1991 [Part 2] ZLR

DOUGLAS v MEYERS
1991 (2) ZLR 1 (HC)
Division: High Court, Bulawayo
Judges: Muchechetere J
Subject Area: Application for a declaratory order
Date: 2 March & 23 May 1986
This case was omitted from the 1986 Zimbabwe Law Reports

Husband and wife — child — right of access or custody of an illegitimate child by the
natural father — onus — test is best interests of the child.
The applicant was the natural father of an illegitimate child born of the respondent. He
sought an order declaring that he was entitled to reasonable access to the child. The
mother opposed the relief on the ground that she was the natural guardian of the child,
and that the father had no inherent right of access.
Held, the natural father of a minor illegitimate child does not have an inherent right of
access to the child, but the court will grant such access if the father establishes that such
access is in the best interests of the child. The court will only grant such an order if there
is some very strong ground compelling it to do so.
Cases cited:
Wilson v Ely 1914 WR 34
Davids v Davids 1914 WR 142
Matthews v Haswari 1937 WLD 110
Docrat v Bhayat 1932 TPD 125
Calitz v Calitz 1939 AD 56
H I Bisset for the applicant
I A Esat for the respondent
Page 2 of 1991 (2) ZLR 1 (HC)
MUCHECHETERE J: In this matter the applicant seeks the following order:
“1. That it is hereby declared that the applicant has a right of reasonable
access to the parties’ illegitimate minor child Lance Willis Mayers.
2. That the respondent be, and is hereby, ordered to grant reasonable access
by the applicant to the said minor child.
3. That the respondent be, and is hereby ordered to pay the applicant’s costs
as between party and party incurred in this application.”
During the hearing, counsel for the applicant abandoned the third paragraph of the above
order and instead asked for an order that each party pay its own costs whatever the result
of the hearing.
The application is opposed by the respondent on the ground that she is the sole legal
guardian and custodian of the minor illegitimate child (hereinafter referred to as “the
child”) and the applicant has no inherent right of access to the child and that the applicant
has not shown any grounds to satisfy the court that it should, in the interests of the child,
interfere with the custodial rights of the respondent. In the circumstances the respondent
asked for the application to be dismissed with costs and also for the applicant to be
ordered to pay maintenance for the child at the rate of $100 per mensem with
retrospective effect from 1 November 1985. The issues which I must determine are
whether the applicant has any right of access to the child, whether in the interests of the
child reasonable access to the child should be granted to the applicant and, in any event,
how much maintenance is the applicant liable to pay for the child.
In his founding affidavit the applicant avers that during the period between October 1984
and January 1985, he had a carnal affair with the respondent which resulted in the
respondent being pregnant during January 1985. The pregnancy culminated in the
respondent being delivered of a child on 19 October 1985, at Bulawayo. The applicant
further avers that he is willing to pay maintenance in respect of the child and that indeed
he is presently paying maintenance for him. He also avers that he is advised and verily
believes that he is entitled to reasonable access to the child, notwithstanding that the child
is illegitimate, although he has no other rights in respect of the upbringing of the child.
The applicant further avers that respondent, notwithstanding requests by him, refuses to
allow him any access to the child. Finally the applicant submits that it will be in the best
interests of the child that he should be offered access to him, and that it was in the best
interests of the child that he should know who his father is, and become acquainted with
his father.
Page 3 of 1991 (2) ZLR 1 (HC)
The respondent in her replying affidavit admits that she had a carnal relationship with the
applicant which resulted in the pregnancy and subsequent birth of the child. She however
describes the carnal relationship as seduction and avers that at the time of the seduction
she was a virgin and that, in spite of the fact that she fell pregnant because of it, the
applicant had neither offered to marry her nor offered to pay damages therefor. In the
circumstances she had instructed her legal practitioners to institute legal proceedings
against the applicant for the recovery of damages sustained by her. She further avers that
at the birth of the child she and the applicant had entered into an agreement whereunder
the applicant undertook to pay maintenance for the child at the rate of $100 per month
with effect from 1 November 1985, but that the applicant had subsequently repudiated the
agreement and offered instead to refer the matter to the maintenance court, Bulawayo, for
assessment. The respondent however admits that the applicant did pay some money
towards maintenance but avers that there is still a shortfall on the amount agreed.
The respondent also avers that even though she has refused to grant the applicant regular
rights of access to the child she has nevertheless on three separate occasions taken the
child to the applicant’s home. She however avers further that she does not believe that it
would be in the best interests of the child that “the spurious father (the applicant) be
allowed to visit him (the child) and have access to him”. She elaborates on this as
follows:
“9. That this is in view of the fact that I am 22 years of age and have very
good chances of marrying following which it is my intention that the guardianship of the
minor child pass to the stepfather either by process of adoption or order of this
honourable Court.
10. That furthermore, the child would not be able to identify, recognise or
appreciate his natural father either now or for several years to come.
11. That the minor child would, in addition, not be emotionally in a position to
understand the inevitable conflict between natural father and step-father until he has
attained the legal age of majority after which the question of access would be irrelevant.
 12. That I am fully willing and able to care for the minor child and take all
decisions relating to his upbringing, and should like to be in a position to do this with the
child’s future stepfather and without interference from applicant.”
The applicant did not file an answering affidavit.
Mr Bisset, who appeared for the applicant, submitted that the law was not clear
Page 4 of 1991 (2) ZLR 1 (HC)
on whether the father of an illegitimate minor child had an inherent right of access to the
child. He cited a number of cases where access was granted to such natural fathers but
admitted that no clear principles emerged from the cases. In the end he was inclined to
agree with Mr Esat who appeared for the respondent that the correct view was that
natural fathers do not have inherent rights to access to their illegitimate minor children.
Mr Bisset further submitted that even if such fathers are held not to have inherent rights
of access the court can intervene to grant them access in the interests of the children
concerned.
The law on the above points is stated in Boberg’s The Law of Persons and the Family at
333-346:
“The legal position of an illegitimate child is founded upon the philosophy that een
moeder maakt geen bastaard, ie as far as the mother is concerned, the law does not regard
the child as illegitimate; his disabilities relate to his rights vis-à-vis his father and third
parties.”
The philosophy is reflected in what follows:
“Whereas the parental power over a legitimate child rests in his father, in the case of an
illegitimate child it is his mother who, unless she is herself a minor has the right of
guardianship and custody over him and whose surname and domicile he assumes. The
father’s only right over the child is one of reasonable access. Where it is in the child’s
interests, however, the court may deprive the mother of guardianship or custody,
transferring these rights to the father, or even conferring them on a third party.”
See also Spiro’s The Law of Parent and Child 3 ed at 425-426:
“It was pointed out that the natural father is not possessed of the parental power and is
not the guardian of the minor illegitimate child. But this principle does not conclude the
inquiry into the question whether he is a complete stranger in relation to the illegitimate
child.
First of all, as will be more fully shown later, the natural father is subject to the duty,
though jointly with the mother, to maintain the illegitimate child. Thus his duty has been
said to be based on paternity. In Wilson v Ely 1914 WR 34 a natural father was granted
the right of access to an illegitimate child “especially as it was his duty to supply
maintenance”. If the learned judge meant thereby to refer to a rule of law, he went, with
respect, too far. But the maintenance duty is a factor which cannot wholly be ignored.
...
Page 5 of 1991 (2) ZLR 1 (HC)
It is against this background that the question must be approached whether the natural
father may apply for access or even custody. Some of the cases deal with the locus standi
(in judicio) or otherwise of the natural father. But this is, with respect, not the real
question. The natural father has clearly locus standi in judicio if he is the respondent or if
he has a right to apply for access or custody. In these matters there is, it is considered,
only one question, viz, What is best in the interests of the minor illegitimate child. If it is
in the interests of the minor illegitimate child that the natural father should have access,
such access should be granted to him. If the interests of the minor illegitimate child so
demand, custody, if not even guardianship may be awarded to the natural father.”
(Emphasis is mine.)
A brief discussion of some cases where access and custody of minor illegitimate children
was granted would be useful on this point. In Wilson v Ely 1914 WR 34 the applicant
who was the mother of a minor illegitimate child applied for an order that the respondent,
the natural father, forthwith deliver up and return her the child. The learned judge said
that the applicant was the rightful custodian and guardian of the child and therefore
ordered the return of the child to her. He however also ordered that in the circumstances
of the case the father was entitled to have access to the child “especially as it was his duty
to pay maintenance”. While I agree with Spiro’s above quoted views on this case I
however consider that the learned judge’s statement and decision must be considered
within the text of this case. The parties had prior to the case lived together as man and
wife for a long time (they had been married under Moslem rites but this marriage was not
legal under South African law) and in the circumstances it was in the interests of the child
to continue some kind of relationship with the father. In addition after the respondent had
alleged that the child had “voluntarily come to him in rags and tatters” it was, in my
view, in the interests of the child for the person to whom the child went for support and
who paid maintenance to have access to the child if only so that he could ascertain that
the maintenance he paid was properly used. The case did not therefore grant an inherent
right of access but access in the interests of the child.
In Davids v Davids 1914 WR 142, custody of a minor illegitimate child was granted to a
natural father while the mother was granted access. The parties’ marriage had been in
accordance with Malay rites and therefore not recognised under South African law. The
court made the order in this case after being satisfied that it was in the best interests of the
child to give custody to the father and because the mother had an inherent right to
custody after having deprived her of this, it was in my view natural that access had to be
granted to her.
Page 6 of 1991 (2) ZLR 1 (HC)
In Matthews v Haswari 1937 WLD 110, while custody of a minor illegitimate child was
confirmed to rest with the mother, reasonable access was granted to the natural father.
Although the law on access was not discussed in the case I consider that again this
decision must be looked at within the context of the circumstances found in the case. The
parties had also lived together as man and wife together with the child who must have
formed a parental relationship with the father. In the circumstances, it was, in my view, in
the interests of the child to continue some form of relationship between them by granting
access to the father. The learned judge indicated that in the final decision the interests of
the child would be crucial.
In Docrat v Bhayat 1932 TPD 125 it was held that the father of a minor illegitimate child
cannot claim custody of the child “as of right” after the mother’s death. In this case the
child was a product of a Moslem marriage which, as already stated above, was not
recognised under South Africa law. There was nothing in the application to show that the
child was not being properly cared for or would not be properly cared for by the
respondent and his wife who were respectively the husband of the child’s aunt and the
sister of the child’s mother. Although this case was concerned only with custody, it is
very relevant because access is part of and, in fact, an encroachment upon, or a
diminution of custodial rights. The point therefore to take note of in this case is that the
court will only intervene to interfere with the custodial rights which include access in the
interests of the child.
From the above, my conclusion is that there is no inherent right of access or custody for a
father of a minor illegitimate child but the father, in the same way as other third parties,
has a right to claim and will be granted these if he can satisfy the court that it is in the
best interests of the child. The onus is on the applicant, in this case the father, to satisfy
the court on the matter and usually the court will not intervene unless there is some very
strong ground compelling it to do so. The standard usually applied by the court is that
used before interfering with the custodial rights of a father of a legitimate child although
in a case like the present one the fact that the applicant is paying maintenance for the
child will also in my view be taken into account. See Calitz v Calitz 1939 AD 56 at 64
where Tindall JA said:
“Where, however (as in the present one), it is not exercising such a power, the Court in
Scotland cannot deprive the father of the custody except upon special grounds. In
Nicholson v Nicholson (6 SC LR 692) a case where the Court ordered an infant to be
returned to the father — the common law was thus stated, ‘The legal right to the custody
of a lawful child is in the
Page 7 of 1991 (2) ZLR 1 (HC)
father. But that right is not absolute, it is not beyond the control of the law. It is within the
power of the Court to mitigate the severity of the general rule by interfering in
exceptional cases. The exceptions must be few and must rest on clear grounds and the
grounds must be found in consideration of danger to the life, health or morals of the
child. When the interests of the child in regard to life, health or morals have required it,
the Court has refused to permit the father to retain custody. This has been done in
Scotland in the exercise of the nobile officium of this Court’. I presume that power
corresponds with the powers of the Supreme Court in South Africa as the upper guardian
of minors.” (Emphasis is mine.)
In view of the above the applicant in this case can therefore only succeed if he satisfies
this court that it is in the best interests of the child that the court interferes with the
custodial rights of the respondent and grant reasonable access to him. In this connection
the applicant avers:
“It is obviously in the interests of the child that he should know who his father is, and
become acquainted with his father.”
This and the fact that the applicant has paid and is willing to pay some maintenance for
the child are the only matters placed before the court for consideration in support of the
application. Mr Bisset could neither elaborate nor, indeed, add to these during his
submissions. There are no allegations suggesting or implying that the respondent is not
capable of, or has not looked after, the child properly, necessitating a periodical check by
the applicant. There is no allegation or suggestion that the maintenance the applicant has
paid so far had been, or in future will be, misused. There is no allegation that the child,
who has been seen by the applicant on three separate occasions since birth, was other
than happy and well in the respondent’s care and custody. Nothing untoward has been
said about the respondent’s character and the environment under which the child is being
brought up. It is, more importantly, not explained in which way it is in the interests of the
child that it should know and be acquainted with its natural father. Mr Bisset’s
submission on this point in my view amounted to saying that any child needed a father.
This may be correct, but there are some kind of fathers children are better without. In my
view, the application has not gone beyond saying that the applicant wants access because
he is a natural father and because he pays maintenance. This, in my view, is the same as
applying for access as of right or the ground of an inherent right of access which, as I
have stated above, is non-existent in the case of a natural father.
Page 8 of 1991 (2) ZLR 1 (HC)
Against the above the respondent’s reply is that it is not in the interests of the child for it
to get to know and become acquainted with its natural father because this might
jeopardise her future efforts to get the child adopted. There is no reply to this from the
applicant and he does not offer to adopt the child himself. The respondent also alleges
that the applicant has been difficult in connection with the payment of the agreed
maintenance instalments and this has not been denied. There is also an allegation of
seduction against the applicant which has not been denied The applicant has also not
made or offered to make amends on this. In this connection the respondent rightly, in my
view, implies that as custodian and guardian of the child her discretion in deciding
whether the child should or should not associate with an unrepentant seducer should
remain unfettered. Lastly, the respondent in a wise and open-minded use of her discretion
has, on three separate occasions, taken the child to the applicant’s home. This, in my
view, shows that the respondent’s actions and attitude are in the interests of the child.
There is therefore, in my view, no reason for the court to interfere with the respondent’s
custodial rights which are so wisely being exercised.
In the circumstances I agree with the conclusion arrived at by Mr Esat in his most helpful
and well-researched heads of argument that the applicant has failed to satisfy the court
that there is some ground, let alone strong ground, in the interests of the child requiring
the court to interfere in any way with the full custodial rights of the respondent. The
application therefore fails.
The next matter I have to decide is the amount of maintenance to be paid by the
applicant. Mr Esat submitted that the court should enforce the applicant’s agreement to
pay maintenance at the rate of $100 per month and argued that the agreement is a binding
contract between the parties. Mr Bisset, on the other hand, while not denying that the
applicant had agreed to pay the amount mentioned, submitted that the applicant cannot
afford to pay the amount in question, but could only afford $75 per month. He also
submitted that as both parties were working and the respondent was receiving a salary
which was about $100 less than that of the applicant per month, applicant’s contribution
should be reassessed taking into account what the respondent should also contribute. He
argued that in maintenance matters the means of both parties and the needs of the child
should be looked at. He further argued the child was still only a small baby and that it
needed no more than $75 per month to support it.
As there was no denial in connection with the existence of an agreement by the applicant
to pay $100 per month I have no option but to hold that the agreement exists. However,
an agreement to pay maintenance, in my view, is different from other agreements mainly
because, unlike other agreements, parties to it can
Page 9 of 1991 (2) ZLR 1 (HC)
go to court and have it reviewed or varied without the agreement of the other parties if
their circumstances or the circumstances under which it was made change. This is
because maintenance payments depend on the ability of the person liable to pay affording
it and the needs of the child in question. These could change from time to time. In view
of this there is no reason why, in my view, this court cannot look at this agreement in the
light of the evidence presented by the applicant.
From what has been said for both parties on this point I have come to the conclusion that
an amount of $75 per month would be reasonable in the circumstances. This amount is to
be payable by the applicant as from 1 April 1986. The amount payable by or recoverable
from the applicant for the period 1 November 1985 to 31 March 1986 is at the rate of
$100 per month. I have not made the new amount payable retrospectively because I
regard it as a variation on an amount which was already payable and no argument has
been advanced on behalf of the applicant to make it retrospective.
Lastly, there remains the question of costs. Mr Bisset, after dropping the applicant’s
claim to costs, urged the court to order that each party should pay its own costs. He
argued that it was usual in matters where the welfare of children were involved for parties
to bear their own costs. Mr Esat, on the other hand, argued that the rule that costs should
follow the result should apply in this case. I agree with Mr Esat that in this case costs
should follow the result. Although a decision by the court to grant access to the applicant
would have affected the welfare of the child, I do not consider that these proceedings
were commenced by the applicant after being genuinely concerned about the welfare of
the child. Nothing in the application points to this. In my view, the applicant’s intention
was primarily to assert what he thought was is right of access to the child. This removes
the application from the category in which Mr Bisset sought to place it.
For the reasons given above I make the following order:
(1) that the application be and is hereby dismissed;
(2) that the applicant be and is hereby ordered to pay maintenance for the
minor illegitimate child Lance Mayers at the rate of $100 per month in advance on the
first day of every month with effect from 1 November 1986 to 31 March 1986 and
thereafter at the rate of $75 per month;
(3) that the costs of this application be borne by the applicant.
Webb, Low & Barry, applicant’s legal practitioners
Calderwood, Bryce Hendrie & Partners, respondent’s legal practitioners
HODGSON v GRANGER & ANOR
1991 (2) ZLR 10 (HC)
Division: High Court, Harare
Judges: Greenland J
Subject Area: Special plea
Date: 2 & 10 July 1991

Prescription — Prescription Act 1975 — s 15(3) — purpose of statutes of limitation to

ensure timeous prosecution of causes of action of which the creditor is aware — meaning
of the terms “debt” and “cause of action” — meaning of the words “the facts from which
the debt arises” in subs (3) being the facts which constitute the cause of action of which
the creditor is aware.
On 10 November 1986 the first defendant, a legal practitioner, was required to draw up
an agreement of sale for the plaintiff in terms of which ownership of the merx was not to
pass to the purchaser until the price had been paid in full. The agreement was however
defective as a result of which ownership immediately passed to the purchaser who,
having defaulted in the payments due, validly disposed of the merx to an innocent third
party. The plaintiff did not discover that the agreement had been defective until a date
fixed as soon after 6 October 1987.
The plaintiff sued the defendant firm for damages occasioned by the first defendant’s
negligence, summons having been served on 15 August 1990, ie more than three years
after the defective agreement had been drawn, but less than three years from the date
upon which the plaintiff had become aware of the defective draftsmanship. To this the
defendant entered a special plea in bar averring that the plaintiff’s action was prescribed
in terms of the Prescription Act 1975.
Held that the approach to interpreting s 15(3) and in particular the words “became
aware . . . of the facts from which the debt arises” therein is first to recognise that the
word “debt” has a statutory and a judicially ascribed meaning.
Page 11 of 1991 (2) ZLR 10 (HC)
Held, further, that the words “debt” and “cause of action” which being herein
synonymous mean the entire set of facts which give rise to an enforceable claim and
includes every fact which it is material to plead and prove so as to successfully sustain an
action and that therefore, the words “the facts from which the debt arises” mean simply
the facts constituting the cause of action which the creditor needs to know in order to
plead.
Held, further, that even if it was wrong to import judicial meanings to the term “debt”, it
would make no difference because, if the words were recast as “the facts from which the
thing to be sued for arises” what is stipulated is awareness of facts which enable the
prosecution of a civil claim.
Held, further, that it is important in this exercise of interpretation to emphasise that the
whole purpose of statutes of limitation is to ensure that a person who has a valid cause of
action of which he is aware proceeds timeously to the prosecution thereof before events
become “stale” and, that it is to penalise the dilatory creditor but not the creditor who is
unaware, through no fault of his own, of the cause of action at his disposal.
Held, further, that the passage of ownership of the merx was a matter of fact and not
purely one of law and that it was incorrect to say that the plaintiff was not covered by
subs (3) because, as at 10 November 1986, he was possessed of knowledge of all the facts
which gave rise to the debt, save for knowledge of the passage of ownership which was a
matter of law and therefore not a fact for the purposes of the subsection.
Special plea accordingly dismissed.
Cases cited:
Syfin Holdings Ltd v Pickering 1982 (1) ZLR 10 (SC)
Patel v Controller of Customs & Excise 1982 (2) ZLR 82 (HC)
Abrahamse and Sons v SA Railways & Harbours 1933 CPD 626
Denton v Director of Customs & Excise 1989 (2) ZLR 41 (HC)
van Vuuren v Boshoff 1964 (1) SA 395 (T)
Stambolie v Commissioner of Police 1989 (3) ZLR 287 (SC); 1990 (2) SA 369 (ZS)
Chase Securities Corporation v Donaldson (1944) 325 US 304; 89 L Ed 1628 (US Sup
Ct)
D G Bartlett for the plaintiff
A P de Bourbon SC for the defendants
GREENLAND J: In this case the defendants have entered a special plea in bar
(prescription) to the summons and declaration.
Page 12 of 1991 (2) ZLR 10 (HC)
The relevant facts are:
(a) On 10 November 1986 the first defendant, acting for the partnership of both
defendants, drew up a written contract of sale in terms of which the plaintiff sold a
Leyland horse and trailer to another.
(b) It was a specific stipulation in the plaintiff’s instructions to first defendant, at the
time, that the contract, once signed, would have the legal effect of ensuring that
ownership of the merx remain with plaintiff until payment, in full, of the purchase price.
(c) In fact the contract was defectively drawn up in this respect and it is agreed that,
in consequence of such defective draftsmanship, ownership passed to the purchaser on
signature of the contract and delivery of the merx.
(d) The purchaser, having thus secured ownership, defaulted on payments of the
purchase price and, when harassed with legal process, disposed of the trailer to a third
party, a fact which the plaintiff discovered on 29 September 1987.
(e) The plaintiff became aware, for the first time, of the fatal defect of draftsmanship
at a date fixed as soon after 6 October 1987 when he attempted to recover the trailer from
the third party. The latter, being an innocent purchaser for value, was only too pleased to
expound to the plaintiff the fundamental principle of property law that in a sale on credit
ownership passes on delivery unless retained by contractual compliance with statute, ie
The Hire Purchase Act.
(f) The plaintiff sued out summons and the defendants were served on 15 August
1990, exactly three years, nine months and five days after the date on which the defective
contract was drawn up, signed and delivery made.
(g) The declaration sets out a cause of action in which the plaintiff claims damages
allegedly occasioned by first defendant’s negligence in not drawing up a written contract
of sale in accordance with plaintiff’s stipulated requirements.
It is agreed that, in terms of the Prescription Act, No. 31 of 1975, the prescriptive period
in respect of plaintiff’s cause of action is three years. The real issue for determination is
from what date did prescription commence to run?
It is the plaintiff’s stance that the period must be computed as commencing on 6 October
1987; the date after which he became aware of the fact of the defective draftsmanship
and the dreadful consequences thereof.
Page 13 of 1991 (2) ZLR 10 (HC)
Mr de Bourbon, for the defendants, disputes the validity of this stance and points to
several earlier dates, in the alternative, all of which, if selected, would have the effect of
determining the issue against plaintiff.
The issue revolves around an interpretation of s 15 of the Act which is therefore set out in
full:
“15. (1) Subject to the provisions of subsections (2) and (3), prescription shall commence
to run as soon as a debt is due.
 (2) If a debtor wilfully prevents his creditor from becoming aware of the existence of a
debt, prescription shall not commence to run until the creditor becomes aware of the
existence of the debt.
(3) A debt shall not be deemed to be due until the creditor becomes aware of the
identity of the debtor and of the facts from which the debt arises:
Provided that a creditor shall be deemed to have become aware of such identity and of
such facts if he could have acquired knowledge thereof by exercising reasonable care.”
The plaintiff’s stance is that he is saved by s 15(3) for the very good reason that he only
became aware of the “facts from which the debt arises” no earlier than 6 October 1987,
the date soon after which he discovered the defective draftsmanship; (a period of two
years, nine months and nine days before service of the summons).
My approach to interpreting the section and, in particular, the words “became aware . . .
of the facts from which the debt arises” is to first recognise that the word “debt” which
appears therein has a statutorily defined meaning complemented by well-established
judicially ascribed meaning. In summary:
(i) Section 2 of the Act reads:
“2. (1) In this Act —
‘debt’, without limiting the meaning of the term, includes anything which may be sued
for or claimed by reason of an obligation arising from statute, contract, delict or
otherwise;”
(ii) In Syfin Holdings Ltd v Pickering 1982 (1) ZLR 10 (SC) at 19
Fieldsend CJ
Page 14 of 1991 (2) ZLR 10 (HC)
equated the word “debt”, in the Act, with “cause of action”;
(iii) In Patel v Controller of Customs and Excise 1982 (2) ZLR (HC) 82 at 86
Gubbay J, as he then was, stated:
“In Controller of Customs v Guiffre 1971 (2) SA 81 (R) at 84A, Beck J, (as he then was)
discussed the meaning of the phrase ‘the cause of the action’ and adopted the definition
of Lord Esher MR, in Read v Brown (1888) 22 QBD 131, as being
‘every fact which it would be necessary for plaintiff to prove if traversed, in order to
support his right to the judgment of the Court. It does not comprise every piece of
evidence which is necessary to prove each fact, but every act which is necessary to be
proved.’”
(iv) In Abrahamse & Sons v SA Railways and Harbours 1933 CPD 626 at 637
Watermeyer J stated:
“The proper legal meaning of the expression ‘cause of action’ is the entire set of facts
which gives rise to an enforceable claim and includes every act which is material to be
proved to entitle a plaintiff to succeed in his claim. It includes all that a plaintiff must set
out in his declaration in order to disclose a cause of action. Such cause of action does not
‘arise’ or ‘accrue’ until the occurrence of the last of such facts and consequently the last
of such facts is sometimes loosely spoken of as the cause of action. (See Halsbury, vol 1,
sec 3, and the cases there cited.)”
From all of the above may be abstracted the following propositions which commend
themselves as sound:
(ia) the word “debt” is, in part, defined in s 2 of the Act as meaning “anything
which may be sued for”;
 (ib) this meaning is complemented by meanings ascribed judicially because of
the words “without limiting the meaning of the term” which appear in the definition;
(iia) in terms of judicial pronouncement the word “debt” is synonymous with
what is generally accepted as “cause of action”;
(iiia) “cause of action” and “debt” therefore, for all intents and purposes mean
the entire set of facts which give rise to an enforceable claim and includes every fact
which it is material to plead and prove so as to sustain an action successfully.
Page 15 of 1991 (2) ZLR 10 (HC)
Now once the word “debt” is accorded the meaning, amplified immediately above, it
becomes plain that the words “the facts from which the debt arises” mean simply the
facts constituting the cause of action a conclusion I reached in Denton v Director of
Customs and Excise 1989 (3) ZLR 41 (HC) in saying:
“In my view the words ‘the facts from which the debt arises’ for all practical purposes
mean what is, in law, understood as a ‘cause of action’ (emphasis added).”
Even if I am wrong to import the judicial aspects (ii) to (iv) above and one were to recast
the words as: “the facts from which the thing to be sued for arise” it makes little
difference because what is stipulated is awareness of facts which enable prosecution of a
civil claim.
It is important, in this exercise of interpretation, to emphasize that it is trite that the whole
purpose of statutes of limitation is to ensure that a person who has a valid cause of action,
of which he is aware, proceeds reasonably timeously to prosecution thereof before events
become “stale”. See van Vuuren v Boshoff 1964 (1) SA 395 (T) the headnote of which
reads:
“The Prescription Act, 18 of 1943, was designed to penalise the person who can enforce
his claim by action, but does not do so, and not the person who delays taking action
because he is not yet able to do so.”
Also see the adoption by Gubbay JA, in Stambolie v Commissioner of Police 1989 (3)
ZLR 287 (SC) of the dictum of Justice Jackson in Chase Securities Corporation v
Donaldson (1944) 325 US 304; 89 L Ed 1628:
“Statutes of limitations always have vexed the philosophical mind for it is difficult to fit
them into a completely logical and symmetrical system of law. There has been
controversy as to their effect. Some are of opinion that like the analogous civil law
doctrine of prescription limitations statutes should be viewed as extinguishing the claim
and destroying the right itself. Admittedly it is troublesome to sustain as a ‘right’ a claim
that can find no remedy for its invasion. On the other hand, some common law courts
have regarded true statutes of limitation as doing no more than to cut off resort to the
courts for enforcement of a claim. We do not need to settle these arguments.
Statutes of limitation find their justification in necessity and convenience rather than in
logic. They represent expedients, rather than principles. They
Page 16 of 1991 (2) ZLR 10 (HC)
are practical and pragmatic devices to spare the courts from litigation of stale claims, and
the citizen from being put to his defense after memories have faded, witnesses have died
or disappeared, and evidence has been lost.”
This view, as to purpose, is emphatically reinforced by a careful reading of s 15 as a
whole, in particular subs (2) and the proviso. It is absolutely clear that the purpose is to
penalise the dilatory creditor but not a creditor who is unaware, through no fault of his
own, of the cause of action at his disposal.
I hold therefore that the words “facts from which the debt arises” in subs (3) mean the
facts which constitute the cause of action and which the creditor needs to know in order
to plead. It is to pose an all too obvious question to ask how else can a creditor be
expected to proceed!? It is plain that the manner of expressing legislative intention in
subs (3) is explicable on the basis of drafting style.
Applying this interpretation it follows that a court must analyse the cause of action and
determine which essential aspects of fact therein the creditor was not aware of at the time
the cause of action arose. In the present case it is absolutely clear that the plaintiff was
not aware:
(a) that what he had stipulated for had not been drafted by the first defendant, ie, that
the first defendant had negligently failed to carry out his instructions; and
(b) that in consequence thereof he ceased to be owner of the merx on delivery and
had therefore suffered a diminution in his patrimony.
To my mind both aspects are matters of fact and the submission that, because ownership
passes by operation of law the matter is one of law, not one of fact, and therefore not
covered by subs (3), which is only concerned with matters of fact, is simply untenable.
The submission, by Mr de Bourbon, is that as at 10 November 1986 the plaintiff was
possessed of knowledge of all the facts which gave rise to his cause of action, ie,
awareness of the written contract (the paper, the words, the grammar, punctuation etc)
and the fact of delivery. These were the facts which gave rise to the debt and all were
within his awareness. The only aspect not within his awareness, so the submission goes,
was that which occurred by operation of law, ie the passing of ownership.
Page 17 of 1991 (2) ZLR 10 (HC)
This proposition is inherently absurd because acceptance thereof would defeat an
important purpose of the Act, ie, to penalise only those who are aware of the existence of
a cause of action and are unreasonably dilatory. It is absolutely clear that he was simply
not aware that his lawyer, the first defendant, had done anything wrong, let alone
knowing that he had a cause of action against him.
Also it ignores the fact that whether or not the first defendant drew up a contract in
accordance with his client’s stipulation is clearly a matter of fact. The question as to
whether or not a person has done what he has been told to do is a question of fact. In any
action against defendants this matter of fact would have had to be pleaded and indeed it
now has been. On this aspect alone the special plea must fail.
Also I would not agree that passing of ownership is not a matter of fact. The question as
to who is the owner of a thing is a question of fact determinable by legal rules just as the
question as to whether a brand of oil has a certain viscosity is a matter of fact determined
by laws of physics involving matter. Surely an expert who were to supply an oil of wrong
viscosity with subsequent damage to machinery being occasioned cannot argue that the
person supplied, who not being an expert knows nothing about viscosity and relies on the
supplier, is to be taken as having been aware of all the facts entitling him to sue.
The Concise Oxford Dictionary defines “fact” as a “thing certainly known to have
occurred or to be true . . . what is true or existent, reality”. To my mind the passing of
ownership occurred, that is the truth of the matter, it is the reality of the situation and
therefore a matter of fact albeit brought about by operation of law.
Incidentally I would also not agree that plaintiff’s loss occurred at some date after 10
November 1986. It seems to me that he suffered loss immediately ownership passed. The
fact that there was a chance prospectively of the loss being made up for by way of
payment in instalments does not invalidate the proposition that he suffered loss because
his personal estate was reduced by the loss of a valuable asset. However this aspect is not
crucial because it is accepted that by the time he became aware of the defective
draftsmanship, ie, by 6 August 1987 the trailer was then beyond recovery. The test for
completeness of a cause of action was therefore satisfied. See Syfin Holdings supra at p
13 and Abrahamse supra.
As the plaintiff only became aware of these matters of fact on 6 October 1987 and it was
only from about that date that he was in a position to prove the debt
Page 18 of 1991 (2) ZLR 10 (HC)
or plead his cause of action prescription, in terms of s 15 of the Act, commenced to run
therefrom and the claim is therefore not prescribed as summons was served within three
years.
The special plea in bar is therefore dismissed with costs.
Byron Venturas & Partners, plaintiff’s legal practitioners
Granger & Harvey, defendants’ legal practitioners
SAVANHU v HEIRS ESTATE SAVANHU
1991 (2) ZLR 19 (SC)
Division: Supreme Court, Harare
Judges: Gubbay CJ, McNally JA & Manyarara JA
Subject Area: Civil appeal
Date: 23 June & 11 July 1991

