary vehicle in circumstances which indicated that her faculties must have been
impaired by the alcohol she had consumed;
 (3) That thereafter Hamamuti who was an experienced police officer
conducted the tests he described and concluded that she was drunk and incapable of
having proper control of a vehicle; and
(4) That there was corroboration for Hamamuti’s evidence in the evidence of
Maguta and Carlson on the appellant’s state of insobriety soon after the accident.
Mr Sayce has criticized the reliability of the evidence of the State witnesses on the
appellant’s insobriety. He argues that there are certain inconsistencies in the evidence of
Carlson and Maguta on the appellant’s demeanour and despite Hamamuti’s twenty-seven
years’ police experience he was unqualified to conclude that the appellant was unfit to
drive. Mr Sayce’s written argument proceeds as follows:
“In the first place there were a number of inconsistencies between the Inspector’s viva
voce evidence and the observations fromm exhibit 3. . . . More importantly, perhaps, the
test of walking in a straight line along a line of joints in floor tiles seems to have been
unusually difficult as compared to walking along an easily visible painted line and the
suggestion that appellant was staggering is no more than another aspect of her alleged
inability to walk a straight line.”
Mr Sayce submits that if on the evidence the appellant is not guilty of contravening s
46(1) of the Act she cannot be convicted under either s 45(1), as there is no medical
evidence of her blood alcohol content, or under s 43(1) as this is not a competent
alternative verdict to contravening s 46(1). He is correct. However, I take issue with his
contention that the available evidence fell short of being very clear to sustain a conviction
under s 46(1). It seems to me that Mr Sayce’s reliance on S v Zikhali S-221-81 (not
reported) is misplaced. That case went the way it did for the reasons summarized at p 3-4
of the cyclostyled judgment as follows:
Page 259 of 1991 (1) ZLR 252 (SC)
“In the present case there was not even an assertion by any witness that the appellant was
so intoxicated as not to be able to have proper control of a vehicle. Despite statements
made by some of the witnesses that the appellant appeared to have been drinking, no one
spoke of any symptoms which supported that conclusion — the appellant did not stagger,
nor was his speech slurred.
Nor could it be safe to conclude from the fact than an accident occurred that the appellant
was under the influence of liquor, although he may have been driving negligently or even
recklessly. R v Spicer 1945 AD 433 at p 441. The road was steep and winding at the
point where the vehicle skidded and overturned, and it was probably raining heavily at
the time, if not hailing. In addition, the appellant seems to have had a reputation for fast
driving, which may go some way to explain the accident on a basis other than his
drunkenness. There was no evidence of erratic driving before the vehicle skidded save for
an incident of reckless or negligent overtaking.”
My view is that S v Collington 1970 (2) RLR 6 (G); 1970 (4) SA 325 (R) is more in
point. The relevant authorities are considered in the judgment and in my respectful view
the correct principles are summarized by Beadle CJ, firstly at 12A-E as follows:
“The courts have interpreted the words ‘while under the influence of intoxicating liquor’
as meaning that ‘the skill and judgment normally required of a driver is diminished or
impaired as a direct result of the consumption of intoxicating liquor’. See Cooper and
Bamford South African Motor Law; 1965 Edn, p. 334, and cases there cited. This test
applied by the South African courts is virtually indistinguishable from the tests laid down
in our Act, which is being under the influence of liquor to an extent of being incapable of
having proper control of the vehicle, South African decisions on their Ordinances are,
therefore, in point. See R v de Labilliere 1936 SR 226, and Benham v R 1950 SR 87.
The leading South African case is the case of R v Spicer 1945 AD 433. In that case,
Greenberg JA said (see p 436):
‘The point is not whether the diminution is obvious or not; the driver in question, though
bearing no obvious signs of intoxication, may possibly in fact be so much under the
influence of liquor that it would be a danger to the public and to himself to allow him to
drive a car, and, in our opinion, would be covered by the subsection.’
Page 260 of 1991 (1) ZLR 252 (SC)
The inference from this passage is clear. The drunken driver ought not to be allowed to
drive at all. This is quite inconsistent with the requirement that he must be allowed to
drive in order to manifest his drunkenness, by the manner of his driving.”
And at 13G-I:
“I do not want it to be understood, however, that the manner in which the accused
actually drives is an irrelevant consideration in determining his guilt under the section.
Far from it: the manner in which the accused actually drives is most important evidence
proving his state of intoxication; but the State can secure a conviction even though the
accused drives perfectly, provided that the court is satisfied, from other evidence, that he
was so drunk that the only conclusion which can be drawn is that he was not capable of
being in proper control of a car at the time. For example, even though he was driving
perfectly at the time, it may be inferred, from his state of intoxication, that, if he was
faced with a sudden emergency, he would be incapable of exercising that degree of skill
which would be required of a normal driver, and to that extent would be incapable of
having proper control of the vehicle.”
I suggest that the test applied by the magistrate to this case accords with the principles
enunciated in Collington’s case, supra. As Mr Hooper for the State submitted, the
magistrate took into account the appellant’s own description of how the accident occurred
and specifically warned himself that negligent driving is not proof of driving whilst
impaired by alcohol. Compare Zikhali’s case, supra.
On the appellant’s evidence, she was “an occasional drinker” who had consumed two tots
of vodka before the accident occurred. This is direct evidence of consumption of alcohol,
the first element of the offence of contravening s 46(1).
Soon after she consumed the alcohol the appellant, again on her own admission, drove
into the boot of a vehicle which was right in front of her and stationary at a robot-
controlled intersection. The only reasonable inference to be drawn from these facts is
that there was an impairment or diminution of her faculties due to the alcohol she had
consumed. She was incapable of exercising the degree of skill required of a normal driver
in the circumstances and the reason for the “momentary inadvertence” she alleged was
traceable to alcohol.
Page 261 of 1991 (1) ZLR 252 (SC)
What is the sequel to the collision? No less than three policemen, one of them an
Inspector of twenty-seven years’ experience in the Police Force, detect a smell of alcohol
on the appellant’s breath which causes each witness to suspect that she is drunk. She is
obstreperous with at least two of the police officers. When brought before Hamamuti, she
staggers and is unable to talk in a straight line, however generous an allowance one may
make for the fact that this was not the normal white line but a seam in the floor tiles. She
shouts and screams just because the breathalyser was out of order. She agreed to go for a
blood alcohol test after considerable persuasion by MacMaster. Dr Zulnawas who
attempted to take a blood sample describes her mood as aggressive and says she was
“restless” and eventually walked out of the hospital.
The magistrate believed the State witnesses’ description of the appellant’s condition. In
my view, he was entitled to reach the conclusion he did on the basis of the principles
enunciated in Collington’s case, supra.
I am satisfied that the conviction of contravening s 46(1) as proper and I proceed to
consider the conviction of contravening s 68(6) of the Act, that the appellant, without
reasonable excuse, refused to permit the taking of a specimen of blood.
The Act does not define what is meant by “reasonable excuse” and in construing the
phrase one must resort to general principles. Counsel have been unable to refer us to any
precedent from our jurisdiction but to the principles and authorities referred to in Smith &
Hogan’s Criminal Law 4 ed published in 1978 at p 476-478 on the meaning which the
phrase has been given in England and Wales. The passage does not appear in the later
editions of the work. I assume that this is because the meaning of “reasonable excuse” in
English law is regarded as settled.
The principles set out in the passage referred to may be summarized as follows:
1. Whether or not an excuse for failure to give a blood sample is reasonable
is a question of mixed law and fact.
2. The onus of proving that the accused had no reasonable excuse of refusing
to provide a blood sample lies on the State but the accused carried the evidential burden
of laying a foundation for it.
3. In practice most cases of reasonable excuse will be predicated on medical
grounds and may relate to the physical health or mental condition of the motorist.
Page 262 of 1991 (1) ZLR 252 (SC)
4. The test of reasonable excuse is an objective one and the grounds upon
which the excuse is predicated must be of a very extreme character to constitute
reasonable excuse.
5. What constitutes reasonable excuse must be determined in relation to the
provision creating the offence: its effect abridges personal liberty and it can be properly
inferred that this was the intention of the law-maker.
6. Honest and reasonable belief in the existence of facts which objectively
constitute reasonable excuse is no defence if the accused’s view of the facts is wrong.
7. It is impractical to place rigid limits on what may constitute reasonable
excuse in advance of all the possible factual situations which may arise. At the end of the
day, reasonable excuse involves a consideration of whether a reasonable man in the
motorist’s position would be acting sensibly in refusing to provide a blood sample and of
how far the admission of the excuse would defeat the overriding intention to protect the
public from drunken drivers.
Counsel are agreed that it is these principles which must be applied to the present case in
the absence of any precedent in this jurisdiction. In this regard I am attracted to Mr
Hooper’s submission that the acid test is to ask oneself whether what the appellant says
is: “I cannot provide a blood sample,” or “I ought not to provide a blood sample”. If it is
the former, she may have reasonable excuse but if it is the latter she has none.
There are two stages to the enquiry which Mr Hooper suggested. The first is to establish
the facts and the second to determine, on the basis of the facts, whether the appellant’s
excuse is reasonable or not.
The relevant facts in the present case are these:
Firstly, the appellant became very aggressive when Inspector Hamamuti announced his
decision to send her to the hospital for a blood alcohol test. But she did not tell him why
she was unwilling to comply although she had been prepared to submit to a breath
analysis.
Secondly, the appellant was unwilling to get into the police vehicle taking her to the
hospital until MacMaster persuaded her to go. The defence did not elicit from this
witness any explanation for the appellant’s initial reluctance to undergo the blood test. It
was content to lead him only on what transpired when the appellant reached the hospital,
in respect of which the witness’s evidence was as follows:
Page 263 of 1991 (1) ZLR 252 (SC)
“There the accused sat on a bench and waited. The doctor came and asked to take a blood
sample from her and she refused and he said that he could not force her. My brother-in-
law was also present and two or three police details. I don’t know if the accused gave a
reason for her refusal or not.”
Carlson’s evidence reads as follows:
“Accused was hesitant to come with me and refused saying no-one was going to take
blood from her while a certain gentleman came and persuaded accused to comply. When
outside the office accused went and sat on a rock. After more persuasion she went into
police motor vehicle and we took her to hospital and the gentleman followed there in his
car.
At the hospital I located the doctor on duty and told him that we had a suspect of drunken
driving and we would like him to take blood samples. He asked me where the accused
was. I took accused to doctor who explained to accused the procedure and that it was an
offence to refuse to submit to blood sample taking. Doctor later informed me that accused
had refused and I asked him to state it on written authority. I got back the authority doctor
had endorsed. Exhibit 4 is the one . . .”
It was after the prosecutor asked Carlson questions which seem to me to have been
somewhat leading that the witness said:
“Accused said that she was not prepared to contract AIDS and the needles were dirty and
this was in the doctor’s presence and also at Bulawayo Traffic. I do not think that Maguta
was present when the doctor wanted to take a blood sample.”
There was a similar break in the evidence of Maguta relating to when it was that the
appellant might have mentioned AIDS. The first and apparently spontaneous portion of
his evidence reads as follows:
“When we conveyed (the appellant) to Bulawayo Central Hospital, I advised her that she
was not allowed to drink or eat anything or smoke until the blood samples were taken
from her. On the way she attempted to smoke on three occasions but I forbade her and
she was very talkative . . . We went and gave the doctor the (written) authority but the
accused said she was not going to have her blood taken. This was when I asked her to go
inside the doctor’s room (cubicle). The accused never went to the doctor. The doctor only
wrote on the written authority that the accused had refused to have her blood taken.”
Page 264 of 1991 (1) ZLR 252 (SC)
It is here that there seems to be a break in the spontaneity of Maguta’s evidence as well
because his next averments are these:
“The accused said that she was not going to have samples taken because the needles were
used on many people and she might contract AIDS. We then came back the doctor tried
to speak to the accused but she never replied or listened.”
Maguta was asked in cross-examination if the person to who the appellant mentioned
AIDS was himself or the doctor and he said it was mentioned to him first. Then he says
he “never saw the doctor talking to the accused”.
I turn to the evidence of Dr Zulnawas which reads as follows:
“At 21.30 hours on 13-07-89 I was on duty at Bulawayo Central Hospital and Police
brought this written authority to me and accused. I then explained to accused that Police
are requiring that I take blood sample from her for analysis and accused refused to submit
after I told her of the set procedure. I then endorsed on written authority that accused had
refused to submit. Accused never gave any reason for her refusal. She merely stated that
she didn’t want any blood sample to be taken from her.” (My emphasis.)
The cross-examination of the doctor by the defence did not pursue with him why he
referred to AIDS in his evidence-in-chief if the appellant had not raised the question with
him in the first place. It was for the defence to conduct its case in the manner it did. But
its failure to elicit the evidence necessary to lay a foundation for reasonable excuse
seriously weakens the submissions now made by Mr Sayce in the appeal.
My respectful view is that one is entitled to conclude that whilst there is a possibility that
the appellant mentioned her fear of contracting AIDS to one or other of the police details
who conveyed her to the hospital, this was not the excuse she gave to the doctor for
refusing to give a blood sample.
I am not suggesting that the police details were being untruthful in their evidence, only
that they were mistaken. As I have said, it was MacMaster who persuaded the appellant
to go to the hospital in the first place. He was present with the two police details and the
appellant’s husband when Dr Zulnawas attempted to obtain the required sample. He
makes no mention whatsoever of the subject of AIDS and he could have had no reason to
lie
Page 265 of 1991 (1) ZLR 252 (SC)
against the appellant. She was his sister for whose welfare he demonstrated great concern
throughout the events of that fateful evening. The defence did not call the appellant’s
husband to give any evidence at all at the trial and it must be assumed that he was not in a
position to take the appellant’s case any further.
In this regard the magistrate has seriously misdirected himself on the facts in the
confusing passage of his judgment which states that once the appellant was told of the
blood test she cried and said she feared she might contract AIDS. The facts established by
the evidence are that if the appellant mentioned AIDS it was not when Hamamuti said he
was sending her for a blood test or when MacMaster prevailed on her to go through with
the test.
The appeal collapses at the very first hurdle set out by Smith & Hogan. The appellant has
not laid the required foundation for reasonable excuse for refusing to give a blood sample
and there was no evidence for the prosecution to negative.
The only point open to Mr Sayce to make and which he made is summarized in his
written heads of argument as follows:
“As the trial court accepted, it is notorious that infection with the HIV virus leads to
AIDS and death. It is accordingly submitted that in the absence of clear evidence that a
reasonable person in appellant’s shoes would have been satisfied as to the needle’s
sterility it was not proper to convict the appellant of this offence. Unless, a reasonable
person would be satisfied as to the needle’s sterility a refusal to give a blood sample is
perfectly proper.
It is further submitted that even if a suspected person is told that a particular needle is
sterile it is still not unreasonable of him or her, in the light of the fatal consequences of
contracting AIDS, to refuse a sample unless the needle i sterilised in front of his eyes. In
the instant case there is no suggestion that the doctor offered to do this despite being told
the reason for appellant’s refusal. It would have been a simple matter to sterilise the
needle again in front of appellant. If this had been done her refusal could hardly have
been reasonable.”
With respect, this is casting on the State an onus which is greater than the required proof
beyond reasonable doubt. See S v Glegg 1973 (1) SA 34 (A) at 38-39 of the English
translation, the passage which reads as follows:
Page 266 of 1991 (1) ZLR 252 (SC)
“When the State must prove its case in such a way that the judex facti must be convinced
that the offence was committed, it is not expected of the judex that his conviction must be
based on a certainty which consists therein that an unlimited number of possibilities
raised by the defence, which are hypothetical or merely speculative, must be eliminated
by the State. The concept ‘reasonable doubt’ cannot be precisely defined, but this can be
said; that it is a doubt which exists because of probabilities or possibilities which are
considered reasonable on the ground of general human experience and knowledge. Proof
beyond a reasonable doubt is not equated with proof beyond the slightest doubt, because
the onus to render proof at so high a standard, would frustrate the administration of the
criminal law.”
See also R v Sibanda & Ors 1965 RLR 363 (A) at 370-371; 1965 (4) SA 241 (RA) at
246-247.
In the present case as in Glegg, the magistrate was entitled by the evidence to conclude
that no reasonable person in the appellant’s position could possibly doubt that the needle
was sterile.
It was up to the appellant to say to the doctor, “It is all very well for you to tell me that
the needle is sterile but prove it”, or words to that effect prompting the doctor to do what
Mr Sayce now suggests. If that had happened and the doctor then failed to assure or re-
assure the appellant in a manner satisfactory to her, cadit questio — Mr Sayce’s
submission would then be unassailable.
I attach great weight to the fact that nowhere in cross-examination was it put directly to
the doctor that the appellant said either to him or to anyone else in the doctor’s presence
that she did not want to give a blood sample because the needle might be contaminated
with the AIDS virus. I am satisfied that my reasoning is correct. Nor was the doctor’s
evidence that the needle was prepacked and sterile inadmissible hearsay as Mr Sayce
suggests, relying on S v Brumpton 1976 (3) SA 236 (T). That case dealt with reliance by
a doctor on a manufacturer’s label as proof that the contents of a bottle which he used to
clean the accused’s skin before taking a blood sample were what the label stated. The
distinction between Brumpton and the present case is obvious. The issue here is whether
Dr Zulnawas was required to re-sterilise a pre-packed needle bearing the manufacturer’s
guarantee that the needle was sterile for no scientific or other sensible reason.
I suggest that no reasonable person in the doctor’s position would be acting
Page 267 of 1991 (1) ZLR 252 (SC)
sensibly if he did as Mr Sayce suggests. There is a presumption of regularity in the
execution of scientific procedures which remained intact after all the evidence was
received in this case. Therefore, no reasonable person in the appellant’s position would
be acting sensibly if he expected a doctor to disregard an established medical
manufacturer’s guarantee without being specifically requested to do so.
In the oft-cited language of the courts, to uphold the appellant’s excuse as reasonable in
the absence of any cogent reason for doing so would be “to drive a coach and six horses”
through the provisions of the Act.
The appeal must be dismissed in its entirety.
Korsah JA: I agree.
Ben Baron & Partners, appellant’s legal practitioners
INDEPENDENCE MINING (PVT) LTD v FAWCETT SECURITY OPERATIONS
(PVT) LTD
1991 (1) ZLR 268 (HC)
Division: High Court, Harare
Judges: Chidyausiku J
Date: 11 March & 22 May 1991
Special plea in abatement

Practice — arbitration clause in contract — stay of proceedings.