Statutes — interpretation — Wills Act 1987 s 16(1) — meaning of the words

“subsequent marriage” — excludes a later marriage where the parties are the same — the
provisions of the African Marriages Act [Chapter 238] and the Marriage Act [Chapter 37]
considered.
The appellant, a widow, married her husband under African law and custom in terms of
the African Marriages Act [Chapter 105] (presently [Chapter 238]). There were five
children of the marriage. The husband left a valid will in favour of their children. Shortly
before his death the parties contracted into a second marriage in terms of the Marriage
Act [Chapter 37]. Thereafter the testator died and his widow contested the will on the
ground that the will was void in terms of s 16(1) of the Wills Act 1987 as the second
marriage was a subsequent marriage. The court a quo considered whether the testator had
in fact entered into a subsequent marriage and found that he had not, see 1990 (2) ZLR
177 (HC). On appeal:
Held, that the court a quo was correct in its finding that a subsequent marriage as
contemplated by s 16(1) of the Wills Act 1987 had not been entered into by the parties.
Held, that the later marriage between the same parties in terms of the Marriage Act
[Chapter 37] did not dissolve an existing marriage nor did it affect the status of the
parties.
Held, that the later marriage was not a subsequent marriage for the purpose of the
provision of s 16(1) of the Wills Act and did not invalidate the terms of the will.
Held, that in the interpretation of the words “subsequent marriage” the words must be
given their ordinary grammatical meaning.
Page 20 of 1991 (2) ZLR 19 (SC)
Cases cited:
Chikosi v Chikosi 1975 (1) RLR 140 (G); 1975 (2) SA 644 (R)
Ludwig v Ludwig’s Executors (1848) 2 Menz 452
Shearer v Shearer’s Executors 1911 CPD 813
Braude NO v Perlmutter & Ors 1969 (2) RLR 103 (A); 1969 (4) SA 101 (RA)
National Railways of Zimbabwe Contributory Pension Fund v Edy 1988 (2) ZLR 157
(SC)
E I Manikai for the appellant
H Simpson for the respondent
GUBBAY CJ: The appellant is the widow of the late Joseph Caxton Savanhu (“the
testator”). They were married in accordance with African law and custom, the marriage
being solemnized on 17 May 1949 in terms of the African Marriages Act [Chapter 105]
(presently [Chapter 238]). For almost forty years they lived together under this valid
union which bore to them five sons.
Aware that he was in the twilight of his years and of the disadvantages of dying intestate,
the testator executed a last will and testament on 7 October 1988. Under it he made
specific bequests to the appellant and the five sons, but left the residue of his estate, both
movable and immovable, to the second born, Victor.
Not long after this, the appellant and the testator decided to contract a civil marriage in
church. Banns of marriage were published and on 26 February 1989 they were married at
St Paul’s Parish, Highfield, by a marriage officer in terms of the Marriage Act [Chapter
37]. The marriage was concluded without the customary union having been first
dissolved by a court of competent jurisdiction, as defined in s 16 of the African Marriages
Act [Chapter 238]. A duplicate original register of the civil marriage was delivered to the
parties. This reflects the status of the testator as widower and that of the appellant as
spinster. The appellant’s surname is given as Mhonderwa.
Just over six months later, on 6 September 1989, the testator died.
Early in January 1990 the appellant applied to the High Court for an order declaring the
will of the testator to be null and void, on the ground specified in s 16(1) of the Wills Act,
1987, that he had entered into a subsequent marriage. The relief sought was opposed by
the testator’s two eldest sons and heirs, Sydney and Victor, and was refused by
Chinengundu J.
Page 21 of 1991 (2) ZLR 19 (SC)
The issue then that arises for determination is simply whether the learned judge was
correct in deciding that, in the circumstances pertaining, the Christian ceremony of
marriage contracted on 26 February 1989 was not one which qualified as a “subsequent
marriage” for the purposes of s 16(1) of the Wills Act.
It is by no means uncommon for parties to a customary union, solemnized under the
African Marriages Act, to thereafter contract a marriage under the Marriages Act. The
consequential legal effect of such an act was carefully considered by Macaulay J in
Chikosi v Chikosi 1975 (1) RLR 140 (GD); 1975 (2) SA 644 (R), where at 142 in fine-
143H (646 in fine-647B of SALR) it is said:
“As to its essential validity, the question which presents itself is whether the parties had
the capacity to so contract if they were already validly married in Rhodesia, as sec7 of the
African Marriages Act [Chap 105] declares them to be. Spouses validly married cannot
during the subsistence of that marriage create an effective second marriage with each
other. See Ex parte Gordon and Gordon, 1921 WLD 43, where a second ceremony was
declared void because it purported to marry in community a couple who were already
married to each other out of community.
However, to say that the parties were already validly married according to the law of
Rhodesia is only partly correct. Their registered customary union is not recognized here
as a valid marriage for all purposes but as valid only ‘according to African law and
custom’. See sec 7 supra and R v Tshipa, 1958 (2) SA 384 (SR) and R v Ncube, 1960 (2)
SA 179 (SR).
By sec 12 of the African Marriages Act, Africans are given the right to contract a civil
marriage under the Marriage Act, now Act 18 of 1964; nothing in the former Act denies
this option to Africans who, having already contracted a registered customary union,
desire to convert the potentially polygamous character of their married status into a
monogamous one, governed by the Marriage Act. Nor can I see anything in logic or
principle to prevent such a course. Unlike Thynne (Marchioness of Bath) v Thynne
(Marquess of Bath) [1955] 3 All ER 129 at 140, the second marriage is not devoid of
content and ineffective to bring about some change in their status. It converts their earlier
potentially polygamous status into a monogamous one with all the personal incidents
associated with the latter. See R v Tarasanwa 1948 (2) SA 29 (SR). It also establishes
their marriage as one recognized henceforward in Rhodesia for all purposes and not
merely one ‘according to African law and custom’. Section 13 of the African Marriages
Act impliedly recognizes this by preserving in such
Page 22 of 1991 (2) ZLR 19 (SC)
a marriage only the proprietary rights of the parties as they exist according to African law
and custom.
It is true that section 16 provides that the registered customary union may only be
dissolved by a court of competent jurisdiction, but I do not view this as requiring a prior
dissolution of the registered customary union (if only potentially polygamous) before the
same parties thereto convert to a monogamous status. On this view of the matter it would
seem that all that remains of the registered customary union is the matter of the
proprietary rights of the parties as section 13 in fact indicates.”
I respectfully associate myself with this expose. It is with regard to it that s 16(1) of the
Wills Act is to be examined. The provision reads:
“Subject to this section, a will shall become void upon the subsequent marriage of the
testator”.
The term “subsequent marriage” is not defined in the Act but “marriage” is stated to
include “a marriage solemnized in terms of the African Marriages Act”.
In holding that the testator had not contracted a subsequent marriage upon entering into
the marriage ceremony with the appellant on 26 February 1989, Chinengundu J expressed
himself as follows:
“The section does not say that the subsequent marriage in terms of Chapter 37 is the only
valid marriage despite the fact that the same parties were previously married in terms of
the African Marriages Act [Chapter 105]. It should be stated that no registered marriage
can be dissolved by implication. The marriage in terms of [Chapter 105] can only be
dissolved by a court of competent jurisdiction which was the District Commissioner’s
Court then or the Community Court as presently constituted. The only other way of
dissolving a valid marriage without appearing in court is when one of the parties dies.
One can therefore not say that for the purposes of wills a subsequent marriage ceremony
between the same parties that entered into a prior marriage ceremony has the effect of
invalidating or dissolving that previous marriage. If the Legislature wanted this to be the
case it should have said so in no uncertain terms.”
And:
“In my view a subsequent marriage contemplated by section 16(1) of the Wills Act is a
marriage by one party to another person after the dissolution
Page 23 of 1991 (2) ZLR 19 (SC)
of an existing union either by divorce in court or by death. Such a marriage can properly
be regarded as a subsequent marriage for the purposes of the above-mentioned Act. What
the parties did was to convert their potentially polygamous marriage into a monogamous
one, but their proprietary rights are still governed by African law and custom.”
In my opinion, the reasoning of the learned judge is impressive, and I can find no fault
with it.
It is plain to me that by enacting the provision in question the lawmaker was minded to
alter the common law in accordance with which a will is not revoked by the subsequent
marriage of the testator. See Ludwig v Ludwig’s Executors (1848) 2 Menz 452; Shearer
v Shearer’s Executors 1911 CPD 813; Braude NO v Perlmutter & Ors 1969 (2) RLR 103
(AD) at 109C; 1969 (4) SA 101 (RA) at 106. It was appreciated that the operation of such
a principle would cause injustice and untold hardship. So in 1929 a change in the law was
effected by the introduction of s 2 of the former Deceased Estates Act, presently
superseded by s 16(1) of the Wills Act. Its object is to afford some measure of protection
to the new spouse of the testator who had been previously married, and to any issue
whether born to the parties or adopted by them. The provision contemplates more than
the mere conversion of an existing polygamous or potentially polygamous matrimonial
union to one of monogamy. It envisages a necessary change, brought about by the
subsequent marriage, to the status of both the spouse and the testator to that of a married
person — from a bachelor, divorcée or widower in the case of the man, and from a
spinster, divorcée or widow in the case of the woman. It is designed to avoid a situation
in which the will of one or each of them, which pre-dates the subsequent marriage, makes
no provision for the other’s new spouse.
But the right given to Africans who have already contracted a registered customary union
to contract a second marriage under the Marriages Act, without having the first dissolved,
does not mean that their second marriage has the effect of rendering void any pre-existing
will. For there has been no change in status of the testator from an unmarried to a married
person, and it is the existence of that very change that the legislative intendment is aimed
at.
I would add in conclusion that this interpretation is wholly consistent with the ordinary,
grammatical meaning to be assigned to the expression “subsequent marriage”, that is, as
it is popularly understood. See Black’s Law Dictionary, Abridged 5 ed at p 501 sub nom
“marriage”. Such a meaning is to be adopted unless, by virtue of the context and
construction of the enactment, some other
Page 24 of 1991 (2) ZLR 19 (SC)
meaning is apposite, or would create an anomaly, or would otherwise produce an
irrational result. See National Railways of Zimbabwe Contributory Pension Fund v Edy
1988 (2) ZLR 157 (SC) at 160G-H.
I consider therefore that the appeal must be dismissed with costs.
McNally JA: I agree.
Manyarara JA: I agree.
Gill, Godlonton & Gerrans, appellant’s legal practitioners
Chirunda, Chihambakwe & Chikumbirike, respondent’s legal practitioners
S v KAMANGA
1991 (2) ZLR 25 (HC)
Division: High Court, Harare
Judges: Chidyausiku J
Subject Area: Criminal review
Date: 17 July 1991

Criminal procedure — conviction in absentia — Criminal Procedure and Evidence Act

[Chapter 59] — s 336(6) — court must hear evidence — not competent to convict unless
prima facie case established against accused
The accused, having been issued with a written notice to appear in the magistrates court
to answer an alleged violation of the traffic law, failed to appear. The magistrate
thereupon and without hearing any evidence proceeded to convict and sentence the
accused in absentia in terms of s 336(6) of the Criminal Procedure and Evidence Act
[Chapter 59]. On review:
Held, that as s 336(6) provides that the court may “. . . proceed to hear such case and
adjudicate thereon . . .” in the absence of the accused, it is not competent to convict
unless evidence is led establishing a prima facie case against the accused.
Accordingly, conviction quashed and sentence set aside.
CHIDYAUSIKU J: The accused in this case was issued with a ticket for allegedly
contravening s 6(1) of the Road Traffic (Carriage of Passengers) Regulations SI 76/84,
carrying excess passengers. He was supposed to appear in court on 26 September, 1989.
He did not. The trial magistrate acting in terms of s 336(6) of the Criminal Procedure and
Evidence Act [Chapter 59] convicted the accused in his absence. The scrutinising
Regional Magistrate has questioned the propriety of the proceedings before the trial
magistrate and requested this court to provide some guidelines on the application of the
provisions of s 336(6) of the Code because magistrates frequently try accused persons in
absentia in
Page 26 of 1991 (2) ZLR 25 (HC)
terms of the above section of the Code.
Section 336(6) of the Code reads as follows:
“(6) Where a summons has been issued in respect of any case in which the court has
summary jurisdiction and in which the penalty prescribed by law is a fine, and only in
default of payment of such fine, imprisonment, the party summoned need not appear
personally and may appear through a legal practitioner duly authorized thereto; and
should the party summoned fail to appear either personally or through such legal
practitioner, the court may, if satisfied that such summons was duly served, and if further
satisfied that the ends of justice will be met, proceed to hear such case and adjudicate
thereon as fully and effectually as if such person had appeared:
Provided that, in case there is no legal practitioner available practising before such
court, then any other person may appear on behalf of the accused.
So often as a person has been convicted of an offence in his absence in terms of this
section, the court may direct the collection of any fine imposed, together with the costs of
such collection, and further direct that, on failure to pay such fine and costs, the offender
be arrested and committed to prison to undergo any sentence of imprisonment that may
have been imposed as an alternative to such fine, and such direction shall be by warrant
in a prescribed form.”
It is apparent from the above subsection that the Act permits the conviction of an accused
person in his absence if the following requirements are satisfied —
(a) the penalty prescribed must be a fine, and only in default of payment of such a
fine, imprisonment;
(b) the summons must be properly served;
(c) the court must be satisfied that the ends of justice will be met.
Once these essentials are satisfied, the court may proceed to hear such a case and
adjudicate thereon as fully and effectively as if such person had appeared. There is no
doubt that a person can be convicted in his absence. The learned scrutinising Regional
Magistrate is of the view that there should be no such trial in the absence of the accused if
there is a possibility of an accused being able to raise a triable issue if he had been
present. Thus in the present case the accused if he had been present could have raised a
triable issue by relying on one of the
Page 27 of 1991 (2) ZLR 25 (HC)
provisos. Thus a conviction in this case could only follow if the court were satisfied that
the provisos to s 6(1) of the Regulations did not apply. In his view, the trial magistrate
was wrong in assuming that because the accused did not appear in court, the various
defences open to him could not apply.
I am unable to accept the scrutinising Regional Magistrate’s interpretation of the above
provision. The clear intention of the Legislature here is that an accused person who fails
to answer a summons forfeits the right to defend himself against the charge. Indeed the
failure to appear gives rise to the inference that the accused has no defence to offer.
Speculation that the accused might have a defence is not consistent with his failure to
appear. An accused person with a defence to offer will in all probability appear to offer
such a defence. This provision works to the advantage of a guilty person and is intended
to save him from the bother and inconvenience of travelling all the way to court, in some
cases hundreds of kilometres away, when he has nothing useful to say to the court. The
provision also serves to expedite the processing of petty offences. In my view it would be
unjust to fine a person without giving that person an opportunity to be heard. If the
person is given an opportunity to be heard, but fails to avail himself of that opportunity,
there is no injustice done. This section should be used more often in respect of people
who have been issued with traffic tickets warning them to appear in court and who do not
wish to go to court but are willing to pay the fine.
The proceedings in this case are defective for the reason that no evidence was led before
the magistrate convicted the accused. Subsection (6) provides that the court may
“proceed to hear such case and adjudicate thereon as fully and effectually as if such
person has appeared”. The court cannot adjudicate without hearing evidence. The State
should therefore lead evidence to establish at least a prima facie case before the court can
convict. The proceedings are therefore set aside because no evidence was led by the State
to establish a prima facie case against the accused. Had the State led such evidence it
would have been competent to convict the accused in his absence. This view accords with
the view of the Attorney-General, whose minute I found most useful.
The conviction is therefore quashed and the sentence is set aside.
Mtambanengwe J agrees.
McCRONE v SIBANDA
1991 (2) ZLR 28 (HC)
Division: High Court, Harare
Judges: Greenland J
Subject Area: Opposed application
Date: 13 June & 17 July 1991

Practice — motion proceedings — temporary interdict against disposal of property

pendente lite — prima facie right — whether applicant may enforce a contract having
failed to discharge his own obligations — whether set-off operates to excuse applicant for
such failure.
The applicant sought a temporary interdict restraining the respondent from disposing of
an immovable property pending the resolution of a suit to be brought by the applicant for
the enforcement of an admitted contract of sale entered into by the parties. The applicant
admitted that he had not discharged his own obligation in terms of the contract to pay the
respondent the required instalments in terms of the contract, but sought to claim set-off
for such instalments against monies received by the respondent by way of rentals from
sitting tenants in the disputed property after the date that the applicant was to be given
vacant possession thereof.
Held, that set-off or compensatio is a method by which contractual and other debts are
extinguished simultaneously ipso iure. Set-off may be regarded as a form of payment and
may even operate as the equivalent of payment in cash.
Held, further, that a party cannot take advantage of his own default to the loss and injury
of another.
Held, further, that as a consequence of the contract between the parties, the monies,
payable as rental by sitting tenants, accrued to the applicant and were due and payable to
him, but because of the respondent’s wrongful frustration of the contract, the latter was
able to appropriate the monies to his own account.
Page 29 of 1991 (2) ZLR 28 (HC)
Held, further, that as the applicant claimed set-off of the debt, such set-off or
compensatio operated retrospectively and the applicant’s obligation to pay the
instalments in terms of the contract must be held to have been discharged.
Cases cited:
Re Hare and Gough (1862) 1 Roscoe 14
Ferguson v De Roos (1889) 3 SAR 15
Yamomoto v Rand Canvas Co 1919 WLD 100
Stiebel v Horn & Ors 1971 (3) SA 643 (W)
Mathews v Mathews 1936 TPD 124
Starr v Ramnath & Ors 1954 (2) SA 249 (N)
Voloshen v Highspeed Laundry & Cleaning Services (Pty) Ltd 1938 CPD 341
Stansfeld v Kuhn 1940 NPD 238
Farmers Co-operative Society v Berry 1912 AD 343
Wolpert v Steenkamp 1917 AD 493
Geldenhuys & Neethling v Beuthin 1918 AD 426
Sapro v Schlinkman 1948 (2) SA 637 (A)
Lawson v Stevens 1906 TS 481
Smiles’ Trustee v Smiles 1913 CPD 739
Joint Municipal Pension Fund (Transvaal) v Pretoria Municipal Pension Fund 1969 (2)
SA 78 (T)
Eaton NO v Johnstone (1833) 1 Menz 90
SWA Amalgameerde Afslaers (Edms) Bpk v Louw 1956 (1) SA 346 (A)
Scott & Anor v Poupard & Anor 1971 (2) SA 373 (A)
Design & Planning Service v Kruger 1974 (1) SA 689 (T)
King v Cohen Benjamin &Co 1953 (4) SA 641 (W)
Nortje & Anor v Pool NO 1966 (3) SA 96 (A)
Dilmitis v Niland 1965 (3) SA 492 (SR)
Krueger v Navratil 1952 (4) SA 405 (SWA)
Naicker v Bell 1965 RLR 430 (G); 1965 (4) SA 210 (SR)
Schierhout v Union Government (Minister of Justice) 1926 AD 286
P C Paul for the petitioner
Respondent in person
GREENLAND J: In this case the applicant seeks the grant of an interdict to restrain the
respondent from disposing of an immovable property (the property) pending the
resolution of a suit to be brought by the applicant for enforcement of an admitted contract
of sale previously entered into by the parties.
Page 30 of 1991 (2) ZLR 28 (HC)
That the applicant can bring such an application is not in question. See Re Hare and
Gough (1862) 1 Roscoe 14; Ferguson v De Roos (1889) 3 SAR 15; Yamomoto v Rand
Canvas Co 1919 WLD 100; Stiebel v Horn & Ors 1971 (3) SA 643 (W); Mathews v
Mathews 1936 TPD 124 and Starr v Ramnath & Ors 1954 (2) SA 249 (N).
The purpose of such proceedings is to ensure that the merx or thing sold is preserved until
such time as the Court enforces the contract between the parties. The applicant is required
to prove only that he has a prima facie right to enforcement of the contract. Mathews
supra; Voloshen v Highspeed Laundry and Cleaning Services (Pty) Ltd 1938 CPD 341;
Stansfeld v Kuhn 1940 NPD 238 and Starr supra.
The position however is that, by his own admission, the applicant has not discharged an
obligation, in terms of the contract, to pay the respondent instalments of $500 per month
with effect from 1 January 1991.
The respondent (a self actor) therefore makes the good point that the applicant cannot
insist on the enforcement of a contract which he himself has not honoured. Had the
respondent been represented no doubt the following precedents would have been cited in
support of this proposition: Farmer’s Co-operative Society v Berry 1912 AD 343 at 350;
Wolpert v Steenkamp 1917 AD 493 at 499; Geldenhuys & Neethling v Beuthin 1918
AD 426 at 44-5 and Sapro v Schlinkman 1948 (2) SA 637 (A) at 643.
The applicant avers that he is “excused”, in law, from his obligation particularised above.
In essence he relies on set-off on compensatio. In support of this claim he advances the
following facts:
(a) that as from 1 January 1991 the respondent received monies, as rentals, from
sitting tenants in excess of $500 per month
(b) that the respondent has appropriated these amounts to his own use despite the fact
that the contract required that applicant be given possession/occupation of the property as
from 1 January 1991 in which event the applicant would have received the rentals as his
own property.
For the purpose of deciding the issue these facts are accepted as the respondent has
neither denied them nor put them in issue.
Set-off or compensatio is a method by which contractual and other debts are extinguished
simultaneously ipso iure. Set-off may be regarded as a form of
Page 31 of 1991 (2) ZLR 28 (HC)
payment. It may even operate as the equivalent of payment in cash. See Lawson v
Stevens 1906 TS 481 at 483; Smiles’ Trustee v Smiles 1913 CPD 739; Joint Municipal
Pension Fund (Transvaal) v Pretoria Municipal Pension Fund 1969 (2) SA 78 (T); Eaton
NO v Johnstone 1883 (1) Menz 90; SWA Amalgameerde Afslaers (Edms) Bpk v Louw
1956 (1) SA 346 (A) at 354. On the accepted facts the position is that the respondent
created a situation in which he then enabled himself to appropriate monies which would
have been received by the applicant. It is more correct to say that, as a consequence of the
contract between the parties, the monies, payable as rental by sitting tenants, accrued to
the applicant and were due and payable to him, but because of the respondent’s wrongful
frustration of the contract the latter was able to appropriate the monies to his own
account. It must be held that the said monies remain due and payable to the applicant.
This is the position reached by applying the equitable rule that a party cannot take
advantage of his own default to the loss and injury of another. See Scott & Anor v
Poupard & Anor 1971 (2) SA 373 (A) at 378G; Design and Planning Service v Kruger
1974 (1) SA 689 (T) at 700G.
In the result therefore it must be held that, on the facts, the respondent has been unjustly
enriched at the expense of the applicant. That this is a debt is made clear by the
realization that the applicant has a cause of action founded on a condictio or for unjust
enrichment against the respondent. See King v Cohen Benjamin & Co 1953 (4) SA 641
(W) which case restated the rule that the law will not permit a person to unjustly enrich
himself at the expense of another. See also Nortje & Anor v Pool NO 1966 (3) SA 96
(A); Dilmitis v Niland 1965 (3) SA 492 (SR); Krueger v Navratil 1952 (4) SA 405
(SWA) and Naicker v Bell 1965 RLR 430 (G); 1965 (4) SA 210 (SR).
As the applicant has claimed set-off of the debt set-off or compensatio operates
retrospectively and his obligation to pay the instalments in terms of the contract must be
held to have been discharged. As to retrospective operation of set-off once claimed see
Schierhout v Union Government (Minister of Justice) 1926 AD 286 at 289-290.
I hold therefore that the applicant has demonstrated a prima facie right to enforcement of
the contract of sale. It is right and proper that the property be preserved pending
resolution of his action in this respect.
There is simply no merit in the other arguments advanced by the respondent. These all
rest on the premise that the written contract was verbally varied by the
Page 32 of 1991 (2) ZLR 28 (HC)
parties and does not represent the contract between them. This stance is simply not
available to the respondent for the simple reason that the written contract which he
subscribed to contains a clause which clearly stipulates that the parties are agreed that the
contract represents the whole of the agreement between them and that any variation
thereof shall be in writing and subscribed. He has produced no such written variation.
The application succeeds. Pendente lite there shall be an interdict in terms of the draft.
The respondent shall pay costs.
Winterton, Holmes & Hill, petitioner’s legal practitioners
CHIADZWA v PAULKNER
1991 (2) ZLR 33 (SC)
Division: Supreme Court, Harare
Judges: Gubbay CJ, McNally JA & Korsah JA
Subject Area: Civil appeal
Date: 2 & 23 July 1991

Civil procedure — High Court Rules — rule 64 — summary judgment — requirements

for affidavit — if not made by plaintiff deponent must be a person who can swear
positively as to the facts.
Costs — point in limine raised for the first time on appeal — successful applicant not
entitled to costs of appeal or in the court below.
For the purposes of Rule 64 of the High Court Rules (summary judgment), an affidavit
must fulfil three requirements:
1. It should be made by the plaintiff himself or by any other person who can
swear positively to the facts.
2. It must verify the cause of action and the amount, if any, claimed.
3. It must contain a statement by the deponent that in his belief there is no
bona fide defence to the action. Where the affidavit is not that of the plaintiff himself, the
deponent, while not requiring any special authority from the plaintiff to make the
affidavit, must belong to a particular class of persons, namely, those who can swear
positively to the facts. In this regard, the deponent should set out facts which will justify
the court in coming to the conclusion that the averments in the summons are within his
knowledge.
Where a point in limine which was raised for the first time on appeal, results in success, it
is appropriate to deprive the successful appellant of his costs of appeal and in the court a
quo.
Page 34 of 1991 (2) ZLR 33 (SC)
Cases cited:
Mowschenson and Mowschenson v Mercantile Acceptance Corporation of SA Ltd 1959
(3) SA 362 (W)
Fischereigesellschaft F Busse & Co Kommanditgesellschaft v African Frozen Products
(Pty) Ltd 1967 (4) SA 105 (C)
Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A)
Barclays National Bank Ltd v Love 1975 (2) SA 514 (D)
Misid Investments (Pty) Ltd v Leslie 1960 (4) SA 473 (W)
Raphael & Co v Standard Produce Co (Pty) Ltd 1951 (4) SA 244 (C)
Barclays National Bank Ltd v Smith 1975 (4) SA 675 (D)
Pinepipe (Pty) Ltd v Nolec (Pty) Ltd 1975 (4) SA 932 (W)
Jeffrey v Andries Zietsman (Edms) Bpk 1976 (2) SA 870 (T)
Barclays National Bank Ltd v Swartzberg & Ors 1974 (1) SA 133 (W)
Commissioner for Inland Revenue v Niko 1940 AD 416
E Chatikobo for the appellant
G Musariri for the respondent
GUBBAY CJ: This is an appeal against a decision of Chambakare J whereby he ordered
summary judgment with costs against the appellant (the defendant in the action) at the
instance of the respondent (the plaintiff).
The application for summary judgment was made on the basis of a summons issued under
Order 3 Rule 13 of the the High Court Rules 1971. The particulars of claim annexed to
the summons contain these allegations:
1. During July 1979 the parties entered into a written agreement of sale,
pursuant to which the plaintiff sold to the defendant an immovable property, known as
Stand 8090 Salisbury Township Lands, for the sum of $8 425, payable as follows —
(a) by a deposit of $843 on the signing of the agreement;
(b) the sum of $1 017, at three monthly intervals, in instalments of not less than $200,
to commence on 1 November 1979, with interest thereon at the rate of 8% per annum;
(c) the balance of $6 565, by the defendant assuming the responsibility with effect
from 1 August 1979 for the monthly repayments of $80 due on the plaintiff’s loan
account with Central Africa Building Society, which loan account is secured by a
mortgage bond passed by the plaintiff on 29 July 1974.
Page 35 of 1991 (2) ZLR 33 (SC)
2. Transfer of the property was not to be registered until the price had been
paid in full, the plaintiff being entitled to cancel the agreement in the event of any
instalment of the purchase price not being met on due date.
3. The defendant neglected to pay the instalments due to Central Africa
Building Society for the months of November and December 1988 and January 1989, and
despite notice given in proper form to remedy the breach, failed to do so.
4. In consequence of the aforesaid breach, the plaintiff claims —
(i) an order cancelling the agreement of sale;
(ii) ejectment of the defendant and all those claiming rights of occupation
through him, from the property; and,
(iii) costs of suit.
The defendant gave notice of his intention to defend the action. Thereupon the plaintiff
filed an affidavit deposed to by one John Mashayamombe, the body of which reads:
“1. I am related to the plaintiff by marriage, being married to his sister-in-law,
and the facts contained herein are within my personal knowledge.
2. In or about July, 1979, the parties in this case entered into a written
agreement of sale in terms of which the plaintiff sold to the defendant certain property
known as: Stand 8090, Salisbury Township Lands, also known as: No. 2, Appleyard
Road, Southerton, for a purchase price of $8 425,00. (See Deed of Sale attached hereto
and marked Annexure ‘A’.)
3. During or about January, 1989, I found that the plaintiff’s loan account
with Central Africa Building Society (CABS) was three months in arrears. (See letter
dated 25th January, 1989, written by CABS, which is attached hereto and marked
Annexure ‘B’.)