The parties had entered into a written contract of carriage. When the plaintiff suffered a
loss during such carriage, it issued a summons against the defendant. The defendant
sought to have the matter referred to arbitration in terms of the arbitration clause in the
written agreement.
Held, the dispute arose out of the performance of the contract and was thus subject to the
arbitration provision. This applied whether the claim was a contractual one or a delictual
one.
Cases cited:
Astro Vencedor Compania Naviera SA of Panama v Mabanaft GmbH [1971] 2 QB 588;
[1971] 2 All ER 1301 (CA)
Woolf v Collis Removal Service [1948] 1 KB 11; [1947] 2 All ER 260 (CA)
Universiteit van Stellenbosch v J A Louw (Edms) Bpk en andere 1982 (3) SA 9 (C)
A P de Bourbon SC for the plaintiff
M J Gillespie for the defendant
CHIDYAUSIKU J: The parties in this case entered into a written agreement. In terms of
this agreement the defendant undertook to provide to the plaintiff a security carriage
service. On 30 October 1989 the defendant pursuant to the
Page 269 of 1991 (1) ZLR 268 (HC)
contract, undertook to carry a consignment of gold and silver for the plaintiff from How
Mine to Harare. The defendant received the gold and silver from the plaintiff but failed to
deliver it to the plaintiff’s duly appointed agent, Lonrho Zimbabwe Ltd in Harare. The
gold and silver were stolen in transit. The plaintiff now sues the defendant for the return
of the gold and silver or payment of its value in the amount of $1 228 746,96.
Clause 9 of the agreement provides that any dispute arising from the provisions of the
agreement shall be referred to arbitration in terms of the Arbitration Act. Clause 9 of the
agreement reads as follows:
“Fawcetts will not enter into dispute over any matter arising from the services provided in
terms of this agreement with anyone other than the hirer or his legally appointed
representative, and Fawcetts and the Hirer hereby consent to refer any disputes arising
from the provisions of this agreement to arbitration in terms of the Arbitration Act.”
The defendant has filed a special plea in abatement and maintains that the dispute ought
to be referred to arbitration in terms of clause 9 supra and prays that the proceedings be
stayed pending the arbitration of the dispute.
The plaintiff’s stance is that it is arguable that the plaintiff’s first cause of action arises
from the provisions of the agreement and therefore referrable to the tribunal in terms of
the agreement. As far as the second cause of action is concerned the plaintiff maintains
that this arises solely from an aquilian or delictual claim based on negligence It does not
arise from the provisions of the agreement therefore not referrable to the tribunal.
Dealing with the first cause of action. The plaintiff’s case is that the defendant being a
common carrier undertook to carry its gold and silver from How Mine to Harare. The
defendant took possession of the plaintiff’s gold and silver at How Mine but failed to
deliver the same at Harare. His failure to do so is a breach of the agreement. The
defendant denies liability. As I said earlier the plaintiff’s stance is equivocal. Mr de
Bourbon has submitted that it may well be argued that this claim arises from the
provisions of the agreement. He did not advance any basis upon which it could possibly
be held that this cause of action does not arise from the provisions of the agreement. The
probabilities are that none exist. I am satisfied that the first cause of action arises from the
provisions of the agreement therefore referrable to the tribunal.
Page 270 of 1991 (1) ZLR 268 (HC)
I now turn to the plaintiff’s second cause of action. This is set out in paras 7 and 9 of the
plaintiff’s declaration. In this regard the plaintiff alleges that the defendant owed the
plaintiff a duty of care to take reasonable steps to protect the gold and silver from loss
while under its custody. In breach of such a duty the defendant acted negligently and
consequently the gold and silver was lost. The negligence of the defendant is then
particularized as follows in para 8 of the plaintiff’s declaration:

“In breach of the aforesaid duty of care, the defendant acted negligently, in that:
a) the defendant failed to provide adequate security guards to protect the gold
and silver from theft or other loss;
b) the defendant failed to provide a means of transport that was adequate to
protect the gold and silver from theft or other loss;
c) the defendant failed to provide proper communications between the
vehicle carrying the aforesaid gold and silver and its offices in Harare and Bulawayo;
d) the defendant failed to take adequate steps to protect the gold and silver
against theft or other loss;
e) the defendant failed to provide adequate firearms to such security guards
as it employed to enable them to protect the aforesaid gold and silver from theft;
 f) the defendant failed to provide a back-up or escort vehicle to prevent the
theft of the consignment of gold and silver;
g) the defendant carried the said consignment based on a fixed and set
routine, thus jeopardising the security of the carriage;
h) the defendant failed to observe the standards of security required of a
company, such as the defendant, professing to be an expert in the field of security
operations.”
The defendant denies any negligence and avers loss was due to a cause beyond its control
and/or vis major, namely an armed robbery.
Is this dispute covered by the arbitration clause? The question of whether a dispute
between parties to a contract fell within the arbitration clause is primarily a question of
interpretation of the agreement and in particular the arbitration clause. Perhaps before one
interprets the agreement one needs to identify what the dispute is about. In this case the
parties entered into a contract of security of carriage service. The agreement itself is
headed “Security Carriage Service Agreement”. It is apparent from clause 1 of the
conditions of contract that the contract was for the carriage of valuables.
Page 271 of 1991 (1) ZLR 268 (HC)
Indeed gold and silver which are the subject of this carriage are valuables. In my view it
is an implied term of the agreement that the defendant would provide a high standard of
care and adequate security during the carriage of such valuables. I came to this
conclusion because of the nature of the service the defendant provides and the type of
goods that were being carried. If, indeed, the defendant failed to provide the high
standard of security and performed his contractual obligation negligently in one or more
of the particulars alleged he breached the agreement. In particular he broke his implied
undertaking to provide adequate security. The plaintiff says he was negligent the
defendant denies this allegation.
This dispute, therefore, is really about the performance of the contract. The arbitration
clause covers any dispute arising from the provisions of the agreement. A dispute about
the performance, non-performance or inadequate performance of a contract cannot but
arise from the provisions of the contract. In my view the fact that the dispute is couched
in delictual terms as is the case here, does not affect the issue and is of no consequence.
For this reason I have come to the conclusion that the second cause of action also falls
within the arbitration clause.
Even if I am wrong in adopting the above approach I would come to the same conclusion
for another reason. The delictual wrong complained of in this case was committed in the
performance of a contractual duty, and therefore, in my view so sufficiently closely
connected with the claim under the contract to bring it within the ambit of the arbitration
clause.
I agree with Mr Gillespie’s submission that the second cause of action founded on
negligence, while less directly related to the contract, nevertheless arises out of the
agreement because it is closely connected with the contract. In this regard he referred the
court to the words of Lord Denning MR in Astro Vencedor Compania Naviera SA of
Panama v Mabanaft GmbH [1971] 2 QB 588 at 595; [1971] 2 All ER 1301 (CA) at 1309:
“If the claim or the issue has a sufficiently close connection with the claim under the
contract, then it comes within the arbitration clause.”
Also the cases of Woolf v Collis Removal Service [1948] 1 KB 11; [1947] 2 All ER 260
(CA) and Universiteit van Stellenbosch v J A Louw (Edms) Bpk en andere 1982 (3) SA 9
(C) are authorities for the proposition that a delictual claim can fall within the arbitration
clause if there is sufficient connection between such a claim and the dispute. The instant
case is one which has such
Page 272 of 1991 (1) ZLR 268 (HC)
sufficiently close connection because the wrongful act relied upon for the delictual cause
is the negligent performance of a contractual duty. In the result the second cause of action
also falls within the arbitration clause.
Having come to the conclusion that both causes of action are covered by the arbitration
clause the court has a discretion to refer the matter to such arbitration or not. The onus is
on the plaintiff to show why the proceedings should not be stayed. The submission by Mr
de Bourbon that staying the action would result in a multiplicity of action was predicated
on the assumption that the first cause of action was covered by the arbitration and the
second was not. I have come to a different conclusion on that issue. The general principle
is that the courts will give effect to the intention of the parties. The intention of the parties
was to refer the disputes to arbitration. There is no basis for departing from this principle
in the present case.
In the result the special plea is allowed with costs and the proceedings are stayed.
Gill, Godlonton & Gerrans, applicant’s legal practitioners
Scanlen & Holderness, respondent’s legal practitioners
RUZANE v PARADZAI & ANOR
1991 (1) ZLR 273 (SC)
Division: Supreme Court, Harare
Judges: Gubbay CJ, McNally JA & Manyarara JA
Subject Area: Civil appeal
Date: 26 February & 3 June 1991

Evidence — function of expert witness — expert in a particular field — who is an expert

— qualifications required — reliance on text books — what must be shown.
Customary law — text-books on — written by persons of established repute —
ascertainment of — s 9 Customary Law and Local Courts Act 1990 — court entitled to
refer to text books.
Legislation — Customary Law and Local Courts Act 1990 — s 9 — Customary Law and
Primary Courts Act 1981 — s 5 — Chiefs and Headmen Act 1982 — s 3.
Chief — appointment — succession — letter of public official constitutes public
document — accurate public record on succession to chieftainship — unfettered
discretion of President to appoint.
The appellant applied to have the appointment of the first respondent as an acting chief
set aside and that the appellant be appointed instead.
The application having been dismissed, in an appeal,
Held, that text-books on customary law by persons of established repute with vast
knowledge on the subject which has been acquired from extensive research may be
referred to for guidance by the trier of fact without putting the contents of such works to
an expert witness for confirmation.
Held, further, that s 5 of the Customary Law and Primary Courts Act 1981 (now s 9 of
the Customary Law and Local Courts Act 1990) specifically provides for the
ascertainment of customary law principles in this manner.
Page 274 of 1991 (1) ZLR 273 (SC)
Held, further, that a letter written by an assistant native commissioner in 1943 constituted
a public document as it had been prepared by a public official in pursuance of a public
duty and was properly placed before the Court as evidence of facts in dispute on the
history of the chieftainship in question.
Held, further, that s 3 of the Chiefs and Headmen Act 1982 provides the President with
an unfettered discretion in the appointment of a chief.
Cases cited:
R v Mofokeng & Anor 1928 AD 132
S v Collop 1981 (1) SA 150 (A)
S v Harris 1965 (2) SA 340 (A)
Menday v Protea Assurance Co Ltd 1976 (1) SA 565 (E)
Muwuungani v Minister of Native Affairs 1957 R&N 298 (FC); 1957 (2) SA 544 (FC)
E Chatikobo for the appellant
F Musakana for the respondents
MANYARARA JA: This is an appeal against the whole of the judgment of the High
Court dismissing an application to unseat the first respondent as Acting Chief Ruzane of
the Varozvi people in Wedza and have the appellant appointed in his place. The appellant
is a member of the Mukamba family and the first respondent of the Musinganeti family.
The dispute is ably summarized by the learned judge as follows:
“In its barest form the dispute, in this matter, put in a historical context, is according to
the Plaintiff, that the Ruzani Chieftainship only started with Nyenye Chief Ruzani I of the
Mukamba Clan. According to him, he it was who approached Chief Swoswe and pleaded
for the favour to set up the Rozwi Chieftainship in the Wedza area. The Musinganeti clan
or family had nothing to do with it and for four reigns spanning from 1922 to 1984, only
those of his clan succeeded to the Chieftainship till the intervention of the authorities in
1984 when Paradzai of the Musinganeti family was imposed as Chief and after him his
son, the present defendant, was made acting Chief. The Musinganetis were made
‘sadunhus’, ie headmen, and had no right to succession to the Rozwi Chieftainship. He
denies that there was any Rozwi Chieftainship in the area before 1922.
Page 275 of 1991 (1) ZLR 273 (SC)
The Defendant on the other hand claims that the Rozwi Chieftainship in the Wedza area
was established long back when the two clans had come into the area of Chief Swoswe
who had previously married a daughter of the Rozwis of this group that came from
Matonjeni deriving from their ancestor Sarijo. The name by which the Chieftainship was
known was ‘Mbava’. According to him it was only through the intervention of the
administration in 1922 when Nyenye succeeded Furaunye, who was Mbava 7, that the
name was changed to ‘Ruzani’, and thereby excluded the Musinganeti family.
Thus the main dispute is whether the Musinganeti clan is entitled to succeed to the Rozwi
Chieftainship in the Wedza area.”
Matters came to a head when Nyenye Chief Ruzani, also known as Ruote, died in 1942.
His younger brother, Magumise, the apparent, had predeceased him, and his next younger
brother, Maburutse, wisely declined the chieftainship on account of ill health. Chigweshe
and Gonese Sibindwane of the Musinganeti clan and Muchada of the Mukamba clan
contested the succession at a meeting vividly described by the Assistant Native
Commissioner for Wedza in a letter to his superior at Marondera as follows:
“The Native Commissioner, September 12th 1943
Marandellas
Late Chief Ruote @ Rozani:
Appointment of a Successor;
Barozwi Tribe : Wedza
I beg to report that I attended a meeting of the Barozwi section of this sub-district on
Wednesday 8th Sept. 1943, for the purpose of selecting a successor to the late Nyenye
Chief Rozani who died in November 1942. 2/11/42.
I return the file of papers relative to the late Chief’s appointment in 1927 and matters
prior to this. I attach also a genealogical tree, compiled from data left by my predecessor
(Mr J.V. Kerr). In this tree the present claimants are underlined in red ink.
The views of the tribe will be expressed first: followed by my opinion of each respective
claimant; my opinions are influenced by the fact that this is not an age-old dynasty. The
new chief will be the third to succeed;
Page 276 of 1991 (1) ZLR 273 (SC)
prior to this the tribe, a migrant section of the Barozwi, had only a headman, who paid
allegiance to the Soswe chief of his time.
There are some five hundred Tax-paying members of the tribe; and of these some three
hundred are away at work. The meeting comprised some 180 adult males and 100 women
(who of course were not allowed to vote) and can be said to be fully representative of the
resident members of the Reserve.
The meeting was orderly and vehement bitterness absent. It was explained that the
Government was anxious to hear from the people themselves, as to whether they could
agree amongst themselves on the selection of a chief. After considerable discussion, the
names of three claimants were put forward; their respective claims discussed and finally
the matter put to the vote, with the following result:

(1) Gonesu Sibindwani 103 votes

(a subdsidized headman)
(2) Muchada ((3838) Emp. SA Canvas Co Salisbury) 69 votes
(3) Chiweshe (Exempt unit, too old to attend,
represented by his sons Chaka and Paradza) 10 votes
182 out of
500 Tax paying
adults.

As Gonesu polled the greatest number of votes I then sounded the “Muchada” section as
to their willingness to accept Gonesu if he was chosen by the Government. Changu
(eldest son of the late chief) replied for his section in the following words: ‘We will
accept the man chosen by the Government but, if Gonesu is chosen he cannot take on the
hereditary name of Rozani. Only claimant Muchada is entitled to this.’
The meeting was closed.”
The writer then added the following comments:
“In conclusion, I must confess a feeling of disappointment that the name of Changu
(eldest son of the late Chief Ruota Nyenye Rozani) was not advanced. This man has acted
in an un-paid capacity for the past ten months and has shown marked ability. (I did not
feel it my place to suggest him as I was presiding over the meeting.) Further, Ruote
Nyenye Rozani’s appointment in 1927 is a precedent for the passing of the
Page 277 of 1991 (1) ZLR 273 (SC)
Chieftaincy from father to son (following Zansi Amandebele custom) and I feel it a great
loss from the administration point of view, that all further succession cannot continue
from father to son. In most Mashona custom a man cannot be chief unless his father at
some time held the chieftaincy. Examination of the family tree, shows that only Changu
and claimant No. 3 Chigweshe have those qualifications. Where the future chief is
known, it is possible to give him, prior to his accession, education and administrative
instruction. The main qualification for a chief in the mind of the average Mashona native,
is age, with the result that the real chief takes no part in his official duties. The actual
work being done by a deputy (son or nephew).”
The Native Commissioner followed his junior’s advice and appointed Changu
(Mukamba) as chief. Thereafter the chieftainship rotated among members of the
Mukamba clan until the death of Pfuma Mukamba in 1982.
Following Pfuma’s death, the appellant, (also of the same clan) acted as chief without
being formally appointed in terms of the Chiefs and Headmen Act 1982. Then the
Government appointed Paradzai Musinganeti in place of the appellant in 1984 but
Paradzai died during the following year and the first respondent was appointed to succeed
him.
It is this 1985 appointment which the appellant challenged unsuccessfully in the High
Court. The first issue for the learned judge’s determination was whether the first
respondent was entitled at all to succeed to the chieftainship under customary practice.
The second was whether the second respondent as the Minister responsible for the
administration of the Chiefs and Headmen Act had complied with the Act in appointing
the first respondent.
The learned judge considered the relevant provisions of the Act, various texts on the
subject and the evidence adduced at the trial. He concluded that the Musinganeti family
had established that it was also entitled to succeed to the chieftainship but past
governments had cheated the family out of its entitlement for policy reasons which did
not bind the present government. Therefore, the first respondent’s appointment was
proper.
Mr Chatikobo who appeared for the appellant attacked the finding on the ground that the
evidence which should have been accepted pointed the other way. Alternatively, that the
first respondent’s appointment was irregular in that he succeeded a member of his own
family and “no two consecutive chiefs may be appointed from the same house”.
Page 278 of 1991 (1) ZLR 273 (SC)
Mr Chatikobo argues in the first place that the learned judge erred in relying on text-
books and an Assistant Native Commissioner’s letter as evidence to prove the facts in
dispute. He contends that the contents of the text books should have been put to an
“expert witness” whose confirmation of the accuracy of the various authors’ opinions
might have been receivable as evidence, which had not happened in this case. In support
of his argument Mr Chatikobo cites R v Mofokeng & Anor 1928 AD 132 at 136; S v
Collop 1981 (1) SA 150 (A) at 167B; S v Harris 1965 (2) SA 340 (A) and Menday v
Protea Assurance Co Ltd 1976 (1) SA 565 (E), firstly the passage at 569B-C which reads
as follows:
“In essence the function of an expert is to assist the Court to reach a conclusion on
matters on which the Court itself does not have the necessary knowledge to decide. It is
not the mere opinion of the witness which is decisive but his ability to satisfy the Court
that, because of his special skill, training or experience, the reasons for the opinion which
he expresses are acceptable. (Cf Phipson, Evidence 11 ed, paras 1280 et seq., Hoffman,
Evidence 2 ed pp 78 et seq, R v Nksatlala 1960 (3) SA 543 (AD) at p 546)”
and secondly, the passage at 569H which is to the following effect:
“Where, therefore, an expert relies on passages in a text-book, it must be shown, firstly,
that he can, by reason of his own training, affirm (at least in principle) the correctness of
the statements in that book; and, secondly, that the work to which he refers is reliable in
the sense that it has been written by a person of established repute or proved experience
in that field. In other words, an expert with purely theoretical knowledge cannot in my
view support his opinion in a special field (of which he has no personal experience or
knowledge) by referring to passages in a work which has itself not been shown to be
authoritative. Again the dangers of holding the contrary are obvious.”
The soundness of the principles enunciated in the authorities referred to cannot be
doubted, but the principles do not apply to the text-books referred to by the learned judge
in this case, namely Holleman’s Shona Customary Law; Palley’s The Constitutional
History and Law of Southern Rhodesia; Goldin & Gelfand’s African Law and Custom in
Rhodesia, Bullock’s The Mashona and Harold Child’s The History and Extent of
Recognition of Tribal Law in Rhodesia.
Page 279 of 1991 (1) ZLR 273 (SC)
To quote from Menday’s case supra, all these works are recognized by the courts as
works written by persons of established repute with vast knowledge of the subject on
which they wrote, acquired from extensive research. The learned judge as a trier of fact
was entitled to refer to the works for guidance on the customary principles of succession
to chieftainship among the Mashona. Section 5 of the Customary Law and Primary
Courts Act 1981 (now s 9 of the Customary Law and Local Courts Act 1990) specifically
provides for the ascertainment of customary law principles in this manner.
The cases cited by Mr Chatikobo are not applicable to the Assistant Native
Commissioner’s letter. The letter is a public document, which the author prepared as a
public official in pursuance of his public duty of making an accurate record to which the
public may refer. See Hoffmann & Zeffertt’s The South African Law of Evidence 4 ed pp
150-151. For these reasons, the letter was properly produced in evidence at the trial. The
evidence of Chief Takawira Svosve aged 71 years, a direct descendant of the Vambire
who are the traditional rulers of the Wedza area supported the Assistant Native
Commissioner’s letter. The oral tradition to which the witness testified is that the Varozvi
arrived in the area under the leadership of Mbavha, also known as Sarijo. Chief Svosve
allocated them land on which they settled and established the disputed chieftainship.
The witness said:
“I have nothing to do with the fighting for (their) chieftainship. . . . but what I know is
that I know the name Mbavha who I gave a place (to settle).”
And:
“When the Ruzanis took the chieftainship in turns I had nothing to do with it. I thought it
was all well. It was their chieftainship.”
Great weight attaches to the evidence in that, although Chief Takawira Svosve is married
to a member of the appellant’s family, and was restrained and non-committal in his
evidence, he disclosed that “Ruzani” was not the original name of the disputed
chieftainship.
Finally, it is a notorious fact that, unlike the Ndebele, the Shona have a very complicated
system of succession which is correctly summarised by Harold Child, op cit, at p 6 (1 ed)
as follows:
Page 280 of 1991 (1) ZLR 273 (SC)
“Younger brothers succeed to elder brothers until the succession has been held by each in
turn, when it reverts to the son of the first chief and then to the sons of the collateral lines.
There are tribal variations, and the system is not always complete.”
The facts which clearly emerge from the evidence to which I have referred may be
summarized as follows:
1. There is no evidence of the origin of the name “Ruzani” as the traditional
name of the disputed chieftainship. The probability is that it was Nyenye who adopted the
name when he succeeded his father, Faraunye, as chief. I say so because the Assistant
Native Commissioner’s letter refers to Nyenye’s branch of the clan (Mukamba) as the
“Muchada section” and to Nyenye himself as “Ruote” alias “Rozani”.
2. The appointment of Nyenye in 1927 was a policy decision by the
Government of the day to depart from the customary principle that a son should not
succeed his father as chief.
3. The authorities persisted in their disregard of customary principles in 1943
when they appointed Nyenye’s son, Changu, against the tribe’s overwhelming choice of
Gonese of the Musinganeti section.
The truth was not lost to the learned judge who concluded as follows:
“[The evidence] is at odds with the [appellant’s] claim that Musinganeti’s had no right to
the Chieftainship and also confirms the claim by the Musinganetis that they were fighting
for the[ir] right to chieftainship as early as [1943] but their claims were brushed aside by
the authorities.”
Mr Chatikobo has further submitted that the first respondent’s appointment was in direct
conflict with the views of the people on whose recommendation the appointment was
based. I am quite unable to follow the logic of the submission. Section 3(2) of the Chiefs
and Headmen Act 1982 provides that the President, in appointing a chief, “should give
due consideration to the customary principles of succession, if any, applicable to the
community over which chief is to preside”.
The clear meaning of the provision is that the President is required to “give due
consideration to the customary principles of succession”, not to follow
Page 281 of 1991 (1) ZLR 273 (SC)
them in making his choice. Dealing with the application of the principle under the
African Affairs Act [Chapter 228] which the Chiefs and Headmen Act repealed and
substituted, Palley op cit at p 476 says:
“The Chiefs are Government officials, appointed in terms of s 4 and 17 of the African
Affairs Act by the Governor. They hold office during pleasure, and contingent upon good
behaviour and general fitness.
Although Chiefs are envisaged as hereditary holders of the office, it is only official
recognition that carried with it the title of Chief. In practice the Governor frequently
appoints the person holding traditional title to the chieftainship, but this is not always
done. In other cases where the tribe (reference is here to the Mashona, who have a
complicated system of collateral succession) have been unable agree on a successor, the
Government have made the decisions and in the last ten years have on twelve occasions
arranged for some form of election. Furthermore, not all traditional chieftainships are
recognized as from time to time Government has carried out a general reorganisation of
chieftainships reducing the numbers of recognized Chiefs.”
See also Muwuungani v Minister of Native Affairs 1957 R&N 298 (FC) at 300E; 1957
(2) SA 544 (FC) which reads as follows:
“On a straightforward reading of this, the operative section of the Act, the Governor is
entitled to exercise an unfettered judgment in the creation, amalgamation or sub-division
of tribes. Section 10 of the African Affairs Act obviously implies that he shall have
regard to native opinion and native customary succession, as investigated by the Chief
Native Commissioner. But, once the investigation has been made he is free to act as he
thinks best in the interests of good government of the natives.”
There is conclusive evidence from the second respondent that there was full compliance
with the chiefs and Headman Act in the appointment of the first respondent. His letters,
exhibit 2, addressed to the appellant in December 18 1984 reads as follows:
“Dear Sir,
Ruzane Chieftainship : Wedza
Reference is made to the meeting held at Head Office on the 17th October.
Page 282 of 1991 (1) ZLR 273 (SC)
Your claim to the Ruzane Chieftainship has ben examined fully to consider the evidence
presented by your supporters that you are the correct and rightful heir, and has taken into
consideration past history and customs. Nothing was found to reverse the decision to
affect the appointment of a nominee from the Mbava house.
I therefore consider the matter closed.
Yours faithfully.”
In conclusion then, the Assistant Native Commissioner’s letter and Chief Svosve’s
evidence disposed of any doubt that the first respondent qualified for appointment as
Acting Chief Ruzani under customary practice, whilst exhibit 2 proves that there was
compliance with the Chiefs and Headmen Act in his appointment. The supporters of the
rival candidates were consulted, whereafter the second respondent exercised the
unfettered discretion conferred on him by the Act in picking the first respondent as the
candidate which the administration preferred as laid down in the authorities to which the
learned judge referred.
Therefore, the appeal must be dismissed and there is no reason why the costs of the
appeal should not follow the event. It is so ordered.
Gubbay CJ: I agree.
McNally JA: I agree.
Chirunda, Chihambakwe & Partners, appellant’s legal practitioners
Stumbles & Rowe, first respondent’s legal practitioners
Civil Division, Attorney-General’s Office, second respondent’s legal practitioners
KADOMA MAGNESITE (PVT) LTD v ACTING REGIONAL HEARING OFFICER &
ORS
1991 (1) ZLR 283 (HC)
Division: High Court, Harare
Judges: Robinson J
Subject Area: Opposed motion
Date: 11 June 1991