4. Despite a letter of demand addressed to the defendant by the plaintiff’s

legal practitioners, the defendant failed or neglected to update the CABS loan account
within 30 days of the demand. (See letter of demand attached hereto and marked
Annexure ‘C’.)
5. In the premises the defendant is in breach of clause 1(a) of the agreement
of sale and in terms of clause 4 of the agreement the plaintiff is entitled to the
cancellation of the sale.
6. I truly believe that the defendant has no bona fide defence to this action
Page 36 of 1991 (2) ZLR 33 (SC)
and that an appearance has been entered solely for the purposes of delay.”
Although in his opposing affidavit the defendant makes the submission that the verifying
affidavit of Mashayamombe is defective and does not fall squarely within Order 10 Rule
64, as he is not a person “who can swear positively to the facts”, no argument was
addressed to the learned judge on what would have been an objection in limine to the
court’s jurisdiction to grant summary judgment. See Mowschenson and Mowschenson v
Mercantile Acceptance Corporation of SA Ltd 1959 (3) SA 362 (W) at 366C-D. In the
event, and quite understandably, the point is not considered in the judgment appealed
against. It has now been raised by Mr Chatikobo who, on behalf of the defendant, was
granted leave to incorporate it as a new ground in the notice of appeal.
Rule 64, which, in relevant part, is worded virtually identically to Rule 32(1) of the
Uniform Rules of the Supreme Court of South Africa, permits of an application for
summary judgment provided there is filed by the plaintiff an affidavit:
“. . . made by himself or by any other person who can swear positively to the facts,
verifying the cause of action and the amount claimed, if any, and stating that in his belief
there is no bona fide defence to the action . . .”
Thus, the affidavit must fulfil three requirements —
(a) It should be made by the plaintiff himself or by any other person who can swear
positively to the facts;
(b) It must verify the cause of action and the amount, if any, claimed;
(c) It must contain a statement by the deponent that in his belief there is no bona fide
defence to the action.
See Fischereigesellschaft F Busse & Co Kommanditgesellschaft v African Frozen
Products (Pty) Ltd 1967 (4) SA 105 (C) at 108A-B; Maharaj v Barclays National Bank
Ltd 1976 (1) SA 418 (AD) at 422B-C.
Where the affidavit is not that of the plaintiff himself, the deponent, while not requiring
any special authority from the plaintiff to make the affidavit, must belong to a particular
class of persons, namely, those who can swear positively to the facts. See Barclays
National Bank Ltd v Love 1975 (2) SA 514 (D) at
Page 37 of 1991 (2) ZLR 33 (SC)
515D-E. It must appear ex facie the affidavit that the deponent belongs to such a class of
persons. See Misid Investment (Pty) Ltd v Leslie 1960 (4) SA 473 (W) at 474G-H.
In his affidavit Mashayamombe states that he is married to the plaintiff’s sister-in-law.
That marital association does not, in my view, lead to the reasonable inference that he
must be knowledgeable of the plaintiff’s commercial dealings. In itself the relationship is
far removed from that of a managing-director, or general manager, of a plaintiff
company, or even of a legal practitioner who is acting for the plaintiff in the action
instituted, and suggsestive of the existence of hearsay as opposed to direct knowledge.
What a deponent must do in order to effectively counter any such doubt, is to set out facts
which will justify the court in coming to the conclusion that the averments in the
summons are within his knowledge — some facts which show an opportunity on his part
to have acquired such personal knowledge. See Raphael & Co v Standard Produce Co
(Pty) Ltd 1951 (4) SA 244 (C) at 245E-F; Barclays National Bank Ltd v Smith 1975 (4)
SA 675 (D) at 681D; Pinepipe (Pty) Ltd v Nolec (Pty) Ltd 1975 (4) SA 932 (W) at
934H. A useful test is to ask whether the deponent would be a competent viva voce
witness to the facts were he to be called. See Jeffrey v Andries Zietsman (Edms) Bpk
1976 (2) SA 870 (T) at 872B.
Does Mashayamombe fall into this category? I think not. The facts relied upon to
support the assertion of personal knowledge on his part fall short of establishing it. In the
first place, it appears that his knowledge of the sale of the property is derived solely from
a reading of the terms of the written agreement, or, perhaps, from what he was told by the
plaintiff. He does not say that he was present during the negotiations that led to the
conclusion of this agreement and certainly he did not sign as one of the witnesses thereto.
He makes no claim to ever having met the defendant. Secondly, his discovery that the
defendant was in arrears with the instalment payments was not based upon any personal
enquiry made by him, but rather upon an acceptance of the correctness of what was
contained in a letter written by Central Africa Building Society to its legal practitioners.
Thirdly, the source of his professed knowledge that the defendant had failed to remedy
the breach is not given. Reliance is placed solely on a letter of demand sent to the
defendant by the legal practitioner acting on behalf of the plaintiff. This does not suffice.
Consequentially, as the facts alleged in the summons have not been shown to be within
the personal knowledge of Mashayamombe, he is not in a position to
Page 38 of 1991 (2) ZLR 33 (SC)
verify the cause of action (the second requirement of Rule 64). It may be on account of
his lack of knowledge of the facts, that he has not stated in his affidavit, as he is enjoined
to do, that he verifies the cause of action. See Barclays National Bank Ltd v Swartzberg
& Ors1974 (1) SA 133 (W) at 134D. The second effect is that he is not qualified to
express the belief that there is no bona fide defence (the third requirement).
The strictness of this approach is justified by the necessity that a plaintiff bring himself
fully within the scope of Rule 64. Summary judgment is, after all, an extraordinary and
drastic remedy and a very stringent one based upon the supposition that the plaintiff’s
claim is unimpeachable. It gives a court power to grant a judgment without a trial, even
though notice of the defendant’s intention to defend has been properly given. Though this
power must be exercised with great circumspection, it does not mean that effect must be
accorded to an insubstantial technicality raised by way of objection to the grant of
summary judgment.
For the aforegoing reasons, the appeal must be allowed. Nonetheless as the point in
limine, which resulted in its success, was raised for the first time at this hearing, I am of
the view that the appellant should be deprived of his costs both in this court and below.
See Commissioner for Inland Revenue v Niko 1940 AD 416 at 431.
I would accordingly order as follows:
1. The appeal is allowed.
2. The order of the court a quo is altered to read:
(a) The application is dismissed;
(b) Each party is to pay his own costs.
McNally JA: I agree.
Korsah JA: I agree.
A R Chizikani, appellant’s legal practitioners
Scanlen & Holderness, respondent’s legal practitioners
HARRY v DIRECTOR OF CUSTOMS & EXCISE
1991 (2) ZLR 39 (HC)
Division: High Court, Bulawayo
Judges: Blackie J
Subject Area: Civil trial
Date: 29 July 1991

Prescription — Customs and Excise Act [Chapter 177] s 178 (4) as read with s 176(9) —
action for recovery of seized goods barred as result of failure to institute proceedings for
recovery within three months of date of delivery of notice of seizure — whether
defendant may waive the rights given under the section.
Practice — waiver — onus — requirements to establish..
Where plaintiff had contended a waiver by defendant of the rights defendant had under s
178(4), as read with s 176(9), of the Customs and Excise Act [Chapter 177] for the action
for the recovery of goods seized, to be brought within three months of seizure, the court,
referring to the apparent conflict in the decided cases on the question of whether or not
defendant could waive the rights given under the section, preferred to follow the
judgment which had held that defendant could waive the rights.
Accordingly, the court found that defendant could waive the rights given under the
section, but on the facts found that plaintiff had not established that there had been such a
waiver.
Cases cited:
Quintas v Controller of Customs & Excise 1976 (1) RLR 208 (G)
Patel v Controller of Customs & Excise 1982 (2) ZLR 82 (HC)
Laws v Rutherfurd 1924 AD 261
Minister van Justisie v Swanepoel 1968 (1) SA 347 (SWA)
Page 40 of 1991 (2) ZLR 39 (HC)
J James for the plaintiff
I A Esat for the defendant
BLACKIE J: On 27 August 1987, the defendants’ officers seized two typewriters in the
plaintiff’s possession and immediately thereon issued and served on the plaintiff a notice
of seizure in respect of those typewriters. On 30 December 1988, the plaintiff gave
written notice, (purportedly in terms of s 178(1) of the Customs and Excise Act [Chapter
177], (the Act)) of her intention to institute legal proceedings for the recovery of the
typewriters. A summons and declaration were subsequently issued out of this court on 6
March 1989. These were served on the defendant on 13 March 1989.
The defendant filed a plea in bar and exception to the action claiming that, in terms of s
178(4) as read with s 176(9) of the Act, plaintiff’s action was barred, in that it had not
been brought within three months of the date of delivery of the notice of seizure, and that,
in any event, plaintiff’s summons and declaration did not disclose any cause of action
entitling the plaintiff to the relief which she sought. This plea in bar and the exception
were set down for hearing but were not argued. The plaintiff undertook to amend his
declaration and the matter was removed from the roll.
The plaintiff has now filed an amended declaration. Insofar as it deals with the point
raised in the original plea in bar it now alleges that the defendant waived his rights in
terms of the Act for the action of recovery of the typewriters to have been brought within
three months of the date of the delivery of the seizure notice. The correspondence, which
it was said created such waiver, was attached to the amended declaration. The defendant
has filed a further plea in bar to the amended declaration. This plea in bar claims that, in
terms of the Act, the defendant cannot waive the rights alleged and that, if he can do so,
the correspondence on which the plaintiff relies as the basis for such waiver, does not
establish the waiver.
There is an apparent conflict between the decisions of this court as to whether the
defendant may waive the rights granted him in the Act and under discussion in this
matter. In Quintas v Controller of Customs and Excise 1976 (1) RLR 208 at p 212 Goldin
J (notwithstanding a concession by counsel for the Controller in that case that the
Controller did have the right to so waive his rights) said that the Controller did not have
that right. However in Patel v Controller of Customs and Excise 1982 (2) ZLR 82 at p 88
Gubbay J (as he then was) held that the Controller could waive his rights. With respect to
the learned judges concerned there is no doubt in my mind that the reasoning and
conclusion in Patel’s case
Page 41 of 1991 (2) ZLR 39 (HC)
is preferable to that in Quintas’ case. I hold that the defendant does have the power to
waive his rights in respect of the sections under discussion.
If the defendant can waive his rights in this regard, it must be decided whether the
defendant did so in this case. The onus is on the plaintiff to prove the waiver. To establish
waiver, the plaintiff must show an express abandonment or surrender of rights (or at least
conduct which is plainly inconsistent with their enforcement) with full knowledge and
appreciation of those rights. Laws v Rutherfurd 1924 AD 261; Minister van Justisie v
Swanepoel 1968 (1) SA 347 (SWA) at 354; Patel v Controller of Customs, supra, at 88.
A careful examination of the correspondence attached to the plaintiff’s amended
declaration and on which the plaintiff’s claim to waiver is based, does not reveal any
express abandonment of rights or even conduct inconsistent with their enforcement. At
best for plaintiff, the correspondence shows the defendant agreeing firstly to revoke
forfeiture (due to the misfiling of a letter of representation sent by plaintiff’s legal
practitioner) and secondly, to withhold immediate and final forfeiture for fixed periods of
time.
In these circumstances it seems to me that the defendant’s plea in bar must be upheld.
The plaintiff’s claim is dismissed and judgment is entered for the defendant.
James, Majwabu-Moyo & Nyoni, plaintiff’s legal practitioners
Calderwood, Bryce Hendrie & Partners, defendant’s legal practitioners
ANTONIO v ANTONIO
1991 (2) ZLR 42 (SC)
Division: Supreme Court, Harare
Judges: Manyarara JA, Korsah JA & Ebrahim JA
Subject Area: Civil appeal
Date: 30 July 1991

Customary law — inheritance — Administration of Estates Act [Chapter 301] — matters

into which magistrate should enquire.
A magistrate carrying out an inquiry in terms of s 69 of the Administration of Estates Act
[Chapter 301] is required to summon all the parties concerned before him and take
evidence of the customs and usages of the people concerned and to then determine both
the issue of heirship as well as the manner of distribution of the assets of the estate.
Where a magistrate had not carried out a full inquiry as envisaged by the Administration
of Estates Act [Chapter 301]:
Held, that the matter should be remitted to the magistrate to carry out a full and proper
inquiry.
Held, obiter, that by virtue of the Legal Age of Majority Act 1982, even in customary law
the right to guardianship and custody of a child born to a major woman vests in that
woman upon the death of the child’s father until a court of competent jurisdiction decides
otherwise. That is so whether the child is legitimate or illegitimate.
Cases cited:
Vareta v Vareta S-126-90 (not reported)
Matambo v Matambo 1969 (2) RLR 154 (A); 1969 (3) SA 717 (RA)
Chiutare v Chiutare S-114-91 (not reported)
Zimnat Insurance Co Ltd v Chawanda 1990 (2) ZLR 143 (SC); 1991 (2) SA 825 (ZS)
Page 43 of 1991 (2) ZLR 42 (SC)
E Chatikobo for the appellant
D P Drury for the respondent
MANYARARA JA: This appeal arises out of a notorious practice followed by certain
members of the community of descending upon the wife or reputed wife of their deceased
relative and stripping her of all the property that she and the deceased possessed. In this
instance the relatives went so far as “evicting” the woman from the house in which she,
the deceased and a minor child of the union resided. As usual, the parties to the case
which was brought before the Provincial Magistrate’s Court at Harare were the
deceased’s minor children, assisted by the real contenders, who were the dispossessed
woman and the deceased’s brother.
The proceedings came before the court in terms of s 69(2) of the Administration of
Estates Act [Chapter 301], although neither the magistrate nor the parties seemed to
realise this. The court was “called upon to decide who should be the heir to the
deceased(’s) estate”, with the parties to the present appeal as the rival “claimants”
thereto.
At the hearing of the appeal we made the following order by consent of counsel for the
parties:
1. That the community court’s order appointing the respondent as the heir to
the deceased’s estate is confirmed;
 2. That the case is remitted to the Provincial Magistrate’s Court to hold a full
enquiry into the dispute surrounding the distribution of the estate in terms of s 69(2) of
the Administration of Estates Act [Chapter 301];
3. That there be no order as to costs.
In the proceedings before the community court in November 1990 the appellant, aged 15
years, was assisted by Samuel Antonio, a brother of the late Richard Antonio (“the
deceased”), who died intestate on 12 October 1989 in Harare. As I have said, the
respondent, aged seven years, was assisted by his mother, Mercy Mukakati. She also
claimed that prior to the deceased’s death she was cohabitating with him at No. 7 Scott
Road, Hatfield, Harare (“the house”), and the respondent was in their custody.
According to Ms Mukakati, the house was acquired by herself and the deceased jointly.
But, following the deceased’s death, Samuel Antonio, his mother and
Page 44 of 1991 (2) ZLR 42 (SC)
his other relatives came to the house and “evicted” her after seizing the deceased’s
savings account book or books, insurance policy and documents relating to the house.
Samuel Antonio and his “gang” (which I consider to be an appropriate description of the
group) went to the community court without Ms Mukakati and had the respondent
appointed the heir to the estate. It was assumed by the court and Samuel Antonio’s gang
that Samuel Antonio was the respondent’s rightful guardian.
When Ms Mukakati learned of the appointment, she challenged Samuel Antonio’s claim
to be the respondent’s guardian. Samuel Antonio and his gang returned to the community
court and asked that the respondent be substituted by the appellant as heir. The
community court purported to do so, but the decision was upset by the Provincial
Magistrate to whom the matter was referred. The magistrate was obviously alarmed by
Ms Mukakati’s evidence of her eviction from the house because he went further and
ordered that she and the respondent “shall take occupation of the house with immediate
effect”. In this respect the magistrate misdirected himself seriously. This is the only point
which Mr Chatikobo, for the appellant, pursued in this appeal, and Mr Drury conceded
the point on the respondent’s behalf. Counsels’ attitude was quite proper and in applying
for the order we made they requested that there be no order as to costs, which was also
right in the circumstances.
It was common cause that the respondent, as the deceased’s eldest or only son, should
succeed to the estate in accordance with the deceased’s wishes. See Vareta v Vareta S-
126-90 for the proposition that the respondent is “the natural heir” of the deceased in this
case. His succession to the house will arise in the distribution of the deceased’s property
in terms of s 69(1) of the Administration of Estates Act: Matambo v Matambo 1969 (2)
RLR 154 (AD;, 1969 (3) SA 717 (RAD).
In this regard, the court welcomes the information given from the Bar that the appellant’s
legal practitioners of record have withdrawn from the matter and placed the
administration of the estate in the hands of the Master of the High Court. It was not
proper for the legal practitioners concerned to act for the appellant, for the reasons I shall
set out for the guidance of the magistrate who will conduct the enquiry ordered on the
remittal of the case.
Section 69(2) of the Administration of Estates Act states that the magistrate shall
summon the relatives and reputed relatives of the deceased before him and take and
record evidence of the customs and usages of the tribe to which the deceased belonged,
which evidence he may supplement from his own knowledge and, on
Page 45 of 1991 (2) ZLR 42 (SC)
the basis of such evidence, determine the manner in which the estate shall be distributed.
Matambo v Matambo, supra.
This procedure was not followed in this case and consequently the matter could not be
said to be properly before us in terms of s 69(3) of the Act. Samuel Antonio has in fact
jumped the gun, as it will be seen that he is only one of the persons who may be
summoned in terms of the Act in his own right, but not as the guardian of either of the
parties.
It may now be taken as settled law that, by the operation of the Legal Age of Majority
Act 1982 on customary law, the right to guardianship and custody of a child born to a
major woman vests in that woman upon the death of the child’s father, if he had these
rights in the child, until a court of competent jurisdiction makes an order to the contrary.
Chiutare v Chiutare S-114-91. This is so whether the child is legitimate or illegitimate.
To construe the Legal Age of Majority Act in any other manner would make nonsense of
the intendment of the Legislature which is to accord equal legal status to males and
females in this jurisdiction. Ncube Family Law in Zimbabwe paras 7.2 and 7.8 should be
read with this proposition in mind. See Zimnat Insurance Co Ltd v Chawanda 1990 (2)
ZLR 143 (SC), which I suggest should now guide a court’s application of customary law
principles to the multifarious cases which arise for determination. Three judges of this
court said at p 152H-153A:
“As our law accepts customary unions, it should endeavour to secure equality to the
parties thereto and discard the intolerable affection of superior virtue (to borrow a phrase)
inherited from the colonial past. To continue to exhibit a vestige of condescension and
conservatism towards customary law unions ill befits, and is repugnant to, the current and
unyielding movement by the State to remove the legal disabilities suffered by African
women. See the remarks of Dumbutshena CJ in Katekwe v Muchabaiwa 1984 (2) ZLR
112 (SC) at 124A.”
The evidence in this case is that the appellant was born in wedlock between the deceased
and one Elizabeth Chawanda who, though separated from the deceased, has survived
him. The respondent is the deceased’s illegitimate child with Ms Mukakati. It seems that
the deceased is also survived by two other illegitimate children, namely Richard born in
1986 and Rumbidza a girl born in 1989, by a third woman referred to as Marceline.
Surprisingly, this information came, not from Samuel Antonio, but from Ms Mukakati.
Each of these minor children is entitled to claim maintenance from the deceased’s estate,
if such a child is in its mother’s custody, and to claim a share in the distribution of the
Page 46 of 1991 (2) ZLR 42 (SC)
deceased’s moveable property. In this regard, Samuel Antonio should be called upon to
account for his present occupation of the house and to bring into the estate’s account the
securities and other documents which Ms Mukakati claims that he seized in the mistaken
belief that they were his and his mother’s property to deal with as they pleased. The true
position is that the property referred to is part of the deceased’s estate, to be distributed in
terms of s 69(1) of the Administration of Estates Act.
In terms of s 6A of the Customary Law and Primary Courts Act 1981, the respondent, as
the deceased’s heir at customary law, shall succeed to the house in his individual
capacity, although transfer to him may not be made until he attains his majority. The
effect of the provision on this case is preserved by s 32 of the Customary Law and Local
Courts Act 1990.
Ms Mukakati’s evidence is that she contributed to the acquisition and upkeep of the
house and lived in it with the deceased as his reputed wife until he died. If this is so, then
she may be entitled to a share of the net proceeds of the sale of the house or to be put
back in the house against her payment to the estate of the equivalent of the deceased’s
share in the house. All these and probably other considerations will arise in the enquiry
into the dispute and the distribution of the deceased’s property.

It is therefore directed that copies of this judgment be served on the Provincial Magistrate
who will hold the enquiry ordered by this court and on the Master of the High Court.
Korsah JA: I agree.
Ebrahim JA: I agree.
Sawyer & Mkushi, appellant’s legal practitioners
Gollop & Blank, respondent’s legal practitioners
S v ROFFEY
1991 (2) ZLR 47 (HC)
Division: High Court, Harare
Judges: Mtambanengwe J & Chidyausiku J
Subject Area: Criminal appeal
Date: 27 May & 31 July 1991

Criminal procedure (sentence) — sodomy between consenting adults — factors to be

taken into account in determining sentence.
The appellant pleaded guilty to one count of sodomy. He was sentenced to a period of ten
months’ imprisonment with labour, of which four months was suspended on appropriate
conditions.
The evidence was that the complainant was both an adult and a willing party. No force or
coercion had been used to persuade the complainant to submit to the appellant’s desires.
The complainant had apparently committed similar acts in the past.
Held, that these factors make this case less serious than others of its genre.
Held, accordingly, that the imposition of a fine was appropriate in the circumstances.
Cases cited:
S v Dongonda HH-73-88 (not reported)
S v Le Roux S-172-81 (not reported)
S v Kalides AB-142-72 (not reported)
S v Mackie HB-54-90 (not reported)
E W W Morris for the appellant
Mrs L Goredema for the respondent
MTAMBANENGWE J: The appellant in this case was charged in the magistrates court
with sodomy. He pleaded guilty and on conviction was
Page 48 of 1991 (2) ZLR 47 (HC)
sentenced to 10 months’ imprisonment with labour, four months of which were
suspended for four years on condition that within that period he did not commit any
offence involving assault of an indecent nature for which he was sentenced to
imprisonment without the option of a fine. He appeals to this court against that sentence.
The facts of the case, according to the State outline, which the accused accepted, can be
summarised as follows:
On 24 September 1989 at about 5 pm the accused asked the complainant, a 21-year-old
youth, to clean his car which was parked outside a house at 49 Craig Road, Borrowdale.
When complainant had finished cleaning the car the accused invited him into the house.
While the two sat in the lounge the accused asked the complainant to remove his overalls
and try on an underwear which the accused wanted to give him as a reward for washing
the car. The complainant obliged, he tried on the underwear and though it was too small,
he said he wanted it all the same. The accused then asked if complainant played with men
and the complainant answered in the affirmative. The next three paragraphs of the outline
state:
“8. The accused asked the complainant how he played with men and he started
masturbating (sic) by which time he had an erection. The accused followed suit and also
had an erection.
9. The accused took the complainant into the bedroom where the accused also removed
his clothing and the accused placed his penis into the complainant’s anus.
10. The accused did not ejaculate and later the accused played with the complainant’s
penis and the complainant ejaculated.”
The complainant was 21 years of age. Nothing further is stated about him, that is,
whether he was a domestic servant working at the address that the accused was
caretaking during the absence of the owner. What complaint he made if any is not stated
either though it can reasonably be surmised that he did report to someone since the
offence came to light.
The complainant, as the magistrate stated in assessing sentence, was a consenting party.
The accused is a first offender. These are factors he took into account. In noting the
appeal the grounds were stated as:
Page 49 of 1991 (2) ZLR 47 (HC)
“1. The learned magistrate failed to give due regard to the facts that
(a) appellant was a first offender
(b) appellant had co-operated with the State in its investigations into the case and in
pleading guilty to the charge;
(c) appellant had shown to the court that he was sorry for the offence that had been
committed;
(d) on the agreed facts before the Magistrate’s Criminal Court the offence was
committed between consenting parties.
2. The learned magistrate misdirected himself in concluding that a custodial sentence
without the option of a fine was necessary in respect of the nature of which the appellant
was convicted as a deterrent either to the appellant himself or to other likeminded
persons.
3. In all the circumstances the sentence imposed is manifestly excessive and induces a
sense of shock.”
Mr Morris for the appellant has however based his argument on two main grounds; the
first is that modern thought tolerates homosexuality and that our law should modify itself
and be in accord with trends in other countries like Britain. He argued that the
complainant in this case was an adult who fully consented and had been involved in
homosexual activity before; he concludes that:
“homosexual acts between consenting male adults carried out in private ‘harm no-one
and leaves none the poorer’ and society has little or no interest (in) the matter.”
and submitted that:
“a prison sentence is wholly inappropriate for an offence of this nature.”
Mr Morris also argued that the trial magistrate misdirected himself in holding that the
appellant had acted “unscrupulously” and that this offence stank in the nostrils of justice.
For the submission that a prison sentence was wholly inappropriate Mr Morris relies on S
v Dongonda HH-73-88 (not reported). That case dealt with criminal injuria and I find
nothing said by Ebrahim J (as he then was) in that case to be of any assistance to the
appellant in this case. On the other hand the magistrate said, without citing the cases, that
he had had the opportunity to look at various cases within our jurisdiction and:
Page 50 of 1991 (2) ZLR 47 (HC)
“it has always been the trend of our courts that even first offenders can expect to receive
imprisonment regard being hard (sic) to (a) personal circumstances but in particular
accused person and also the circumstances surrounding the commission of this offence. It
is my view that this is a clear case where imprisonment is appropriate and in the result the
accused is sentenced to undergo . . . ”
One of the issues to be decided in this case is whether in saying that “such unscrupulous
acts do in my view stink in the nostrils of justice, above all society does look at such
offences with abhorrence” the trial magistrate misdirected himself. I do not think so. The
language is strong but in my view the magistrate was merely saying that society feels
disgusted by such offences which are offences merely because they are offences against
the order of nature as he said.
The most recent decisions in our jurisdiction would seem to support the magistrate. In S v
Le Roux S-172-81 (not reported) the facts available to the magistrate were stated as:
“On Wednesday, 24th June, 1981 at about 5.0 pm the accused saw Malcolm Peter
Hobart, at 17-year-old youth, walking along Mainway, Hatfield in his school uniform.
The accused stopped his vehicle and offered Hobart a lift. The lift was accepted and
Hobart entered the car. On the pretext of dropping some bottles off at his residence, the
accused drove to his house at 2 Southway, Hatfield. Having dropped the bottles off at his
house, the accused then continued to drive Hobart to his home but on the way, on the
further pretext of having forgotten something, returned again to his residence with
Hobart.
On their arrival on this occasion, the accused invited Hobart into his house. He invited
Hobart to view some pornographic photographs which he had. Hobart showed an interest
in the photographs which he viewed in the accused’s bedroom. The accused then made
sexual advances towards Hobart which were accepted. Both lay on the bed, Hobart
having removed his trousers of his own accord, whereupon the accused went through the
motions of sexual intercourse ‘per anum’ with him. The accused did not ejaculate. The
accused then masturbated Hobart until his ejaculation. Thereafter, the accused drove
Hobart to his place of residence at his parent’s house.
Hobart was a willing party to this incident.”
Lewis JP said as regards sentence:
Page 51 of 1991 (2) ZLR 47 (HC)
“The regional magistrate in passing sentence on the facts before him, took account of the
mitigating features and the aggravating features. He had regard to the fact that the youth
was a willing party but said, before passing sentence:
‘The accused is a man of 46, more than old enough to be this boy’s father. All these
circumstances could, quite easily, combine to persuade such a youngster, who may not
normally have homosexual inclinations, to participate in the course of conduct desired by
the accused. It is, in any event, apparent that the youth reported the whole affair to his
parents in due course. The most serious aspect of this case is that it was, in fact, a youth
who was involved and, as such, he is liable to corruption and psychological damage, and
this is so whether or not he was, on the face of it, a willing party.’
It seems to me that the approach of the magistrate on the facts available to him was an
entirely proper one, and the sentence imposed on the appellant on those facts was entirely
appropriate, bearing in mind comparable sentences in other cases where young
complainants are involved in this sort of offence.”
The sentence was one of 15 months’ imprisonment with labour of which 10 months were
suspended for five years on conditions.
In an earlier case, S v Kalides AB-141-72 Beadle CJ, on appeal altered a sentence of 15
months IWL to read “fifteen months’ imprisonment with hard labour, of which six
months is suspended on conditions . . .”. The complainant was a 21-year old-youth who
did not fully co-operate with the appellant when sodomy was committed on him; he was
persuaded by the appellant to allow the appellant to do that to him. The learned Chief
Justice had this to say as regards deterrence: (see pp 3-4 of the cyclostyled judgment):
“Cases involving this particular type of offence have come before the courts on numerous
occasions, and on numerous occasions before this court, and the court has always stressed
that one of the most important features in assessing punishment in cases of this
description is the deterrent effect which that punishment will have on other like-minded
persons.”
He emphasised the fact that:
“it is the knowledge that a person who commits an offence of this sort will go to prison,
and not be punished with a fine, that is the basic deterrent. The
Page 52 of 1991 (2) ZLR 47 (HC)
offender will know that for this offence he will not be given the option of paying a fine,
but will go to prison.”
He went on to say:
“The actual duration, whether six months, nine months or fifteen months, does not seem
to be of as much importance as the fact that the punishment is imprisonment and not the
option of a fine. Indeed, I did not understand Mr Gubbay to controvert this, because he
did not suggest that the appellant should be given the option of a fine; he merely
suggested that a portion of the sentence should be suspended on conditions.”
In support of his argument that a prison sentence was inappropriate, Mr Morris cited S v
Mackie HB-54-90 (not reported). In that case a 49-year-old accused was sentenced to
nine months’ imprisonment with labour of which five months’ imprisonment with labour
were suspended for indecent assault, he masturbated a willing 14-year-old boy. On appeal
Sansole J altered the sentence to a fine of $250 and a two-month prison sentence wholly
suspended on conditions. The offence involved there was of course far less serious than
sodomy and a comparison of that case with the present case, based on the disparity in
ages of the accused and complainant is misleading.
The two cases cited above are Supreme Court or Appellate Division decisions. In the
Kalides case Beadle CJ in emphasising the point that a prison term was the appropriate
sentence discussed a number of such cases that had come before the courts in all of which
prison terms were meted out. However, he stated, at p 6:
“I refer to these two sets of cases to give an indication of the types of sentence that are
imposed for this offence. It will be seen that one of the aggravating features of this
offence is the age of the complainant. Where the complainant is a youth the offence is
more serious than if the complainant is an adult.
Another important factor is the extent to which the complainant is a willing party. If the
complainant is a willing party to an offence of this description it is unlikely that he will
be corrupted perhaps to the same extent as a complainant who is not and who may be led
astray by what the accused does to him.” (Emphasis added.)
In the present case the complainant was both an adult and a willing party. There was no
force used to persuade the complainant to submit to the accused’s
Page 53 of 1991 (2) ZLR 47 (HC)
desires. These features in my view distinguish this case from the two cases from which I
have quoted several passages.
Paragraph 7 of the agreed Statement of facts reads:
“The accused asked the complainant how he played with men and he started masturbating
by which time he had an erection. The accused followed suit and also had an erection”;
which suggest complete willingness on the complainant’s part to indulge in the act of
which the accused was making hints to that stage, and I do not think a custodial sentence
in these circumstances can be described as one that fits the offence, the offender and the
interests of society.
In the result I think the appropriate sentence in this case is a fine, and, accordingly I
would set aside the sentence imposed by the trial magistrate and sentence the appellant as
follows:
A fine of $300 or, in default of payment, three months’ imprisonment.
Chidyausiku J: I agree.
Coghlan, Welsh & Guest appellant’s legal practitioners
S v STEAD
1991 (2) ZLR 54 (SC)
Division: Supreme Court, Harare
Judges: Gubbay CJ, McNally JA & Ebrahim JA
Subject Area: Criminal appeal
Date: 16 July & 5 August 1991.

Employment — Labour Relations (General Conditions of Employment) (Termination of

Employment) Regulations, 1985 — s 2(1) — criminal liability upon termination of
employment — only attaches where there is employment.
Interpretation of statutes — penal provision — two constructions possible — more
lenient construction to be adopted.
Company — lifting the corporate veil — when permissible — only when exceptional
circumstances exist — rule applies even if company only has one member.
In s 2(1) of the Labour Relations (General Conditions of Employment) (Termination of
Employment) Regulations 1985, outside of the exceptions, criminal liability will only
attach to the “employer” where he happens to remain an employer in the same business,
enterprise or venture, subsequent to the termination of the contract of employment with
which he is charged. Where there is no longer any employment, there is no employer.
A court should strive to avoid adopting a construction which penalises a person in a way
which was not made clear by the Legislature. If there are two constructions of a penal
provision that are reasonably open, the more lenient, and not the one that leads to
harshness and injustice, should be adopted.
In general the law will not go behind the separate personality of a company to the
members. The conception of the existence of a company as a separate entity distinct from
its shareholders is not merely artificial and technical
Page 55 of 1991 (2) ZLR 54 (SC)
thing, but a matter of substance. This principle obtains even if the company has only one
member or, although it had more, one of them effectively controls it. It is only in
exceptional circumstances, such as fraud, that the veil of incorporation is pierced.
Cases cited:
W & W 1978 RLR 429 (G)
Dickenson v Fletcher (1873) LR 9 CP 1
R v Milne & Erleigh (7) 1951 (1) SA 791 (A)
R v Moosa & Ors 1960 (3) SA 517 (A)
R v Sibanda (1) 1963 R&N 593; 1964 (1) SA 311 (SR)
Dadoo Ltd & Ors v Krugersdorp Municipal Council 1920 AD 530
RP Crees (Pvt) Ltd v Woodpecker Industries (Pvt) Ltd 1975 (1) RLR 151 (G); 1975 (2)
SA 485 (R)
Lipschitz & Anor NNO v Landmark Consolidated (Pty) Ltd 1979 (2) SA 482 (W)
Lategan &Anor NNO v Boyes & Anor 1980 (4) SA 191 (T)
J Louw and Co (Pty) Ltd v Richter & Ors 1987 (2) SA 237 (N)
J B Colegrave for appellant
Mrs J Zindi for respondent
GUBBAY CJ: The appellant was tried upon five charges of contravening s 2(1), as read
with s 6, of the Labour Relations (General Conditions of Employment) (Termination of
Employment) Regulations 1985 (Statutory Instrument 371 of 1985), in that on 31 March
1988, in his capacity as an employer, he wrongfully and unlawfully terminated contracts
of employment with five named female employees. Despite his having tendered pleas of
not guilty, the trial magistrate convicted him on all counts and, taking the offences
together for the purposes of sentence, imposed a fine of $500 or, in default of payment,
four months’ imprisonment with labour.
The relevant and undisputed facts giving rise to this appeal are these:
In 1980, after retiring from service with the Air Force of Zimbabwe, in which he had
been in charge of the electrical development section, the appellant commenced to trade
on his own account under the name “Electronic Designs and Sales” (EDS). This business
was concerned almost exclusively with the manufacture of battery chargers under
contracts with the Zimbabwe National Army and Air Force and the Zimbabwe Republic
Police.
Page 56 of 1991 (2) ZLR 54 (SC)
After a slow start the business began to prosper. Anticipating that his personal income tax
liability was likely to be considerable were he to continue trading on his own account as
EDS, the appellant decided to form a limited liability company. To this end, in February
1982, Electronic Designs and Sales (Private) Limited (“the company”) was registered,
with the appellant as its managing director and he and his wife as the sole shareholders in
the proportions of twenty and eighty per cent respectively.
The company remained inactive until some time in 1985 when the appellant effectively
transferred to it the manufacturing side of his business while he, trading as EDS,
continued to carry out the electrical design work. The equipment required for the
manufacture of the electrical components was leased to the company by the appellant
who, in addition, provided the qualified and skilled employees. EDS, however, remained
the registered employer and so the appellant was personally responsible for the payment
of the salaries and wages of all employees, no matter the type of work they were engaged
to do.
In the middle of 1987 the manufacturing operation undertaken by the company slumped.
Dire shortages of foreign currency were the cause of very much reduced orders for
battery chargers from the Defence Forces, which constituted almost ninety per cent of the
company’s output. A review of the situation in November 1987 revealed that sales were
down by $175 000. There was insufficient work to keep the employees occupied either
on the manufacturing side or on design work.
Early in January 1988 the appellant decided to cease trading on his own account as EDS.
The company was registered as an employer and as from the first day of that month
became liable for the remuneration of the technical and skilled employees. The
equipment previously leased to the company was sold to it and, with the almost total loss
of orders for battery chargers, the company commenced to manufacture printed circuit
boards for use in the private sector.
On 18 January 1988 the appellant gave written notice to those employees who were not
employed by the company that he intended to close the business EDS at the end of March
1988 and that from 1 April 1988, he would no longer be able to employ them.
In a letter written to the Ministry of Labour, Manpower Planning and Social Welfare, the
appellant advised of his decision. He pointed out that the only employees engaged by
EDS were unskilled and that they would become unemployed on 1 April 1988 unless the
company was in a position to find some
Page 57 of 1991 (2) ZLR 54 (SC)
work for them to do. In the event it was only the five female employees who were
affected by the closure of the appellant’s business, EDS.
Section 2(1) of the Regulations prohibits an employer from terminating the contract of
employment with an employee, summarily or otherwise, unless such termination falls
within one of the four stated exceptions in sub-paras (a) to (d) thereto. None of these
were relied upon by the appellant and, in particular, it was common cause that he had not
obtained the prior written approval of the Minister to terminate the employment of the
five employees. The defence raised was simply that at the effective date of termination
the appellant, having closed the business EDS, was no longer an “employer” within the
plain meaning of s 2(1). In other words, the date of termination of the employment of the
five women coincided with that upon which the appellant ceased to trade on his own
account. It is upon this same argument that the propriety of the convictions are now
challenged by Mr Colegrave.
The word “employer” is defined in s 2 of the Labour Relations Act 1985, to mean:
“. . . any person . . . who employs or provides work for another person and remunerates or
expressly or tacitly undertakes to remunerate him, and includes the manager, agent or
representative of such person who is in charge or control of the work upon which such
other person is employed.”
It is apparent that this definition presupposes the existence of employment. It is aimed at
a person, (whether an individual, a company, an association, or the like), for whom
employees work and who pays their wages or salaries.
The golden rule of interpretation retains a position of priority among the other canons of
construction, in the sense that recourse must first be had to it. It is only if the legislative
intention is not disclosed with sufficient certainty by the clear and unambiguous meaning
to be assigned to the words of the enactment, read in its proper context, that resort to
further rules is justified. This may occur where an adherence to literalism would lead to
an absurdity or anomaly so glaring that the lawmaker could not possibly have intended it,
or where the language used is, in fact, ambiguous. See W v W 1978 RLR 429 (GD) at
432D-F.
In my opinion, effect can be given to the wording of s 2(1) of the Regulations taken in its
plain, ordinary meaning and that, therefore, this is not a case where another interpretation
is forced on the court. I am in agreement with Mr Colegrave that the legislative intention
disclosed is that, outside the exceptions,
Page 58 of 1991 (2) ZLR 54 (SC)
criminal liability will only attach to the “employer” where he happens to remain an
employer in the same business, enterprise or venture, subsequent to the termination of the
contract of employment with which he is charged. Where there is no longer any
employment, there is no employer. Were this not so, an emigrating employer, who is
constrained by a desire to leave the country to terminate the employment of his
employees, would have no absolute right to do so; he would have to bring himself within
one of the exceptions to the provision.
But even if the wording of s 2(1) were not, as I consider it to be, against the view adopted
by the magistrate, it must at least be held to be doubtful, and the principle must
accordingly be applied that if there are two constructions of a penal provision that are
reasonably open, the more lenient, and not the one that leads to harshness and injustice,
should be adopted. As Brett J remarked in Dickenson v Fletcher (1873) LR 9 CP 1 at 7:
“Those who contend that a penalty may be inflicted must show that the words of the Act
distinctively enact that it shall be incurred under the present circumstances. They must
fail if the words are merely equally capable of a construction that would, and one that
would not, inflict the penalty.”
In short, a court should strive to avoid adopting a construction which penalises a person
in a way which was not made clear by the Legislature. See R v Milne & Erleigh (7) 1951
(1) SA 791 (AD) at 823C-F; R v Moosa & Ors 1960 (3) SA 517 (AD) at 528C; R v
Sibanda 1963 R&N 593 at 600A-D; 1964 (1) SA 311 (SR) at 318A-D.
The approach of the trial court was that, while it had to be recognised that the company
was a separate juristic entity, a lifting or pulling aside of the corporate mask revealed the
appellant to be in complete control of its activities, functions and decisions. Since 1985
the company was part of the machinery by which the appellant had conducted his
business. Consequently, on the demise of EDS, the appellant remained an employer by
reason of the continued life of the company.
With due deference, I do not consider the matter as simple as that. In general the law will
not go behind the separate personality of a company to the members. As Innes CJ
emphasised in Dadoo Ltd & Ors v Krugersdorp Municipal Council 1920 AD 530 at 550-
551, the conception of the existence of a company as a separate entity distinct from its
shareholders is no merely artificial and technical thing, but a matter of substance. And the
principle obtains even if the company has only one member or, although it has more, one
of them alone
Page 59 of 1991 (2) ZLR 54 (SC)
effectively controls it. See RP Crees (Pvt) Ltd v Woodpecker Industries (Pvt) Ltd 1975
(1) RLR 151 (GD) at 152H-153D; Lipschitz & Anor NNO v Landmark Consolidated
(Pty) Ltd 1979 (2) SA 482 (W) at 487in fine-488A.
It is only in exceptional circumstances that the veil of incorporation is pierced. See
Henochsberg on the Companies Act 4 ed, vol I, at pp 46-47; Lategan & Anor NNO v
Boyes & Anor 1980 (4) SA 191 (T) at 201C-202A; J Louw and Co (Pty) Ltd v Richter &
Ors 1987 (2) SA 237 (N) at 241C-F. This reluctance on the part of the courts is
underscored by Professor Gower in the following passage of his Modern Company Law 4
ed, at p 124:
“When, however, they have been asked to treat the company as an agent of its individual
controlling shareholder and to make the shareholder liable on that basis they have not
been willing to do so except where that is necessary to frustrate some grave impropriety,
and in such circumstances they have coupled the description of the company as an agent
with more pejorative descriptions, such as ‘sham’, ‘cloak’, ‘device’ ‘stratagem’,
‘puppet’, ‘creature’, etc.”
One such exception is where fraudulent use is made of the corporate principle. The courts
have refused to allow it to be used as an instrument of fraud. Where what was done was
designedly done to evade the provisions of the law, but falls in truth within these
provisions, the courts will look behind to the substance of the act rather than to the form
in which it was clothed. See Dadoo’s case supra at 547.
In the present case it is beyond doubt that the company came into being for a perfectly
legitimate purpose. In 1985 the appellant split the nature of the on-going operation
between himself and the company, transferring the manufacturing side, together with the
specialised personnel, to the company. The function of the company was no sham or
stratagem designed to enable the appellant, should his personal business EDS fall on bad
times, to terminate freely and at will the employment of the unskilled workers. In an era
of prosperity that was furthermost from his mind. But what the appellant did not foresee
occurred a few years later. Economic necessity forced him to come to a decision. This
was to no longer carry on with the remaining side of the operation, the electrical design
work, and so cease to trade on his own as EDS. Having implemented that decision the
appellant, in my opinion, abandoned the status of an employer. In the circumstances the
company’s continued existence after March 1988 was of no relevance, for the appellant
did not use the corporate personality principle in fraudem legis.
Page 60 of 1991 (2) ZLR 54 (SC)
For these reasons, I would allow the appeal and quash the convictions and sentence.
McNally JA: I agree.
Ebrahim JA: I agree.
Stumbles & Rowe, appellant’s legal practitioners
ZIMBABWE DISTANCE (CORRESPONDENCE) EDUCATION COLLEGE (PVT)
LTD v COMMERCIAL CAREERS COLLEGE (1980) (PVT) LTD
1991 (2) ZLR 61 (HC)
Division: High Court, Harare
Judges: Smith J
Subject Area: Opposed motion
Date: 18 June & 7 August 1991