Review — dismissal of employee — where misconduct established — dismissal.

The labour relations officer found on appeal that three employees in the mining industry
had participated in an illegal strike at their place of work with the applicant. He ordered
that the applicant reinstate the employees (respondents) with benefits and give them final
warnings in writing.
Held, that the labour relations officer had been guilty of an error in law by disregarding
the provisions of a statute. For this reason the aggrieved party is entitled to bring the
matter on review.
Held, that the respondents had engaged in an illegal strike and were guilty of an act of
conduct which was in breach of a condition of their contract of employment.
Held, that in the circumstances, the labour relations officer was obliged to order the
termination of the respondents’ contracts of employment as is provided for by s 3(2)(a) of
the Labour Relations General Conditions of Employment (Termination of Employment)
Regulations 1985.
Held, that the labour relations officer be directed to serve on the three respondents an
order terminating their contracts of employment with the applicant.
Cases cited:
Secretary for Transport & Anor v Makaravarwa 1991 (1) ZLR 18 (SC)
Masiyiwa v TM Supermarkets 1990 (1) ZLR 166 (SC)
Page 284 of 1991 (1) ZLR 283 (HC)
Matereke v CT Bowring & Associates (Pvt) Ltd 1987 (1) ZLR 206 (SC)
B D Brighton for the applicant
H Simpson for the respondent
ROBINSON J: The matter involves two applications concerning the review of
determination orders made by labour officials under the Labour Relations Act 1985.
In the first application, first respondent found on appeal that second, third and fourth
respondents had participated in an illegal strike. His determination order was that
applicant reinstate the said respondents with benefits and give them final warnings in
writing.
In the second application, the labour relations officer found that second respondent “was
25 minutes late on 3/12/90 and failed to report to the shaft office as he had been told by
the mine manager. He was told to report to the office after he had finished his task and
was under no obligation to do so since it was not an emergency”. The determination was
that second respondent be reinstated to his lashing job without any loss of benefits from
the date of suspension.
Applicant contends that the determination orders made by the labour officials concerned
in both matters were wrong in law in that, having found as proved the grounds for
applicant’s suspension of the respondents concerned from applicant’s employ, the labour
officials had no option but to order the termination of their employment, which they
failed to do. Accordingly, applicant has approached this court by way of review to have
the determination orders corrected.
Section 27 of the High Court of Zimbabwe Act 1981, deals with the matter of review by
this court. Subsection (1) of that section specifies certain grounds on which any
proceedings and decisions of inferior courts of justice, tribunals and administrative
authorities within Zimbabwe may be brought on review and subs (2) then provides as
follows:
“ (2) Nothing in this section shall affect the provisions of any other law relating to the
review of proceedings or decisions of inferior courts, tribunals or authorities.”
According to its definition in the Interpretation Act [Chapter 1], the word
Page 285 of 1991 (1) ZLR 283 (HC)
“law” in s 27(2), supra, includes the common law of Zimbabwe.
In Rose-Innes’s Judicial Review of Administrative Tribunals in South Africa at p 55, one
of the common law grounds of review listed is “if the administrative body or official
disregarded the direct provisions of the statute;” Likewise, in Secretary for Transport &
Anor v Makaravarwa 1991 (1) ZLR 18 (SC) at p 20, Korsah JA stated that administrative
action is subject to control by judicial review under the head of, inter alia, illegality,
“where the decision-making authority has been guilty of an error in law”.
It accordingly follows that where a labour relations officer has been guilty of an error in
law by disregarding the provisions of a statute, the aggrieved party is entitled to bring the
matter on review to the High Court.
Next it is necessary to consider whether the applicant is correct in its contention that if a
labour relations officer finds that one or more of the grounds listed in s 3 of the Labour
Relations (General Conditions of Employment) (Termination of Employment)
Regulations 1985 (SI 371 of 1985) on which an employer has suspended an employee is
or are proved to his satisfaction, the officer has no option but to terminate the employee’s
contract of employment.
Section 3(1) of those Regulations provides:
“3. (1) Where an employer has good cause to believe that an employee is guilty of —
(a) any act, conduct or omission inconsistent with the fulfilment of the express or
implied conditions of his contract;
(b) wilful disobedience to a lawful order given by the employer;
...
the employer may suspend such employee without pay and other benefits and shall
forthwith apply to a labour relations officer for an order or determination terminating the
contract of employment.”
Section 3(2) provides:
“3. (2) Upon application being made in terms of subsection (1) of the labour relations
officer shall investigate the matter and may, according to the circumstances of the case —
(a) serve a determination or order on the employee concerned terminating his
contract of employment if the grounds for his
Page 286 of 1991 (1) ZLR 283 (HC)
suspension are proved to the satisfaction of the labour relations officer; or
(b) serve a determination or order on the employer concerned to remove the
suspension of the employee and to reinstate such employee if the grounds for his
suspension are not proved to the satisfaction of the labour relations officer.”
In Masiyiwa v TM Supermarkets 1990 (1) ZLR 166 (SC) at 169H, 170 & 171A McNally
JA, when alluding to s 3(2) of these Regulations, stated as follows:
“The matter of law which arises in this: Suppose a labour relations officer (or the Board
or the Tribunal on appeal) finds as a fact that one at least of the grounds of suspension
relied upon by the employer is proved. To what extent is that labour relations officer or
Board or Tribunal entitled to say: ‘In the exercise of our discretion, and despite the proof
of the grounds of suspension, we think you should re-instate the employee, or at least
employ him in another section or in a lower-ranking job?’ That was the proposal of the
dissenting member in this case.
It seems to me, although it is not necessary to decide the question for the purposes of this
case, that there is no discretion in the matter. The use of the word ‘may’ in section 3(2) of
SI 371 of 1985 seems to suggest a discretion, but a closer reading of the section indicates
to me that the suggestion is illusory.
The section reads as follows: . . .
I consider that this is a case where the words of Bennion apply (Bennion Statutory
Interpretation p 27).
‘Where a court or tribunal is given in terms a power to exercise a certain jurisdiction, this
may be construed as imposing a mandatory duty to act. This will arise where there is no
justification for failing to exercise the power. In such cases, as it is often put, “may” is
held to mean “shall”.’
And see Salisbury Financial Holdings (Pvt) Ltd v Van Niekerk 1974 (1) RLR 333 (G) at
335D-E; Annison & Ors v District Auditor for St Pancras Borough Council & Anor
(1962) 1 QB 489; Craies on Statute Law 7 ed 285.
Thus, in the case of section 3(2), the labour relations officer has to determine whether the
grounds of suspension are proved or not proved.
Page 287 of 1991 (1) ZLR 283 (HC)
If they are proved, he must proceed in terms of subpara (a); if they are not proved, he
must proceed in terms of subpara (b). To put it another way, he has a choice, but that
choice is governed, not by his discretion, but by his finding. If he finds the grounds
proved, he must choose (a); if not proved, (b).”
I respectfully agree with McNally JA’s obiter views, with which Gubbay JA (as he then
was) and Korsah JA concurred, on the construction of s 3(2) of the Regulations and,
accordingly, I approach both applications on the basis of that construction.
In the first application, first respondent found on appeal that the second, third and fourth
respondents had participated in an illegal strike but did not cause a determination order to
be served on the said respondents terminating their contracts of employment, instead,
ordering the said respondents to be reinstated with benefits by applicant and to be given
final warnings in writing.
Applicant is governed by and acted under the provisions of the Disciplinary Code in
Schedule J of the Collective Bargaining Agreement : Mining Industry (General
Conditions), (SI 152 of 1990) (“the Disciplinary Code”), which applicant adopted in
terms of s 31 of SI 152 of 1990. (It is to be noted that 1A of SI 371 of 1985, an
amendment which was introduced on 7 December 1990, provides that s 2 & 3 of SI 371
of 1985 shall not apply to employers to whom the provisions of an employment code of
conduct registered in terms of s 3 of the Labour Relations (Employment Codes of
Conduct) Regulations, 1990 apply. However, in neither application is applicant affected
by s 1A.) Insofar as s 25(1) of SI 152 of 1990 makes it necessary for dismissal of
employees to be processed in terms of regulations published under the Labour Relations
Act, 1985, in particular, the Labour Relations (General Conditions of Employment)
(Termination of Employment) Regulations 1985, it remains to consider whether the
determination made on appeal by first respondent that second, third and fourth
respondents had participated in an illegal strike is covered by s 3(1)(a) of SI 371 of 1985,
in particular, whether the said respondents were guilty of “any act, conduct or omission
inconsistent with the fulfilment of the express or implied conditions” of their contracts of
employment.
Section 120(3)(a)(i) of the Labour Relations Act provides that no collective job action
may be engaged in by any employee if the employee concerned is engaged in an essential
service, which includes mining, as is relevant to the
Page 288 of 1991 (1) ZLR 283 (HC)
present application. “Collective job action” is defined as meaning “an industrial action
calculated to persuade or cause a party to an employment relationship to accede to a
demand related to employment and includes a strike, boycott, lock-out, sit-in or sit-out or
other such concerted action”.
The Disciplinary Code makes unlawful job action (as explained therein) an offence
warranting summary suspension with application for dismissal (see s 5 of Part B and s 6
of Part C of Schedule J to SI 371 of 1985).
In the premises, in my view there can be no doubt that an employee who engaged in an
illegal strike is, in terms of s 3(1)(a) of SI 371 of 1985, guilty of an act or conduct
inconsistent with the fulfilment of the express or implied conditions of his contract of
employment as referred to in s 8(1) of SI 152 of 1990.
Consequently, first respondent was obliged to give affect to s 3(2)(a) of SI 371 of 1985
and applicant is therefore entitled to an order setting aside the determination order of first
respondent and to an order, with costs against first respondent, that the labour relations
officer, Kadoma, be directed to serve a determination order on second, third and fourth
respondents terminating their contracts of employment with applicant from 27 September
1990. It is so ordered.
In the case of the second application, in my view applicant is not entitled to the relief
which it seeks against second respondent since first respondent did not find that second
respondent had been guilty of “wilful disobedience to a lawful order given by the
employer” in terms of s 3(1)(b) of SI 371 of 1985, his finding being that first respondent
“was told to report to the office after he had finished his task and was under no obligation
to do so since it was not an emergency”.
The onus is on applicant to establish clearly that first respondent was guilty of wilful
disobedience to a lawful order given by applicant and it is not for this court to seek to go
behind first respondent’s expressed finding. If applicant had wished to go into the merits
of the finding, then it should have proceeded by way of appeal and not by way of review.
Review is a special procedure and its limits are not to be exceeded as would be the case if
this court were to enquire into the facts behind first respondent’s determination to see
whether it justified a finding of wilful disobedience to a lawful order given by applicant.
Accordingly, it is not necessary for me to consider the criteria relating to “wilful
disobedience” as discussed by Gubbay JA (as he

Page 289 of 1991 (1) ZLR 283 (HC)

then was) in the case of Matereke v CT Bowring & Associates (Pvt) Ltd 1987 (1) ZLR
206 (SC), as applicable to second respondent’s alleged wilful disobedience in this matter.
Consequently, the second application is dismissed with costs.
Jarvis & Palframan, applicant’s legal practitioners
Civil Division, Attorney-General’s Office, first respondent’s legal practitioner in both
matters and second respondent’s in second application
D’ELIA & ANOR v COMMISSIONER OF POLICE*
1991 (1) ZLR 290 (HC)
Division: High Court, Harare
Judges: Smith J
Subject Area: Opposed motion
Date: 29 May & 12 June 1991