Practice and procedure — leave to execute pending appeal — court’s discretion — when
exercised.
Appeal — leave to execute pending determination.
In an application for leave to execute on a judgment, pending appeal against that
judgment, the court, whilst retaining a wide discretion, will only order execution in such
circumstances where the order would cause irreparable harm to the respondent, if it feels
that an appeal has been noted with no bona fide intention of seeking to reverse the
judgement, but merely to buy time, or where the appeal stands no prospects of success
whatsoever.
Cases cited:
African Congregational Church Co Ltd & Anor v Dube 1944 WLD 204
Leask v French & Ors 1949 (4) SA 887 (C)
South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977
(3) SA 534 (A)
Dabengwa & Anor v Minister of Home Affairs &Ors 1982 (1) ZLR 223 (HC)
Jeremy Prince (Pvt) Ltd v Owen & Anor HH-14-86 (not reported)
Van T’Hoff v Van T’Hoff & Ors (2) 1988 (1) ZLR 335 (HC)
Legal & General Assurance of Zimbabwe (Pvt) Ltd v BG Insurances (Pvt) Ltd HH-190-
89 (not reported)
Arches (Pvt) Ltd v Guthrie Holdings (Pvt) Ltd 1989 (1) ZLR 152 (HC)
Page 62 of 1991 (2) ZLR 61 (HC)
Lincoln Court (Pvt) Ltd v Zimbabwe Distance (Correspondence) Education College (Pvt)
Ltd 1990 (1) ZLR 158 (HC)
Electrical and Furniture Trading Co (Pvt) Ltd v M & N Technical Services (Pvt) Ltd HB-
34-91 (not reported)
Wood NO v Edwards & Anor 1966 RLR 335 (G); 1966 (3) SA 443 (R)
J S Sayce for applicant
E W W Morris for respondent
SMITH J: The applicant owns premises in Harare known as College House. They are
occupied by the respondent. The applicant had operated its business as a correspondence
college from a building known as QV House but was evicted therefrom in July 1990 by
the owner who wanted the premises for his own businesses. The applicant had to take
urgent measures to house its operations. It has leased premises which are situated in an
area zoned for residential purposes only and is under pressure from the Harare City
Council to cease using the building as classrooms. Other classrooms are used in a
building in Cameron Street which has inadequate toilet facilities. The head office and
administrative staff of the applicant are housed in yet a third building and warehouse
space has had to be leased elsewhere to store books, furniture and equipment. In short,
the premises occupied by the applicant are highly unsatisfactory and the applicant is
suffering considerable financial prejudice through not being able to occupy College
House. In July 1990 the applicant instituted proceedings to evict the respondent from
College House. Its application was heard on 9 October 1990 and on 30 January 1991 the
court handed down its judgment ordering that the respondent vacate the premises. On 12
February a writ of ejectment was served on the respondent who, on the same day, filed
notice of appeal. Thereupon the applicant filed this application for leave to execute the
order in case No. HC 2430/90 notwithstanding the pending appeal. It based its
application on the ground that the harm and prejudice it was suffering clearly outweighed
any inconvenience that the respondent would suffer were the application to be granted.
The respondent opposed the application, alleging the extreme prejudice that would be
sustained by it and its staff and students if the application were granted. It said that there
were approximately 850 students enrolled with it who were currently receiving classroom
tuition and if the respondent were evicted they would not be able to complete their
education or sit the examinations at the end of the year.
Mr Sayce submitted that in this case the equities clearly favoured the applicant and
therefore the application should be granted — African Congregational Church Co Ltd &
Anor v Dube 1944 WLD 204 at 205. He argued that the harm
Page 63 of 1991 (2) ZLR 61 (HC)
that would be suffered by the respondent if the application were granted was heavily
outweighed by the prejudice which the applicant would undoubtedly suffer and,
furthermore, that the respondent’s prospects on appeal were bleak. Mr Morris argued that
execution of a judgment order pending appeal should only be granted if such execution
would not have the effect of irreparable loss or harm or if the appeal was totally without
merit.
In Leask v French & Ors 1949 (4) SA 887 (C) at 893 Searle J said:
“In every case of an order of Court ad factum praestandum there must be a serious risk of
prejudice to one or other party in the event of an appeal. If execution is authorised and the
appeal succeeds it is seldom, if ever, possible to restore the full status quo ante, whereas
on the other hand if execution is stayed and the appeal ultimately fails the successful
party, through the delay, generally suffers a loss for which he cannot be compensated. In
the circumstances the Court can only reduce to a minimum the possibilities of prejudice
by granting or refusing the application in accordance with demands of the preponderance
of equities.”
Subsequently in South Cape Corporation (Pty) Ltd v Engineering Management Services
(Pty) Ltd 1977 (3) SA 534 (A) at 545D-F Corbett JA enunciated the factors to which a
court would have regard in exercising its discretion in considering an application for
leave to execute. After stating that the court had a wide general discretion to grant or
refuse leave and, if leave were granted, to determine the condition upon which the right
to execute should be granted, he said:
“In exercising this discretion the Court should, in my view, determine what is just and
equitable in all the circumstances, and, in doing so, would normally have regard, inter
alia, to the following factors:
 (1) the potentiality of irreparable harm or prejudice being sustained by the
appellant on appeal (respondent in the application) if leave to execute were to be granted;
(2) the potentiality of irreparable harm or prejudice being sustained by the
respondent on appeal (applicant in the application) if leave to execute were to be refused;
(3) the prospects of success on appeal, including more particularly the
question as to whether the appeal is frivolous or vexatious or has been noted not with the
bona fide intention of seeking to reverse the judgment but for some indirect purpose, eg,
to gain time or harass the other party; and
Page 64 of 1991 (2) ZLR 61 (HC)
(4) where there is the potentiality of irreparable harm or prejudice to both
appellant and respondent, the balance of hardship or convenience, as the case may be.”
The views of Corbett JA have been cited and adopted in many cases which have
subsequently come before the High Court — Dabengwa & Anor v Minister of Home
Affairs & Ors 1982 (1) ZLR 223 (HC), Jeremy Prince (Pvt) Ltd v Owen & Anor HH-14-
86, Van T’Hoff v Van T’Hoff & Ors 1988 (1) ZLR 335 (HC), Legal & General
Assurance of Zimbabwe (Pvt) Ltd v BG Insurance (Pvt) Ltd HH-190-89, Arches (Pvt)
Ltd v Guthrie Holdings (Pvt) Ltd 1989 (1) ZLR 152 (HC), Lincoln Court (Pvt) Ltd v
Zimbabwe Distance (Correspondence) Education College (Pvt) Ltd 1990 (1) ZLR 158
(HC) and Electrical and Furniture Trading Co (Pvt) Ltd v M&N Technical Services (Pvt)
Ltd HB-34-91. While I accept that the court has a wide general discretion as mentioned in
the cases I have referred to above, the court should always have regard to the views so
ably expressed by Lewis J (as he then was) in Wood NO v Edwards & Anor 1966 RLR
335 at 340:
“The learned judge, Jansen J, in the Ruby’s Cash Store case, suggested that the matter
might be treated on the same basis as an application for leave to appeal. The court should
ask itself: has the applicant any reasonable prospect of success? That may well be the
position where no question of irreparable loss arises by allowing the execution, where,
for instance, the judgment sounds in money and the appellant can be safeguarded by an
order for security de restituendo. Then the question of whether or not execution should be
ordered would depend on whether or not there are any reasonable prospects of success on
appeal. But, in a case where the whole object of the appeal would be completely defeated
if execution were to proceed, then it seems to me that this court has no right to deal with
the matter on the basis of whether or not there is a reasonable prospect of success on
appeal.
The position is this: that the appellant has an absolute right to appeal, and to test the
correctness of the judgment appealed from in the Appellate Division, and if, by ordering
execution the whole object of the appeal would be stultified, then this court would, in
effect be usurping the functions of the appeal court if it ordered execution merely on the
basis that it thought, in its opinion, that the prospects of success on appeal were slight. It
seems clear, from the authorities, that it is only where the court is satisfied that the appeal
is not brought genuinely with the bona fide intention of testing the correctness of the
judgment in the court below, but is only brought as a
Page 65 of 1991 (2) ZLR 61 (HC)
delaying tactic and as a means of staving off the evil day, that the lower court may order
execution to proceed in such circumstances.”
In this case the respondent has satisfied me that the object of the appeal would be
completely defeated if the application were granted. Although the applicant will
undoubtedly suffer prejudice if the application is not granted it seems to me that the
“balance of hardship” test favours the respondent. If it were evicted, the students enrolled
with it would suffer considerably and would have to be compensated by the respondent
and it would be difficult, if not impossible, to restore the status quo ante if its appeal were
successful. Having come to this conclusion, the application can only be granted if it is
shown that the appeal is frivolous or vexatious or has been noted not with the bona fide
intention of seeking to reverse the judgment but to gain time. Having given careful
consideration to the submissions made by Messrs Sayce and Morris I do not think it can
be said that the prospects of success on appeal are abysmal. The issues are complex and
much depends on the assessment of the credibility of the parties. The judge who gave the
order which is appealed against has given a well reasoned judgment but it seems to me
that it would not be safe to conclude that the respondent has no prospect of success. The
respondent, in my opinion, has the bona fide intention of testing the correctness of the
judgment concerned and has not lodged its appeal as a delaying tactic to stave off the evil
day.
The application is dismissed with costs.
Gill, Godlonton & Gerrans, applicant’s legal practitioners
Winterton, Holmes & Hill, respondent’s legal practitioners
S v MUGWENHE & ANOR
1991 (2) ZLR 66 (SC)
Division: Supreme Court, Harare
Judges: Gubbay CJ, McNally JA & Ebrahim JA
Subject Area: Criminal appeal
Date: 16 July & 21 August, 1991

Criminal procedure (sentence) — “tariff” approach to sentencing to be avoided — assault

with intent to do grievous bodily harm does not automatically attract prison sentence —
factors to be considered in sentencing for that offence.
While the “tariff” approach to sentencing is gaining wider currency, it ignores the fact
that the determination of sentence is pre-eminently a matter for the discretion of the trial
court. That discretion should be exercised to the full and sentences should be
individualized as far as possible. Imprisonment should not be regarded as the only
punishment which is appropriate for retributive and deterrent purposes nor should
“deterrent” and “exemplary” sentences be regarded as just. Assault with intent to do
grievous bodily harm does not automatically attract a prison sentence. In sentencing a
person convicted of that offence, regard should be had to the aforementioned principles
and the factors which must be considered include: the nature of the weapon used; the
seriousness of the injury; the nature and degree of violence and the medical evidence.
Youths should not be measured by the same yardstick as mature adults.
Cases cited:
S v Fazzie & Ors 1964 (4) SA 673 (A)
S v Reddy 1975 (3) SA 757 (A)
S v Maseko 1972 (3) SA 348 (T)
S v Scheepers 1977 (2) SA 154 (A)
S v Holder 1979 (2) SA 70 (A)
Page 67 of 1991 (2) ZLR 66 (SC)
S v Mantusse 1973 (3) SA 223 (T)
S v Maxaku 1973 (4) SA 248 (C)
S v Edward 1978 (1) SA 317 (NC)
S v Kulati 1975 (1) SA 557 (E)
S v Makkahela 1975 (3) SA 788 (C)
S v Khulu 1975 (2) SA 518 (N)
S v Matoma 1981 (3) SA 838 (A)
S v Ncube HB-19-86 (not reported)
S v Machetbi & Anor 1974 (2) SA 369 (T)
S v Mutadza 1983 (1) ZLR 123 (HC)
S v Ndlovu HH-197-87 (not reported)
M R D Stonier for the appellant
Mrs J A Zindi for the respondent
EBRAHIM JA: The appellants were convicted of assault with intent to do grievous
bodily harm. They were each sentenced to undergo three months’ imprisonment with
labour, of which two months’ imprisonment with labour was suspended on appropriate
conditions. They each appealed against both conviction and sentence.
Briefly the facts are as follows:
The complainant, Urayayi Mangore, resides in Kadoma where he is employed. On 26
December 1990 he was with a workmate of his, Edson Mambo, who was accompanied by
his girlfriend, when they were accosted by the two appellants and a further accused, who
was acquitted by the trial magistrate at the conclusion of this matter when the three of
them appeared for the trial before him.
The complainant deposed that whilst he was in the presence of his companions the first
appellant attempted to strike him with a clenched fist but he managed to avoid the blow.
An argument had apparently developed between the appellants and Edson Mambo
relating to Edson Mambo’s female companion. The third appellant claimed that the
woman was his girlfriend and that she should go with him but she declined to do so, and
the complainant suggested that her wishes should be respected and that she should be
permitted to proceed with Edson Mambo. The first appellant objected to the
complainant’s interference and struck out at him but his blow did not make contact,
largely through the complainant’s ability to evade the blow delivered.
The sequence of events, as described by the complainant, unfolded as follows:
Page 68 of 1991 (2) ZLR 66 (SC)
The two appellants and the acquitted accused ganged up on him and commenced
assaulting him. He was punched in the face and as he ran from the scene a bottle was
thrown at him but this failed to make contact. He was pursued as he ran and sought
refuge inside a nearby house. His assailant, however, pursued him into the house and
assaulted him therein with stones. The complainant was unable to say how many times he
was struck in this manner, as he says he was in pain. It was his evidence that the
appellants only desisted from their conduct when the crowd which had gathered to
witness the melee shouted the word “police”.
A medical report was produced at the trial and from this it is apparent that the injuries
sustained and observed by the doctor who examined the complainant were: a cut on the
forehead above the left eye, subconjunctival haemorrhage, and contusions on the right
elbow and right ankle. The doctor also considered it necessary to call for an X-ray of the
complainant’s skull and right elbow. There was no evidence, however, to indicate what
was the result of these X-rays. The doctor concluded that, in his opinion, the injuries he
observed on the complainant were as a result of repeated blows having been inflicted on
the complainant with moderate to severe force with a blunt heavy weapon.
Finally, the prosecutor called Edson Mambo as a witness. He corroborated the
complainant’s version of events in a number of respects. He deposed that on 26
December 1990 he was in the company of a certain woman and the complainant when he
was accosted by the appellants, who were clearly displeased that the woman was with
him. The second appellant alleged that the woman was his girlfriend. The complainant
attempted to pacify the appellants but this was to no avail and the first appellant aimed a
blow at him. The complainant was, however, able to avoid the blow. Edson Mambo then
left the scene and went to seek the help of the police. On his return he found the
complainant had been injured and was bleeding. He subsequently took him to hospital for
attention. Edson Mambo stated that he did not see the appellants’ co-accused, who was
acquitted, assault the complainant but in fact saw him attempting to restrain the others
from perpetrating the assault.
Faced with this evidence, the appellants each gave evidence.
[The learned judge then considered the appellant’s evidence and continued:]
In my view, the magistrate appears to have exercised his judgment properly in rejecting
the appellants’ evidence where it conflicted with the evidence of the State’s witnesses.
This was a serious assault which was perpetrated with the use
Page 69 of 1991 (2) ZLR 66 (SC)
of fists and the wielding of stones and which resulted in serious injuries. I am satisfied,
therefore, that there is no basis for interference with the magistrate’s conclusion on the
verdict he returned in this case.
The appellants also noted appeals against the sentence imposed on them, and it is my
view that there are aspects of the sentence which require comment.
An examination of cases of assault with intent to do grievous bodily harm lead me to the
conclusion that a term of imprisonment is invariably imposed, particularly where the
assault causes serious injury and/or disfigurement. The “tariff” approach to sentence is
gaining wider currency, if it is not already firmly ensconced on our judicial Benches. This
approach to sentence, while commendable, is not without its drawbacks; the principle one
being that it ignores the fact “that the determination of a sentence in a criminal matter” is
pre-eminently a matter for the discretion of the trial court. “In the exercise of this
function the trial judge has a wide discretion in deciding which factors — I here refer to
matters of fact and not of law — should influence him in determining the measure of
punishment”, per Van Winsen AJA in S v Fazzie & Ors 1964 (4) SA 673 (A) at 684A.
Elsewhere it has been said that:
“Though uniformity of sentences, that is, sentences imposed upon accused persons in
respect of . . . similar offences or offences of a kindred nature, may be desirable, the
desire to achieve such uniformity cannot be allowed to interfere with the free exercise of
his discretion by a judicial officer in determining the appropriate sentence in a particular
case in the light of the relevant facts in that case and the circumstances of the person
charged.”
(See S v Reddy 1975 (3) SA 757 (A) at 759H; and also S v Maseko 1972 (3) SA 348 (T)
at 351; S v Scheepers 1977 (2) SA 154 (A) at 158-159.) Sentences should as far as
possible be individualised and imprisonment alone should not be regarded as the only
punishment which is appropriate for retributive and deterrent purposes:
“Apart from the fact that . . . prisons are overcrowded and that the upkeep of prisons and
the maintenance of prisoners place a tremendous economic burden on the State, there are
also other disadvantages attaching to imprisonment. The convicted person is removed
from society, he is deprived of all responsibility and opportunities of acting
independently as a free member of the community, his life is disrupted, manpower is lost
and
Page 70 of 1991 (2) ZLR 66 (SC)
the prisoner comes into contact with elements which are . . . out of all proportion to that
which he possibly deserves. If the same purposes in regard to the nature of the offence
and the interests of the public can be attained by means of an alternative punishment to
imprisonment, preference should, in the interests of the convicted offender, be given to
the alternative punishments. . . . imprisonment is only justified if it is necessary that the
offender be removed from society . . . if the objects striven for by the sentencing
authority cannot be attained by any alternative punishment.”
(See S v Scheepers, supra, (translation) at 159). See also S v Holder 1979 (2) SA 70 (A);
S v Mantusse 1973 (3) SA 223 (T); S v Maxaku 1973 (4) SA 248 (T).) It is accepted
though that the deterrent and punitive aspects of sentence may, on appropriate occasions,
only find expression in the incarceration of the convicted person.
It is my view, however, that judicial officers should avoid the tendency to approach
sentence in the manner of an automaton. The approach of van den Heever J in the case of
S v Edward 1978 (1) SA 317 (NC) has not yet been extended to any person convicted on
an assault within this jurisdiction.
In Edward’s case, supra, the accused had assaulted another over a minor debt. He had a
previous conviction for assault and was sentenced, inter alia, to twelve months’
imprisonment with labour all of which was suspended on condition that he compensate
the complainant for the injury done to him. Section 297 of the South Africa Criminal
Code, which finds its equivalent in our s 337, was found to be wide enough in its
operation to allow for the punitive and reformative aspects of punishment to be given full
effect without necessarily disrupting his life by imprisonment alone.
The tendency to regard all cases of violence and, in particular, those of assault with intent
to do grievous bodily harm as falling within the scope of those offences where prison
sentences are desirable must be avoided. (See S v Kulati 1975 (1) SA 557 (E); S v
Makkahela 1975 (3) SA 788 (C).) There is also a tendency to regard “deterrent
sentences” and “exemplary sentences” as being just: the view being that it is equitable to
make an example of someone by punishing him more severely than he deserves so that
others will be persuaded to desist from emulating him. (See also S v Khulu 1975 (2) SA
518 (N) at 521; S v Matoma 1981 (3) SA 838 (A).) Not only is the argument specious
and fallacious; it is doubtful whether the claims supporting its alleged efficacy are
justified at all.
Page 71 of 1991 (2) ZLR 66 (SC)
This is not to say that judicial officers are to throw up their judicial arms in exasperation
and do nothing more. All that is being suggested is that judicial officers exercise their
judicial discretion to the full and acknowledge where necessary the shortfalls of existing
penal policy. The dynamism necessary for this approach is not achieved by reference to
alleged “tariffs” of sentences for specific categories of offences. Invariably when dealing
with sentences the court refers, or is referred to, innumerable cases which purportedly lay
down the limits of the range of appropriate sentences for the case actually before it.
All but the most dogmatic will confess the narrowness of this approach; for it becomes
apparent that it is by no means easy to treat the various cases as entirely uniform and
even less so to attempt to extract therefrom a means of propounding a precise statement
of principles which can be invoked before the courts which would guide it in respect of
the quantum of the sentence to be imposed. (See eg S v Ncube HB-19-86; S v Machetbi
1974 (2) SA 369 (T); S v Mutadza 1983 (1) ZLR 123 (HC); S v Ndlovu HH-197-87.
In the case of S v Machetbi, supra, it was held that in cases of assault with intent to do
grievous bodily harm there could be “no question of any fixed form of punishment,
subject to exceptions, being accepted as the starting point or general rule. The form of
punishment which is suitable in a particular case depends on the particular circumstances
of the case”.
The nature of the weapon used, the seriousness of the injury, the nature and the degree of
violence, and the medical evidence must all be considered; as must the factors discussed
in the paragraphs preceding this.
It is against the background of these thoughts that I turn now to deal with the issue of
sentence in the instant case: The first appellant was nineteen years old and the second
appellant twenty years of age when they were brought before the magistrate to face trial
in this matter. They were clearly youths, although not juveniles, but nevertheless
youthfulness should be weighed up in deciding upon an appropriate sentence. Persons in
their earlier twenties, although no longer children, cannot reasonably be expected to show
the same stability of character, responsibility and self-restraint as a fully mature man.
They are therefore not to be measured with the same yardstick as a mature adult.
Both the appellants are first offenders and it was the evidence of one of the witnesses
called by the State that after the incident was over they both asked for forgiveness.
Should they be incarcerated they both will lose their jobs. It would seem from the very
nature of the sentence passed by the trial magistrate that he
Page 72 of 1991 (2) ZLR 66 (SC)
was reluctant to send them to prison. It seems to me that to send them to prison in the
circumstances of this case is likely to cause them more harm than good.
The nature of the assault was nevertheless serious. The attack on the complainant was in
the nature of a gang attack, the force used was of moderate severity but it was a persistent
assault, the complainant suffered serious injuries, and the appellants only desisted when
other persons shouted for the police. I intend to balance these aggravating features against
the mitigating features and take into account the observations I have made earlier in this
judgment on some of the principles to be considered in arriving at an appropriate
sentence. I am satisfied that a fine, conjoined with a suspended sentence of imprisonment,
would meet the requirements of this case.
In the result, the appeals against conviction are dismissed, but the sentences imposed by
the trial magistrate are set aside and substituted with the following sentence:
“Each accused is fined $250 or, in default of payment, one month’s imprisonment with
labour.
In addition each accused is sentenced to two months’ imprisonment with labour, all of
which is suspended for three years on condition that the accused is not convicted within
that period of any offence of which assault is an element for which he is sentenced to
imprisonment without the option of a fine.”
Gubbay CJ: I agree.
McNally JA: I agree.
Jarvis & Palframan, appellants’ legal practitioners
MASASI v POSTS AND TELECOMMUNICATIONS CORPORATION
1991 (2) ZLR 73 (HC)
Division: High Court, Harare
Judges: Smith J
Subject Area: Civil application
Date: 26 July & 21 August 1991

Employment — whether Labour Relations Act 1986 applies to parastatal organisations

and in particular to the Posts and Telecommunications Corporation.
Interpretation of statutes — implicit repeal of earlier statutory provision by a later one.
Legislation — Labour Relations Act 1985 ss3, 17; Posts and Telecommunications
Corporation Act [Chapter 251]s 20, Sch paras 12 & 13; Parastatals Commission Act
1987 ss3, 18.
The applicant, an employee of the respondent, was purportedly dismissed by the
respondent without there being compliance with the provisions of the Labour Relations
Act and Regulations concerning termination of employment, it being argued that the
provisions of that Act do not apply to respondent in the light of specific powers given to
it in its establishing Act, inter alia, to hire and dismiss employees
Held, the provisions of the Labour Relations Act 1985 are intended to and do modify the
earlier provisions of the Posts and Telecommunications Corporation Act [Chapter 251] in
such a way as to limit the powers of termination of employment bestowed by that Act
upon the Corporation.
Semble: The Labour Relations Act 1985 applies to all parastatals unless specific
provision is made to the contrary.
Page 74 of 1991 (2) ZLR 73 (HC)
Cases cited:
Musendekwa v Posts & Telecommunications Corp HH-33-91 (not reported)
Nyakanyanga v Postmaster-General HH-19-89 (not reported)
City of Mutare v Ncube & Ors HH-139-87 (not reported)
Seward v The Vera Cruz (1884) 10 AC 59 (HL)
Re Chance [1936] Ch 266
M J Gillespie for the applicant
G S Wernberg for the respondent
SMITH J: The applicant was employed by the Posts and Telecommunications
Corporation (hereinafter referred to as “PTC”). He became Finance Director on 1 April
1986, and was appointed to the position of Deputy Postmaster-General on 1 August 1987.
The PTC purported to dismiss him from that post with effect from 30 April 1990.
Apparently the PTC Board had held a meeting on 26 March 1990 at which, after
scrutinising the applicant’s adverse performance reports, his submissions to the PTC
Board and other relevant documentation, it was resolved that he was not competent to
carry out the demanding duties of a Deputy Postmaster-General and therefore he should
be asked to resign or accept demotion to an unspecified job. At the time the PTC Board
had restructured the top management of the PTC, retaining the post of Postmaster-
General, dissolving the three posts of Deputy Postmaster-General and replacing them
with a post of Senior Deputy Postmaster-General, four posts of Deputy Postmaster-
General and a fifth provisional post of Deputy Postmaster-General. The new structure
became operative on 1 May 1990. The dismissal of the applicant was part of the exercise
by the PTC Board to fill the new posts with persons it considered suitable.
The applicant objected to his dismissal and applied to this court for an order that he be
reinstated. On 30 May, in case No. HC-1460-90, Sandura JP issued an order declaring
that the purported dismissal was unlawful and invalid and ordering the reinstatement of
the applicant. The PTC did not oppose the application. By letter dated 31 May 1990 the
applicant’s legal practitioners wrote to the PTC drawing its attention to the court order
and saying that the applicant would present himself for duty on Friday 1 June. The
response was a letter signed by the chairman of the PTC Board, dated 5 June, saying that
“for reasons previously stated you are hereby informed that with immediate effect you
are suspended (without loss of salary) from duty with the PTC until your status with the
Corporation has been determined. In the letter it was also stated that all the applicant’s
“perks” were withdrawn and that he was denied access to all PTC buildings otherwise
than as an ordinary member of the public. The applicant objected to his treatment but to
no avail.
Page 75 of 1991 (2) ZLR 73 (HC)
According to the opposing affidavit of the Postmaster-General, during the period that the
applicant had been removed from his post the entire department had been reformed and it
was regarded as a “disaster” that the applicant should be reinstated. So although the court
order of 30 May 1990 was complied with and he was officially reinstated, “he was
instructed to vacate his office and not to attend to the affairs” of the PTC. Had the
applicant accepted the instruction he would have been entitled to receive his salary and
allowances but because he refused to vacate his office he was suspended. The
Postmaster-General went on to say that although the PTC originally decided to dismiss
the applicant, it subsequently decided that it would not be fair to the applicant to do so
and that he should be given three months’ notice of termination of service. It was initially
believed that such a notice would require the authority of the Minister of Labour,
Manpower Planning and Social Welfare (hereinafter referred to as the “Minister of
Labour”) and application was made for such authority. However, because of the
judgment of Chambakare J in Musendekwa v The Posts and Telecommunications
Corporation HH-33-91 it was decided that such authority was not necessary and
accordingly notice of termination of service was given to the applicant without the
authority having been obtained.
[His Lordship then proceeded to consider the facts more fully.]
The principal issue to be decided in this case is whether or not the Labour Relations
(General Conditions of Employment) (Termination of Employment) Regulations, 1985
(SI 371 of 1985) applied to the PTC in January, 1991. In Nyakanyonga v The Postmaster-
General NO HH-19-89 Gibson J came to the conclusion that s 3 of the Labour Relations
Act, 1985 (No. 16 of 1985) did not by implication repeal s 20 of the Posts and
Telecommunications Corporation Act [Chapter 251] (hereinafter referred to as “Chapter
251”) and therefore the PTC could dismiss the employee concerned without reference to
the Minister of Labour. She said that she was fortified in her views by the opinions
expressed by Reynolds J in The City of Mutare v Ncube & Ors HH-139-87. In
Musendekwa v The Posts and Telecommunications Corporation HH-33-91 Chambakare J
concurred with the views expressed by Gibson J. Mr Wernberg has submitted that these
cases were correctly decided. Mr Gillespie, although initially conceding that he could not
challenge the basis on which those cases were decided, argued that the Nyakanyonga case
was wrongly decided and that the Musendekwa case was not relevant as the views
expressed were obiter. I intend to analyse the relevant provisions of Chapter 251 and the
Labour Relations Act, 1985 (No. 16 of 1985) and also those of the Parastatals
Commission Act, 1988 (No. 22 of 1988) and the Parastatals Commission (Repeal and
Consequential Provisions) Act, 1990 (No. 29 of 1990).
Page 76 of 1991 (2) ZLR 73 (HC)
The format of Chapter 251 is similar to that of most of the other Acts of Zimbabwe which
establish parastatals. Part I of Chapter 251 establishes the PTC, provides for a PTC Board
to administer the affairs of the PTC and deals with the appointment, etc of members of
the PTC Board. Part II sets out the functions, powers and duties of the PTC and Part III
deals with financial provisions. Part IV relates to employees of the State who were
transferred or seconded to the PTC when it was established and Part V contains
miscellaneous provisions. The Schedule sets out the powers of the PTC. With regard to
the powers of the PTC, s 20 of Chapter 251 provides as follows:
“20. For the better exercise of its functions the Corporation shall, subject to the
provisions of this Act, have power to do or cause to be done, either by itself or through its
agents, all or any of the things specified in the Schedule, either absolutely or
conditionally and either solely or jointly with others.”
The Schedule to Chapter 251 specifies a wide range of powers. They include acquiring,
establishing and constructing buildings, purchasing or acquiring movable
property,including vehicles, employing staff and constructing dwelling houses for
occupation by PTC employees.
Paras 12 and 13 of the Schedule provide as follows:
“12. To appoint, upon such terms and conditions as the Board may deem fit,
such persons as may be necessary for conducting the affairs and carrying out the
functions of the Corporation and to suspend or discharge any such persons:
Provided that the Corporation shall not suspend or discharge the
Postmaster-General without the approval of the Minister.
13. Subject to the provisions of paragraph 12, to pay to employees of the
Corporation such remuneration and allowances and bonuses and grant such leave of
absence as the Board may consider fit.”
In 1985 the Legislature enacted the Labour Relations Act, 1985. Section 3 of that Act
provides:
“3. This Act shall apply to all employers and all employees except those whose
conditions of employment are otherwise provided for by or under the Constitution.”
That Act sets out the fundamental rights of employees and provides for a
Page 77 of 1991 (2) ZLR 73 (HC)
multitude of other matters relating to labour relations. It provides for the formation and
functions of workers committees, trade unions and employment councils, collective
bargaining agreements, the determination of disputes and unfair labour practices and the
control of collective job actions, that is the declaration of essential services, lockouts and
strikes. In s 118 of that Act the term “essential service” is defined and para (b) of the
definition refers to “any communications system”. The intention of the Legislature is
clearly expressed in s 3 of that Act — the provisions of the Act, and of the regulations
made thereunder (because in terms of s 3(1) of the Interpretation Act [Chapter 1] the
phrase “this Act” includes any statutory instrument made and in force under the Act), are
to apply to all employers and employees except those whose conditions of employment
are provided for by or under the Constitution which would principally mean members of
the Public Service, the Zimbabwe Republic Police, the Defence Forces of Zimbabwe and
the Prison Service. Because of the wide ambit of the Labour Relations Act, 1985 it is
obvious why it was intended to apply not only to employers and employees in the private
sector but also to parastatals and their employees. If that were not the case employees of a
parastatal would not be able to claim the protection of the fundamental rights of
employees prescribed in Part II of that Act, the Minister of Labour would not be able to
impose wage and salary controls in terms of Part V of that Act over parastatals and the
provisions of that Act relating to workers committees, trade unions and collective
bargaining would not apply to parastatals or their employees.
In 1987 the Legislature enacted the Parastatals Commission Act, 1987. That Act
established a Parastatals Commission. Section 18 of that Act provided as follows —
“18. The provisions of —
(a) the Labour Relations Act, 1985, and statutory instruments made thereunder,
which relate to conditions of service, termination of service, dismissal from service and
disciplinary proceedings; and
(b) Part XIII of the Labour Relations Act, 1985;
shall not apply in relation to parastatals or their employees.”
Part XIII of the Labour Relations Act, 1985 provides for the determination of disputes
and unfair labour practices. The Parastatals Commission Act, 1985 having declared that
specified provisions of the Labour Relations Act, 1985, would no longer apply to
parastatals or their employees, provided in s 19 that an employee of a parastatal who was
aggrieved by the termination of his service or by any disciplinary proceedings instituted
against him could appeal to the
Page 78 of 1991 (2) ZLR 73 (HC)
Parastatals Commission and the board of the parastatal concerned was required to comply
with any direction given by the Parastatals Commission after it had considered the
appeal. I would mention, at this stage, that the Parastatals Commission Act, 1987 applied
only in relation to parastatals which had been designated in a statutory instrument. The
PTC had been so designated — SI 130 of 1988 — with effect from 29 July 1988, and
ceased to be so designated on 15 June 1990 — SI 116 of 1990. The Parastatals
Commission (Repeal and Consequential Provisions) Act, 1990 repealed the Parastatals
Commission Act, 1987, thus abolishing the Parastatals Commission. It provided that all
appeals from parastatal employees that were pending before the Parastatals Commission
were to be referred to the Labour Relations Board. Subsection (4) of s 3 of that Act
provides that where before 18 January 1991 the board of a parastatal to which the
Parastatals Commission Act, 1987, applied had terminated or purported to terminate the
appointment of a deputy general manager, that termination or purported termination shall
not be invalid solely on account of a failure by the board to consult the Parastatals
Commission in terms of s 11(1)(b) of the Parastatals Commission Act, 1987. The repeal
of the Parastatals Commission Act, 1987 repealed those provisions which had removed
designated parastatals from the ambit of certain provisions of the Labour Relations Act,
1985.
Thus, in relation to “designated parastatals”, the legal position, as I see it, was as follows.
Prior to 15 December 1985, the board of the parastatal could regulate the labour relations
with, and the conditions of service of, its employees as it thought fit, subject only to any
limitations imposed in the Act which established the parastatal or other legislation such
as the Audit and Exchequer Act [Chapter 168] and, of course, the common law. After that
however, the board of the parastatal had to observe the provisions of the Labour
Relations Act, 1985. Thus, for example, it was required to grant maternity leave in
accordance with the provisions of s 18 of that Act and also it was bound by regulations
made by the Minister of Labour in terms of s 17 of that Act. Accordingly, it could not
dismiss an employee without compliance with such regulations. With effect from 26 July
1988, when it was designated under the Parastatals Commission Act, 1987, the
constraints on dismissal of employees imposed by the Labour Relations (General
Conditions of Employment) (Termination of Employment) Regulations, 1985 no longer
applied to the parastatal. It had unfettered powers to dismiss any employee (other than the
general manager or a deputy general manager) subject to compliance with any
requirements of the Act which established the parastatal and the conditions of service of
the employee concerned, but an employee who was aggrieved by the termination of his
service had a right of appeal to the Parastatals Commission. That situation
Page 79 of 1991 (2) ZLR 73 (HC)
pertained until 15 June 1990 when the statutory instrument designating the parastatal was
repealed. With effect from that date, the board could no longer dismiss employees
without compliance with the relevant provisions of the Labour Relations Act, 1985 or
regulations made thereunder. Any appeals to the Parastatals Commission in respect of
dismissals prior to 15 June 1990 which had not been determined when the Parastatals
Commission was abolished were referred to the Labour Relations Board.
Mr Wernberg pointed out that subs (2) of the said s 17 provides that regulations made by
the Minister of Labour in terms of that section shall prevail over the provisions of any
other statutory instrument or of any agreement or arrangement whatsoever, and does not
provide that the regulations will prevail over any Act of Parliament. Therefore the Labour
Relations (General Conditions of Employment) (Termination of Employment)
Regulations, 1985, which were made in terms of s 17 of the said Act, do not prevail over
the provisions of Chapter 251 and so do not bind the PTC. He also pointed to the fact that
s 20 of Chapter 251, which I have set out earlier, provides that the PTC may exercise the
powers specified in the Schedule either absolutely or conditionally. In Nyakanyanga’s
case, supra, Gibson J, relying on Seward v The Vera Cruz 100 Appeal Cases at p 68, held
that the general provisions of s 3 of the Labour Relations Act, 1985 could not have the
effect of repealing by implication the specific provisions of s 20 of Chapter 251. I must
confess that I cannot agree with Mr Wernberg’s submissions or the conclusions of
Gibson J. I do not consider that s 20 of Chapter 251 has the effect of conferring on the
PTC power to do any of the things specified in the Schedule to that Act “arbitrarily,
without external control”, which is one of the meanings given to the word “absolutely” in
the Shorter Oxford English Dictionary. In the context, “absolutely” must mean
“unconditionally”. To hold that the PTC could exercise the powers specified in the
Schedule to Chapter 251 “without external control” would lead to absurd results. It would
mean, for example, that the PTC could erect post offices or staff houses wherever and
however it wished, without regard to any town planning requirements in the Regional
Town and Country Planning Act, 1976 (No. 22 of 1976) or any municipal building by-
laws. It seems to me that the powers conferred on the PTC by s 20 of Chapter 251 may
only be exercised subject to compliance with the laws of Zimbabwe, both statutory and
common law. In Seward’s case, supra, to which Gibson J referred, Lord Selbourne at p
68 expressed the principle:
“Where general words in a later Act are capable of reasonable and sensible application
without extending them to subjects specially dealt with by earlier legislation . . . that
earlier and special legislation is not to be held
Page 80 of 1991 (2) ZLR 73 (HC)
indirectly repealed, altered or derogated from merely by force of such general words,
without any indication of a particular intention to do so (emphasis added).”
As I have endeavoured to point out earlier, I consider that there is a clear indication in s 3
of the Labour Relations Act, 1985 of an intention to modify the powers conferred on an
employer by the common law, or on a parastatal by the Act creating the parastatal, in
relation to employees Thus paras 12 and 13 of the Schedule to Chapter 251, which I have
set out earlier, empower the PTC to appoint persons “upon such terms and conditions as
the Board may deem fit” and pay its employees “such remuneration and allowances and
bonuses and grant such leave of absence as the Board may think fit.” The intention of the
Legislature in enacting the Labour Relations Act, 1985, was, in my view, to modify the
unfettered discretion conferred on the PTC to fix conditions of service for its employees.
The Legislature wanted, for example, to require the PTC to grant maternity leave to its
employees (s 18 of the Labour Relations Act, 1985), whether or not the PTC Board
deemed such leave to be fit. The Legislature intended to impose wage and salary controls
in terms of Part V of the Labour Relations Act, 1985, over the PTC, whatever the PTC
Board might think to be fit. It follows therefore, in my opinion that the Legislature
intended to modify or regulate the powers conferred by the said para 12 on the PTC
Board to suspend and dismiss employees, but not to repeal or remove them.
Where earlier and later statutes can reasonably be construed in such a way that both can
be given effect to, this must be done — see Re Chance [1936] Ch 266 per Farwell J: “If
it is possible it is my duty so to read this section . . . as not to effect an implied repeal of
an earlier Act.” In the City of Mutare case supra at p 5 of the cyclostyled judgment
Reynolds, J expressed himself thus:
“It is a well-recognized rule of statutory construction that ‘where there are different
statutes in pari materia, though made at different times, or even expired and not referring
to each other, they shall be taken and construed together, as one system and as
explanatory of each other’”.
In that case, however, he was dealing with a section of the Urban Councils Act [Chapter
214], as amended, which contained a specific provision, inserted after the enactment of
the Labour Relations Act, 1985, that, notwithstanding any other law to the contrary, if the
consent of the Minister to whom the administration of that Act had been assigned has
been obtained for the discharge of an employee of a council, the council need not obtain
the consent of any other Minister or authority. The intention of the Legislature to override
the relevant
Page 81 of 1991 (2) ZLR 73 (HC)
provision of the Labour Relations Act, 1985 or regulations made thereunder could not be
more clearly expressed.
In my view, for the reasons set out above, I consider that the purported dismissal of the
applicant by the PTC Board in January 1991 was not valid because of the failure by the
PTC Board to comply with the Labour Relations (General Conditions of Employment)
(Termination of Employment) Regulations, 1985.
[His Lordship then reverted to the facts, and concluded:]
It is ordered that:
(1) the suspension of the applicant on 5 June 1990 and the purported
termination of his employment with effect from 31 January 1990 were unlawful;
(2) the respondent pay to the applicant the difference between the salary paid
to him after 5 June 1990 and the amount of the salary, allowances and other benefits that
would have been paid to him after that date had he remained in the post of Deputy
Postmaster-General and not been suspended and subsequently discharged, until such time
as he is lawfully discharged or reinstated;
(3) the respondent apply to the Minister of Labour, Manpower Planning and
Social Welfare, within 30 days of the date of this order, for approval of the termination of
his employment and if no such application is made or such approval is not obtained, the
respondent shall reinstate the applicant in a post of Deputy Postmaster-General;
(4) the respondent pay the applicant’s costs.
Winterton, Holmes & Hill, applicant’s legal practitioners
Coghlan, Welsh & Guest, respondent’s legal practitioners
MOBIL OIL ZIMBABWE (PVT) LTD v CHISPITE SERVICE STATION (PVT) LTD
1991 (2) ZLR 82 (SC)
Division: Supreme Court, Harare
Judges: Manyarara JA, Korsah JA & Ebrahim JA
Subject Area: Civil appeal
Date: 29 July & 3 September 1991

Landlord and tenant — statutory tenant — grounds for eviction — Commercial Premises
(Rent) Regulations 1983 — s 22 — owner wishing to use premises itself — whether such
constitutes good and sufficient grounds for eviction — time in which to vacate.
Property — acquisition — whether the eviction of a statutory tenant is an acquisition of
the goodwill of that tenant.
The appellant, a petroleum company, owned the property on which was situated a service
station. The respondent had for many years been a tenant and had operated the service
station. The written lease between the parties expired and the respondent remained in
occupation as a statutory tenant. The parties sought to negotiate the terms of a new lease,
but no agreement was reached on several aspects, including the amount of rental to be
paid. In addition, the appellant undertook extensive and costly alterations to the premises,
which alterations were not to the satisfaction of the respondent. In the light of the
disagreement, the appellant indicated to the respondent that it would operate the service
station itself. On this basis, the appellant applied for the eviction of the respondent,
contending that its wish to use the premises constituted good and sufficient grounds for
the eviction in terms of s 22 of the Commercial Premises (Rent) Regulations 1983. The
respondent opposed the application claiming that the true motive behind the application
was the wish of the appellant to have more rental paid by the respondent for the premises.
The High Court found in favour of the respondent on the basis that it was the
respondent’s refusal to pay a higher
Page 83 of 1991 (2) ZLR 82 (SC)
rental that was the motive for the application. The appellant appealed. In the appeal, the
respondent also argued that the eviction would constitute an expropriation of its goodwill
in the premises.
Held, where a land-owner wishes to use the premises for its own purposes, the court
enquires only as to its bona fides, and not as to the reasons why it decided to use the
premises for its own purposes.
Held, on the facts of the present matter, the decision by the appellant to use the premises
for its own purposes was a legitimate and bona fide commercial decision, and thus
constituted good and sufficient cause for the purposes of the Regulations.
Held, further, the eviction did not constitute an expropriation of any property belonging
to the respondent.
Held, there was no power vested in a court to give a statutory tenant a reasonable period
to vacate the premises in question.
Cases cited:
Boka Enterprises (Pvt) Ltd v Joowalay & Anor 1988 (1) ZLR 107 (SC)
Newman v Biggs 1945 EDL 51
Guthrie Holdings (Pvt) Ltd v Arches (Pvt) Ltd 1989 (1) ZLR 184 (SC); 1990 (2) SA 62
(ZS)
Moffat Outfitters (Pvt) Ltd v Hoosein & Ors 1988 (2) ZLR 148 (SC)
Johannesburg Board of Executors & Trust Co Ltd v Gordon 1947 (1) SA 92 (W)
Checkers Motors (Pvt) Ltd v Karoi Farmtech (Pvt) Ltd 1986 (2) ZLR 246 (SC)
Government of Malaysia & Anor v Selangor Pilot Asscoiation [1978] AC 337 (PC)
Bestafoam (Pvt) Ltd v Tynedale (Pvt) Ltd S-54-88 (not reported)
Commissioner of Taxes v F 1976 (1) RLR 106 (A); 1976 (2) SA 653 (RA)
A P de Bourbon SC for the appellant
M J Gillespie for the respondent
MANYARARA JA: The appellant is a limited liability company carrying on the business
of distributing its petroleum products through various outlets in the country. One of these
outlets is situated at Lot 8 Chisipite Township of Chisipite (Harare) and the appellant is
the registered owner thereof. It is from this outlet (“the leased premises”) that the
respondent, also a limited liability company, has for many years operated the business of
a retail petrol service station and garage workshop. Mr Cyril Start is the managing
director and sole beneficial shareholder of the respondent.
Page 84 of 1991 (2) ZLR 82 (SC)
The relationship between the parties was conducted in terms of a written lease agreement,
termed an operating lease, the last of which expired on 31 January 1988. Thereafter, the
respondent became a statutory tenant in terms of the Commercial Premises (Rent)
Regulations 1983 (SI No. 676 of 1983) (“the Regulations”). By consent of the parties, the
appellant commenced a major reconstruction of the leased premises on 23 May 1988. The
rent payable in terms of the expired lease before the commencement was $1 639 per
month. This was waived during the building operations to compensate the respondent for
the disruption of his business. The building was completed on 21 April 1989 at a cost of
$622 075 before there had been any extension or renewal of the operating lease.
Major disagreements had arisen between the parties and these culminated in the appellant
applying to the High Court for an eviction order. The application was dismissed with
costs. It is against the dismissal that the appellant, represented by Mr de Bourbon, appeals
to this court. Mr Gillespie appears for the respondent.
The chronology of the events is as follows:
During the currency of the operating lease, a “rent freeze” was introduced with effect
from 24 June 1987 by the Emergency Powers (Control of Prices, Service Charges and
Rents) Regulations 1987 (SI No. 252A of 1987). This was extended on 20 May 1988 and
finally repealed on 21 July 1989.
An offer for the extension of the operating lease had been made on 31 May 1988 but the
matter was not finalised. Thereafter, a new operating lease commencing on 1 December
1988 was offered. The respondent rejected the rent proposal made in the offer and made a
counter-offer which was not acceptable to the appellant either.
It appears that in July 1989, after the rent freeze was lifted, the appellant applied to the
Rent Board for an increase in the rental, but the application was not heard because the
Board wanted the parties to negotiate the issue between themselves. It is on such a basis
that the case must be decided.
Several meetings were held by the parties and their legal representatives to negotiate a
new operating lease, as appears from the considerable amount of correspondence which
passed between them. The difference between the parties on rent was not great. The
appellant wanted $3 000 per month, rising to $4 500 per month in the third year of the
proposed lease. The respondent offered
Page 85 of 1991 (2) ZLR 82 (SC)
$2 250 per month, rising to $3 300 per month over the same period. At one stage the
appellant offered to reduce the rent provided the duration of the operating lease would be
one year but nothing was agreed. The appellant also hired valuation experts by the name
of Knight, Frank and Rutley, whose estimate of a fair rental was $5 850 per month. This
was rejected by the respondent on the basis to which Mr Start averred as follows:
“The respondent decided that it could not adequately respond to the applicant until its
financial statements for the period 1st April to 30th September, 1989, had been prepared
so that it could see how its business had done during this period which started at a time
when the re-building was virtually complete, and ended when the programme had to all
intents and purposes been completed. The respondent instructed a chartered accountant,
Mr D Playford, to prepare a report based on the accounts, and with the valuation of
Knight, Frank and Rutley in mind. Mr Playford’s report dated 20th November 1989, is
annexed hereto marked Annexure T. His conclusion based on the accounts was that if the
applicant increased the rent by the proposed amount there would be no economic
business incentive to operate the service station.”
The respondent requested further meetings and the appellant acceded to the request. Then
on 17 January 1989 one of the appellant’s directors, Mr Burr, addressed the following
letter to the respondent:
“Dear Sirs
TENANCY : LOT 8 CHISIPITE TOWNSHIP
We refer to numerous discussions with you and correspondence between our respective
legal practitioners during the past year.
It is evident that our negotiations have led nowhere and that any offers which have been
made to you by Mobil have proved to be unacceptable.
All such offers are accordingly withdrawn.
We hereby give you notice that we are terminating your tenancy on 31 March 1989, on
which date our representative will inspect the premises and collect all keys from you.
Should you wish to vacate on an earlier date, we will not raise any objection provided we
are given reasonable notice of your intentions.
Please acknowledge receipt in the space provided at the foot of this letter.
Yours faithfully
R E BURR
DIRECTOR”
Page 86 of 1991 (2) ZLR 82 (SC)
Nonetheless, more meetings between the parties followed until 30 November 1989 when
Mr Burr finally wrote to the respondent as follows:
“Dear Sir
RE: LEASE CHISIPITE SERVICE STATION (PRIVATE) LIMITED AND MOBIL
OIL ZIMBABWE (PRIVATE) LIMITED
Despite our letter to your lawyers dated 27 November 1989 we have had no response to
the proposals put forward by us at the meeting held on 22 August 1989.
We have been unable to reach agreement on a rental and Mobil cannot afford to keep on
losing money. To avoid direct monthly loss we have no option but to run the Service
Station ourselves.
We hereby give formal notice to terminate the lease on 31 January 1989. Our salesman
will attend to the handover at close of normal business on that date.
Yours faithfully
R E BURR
DIRECTOR”
There is a typographical error in the penultimate sentence, where the year referred to is
obviously 1990 and not “1989”.
As the respondent was not willing to go voluntarily, the appellant applied to the High
Court for an eviction order. The founding affidavit was sworn by the appellant’s legal
adviser, Ms Dulcie Mapondera, who averred in paragraph 14 of the affidavit as follows:
“14. In the absence of an agreement, in order to protect its investment and turn it to
account profitably, the applicant decided to operate its own service station business with
its own staff from the site with effect from 1 February 1990.”
The deponent averred further that the decision was not isolated but based on a large
number of factors, including —
(a) The highly competitive nature of the petroleum distribution industry;
(b) The need to link the cost of investment in a retail outlet efficiently and properly
with the sales from such an outlet;
Page 87 of 1991 (2) ZLR 82 (SC)
(c) The high cost of building and maintaining a modern service station;
(d) That the appellant corporation’s policy is for its world-wide affiliates to operate
their own service stations when it is advantageous to do so and this was a growing trend
in the organisation;
(e) That in keeping with such a trend the appellant had since built a new service
station in Bulawayo which it was operating with its own staff; and
(f) That the appellant’s experience was that in many cases service stations operated
by a petroleum company were more efficient and profitable and gave a better economic
return than premises let to dealers.
The deponent mentioned five service stations which she averred were operated by its
competitors within the Harare area and that its Malawi affiliate was operating fifteen
service stations in that country.
The application was opposed. The ground of opposition emerges from the judgment
dismissing the application, which reads as follows:
“It was argued for the applicant that refusal to pay increased rental is not the sole reason
for wanting (the) respondent ejected. Mr de Bourbon concedes, however, that it ‘was one
of the factors that led to the decision by (the) applicant to run the business itself’ and goes
on to say that ‘it is not by itself the basis of the present application’, and he says ‘A
distinction must be drawn between an instance where a landlord wishes to evict a
statutory tenant who will not pay more rental and the case where a landlord decides to use
the premises for his own purposes — albeit motivated in part because the statutory tenant
will not pay more rental’, and that the latter is the position in this matter. With the
greatest of respect, in the circumstances of this case, that is a distinction without a
difference. For whichever way one looks at the facts in this case the refusal to pay an
increased rental or rather the failure of the parties to agree on an increased rental is the
sine qua non of everything that followed, including this application.”
Mr de Bourbon takes issue with the learned judge’s finding on the broad basis which he
summarised in his written heads of argument as follows:
“If the appellant had not offered a three-year lease in the first place, and had sought the
immediate eviction of the statutory tenant on the basis that it wished to occupy the
premises itself, and run its own forecourt business,
Page 88 of 1991 (2) ZLR 82 (SC)
and thereby recoup its expenditure on the improvements, there can be little doubt that the
appellant would have succeeded. The fact that it offered the lease should not in any way
diminish the view of this Honourable Court as to its bona fides. Had the respondent
committed itself to a three-years lease, on terms as to rental which went some way
towards recognising the appellant’s expenditure on improving the property, the appellant
would have had an incentive to contribute to the increased sales in the forecourt through
training of staff, displays and the like. Because of the refusal by the respondent to enter
into a three-year lease at a greater rental (albeit a rental below the true market rental), the
appellant was bound to recognise that its commercial interests in maximising forecourt
sales could only be served by taking possession of the service station and running it itself,
thus guaranteeing the enhancement of the sale of its own products.”
Mr de Bourbon’s first point is that, in order to constitute good and sufficient grounds for
evicting a tenant of commercial premises, it is enough if the owner establishes his bona
fide intention to utilise the premises for his own purposes. Boka Enterprises (Pvt) Ltd v
Joowalay & Anor 1988 (1) ZLR 107 (SC).
The validity of Mr de Bourbon’s point is no longer open to doubt on the authority he
cited which has settled the law thereon. His submission is that the learned judge below
failed to correctly analyse the factual situation and to apply the proper interpretation of
the legislation to that situation and thus arrived at a wrong decision.
Mr Gillespie’s response is that the law prohibits the ejectment of a statutory tenant unless
the reasons for requiring possession are other than that the lessee has declined to agree to
an increase in rent. And:
“The forbidden grounds for ejectment are designedly drafted in two sub-paragraphs in
order to prevent frustration of the legislative intent. Thus if a desire to use one’s own
premises for oneself were in any case sufficient cause, only paragraph (ii) would be
required. The inclusion of paragraph (i) shows that even if the premises are not to be re-
let it can never amount to good and sufficient cause if the motivation for the ejectment is
dissatisfaction with the rent.”
Gubbay JA (as he then was) explained in the Boka case supra that in the absence of a
definition of “good and sufficient grounds” in the Regulations, other than the exclusion of
refusal by a lessee to pay a higher rental and the lessor’s wish to let the premises to a
third party, each case of an owner seeking the use of leased
Page 89 of 1991 (2) ZLR 82 (SC)
premises must be assessed on its own merits. “The court would want to know the precise
use to which it was intended to put the premises”, he said. Having ascertained the
intended use, a court should take this and any other factors of relevance to the application
into account in exercising a value judgment either to refuse or grant the order.
In Newman v Biggs 1945 EDL 51, one of the authorities referred to with approval in the
Boka case supra Pittman JP, at 54, said:
“. . . it is difficult to see what more can ordinarily be required of a claimant than that he
should assert his good faith and bring some small measure of evidence to demonstrate the
genuineness of his assertion. He can normally scarcely do more, and it rests with the
lessee resisting ejectment to bring forward circumstances casting doubt upon the
genuineness of his claim.”
It is these principles which must be applied to the instant case and I proceed to do so:
The appellant owns the leased premises and its business is that of distributing its products
therefrom. The decision on how to do so to the appellant’s best advantage must be left to
the appellant, as Mr Start of the respondent himself acknowledged in his lengthy
opposing affidavit. This admits that the decision to take over the premises “was not
isolated (but) based on (the) large number of factors” deposed to in the founding
affidavit. Of significance are Mr Start’s admissions —
(a) That the petroleum distribution industry is highly competitive between very
efficient competing companies; and
(b) That a petroleum company looks to maximising the sale of its products from
various retail outlets and, provided it is achieving satisfactory sales of its products, it will
not seek to take over the operation of a retail outlet. (Emphasis provided).
It is common cause that both parties were perfectly happy with the arrangement between
them during the currency of the operating lease agreement which expired on 31 January
1988; that the appellant was anxious to extend the lease agreement but the matter was not
finalised; that thereafter a new lease was offered and rejected; that this was followed by
protracted negotiations before the exercise was abandoned as hopeless; and that it was
only in November 1989 that the appellant’s Mr Burr announced that because of the
impasse in the negotiations the appellant found itself “with no option but to run the
service station ourselves”.
Page 90 of 1991 (2) ZLR 82 (SC)
Further correspondence exchanged by the parties at the time makes the point clearly. On
31 January 1989 the respondent’s Mr Start addressed a letter to the appellant’s Mr David
Seaman in the following terms:
“Dear Dave,
I refer you to our telephone conversation this morning.
I am quite prepared to hold direct negotiations concerning a three year lease with yourself
and Ralph Burr which will exclude our lawyers.
I must reserve my right to consult with my lawyers should our negotiations fail to reach
any agreement.
I look forward to hearing from you.
Yours sincerely
(CF Start) (The emphasis is mine).”
Mr Seaman’s reply thereto was as follows:
“Dear Cyril,
I am in receipt of your letter dated 31st January 1989 and am interested in the substance
of the letter which does not coincide with my recollection of the telephone conversation.
I do recall quite clearly our telephone conversation, however, have no recollection at all
of us agreeing to hold direct negotiations concerning a three-year lease.
I did, however, stress that it was important if we are to get together that our differences
should be resolved in a business-like manner without reliance on lawyers other than for
checking legal contents of a finally agreed legal text.
Fundamental issues require to be resolved and unless that is clearly understood there is
little point in us getting together.
Your letter by implication clearly states that if we fail to reach an agreement, that
recourse to lawyers will be necessary to resolve the key problem areas. Given the past
history of problem areas that have resulted in your referring them to your legal advisers, I
think it would be desirable for you to set down on a piece of paper the key points that you
wish to discuss and to what extent you are prepared to compromise on these points so that
we can determine whether or not there is any common ground for us meeting.
In the meantime our lawyer will continue to prepare a response to your letter, setting out
Mobil’s grounds for your vacating the premises.
Yours sincerely,
DAVID B. SEAMAN (The emphasis is again mine.)
Page 91 of 1991 (2) ZLR 82 (SC)
It seems to me that the respondent had never been in any mood to reach any
accommodation with the appellant either on rent or on any other of the latter’s proposals.
Mr Start deposed to his state of mind as early as July 1988 as follows:
“I decided to let the matter of the lease rest until the building operations had been
completed and I could see how they turned out.”
They turned out not to be to his liking and it is hardly surprising that agreement on a new
operating lease was doomed from the outset of the negotiations.
In this regard, it is common cause that until then the relationship between the parties had
been generally a “harmonious” one, as Mr Gillespie submitted. Ms Mapondera’s
answering affidavit avers as follows:
“By the 14th December 1989 the respondent’s intransigent and belligerent attitude, which
had worsened since May 1988, clearly demonstrated to the applicant that the desirable
relationship between petroleum company and dealer had soured beyond reconciliation. It
had become the applicant’s best interest to operate its own service station which is the
applicant’s firm resolve and the cause of this application arising from its wish to avoid
losses and operate profitably as stated in paragraph 14 of its founding affidavit.”
The respondent was perfectly entitled to disapprove of what the appellant had achieved in
its redesigning of the premises. But this serves to confirm, not destroy, the appellant’s
claim that it bona fide intended to maximise the sales of its products by rebuilding the
premises as it did. My respectful view is that the learned judge erred in disregarding the
facts I have summarised.
There was disagreement over rental, it is true. But rent was only one of the several issues
separating the parties. There was the duration of the proposed lease, the solus agreement,
and the business relationship of the parties to consider, on which Mr de Bourbon has
made the following submissions:
“7. Regard must also be had to the fact that from the appellant’s point of view
there is no security in having a statutory tenant. A statutory tenant can vacate at any time.
A tenant on a lease must honour the terms of the lease, or pay damages for any breach by
non-performance of the length of the lease. It was clearly not in the interests of the
appellant to have to deal with a statutory tenant who could cause considerable
embarrassment and possibly financial loss to the appellant at very short notice on
termination of the lease. It is respectfully submitted that the
Page 92 of 1991 (2) ZLR 82 (SC)
learned Judge below failed to appreciate this vital distinction in the
relationship between the appellant and the respondent.
8. Furthermore, the lease agreement also constitutes a solus agreement. The
purpose for such a solus agreement is to ensure that the appellant’s products are
marketed, not simply to the exclusion of other competitors, but to the mutual advantage
of both the appellant and the respondent. Thus a formal agreement is necessary in these
circumstances.”
And:
“14. To the extent, if any, that the decision to operate the service station itself
was as a result of a failure by the parties to enter into a new lease agreement, it is
respectfully submitted that the appellant has made a normal and valid commercial
business decision in determining that it rather than the respondent should run the service
station. In order to maximise the return on its investment in the service station, the only
realistic commercial decision that the appellant could make was to run the service station
itself.”
I find merit in the submissions. Mr Justice Gubbay in the Boka case supra laid down the
correct approach to applications of this nature at 115H-116A of the reported judgment as
follows:
“Section 22(2) of the Regulations provides that no order for the recovery of possession of
commercial premises or for the ejectment of the lessee therefrom shall be made ‘unless
the court is satisfied that the lessor has good and sufficient grounds for requiring such
order’ (my emphasis). I share the view of the learned judge that the wording is clear and
unambiguous. It is the position of the lessor that is to be looked to. If he has good and
sufficient grounds that is the end of the matter. Nothing is said about the lessee, his needs
or any other circumstance. That this is the meaning intended by the law-maker is fortified
by reference to paras (i) and (ii) of subs (2) of s 22, both of which relate solely to grounds
for requiring the order.”
I respectfully suggest that that is good law and that the learned judge a quo in this case
misled himself by overlooking the appellant’s position.
It follows that Mr Gillespie’s contention that it was proper to refuse an eviction order
because “part of the landlord’s motivation is a refusal by the tenant to pay
Page 93 of 1991 (2) ZLR 82 (SC)
a higher rental” must be rejected as unsound. Once an owner has established good and
sufficient grounds for eviction, other than the prohibited grounds, the lessee loses his
protection under the Regulations, and I am satisfied this is what has happened in this
case. See Guthrie Holdings (Pvt) Ltd v Arches (Pvt) Ltd 1989 (1) ZLR 184 (SC); 1990
(2) SA 62 (ZS).
I respectfully suggest that the learned judge misled himself by failing to appreciate that
this was not a case of “an unscrupulous landlord” seeking to increase the rent
unjustifiably. It is a case of a large business concern which has invested a considerable
sum of money in redesigning the premises for a specific legitimate purpose, which had to
that end forgone rental during the rebuilding of the premises, which had thereafter sought
to recoup some (only a small portion) of the investment by a negotiated increase in rental
but was prevented from doing so by the respondent’s insistence on dictating what that
level of increase should be, despite the informed opinion of a valuator that the appellant
was asking for a rental which was well below the open market rental value of the rebuilt
premises. See Moffat Outfitters (Pvt) Ltd v Hoosein & Ors 1986 (2) ZLR 148 (SC) at p
151D, where it was taken for granted that an increase in rental would be inevitable after
the reconstruction of the premises concerned.
If I may respectfully rephrase what Millin J stated in Johannesburg Board of Executors &
Trust Co Ltd v Gordon 1947 (1) SA 92 (WLD) at 96, the respondent has been quite
unable to deny any of the material facts on which the appellant relied. The opposition to
the eviction order amounts to no more than a statement that eviction should be refused
because it would be better that the appellant should be denied the opportunity of
recouping its investment than that it (the respondent) should vacate the premises. Millin J
continues as follows:
“The question is not who will suffer the greater hardship, the applicant if the respondent
is not ejected, or the respondent if he is ejected; the question is simply whether the
applicant has shown that it reasonably requires the leased premises for its own use.”
I suggest that in the present cases the appellant has discharged the onus thus resting upon
it successfully and is entitled to the eviction order it sought. See also Checkers Motors
(Pvt) Ltd v Karoi Farmtech (Pvt) Ltd 1986 (2) ZLR 246 (SC).
Mr Gillespie’s alternative argument is that, quite apart from the rent element, the
appellant’s intention to use the premises itself is not in all the circumstances reasonable.
His first point under this head of argument is that the appellant’s
Page 94 of 1991 (2) ZLR 82 (SC)
move would “amount to an acquisition, for no payment, of a substantial part of the
respondent’s business”. Government of Malaysia & Anor v Selanger Pilot Association
[1978] AC 337 (PC) at 354H-355B.
Briefly, the respondents in Selanger’s case sold their pilot launches and equipment to the
Malaysian Port Authority in circumstances which Lord Salmon, in a dissenting opinion,
viewed at p 352G as follows:
“This appeal turns upon the true answer to the question whether the law enacted by the
amendments to the Port Authorities Act 1963 was in breach of article 13(2) of the
Constitution. This, to my mind, depends upon whether that law provided directly or
indirectly for the compulsory acquisition by the authority of the respondents’ business
which had been in existence since 1946 and included amongst its assets its goodwill and
prospects of making future profits.”
Lord Salmon summarised his minority view of the position at the passage cited by Mr
Gillespie, as follows (pp 354H-355B):
“Apparently April 30, 1972, was the last day upon which the respondents carried on their
business. Their customers whose vessels entered the port on that day would have seen the
respondents’ business being carried on as usual. On the following day nothing would
appear to have changed. The same launches with the same pilots would have been
carrying out the same servies for the respondents’ erstwhile customers as they had always
done. It would in my view be wholly unrealistic to say that the authority had not acquired
the respondents’ business; and acquired it as a result of the amending Act of 1972. If a
customer had asked the respondents whether they had any news they could no doubt have
truly replied: ‘Yes, bad news. The authority has today taken over our whole business.
They are employing our pilots and using our launches. It is true that they are graciously
going to pay us for the launches but they refuse to pay us any compensation for the loss
of our goodwill and our prospect of making future profits which they have now
acquired.’ If they were then asked how did this acquisition come about, the respondents
could reply, in my view, truly: ‘Solely as the inevitable result of the recent legislation
passed by the government’.”
It will be seen that, even assuming that the learned Law Lord was right, his reasoning
does not apply to the present case.
As already mentioned, the present respondent’s opinion is that the rebuilt
Page 95 of 1991 (2) ZLR 82 (SC)
premises are not suited to its business. Therefore, there is nothing of the respondent’s
“property” which the appellant will “acquire” by taking over the leased premises. The
respondent may freely take that elsewhere.
Mr Gillespie’s next point is that the appellant’s usual business is to enter into a solus
agreement and not to run a service station itself. This has already been considered when I
dealt with the respondent’s averment that a petroleum company will not seek to take over
the operation of a retail outlet provided it is achieving satisfactory sales of its products
therefrom. Mr Start’s opinion is that the position reached when the building was
completed satisfied this requirement for the taking over of the leased premises and that
puts an end to the matter.
The same goes for Mr Gillespie’s point that a solus agreement is more than a mere lease,
which is common cause anyway.
The respondent’s undertakings under the expired operating lease agreement include the
following:
“UNDERTAKINGS BY THE LESSEE
Throughout the period of this Agreement and any renewal hereof the Lessee shall:
4.1 Use the Premises only as a garage, petrol filling station and for no other
purposes without the prior written consent of Mobil.
4.2 Subject to the provisions of Clause 6 hereof relalting to vis major or force
majeure, only sell, store, handle or distribute in the Premises only petroleum fuels
supplied by Mobil or its nominee.
4.3 Not without the prior written consent of Mobil (which consent shall not be
unreasonably withheld) in any manner whatsoever trade or deal in lubricating oils,
greases and other petroleum products which are manufactured or supplied by a
manufacturer or supplier, other than Mobil, of petroleum fuels.
Any such petroleum products shall be displayed only in such positions and
in such manner as Mobil shall from time to time approve.
4.4 Display or permit the display on all parts of the Premises only such
advertising signs and devices as Mobil shall approve in writing.
4.5 Carry on businss on the Premises and maintain therein standards of service
in accordance with the reasonable requirements of Mobil.”
Whilst the appellant’s main undertaking is as follows:
Page 96 of 1991 (2) ZLR 82 (SC)
“UNDERTAKING BY MOBIL
Mobil undertakes that, the Lessee paying the rent and otherwise observing the terms and
conditions of this Agreement, Mobil shall:
5.1 Subject to the provisions of Clause 6 hereof provide the Lessee with
petroleum products required by the Lessee for the business carried on on the Premises in
accordance with the custom and usage of the trade, on terms and conditions applicable
from time to time to businesses of the same class in the same or similar locality, at
Mobil’s wholesale list price ruling on the date of delivery.”
Clause 6 exempts either of the parties from liablity for failure to honour any of its
undertakings by reason of “vis major” or “force majeure”.
It will be evident that agreement was necessary on the respective undertakings of the
parties before a new operating lease could be concluded, which never happened until
negotiation was abandoned.
Finally, Mr Gillespie argues that even if the appellant does not “acquire” the respondent’s
property it will still unreasonably deprive the latter of its enjoyment by ejectment. He
relies on Bestafoam (Pvt) Ltd v Tynedale (Pvt) Ltd S-54-88 (unreported).
With respect, Mr Gillespie has cited Bestafoam incorrectly. There were two issues in that
case, and both were resolved in the lessor’s favour. On the main issue, the court applied
the same principles as I have suggested should be applied to the present case, with the
same result in assessing good and sufficient grounds for granting an eviction order. The
subsidiary issue was whether the lessee should be allowed to remain in occupation
pending the completion of the alternative premises it was constructing. Here again this
court held that it would be wrong so to indulge the lessee at the lessor’s expense and
upheld the eviction order in the terms granted by the court below.
At the end of the day, I am not persuaded by Mr Gillespie’s contention that “wherever
part of the landlord’s motivation is a refusal by the tenant to pay a higher rent ejectment
must be refused”. Nor am I convinced that this is “the statutory remedy against the
perceived evil”. Commissioner of Taxes v F 1976 (1) RLR 106 (A) at 113A-115D.
The “perceived evil” in s 22(2)(b)(i) of the Regulations is not an owner’s request or even
insistence on a higher rental for the leased premises. It is the granting
Page 97 of 1991 (2) ZLR 82 (SC)
of an eviction order on an application based on the lessee’s refusal to pay a higher rental
than before which the provision strikes down. Put another way, an owner is not prevented
from recouping his investment in the leased premises by increasing the rental. What he is
prevented from doing is obtaining an eviction order only because the lessee refuses to pay
more.
Mr Gillespie has asked that if the appeal is allowed the respondent should be allowed a
reasonable period in which to vacate the premises. He suggests a period of three months
as reasonable. Mr de Bourbon opposes the request as not founded on any legal principle
and he is right. See the proviso to s 23 of the Regulations, which provides as follows:
“Provided that, notwithstanding anything contained in the contract of lease, a lessor who
obtains an order for recovery of possession of the premises or for the ejectment of a
lessee retaining possession as aforesaid shall not be required to give any notice to vacate
to the lessee.”
The provision applies squarely to this case as the respondent retains possession as a
statutory tenant.
The result is that the appeal is allowed with costs. The order which the High Court made
is set aside and the following order is substituted:
“That the application be and is hereby granted in terms of the Draft Order filed of record
in the proceedings.”
Korsah JA: I agree.
Ebrahim JA: I agree.
Atherstone & Cook, appellant’s legal practitioners
Gill, Godlonton & Gerrans, respondent’s legal practitioners
S v BEAHAN
1991 (2) ZLR 98 (SC)
Division: Supreme Court, Harare
Judges: Gubbay CJ, Manyarara JA, Korsah JA, Ebrahim JA & Sandura AJA
Subject Area: Criminal appeal
Date: 10 June & 4 September 1991