Criminal Procedure and Evidence Act [Chapter 59] s 57E(1) — return of goods seized by
police — right to lawfully possess the liquor.
Liquor Act 1984 s 94 — seizure of liquor — powers of forfeiture — s 117(4) — court
order necessary — no provision rendering mere possession unlawful — s 101(1).
Costs — Criminal Procedure and Evidence Act [Chapter 59] s 57E(3) — no ousting of
jurisdiction of High Court
A stock of liquor was seized from the applicants after their liquor licence had expired.
After their licence was renewed they sought the return of the liquor. The police claimed it
had been forfeited to the State, after a deposit fine had been paid by the applicants, and
subsequently sold. The applicants sued for the value of the liquor.
Held, since the mere possession of liquor is not unlawful, the liquor should have been
returned to the applicants.
Held, costs in the High Court scale must follow as its jurisdiction had not been ousted.
Cases cited:
Datnis Motors (Midlands) (Pty) Ltd v Minister of Law and Order 1988 (1) SA 503 (N)
Minister of Law and Order & Anor v Datnis Motors (Midlands) (Pty) Ltd 1989 (1) SA
926 (A)
Page 291 of 1991 (1) ZLR 290 (HC)
A P de Bourbon SC for the applicants
D P Carter for the respondent
SMITH J: The applicants carry on the business of a licensed restaurant. Their liquor
licence authorizing them to sell liquor at the restaurant expired on 30 June 1990 and was
not renewed. On 12 October the police visited the restaurant, having been informed by
the Liquor Licensing Board that the licence had expired, and seized all the liquor on the
premises in terms of s 94 of the Liquor Act 1984 (No. 9 of 1984). The applicants were
invited to pay a deposit fine of $100,00 which they paid on 19 October. The restaurant
liquor licence was renewed on 25 October. On that day the applicants’ legal practitioner
wrote to the police demanding the return of the liquor which had been seized. The liquor
was not returned as it had been declared forfeit and sold. Accordingly the applicants
instituted this action claiming the return of the liquor or, alternatively, an amount of $5
481,90, being the cost price of the liquor, with costs.
It was agreed that the seizure of the liquor was lawful. The dispute concerned the
forfeiture thereof. Mr de Bourbon argued that liquor which has been seized in terms of s
94(2) of the Liquor Act 1984 can only be forfeited in terms of an order of court under s
117(4) of that Act. Section 117 of the Liquor Act 1984 creates offences and prescribes
penalties and subs (4) provides that where a person is convicted of an offence in terms of
the Act the court may, in addition to any penalty, order that any liquor in respect of which
the offence has been committed be forfeited to the State. It is clear that a court order is
necessary declaring the liquor to be forfeited to the State. However, in my opinion, the
liquor, even though seized in terms of the Liquor Act 1984, may be dealt with in terms of
s 57E of the Criminal Procedure and Evidence Act [Chapter 59]. That section provides
that a police officer to whom an article seized in terms of any other enactment is
delivered to be dealt with in terms of Part VI of the code shall, if it has not been disposed
of or delivered to another in terms of para (a) or (b) of that section, give it a distinctive
mark and retain it in police custody. Section 57F(1) provides that if, in connection with
an article so retained, the accused admits his guilt and pays a deposit fine the article shall:
“(i) if the person from whom it was seized may lawfully possess such article,
be returned to that person; or
(ii) if the person from whom it was seized may not lawfully possess the
article, be delivered to the person who may lawfully possess it; or
Page 292 of 1991 (1) ZLR 290 (HC)
(iii) if no person may lawfully possess the article or if the police officer
concerned does not know of any person who may lawfully possess the article, be
forfeited to the State.”
Mr de Bourbon argued that the liquor seized from the applicants should have been
returned to them in terms of para (i) of s 57F referred to above because they were entitled
to possess the liquor, even though they were not at the time holders of a liquor licence.
Mr Carter, on the other hand, argued that the liquor was rightfully forfeited to the State in
terms of para (iii) of s 57F(1) referred to above and therefore the sale of the liquor by the
State was legal. In support of his argument Mr Carter referred to the definition of “sell”
in s 2(1) of the Liquor Act 1984 which provides that that term includes “keeping or
exposing for sale” and to s 102 which provides that evidence that an unlicensed person
had on his premises more liquor than was reasonably required for persons residing
thereon shall be prima facie proof of the sale of liquor by such person. He submitted that
if the liquor were returned to the applicants before their liquor licence was renewed they
would be presumed to have the liquor for the purposes of sale and therefore would be
committing an offence.
As was pointed out in Datnis Motors (Midlands) (Pty) Ltd v Minister of Law and Order
1988 (1) SA 503 (N) and Minister of Law and Order & Anor v Datnis Motors (Midlands)
(Pty) Ltd 19889 (1) SA 926 (A) in relation to the provisions in the South African
legislation which are identical to s 57F(1) of the Code referred to above, s 57F is not very
happily worded. At what stage are goods forfeited in terms of para (iii) thereof. As
Didcott J said at p 507 of the former case:
“Then we come to the problem most troublesome of all, that of forfeiture. Ignorance of or
uncertainty about anyone by whom the article may lawfully be possessed is hardly an
occurrence, something happening at a particular moment. At such it may end, to be sure,
when the knowledge which terminates it is peradventure gained. But until then, during
the period that counts for our purposes, it remains a condition lasting indefinitely.
Forfeiture, by comparison, is an event, an axe that falls, whenever it does, at a definite
time, once and for all. The condition and the event cannot be synchronised with each
other, as the draftsman seems to have imagined. Nor, if in truth he did not, can one
discern from his handiwork the stage in the duration of the condition, and of
accompanying efforts to remedy it, at which the event was meant to occur, doing so much
of its own accord and by its own impetus, not through the formal
Page 293 of 1991 (1) ZLR 290 (HC)
act of any functionary. The result is doubt on a large scale about the thrust of the section.
This is easily illustrated. Having learnt of the recovery by the police of something I had
which was stolen, I hasten to them. I tender documentary proof, irrefutable proof, that it
has always been mine and that I may lawfully possess it. Without qualms they accept the
proof. To their regret, they inform me all the same, they may not return the thing to me.
Because they were previously unaware of my connection with it, they explain, it has
already been forfeited. They would undo the forfeiture straight away, they add, were that
possible. But it is not. The forfeiture ensued from no decision on their part which they
may rescind. It was the automatic consequence of their ignorance when this
unquestionably existed. By now the thing is well and truly the property of the State,
which they have no power to alienate, much as they would like to help me.”
Fortunately, it is not necessary in this case to resolve the issue concerning the time of the
forfeiture. The liquor was sold by the State on 23 and 25 October. The applicants paid a
deposit fine on 19 October before the liquor was sold. Thereafter, could they lawfully
possess the liquor? In my view they could have done so. There is no provision in the
Liquor Act 1984 which renders the mere possession of liquor, as defined in that Act,
unlawful. It makes it an offence for an unlicensed person to sell liquor or to keep or
expose liquor for sale. The presumption in s 102 of that Act that evidence that an
unlicensed person has on his premises more liquor than is reasonably required for the
persons residing thereon is prima facie proof of the sale of liquor is rebuttable. Thus if a
person with excess liquor on his premises establishes that he is catering for a party or
wedding for his family or friends or that he is about to open a restaurant and anticipates
obtaining a liquor licence, the presumption is rebutted. The fact that mere possession of
liquor without holding a licence is not an offence is clearly demonstrated by s 101(1) of
the Liquor Act 1984. That section provides that whenever a licence is declared to be
forfeited or is cancelled it immediately becomes null and void but the holder of the
licence may, within fourteen days thereof, sell by public auction the liquor on his licensed
premises. Thus the Legislature has appreciated that where the holder of a licence loses it,
because of forfeiture or cancellation, his ownership and right to possess the liquor are not
affected and so special provision is made for him to sell the liquor by public auction even
though he does not have a licence at the time of the sale. If that is the case where a
licence is cancelled by the Liquor Licensing Board, the position as regards the ownership
and right to possess liquor cannot be any different when the holder of a licence fails to
renew it.
Page 294 of 1991 (1) ZLR 290 (HC)
In the circumstances I consider that the liquor should have been returned to the applicants
in terms of s 57F(1)(i) of the Criminal Procedure and Evidence [Chapter 59].
Mr Carter submitted that the applicants should have brought this action in the magistrates
court under subs (3) and s 57F of the Code and therefore if costs were ordered against the
respondent they should be awarded on the magistrates court scale. In terms of that
section, however, the magistrate is restricted as to the compensation that he may award.
Where the article concerned has been disposed of by the State, he must direct that the
applicant be compensated by the State to the extent to which the State has been enriched
by the disposal. Therefore, if the liquor was sold for less than its cost price, the applicants
would not be entitled to receive an amount equal to the value, or cost price, of the liquor.
It is anomalous that one’s measure of damages should differ, depending on whether the
action is brought in the magistrates court or the High Court. In my view subs (3) and s
57F of the Code confers special jurisdiction on the magistrates court. It does not oust the
jurisdiction of the High Court to entertain an action such as the present one. It would
suggest that consideration should be given to redrafting s 57F of the Code so as to
remove the anomalies which have been referred to in this judgment.
It is ordered:
1) That the respondent pay the applicants the sum of $5 481,90;
2) That the respondent pay the applicants’ costs.
Nicholas Collins & Associates, applicant’s legal practitioners
Civil Division, Attorney-General’s Office, respondent’s legal practitioners
MADAN v MACEDO HEIRS & ANOR
1991 (1) ZLR 295 (SC)
Division: Supreme Court, Harare
Judges: Gubbay CJ, Korsah JA & Ebrahim JA
Subject Area: Civil appeal
Date: 20 May & 14 June 1991