Criminal procedure — jurisdiction — appellant arrested in Botswana and handed over to

Zimbabwe Police informally at border — distinction between voluntary surrender of
fugitive by State of refuge and violation by receiving State of international law through
an abduction — discretion — whether court has a discretion to refuse to exercise
jurisdiction.
Criminal law — accomplice — dissociation from common purpose — whether must
attempt to frustrate the purpose in order to free himself from joint responsibility.
In a case where a person is brought before a court on a criminal charge after an abduction
or some other wrong under international law by which the prosecuting State affronts the
sovereignty of the State of refuge from which the accused is taken, then that court does
not have jurisdiction to try the accused.
A case of abduction or involving some other act of force or fraud by the receiving State
must be distinguished from a case of a voluntary surrender of a fugitive by the State of
refuge, notwithstanding that that surrender may be in contravention of the municipal law
of the State of refuge.
Semble: Even where a court has jurisdiction it may in its discretion decline to exercise
jurisdiction as part of its inherent power to prevent an abuse of its process.
An accomplice who wishes to dissociate himself from a criminal common purpose must,
if he is to escape liability, take reasonable steps to frustrate the purpose where his
contribution has been anything more substantial than
Page 99 of 1991 (2) ZLR 98 (SC)
assent prior to the event. Mere withdrawal will only avail him where he has done no overt
act toward the completion of the crime.
Cases cited:
S v Beahan 1989 (1) ZLR 195 (HC); 1990 (2) SACR 59 (ZH)
S v Beahan 1989 (2) ZLR 20 (SC); 1990 (3) SA 18 (ZS)
S v Ndhlovu 1977 (2) RLR 17 (A); 1977 (4) SA 125 (RA)
Ndhlovu & Anor v Minister of Justice & Ors 1976 (4) SA 250 (N)
S v Mapane & Anor 1977 (1) RLR 240 (A); 1977 (3) SA 228 (RA)
S v Ebrahim 1991 (2) SA 553 (A)
Abrahams v Minister of Justice & Ors 1963 (4) SA 542 (C)
S v Ramotsi & Ors (unreported TPD) 1970 ASSAL 80 (Annual Survey of SA Law)
Ex parte Ebrahim: in re S v Maseko & Ors 1988 (1) SA 991 (T)
Nduli & Anor v Minister of Justice & Ors 1978 (1) SA 893 (A)
Ex parte Susannah Scott (1829) 9 B&C 446; 109 ER 166
R v Sattler (1858) Dears & Bell 539; 169 ER 1111
In re Parisot (1890) 5 TLR 344
R v Officer Commanding Depot Battalion RASC Colchester: ex parte Elliott [1949] 1 All
ER 373 (KB)
R v Plymouth Magistrates’ Court & Ors: ex parte Driver [1985] 2 All ER 681 (QB)
S v Brewster (1835) 7 Vt 118
Ker v Illinois (1886) 119 US 436; 30 L Ed 421
Frisbie v Collins (1952) 342 US 519; 96 L Ed 541
Gerstein v Pugh (1975) 420 US 103; 43 L Ed 2d 54
US v Toscanino (1974) 500 F 2d 267
US ex rel Lujan v Gengler (1975) 510 F 2d 62
US v Cordero (1981) 668 F 2d 32
Sinclair v HM Advocate (1890) 17 R (JC) 38
Youssof Said Abu Dourrah v Attorney General Palestine Supreme Ct Annual Digest
1941-1942, Case 97
R v Hartley [1978] 2 NZLR 199
R v Bow Street Magistrates: ex parte Mackeson (1981) 75 Cr App R 24 (DC)
R v Guildford Magistrates‘ Court: ex parte Healy [1983] 1 WLR 108 (QB)
R v Chinyerere 1980 ZLR 3 (A); 1980 (2) SA 576 (RA)
R v Njenje & Ors 1965 RLR 586 (A); 1966 (1) SA 369 (RA)
S v Ndebu & Anor 1985 (2) ZLR 45 (SC)
Ex parte Becerra and Cooper (1976) 612 Cr App R 212 (CA)
Page 100 of 1991 (2) ZLR 98 (SC)
Ex parte Whitefield (1989) 79 Cr App R 36 (CA)
R v Whitehouse [1914] 1 DLR 683
Ex parte Croft (1942-44) 29 Cr App R 169 (CCA)
S v Harington 1988 (2) ZLR 344 (SC); 1989 (2) SA 348 (ZS)
M J Gillespie for the appellant
Y Omerjee and A O Agyemang for the respondent
GUBBAY CJ:
A. INTRODUCTION
On 23 January 1989 the appellant was arraigned in the High Court before
Mtambanengwe J upon a charge of contravening s 50(1) of the Law and Order
(Maintenance) Act [Chapter 65]. It was alleged in the indictment that acting in concert
with other persons and with intent to endanger the maintenance of law and order in
Zimbabwe, he did commit or attempt to commit an act of terrorism or sabotage by
conspiring with others to forcibly effect the release from the lawful custody of the
Zimbabwe Prison Service of certain prisoners who were detained on charges relating to
their involvement in acts of terrorism, sabotage or espionage, and to remove the said
prisoners outside the borders of Zimbabwe, and did in pursuance of the plan enter
Zimbabwe on 27 June 1988 at Kazungula Border Post, and act in a manner that was
likely to cause serious bodily injury to or endanger the safety of any person within
Zimbabwe, and did cause such serious bodily injury to the youth Doubt Chinhamo.
Pursuant to s 163(1)(f) of the Criminal Procedure and Evidence Act [Chapter 59] the
appellant pleaded to this indictment that the court had no jurisdiction to try him for the
offence. The raising of the special plea had been foreshadowed in the written notice given
earlier to the Attorney-General in terms of s 162 of the aforementioned Act, which set out
the ground of objection as being that:
“. . . [the accused] was unlawfully removed from Botswana by members of the Police
Force of Botswana and handed to members of the Zimbabwe Republic Police at
Plumtree. The removal of the accused from Botswana was not a deportation in terms of
the law of Botswana, but amounted to an extradition from Botswana without any
procedures in respect thereof being followed.”
For the purpose of enabling the learned judge to determine the jurisdictional issue the
following statement of agreed facts was placed before him:
Page 101 of 1991 (2) ZLR 98 (SC)
“1.1 The accused entered Zimbabwe at Kazungula on a false British passport
bearing the name of Henry Coleman and containing a photograph of the accused, at about
6.00 pm on 27 June 1988.
 1.2 The accused was the leader of a group of armed terrorists whose objective
was to forcibly effect the release from lawful custody of South African agents awaiting
trial on allegations of sabotage, terrorism and acts of bombings carried out at the behest
of the South African Government.
1.3 When the accused so entered Zimbabwe, he was in the company of one
Jim Maguire. The two men drove to the Zimbabwe side of the Kazungula border in a
motor vehicle.
1.4 Maguire was a member of the group of terrorists. Concealed in the vehicle
in which the men drove to Zimbabwe were ground to air communication radios necessary
for the prosecution of the operation to release the above mentioned agents.
1.5 The accused and Maguire on being questioned by the Zimbabwean Police
and Immigration officials absconded and swam their way across the Zambezi River into
Botswana.
1.6 The other members of the group referred to in paragraph 1.2 above, who
were within Zimbabwe by 28 June 1988, attempted by force to effect the release of the
above- mentioned agents, but were thwarted by the Zimbabwe security agencies.
2. The accused was, at the time of his arrest, a resident of the Republic of
South Africa, and a citizen of the United Kingdom.
3. The accused was arrested on 28 June 1988 at a roadblock within Botswana
by members of the Botswana Defence Force. He was at the time still in the company of
Maguire, who absconded when the pair were challenged.
4. Following his arrest by members of the Botswana Defence Force, the
accused was placed in the custody of the member-in-charge of the main police station at
Gaborone later on 28 June 1988.
5. The accused remained in the custody of members of the Botswana Police
Force in Botswana from 28 June 1988 to 2 July 1988.
6. At no time during his detention in Botswana did the accused appear before
a court, nor did he have access to legal representation.
7. On 2 July 1988 the accused was taken by members of the Botswana Police
Force from Botswana and was handed to members of the
Page 102 of 1991 (2) ZLR 98 (SC)
Zimbabwe Republic Police at Plumtree. The Zimbabwe Republic Police
detained the accused.
8. When the accused was brought into Zimbabwe from Botswana by the
Botswana Police Force, he was not required to present himself to an immigration officer.
9. There does not exist any extradition treaty between Zimbabwe and
Botswana.
10. No request for the extradition of the accused from Botswana to Zimbabwe
was made to the Government of Botswana by the Government of Zimbabwe.
11. No documents purporting to show his deportation from Botswana to
Zimbabwe were given to the accused at any stage.
12. Members of the Botswana Police Force became aware that the accused
was wanted by the Zimbabwe Republic Police and agreed to hand him to the Zimbabwe
Republic Police.”
What remained in dispute between the prosecution and the defence was whether, with
effect from 29 June 1988, a member of the Zimbabwe Republic Police had taken part in
the interrogation of the appellant, or was present thereat, while he was being held in
custody at the main police station in Gaborone. It was to this issue that Superintendent
Bernard Jambawu of the Zimbabwe Republic Police and the appellant both testified. It
was said by the former that a telephonic communication had been received from
Botswana advising of the appellant’s apprehension and that prior thereto no request had
been made for his return. As investigating officer Superintendent Jambawu had no
knowledge of any member of the Zimbabwe Republic Police being present in Botswana
in connection with the appellant. Such an officer, according to the appellant, was indeed
present, for he later recognised him in Harare during the period he was being questioned
by Superintendent Jambawu and again, when he appeared before the magistrate for
remand. The learned judge determined this conflict in favour of the State. It was
Superintendent Jambawu who impressed as a witness of the truth and not the appellant
upon whom the onus rested to prove the allegation. The special plea was dismissed by
Mtambanengwe J on 17 March 1989 in a lengthy judgment which is now reported sub
nom S v Beahan 1989 (1) ZLR 125 (HC); 1990 (2) SACR 59 (ZH). An appeal was
immediately noted against the correctness of the decision.
The trial of the appellant was resumed before Chidyausiku J on 15 May 1989, the date to
which it had been adjourned. The appellant tendered a plea of not guilty. His counsel then
applied for a stay of proceedings on the ground that the
Page 103 of 1991 (2) ZLR 98 (SC)
appellant’s constitutional right to be afforded a fair hearing would be violated unless the
Attorney-General were to ensure the attendance at the trial of the member-in-charge of
the main police station at Gaborone and the other police officers who had taken part in
his interrogation. The application was strenuously opposed and the learned judge
dismissed it and ordered the trial to continue. An appeal as of right was noted against the
interlocutory ruling. Thereupon, after entertaining submissions as to the effect of the
noting the learned judge ruled that the trial proceed until the validity of the appeal, set
down for 26 May 1989, was determined.
On 8 June 1989 this court dismissed the appeal. The judgment has been reported as S v
Beahan 1989 (2) ZLR 20 (SC); 1990 (3) SA 18 (ZS).
After the State had adduced the evidence of twenty-five witnesses the trial court was
informed that the appellant wished to alter his plea to one of guilty, subject to the
qualification that he denied responsibility for any action taken by his co-conspirators in
execution of the plan to free the lawfully detained prisoners, subsequent to his arrest in
Botswana on 28 June 1988. Stated otherwise, it was accepted that the plan to rescue the
prisoners and the entry into Zimbabwe by the appellant in furtherance of that plan, was
likely to endanger the safety of any person within Zimbabwe and was thus an act of
terrorism or sabotage as defined in s 50(6)(d) of the Law and Order (Maintenance) Act;
but no more than that. This caveat to the plea was not acceptable to the prosecutor who
closed the State case after producing a confirmed warned-and-cautioned statement
recorded from the appellant on 5 July 1988. The defence led no evidence on conviction
and intimated that it was not intended to contest the veracity of the version related by the
witnesses for the State. It was simply a question of law as to whether the appellant was
liable for the actions of his co-conspirators committed after 28 June 1988.
In returning a verdict of guilty the trial court absolved the appellant of criminal liability
with regard to the shooting of, and serious injury to, the child Doubt Chinhamo on 30
June 1988, while he was playing in the grounds of the RS Davies Primary School,
Kwekwe. It found that such an act was not proved to have been in furtherance of the
common objective of the conspirators and one that must have been foreseen by the
appellant. However, the appellant was found accountable for the other incident which
occurred on the same day — that involving the shooting of John Mzila, the security guard
at the ZISCO Airstrip at Kwekwe and the deliberate damage to the National Airforce’s
Bell helicopter. For his part in the whole affair the appellant was ordered to undergo life
imprisonment with labour. Leave to appeal against the sentence was granted.
Page 104 of 1991 (2) ZLR 98 (SC)
B. THE ISSUES
The issues which arise in the first appeal relate, of course, to the propriety of the
conviction. They are these:
1. Whether the High Court had jurisdiction to try the appellant.
2. If jurisdiction existed, whether in the circumstances pertaining
Mtambanengwe J in the exercise of his discretion, ought to have declined to entertain
jurisdiction over the appellant.
In the event of a determination adverse to the appellant resulting in the confirmation of
his conviction, the issues arising in the second appeal, concerning the sentence imposed,
are broadly as follows:
1. Did the trial court misdirect itself in failing to hold that subsequent to his
flight from Kazungula and his arrest in Botswana on 28 June 1988, the appellant had
dissociated himself from any further action by his co-conspirators, and thus was not in
law liable for the events which occurred on 30 June 1988.
2. Whether, in any event, the sentence is such as to justify interference by
this court.
C. THE CONVICTION
(1) The High Court’s Jurisdiction
After a full review of the authorities, Mtambanengwe J expressed what he considered to
be the principle derivable therefrom in these words at 209H-210A:
“. . . while the court has jurisdiction to try a person properly brought before it regardless
of the means used to secure his presence before the court, nevertheless the court can
decline to exercise that jurisdiction in respect of a person irregularly or illegally brought
before it and can decline to exercise jurisdiction as a mark of disapproval of the abuse of
process” (emphasis added).
It is apparent that the learned judge trod a somewhat middle path. He adopted the
conservative approach that no matter the circumstances under which a fugitive, accused
of the commission of a crime, is brought within the jurisdiction, even if his removal from
the State of refuge amounted to a breach
Page 105 of 1991 (2) ZLR 98 (SC)
of sovereignty, it is the duty of the court to ensure that he is amenable to justice. But he
considered that by virtue of its inherent power the court has a discretion to refuse the
exercise of jurisdiction, or to refuse to allow the accused person to stand trial, on the
ground that grave impropriety attached to the manner in which he was brought within the
territorial boundaries.
Although on the particular facts of this case, as I shall endeavour to show, it is strictly
unnecessary to decide whether the first proposition enunciated by the learned judge is
correct, namely, that courts in Zimbabwe are enjoined to try anyone found within the
jurisdiction and lawfully arrested, no matter how his presence was secured, I deem it
desirable to do so.
Certainly the proposition is afforded direct support from the only relevant decision in this
country, that of S v Ndhlovu 1977 (2) RLR 17 (AD); 1977 (4) SA 125 (RAD). That case
held that the fact the appellant had been abducted from Botswana (where he had been a
lawful resident for several years), by the former Rhodesian security forces in violation of
international law and brought to this country, did not constitute a bar to jurisdiction in a
criminal trial (see at 127B and at 19C-D per MacDonald CJ). In reaching this conclusion
reliance was placed, inter alia, on Ndhlovu & Anor v Minister of Justice & Ors 1976 (4)
SA 250 (N). The earlier decision in S v Mapane & Anor 1977 (1) RLR 240 (AD); 1977
(3) SA 228 (RAD) was distinguished on account of its special features.
Until the landmark decision of the South African Appellate Division in S v Ebrahim 1991
(2) SA 553 (A) was handed down on 26 February 1991, the courts in that country rarely
hesitated to apply the rule, perceived to be correct, that the power of a court to try a
person for a crime is not impaired by the manner in which he was brought within the
court’s jurisdiction. Once there was a lawful arrest within the boundaries of the country,
the way in which the accused person had entered was irrelevant; it mattered not that he
had been abducted from the foreign refuge State in violation of its territorial sovereignty.
See for instance, Abrahams v Minister of Justice & Ors 1963 (4) SA 542 (C) at 545G-H;
S v Ramotsi & Ors (unreported judgment of the Transvaal Provincial Division cited fully
in 1970 Annual Survey of South African Law at p 80); Ndhlovu & Anor v Minister of
Justice & Ors supra at 254F-255C; Ex parte Ebrahim : In re S v Maseko & Ors 1988 (1)
SA 991 (T) at 1004I. Perhaps the first misgivings are to be found in Nduli & Anor v
Minister of Justice & Ors 1978 (1) SA 893 (A). The appellants argued that they had been
unlawfully abducted from Swaziland by members of the South African Police and that
this constituted a bar to their being tried on charges
Page 106 of 1991 (2) ZLR 98 (SC)
under the Terrorism Act of 1967. Although there was a dispute over whether the arrest
had in fact occurred in Swaziland, the court assumed that it had for the purposes of the
case, but found that if this were so, the persons making the arrest had acted without the
authority of the South African State. It accordingly held that there was no international
delinquency since the State had not itself performed an act of sovereignty in a foreign
State. After an examination of Anglo-American writings and decisions, Rumpff CJ said
at 911H-912A:
“. . . it seems clear that in terms of international law, as it exists (and not perhaps as it
should be), the appellants’ case would only have merited consideration if their abduction
had been authorised by the Republic of South Africa . . . In the result it cannot be said
that the jurisdiction of the court a quo was ousted according to international law . . .”
The appeal court was not invited to and did not consider the question as to whether the
trial court should have exercised a discretion in refusing to allow the appellants to be
tried even if jurisdiction so to try them existed.
The most authoritative and persuasive judgment insofar as this court is concerned is that
of Steyn JA in S v Ebrahim supra. In that case the appellant, a South African citizen by
birth, fled to Swaziland in December 1980 whilst restricted to the magisterial district of
Pinetown in Natal. In December 1986 he was abducted from his home in Mbabane by
persons acting as agents of the South African State and taken back to South Africa where
he was handed over to the police and detained in terms of security legislation. He was
subsequently charged with treason, convicted and sentenced to twenty years’
imprisonment with labour. Prior to pleading to the charge the appellant launched an
application seeking an order that the court lacked jurisdiction to try him in as much as his
abduction was in breach of international law and thus unlawful. The application was
dismissed. An appeal against the ruling succeeded. After an exhaustive examination of
the Roman and Roman-Dutch law, Steyn JA came to the conclusion that under both these
systems the removal of a person from an area of jurisdiction in which he had been
illegally arrested to another area was considered as tantamount to abduction. With regard
to Roman law the learned Judge of Appeal said at 570C (in translation):
“It is completely unthinkable that the Roman authorities would have recognised, and
allowed to stand, a conviction and sentence resulting from an abduction of an offender
out of one Roman province into another Roman province, which abduction had taken
place on the instructions of or with the co-operation of the provincial authority of the
province into which the
Page 107 of 1991 (2) ZLR 98 (SC)
offender was taken. That would be not only an approval of unlawful action, and
accordingly an undermining of authority, but it would also have threatened the internal
inter-provincial peace of the Roman Empire.”
His view concerning the effect of Roman-Dutch law is expressed at 579F (in translation):
“It is clear that according to the Roman-Dutch common law a Dutch court had no
jurisdiction to try a person who was abducted from another jurisdiction by agents of the
State authority exercising power in the area of jurisdiction of the court.”
The learned Judge of Appeal proceeded to point out that the common law of South Africa
is still for the most part the Roman-Dutch law as adapted to local circumstances, and that
there was no existing legislation which abolished any extant limitation in the common
law in respect of a court’s jurisdiction in criminal cases; one such limitation being the
rule that even if an offence was committed within the area of jurisdiction of the court, it
does not have jurisdiction to try the offender if he was abducted from another area of
jurisdiction by agents of the State. Under the heading “Evaluation” the judgment
continues at 582C-E (in translation) as follows:
“Several fundamental legal principles are implicit in those rules (of the Roman-Dutch
law), namely, the preservation and promotion of human rights, good international
relations and the sound administration of justice. The individual must be protected
against unlawful detention and against abduction, the boundaries of jurisdiction must not
be violated, State sovereignty must be respected, the legal process must be fair towards
those who are affected by it and the misuse of the legal process must be avoided in order
to protect and promote the dignity and integrity of the administration of justice. The State
is also bound thereby. When the State itself is a party to a case, as for example in criminal
cases, it must as it were come to court with ‘clean hands’. When the State is itself
involved in an abduction over territorial boundaries, as in the present case, its hands are
not clean. Rules such as those mentioned are evidence of sound legal development of
high quality.”
This decision commends itself and I respectfully agree with it. Not only is it founded on
the inherited principles of common law which this country shares with South Africa, it
has the added quality of being in accord with justice, fairness and good sense. See the
favourable remarks of Professor Dugard in (1991) 7 South African Journal of Human
Rights 199 at 202.
Page 108 of 1991 (2) ZLR 98 (SC)
As yet the English courts have not expressly recognised that an abduction on foreign soil
by agents of the United Kingdom Government is a violation of international law which
bars the exercise of jurisdiction to try the abductee, no matter the nature of his crime.
The earliest case in which the effect of an accused’s irregular apprehension abroad upon
the jurisdiction of the court to try him was considered, is Ex parte Susannah Scott (1829)
9 B&C 446; 109 ER 166. Scott was arrested in Belgium by an English police officer to
whom the warrant for her arrest on a charge of perjury was specially directed. She was
brought in custody against her will to England where she was tried. It was argued on her
behalf that the court had no jurisdiction to try her because of the improper manner in
which she had been brought within the jurisdiction. Delivering judgment against her,
Lord Tenterden CJ said at 167:
“The question, therefore, is this, whether, if a person charged with a crime is found in this
country, it is the duty of the court to take care that such a party shall be amenable to
justice, or whether we are to consider the circumstances under which she was brought
here. I thought, and still continue to think, that we cannot inquire into them. If the act
complained of were done against the law of a foreign country, that country might have
vindicated its own law. If it gave her a right of action, she may sue upon it . . .”
This approach was followed, in similar type situations, in R v Sattler (1858) Dears & Bell
539; 169 ER 1111; In re Parisot (1890) 5 TLR 344 and in R v O/C Depot Battalion
RASC Colchester, Ex parte Elliott [1949] 1 All ER 373 (KBD). In the latter case Lord
Goddard CJ said at 376F-G:
“The point with regard to the arrest in Belgium is entirely false. If a person is arrested
abroad and he is brought before a court in this country charged with an offence which
that court has jurisdiction to hear, it is no answer for him to say, he being then in lawful
custody in this country: ‘I was arrested contrary to the laws of the State of A or the State
of B where I was actually arrested’. He is in custody before the court which has
jurisdiction to try him.”
More recently, the principle was reaffirmed in R v Plymouth Magistrates’ Court & Ors,
ex parte Driver [1985] 2 All ER 681 (QB) at 697 in fine.
Courts in the United States of America have likewise adopted the maxim male
Page 109 of 1991 (2) ZLR 98 (SC)
captus, bene detentus. The first judgment that mentions a possible violation of the
sovereignty of another State and lays down an express ruling is that of the Supreme Court
of the State of Vermont in State v Brewster 7 Vt 118 (1835). The accused, a foreign
citizen, claimed that the court had no jurisdiction to try him on a charge of theft as he had
been forcibly removed from Canada and brought into Vermont to stand trial. His
contention was rejected on the following ground:
“His escape into Canada did not purge the offence, nor oust our jurisdiction. Being
retaken and brought in fact within our jurisdiction, it is not for us to inquire by what
means, or in what precise manner, he may have been brought within the reach of justice.
It becomes then immaterial whether the prisoner was brought out of Canada with the
assent of the authorities of that country or not . . . The illegality, if any, consists in a
violation of the sovereignty of an independent nation. If that nation complains, it is a
matter which concerns the political relations of the two countries, and in the aspect, is a
subject not within the constitutional powers of this court.”
This decision was followed by the United States Supreme Court in Ker v Illinois (1886)
119 US 436; 30 L Ed 421. The appellant pleaded that he had been kidnapped by an agent
of the United States Government in a sovereign country, Peru, and forcibly brought to the
State of Illinois where he was tried and convicted of theft. His protest was of no avail. It
was said at 444:
“The question of how far his forcible seizure in another country, and transfer by violence,
force or fraud to this country, could be made available to resist trial in the state court, for
the offence now charged upon him is one which we do not feel called upon to decide, for
in that transaction we do not see that the Constitution, or laws, or treaties, of the United
States guarantee him any protection. There are authorities of the highest respectability
which hold that such forcible abduction is no sufficient reason why the party should not
answer when brought within the jurisdiction of the court which has the right to try him
for such an offence, and presents no valid objection to his trial in such court.”
Nearly three-quarters of a century later in Frisbie v Collins (1952) 342 US 519; 96 L Ed
541, where the petitioner had been convicted and imprisoned in Michigan after forcible
abduction from Illinois, Justice Black said for an unanimous court at 520:
Page 110 of 1991 (2) ZLR 98 (SC)
“This court has never departed from the rule announced in Ker v Illinois, . . . that the
power of a court to try a person for crime is not impaired by the fact that he has been
brought within the court’s jurisdiction by reason of a ‘forcible abduction’. No persuasive
reasons are now presented to justify overruling this line of cases. They rest on the sound
basis that due process of law is satisfied when one present in court is convicted of crime
after having been fairly apprised of the charges against him and after a fair trial in
accordance with constitutional procedural safeguards. There is nothing in the
Constitution that requires a court to permit a guilty person rightfully convicted to escape
justice because he was brought to trial against his will.”
See also Gerstein v Pugh (1975) 420 US 103 at 119; 43 L Ed 2d 54.
It is refreshing to note, however, that a departure from the restricted concept embodied in
the Ker-Frisbie rule is expressed in the bold judgment of Mansfield Circuit Judge, in
United States v Toscanino 500 F 2d 267 (1974). The pertinent facts were that the
appellant, an Italian national, protested that agents of the United States had abducted him
from Uruguay and taken him to Brazil where he was held in custody and tortured. From
there he was conveyed by aeroplane to the United States. He was arrested and brought to
trial on a charge of conspiring to import narcotics into the country. The trial court held
that jurisdiction over the person of a criminal defendant was not affected by illegality in
the means by which it was obtained. The Court of Appeal, Second Circuit reversed this
ruling. It considered that the trial court was bound to dismiss the charge if Toscanino’s
allegations of kidnapping and torture were substantiated and, accordingly, remitted the
case in order for such determination to be made. The learned judge reasoned thus at 275:
“. . . we view due process as now requiring a court to divest itself of jurisdiction over the
person of a defendant where it has been acquired as the result of the government’s
deliberate, unnecessary and unreasonable invasion of the accused’s constitutional rights.
This conclusion represents but an extension of the well-recognised power of federal
courts in the civil context to decline to exercise jurisdiction over a defendant whose
presence has been secured by force or fraud.”
This dictum does not, of course, accurately reflect the law of the United States.
Moreover, subsequent decisions of the Federal Court of Appeal have limited its
application to situations in which the government’s conduct was considered to be of a
“most shocking and outrageous character”. See United States ex rel Lujan v Gengler 510
F 2d 62 (1975) at 65; United States v Cordero 668 F 2d
Page 111 of 1991 (2) ZLR 98 (SC)
32 (1981) at 37. Nonetheless, it signifies to me a realistic and responsive approach for the
need to recognise and enforce fair standards of criminal justice towards which every legal
system should strive.
In my opinion it is essential that in order to promote confidence in and respect for the
administration of justice and preserve the judicial process from contamination, a court
should decline to compel an accused person to undergo a trial in circumstances where his
appearance before it has been facilitated by an act of abduction undertaken by the
prosecuting State. There is an inherent objection to such a course both on grounds of
public policy pertaining to international ethical norms and because it imperils and
corrodes the peaceful co-existence and mutual respect of sovereign nations. For
abduction is illegal under international law, provided the abductor was not acting on his
own initiative and without the authority or connivance of his government. A contrary
view would amount to a declaration that the end justifies the means, thereby encouraging
States to become law-breakers in order to secure the conviction of a private individual.
I have no difficulty, therefore, in holding that S v Ndhlovu supra was wrongly decided by
this court’s predecessor and ought not to be followed in future. We are free to depart
from it. See Supreme Court, Practice Direction No. 2 of 1981. I am satisfied, as well, that
Mtambanengwe J stated the applicable rule too broadly, excluding as he did the important
exception relating to a violation of international law and the sovereign integrity of a
foreign State.
However this may be, the circumstances under which the appellant was brought to this