Contract — offer and acceptance — need for communication of acceptance before

agreement complete — vagueness — duty of court to interpret ut res magis valent quam
pereat — pre-emptive right — terms — no need for purchase price to be stipulated —
enforcement — holder may be permitted remedy of specific performance to secure
delivery of property from subsequent purchaser with knowledge of his prior right —
notice of — genuine and reasonable belief that right does not exist renders purchaser
invulnerable.
The appellant was the tenant of property owned by the first respondent and had in
October 1981, been offered a pre-emptive right to these terms “should your client make
any competing offer which is equal to another’s offer and that offer be acceptable, our
client would have no objection to giving your client the right of first refusal”. He did not
respondent to the offer but six years later, in October 1987, was offered the property for
sale. He declined the offer but his attorneys added “we note that he has a right of first
refusal in respect of any proposed sale and we would ask therefore that any serious offers
you may receive be referred to us . . .”. The first respondent replied confirming “that the
normal provisions of right of pre-emption/first refusal will apply”. One year later the
second respondent expressed an interest in purchasing the property and its agent was
informed of the existence of a right of pre-emption and showed the original letter of offer.
The agent formed the view that this letter did not constitute an agreement because of the
lack of acceptance thereof and received advice confirming this view from the
Page 296 of 1991 (1) ZLR 295 (SC)
first respondent’s attorney. During negotiations between the agent and the appellant
concerning the early termination of the latter of his right of occupation the appellant
made no mention of his claimed right. The agent was never shown the subsequent
correspondence confirming a right of pre-emption. Thereafter an offer was made by the
second respondent which was accepted by the first. A sale was concluded and the
property transferred. The appellant then sought to enforce his pre-emptive right claiming
transfer of the property from the second respondent.
Held, the original offer of a pre-emptive right gave rise to a contract in respect thereof
until the time of the appellant’s letter of October 1987 which constituted a manifestation
of acceptance of the offer. Prior thereto there had been no communication of acceptance
and therefore no agreement.
Held, the offer of a pre-emptive right ought not to be held void for vagueness. Where
both parties intend to be, and believe they are bound, the court ought to interpret the
agreement if possible so as to give it effect. The purchase price of a property need not be
stipulated in a right of pre-emption.
Held, a holder of a pre-emptive right will be permitted to assert his right and to pursue its
subject matter in the hands of a third party to whom it has been sold if the latter was
aware of the right of pre-emption, subject to the court’s discretion to refuse specific
performance. Associated South African Bakeries (Pty) Ltd v Oryx Vereinigte Backerien
(Pty) Ltd en Andere 1982 (3) SA 893 (A) followed.
Held, the second respondent entertained a bona fide and reasonable belief that the offer of
a pre-emptive right had never been accepted and that no such right had come into
existence.
Cases cited:
Orion Investments (Pvt) Ltd v Ujaama Investments (Pvt) Ltd & Ors 1987 (1) ZLR 141
(SC); 1988 (1) SA 583 (ZS)
Robophone Facilities Ltd v Blank [1966] 3 All ER 128 (CA)
McKenzie v Farmers’ Co-operative Meat Industries Ltd 1922 AD 16
Levenstein v Levenstein 1955 SR 91; 1955 (3) SA 615 (SR)
Carthew-Gabriel v Fox & Carney (Pvt) Ltd 1977 (2) RLR 152 (A); 1978 (1) SA 598
(RA)
Hoffman & Carvalho v Minister of Agriculture 1947 (2) SA 855 (T)
Soteriou v Retco Poyntons (Pty) Ltd 1985 (2) SA 922 (A)
Bowhay v Ward 1903 TS 772
Doll House Refreshments (Pty) Ltd v O’Shea & Ors 1957 (1) SA 345 (T)
Crossroads Properties (Pvt) Ltd v A1 Taxi Service Co (Pvt) Ltd 1954 SR 152; 1954 (4)
SA 514 (SR)
Page 297 of 1991 (1) ZLR 295 (SC)
Hattingh v Van Rensburg 1964 (1) SA 578 (T)
Dithaba Platinum (Pty) Ltd v Erconovaal Ltd & Anor 1985 (4) SA 615 (T)
Caltex Oil SA Ltd v Waller 1968 (1) PH A 36 (D)
Wissekerke en ‘n Ander v Wissekerke 1970 (2) SA 550 (A)
Robinson v Randfontein Estates Gold Mining Co Ltd 1921 AD 168
Sher v Allen 1929 OPD 137
Associated South African Bakeries (Pty) Ltd v Oryx & Vereinigte Backerien (Pty) Ltd en
Andere 1982 (3) 893 (A)
Hirschowitz v Moolman & Ors 1985 (3) SA 739 (A)
Owsianick v African Consolidated Theatres (Pty) Ltd 1967 (3) SA 310 (A)
Kazazis v Georghiades en Andere 1979 (3) SA 886 (T)
Reynders v Rand Bank Bpk 1978 (2) SA 630 (T)
E W W Morris for the appellant
M R D Stonier for the first respondent
M J Gillespie for the second respondent
GUBBAY CJ: The appellant made application on notice of motion to the High Court,
claiming an order that, as against payment of the sum of $850 000 and the necessary
conveyancing charges, the second respondent transfer to him Stands 388, 389 and 390,
Salisbury Township, hereinafter referred to as “the property”. In effect what was sought
was the enforcement of a right of pre-emption alleged to have been granted to the
appellant by the first respondents (“the heirs”) in respect of the property. The application
was dismissed with costs.
In this court the main issues debated, and which fall for determination, are these:
(1) Did the appellant ever communicate to the heirs an acceptance of the right
of pre-emption offered him, as set out in the letter of 21 October 1981?
(2) Notwithstanding such communication, was the right of pre-emption
expressed in such vague and uncertain language as to justify the implication that the
parties were not ad idem?
(3) If the appellant did enjoy an enforceable right of pre-emption, was such
right extinguished by his refusal to purchase the property when the heirs offered to sell it
to him for $850 000?
Page 298 of 1991 (1) ZLR 295 (SC)
(4) If the right of pre-emption remained in existence at all material times, was
the appellant entitled to obtain an order of enforcement in forma specifica against the
second respondent?
The essential facts, insofar as they relate to the first three issues, are as follows:
On 1 September 1981 the appellant, with the consent of the heirs as owners and
landlords, took cession of a written agreement of lease of the property, which had been
entered into with one James Crawford the previous year. In terms of this lease, as later
renewed in pursuance of a written agreement made by the appellant and the heirs, the
appellant was entitled to remain in occupation of the property until 30 September 1990.
On 10 September 1981 the appellant’s then legal practitioner, Ali Ebrahim, wrote to the
legal practitioners acting for the heirs, indication that his client wished to exercise an
option to purchase the property. The reply of 21 October 1981 was to the effect that,
although initially clause 27 of the lease granted an option to purchase, the right had been
subsequently revoked by agreement with Crawford and the clause deleted. The letter
went on to state:
“In the circumstances, there is no option. However, our client is quite prepared to say that
should your client make any competing offer which is equal to another’s offer and that
offer be acceptable, our client would have no objection to giving your client the right of
first refusal.”
There was no response from the appellant. He regarded the letter of 21 October 1981 as
actually granting him a pre-emptive right over the property, and consequently considered
that notification of an acceptance was unnecessary.
Mrs Catarina Macedo, who deposed to an affidavit on behalf of the heirs, also believed
that the appellant enjoyed this pre-emptive right by virtue of the letter of 21 October
1981. In accordance with that view, early in October 1987 she instructed Vivian Gabriel,
whose company, Gabriel Real Estate (Private) Limited, she had appointed in June 1983
to administer the property, to inform the appellant that she was offering the property for
sale at $850 000. Gabriel complied. On 6 October 1987 he wrote to the appellant:
“Please be advised that the owners of the above property, currently occupied by your
goodself have instructed that (the) same be placed on open market.
Page 299 of 1991 (1) ZLR 295 (SC)
Accordingly, we wish to advise that the entire property (freehold right) is on offer at $850
000 — as the sitting tenant we naturally wish to offer you the first opportunity to consider
outright purchase. This offer will remain exclusively with you until 31st October 1987
and thereafter, the property will be placed on the open market.”
The reply of 19 October 1987 from the appellant’s present legal practitioners, Brighton &
Cole Bowen reads, in relevant part:
“Our client is not prepared at this stage to take up your offer of purchase at $850 000, but
we note that he has a right of first refusal in respect of any proposed sale and we would
ask therefore that any serious offers you may receive be referred to us on his behalf along
with verification, of course, that they are genuine offers.”
After noting that the appellant was not prepared to take up the offer to purchase, Gabriel
wrote on 2 November 1987:
“We confirm that the normal provisions of right of pre-emption/first refusal will apply.”
The learned judge a quo resolved the first issue in favour of the appellant. He expressed
the view that, because it was assumed by both the appellant and the heirs that the right of
pre-emption was in existence when Gabriel wrote the letter of 6 October 1987, it was not
open to the heirs to maintain that no such right had been given.
It was Mr Stonier’s submission, advanced on behalf of the heirs, that the letter of 21
October 1987 was to be construed as a counter-offer, which the appellant at no time
accepted either expressly or by conduct; and that even if he intended to accept the offer,
he had failed to communicate such acceptance to the heirs. He went on to submit that the
fact that both the appellant and the heirs had misconstrued the letter of 21 October 1981,
in that they regarded it as immediately conferring the right of pre-emption making
acceptance unnecessary, did not dispense with the need for the appellant to notify his
assent and so complete the agreement.
It seems to be beyond argument that the letter of 21 October 1981 contained a counter-
offer. The appellant had sought an option to purchase the property. His request was
refused, but in substitution, and as a counter, he was offered the right of pre-emption.
Indeed, this much was conceded by Mr Morris, who
Page 300 of 1991 (1) ZLR 295 (SC)
appeared for the appellant. Consequently a mental acceptance on the appellant’s part was
insufficient. It was necessary for him to establish a conveyance of such acceptance to the
heirs. See Orion Investments (Pvt) Ltd v Ujaama Investments (Pvt) Ltd & Ors 1987 (1)
ZLR 141 (SC); 1988 (1) SA 583 (ZS) at 588A; Robophone Facilities Ltd v Blank [1966]
3 All ER 128 (CA) at 131I-132B. Even if he had decided in his own mind to accept,
which he obviously did for he did not protest what he considered to be the grant of a most
advantageous right, the agreement was incomplete.
The position was not one in which the letter of 21 October 1981 constituted a waiver of
the requirement of communication, by indicating either expressly or impliedly that
acceptance by silence — an uncommunicated acceptance — would suffice. See, for
example McKenzie v Farmers’ Co-operative Meat Industries Ltd 1922 AD 16 at 22. In
short, for the appellant to succeed on this issue there had to be evidence of an external
manifestation of assent; some word spoken or written, or act done by him or by his
authorised agent, which the law could regard as the communication of an acceptance to
the heirs or to their authorised agent.
It is in this connection that the letter of 19 October 1987 to the heirs’ agent, Gabriel,
assumes importance. Although written under the misapprehension that the right of pre-
emption offered in the letter of 21 October 1981 did not require acceptance, the
statement: “We note that he has a right of first refusal in respect of any proposed sale”
constituted, so it seems to me, a clear manifestation of an acceptance by the appellant. If
this is correct, as I believe it to be, then the reply by Gabriel of 2 November 1987 is of no
particular significance. It simply confirms Gabriel’s belief that the right of pre-emption
became effective under the letter of 21 October 1981.
The second issue was not one argued before the learned judge. Nonetheless it was Mr
Stonier’s alternative contention that the contract of the right of pre-emption was
expressed in such vague and uncertain language as to be unenforceable — in language
which indicates that the parties were never truly in agreement. In particular, counsel
stressed that, in the first place, the period of the duration of the right was undefined. Was
the right to remain if the lease was renewed? Was it to survive a termination of the lease?
Secondly, was it contemplated that the appellant would have the right of pre-emption in
respect of every offer made to purchase the property?; or was such right to be confined
to the first such offer? In other words, if the appellant were to decline to equal the offer
of another, which was acceptable to the heirs, but for some valid reason the sale to the
third party was cancelled,
Page 301 of 1991 (1) ZLR 295 (SC)
would the heirs be obliged to provide him with the opportunity of equalling any
subsequent offer made?
The attack upon the terms of the offer of pre-emption falls within the second class of case
mentioned by Guenet J (as he then was) in Levenstein v Levenstein 1955 SR 91 at 97;
1955 (3) SA 615 (SR) at 619 — uncertainty as to what the promisor has acknowledged as
being his obligation.
In relation to questions of vagueness what is to be avoided is the making of a contract for
the parties by going outside the words used and finding consensus ad idem by mere
conjecture. See Carthew-Gabriel v Fox & Carney (Pvt) Ltd 1977 (2) RLR 152 (A) at
157E; 1978 (1) SA 598 (RA) at 600H. But balanced against this principle is the approach
adopted by the courts, which is to seek reasons to uphold the contract rather than destroy
it. The law is generally anxious, wherever possible, to sanction an intention by parties to
be contractually bound. See Hoffman and Carvalho v Minister of Agriculture 1947 (2)
SA 855 (T) at 860; Soteriou v Retco Poyntons (Pty) Ltd 1985 (2) SA 922 (A) at 931G-I.
In the instant matter both the appellant and the heirs genuinely believed that the pre-
emptive right existed. Thus, it is the duty of the court to construe the letter of 21 October
1981 broadly and fairly, without being over-astute in finding faults, or obstructive by
raising legal subtleties.
The offer of the right of pre-emption was made to the appellant in his capacity as a tenant
of the property. He had just taken cession of the terms of the lease from Crawford. In
refusing the request of an option to purchase, it was pointed out in the letter of reply that
initially such a right had been included in clause 27 of the lease, but later deleted. In this
context it seems to me that the intention of the parties was that the pre-emptive right be
substitutory and was to endure during the full running of the lease, while the relationship
of landlord and tenant subsisted, unless, of course, the right had come into operation by
the appellant being given the opportunity to exercise it. It would have been different if
there had been no formal renewal of the lease and the appellant’s continued occupation
had been by virtue of a tacit relocation. See Bowhay v Ward 1903 TS 772 at 777 in fine-
778; Doll House Refreshments (Pty) Ltd v O’Shea & Ors 1957 (1) SA 345 (T) at 351F-
G.
Nor do I consider that there is merit in the second contention urged by Mr Stonier, for it
is based, in my view, upon a misconception.
Page 302 of 1991 (1) ZLR 295 (SC)
A pre-emptive right affords the grantee the opportunity to purchase the subject-matter of
the right at the price offered by a third party which is acceptable to the grantor. As soon
as a genuine offer to purchase is made the right of pre-emption comes into operation,
with the consequence that the agreement which gave rise to it is converted into an option
to purchase. If the grantee then exercises his right to purchase, a contract of sale is
concluded. If he decides not to purchase, then the granter has fulfilled his obligation and
is free to conclude a sale with the third party offeror. If on any valid ground the grantor is
obliged to cancel the sale the right of pre-emption does not revive, save where the pre-
emptive agreement stipulates otherwise.
The letter of 21 October 1981 contained a price which is ascertainable, namely, the right
to purchase at a price equal to that offered by another. See Crossroads Properties (Pvt)
Ltd v A1 Taxi Service Company (Pvt) Ltd 1954 SR 152 at 153; 1954 (4) SA 514 (SR) at
515; Hattingh v Van Rensburg 1964 (1) SA 578 (T); Dithaba Platinum (Pty) Ltd v
Erconovaal Ltd & Anor 1985 (4) SA 615 (T) at 623E-H.
There was thus no question of the appellant and the heirs having to agree upon the
purchase price of the property.
Finally, I would point out that the omission to fix a definite period, after the notification
by the heirs of the receipt of any offer to purchase, within which the pre-emptive right
was to be exercised, is not fatal to its enforceability. It is implicit that the right is
exercisable within a reasonable time. See Caltex Oil SA Ltd v Waller 1968 (1) PH A.36
(D); Wissekerke en ’n Ander v Wissekerke 1970 (2) SA 550 (A) at 559 and 560.
In respect of the third issue the learned judge expressed the view that the letter of 6
October 1987 fulfilled the undertaking of the heirs in the letter of 21 October 1981. It
offered the appellant the opportunity to purchase the property at $850 000 and, as he had
rejected that offer, there was no obligation upon the heirs to address any further offer to
him.
Mr Stonier did not seek to support this reasoning. He was constrained to concede that the
offer contained in the letter of 6 October 1987 fell outside the terms of the pre-emptive
right expressed in the letter of 21 October 1981. I agree entirely with this concession. The
letter of 6 October 1987 did not state that the heirs had received an offer from “another”
to purchase the property at $850 000. All it indicated was that they were prepared to
accept $850 000 for the property and that if the appellant wished to meet their price
Page 303 of 1991 (1) ZLR 295 (SC)
they would sell the property to him; otherwise it was intended to place the property on the
open market at that price.
It seems to me with respect that the learned judge overlooked the importance attaching to
the phrase “equal to another’s offer”. In Robinson v Randfontein Estates Gold Mining Co
Ltd 1921 AD 168 Innes CJ dealt with the juridical nature of a right of pre-emption. He
said at 188:
“Now a contract not to sell to a third person without giving the other contracting party an
opportunity of purchasing at the price offered as analogous to a jus retractus or
contractual right of naasting (Schorer, Note 380; Voet, 18.3, sec.10). Such an agreement
being in restraint of alienation is narrowly construed; and, according to Voet, does not
prevent the owner from freely disposing of the subject matter by way of gift or
testamentary disposition. And, of course, it can only operate if and when the owner is
willing to sell and has received an outside offer”. (The emphasis is mine.)
See also Sher v Allan 1929 OPD 137 at 142; the Crossroads case supra at 153.
In order to guard against the contingency that he had wrongly decided the third issue, the
learned judge wisely proceeded to determine whether the appellant was entitled to the
grant of an order for specific performance against the second respondent. After a careful
analysis of the pertinent undisputed facts, he came to the conclusion that such relief was
to be refused on the ground that, when concluding the contract of purchase of the
property with the heirs, as well as at the time of transfer, the second respondent genuinely
believed that there was no foundation for the appellant’s claim that he held a pre-emptive
right.
It was common cause between Mr Morris and Mr Gillespie, for the second respondent,
that the grant of specific performance is a competent remedy against a third party
purchaser to enforce a pre-emptive right, subject, of course, to the discretion reposed in
the court to refuse it. Reliance was placed by both counsel on Associated South African
Bakeries (Pty) Ltd v Oryx & Vereinigte Backerien (Pty) Ltd en Andere 1982 (3) SA 893
(A) at 907E; Hirschowitz v Moolman & Ors 1985 (3) SA 739 )(A at 762C-E; Dithaba
Platinum v Erconovaal Ltd & Anor, supra, at 627C-E.
I can perceive of no basis not to follow the persuasive reasoning in the decisions cited
above. I do so in preference to the earlier view expressed in
Page 304 of 1991 (1) ZLR 295 (SC)
Owsianick v African Consolidated Theatres (Pty) Ltd 1967 (3) SA 310 (A) at 323E, that
the pre-emptive right only gives rise to a claim for a interdict to restrain a proposed sale,
in appropriate circumstances, or for damages in the event of a sale in breach of such right.
The holder of a right of pre-emption will only be permitted to assert his right and pursue
its subject-matter in the hands of a third party to whom it has been delivered, if the facts
disclose that the latter was aware of the existence of the right of pre-emption. See the
ASA Bakeries case, supra, at 908D. This enquiry involves what is termed “the doctrine of
notice”.
In Kazazis v Georghiades en Andere 1979 (3) SA 886 (T), Spoelstra AJ (as he then was),
differing from Reynders v Rand Bank Bpk 1978 (2) SA 630 (T) at 637H, opined that it is
unnecessary for the operation of the doctrine of notice:
“. . . to prove any intention or motive on the part of the later purchaser to frustrate the
rights of the previous purchaser. The mere fact that he is aware of the existing rights and
the fact that he, despite that knowledge, continues to enforce his own rights by which the
earlier rights are defeated or infringed upon, is regarded as a species of fraud upon the
party holding the earlier rights” (at 893G, in translation).
Van Heerden AJA (as he then was) in the ASA Bakeries case supra at 910E-H and 911A,
approved of this view. He observed that the characterisation of the doctrine of notice as a
species of fraud is merely a fiction employed to provide it with theoretical support. It
does not require mala fides for its operation — only that the third party acted with
knowledge of the prior right of another, or wilfully closed his eyes to it. But to act
contrary to a right known to be claimed in the genuine and reasonable belief that such
right never existed, or had ceased to exist, will not make the third party purchaser
vulnerable. See Kazazis v Georghiades, supra, at 894D.
The factual situation to which this principle is applicable, is this:
On 16 September 1988 George Stuart, a property negotiator in the employ of the firm
Richard Ellis Estate Agents, received instructions from the second respondent to act as its
agent in negotiations to purchase the property. He duly contacted Mrs Macedo and was
advised that the heirs were prepared to sell the property for $850 000, but that the
appellant was entitled to remain in occupation under a renewal of the lease until 30
September 1990. No mention was made at this stage that he was the holder of a pre-
emptive right.
Page 305 of 1991 (1) ZLR 295 (SC)
A written enquiry made of Gabriel as to whether the appellant had an option to purchase
the property or a right to further renew the lease, revealed that he had neither; simply, as
expressed by Gabriel in his reply of 3 October 1988, “the right of first refusal during the
currency of the lease.” Two weeks later Gabriel despatched to Stuart a photocopy of the
letter of 21 October 1981, but not those of 10 September 1981, 19 October 1987 and 2
November 1987. (It was after the motion proceedings had been instituted that Stuart and
the second respondent’s representative, Mr John Deary, first became aware of this
existence). The reason for Mr Gabriel’s omission to forward these three letters is plain.
He did not regard them as in any way relevant to the existence of a right of pre-emption.
To him an acceptance by the appellant of what was offered in the letter of 21 October
1981 was not required. In his own words:
“I forwarded to Messrs Richard Ellis copies of the lease agreement, cession and
addendum as well as a copy of Annexure B (the letter of 21 October 1981) in terms of
which the right of first refusal was first granted.” (Emphasis supplied.)
In this way Gabriel inadvertently misled Stuart and the second respondent into believing
that the appellant’s claim to be the holder of a right of pre-emption was grounded entirely
upon an interpretation of the letter of 21 October 1981, and that there had been no
external manifestation of assent on the appellant’s part.
On 18 October 1988 Stuart, who by this time was aware that the appellant had previously
declined an offer to purchase the property for $850 000, informed the appellant that he
was acting for an unnamed principal who was considering its purchase. He enquired
whether he would agree to an early termination of the lease. The appellant suggested that
a financial approach be made to him. He did not mention that he held a right of pre-
emption over the property. Nor did Stuart disclose that he had been in contact with
Gabriel about it. Subsequently, an offer to pay $100 000 was rejected, and on 1
November 1988 the appellant informed Stuart that he was prepared to vacate the property
at the end of February or March 1989 in return for payment of $300 000.
In his letter of 28 October 1988 Stuart sought advice from Ali Ebrahim, who was then
acting on behalf of the heirs, as to whether there was any evidence that the appellant had
accepted the offer of a pre-emptive right. He correctly interpreted the letter of 21 October
1981 as not having created such a right. A few days later Ebrahim, having perused his
file, confirmed telephonically
Page 306 of 1991 (1) ZLR 295 (SC)
(and later in writing) that the appellant had not accepted the offer contained in the letter
of 21 October 1981. Obviously Ebrahim had no knowledge of the letter of 19 October
1987 written to Gabriel by the appellant’s present legal practitioners.
On 3 November 1988 Stuart, on behalf of the second respondent, addressed an offer of
$850 000 for the purchase of the property to Mrs Macedo. The offer was accepted and on
28 November 1988, a written agreement of sale was signed by the parties. Transfer of the
property was registered in the name of the second respondent on 20 December 1988. Two
weeks later the appellant learned of this.
On 6 January 1989 the appellant complained to Stuart that he had not received a response
to his counter-offer that the second respondent pay him $300 000 for an early vacation of
the property. He also advised that he had ascertained that the property had been
transferred to the second respondent and that such action was in breach of his right of
first refusal. This was the first occasion that he asserted to Stuart that he held such a right.
Shortly after this conversation the appellant was informed that the second respondent had
rejected his counter-offer and that negotiations were at an end.
Stuart deposed that Mrs Macedo did not raise with him that the appellant held a pre-
emptive right. She, on the other hand, was certain of having told Stuart that she believed
the appellant had the right to be offered the property first, in accordance with certain
correspondence “going back several years”, presently in the possession of Gabriel.
Accepting her recollection as the more accurate, her reliance on what could only have
been the letter of 21 October 1981 (for this was one of the early letters she had sent to
Gabriel on his appointment as agent for the heirs) would only have caused Stuart to
correctly conclude that she, as well as Gabriel, were misconstruing its legal effect.
This summation of what transpired between the parties prior to the date on which transfer
of the property was affected, leaves me in no doubt that the appellant failed to show that
the second respondent knew him to be the holder of a valid and current right of pre-
emption. I would go further and say that I am satisfied that the second respondent
positively proved that it entertained a bona fide and reasonable belief that the right
offered in the letter of 21 October 1981 had never been accepted; and that Gabriel and
Mrs Macedo were wrong in thinking that acceptance in some form or other was
unnecessary to bring the right into existence. As pertinently stressed by Deary in his
opposing affidavit:
Page 307 of 1991 (1) ZLR 295 (SC)
“This letter did not seem to me to be enough to establish that the applicant had a right of
first refusal.”
Whether the position would have been different if Gabriel had sent the second respondent
a copy of the letter of 19 October 1987, need not be considered.
Moreover, Stuart received an assurance from the heirs’ legal practitioner that as far as he
was concerned the appellant had not accepted the offer of a pre-emptive right in respect
of the property: And the appellant refrained during the negotiations with Stuart from
making any mention of it.
For these reasons it seems to me that the court a quo was correct in refusing to make an
order for specific performance against the second respondent.
I turn to the question of costs: The first and second issues, which were contested between
the appellant and the heirs, have been resolved in favour of the appellant. The third issue
was ultimately conceded in the appellant’s favour, through not in the heads of argument
prepared by Mr Stonier on behalf of the heirs.
The fourth issue was the subject of much debate between the appellant and the second
respondent and the submissions advanced on the latter’s behalf by Mr Gillespie have
prevailed. In consequence the appellant must be ordered to pay the second respondent’s
costs.
I think that a special order should be made with regard to the costs incurred by the
appellant and the heirs. Notwithstanding that the appellant had failed in his bid to obtain
an order for specific performance, the resistance by the heirs to his claim that he enjoyed
an enforceable right of pre-emption, protracted the hearing of the appeal, in my
estimation, by about one-third of its duration. It is just and appropriate, therefore, that the
heirs be ordered to pay one-third of the appellant’s costs.
I am not, however, inclined to disturb the discretion exercised by the learned judge in
ordering the payment of costs as he did. No argument that a special order be made against
the heirs was addressed to him, and such an alteration to the existing order is not even
prayed for, in the alternative, in the notice of appeal.
Lastly, Mr Morris requested that this court issue a declaratur that at all
Page 308 of 1991 (1) ZLR 295 (SC)
relevant times the appellant was the holder of an enforceable right of pre-emption over
the property. Although on the papers this court has come to that view, the heirs may have
available to them certain defences, which were not raised because the appellant was not
disposed to seek, in the alternative, any effective relief against them. The possibility,
albeit remote, of prejudice being caused the heirs in future proceedings, by the issue of
such a declaration, is to be avoided. The application is therefore refused.
In the result it is ordered as follows:
1. The appeal is dismissed;
2. The appellant is to pay the second respondent’s costs.
3. The first respondent is to pay one-third of the appellant’s costs.
Korsah JA: I agree.
Ebrahim JA: I agree.
Coghlan, Welsh & Guest, appellant’s legal practitioners
Byron Venturas & Partners, first respondent’s legal practitioners
Atherstone & Cook, second respondent’s legal practitioners
IMF MANAGEMENT SERVICES (PVT) LTD v SICOM SPA (ZIMBABWE) LTD
1991 (1) ZLR 309 (SC)
Division: Supreme Court, Harare
Judges: Gubbay CJ, McNally JA & Korsah JA
Subject Area: Civil appeal
Date: 4 June & 24 June 1991

Civil procedure — barring — whether available for failure to respondent to request for
further particulars — further particulars — whether a pleading — pleadings — nature of.
Legislation — High Court — High Court of Zimbabwe Act 1981 — High Court Rules,
Rule 80.
A pleading is a document which contains distinct averments or denials of averments.
Further particulars, when filed, form part of the pleading in respect of which they are
provided but neither the particulars themselves nor the request therefor constitute a
pleading in their own right. A party faced with failure by its opponent to respondent to a
request for further particulars does not have available to it the procedure of barring the
defaulter but must move the court for an order to compel the delivery of the particulars.
Cases cited:
Dinath v Du Toit NO: Singh v du Toit NO 1969 (4) SA 165 (N)
Jeramsingh v Prestige Homes 1975 (2) SA 704 (N)
Marley Floor Tile Co (SA) (Pty) Ltd v Geldenhuys 1967 (3) SA 585 (GW)
Schooling v Profile Enterprises Ltd 1971 (1) SA 555 (O)
Ex Parte Vally: In re Bhoolay v Netherlands Insurance Co of LSA Ltd & Anor 1972 (1)
SA 184 (W)
Swart v Flugel 1978 (3) SA 265 (E)
Page 310 of 1991 (1) ZLR 309 (SC)
Shatterprufe Safety Glass Co (Pty) Ltd v Northern Hardware & Glass (Pty) Ltd & Ors
1983 (4) SA 26 (T)
Advanced Idea Mechanics (Pty) Ltd v Tiffany’s Confectionery (Pty) Ltd 1985 (4) SA
444 (W)
Nangle & Anor v Aronowitz 1949 SR 47; 1949 (2) SA 713 (SR)
Luttig v Jacobs 1951 (4) SA 563 (O)
Banks v Hartford 1953 (1) SA 165 (C)
MacDonald, Foreman & Co Ltd v Van Aswegan & Anor 1963 (4) SA 735 (O)
J S Sayce for the appellant
M J Gillespie for the respondent
GUBBAY CJ: This is an appeal, consequent upon the grant of leave, against a decision
of the High Court (Adam J) in which it was held that the respondent (the plaintiff in the
main action, Case No. HC 3517/88) was entitled to serve a notice of intention to bar on
the appellant (the defendant) and thereafter impose the bar, in the absence of any
response from the appellant to the request for further particulars to its claim in
reconvention. Having so ruled, the learned judge, exercising his discretion in favour of
the appellant, granted the alternative relief sought by it. He ordered that:
(i) the bar be uplifted and that the appellant furnish the further particulars requested
within four days, failing which it would be automatically barred; and,
(ii) the appellant pay the costs of the application.
The dispute, culminating in the appeal, arose in this way:
On 26 August 1988 the respondent instituted an action against the appellant with the
service of a specially endorsed summons. After giving the appellant several reminders
that its plea was overdue, the respondent delivered a notice of intention to bar on 21
March 1989. Only then did the appellant react with the filing, on 30 March 1989, of a
plea and claim in reconvention. On 14 April 1989 the respondent served a request for
further particulars to the claim in reconvention, and on 2 May 1989 sought a prompt
reply. On 22 May 1989 the appellant intimated that within the next day or two it expected
to be in possession of the information necessary to enable it to answer the request. The
respondent waited in vain and ultimately, on 2 June 1989, having lost all patience, gave
notice of intention to bar in respect of the failure to furnish the further particulars. Even
that threat did not evoke a response, so on 9 June 1989 a copy of the notice was filed with
the Registrar of the High Court.
Page 311 of 1991 (1) ZLR 309 (SC)
Three weeks later the appellant queried with the respondent the validity of the bar, and on
3 July 1989 wrote informing the Registrar that it was now in a position to provide the
further particulars and that in its opinion the notice of intention to bar, and the subsequent
bar, were invalid. As this contention was strenuously resisted by the respondent, the
appellant instituted notice of motion proceedings, seeking a declaratur in its favour,
failing which an order uplifting the bar.
Order 12 of the High Court of Zimbabwe Rules, 1971, sets out the “Procedure for
Barring”. Rule 80 thereof provides:
“A party shall be entitled to give four days’ notice of intention to bar to any other party to
the action who has failed to file any pleading or request for further particulars within the
time prescribed in these rules and shall do so by delivering a notice in Form No. 9 at the
address for service of the party in default.”
It was upon this Rule that the respondent grounded its right to serve a Form No. 9 notice
upon the appellant. It accepted that it was only entitled to do so if the outstanding
particulars requested of the appellant constituted a “pleading”. If they did not, then cadit
quaestio.
In answering the question posed in the affirmative, Adam J relied on the decisions of the
Natal Provincial Division in Dinath v Du Toit NO 1969 (4) SA 165 (N); and Jeramsingh
v Prestige Homes 1975 (2) SA 704 (N).
In the former case Harcourt J reasoned that a request for further particulars is a pleading
within the meaning of the wide generic term “any pleading” in Rule 26 of the Uniform
Rules of the Supreme Court of South Africa, 1965, (failure to deliver pleadings and
barring) and therefore that rule operates to require that a notice to bar be delivered before
a party loses his right to request further particulars (see at 167D-168D). One of the points
made was that, while Rule 21(2) (request and delivery of particulars and signatures
thereto) might be semantically capable of the construction that the request does not form
part of the pleadings until there is a reply, this gives rise to an awkwardness of
consequence and a refinement concept which should not be imputed to the framers of the
Uniform Rules. In the Jeramsingh case Howard J (as he then was) was more diffident.
Presiding alone, he felt constrained to follow the Dinath judgment as he was not satisfied
that it was incorrect, but stressed that he would not necessarily have arrived at the same
conclusion. At 705C the learned judge interpreted it as deciding that:
Page 312 of 1991 (1) ZLR 309 (SC)
“. . . a request for further particulars is not a pleading in the true sense of the word, but
simply that it should be regarded as such for the purposes of the proviso to Rule 26.”
These two judgments run counter to several others, which hold that neither a request for
further particulars nor the reply thereto constitute a pleading for the purpose of Rule 26.
See Marley Floor Tile Co (SA) (Pty) Ltd v Geldenhuys 1967 (3) SA 585 (GW) at 587G-
H; Schooling v Profile Enterprises Ltd 1971 (1) SA 555 (O) at 556A-H; Ex parte Vally:
in re Bhoolay v Netherlands Insurance Co of SA Ltd & Anor 1972 (1) SA 184 (W) at
185E-186A; Swart v Flugel 1978 (3) SA 265 (E) at 266D-H; Shatterprufe Safety Glass
Co (Pty) Ltd v Northern Hardware & Glass (Pty) Ltd & Ors 1983 (4) SA 26 (T) at 28A-
E; Advanced Idea Mechanics (Pty) Ltd v Tiffany’s Confectionery (Pty) Ltd 1985 (4) SA
444 (W) at 445C-446C.
The rationale for this review, gleaned from the authorities cited above, may be stated as
follows:
1. There is no definition of “pleading” in the Uniform Rules. Linguistically,
a pleading is understood to be a document which contains distinct averments or denials of
averments. The function of a request is merely to require information from the other party
and not to assert or deny anything.
2. Rule 26 deals with the delivery of pleadings and not with other notices or
notices requesting particulars (see Rule 21(2)(a)).
3. Rule 18(1) emphasises the fact that every pleading must be signed by
counsel and the attorney. However, Rule 21(2)(b) sets out that a request for further
particulars must be signed — save, of course, where a party appears in person — by
counsel and the attorney. This latter provision would be unnecessary if a request for
further particulars is a pleading.
4. It is difficult to understand what benefits a party who has asked for
particulars can obtain from barring the other party for failing to comply with the request.
The basic function of seeking further particulars is to complete the picture with
information sufficiently detailed to put the party making the request on his guard as to the
case he has to meet and enable him to plead to it. The mere fact that he is able to place on
record a bald denial of the allegations made is no ground for refusing further particulars.
To bar a party from furnishing further particulars would in the circumstances, work rather
to the detriment of the party who had made the request.
Page 313 of 1991 (1) ZLR 309 (SC)
5. Rule 21(6) provides that a party who fails to furnish particulars either
timeously or sufficiently lays himself open to an application for an order for their
delivery, or for the dismissal of the action, or the striking out of the defence, as the court
deems just. Thus, where the framers of the Uniform Rules have afforded a specific
remedy for this type of default, it would seem unreasonable to construe the procedure of
barring for failure to deliver a pleading as applicable to further particulars.
These features, save for the third, are apposite and, being supported by the weight of
respectable authority, persuasive in a determination of the present issue. Moreover,
differences exist in the relevant Rules of the High Court which, in my opinion, make the
position, that there is no entitlement to serve notice of intention to bar upon a failure to
provide further particulars, even clearer than it is under the Uniform Rules.
Rule 80, unlike its South African equivalent, Rule 26, expressly provides that not only
the failure to file any pleading will entitle a party to give notice of intention to bar, but
failure to file a “request for further particulars” will do so as well. If, therefore, the
framers of these Rules had considered that such a request is in the nature of a “pleading”,
it would have been unnecessary to have added the words “or a request for further
particulars”. Their presence points indubitably to an intention to distinguish between a
“pleading” and a “request for further particulars”.
Rule 30 also lays down the requirement that the form of relief specified may only be
sought where the other party “has failed to file . . . within the time prescribed in these
rules”. An examination of the Rules as a whole, and in particular Order 21 which deals,
inter alia, with “Applications for Particulars”, reveals that nowhere is any time limit
prescribed for the delivery of particulars prior to the close of pleadings. (Compare Rule
21(2)(a) of the Uniform Rules.) Significantly, under Rule 143 it is only in relation to
particulars after the close of pleadings that a time limit for their delivery is set. This
variance in the Rules must be taken as purposeful and affords the strongest indication that
the relief under Rule 80 is not applicable; and that the procedure to be adopted by the
offended party is to move the court in terms of Rule 141(b) for an order to compel the
delivery of particulars.
Although there is no specific provision in the Rules, such as that contained in Rule 21(2)
(a) of the Uniform Rules, that once particulars are filed they form part of the pleadings,
they undoubtedly do so. See Nangle & Anor v Aronowitz 1949 SR 47 at 51; 1949 (2) SA
713 (SR) at 717; and pre-dating the
Page 314 of 1991 (1) ZLR 309 (SC)
Uniform Rules, Luttig v Jacobs 1951 (4) SA 563 (O) at 566B; Banks v Hartford 1953 (1)
SA 165 (C) at 167B; MacDonald, Foreman & Co Ltd v Van Aswegan & Anor 1963 (4)
SA 735 (O) at 737A. I would emphasise, however, that recognition of this principle does
not mean that particulars when furnished constitute a pleading. They merely serve to
amplify the pleading they relate to. They become part of and additional to an extant
pleading and do not exist as a pleading in their own right.
Notwithstanding the frustration caused it by the appellant’s inordinate delay in furnishing
the particulars, I entertain no doubt that the respondent adopted the wrong procedure and
that the learned judge ought to have set aside the bar as invalid.
In the result, I would allow the appeal with costs and alter the order of the court a quo to
read:
“1. It is declared that the notice of intention to bar in respect of the applicant’s further
particulars in Case No. HC 3517/88 and the bar imposed thereafter on 9 June 1989, are
invalid;
2. The respondent is to pay the costs of this application.”
McNally JA: I agree.
Korsah JA: I agree.
Scanlen & Holderness, appellant’s legal practitioners
Kantor & Immerman, respondent’s legal practitioners
MACAPE (PTY) LTD v EXECUTRIX, ESTATE FORRESTER
1991 (1) ZLR 315 (SC)
Division: Supreme Court, Harare
Judges: McNally JA, Manyarara JA & Korsah JA
Subject Area: Civil appeal
Date: 16 May & 24 June 1991

Contract — illegality — contravention of exchange control legislation — underlying debt

not unlawful so contract enforceable.
Exchange Control Regulations 1977 — s 7(1) — s 8(1)(a) — s 12 — meaning and effect.
Costs — legal practitioner and client scale in terms of agreement — includes costs of
appeal.
The appellant sued the late defendant for recovery of a debt. It was argued, and accepted
by the court below, that the debt and the acknowledgement of that debt, were illegal
under the Exchange Control Regulations 1977. On appeal —
Held, the debt did not contravene any provision of the Exchange Control Regulations
1977, and a court could grant judgment even if eventual payment of the judgment
required the permission of the Reserve Bank of Zimbabwe.
Held, since the acknowledgement of debt provided for costs to be on the ‘attorney and
client’ scale, that agreement must include costs of any appeal. Accordingly, costs on that
higher scale awarded in both courts.
Cases cited:
Karjieker v Karjieker 1978 (2) SA 499 (C)
Ornelas v Andrew’s Cafe & Anor 1980 (1) SA 378 (W)
Barclays National Bank Ltd v Thompson 1985 (3) SA 778 (A)
Moolman v Marba Construction (Pty) Ltd 1982 (2) SA 223 (C)
Page 316 of 1991 (1) ZLR 315 (SC)
Pasaya v Interspace (Pvt) Ltd S-143-90 (not reported)
C W Jordaan for the appellant
J B Colegrave for the respondent
McNALLY JA: The appellant was the plaintiff in the court below. I will refer to it as
“Macape”. It is a South African company. It sued Michael Forrester, a Zimbabwean, for
payment of $30 000 and other relief. Mr Forrester denied liability and made a claim in
reconvention for $30 000. He died before the case was heard but after the joinder of
issue, and his widow, the executrix of his estate, was duly substituted as defendant. I will
refer to the estate as “the defendant”.
Both parties failed in the High Court and only Macape appealed. We are no longer
concerned with the claim in reconvention.
Macape’s claim was in terms of an acknowledgement of debt for Mr Forrester. Although
this acknowledgement of debt was never apparently signed by Mr Forrester, it was not
eventually disputed that it reflected the terms of an oral agreement reached between Mrs
Forrester, acting for her husband, and a Mr Tuck, legal representative of Macape.
The only issue now between the parties is whether that agreement is lawful and
enforceable. The defence contention, which was upheld in the High Court, was set out in
the plea as follows:
“5. Alternatively, and in any event, if the agreement was entered into as particularised
in the Particulars of Claim then such agreement was void ab initio in that it contravened
Section 7(1) or Section 9(1)(a) or both or Section 12 of the Exchange Control
Regulations, 1977 . . .”
The court a quo concluded that the contract was “tainted with illegality”. The claim was
dismissed with costs.
We are concerned therefore with the effect on the contract of ss 7(1), 8(a)(a) and 12 of
the Exchange Control Regulations, 1977. I propose to deal with them in reverse order,
because the latter two are more easily disposed of than the first.
However, before considering the law, a brief resume of the facts is necessary. These facts
are broadly common cause.
Page 317 of 1991 (1) ZLR 315 (SC)
In 1982 two of the Forresters’ sons were in Bloemfontein, South Africa. Mr Forrester was
visiting them when he came across what seemed like a good business opportunity. He
caused a company to be formed in South Africa, which was called Franz (Pty) Ltd, after
one of his sons. He persuaded a Mr Feek, a Johannesburg accountant, to invest R30 000
in the company, which was done in fact by a company controlled by Mr Feek called
Macape (Pty) Ltd, the present appellant.
Franz (Pty) Ltd did not prosper and soon the parties were at loggerheads. Mr Feek wanted
his (company’s) money back. The learned judge a quo seems to have assumed that Mr
Feek had invested his money in shares in Franz (Pty) Ltd. But the evidence is quite clear
that Macape lent the money to Franz (Pty) Ltd. In fact its loan account grew bigger as
more money was lent, and the amount was eventually more than R60 000.
Finally it seems that Mr Forrester, under considerable pressure from Mr Feek, agreed
personally to repay Macape in Zimbabwe. An agreement was reached whereby
repayments would be made in instalments to a company called Keay Woan & Co in
Bulawayo, which would receive the money on behalf of Macape.
One gains an impression that some of the evidence in this matter may not be before the
court. It is not easy to understand why Mr Forrester should have personally accepted
responsibility for the loan account of Franz (Pty) Ltd. It may be that he gave a personal
guarantee, but if he did the guarantee is not before us. Such a guarantee would have been
an infringement of s 8(1)(a)(ii) of the Exchange Control Regulations 1977, which reads:
“Subject to the provisions of subsection (2), unless otherwise authorised by the Minister
—
(a) No Zimbabwean resident shall do any act which involves or is in association with
—
(i) ...
(ii) the incurring of any obligation to make any payment outside Zimbabwe.”
On the other hand, he may have accepted the debt as a moral obligation, or there may
have been other pressures on him of which we are not aware. I do not think we can
speculate on matters not in evidence. We must look at the facts as presented before the
court. We must decide whether the agreement
Page 318 of 1991 (1) ZLR 315 (SC)
by a Zimbabwean resident, who is to hold that money on behalf of a foreign resident, is
legal or unenforceable.
It is convenient to begin by considering s 12 of the Exchange Control Regulations. It
reads:
“12. Unless otherwise authorised by the Minister, no Zimbabwean resident shall —
(a) acquire from any person, wherever resident —
(i) any security on which capital moneys, dividends or interest are payable or
expressed to be payable in foreign currency or in respect of which the holder has an
option to require payment of any such capital moneys, dividends or interest in foreign
currency; or
(ii) any coupon relating to a security referred to in subparagraph (i);
or
(b) sell, transfer or otherwise dispose of to a foreign resident —
(i) any security on which capital moneys, dividends or interest are payable or
expressed to be payable in foreign currency or in respect of which the holder has an
option to require payment of any such capital moneys, dividends or interest in foreign
currency; or
(ii) any coupon relating to a security referred to in subparagraph (i);
or
(c) do any act which involves, is in association with or is preparatory to, the making
of any transaction which is prohibited by paragraph (a) or (b).”
I must say that I think there is substance in Mr Jordaan’s point that if (and there is no
evidence) Mr Forrester took up shares in Franz (Pty) Ltd, that would have been a
transaction involving him and that company. It would have no bearing on the agreement
relied upon by Macape.
In any event, as Mr Jordaan also pointed out, the court a quo did not rely ultimately on s
12 but on s 7. It is unnecessary to dwell further on s 12.
The court a quo also, and with respect correctly, did not rely on s 8, which reads:
Page 319 of 1991 (1) ZLR 315 (SC)
“8. (1) Subject to the provisions of subsection (2), unless otherwise authorised by the
Minister —
(a) no Zimbabwean resident shall do any act which involves or is in association with
—
(i) the making of any payment outside Zimbabwe; or
(ii) the incurring of any obligation to make any payment outside Zimbabwe;
(b) no foreign resident carrying on any trade, business or other gainful occupation or
activity in Zimbabwe shall do any act which involves or is in association with —
(i) the making of any payment outside Zimbabwe; or
(ii) the incurring of any obligation to make any payment outside Zimbabwe;
in respect of the trade, business or other gainful occupation or activity carried on by him
in Zimbabwe.
(2) The provisions of subsection (1) shall not apply in relation to any act which —
(a) is done by a Zimbabwean resident who is an individual; and
(b) relates to any payment from money which —
(i) is lawfully held by him outside Zimbabwe; and
(ii) is available to him at the time of the act concerned; and
(iii) was acquired by him otherwise than by way of the proceeds of any trade,
business or other gainful occupation or activity carried on by him in Zimbabwe.”
This case is not about the making of payments outside Zimbabwe. It is about the making
of payments in Bulawayo.
The real issue is s 7 of the Exchange Control Regulations. That section reads:
“7. (1) Unless otherwise authorised by the Minister, no person shall, in Zimbabwe —
(a) make any payment to or for the credit of a foreign resident; or
(b) make any payment to or for the credit of a Zimbabwean resident by order or on
behalf of a foreign resident; or
(c) place any sum to the credit of a foreign resident:
Provided that where a foreign resident has paid a sum in or towards the satisfaction of a
debt due by him, the provisions of this paragraph shall not prohibit the acknowledgement
of recording of such payment.
Page 320 of 1991 (1) ZLR 315 (SC)
(2) Unless otherwise authorised by the Minister, a Zimbabwean resident who owns any
property, whether movable or immovable, outside Zimbabwe, shall not sell, lease or hire
such property to a Zimbabwean resident.
(3) Unless otherwise authorised by the Minister, no person shall, in Zimbabwe, accept
payment from any person for or in respect of services which are to be provided outside
Zimbabwe by another person.”
The essential point to be noted is that there is a clear difference between ss 7 and 8. The
former proscribes only the actual payment. The latter proscribes both the payment and the
underlying agreement to pay.
In other words, when one is concerned with payments inside Zimbabwe it is perfectly
lawful to enter into the agreement to pay. But, without authority from the Reserve Bank,
the actual payment may not be made. By contrast, when dealing with payments outside
Zimbabwe, it is unlawful even to enter into the agreement to pay, without first obtaining
the authority of the Minister, whose powers have been delegated to the Reserve Bank.
This fundamental distinction between the two sections was not appreciated in the court a
quo. It is a distinction which, to my mind, is clearly apparent on an ordinary grammatical
construction of the two sections. If a precedent is necessary, it may be found in the two
cases cited by Mr Jordaan, namely Karjieker v Karjieker 1978 (2) SA 499 (C) at 503 and
Ornelas v Andrew’s Cafe & Anor 1980 (1) SA 378 (W) at 392E. The latter passage reads
as follows:
“In the Karjieker case it was held that s 24(1)(a) of the 1957 Group Areas Act (77 of
1957) did not prohibit persons from entering into an agreement for the acquisition of
immovable property (by disqualified persons’) prior to their obtaining a permit. What the
section prohibits is the acquisition of immovable property, inter alia, in pursuance of an
agreement, without a permit.”
And later the point was made (p 392 in fine):
“By parity of reasoning, it would be competent to claim occupation in a given case on a
permit being granted, even though, without such permit, such occupation were prohibited
by s 20(1).”
Page 321 of 1991 (1) ZLR 315 (SC)
It seems to be that this conclusion disposes of the matter without the need to go into
questions of credibility. The contract to pay is lawful. Actual payment in pursuance of the
contract is unlawful, without permission. There is no reason why the court should not
order payment, subject to the condition that authority is obtained. I must make it clear
that this judgment in no way inhibits the Reserve Bank in the exercise of its discretion. It
is entirely for the Reserve Bank to decide whether or not to authorise the payment. If it
decides not to do so the payment may not be made. The contract remains lawful. Payment
will then have to await a change either in the law or in the policy of the Reserve Bank.
The conclusion that the lack of Reserve Bank permission for payment is no bar to the
court giving a judgment in favour of the plaintiff was expressly decided, in analogous
circumstances, by the Appellate Division in South Africa. In Barclays National Bank Ltd
v Thompson 1985 (3) SA 778 (A), Hoexter JA, with whom the Chief Justice and three
other Judges of Appeal concurred, said this, at 796B-D:
“I am consequently of the opinion that it is open to the court, unfettered as it is by any
decision of its own, to conclude, as I do, that the obtaining of Treasury exemption or
permission in terms of reg 3(1)(c) is neither a prerequisite to the institution of an action
by the plaintiff in a case such as the present, nor does its absence constitute a valid
defence to the plaintiff’s claim.
I remains to consider whether in the absence of such exemption or permission a court has
the right, mero motu, to decline to grant judgment in favour of the plaintiff on the ground
that such a judgment will be ineffective. For the reasons which follow this question must
also be answered in the negative.”
The learned Judge of Appeal went on to cite with approval (at 797F) an article, part of
which reads:
“The plaintiff is entitled to his judgment and Treasury permission is a hurdle which can
be jumped when it is reached.”
It must follow that the learned judge a quo erred in concluding that the agreement to pay
money in Bulawayo was “tainted with illegality”. There is no evidence before the court to
show that the underlying cause of the acknowledgement of debt was illegal, and the
acknowledgement itself was not illegal.
Page 322 of 1991 (1) ZLR 315 (SC)
It remains only to consider the question of costs. The agreement itself provides for
“attorney and client costs”. Mr Colegrave submitted that that agreement related only to
the costs of first instance and there is some precedent for this contention in Moolman v
Marba Contractors (Pty) Ltd 1982 (2) SA 223 (C). But in that case the court relied on the
wording of the agreement, which reads:
“. . . [Defendant] consents to the jurisdiction of the magistrate’s court . . . and shall in
addition to any costs of such proceedings be liable for costs on an attorney/client
scale . . .”
That was held to apply to costs in the magistrates court only. In the present case the
agreement is not so restrictively worded. No reference is made to a particular court. The
reasoning in Pasaya v Interspace (Pvt) Ltd S-143-90 (not reported) does not apply since
we are concerned with interpreting an agreement. I can see no basis for limiting the
agreement to the costs of court a quo.
Accordingly the following order is made:
1. The appeal is allowed with costs on the legal practitioner and client scale;
2. The order of the High Court in Case No. HC 545/85 is altered to read:
“1. There will be judgment for the Plaintiff as follows:
a. In the sum of $30 000, subject to the obtaining of the authorisation required by the
provisions of s 7 of the Exchange Control Regulations, 1977;
b. Interest thereon at the agreed rate of 10% per annum from 24 November 1983 to
date of payment; and
c. Costs of suit as between legal practitioner and client.
2. That the defendant’s claim in reconvention be and is hereby dismissed
with costs.”
Manyarara JA: I agree.
Korsah JA: I agree.
Scanlen & Holderness, appellant’s legal representatives
Coghlan, Welsh & Guest, respondent’s legal representatives
VRYSTAAT ESTATES (PVT) LTD v PRESIDENT, ADMINISTRATIVE COURT OF
ZIMBABWE & ORS
1991 (1) ZLR 323 (SC)
Division: Supreme Court, Harare
Judges: McNally JA, Manyarara JA & Korsah JA
Subject Area: Civil appeal
Date: 13 May & 25 June 1991