country from Botswana cannot be likened to an abduction by agents of the Government
of Zimbabwe.
The appellant, a fugitive from Zimbabwe, entered Botswana illegally in transgression of
the immigration laws. He was apprehended by members of the Botswana Defence Force
and handed over to the police. Upon it being ascertained that the authorities in Zimbabwe
were anxious that he be returned to stand trial, he was conveyed in the custody of the
Botswana Police to the border between the two countries and voluntarily surrendered to
the Zimbabwe Republic Police, who promptly arrested him. That conduct did not
constitute a violation of international law for it involved no affront to the sovereignty of a
foreign State.
Even if it be assumed that a member of the Zimbabwe Republic Police had interrogated
the appellant at the main police station in Gaborone and thereafter
Page 112 of 1991 (2) ZLR 98 (SC)
requested that he be returned, such action does not avail the appellant. It is irrelevant to
the issue. The immutable fact is that the appellant was recovered from Botswana without
any form of force or deception being practised by the agents of this country. The decision
to convey him to Zimbabwe was made, and could only have been made, by the Botswana
Police in whose custody he was.
Where agents of the State of refuge without resort to extradition or deportation
proceedings surrender the fugitive for prosecution to another State, that receiving State,
since it has not exercised any force upon the territory of the refuge State and has in no
way violated its territorial sovereignty, is not in breach of international law. See
Morgenstern 1952 The British Year Book of International Law 262 at 270-271;
Oppenheim’s International Law 8 ed vol 1 at p 703. In O’Connell, International Law 2 ed
vol 2 at p 834 the matter is put thus:
“The case of a voluntary surrender of the offender, but in violation of the municipal law
of the State which makes it, is different from that just discussed (ie illegal seizure on
foreign territory). Even if the surrender is contrary to an extradition treaty it is still not a
violation of international law since no sovereign is affronted, and the offender has no
rights other than in municipal law.”
The proposition is well supported by authority. In the Savarkar case (cited fully in Harris
Cases and Materials on International Law 3 ed at p 233) an Indian revolutionary who was
being returned to India from Great Britain under the Fugitive Offenders Act, 1881,
escaped and swam ashore in Marseilles harbour. A French policeman arrested him and
handed him over to the British policeman who had come ashore in pursuit. Although the
French police in Marseilles had been informed of the presence of Savarkar on board, the
French policeman who made the arrest thought he was handing back a member of the
crew who had committed an offence on board. France alleged a violation of its territorial
sovereignty and asked for the return of Savarkar to it as restitution. The Permanent Court
of Arbitration decided in favour of Great Britain for the following reasons:
“. . . it is manifest that the case is not one of recourse to fraud or force in order to obtain
possession of a person who had taken refuge in foreign territory, and that there was not,
in the circumstances of the arrest and delivery of Savarkar to the British authorities and
of his removal to India, anything in the nature of a violation of the sovereignty of France,
and that all those who took part in the matter certainly acted in good faith and had no
thought of doing anything unlawful . . . while admitting that an irregularity
Page 113 of 1991 (2) ZLR 98 (SC)
was committed by the arrest of Savarkar and by his being handed over to the British
police, there is no rule of international law imposing, in circumstances such as those
which have been set out above, any obligation on the Power which has in its custody a
prisoner, to restore him because of a mistake committed by the foreign agent who
delivered him up to that Power.”
In the case of Sinclair v HM Advocate (1890) 17R (JC) 38 (conveniently referred to in
the judgment of Stephen Brown LJ in R v Plymouth Magistrates’ Court & Ors; ex parte
Driver supra at 692f-694j) Sinclair was found in Portugal and arrested by the Portuguese
authorities, who had been informed that a warrant had been issued by a Scottish
magistrate for his arrest on charges of breach of trust and embezzlement. Although there
was no extradition treaty at the time between Portugal and Britain, Sinclair was detained
for a month by the Portuguese authorities without any charge being made against him or
inquiry instituted or warrant produced. They ultimately placed him on a British ship and
he was brought to Scotland. Having been convicted by a court, Sinclair applied to the
Scottish Court of Justiciary to have the proceedings quashed on the ground, inter alia that
his arrest in Portugal was unwarranted, illegal and oppressive. The application was
dismissed. Lord Maclaren, giving one of the judgments, said at 43:
“With regard to the competency of the proceedings in Portugal, I think this is a matter
with which we really have nothing to do. The extradition of a fugitive is an act of
sovereignty on the part of the state who surrenders him. Each country has its own ideas
and its own rules in such matters. Generally, it is done under treaty arrangements, but if a
state refuses to bind itself by treaty, and prefers to deal with each case on its merits, we
must be content to receive the fugitive on these conditions, and we have neither title nor
interest to inquire as to the regularity of proceedings under which he is apprehended and
given over to the official sent out to receive him into custody.”
To the same effect is the decision of the Palestine Supreme Court in Youssef Said Abu
Dourrah v Attorney-General, Annual Digest 1941-1942, Case No> 97, in which it was
held that once a person has been surrendered he cannot raise any irregularity in the
procedure adopted by the surrendering State as a bar to the courts of the requesting State
exercising criminal jurisdiction over him.
It necessarily follows that I am unable to agree with the contention urged on the
appellant’s behalf, that the failure by the Botswana authorities to have recourse
Page 114 of 1991 (2) ZLR 98 (SC)
to proper deportation procedures (there being no extradition treaty with Zimbabwe)
constituted a bar to the High Court exercising jurisdiction over him. Mtambanengwe J
was undoubtedly right in assuming jurisdiction.
(2) The Exercise of Discretion
Mtambanengwe J accepted the submission urged upon him by the appellant’s counsel
that where a court is firmly of the opinion that an abuse of process has occurred in the
manner in which the accused person has been brought before it for trial it may, in its
inherent power, refuse to exercise jurisdiction over him as an expression of displeasure.
His approach was influenced directly by the judgment of the New Zealand Court of
Appeal in R v Hartley [1978] 2 NZLR 199 at 216-217, which was followed in R v Bow
Street Magistrates: Ex parte Mackeson (1982) 75 Cr App R 24 (DC) at 33 and accepted,
but distinguished, in R v Guildford Magistrates’ Court; Ex parte Healy [1983] 1 WLR
108 (QBDC) at 112E-113A. It was, however, strongly disapproved of by Stephen Brown
LJ (Stuart-Smith and Otton JJ concurring) in R v Plymouth Magistrates’ Court & Ors; ex
parte Driver supra at 697j-698c — holding that the power of the court to prevent abuse of
its own procedures does not encompass the means by which a suspected individual is
brought within the jurisdiction.
Before this court counsel for the respondent placed no reliance on the last mentioned
decision. They acknowledged that a court has an inherent power to enquire into the
circumstances under which a person in the position of the appellant is brought for trial
before it; such power, to be exercised with proper circumspection, being designed to
ensure the protection of the fundamental rights of all persons and that law enforcement
agencies and indeed the Executive authorities do not act in a way which savours of abuse
of process.
In the light of this concession and without the benefit of argument to the contrary, I am
prepared to assume that a discretion vested in the learned judge a quo to refuse to
exercise jurisdiction. Although much attracted by the concession, for the purposes of this
case it is not necessary to make any firm ruling on its validity.
The circumstances pertaining to the voluntary surrender of the appellant differ markedly
from those in R v Hartley and Ex parte Mackeson supra. In the former case what
offended Woodhouse J’s sense of justice and fairness was that imperative requirements
relating to extradition, well-known to the New Zealand Police and frequently used by
them, had been deliberately ignored. Bennett had entered Australia lawfully but on the
basis of the merest suspicion of being
Page 115 of 1991 (2) ZLR 98 (SC)
a party to the murder committed by Hartley, had been put on the first direct flight to
Auckland by the Melbourne Police. There was a clear infraction of domestic law by the
New Zealand authorities in the manner in which Bennett was brought back to the
jurisdiction.
In Ex parte Mackeson the British Police resorted almost to chicanery to get the applicant
back from this country where he was legitimately residing to face charges of fraud.
Appreciating that extradition was not lawfully possible, they connived with the local
Department of Immigration to achieve it by the back-door, even to the extent of obtaining
Mackeson’s passport and re-validating it so that the only way it could be used was to
return him to the United Kingdom. There was also the additional consideration that at the
time Mackeson was sent back legality had returned to Zimbabwe, yet no application was
made by the British authorities to extradite him.
After correctly distinguishing both these cases, Mtambabengwe J went on to say at 216G-
217B:
“. . . the point must not be lost sight of that the accused had entered Zimbabwe and left
the country illegally and he was merely returned here. To the complaint, therefore, that he
was not brought back through immigration, the answer should be very simple: the
accused is merely taking advantage of his illegal actions both in respect of his departure
from this country and his entry into Botswana, and it is difficult to see what rights of his
have been infringed by anybody in these circumstances — whether by the Zimbabwe
authorities in receiving him on his being returned here after he had left the country
illegally, or by the Botswana Police in handing him back after he entered that country
illegally.
It seems to me that it would be taking to absurd lengths the concept of personal liberty to
insist that a man in these circumstances acquires a right to remain free to complain if
apprehended, as the accused here was, after his own flagrant violation of the immigration
laws of both countries, and to insist that he should benefit from such acts and escape
being brought to justice.”
I can find no fault with this reasoning, especially as the appellant’s return by the
Botswana Police was brought about without any irregular or improper conduct on the part
of the Zimbabwe Republic Police. See Ex parte Healy supra at 112E. There was here no
manipulation or misuse of procedure by the agents of this country, and it matters not that
statutory deportation procedures were not
Page 116 of 1991 (2) ZLR 98 (SC)
complied with. In prosecuting the appellant the hands of the State were not soiled.
The principles justifying interference by an appellate court with the exercise of a
discretion are firmly entrenched. It must appear that some error has been made in
exercising the discretion. If the court below acts upon a wrong principle, if it allows
extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not
take into account some material consideration, then its determination should be reviewed
and the appellate court may exercise its own discretion in substitution.
In my view the exercise by the learned judge of his discretion exhibits no defect. It is
unassailable.
(3) Conclusion
Since the issues of jurisdiction and discretion have been decided adversely to the
appellant’s contentions, the appeal against conviction must be dismissed.
D. THE SENTENCE
(1) The Alleged Misdirection
The factual background relevant to a determination of whether the appellant ought not to
have been found responsible by the trial court for the criminal actions of his co-
conspirators after his escape from Kazungula, is as follows:
Early in May 1988 the appellant, who was then employed as an hotel security manager in
Johannesburg, was telephoned from Frankfurt in Germany by a complete stranger who
gave his name as Allen. He informed the appellant that he had a proposition to put to him
and asked him to take a flight to Frankfurt. It was arranged that R8 000 would be paid, as
indeed it was, into the appellant’s bank account. The overwhelming probability is that
Allen was aware that the appellant was a mercenary and had previously been a member
of the Rhodesian Army.
The appellant agreed, and duly met Allen in Frankfurt. Allen told him that he wished to
recruit suitably experienced persons willing to effect the release of certain white prisoners
being held at Chikurubi Prison in Harare. The appellant exhibited interest in the project.
He proffered advice as to the number of persons necessary to execute it. He supplied the
names of Maguire and Cormack as possible participants. While in Frankfurt he was
introduced by Allen to another man who called himself Jeff.
Page 117 of 1991 (2) ZLR 98 (SC)
Back in South Africa the appellant maintained contact with Allen and Jeff, and personally
approached Cormack to join the enterprise. He also suggested Namibia as a possible
training location.
On 16 June 1988 the appellant, Maguire, Cormack and a few other men, assembled on a
farm about 300 kilometres north of Windhoek. They were provided with military
equipment. The appellant participated in the training program. He had complete
knowledge of the plan which included the use of weapons. At least four rifles, two pistols
and plastic explosives were provided. He was further aware that an aircraft was to be
used in the final stages of the exercise, and more specifically that it was to be the means
of escape from Zimbabwe.
On 25 June 1988 the appellant and Maguire flew to Swaziland. There they met Jeff and
were able to assure him that everything was in order. The next day they made their way
to Maun in Botswana where a Toyota truck awaited them. They drove to Chobe Lodge
where they spent the night.
Shortly before 6.00 pm on 27 June 1988 the appellant and Maguire crossed the border at
Kazungula. Once they became aware that it was the intention of the custom officials to
search the truck, they abandoned it and fled to the Zambezi river. They boarded a police
boat that was anchored at the bank. When challenged both men dived into the water and
swam towards the Zambian side of the river. There they stole a dugout boat and rowed
back to Botswana. About 200 metres short of the shore the dugout sank so they swam the
rest of the way. Thereafter they proceeded to Chobe Lodge. It was there that Maguire
telephoned to Allen in Frankfurt and using the given code advised him that “the boat has
sunk”. The appellant fully associated himself with the making of that telephone call.
This then was the extent of the appellant’s involvement in what can only be described as
a most daring and dangerous criminal enterprise. Unquestionably he must have
appreciated the very real possibility that resort might be had to the use of the firearms and
explosives possessed by his associates, both in order to procure the release of the
prisoners from the custody of prison officials and in the escape of the party from
Zimbabwe.
In holding that the appellant had not dissociated himself from the subsequent actions of
his co-conspirators, Chidyausiku J relied upon the fact that upon his arrest he had failed
to inform the Botswana Police of the plan to rescue the prisoners, which by a timely
warning might have prevented what occurred on
Page 118 of 1991 (2) ZLR 98 (SC)
30 June 1988. In short, there was nothing in the appellant’s conduct that envisaged an
intention to dissociate himself from the objective to free the prisoners.
In general a conspirator is liable for the crime perpetrated by his co-conspirators. But
where he has effectively withdrawn from the conspiracy, he does not remain liable for the
commission of any subsequent criminal acts. The terms “withdrawal” and “dissociation”
which are often used in this context of the law, refer to voluntary action by a conspirator
which is legally effective to terminate his relationship to the conspiracy.
The dominant policy of the law in allowing such a defence is to encourage the
conspirator to abandon the conspiracy prior to the attainment of its specific object and, by
encouraging his withdrawal, to weaken the group which he has entered.
In R v Chinyerere 1980 ZLR 3 (AD) at 8E; 1980 (2) SA 576 (R AD) at 579G; Lewis JP
said that:
“. . . a conspirator can withdraw from the enterprise even at the last moment, and in the
event of his withdrawal he is entitled to his acquittal on the main charge, and is liable to
be convicted only of the offence of conspiring to commit the crime in question.”
This view reiterated that in the earlier case of R v Njenje & Ors 1965 RLR 586 (AD) at
594C-E and 595F-G; 1966 (1) SA 369 (SRAD) at 376B-C and 377B-C. The learned
Judge President expressly rejected the suggestion by State counsel that it is necessary at
the same time for the person withdrawing to attempt to frustrate the plan which is the
subject of the conspiracy. In other words an attempt to frustrate the plan is not a pre-
condition of withdrawal.
In S v Ndebu & Anor 1985 (2) ZLR 45 (SC) this court left the point open. While
acknowledging that R v Chinyerere had been correctly decided on its facts, McNally JA
at 50D-E was careful to point out that:
“It may be necessary, in the light of different sets of circumstances, to analyse more fully
what is meant by the phrase ‘dissociate himself from’, and to look at the reliability of the
English requirements that in certain cases something more positive is required of the one
seeking to dissociate himself than merely to run away.”
Page 119 of 1991 (2) ZLR 98 (SC)
The position in English law is well stated in Glanville Williams Textbook of Criminal
Law 2 ed at p 363:
“There need not even be an express withdrawal of advice and consent, if the inciter
(conspirator) has made his change of heart clear by conduct, as by quitting the gang. . . .
The above rule applies only when the defendant has done no more than encourage or
otherwise incite the commission of the crime, as by agreeing to take part in it. If he has
acted positively to assist the crime, he must, it seems do his best to prevent its
commission, by warning the victim or by other means, short perhaps of going to the
police” (emphasis supplied).
Smith and Hogan Criminal Law 6 ed at p 157 write in the same vein:
“The position might be different where D has supplied E with the means of committing
the crime. Arguably, D must neutralise, or at least take all reasonable steps to neutralise,
the aid he has given. If E ignores D’s countermand and uses the thing or information with
which D has supplied him to commit the crime, he has in fact been aided by D in doing
so. Aid may be less easily neutralised than advice” (emphasis supplied).
The authority relied on for this proposition is Ex parte Becerra and Cooper (1976) 62 Cr
App R 212 (CA). The evidence was that Becerra, Cooper and a third man, set out to
commit a burglary. Becerra had given Cooper a knife to use against anyone who might
interrupt them. After they had broken in and used the knife to cut the telephone wires,
someone was heard approaching. Becerra said: “Come on, lets go” and went out through
the window. Cooper stayed and stabbed to death the man who was approaching. In an
application for leave to appeal against his conviction for murder, Becerra argued that he
had withdrawn from the common design and was not responsible for the death. It was
held that there was no evidence of an effective withdrawal. In the words of Roskill LJ at
219:
“On the facts of this case, in the circumstances then prevailing, the knife having already
been used and being contemplated for further use when it was handed over by Becerra to
Cooper for the purpose of avoiding (if necessary) by violent means the hazards of
identification, if Becerra wanted to withdraw at that stage, he would have to
‘countermand’, to use the word that is used in some of the cases or ‘repent’ to use another
word so used, in
Page 120 of 1991 (2) ZLR 98 (SC)
some manner vastly different and vastly more effective than merely to say ‘Come on,
let’s go’ and go out through the window.”
The learned Lord Justice contemplated the possibility that the only way Becerra could
have freed himself from joint responsibility would have been by physical intervention so
as to prevent the use of the knife.
Ex parte Whitefield (1984) 79 Cr App R 36 (CA) fell on the other side of the line. The
appellant was convicted of burglary. He informed his co-conspirator, Gallagher, that the
flat next to his was unoccupied and agreed to break into that flat. Subsequently he
decided that he would not take part and advised Gallagher before the burglary had taken
place. However he knew that the burglary was to take place on a particular night. He
heard it being committed and did nothing to prevent it. In allowing the appeal Dunn LJ
said at 40:
“In this case there was, if the jury accepted it, evidence in the answers given by the
appellant to the police that he had served unequivocal notice on Gallagher that if he
proceeded with the burglary he would do so without the aid or assistance of the
appellant. In his ruling the judge stated that such notice was not enough, and that in
failing to communicate with the police or take any other steps to prevent the burglary he
remained ‘liable in law for what happened, for everything that was done that night’. In
the judgment of this court, in making that statement the judge fell into an error of law.”
See also R v Whitehouse [1941] 1 DLR 683 at 685.
In an article by an anonymous author in 1958-1959 Vol 72 Harvard Law Journal at pp
959-960 the suggestion made is this:
“But when the defendant is indicted as an accomplice to a substantive crime, there is
reason to demand not only that he give notice of withdrawal, but also that he make
reasonable efforts to nullify the effect of his contribution. Thus, if the defendant has
supplied a gun, he should be required to try to recover it, or if his aid consisted of
guidance or of services rendered, a bona fide attempt to dissuade his cohorts should be
required. Only on those rare occasions when it is impossible for the defendant to comply
with the less drastic requirement of withdrawal because of the unavailability of any
means of communicating with his associates, as when the defendant is in jail, should he
be required to exculpate himself by timely disclosure to the authorities.”
Page 121 of 1991 (2) ZLR 98 (SC)
Professor Feltoe, writing in (1990) Legal Forum vol 2 no 3 at p 16 agrees that where a
conspirator has done more than simply reach agreement with others on the commission of
a crime, a more stringent requirement for a legally effective withdrawal is necessary. He
says:
“Thus if (the conspirator) has played a prominent role in devising a plan which is likely
to ensure the successful implementation of the criminal venture, he should be obliged to
go further than simply physically withdrawing from the group; he should be obliged to do
something wholly to deprive his prior complicity of its effectiveness or to negate the
consequences flowing from his previous participation. What this means is that he must
actively try to dissuade his co- conspirators from acting on his plan and, if it is clear that
they are not prepared to drop the plan, to report to the police that this crime is to be
committed by the co-conspirators, so that the police can try to stop the crime from
occurring.”
See also Millar Rhodesian Accomplice Law (unpublished thesis) at pp 148-149.
I respectfully associate myself with what I perceive to be a shared approach, namely, that
it is the actual role of the conspirator which should determine the kind of withdrawal
necessary to effectively terminate his liability for the commission of the substantive
crime. I would venture to state the rule this way: Where a person has merely conspired
with others to commit a crime but has not commenced an overt act toward the successful
completion of that crime, a withdrawal is effective upon timely and unequivocal
notification to the co-conspirators of the decision to abandon the common unlawful
purpose. Where, however, there has been participation in a more substantial manner
something further than a communication to the co-conspirators of the intention to
dissociate is necessary. A reasonable effort to nullify or frustrate the effect of his
contribution is required. To the extent, therefore, that the principle enunciated in R v
Chinyerere supra at 8E is at variance, I would with all deference, depart from it.
The two features relied upon by the appellant as evidencing a timely and effective
withdrawal were his absence from Zimbabwe on the day upon which the criminal
enterprise to free the prisoners was to be carried out, and the notification two days earlier
that the boat had sunk.
The first is of no significance whatsoever. Clearly mere absence of physical presence
from the crime, or a physical change of place or flight from the scene, even if in
consequence of voluntary action, may not, depending on the
Page 122 of 1991 (2) ZLR 98 (SC)
circumstances, serve to dissociate a co-conspirator for the ensuing criminal activity. See
Ex parte Croft (1942-44) 29 Cr App R 169 (CCA) at 173; R v Whitehouse supra at 685;
Ex parte Becerra and Cooper supra at 219; S v Ndebu & Anor supra at 506. But where
his absence is involuntary either by reason of arrest or as in the present matter, by flight
intended to evade detection and apprehension, it does not undo any aid and
encouragement that the co-conspirator may have already given. He remains responsible
in the eyes of the law for all the actions the others do and continue to do, as much as if he
had done them himself, provided they fall within the scope of the common objective. See
Smith and Hogan, op cit at p 158; Feltoe, op cit no. 4 at p 40.
The second feature must be looked at in the context that the appellant’s participation in
the implementation of the dangerous plan put at risk the lives of innocent people. The
facts reveal that the role he played was substantial. It far exceeded mere agreement. The
appellant was undoubtedly one of the leaders. He recommended Maguire and Cormack as
suitable recruitees; he offered advice; he relayed messages at the request of Allen and
Jeff; together with Maguire he approached Cormack and put the proposition to him; he
undertook trips by motor vehicle and aeroplane; he engaged in a training exercise in
which the rescue was rehearsed and he had knowledge of the complete plan. All this
activity convinces me that in order to effectuate a withdrawal, it was incumbent upon the
appellant to take reasonable measures to nullify or frustrate the consequences of his
contribution. He ought to have taken some form of positive action to prevent his cohorts
from implementing the plan — by alerting the Zimbabwe law enforcement agencies or
the Botswana Police of the next steps in the plan. And there was a lack of explanation as
to why no effort had been made to contact the perpetrators already in Zimbabwe in order
to try to persuade them to desist.
But this apart, I am quite unable to accept that the notification to Allen, in its terms,
translates into an unequivocal desire to dissociate from the common objective. In my
opinion it amounted simply to the passing of information to the top man that something
had gone wrong; it was a warning. If the telephone call had been made at a time when the
appellant was in Zimbabwe, and free, as opposed to having escaped to Botswana and in
the process of making his way back to South Africa, the argument that such
communication evidenced repentance and a change of heart would have been more
persuasive.
For these reasons I am entirely satisfied that the trial court did not misdirect itself in
rejecting the appellant’s contention.
Page 123 of 1991 (2) ZLR 98 (SC)
(2) The Severity of the Punishment
It cannot be gainsaid that the appellant committed a crime of considerable gravity; one
which violated this country’s sovereignty, security and territorial integrity. The success of
the common objective would have resulted in the freeing of persons who were to face due
process of law on allegations of bombings, murder and sabotage.
The rescue bid was boldly conceived, meticulously planned and well co-ordinated. It was
to be daringly executed by professionals. On his own admission the appellant has an
impressive background as a combat soldier with intimate knowledge of the topography of
Zimbabwe. Six other carefully chosen persons including a regular officer in the Air Force
of Zimbabwe took part in the criminal venture, which involved the theft of a helicopter
and the use of a Dakota aeroplane. Lethal weaponry comprising assault rifles, pistols,
ammunition, hand grenades, explosives, as well as sophisticated radio equipment and
maps, were smuggled into the country. Their possession by the group signified an
intention to employ deadly force in pursuit of their avowed goal, with scant regard for
their own safety and even less for the safety and well-being of the inhabitants of this
country.
In making their escape an innocent security guard at the airstrip was gratuitously fired at
and the stolen helicopter deliberately and extensively damaged.
A further factor that aggravated the appellant’s moral reprehensibility was that he was
motivated by financial gain and was not, primarily at any rate, acting out of a misguided
sense of loyalty to the prisoners and justification for the cause.
There was, as the learned judge rightly observed, little standing in favour of the appellant.
That the rescue went awry was because of a fortuitous intervention by an individual —
something that the highest degree of planning could not have envisaged — and not on
account of any lack of resolve on the part of the appellant’s associates. And the fact that
he never got beyond a few kilometres into the country was due to the vigilance of the
immigration and custom officials.
The learned judge did, however, appreciate that the actions which endangered the lives of
Zimbabweans and the damage caused to property occurred when the appellant was
outside the country and under arrest.
Nonetheless the sentence imposed was very severe, being virtually the maximium
permitted by the Legislature. In his assessment the learned judge regrettably
Page 124 of 1991 (2) ZLR 98 (SC)
adopted a somewhat passionate and emotional approach. He gave vent to certain vengeful
remarks concerning the appellant which do not befit a judicial officer. As stressed by
Dumbutshena CJ in S v Harington 1988 (2) ZLR 344 (SC) at 359H; 1989 (2) SA 348
(ZSC) at 358F-G:
“Fairness and justice exclude a passionate approach to sentencing. Courts should also,
when assessing sentence, avoid insensitivity to one side or an exaggerated sense of the
wrong done to society.”
I stand second to no one in my condemnation and revulsion of this offence as well as in
my acceptance that factors of deterrence and public expectations regarding punishment
must be viewed as paramount. But what has to be guarded against when exemplary
sentences such as the present are passed is the risk that an excessive devotion to the cause
of deterrence may lead to a punishment which is disproportionate to the offender’s
deserts.
I regard this sentence as having that effect. It excludes a measure of mercy. Too harsh a
sentence is as misguided and unjust as one that is too lenient.
This court is accordingly free to interfere.
(3) Conclusion
I would allow the appeal against the sentence of life imprisonment by substituting
therefor a definitive term of twenty years’ imprisonment with labour.
Manyarara JA: I agree.
Korsah JA: I agree.
Ebrahim JA: I agree.
Sandura AJA: I agree.
Coghlan, Welsh & Guest, appellant’s legal practitioners
CRUNDALL BROTHERS (PVT) LTD v LAZARUS NO & ANOR
1991 (2) ZLR 125 (SC)
Division: Supreme Court, Harare
Judges: Gubbay CJ, McNally JA & Korsah JA
Subject Area: Civil appeal
Date: 25 July & 10 September 1991