Administrative law — effect of failure to comply with a mandatory requirement — tests

applicable with regard to compliance with such requirements — whether failure renders
decision void or voidable.
Practice — High Court rules — Rule 259 — eight week time limit for bringing review
proceedings in High Court — non-applicability where applicant not aware of decision for
longer period than eight weeks after made because not informed of it — proper test to
apply in circumstances.
Legislation — Water Act 1976 s 33 — requirements of section not complied with.
Where an upstream riparian owner had been given an increased water right and an
unauthorized priority over the appellant, to the prejudice of the appellant and without
notice to the appellant as required by s 33 of the Water Act 1976, the Court proceeded on
the assumption that this was an irregularity which rendered the proceedings voidable and
that the appellant could not be blamed for any delay while it was ignorant of the
infringement of its rights.
Applying the correct test of whether the appellant had shown a reasonable explanation for
the delay, having regard to the strength of its case and the question of prejudice to others,
the court found that on the facts condonation for the delay in bringing review proceedings
ought to have been granted, and allowed the appeal.
Page 324 of 1991 (1) ZLR 323 (SC)
Cases cited:
Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (SC)
Grunwick Processing v ACAS [1978] 1 All ER 357 (HL)
Howard v Bodington (1877) 2 PD 203
Cluff Mineral Exploration (Zimbabwe) Ltd v Union Carbide Management Services (Pvt)
Ltd & Ors 1989 (3) ZLR 338 (SC)
Clan Transport Company (Pvt) Ltd v Road Service Board & Anor 1956 R&N 322 (SR)
Wolgroeiers Afslaers (Pty) Ltd v Municipality of Cape Town 1978 (1) SA 13 (A)
R v Dairy Produce Quota Tribunal for England & Wales, ex parte Caswell & Anor
[1989] 3 All ER 205 (CA)
M J Gillespie for the appellant
A P de Bourbon SC for the second and third respondents
McNALLY JA: This is a dispute over water rights. The appellant is the downstream
riparian owner. The second and third respondents (who are for practical purposes to be
regarded as one party, which I will call collectively “Delta Trust”) are the upstream
riparian owners. The President of the Administrative Court is involved because it is his
decision which the appellant sought unsuccessfully to have reviewed by the High Court.
The High Court came to the conclusion that there had been an unwarranted delay in
bringing the matter before it. Accordingly it refused to condone that delay and dismissed
the application with costs.
The dispute is over the waters of the Manzimhlope River in the Umsweswe River Block.
The problems arose because on 26 October 1977 a Mr Foreman (predecessor in title to
Delta Trust) applied for an extension of his water rights. On 28 July 1981 that extended
water right was granted to him, without the appellant being advised either of the
application or the hearing or the grant.
Prior to these events the position had been as follows. Foreman had had a water right
(No. 7546) with priority dates; 24 September 1966 and 4 March 1970. The appellant had
had a water right (No. 8377) with priority date 18 June 1968.
It is of significance that the appellant had originally objected to the granting of Foreman’s
right. The appellant withdrew the objection only when Foreman accepted that certain
conditions should be attached to his right. It
Page 325 of 1991 (1) ZLR 323 (SC)
was eventually granted subject to those conditions. In essence he was allowed to store
146 million gallons (63 600 cubic metres) of public water annually. But he was required
to pass downstream half of the first seasonal floods up to an amount of 25 million gallons
(11 400 cubic metres). He was given priority date 24 September 1966 in respect of 114
million gallons (51 800 cubic metres) of storage in Overlaw Dam and priority date 4
March 1970 in respect of another 32 million gallons (118 000 cubic metres) in various
small works.
The position of the appellant was then as follows:
1. He had a right to half the first seasonal floods up to a maximum of 25
million gallons (11 400 cubic metres);
2. Foreman then had a right to store 114 million gallons (51 800 cubic
metres);
3. The appellant then had a right to the balance of his right of 1259 000 cubic
metres.
4. Foreman then had the right to store the next 32 million gallons (118 000
cubic metres).
In about 1975 the upstream property was subdivided and Foreman’s right became 7546A,
but this is of no particular significance. What remained of significance was the set of
priorities enumerated in 1-4 above. Priorities are of course of fundamental importance in
the allocation of water rights — see s 63 of the Act. They determine the order in which
the right holders exercise their rights.
On 28 July 1981 the Administrative Court granted Foreman a final water right to store
1 053 000 cubic metres of water in the Overlaw Dam. His priority was fixed at 24
September 1966 — the same date as his original provisional right. The effect of his was
to give him the right to retain an extra 417 000 cubic metres in the Overlaw Dam before
the appellant’s right to 1 259 000 cubic metres came into operation. The appellant’s right
was thus superseded. The prejudice to the appellant is obvious.
The reason why Foreman applied for the extra right is not to my mind particularly
relevant, but it appears that it was due to an earlier miscalculation. Someone had
misjudged the holding capacity of the Overlaw Dam. It was in fact capable of holding
nearly twice as much water as had been through. Foreman naturally wanted to take
advantage of this extra capacity. Therefore he made the further application.
Page 326 of 1991 (1) ZLR 323 (SC)
The appellant however makes two points. First, it was never advised of the application,
and it was thus denied the opportunity to object. It would certainly have objected had it
known of the application. Second, and in any event, the priority date for the additional
right to 417 000 cubic metres should have been set at 26 October 1977, the date of the
application. Had this been done, the right of the appellant would have been safeguarded,
and it might well have had no further ground for objection. Its priority would have been
maintained.
It seems to me that both these points are valid and of conclusive weight.
The provisions of the Water Act 1976 are clear. Section 33 reads as follows:
“33. (1) Before proceeding to the determination of any matter submitted to it, the
[Water] Court (whose functions have now been taken over by the Administrative Court)
shall be satisfied that all persons who, in its opinion, have an interest which is reasonably
likely to be affected adversely by such determination have had due notice of such
proceedings.
(2) Any person who has an interest in the determination of any matter submitted to the
[Water] Court may —
(a) appear before the [Water] Court, and
(b) with the consent of the [Water] Court given on good cause shown, produce such
argument or evidence or both before the [Water] Court as he thinks fit.”
There can be no doubt whatever that the appellant had such an interest, and would have
objected. Mr Hart, who gave evidence on behalf of the appellant, makes both averments
in his affidavit. He also avers that the appellant was not given due notice, or any notice,
of the application or the hearing, or indeed of the granting of the right.
There is no denial on the papers of the allegation that no notice was given. The matter
was brought, erroneously, before the Administrative Court in 1988. The President of the
Court ruled that it had no power to intervene and that the matter should have been
brought before the High Court on review. In the course of his judgment he noted the
appellant’s claim that no notice had been given, but, curiously, made no comment on the
point. Nor, although he was made a party to these proceedings, did he file an affidavit to
say whether or not his records showed whether or not the appellant had been given notice
of the hearing.
Page 327 of 1991 (1) ZLR 323 (SC)
In dealing with this matter the learned judge in the court a quo had this to say:
“It would appear that in terms of Rule 14(1) of the Water Court Rules 1976, notice is
given to interested parties by means of sending them a copy of the report of the
Hydrological Branch. There is nothing on the papers that Rule 14(1) was not complied
with except the Applicant’s assertion that he did not receive the notice.”
With respect, this seems to me to place an unfair onus on the applicant (appellant). The
records of the court must show whether or not the report was sent. The President, who as
I have said, was joined as a party, does not say it was sent. Why should it be assumed that
it was? Moreover, if the report referred to is the document at page 14 of the papers, it is
noteworthy that under the heading “Priority date” the Chief Hydrological Engineer or
possibly the Water Registrar, has written “24.9.66, 4.3.70, 26.10.77”. That can only mean
that he was recommending that the priority date for the extra water should be 26 October
1977. I will deal with this aspect later in this judgment.
Nothing is said on the point by the other respondents. They make various allegations
about when the appellant ought to have known, or might reasonably have guessed, that its
water right had been impaired, but they do not say that it was advised in terms of s 33 of
the Act. And of course, the overwhelming probability is that if it had been advised, it
would have objected.
It must therefore be taken to be a fact that the requirements of s 33 of the Act were not
complied with.
The requirements are, in their form, mandatory. Does failure to comply with a mandatory
requirement render the decision of the Administrative Court void or merely voidable?
Does ones determination depend on whether the mandatory requirement is “peremptory”
or merely “directory”? Some judges have used the term “imperative”. For a
consideration of these points see the judgment of Gubbay JA (as he then was) in Sterling
Products International Ltd v Zulu 1988 (2) ZLR 293 (SC) at 301B et seq.
Applying the less rigid test favoured in that judgment, it seems to me that there was no
compliance at all with the requirement, not even “substantial” compliance.
De Smith, in the 4th edition of Judicial Review of Administrative Action at
Page 328 of 1991 (1) ZLR 323 (SC)
p 144 says:
“Some classes of procedural requirements are so important that they will nearly always
be held to be mandatory. For example an administrative authority which fails to comply
with a statutory duty to give prior notice or hold a hearing or make due inquiry or
consider objections in the course of exercising discretionary powers affecting individual
rights will seldom find the courts casting an indulgent eye upon its omissions.”
In Grunwick Processing v ACAS [1978] 1 All ER 357 (HL) the Court of Appeal had held
that a recommendation made in breach of a statutory duty to consult workers was void,
and that decision was upheld in the House of Lords. But the decision is always a difficult
one. Baxter in his Administrative Law at 447 et seq quotes Lord Penzance in Howard v
Bodington (1877) 2 PD 203 at 211 as follows:
“[One] must look to the subject-matter; consider the importance of the provision that has
been disregarded, and the relation of that provision to be general object intended to be
secured by the Act.”
In this case I am influenced by a practical consideration. Suppose that the Administrative
Court, having heard the application, had decided what, on the face of it, it should have
decided on, namely to grant the extra water right but to give it a priority date ranking
after the appellant’s. What then would have happened? On its own evidence the
appellant would not have objected when it learned of the decision. It would have
condoned the irregularity. This suggests to me that it makes more sense to regard the
irregularity as rendering the decision voidable rather than void. In any event, as will
become apparent, I propose to come to the same conclusion whichever way the point is
decided. In the circumstances I propose to leave the point open, and to proceed on the
assumption that the irregularity renders the decision voidable rather than void.
I turn then to consider the second point concerning the priority date allocated to the
additional water right.
I must say that I can see no basis whatsoever for the decision on priorities reached by the
Administrative Court in its order of 28 July 1981. It seems to me, on all the evidence, that
it was a decision reached per incuriam.
In his judgment of 22 November 1988, to which I have already referred, the President of
the Administrative Court says:
Page 329 of 1991 (1) ZLR 323 (SC)
“Although the decision would appear to be an unusual one in the circumstances, and
although the ultimate paragraph in Foreman’s letter of 22nd August 1988, Exhibit 4,
tends to suggest a mistake was in fact made, it is not possible to say that the priority date
given to the additional storage was not a conscious and deliberate determination made by
the President of the Court in the light of all the information placed before him.”
With great respect, I cannot accept that reasoning.
1. It runs contrary to the apparent recommendation of the Chief Hydrological
Engineer to which I have referred;
2. Foreman appears to concede the error in his letter of 22 August 1988
where he says “As Overlaw has priority over the first 114 million gallons, I would think
the Harts would have priority on the next 129 million gallons”;
3. The Water Registrar concedes the error in his letter of 5 February 1988 to
the Chief Hydrological Engineer;
4. The latter, in his reply dated 3 May 1988 confirms that “the priority dates
should be . . . 26 October 1977 in respect of the remaining 417 ml.”
And finally it is contrary to all rationality. Had the court given special reasons why it was
overriding the recommendation of the Hydrological Branch, one might have had to pause
for thought. But in all the circumstances one can only conclude that this aspect of the
order was simply a mistake.
As a result the appellant was grievously wronged, without notice and for no apparent
reason.
This aspect of the matter was not considered by the learned judge in the court a quo, who
decided the matter ultimately on the basis of unreasonable delay.
I turn then to consider the question of delay. But I pause to observe that in deciding
whether or not to condone delay, the courts traditionally consider not only the
reasonableness of the explanation for the delay, but the prospects of the applicant on the
merits. I have already indicated my view that the prospects on the merits are very strong
indeed. I will consider the delay against that background.
Page 330 of 1991 (1) ZLR 323 (SC)
The first point taken is that review proceedings must, in terms of High Court Rule 259, be
instituted within eight weeks of the termination of the proceedings in which the
irregularity or illegality complained of is alleged to have occurred: Provided that the
court may for good cause shown extend the time.
No authority is necessary for the proposition that the eight weeks cannot possibly apply
to an applicant who does not even know of the decision for far longer than eight weeks
after it was made, precisely because he was not informed of the proceedings as he should
have been. Indeed it seems to me to be artificial to seek to apply the eight weeks rule as
from the date the appellant became aware of the proceedings. The Cluff Minerals case
(1989 (3) ZLR 338 (SC)) and the Clan Transport case (1956 R&N 322 at 325-6) were
concerned with the date when the proceedings were terminated. They decided this was
the date when official notice of the decision was communicated to the party concerned.
The appellant in this case has never had official notice.
I do not think the rule applies at all. In my view the case should have been decided by the
simple test — has the appellant shown a reasonable explanation for his delay, bearing in
mind the strength of his case and the question of prejudice to others. See Wolgroeiers
Afslaers (Pty) Ltd v Municipality of Cape Town 1978 (1) SA 13 (A) and R v Dairy
Produce Quota Tribunal for England & Wales, ex parte Caswell & Anor [1989] 3 All ER
205 (CA).
It is convenient to begin with the question of prejudice to others. The point was made that
the present owners of Delta Trust purchased the upper riparian property in good faith and
presumably with knowledge of the water rights — in terms of s 61 of the Act final water
rights are noted on the title deeds.
The fact is however that the present owners acquired the property some time in 1985. On
any version of events the appellant did not know of the altered water right until 1986, and
probably not till late 1987. It is clear therefore that nothing the appellant did, or could
have done, or failed to do, prejudiced the new owners. Indeed in a real and practical sense
the longer the new owners were left with a right which may prove to have been
erroneously granted to them, the better off they have been.
Mr de Bourbon, for the respondents, says that the review was instituted seven years and
ten months (less four days) after proceedings were terminated. This, while it is a dramatic
presentation of the delay, does not reflect what actually happened.
Page 331 of 1991 (1) ZLR 323 (SC)
The appellant certainly cannot be blamed for delay while it was ignorant of the
infringement of its rights. While respondents may speculate that it might reasonably have
been expected to realise what had happened, when its dams failed to fill, the explanation
given is perfectly reasonable. There was not much rain in those seasons. Mr Hart and his
colleagues were not surprised that the dam did not fill. Why should they assume the
unthinkable — that an upstream owner had been given an increased right and a queue-
jumping priority without their being consulted?
According to the appellant’s witnesses it was only in October 1987, as a result of dispute
with Delta Trust, that they checked the records and discovered the true position.
Mr Hart initially thought that it was a simple error requiring correction in the priority
date. That seems to me a perfectly reasonable reaction. He entered into correspondence
with the Registrar of the Water Court and the Chief Hydrological Engineer. At first they
seemed to support him. I have already referred to their letters. Then there was
correspondence with Mr Kirkman of respondents, which dragged on during 1988. Then
there was the abortive application to the Administrative Court — a procedural but bona
fide error.
After that, and in accordance with the advice of the President of the Administrative Court
on the last page of his judgment, the appellant once again tried negotiations. These were
not pursued with vigour by the respondents. The desperate tone of appellant’s lawyer’s
letter of 13 March 1989 indicates their anxiety to resolve the matter. By 30 March 1989
they decided that negotiations were fruitless and they notified their decision to seek a
review. This was instituted seven weeks and six days later.
It seems to me clear that at all times after receiving official confirmation of what had
happened, the appellant took strenuous steps to put the matter right. It may have made
procedural and tactical errors. But we must remember that it was in the appellant’s
interests to resolve the matter and in Delta Trust’s interests to delay a solution.
This is clearly a case where one can say there was no supine lack of action by the
appellant. Between October 1987 and 23 May 1989 the appellant showed in the clearest
possible way its anxiety to put matters right. It is the merest technicality to say it
“delayed” for that period. And certainly the delay was of advantage not to the appellant
but to Delta Trust.
Page 332 of 1991 (1) ZLR 323 (SC)
In my view the High Court misconceived the nature of the delay and failed to appreciate
the strength of the appellant’s case. On both counts it misdirected itself. It exercised its
discretion on a wrong basis. It came to a wrong conclusion.
Accordingly the appeal is allowed with costs.
The order of the High Court is altered to read “There will be an order in terms of the
Draft.”
Manyarara JA: I agree.
Korsah JA: I agree.
Jarvis & Palframan, appellant’s legal practitioners
Atherstone & Cook, second and third respondents’ legal practitioners
CITY OF GWERU v KOMBAYI
1991 (1) ZLR 333 (SC)
Division: Supreme Court, Harare
Judges: McNally JA, Manyarara JA & Ebrahim JA
Subject Area: Civil appeal
Date: 27 May & 25 June 1991

Contract — illegality — failure to follow peremptory provision of statute.

Contract — undue influence — evidence.
Urban Councils Act [Chapter 214] s 164 — peremptory in nature — duty of council to
follow provisions.
The respondent was the Mayor of Gweru. Some months after a contract for the supply of
concrete blocks to the appellant was awarded to a third party, the respondent secured the
contract for himself. The respondent sued for monies due in terms of the contract. The
appellant relied on its own failure to follow the tender procedure set out in s 164 of the
Urban Councils Act [Chapter 164], and also alleged that the respondent had used undue
influence to obtain a contract. The High Court (Adam J) awarded $5 380,90, with interest
and costs, to the respondent. The appellant on appeal challenged the whole of that
judgment.
Held, the provisions of s 164(1) of the Urban Councils Act [Chapter 214] are peremptory,
and the failure to follow the tender procedure rendered the contract void and
unenforceable.
Held, the facts overwhelmingly pointed to the use of undue influence by the respondent
when he procured the contract for himself.
Cases cited:
Pottie v Kotze 1954 (3) SA 719 (A)
Macape (Pty) Ltd v Executrix Estate Forrester 1991 (1) ZLR 315 (SC)
Abreu v Campos 1975 (1) RLR 198 (A); 1975 (3) SA 73 (RA)
Page 334 of 1991 (1) ZLR 333 (SC)
A P de Bourbon SC for the appellant
D P Carter for the respondent
McNALLY JA: Mr Kombayi, who was the Mayor of Gweru at all times relevant to this
case, was partially successful in an action against the City of Gweru. He had sued for $20
640,66 plus interest, in terms of a contract under which he, trading as Pleasure Pools, sold
and delivered concrete blocks to the City of Gweru. He succeeded to the extent of $5
380,90 with interest and costs.
The City of Gweru (“the Council”) has appealed, claiming that the contract is
unenforceable for two reasons:
1. Non-compliance with the provisions of s 164 of the Urban Councils Act
[Chapter 214] (“the Act”); and
2. Undue influence.
It will consider these contentions in turn:
SECTION 164 OF THE ACT
The relevant part of this section provides:
“ (1) Subject to the provisions of subsections (5a) and (6), before entering into a contract
for . . . the supply of any goods or materials to the council which involves payment by the
council of an amount exceeding such sum or sums as may be prescribed, the council shall
call for tenders . . .
(2) Tenders received in terms of section (1) shall be opened in public on the closing
date fixed therefor forthwith after the closing time.”
Further procedural provisions are set out but it is not necessary to go into detail.
It is common cause or beyond argument that:
a. The provisions of ss (5a) and (6) are not relevant;
b. The amount prescribed at the relevant times was $5 000,00; and
c. The contract was for the supply of concrete blocks in a sum far exceeding $5
000,00.
There is no doubt that these provisions were not observed. What happened was this:
Page 335 of 1991 (1) ZLR 333 (SC)
1. On 1 September 1982 the council’s Stores Superintendent called for
“quotations” for the supply of concrete blocks. It may well be that the proper procedures
were not followed. In any event one of the tenderers was a company called Fort Concrete
(Pvt) Ltd. There is no reason to suppose that Fort Concrete was aware of any irregularity
in the tender procedure;
2. Its tender was “accepted”, in the sense that an order was placed with Fort
Concrete, who were advised that their tender was the lowest. Despite requests by Fort
Concrete for a formal written contract (to which they were entitled in terms of s 164(5) of
the Act) they were told simply to proceed on the basis of orders placed from time to time.
They did so, and a number of such orders were placed and fulfilled over succeeding
months;
3. After some time Fort Concrete decided to invest in another machine to
make blocks, but the manufacturer was unable to make the machine because it was busy
making two such machines for Pleasure Pools, a business recently acquired by the
Mayor, Mr Kombayi;
4. At the end of November 1982 orders to Fort Concrete ceased;
5. On 2 December 1982 a quotation for the supply of the same concrete
blocks was submitted by Pleasure Pools. It was accepted on the same date and an official
order was then placed with Pleasure Pools on the next day, 3 December 1982;
6. Pleasure Pools did not at that time have the machinery necessary to make
the blocks. It only began delivering in about February 1983;
7. The council’s Assistant Stores Controller at the time, a Mr Chivandire,
gave evidence that he was called to a meeting, presumably on 2 or 3 December 1982,
where he was shown the Pleasure Pools quotation. The City Treasurer, the Acting City
Engineer and Mr Kombayi were present. He was instructed to accept the Pleasure Pools
quotation. He did not then know that Mr Kombayi owned Pleasure Pools. He proceeded
in terms of that instruction;
8. The Town Clerk at the time, Mr Nhemachena, gave evidence that there
was no recorded resolution of the council to call for tenders or to declare, in terms of s
164(6)(a), that it would be against the best interests of the City to call for tenders.
Page 336 of 1991 (1) ZLR 333 (SC)
It is quite evident that the proper procedures were not followed. Indeed, what was done
was a flagrant circumvention of the provisions of the section. The section is designed to
protect the ratepayers of Gweru, and indeed taxpayers in general insofar as the council
may be subsidised by the central government, from what may broadly be described as
“insider trading”.
Not only, in short, were the procedures not followed, they were not followed in order that
a fairly major contract could be taken away from a company already involved in it, and
given to a business acquired by the Mayor, who was present at the meeting where the
decision was taken. That is not “substantial compliance” with the provisions, as Mr
Carter submitted. It is blatant avoidance of the required procedures for improper reasons.
The words of Fagan JA in Pottie v Kotze 1954 (3) SA 719 (A) at 726-7 may be cited
here:
“The usual reason for holding a prohibited act to be invalid is not the inference of an
intention on the part of the Legislature to impose a deterrent penalty for which it has not
expressly provided, but the fact that recognition of the act by the court will bring about,
or give legal sanction to, the very situation which the Legislature wishes to prevent.”
The learned judge in the court a quo did not, with respect, satisfactorily address the
question of illegality. He made the point, in his judgment, that it was for the council to
establish that the transaction was illegal. That is correct. He went on to observe that the
council’s earlier calling for quotations was probably also invalid. This may well be so.
But it does not affect the point that this particular transaction was invalid. Indeed one
must make the point that while the earlier transaction may have been formally invalid, the
latter one with Pleasure Pools was prima facie corrupt as well.
The point was made in a recent judgment of this court (Macape (Pty) Ltd v Executrix
Estate Forrester 1991 (1) ZLR 315 (SC)) that it is often difficult to decide whether an
action taken in breach of a mandatory statutory requirement is void or merely voidable.
Mr Carter, for the respondent, has made the point that no criminal sanction is provided in
the Act for a breach of s 164. Mr de Bourbon, for the appellant, countered with the
submission that it would be difficult and unsatisfactory to try to penalise a City Council.
There is provision, he pointed out, in s 262 of the Act, for the Minister to intervene. He
may, in a proper case, “order all such stops to be taken as in his opinion are necessary or
desirable to rectify such act or thing, and the said
Page 337 of 1991 (1) ZLR 333 (SC)
act or thing, when done in terms of the said order, shall be of the same force and validity
as if originally done in accordance with the appropriate provisions of this Act”.
This is a strong indication that the Legislature intended the Minister to have the power to
reinstate an act which would otherwise be void. It is not the sort of language one would
use about a voidable act. No ministerial intervention has taken place to save this
particular act. One would expect the Minister to intervene only where some innocent
irregularity rendered void an otherwise entirely proper action. That is not the position
with the present contract. It is therefore prima facie void. The respondent cannot sue on a
void contract. I adopt, with respect, the reasoning of Lewis AJP (as he then was) in Abreu
v Campos 1975 (1) RLR 198 (A) at 202D-G; 1975 (3) SA 723 (RA) at 75A-C on this
point.
That is really the end of the matter, but I should also deal briefly with the second point:
UNDUE INFLUENCE
Mr Carter has argued that no-one has said, in evidence, that he was unduly influenced. I
do not think the courts can expect such tidy solutions to evidential problems of this
nature. People do not really confess to have succumbed to undue pressure or influence.
The facts of this case, as I have set them out, are such as to proclaim undue influence
beyond reasonable doubt, never mind a balance of probabilities. It does not matter that
no-one actually uses the words. Such facts raise a very strong inference of impropriety.
They require an acceptable explanation.
No such explanation was forthcoming. Impropriety was therefore established, at least on
a balance of probabilities. Thus, even if the contract was not void ab initio, it was
voidable at the instance of the appellant. The council succeeds on either argument.
It may be indeed that the two points run together. If the breach of the mandatory
provisions had been technical and innocent there might have been room for the
“substantial compliance” argument. It is the element of undue influence which, to my
mind, is conclusively against any argument that there was substantial compliance with
the statute. It is that element which finally convinces me that the breach renders the
contract void.
Accordingly the appeal is allowed with costs and the judgment of the High
Page 338 of 1991 (1) ZLR 333 (SC)
Court is altered to one dismissing the plaintiff’s claim for costs.
Manyarara JA: I agree.
Ebrahim JA: I agree.
Atherstone & Cook, appellant’s legal representatives
Gollop & Blank, respondent’s legal representatives
CHIREDZI WILDLIFE INVESTMENTS (PVT) LTD v EXECUTORS, ESTATE
LILFORD
1991 (1) ZLR 339 (SC)
Division: Supreme Court, Harare
Judges: Gubbay CJ, Manyarara JA & Ebrahim JA
Subject Area: Civil appeal
Date: 13 & 27 June 1991

Contract — interpretation — ‘free of liabilities’ — meaning.

The appellant purchased all the shares of a company owned by the respondents. It was a
term of the contract that at the time of the sale the company would be “free of liabilities”.
The main asset of the company was its trading stock of cattle. When the respondents sued
for the balance of the purchase price on the sale, the appellant pleaded that the company
had not been “free of liabilities”, in that no provision had been made for income tax on
future sales of cattle. The respondents filed an exception to the plea and claim in
reconvention, which exception was allowed by the High Court. On appeal therefrom the
appellant contended that the term “free of liabilities” included contingent liabilities.
Held, to hold in the circumstances of this case, that the respondents failed to deliver the
company “free of liabilities” would be to strain the meaning of the phrase quite beyond
its proper and natural parameters.
Cases cited:
Reed & Anor v Warren 1955 (2) SA 370 (N)
Durban City Council v Association of Building Societies 1942 AD 27
A P de Bourbon SC for the appellant
E W W Morris for the respondents
GUBBAY CJ: This is an appeal from an order of the High Court allowing
Page 340 of 1991 (1) ZLR 339 (SC)
with costs an exception taken by the respondents (“the plaintiffs”) to the plea and claim
in reconvention filed by the appellant (“the defendant”).
The plaintiffs issued a specially endorsed summons against the defendant in which,
tendering transfer of the entire issued share capital in Feeds and Pharmaceuticals
(Private) Limited (“the company”), judgment is prayed for in the sum of $250 000,
together with interest thereon at the rate of sixteen per centum per annum from 1
September 1988 and costs of suit. The allegations contained in the particulars of claim
annexed to the summons are to this effect: Pursuant to an invitation to tender for the
purchase of the entire issued share capital of the company held in estate late Lilford,
which invitation specified that the resultant sale would be voetstoots and that the
company would be free of liabilities, the defendant’s offer to pay $2 000 000 was
accepted by the plaintiffs. The parties agreed that:
(a) the plaintiffs would have the right to declare and pay dividends in respect of the
profits earned by the company to 31 July 1988;
(b) a balance sheet of the company as at 31 July 1988 would be drawn and would
reflect the assets of the company;
(c) the debts of the company, including all income tax on profit to 31 July 1988
would be the responsibility of the plaintiffs;
(d) in the event of the purchase price not being met in full by 31 August 1988, the
defendant would pay interest on the outstanding balance at an annual rate of sixteen per
centum.
The defendant has paid $1,75 million of the purchase price.
These facts are admitted by the defendant in its plea. What is denied is that the tender of
transfer of the shares by the plaintiffs is in accordance with the agreement of the parties,
in that the plaintiffs have not complied with the obligation to ensure that the company
was free of liabilities as at 31 July 1988. Upon fulfilment of this warranty, the defendant
will pay the outstanding balance of $250 000.
The basis of this defence forms the subject matter of the claim in reconvention. The
material averments, as further particularised, may be summarised thus:
1. At the effective date of sale, ie 31 July 1988, the business of the company
was, inter alia, the rearing and sale of cattle, which livestock constituted a major portion
of the company’s stock-in-trade.
Page 341 of 1991 (1) ZLR 339 (SC)
2. The plaintiffs (and also the defendant) knew that the company would sell
the cattle as part of its normal trading activities, notwithstanding the transfer of
ownership of the shares to the defendant.
3. The fixed standard value of the cattle shown in the books of account of the
company was set at an average of $100 per head, totalling $175 400; whereas the true
market value of the cattle as at 31 July 1988, was that tendered by the defendant, namely
$648 980.
4. Upon sales of the cattle at their true market value the company will be
assessed for income tax on the difference between the amount realised and that of the
fixed standard value reflected in its books of account.
5. During the period between August 1988 and April 1989, 653 of the 1 754
head of cattle on hand at 31 July 1988, were sold for $381 695,50, being their market
value. The company has not as yet been issued with an assessment for income tax in
respect of the proceeds of these sales.
6. The liability for income tax in respect of any sale of the cattle on hand
arose as a result of the accounting methods of the company, and was thus a liability of the
company as at 31 July 1988.
7. In order to fulfil its warranty that the company was free of liabilities it was
necessary for the plaintiffs to show either the true market value of the cattle in the books
of account of the company, or the amount of liability for income tax on the recoupment
between the fixed standard value of the cattle and their market value.
8. Provision should have been made to meet the aforementioned liability by
money being retained in the bank account of the company, or by reflecting the plaintiffs
as debtors of the company therefor.
9. The amount of potential income tax as at 31 July 1988 in respect of the
cattle on hand, is calculable by deducting the fixed standard value from the true market
value as tendered by the defendant. The difference, being $473 580, will yield an income
tax liability in excess of $250 000.
In reliance upon these allegations, orders are sought directing the plaintiffs:
(a) to pay the sum of $250 000 to the company in respect of the contingent liability
for income tax that would arise upon the sale by the company of the cattle owned by it as
at 31 July 1988;
(b) to provide an amended balance sheet and statement of accounts within 60 days of
the date of judgment reflecting such contingent liability in the accounts of the company
as at 31 July 1988.
Page 342 of 1991 (1) ZLR 339 (SC)
The ground upon which the exception was taken to the plea and claim in reconvention as,
respectively, disclosing no defence and no cause of action, is that “the defendant has
failed to show that the company has any liabilities at the date of the sale of the shares
therein”. Put, perhaps, more succinctly, the crux of the attack upon these pleadings is that
any liability for income tax which may in the future accrue to the company upon a sale by
it of the cattle on hand as at 31 July 1988, is not, upon a proper interpretation of the
agreement as a whole, the type of liability which the company was warranted to be free
of. No complaint is made in the formulation of the exception that the relief sought by the
defendant is not maintainable in law.
The issue then is whether Greenland J, before whom the validity of the defendant’s
pleadings were challenged, was right in holding that the plaintiffs had discharged the
responsibility of satisfying him that the word “liabilities” is incapable of the meaning
which the defendant attaches to it.
In Reed & Anor v Warren 1955 (2) SA 370 (N) at 374A Selke J pointed out that
“liability” and “liable” are “words capable of very many shares of meaning, the precise
meaning to be attributed to them varying with the collocation in which they occur”.
Reference to Black’s Law Dictionary, Abridged 5 Ed, at p 473, amply supports this
comment. Of “liability” it is there stated:
“The word is a broad legal term, . . . of the most comprehensive significance, including
almost every character of hazard or responsibility, absolute, contingent, or likely. It has
been defined to mean: all character of debts and obligations; . . . an obligation which may
or may not ripen into a debt; any kind of debt or liability, either absolute or contingent,
express or implied; . . . condition of being responsible for a possible or actual loss,
penalty, evil, expense, or burden.”
Greenland J held that the phrase “free of liabilities”, in the context in which it was used,
means free of existing liabilities — liabilities that had actually accrued as at the effective
date — and that as on the facts pleaded by the defendant liability for income tax would
only accrue if and when, at some undefined time, the cattle were sold, the warranty given
by the plaintiffs had not been breached. Is that a correct view of the matter?
In Reed & Anor v Warren, supra, the appellants, the sole directors and shareholders of a
private company, sold their total shareholding to the respondent, warranting that the
company was not liable for any taxation for
Page 343 of 1991 (1) ZLR 339 (SC)
the period up to 30 September 1952, and undertaking to discharge all liabilities of the
company as at that date. When in due course the company was assessed for the income
tax year ending 30 June 1953, the respondent claimed from the appellants the
proportionate share of the income tax for the period 1 July 1952 to 30 September 1952,
contending that this amount formed part of the company’s liabilities at the last-mentioned
date. On exception before the lower court and on appeal, it was submitted that liability
for income tax arose on assessment, and assessments were made only in respect of
complete tax years. Both submissions were rejected. Broome JP at 372E-H, held that
liability existed before any assessment was made and the Commissioner of Taxes was
empowered under the Income Tax Act to make an assessment for any period. Thus, on 30
September 1952, when the agreement of sale was concluded, the company was carrying a
liability for income tax even though this liability was then not only unascertained in
amount but contingent in that any taxable income earned by the end of that month might
have been extinguished by a loss during the remaining nine months of the income tax
year. But in fact that did not occur. It was a question of construction whether the word
“liabilities” in the agreement of sale included such a contingent liability. It might well be
that a trial court would, on a consideration of all the circumstances, conclude that such a
meaning should be given to the word. The issue was not one to be decided on exception
and accordingly, the appeal was dismissed.
In that case liability for income tax already existed (profits had been made prior to the
sale of the shares) and was dependent solely on the company not making a loss after the
sale. What emerges clearly from the judgment of Broome JP and upon which Mr de
Bourbon, for the defendant, strongly relied, is that liability may exist even where it is not
yet fixed or quantified and is dependent on events to occur in the future.
Counsel stressed that the inevitability of the cattle on hand, or at least some of them,
being sold by the company in the normal course of its business operation, is borne out by
the allegation that during the nine month period following upon the sale of the shares,
653 head of cattle out of the original 1 754, being 32 per centum, had been sold. And, to
demonstrate further, of the 557 weaners on hand as at 31 July 1988, purchased for $128
880, that is at an average price of $321 per head, 118 had been sold during the next
month for $50 000, at an average of $423 per head. Thus, so the submission went, as at
the effective date there existed a contingent liability, which crystalised upon the sale of
the 118 weaners, consisting of the amount of taxable income payable by the company on
the difference between the fixed standard value
Page 344 of 1991 (1) ZLR 339 (SC)
of $100 and the market value of $231 per weaner; and not on the difference between the
fixed standard value and the market value of $423 per weaner. In short, it was the
defendant’s contention that under the warranty the plaintiffs were to ensure, in one
manner or another, that sufficient monies were available to the company to meet the
liability for income tax in an amount calculated upon the difference between the
artificially low fixed standard value and the true market value of the cattle as at 31 July
1988, dependent, of course, on the proceeds of the sale of any such animal being in
excess of $100. This was their underlying obligation; payment was to fall due on the
happening of that future event.
Per contra Mr Morris, for the plaintiffs, argued that the phrase “free from liabilities”
means, in casu, that at the date the shares in the company were sold, no event had
occurred, which would entitle any person to have any claim against it. At that date there
was no actual liability in existence, and to find that there was a contingent liability would
be to assign to the contingency contended for by the appellant much too “large and
value” a meaning. In this connection reference was made to the following remarks of
Watermeyer JA in Durban City Council v Association of Building Societies 1942 AD 27
at 33:
“In the large and vague sense any right to which anybody may become entitled is
contingent so far as that person is concerned, because events may occur which create the
right and which may vest it in that person; but the word ‘contingent’ is also used in a
narrow sense, ‘contingent’ as opposed to ‘vested’, and then it is used to describe the
conditional nature of someone’s title to the right. For example, if the word ‘contingent’
be used in the narrow sense, it cannot be said that I have a contingent interest in my
neighbour’s house merely because my neighbour may give or bequeath it to me; but my
relationship to my neighbour, or to the terms of a will or contract, may create a title in
me, imperfect at the time, but capable of becoming perfect on the happening of some
event, whereby the ownership of the house may pass from him to me. In those
circumstances I have a contingent right in the house.”
Counsel urged that use of the wide, as opposed to the more limited, sense of the term
“contingent liability”, necessarily implies that any asset valued in the books of account of
the company at less than its true market value would give rise to a liability for income tax
whenever it was sold at a price in excess of such book value. It would mean that the fact
that the company claimed a special initial allowance on plant and equipment would
constitute a liability
Page 345 of 1991 (1) ZLR 339 (SC)
for income tax because, at some stage in the future, it may wish to dispose of one such
item profitably.
The defendant’s complaint relates directly to the low fixed standard value of the cattle as
reflected in the company’s accounts. But as Mr Morris was at pains to emphasise,
although this legitimate means of undervaluation has the effect of increasing income tax
liability upon an ultimate sale, it creates a compensatory income tax loss in respect of
natural increase, or when, subsequently, additional cattle are purchased. I agree with him
that the situation confronting the defendant is entirely neutral. It could create the potential
for income tax recoupments; or a saving in income tax; or no income tax incidence at all,
if cattle are not sold, or they succumb to disease and die, or their true market value
plummets below the fixed standard value.
Furthermore, it is not to be overlooked that the defendant accepts that it was expressly
agreed that income tax on the profit made by the company up to 31 July 1988 was to be
paid by the plaintiffs. Consequently, the warranty given in the invitation to tender must
be read in conjunction with and subject to this restriction of liability, and not divorced
from it.
These two terms of the agreement between the parties are not irreconcilable. They allow,
without difficulty, of a consistent and harmonious construction. The question of who was
to pay the income tax on existing profits made by whatever means, by the company, was
specifically considered and provided for. The plaintiffs were to be liable for the payment
of income tax on all actual profit (even though no assessment had been issued), except for
that which accrues in respect of any profit made after 31 July 1988; such as for instance,
upon the sale of an asset owned by the company up to the aforementioned date, at a price
in excess of the value reflected in the books of account.
In my opinion to hold that the plaintiffs failed to deliver the company “free of liabilities”,
in the context of the agreement as a whole, would be to strain the meaning of the phrase
quite beyond its proper and natural parameters.
It follows that I am satisfied that the learned judge was right in concluding that the
plaintiffs had discharged the responsibility of establishing that the word “liabilities” is
incapable of the meaning which the defendant attaches to it.
The appeal fails and is dismissed with costs.
Page 346 of 1991 (1) ZLR 339 (SC)
Manyarara JA: I agree.
Ebrahim JA: I agree.
Gill, Godlonton & Gerrans, appellant’s legal practitioners
Atherstone & Cook, respondent’s legal practitioners