Exchange Control — trust — whether is a person or can have residence for the purposes
of the enactment.
Contract — pre-emptive right — enforcement of rights by holder of right of pre-emption
— doctrine of notice — court’s discretion to refuse specific performance.
Costs — de bonis propriis — not appropriate for unfounded but reasonably entertained
allegation of bad faith.
Legislation — Exchange Control Regulations 1977, s 10(1)(a).
The appellant and the first respondent entered into an agreement in terms of which the
latter sold to the former certain shares held by the trust of which he was the trustee. The
sale was subject to a pre-emptive right over the shares held by the second respondent.
The second respondent could buy the shares only with the approval of the exchange
control authorities. It was a condition of the pre-emptive right that such approval be
obtained within a specified time. The approval was obtained only after the expiry of the
time limit and the shares were transferred to the second respondent. The appellant sought
to enforce transfer of the shares to itself claiming an earlier right on the grounds of the
failure of fulfilment of the condition attached to the second respondent’s pre-emptive
right. This claim was resisted on the basis that the appellant’s agreement required
exchange control approval, the trust having foreign beneficiaries and thus being a non-
resident; and that the appellant failed to show an entitlement to specific performance of
its agreement. On appeal from the judgment reported at 1990 (1) ZLR 290.
Page 126 of 1991 (2) ZLR 125 (SC)
Held: A trust is not a person for the purposes of exchange control legislation and can
have no residence. A trustee is the party whose residence is relevant for such purposes.
Held: The holder of a pre-emptive right is entitled in principle to enforce his right in
forma specifica against a subsequent purchaser with notice of the earlier claim.
Held: A genuinely held but incorrect view that the earlier claim is bad in law will not
protect the later purchaser from the consequences of his knowledge that the claim is
being asserted.
Held: A court has a discretion, notwithstanding the breach of the earlier right and the
necessary knowledge of the second purchaser, to refuse specific performance.
Held: On the equities specific performance ought to be refused despite the breach of the
appellant’s right
Cases cited:
Macape (Pty) Ltd v Executrix Estate Forrester 1991 (1) ZLR 315 (SC)
Friedman & Ors NNO v Commissioner for Inland Revenue: In re Phillip Frame Will
Trust v Commissioner for Inland Revenue 1991 (2) SA 340 (W)
Madan v Macedo Heirs & Anor 1991 (1) ZLR 295 (SC)
Associated South Africa Bakeries (Pty) Ltd v Oryx & Vereinigte Bäckereien (Pty) Ltd en
andere 1982 (3) SA 893 (A)
Hirschowitz v Moolman & Ors 1985 (3) SA 739 (A)
Dithaba Platinum (Pty) Ltd v Erconovaal Ltd & Anor 19865 (4) SA 615 (T)
BP Southern Africa (Pty) Ltd v Desden Properties (Pvt) Ltd & Anor 1964 RLR 7 (G);
1964 (2) SA 21 (SR)
Lindsay v Matthews & Anor 1972 (1) RLR 186 (G); 1972 (3) SA 133 (R)
Barnard v Thelander 1977 (3) SA 932 (C).
M J Gillespie for the appellant
A P de Bourbon SC for the respondents
THE FULL BENCH: The judgment in the court a quo in this matter is reported in 1990
(1) ZLR 290. The facts are set out by the learned judge at pages 291-297. It would be
tedious to repeat them. It is enough to say that the dispute is about the right to purchase
the entire share capital of two companies. The shares were held by a trustee, Mr Lazarus,
(“the trustee”). The appellant (“Crundalls”) contracted with him to buy them. PG
Industries (Zimbabwe) Limited (“PG”) had a right of pre-emption over them, subject to
certain conditions. PG
Page 127 of 1991 (2) ZLR 125 (SC)
purported to exercise that right. Crundalls contended that the conditions had not been
fulfilled. The trustee transferred the shares to PG, not, as we will show, on the basis of
the right of pre-emption, but because he believed his contract with Crundalls was invalid.
Crundalls objected and sought to have the transfer set aside. They lost. They now appeal.
The issues that were argued before us were as follows:
1. The validity or otherwise of the agreement entered into between Crundalls
and the trustee for the purchase and sale of the shares;
2. Whether the transfer of the shares by the trustee to PG was in breach of
Crundalls’ contractual rights;
3. Whether Crundalls waived or abandoned their right to enforce their
agreement with the trustee;
4. Whether Crundalls are entitled to an order of specific performance against
PG;
5. Whether the learned judge was justified in making the punitive order as to
costs which he made.
1. THE VALIDITY OF THE AGREEMENT BETWEEN CRUNDALLS AND
THE TRUSTEE
PG, acting through their legal adviser Mr Cook, contended that the agreement was invalid
because it fell foul of the provisions of s 10 of the Exchange Control Regulations 1977.
Indeed it was Mr Cook’s positive belief in this regard which led him to urge the trustee to
transfer the shares to PG. He was confident enough to offer the trustee an indemnity
against any possible claim by Crundalls. By that stage he was convinced that it was not a
question of a right of pre-emption at all. There was nothing or nobody to pre-empt. PG
were simply buying the shares. The contract with Crundalls was a nullity.
The basis for Mr Cook’s belief was twofold: The contract of sale of the shares by the
trustee to Crundalls was, he contended, “an act which involves, or is in association with
or is preparatory to” the transferring of such shares. It thus fell within the scope of s 10(3)
of the Regulations and was unlawful if, but only if, the transfer of those shares was
prohibited by subss (1) or (2) of the same section. He was satisfied that it was.
Page 128 of 1991 (2) ZLR 125 (SC)
We do not think it is necessary to deal with the first part of this argument. His Lordship
in the court a quo held that a contract of sale of shares was to be distinguished from the
transfer of those shares. While that is true, it is less easy to say that the contract to sell the
shares is not an act preparatory to the transfer of those shares. See the discussion of the
similar but not identical provisions of ss 7 and 8 of the same Regulations in Macape (Pty)
Ltd v Executrix, Estate Forrester 1991 (1) ZLR 315 (SC).
The real question is whether Mr Cook was correct in his belief about the non-resident
status of the Trust. His contention was that the Trust was non-resident because, as was
common cause, three of the four beneficiaries were non-resident. He therefore relied on
the provisions of s 10(1)(a), which read as follows:
“Subject to the provisions of section 23, unless authorised by the Minister, no person
shall transfer any security which is registered in Zimbabwe unless —
(a) he or the person, if any, for whom he is a nominee is a Zimbabwean resident . . .”
The provisions of s 23 do not apply. The Minister had declined to authorise the transfer.
So Mr Cook’s argument is correct unless the provisions of subs (a) apply. He claimed
they did not. He contended that the Trust must be regarded as a non-resident persona
because of the status of the beneficiaries. Alternatively, and additionally, if the Trust can
be said to be a nominee of the beneficiaries they, by a majority, are not Zimbabwean
residents.
We agree with the learned judge in his rejection of this argument. A trust is not a person.
The trustee is the person to be considered for the purposes of the Regulations. The trustee
is a Zimbabwean resident. That is the end of the matter. But, for good measure, we also
agree that the trustee is not to be regarded as the nominee of the beneficiaries.
We do not think it necessary to elaborate on the reasoning of the learned judge at pages
298-300 of the reported judgment, save to add a reference to Friedman & Ors NNO v
Commissioner for Inland Revenue: In re Phillip Frame Will Trust v Commissioner for
Inland Revenue 1991 (2) SA 340 (W), and to suggest that a reference to ss 15, 22(1),
22(5), 23 and 27(2) of the Regulations confirms that the Regulations are not to be
construed as creating a new type of persona. A provision such as that contained in s 23
for foreign-controlled companies could easily have been made for trusts with non-
resident beneficiaries, had that been the intention.
Page 129 of 1991 (2) ZLR 125 (SC)
We conclude therefore, as did the learned judge, that the agreement between Crundalls
and the trustee was a perfectly valid agreement.
2. WHETHER THE TRANSFER OF THE SHARES BY THE TRUSTEE TO PG
WAS IN BREACH OF CRUNDALLS’ CONTRACTUAL RIGHTS
Crundalls’ contractual rights were subject to PG’s right of pre-emption. That right had to
be exercised within fourteen days. It was. But in turn the right was exercised
conditionally. PG was a foreign-controlled company. It could only acquire the shares
with Exchange Control approval. The document founding the right of pre-emption
provided that such approval had to be obtained within six weeks of the offer having been
advised. So PG’s exercise of its right of pre-emption was subject to the condition that
Exchange Control approval was granted within six weeks.
The period of six weeks lapsed on 27 June 1989. But the parties had miscalculated the
period and thought it lapsed on 5 July 1989. Crundalls accepted that, and the learned
judge correctly ruled that they could not go back on what they had agreed. But even by 5
July 1989 Exchange Control approval had not been obtained. In fact formal approval was
not given until 8 August 1989. By then, say Crundalls, the right of pre-emption had
lapsed. Their own contract was perfected. But, instead of transferring the shares to
Crundalls, the trustee, on 8 September 1989, transferred the shares to PG. Crundalls point
to this as a clear breach of their contractual rights.
This is a powerful argument. The respondents counter it by the following contentions:
1. On 4 July 1989, realising that they would not be able to meet the deadline,
PG approached the court for a rule nisi calling upon various persons (but not Crundalls,
though a copy of the rule nisi was served on them and they later applied to be joined so as
to oppose confirmation), to show cause why the period of six weeks should not be
extended to six months;
2. The return day of the rule, after two extensions, was 21 September 1989;
3. By that date, Exchange Control permission for the transfer of the shares to
PG had been obtained (on 8 August 1989) and the shares had been transferred to PG (on
8 September 1989) so there seemed little point in pursuing the matter. The rule nisi was
never confirmed.
Page 130 of 1991 (2) ZLR 125 (SC)
It seems clear that the reason why the matter was not pursued was that PG had by then
convinced itself that the Crundall agreement was invalid and therefore the whole
extension exercise was pointless.
If PG had gone through with the application, and if the rule had been confirmed on 21
September 1989, the situation might have been different. We have some doubts as to
whether it would have been confirmed. His Lordship below made the point that the six-
week period was contained in a court order. Therefore what had been laid down by the
court could be varied by the court. Certainly, it would have been a reasonable variation.
We are not sure, however, with respect, that it was correct to refer to the period of six
weeks as being part of a court order. Reference to the order shows clearly that the court
did not “order” the period. It made an order, and then proceeded to record, under the
heading “IT IS RECORDED”, the agreement about the right of first refusal (as it is
called). It is in that part of the “order” that the six-week period is mentioned. It does not
seem to us that what is “recorded” in an order of court can be said to be an order of court.
If it was not a court order, but a contract, how could the court vary it?
Be that as it may, His Lordship then correctly went on to point out that the rule nisi did
not extend the six-week period. There was no temporary interdict or order declaring that
pending the return day the period was to be deemed to be six months. The rule simply
provided, in the normal way, that on the return day, and in the absence of objection, the
court would be asked to alter the period. In the event it was not asked. The period
remained unchanged.
Thus, as His Lordship again correctly concluded, the trustee should not have sold and
transferred the shares to PG. His action was in breach of his contractual obligations to
Crundalls.
No doubt the trustee was influenced by the fact that, in deference to Mr Cook’s opinion,
he had applied for Exchange Control permission (insofar as it might be necessary) to
transfer the shares to Crundalls and had not received approval. The Exchange Control
authorities, however, do not make rulings of law. Naturally, if invited to assert their
authority, they will tend to do so. We are satisfied, however, that in this case their
authority was not necessary, and their refusal of authority could not have blocked the
transfer of the shares to Crundalls.
We conclude therefore that the second issue between the appellant and the respondents
must also be decided in favour of the appellant.
Page 131 of 1991 (2) ZLR 125 (SC)
3. WHETHER CRUNDALLS WAIVED OR ABANDONED THEIR RIGHTS TO
ENFORCE THE TERMS OF THE AGREEMENT
We did not understand Mr de Bourbon to press this submission in this form, and certainly
we are satisfied that there is no basis for it. What Mr de Bourbon did argue was that
since Crundalls’ legal advisers failed to take steps which they easily could have taken,
and which they were invited to take, to delay the share transfer, Crundalls should not now
be granted the remedy of specific performance which they seek, but should be left to a
remedy in damages if they can establish it.
In other words, he incorporated this argument into his submissions on the fourth issue,
and we will deal with it there.
4. IS THE APPELLANT ENTITLED TO AN ORDER IN FORMA SPECIFICA
AGAINST THE SECOND RESPONDENT?
In the lower court this question became confused with another question, namely whether
or not the respondents were mala fide. It seems to us, however, that the bona fides of the
respondents is only one aspect of the question. The real issue is whether, in a case of
double sale where the second purchaser takes transfer with notice of the first purchaser’s
rights, the court must order specific performance in favour of the first purchaser, or
whether it has a discretion, or whether it is limited to an award of damages.
The two extreme cases are clear enough: When the second purchaser is entirely ignorant
of the claims of the first purchaser, and takes transfer in good faith and for value, his real
right cannot be disturbed. Per contra, when the second purchaser knowingly and with
intent to defraud the first purchaser takes transfer, his real right can and normally will be
overturned subject to considerations of practicality.
This case falls in-between. The second purchaser (PG) knew of the rights of the first
purchaser (Crundalls) but considered them to be of no legal value.
Madan v Macedo Heirs & Anor 1991 (1) ZLR 295 (SC) is a recent example in this court
of the first category. The second purchaser (described in that case as the third party
purchaser) was aware only of facts which it correctly understood as giving the first
purchaser (the holder of the right of first refusal) no rights. It was not aware of the full
facts. It was thus in the position of a transferee in good
Page 132 of 1991 (2) ZLR 125 (SC)
faith and for value. The court could not and did not interfere with the real rights thus
acquired.
In the present case PG had full knowledge of the rights of Crundalls at the time it took
transfer of the shares, in the sense that it knew all the relevant facts. They put a wrong
legal interpretation upon them. It was not an unreasonable interpretation. It was one that
was supported by the Reserve Bank, which is the authority administering the Regulations
in question. Their interpretation is worthy of respect, despite the fact that their
interpretation was wrong.
PG in short had full knowledge of Crundalls’ rights. In the circumstances their situation
is analogous to that of the appellants in Associated South African Bakeries (Pty) Ltd v
Oryx & Vereinigte Bäckereien (Pty) Ltd & Ors 1982 (3) SA 893 (A).
We must confess that we have some difficulty in understanding the effect of the order
made in the Bakeries case — a difficulty apparently shared by the two Judges of Appeal
who dissented in that case, and by Professor Kerr The Law of Sale and Lease pp 297-299.
However, the matter was further considered in Hirschowitz v Moolman a& Ors 1985 (3)
SA 739 (A). The case was decided on a different point, but in passing Corbett JA (as he
then was) noted that the court had endorsed the view that “in principle the holder of a
right of pre-emption is entitled (in addition to claiming an interdict or damages in
appropriate circumstances) to seek the positive enforcement of his rights” (p 762D).
Preiss J in Dithaba Platinum v Erconovaal Ltd & Anor1985 (4) SA 615 (TPD) at 627C-I
took the Bakeries case to mean that “specific performance can be granted to enforce a
pre-emptive right. At the same time, the court’s discretion to refuse specific performance
in certain circumstances was confirmed”. Finally, this court’s decision in Madan supra
confirmed, at p 10, that the traditional approach was to be maintained.
This approach was set out as follows by Professor McKerron in (1935) 4 SA Law Times
178 and repeated with approval by Professor Burchell in (1974) 91 SALJ 40:
“It is submitted that where A sells a piece of land first to B and then to C — and the
position is the same mutatis mutandis in the case of a sale of a movable of which the
court would decree specific performance — the rights of the parties are as follows:
(1) ...
Page 133 of 1991 (2) ZLR 125 (SC)
(2) Where transfer has been passed to C, C acquires an indefeasible right if he
had no knowledge, either at the time of sale or at the time he took transfer, of the prior
sale to B, and B’s only remedy is an action for damages against A.
If, however, C had knowledge at either of these dates, B, in the absence of
special circumstances affecting the balance of equities, can recover the land from him,
and in that event C’s only remedy is an action for damages against A.”
It is relevant at this stage, since the question of mala fides has been canvassed extensively
in argument, to point out that the doctrine of notice, as it is called, requires nothing more
than notice or knowledge of the prior claim. It is not necessary to prove mala fides or
fraud. See Madan supra at pp 10-11 and the Bakeries case supra at 910G-H, where van
Heerden AJA said:
“It is thus apparent that to speak of fraud or mala fides within the framework of the
doctrine of notice — at least so far as it concerns a sale in contravention of a pre-emptive
right — is superfluous and can possibly create confusion.”
We turn therefore to the facts of the case to determine whether there are special
circumstances affecting the balance of equities. In doing so we bear in mind that the
primary right of the wronged purchaser is to the remedy of specific performance. As
Professor Joubert puts it in his General Principles of the Law of Contract at p 224:
“. . . in English law the doctrine of the common law is that the creditor is only entitled to
damages, but that in equity he can be granted a decree of specific performance, if there is
some equitable reason for doing so, whereas under Roman-Dutch principles he has a right
to specific performance unless there is some equitable reason disqualifying him from
obtaining such relief.”
See also BP Southern Africa (Pty) Ltd v Desden Properties Ltd & Anor 1964 RLR 7
(GD) at 11H-I; Lindsay v Matthews & Anor1972 (1) RLR 186 (GD) at 192 in fine -
193D; Barnard v Thelander 1977 (3) SA 932 (C) at 938F-G (translation at 706).
There are a number of such special circumstances which convince us that the remedy of
specific performance is not appropriate in this case. We list them below:
Page 134 of 1991 (2) ZLR 125 (SC)
1. There was no deliberate deceit or mala fides on the part of the
respondents. They acted on an honest and reasonable belief as to the law, which turned
out to be wrong. Although in the past such conduct has been characterised as “a species
of fraud”, the better and later view (see the Bakeries case) is that such persons are simply
deemed to have notice of the other party’s prior claim.
2. Even to describe Crundalls’ claim as “a prior claim” is, in a sense,
misleading. Before ever Crundalls came on the scene, PG had a pre-emptive right. When
Crundalls purchased the shares they knew that PG had a pre-emptive right; they knew
that they wanted to exercise that right; they knew that they would have done so if the
Exchange Control authorities had not been so dilatory. So in effect Crundalls were
seeking to take advantage of PG’s misfortune. There was nothing unlawful about that, but
it is relevant when considering equitable factors.
These two are persuasive and general considerations which alone would not tip the scale.
But the two following considerations are, in our view, conclusive:
3. The events with which we are concerned took place in July-September
1989. The affidavits filed by PG disclose that complex financial transactions and staff
dispositions have taken place since then which would be difficult if not impossible to
“unscramble”. It is not simply a question of re-transferring shares.
4. The transfer of the shares to PG by the trustee could have been prevented
by Crundalls’ legal adviser. He was given notice on 7 September 1989 by the trustee of
his intention to transfer the shares to PG on 8 September 1989. The trustee went so far as
to undertake to delay the transfer of the shares if Crundalls indicated an intention to seek
an interdict. Such an intention was not indicated. Although the parties are not in accord as
to what exactly was said, Mr Passaportis concedes that he was not in a position, owing to
extreme pressure of work, to prepare an urgent application for an interdict. He simply
said that if the transfer went ahead the appellant would impeach it. It is clear therefore
that on either version he considered and rejected the idea of applying for an interdict. He
did, however, institute the notice of motion proceedings now before us on 29 September
1989.
It is likely that on 7 September 1989 Mr Passaportis was not sure of the
strength of his client’s legal claim. Since the trustee’s original uncertainty had been
overridden by Mr Cook’s confident view, it is not surprising that
Page 135 of 1991 (2) ZLR 125 (SC)
 Mr Passaportis may also have been uncertain. That may have been an
additional reason for his failure to institute interdict proceedings. Whatever the reason, he
allowed the transfer of the shares to go through. He reserved his rights. To use an analogy
already referred to, it is always easier to stop the cook breaking the egg than to order him
to unscramble it.
It is strange, too, that Mr Passaportis should not have been able to file a
petition for an interdict, because on that very day, 8 September 1989, he filed an affidavit
by Mr Crundall in the related proceedings concerning the extension of the six-week
period. The affidavit had been signed by Mr Crundall the previous day. That very
affidavit could have been used to found an interdict application. An urgent application
could have been made in terms of Rule 237.
It is true that it is easy to be wise after the event. But it remains a fact that
the appellant could have stopped the transfer of the shares and did not do so.
In the light of these considerations we conclude that the respondents have discharged the
onus of showing that this is not a case in which specific performance should be ordered.
Accordingly, although for somewhat different reasons, we would concur with the ruling
to that effect made by the judge a quo.
5. COSTS
There are two aspects of the question of costs: The first is the question whether the
learned judge was correct in ordering that the costs of the two respondents should be paid
by Mr Russell Guy Crundall on a legal practitioner and client basis de bonis propriis. The
second is whether a special order as to costs should be made in this court.
5.1 The punitive order in the court below
It is noteworthy that nowhere in the papers (as opposed to the heads of argument) did
either the trustee or PG ask for punitive costs against Mr Crundall. The trustee asked for
costs against Mr Passaportis de bonis propriis on a legal practitioner and client scale. PG
simply prayed that the application be dismissed with costs.
The learned trial judge was particularly concerned that allegations of bad faith had been
made against two senior members of the legal profession and had been persisted in in the
answering affidavit. He found that there was no basis for such allegations.
Page 136 of 1991 (2) ZLR 125 (SC)
If one stands back a little from the heat of battle the subjective attitude of Mr Crundall
becomes easier to understand. We must make it clear that we do not dissent in any way
from the learned judge’s finding that the two senior legal practitioners acted throughout
completely bona fide. But, looking at the matter from Mr Crundall’s point of view, and
in the light of the law as we have declared it to be, his confusion and frustration are
understandable.
He (representing the company) had a right to purchase the shares. Mr Cook told him he
was wrong. But he was not wrong. By adopting a wrong view of the law, and persuading
the trustee to change his mind, Mr Cook obtained for his client, PG, the transfer of the
shares. Mr Crundall’s company was entitled to those shares. They should have been
transferred to Crundalls. They were not. The position might have been different had the
respondents pursued and won their application to extend the period. But they did not.
The trustee should not have transferred the shares on 8 September 1989 to PG. He was
acting on a wrong view of the law, a view which was disputed and which he himself had
not originally held. The learned judge, in upholding his claim to punitive costs, said at
page 308D:
“The first respondent (the trustee) believed that he was required to sell the shares to the
second respondent (PG) because the latter had properly exercised its right of pre-
emption.”
That, with respect, is not correct, although there are passages in the trustee’s affidavits
where he conveys that impression. For instance, in para 5 on p 28 of the papers he says:
“I admit that if the second respondent (PG) had taken no action on or before 5 July 1989,
its right to acquire the shareholdings in DST and ITC would have lapsed.”
There he is clearly speaking of the right of pre-emption. But the “right of pre-emption
battle front” was abandoned when the rule nisi was abandoned. The first respondent (the
trustee) was persuaded, when Exchange Control permission was granted in favour of PG
rather than Crundalls, that his contract with Crundalls was invalid or ineffective. He sold
the shares to PG, not on the basis that it had exercised a pre-emptive right, but on the
ground that it was the only valid bidder. This is proved by his assertion in para 11 of his
opposing affidavit, ending with the words:
Page 137 of 1991 (2) ZLR 125 (SC)
“In the premises I put in issue the applicant’s submission that an agreement between it
and myself had become effective on 5 July 1989.”
In his affidavit at para 11(a) the trustee said:
“I believed (and so did Mr Passaportis) that there was a rule nisi in existence in terms of
which the six-week period which the second respondent had within which to obtain
exchange control approval had been provisionally extended to six months.”
While it is correct that he and Mr Passaportis believed that there was a rule nisi in
existence (the fact that a judge had postponed the return day without actually using the
formula “and the rule is extended” did not mean that the rule had lapsed) they could not,
or should not, have believed that the rule provisionally extended the period. It did not do
so. The question whether or not the period was to be extended was to be debated on the
return day. Meanwhile the period remained six weeks, and that period had long since
expired. The return day never eventuated.
Therefore the trustee could not have thought that he was transferring the shares to PG in
terms of their right of pre-emption.
The learned judge further misdirected himself when he said, at 308F-G:
“With regard to case No. HC 2777/89 which concerned the application to extend the six-
week period to six months, the applicant had been given leave on 9 August to intervene,
but it did not file its opposing affidavit until 8 September, 30 days later. The first
respondent could well be excused for believing that the applicant did not intend pursuing
its application further.”
The applicant had in fact only been given leave on 30 August. There was no reason at all
for the trustee not to believe that it was pursuing its application. If he had asked Mr
Passaportis the latter would undoubtedly have told him that he was pursuing his
application. All that the trustee knew was that Crundalls were not pursuing their
opposition by the method of applying for an interdict.
In the ultimate analysis, therefore, there was some confusion in the mind of the trustee as
to the basis on which he was transferring the shares to PG. In fact he did not act in terms
of the so-called right of pre-emption at all. He acted on an incorrect interpretation of the
law which led him to believe that his contract with Crundalls was invalid.
Page 138 of 1991 (2) ZLR 125 (SC)
If he was confused as to his own state of mind it becomes more understandable that Mr
Passaportis, and through his eyes, Mr Crundall, were confused. They interpreted his
actions as revealing mala fides. That was a wrong interpretation. But each side is to a
degree to blame for the confusion which led to the misinterpretation. The respondents’
confusion has led them, ironically, to victory. That should suffice. It would be inequitable
further to penalise the appellant by a punitive order as to costs.
In all these circumstances, we consider that a punitive order of costs was not justified.
5.2 The costs of appeal
The appellant appealed on two major grounds: The first was that the learned judge
should have found in its favour on the merits. The second was that the punitive order for
costs was not warranted. It has failed on the first and succeeded on the second. While we
do not consider that its success on the subsidiary issue of costs is enough to carry the
costs of appeal, we also do not consider that its failure on the merits justifies an order of
costs against it. It must be borne in mind that the respondents maintained, on appeal, their
contention that the agreement between Crundalls and the trustee was invalid by reason of
the Exchange Control point. They have been found to be wrong on that point. They have
succeeded only on the basis that we have agreed with the trial judge that the wrong done
to Crundalls cannot be undone. In the circumstances it is appropriate that no order be
made as to the costs of appeal.
Accordingly we make the following order:
1. The appeal on the merits fails and is dismissed;
2. The appeal in relation to the order of costs is allowed, and the order of the
court a quo is amended to read:
“The application is dismissed with costs”;
3. There will be no order as to the costs of appeal.
Honey & Blanckenberg, appellant’s legal practitioners
Gill, Godlonton & Gerrans, first respondent’s legal practitioners
Atherstone & Cook, second respondent’s legal practitioners
CARGO CARRIERS (PVT) LTD & ANOR v NETTLEFOLD & ANOR
1991 (2) ZLR 139 (SC)
Division: Supreme Court, Harare
Judges: Gubbay CJ, McNally JA & Korsah JA
Subject Area: Civil appeal
Date: 23 July & 12 September 1991

Appeal — costs — when special order awarded — consequences of extravagant claims in

notice of appeal.
Costs — appeal — when special order made.
Damages — mitigation — quantum increased as result of plaintiff’s delay in authorizing
repairs — nature of onus on defendant in such situation — how discharged —
circumstances in which plaintiff may claim increased amount despite delay — plaintiff’s
duty not to aggravate damages by own wanton or careless conduct — if, in attempt to
mitigate, plaintiff actually aggravates the damages, the greater amount may still be
recovered if plaintiff acted reasonably.
Negligence — contributory negligence — minimum assessment normally 10% — court
may have regard to contributory negligence even if not pleaded — driver — duty when
dazzled — standard of care required.
In an appeal over the award of $50 000 damages to respondents arising from a motor
accident, appellants had argued that they ought not to bear $10 000 of the repair costs as
these were attributable to a delay by the respondents in authorizing the repairs.

Held, that since the actual repair costs had been $70 000, of which $10 000 was
attributable to the delay, and since respondents had been found to have been 10%
responsible, the award of $60 000 was inconsistent with either of these findings.
Held, further, that there was a delay, attributable to respondents, and as a result, the
repairs had cost $70 000 instead of $60 000.
Page 140 of 1991 (2) ZLR 139 (SC)
Held, further, that insofar as there was an onus on appellants, it was thus discharged.
Held, further, that the respondents had not justified the delay, and, accordingly, it could
not be said that the delay was reasonable or that it was in consequence of an intention to
mitigate damages.
Held, further, that the reasonable cost of repair was $60 000, subject to considerations of
contributory negligence.
Held, further, that on the facts that first respondent was 20% responsible for the accident.
Held, further, that the appeal succeeded with costs in that respondents were awarded
$48 000 after the figure of $70 000 had been reduced by $10 000 and then by 20%.
Held, further, that the circumstances did not warrant a special order of costs.
Cases cited:
AA Mutual Insurance Association Ltd v Nomeka 1976 (3) SA 45 (A)
The Solhult [1983] 1 Lloyds Rep 605 (CA)
Gebruder Metelmann & Co v NBR (London) Ltd [1984] 1 Lloyd’s Rep 614 (CA)
Taunton Enterprises (Pvt) Ltd v Minister of Defence & Anor S-73-85 (not reported)
S v Ruzario 1990 (1) ZLR 359 (SC)
Viriri v Wellesley Estate (Pvt) Ltd 1982 (1) ZLR 200 (SC); 1982 (4) SA 308 (ZS)
South British Insurance Co Ltd v Smit 1962 (3) SA 826 (A)
Minister of Defence & Anor v Jackson 1990 (2) ZLR 1 (SC); 1991 (4) SA 23 (ZS)
E W W Morris for the appellants
A P de Bourbon SC for the respondents
McNALLY JA: This is an appeal arising out of a motor accident. The appellants do not
dispute their own liability for negligence. The driver, the second appellant, was clearly
negligent for leaving his vehicle without lights or warning triangle at night on the main
road from Masvingo to Harare just outside Chivhu. The first appellant was vicariously
liable for its employee’s negligence.
The dispute was over the amount of the damages awarded by the trial judge to the first
respondent. That amount was $60 000. There are two arguments put forward by the
appellants: The first is that the first respondent herself caused the delay which led to a
$10 000 increase in the cost of repairs. That increase,
Page 141 of 1991 (2) ZLR 139 (SC)
it is submitted, should not be charged to the appellants. Secondly, it is submitted that the
first respondent’s contributory negligence should have been assessed at a figure far
higher than the 10% which the learned judge found. (The fact that contributory
negligence is an issue is not in dispute, although it does not appear to have been pleaded;
compare AA Mutual Insurance Association Ltd v Nomeka 1976 (3) SA 45 (AD) at 55D.)
It must be said that it is not easy to grasp how the learned judge in the court a quo came
to the figure of $60 000. It was common cause that the actual cost of repair of the first
respondent’s vehicle was to be taken as $70 000. It was also accepted that $10 000 of
that figure was attributable to the delay. However, the learned judge declined to deduct
the $10 000, saying “the defendant must take his victim as he finds him”.
On the question of contributory negligence the court found that “her blame is only up to
10%”. Yet the award of $60 000 is arithmetically consistent with neither of those
findings.
I propose to start from the figure of $70 000. The evidence was quite clear that the delay
in starting the repairs added $10 000 to the cost of repair. The General Manager of the
Passenger Division of the local Mercedes agents, Mr Dartnall, said so explicitly in his
reply to Mr Morris’ final question in cross-examination:
“Q. To the best of your ability as an expert in this field, would you say that
had the Nettlefolds given you instructions to proceed immediately you could have done
the job for $60 000?”;
A. I would say that that is fair and reasonable.”
The evidence as to the reason for the delay also came from Mr Dartnall. Mrs Nettlefold
was not asked about it. Mr Nettlefold did not give evidence. No evidence was led on
behalf of the defendants. So all we have is the following from Mr Dartnall:
“There was some discussion at the beginning as to whether after we had supplied the
estimate the owners would bring the parts for the car in themselves or ask us to supply
the parts. This took some time to resolve.”
At the appeal hearing Mr de Bourbon took the stance that it was for the appellants to
show that this delay was unreasonable. The evidence showed that spare parts were
difficult to get and that they had to be imported as foreign
Page 142 of 1991 (2) ZLR 139 (SC)
currency allocations permitted. In the absence of any evidence by the appellants the court
had to assume the delay was reasonable.
Mr Morris’ contention was that once the respondents conceded that the delay caused the
increased cost, they took upon themselves the onus of justifying that delay.
Neither counsel cited authority in support of his contentions. The result of my unaided
research is as follows:
I begin with the statement of Sir John Donaldson MR in The Solhult [1983] 1 Lloyd’s
Rep 605 (CA) at 608:
“A plaintiff is under no duty to mitigate his loss, despite the habitual use by lawyers of
the phrase ‘duty to mitigate’. He is completely free to act as he judges to be in his best
interests. On the other hand, a defendant is not liable for all loss suffered by the plaintiff
in consequence of his so acting. A defendant is only liable for such part of the plaintiff’s
loss as is properly . . . caused by the defendant’s breach of duty.”
The same learned judge, in Gebruder Metelmann & Co v NBR (London) [1984] 1
Lloyd’s Rep 614 (CA) at 631 said:
“It is no doubt true that the burden of proof lies on the defendant.”
Roman-Dutch authority is to the same effect: See generally Corbett and Buchanan The
Quantum and Damages in Bodily and Fatal Injury Cases 2 ed at p 10 para 8. There the
point is made (relying on Halsbury) that there is a further duty on a plaintiff not to
aggravate his damages by his own wanton or careless conduct: “If he does so aggravate
his loss, then he will not be entitled to recover damages in respect of the damage
attributable to such conduct on his part. Again the onus of establishing such aggravation
lies upon the defendant”. Broadly the same principles are enunciated in McKerron The
Law of Delict 7 ed at p 139.
Finally it is clear that even where a plaintiff, in an attempt to mitigate his damages,
actually aggravates them he can recover the greater amount if it can be shown that he
acted reasonably. As Broowne-Wilkonson LJ put it in Metelmann supra at 634 Col 2:

“If I am right in holding that the sale on the terminal market on Jan 21 was a reasonable
attempt to mitigate the loss two results follow. First, any
Page 143 of 1991 (2) ZLR 139 (SC)
additional loss suffered by Metelmann as a result of such sale is recoverable from NBR.
Therefore in addition to the basic damages Metelmann is entitled to be compensated for
the additional damage flowing from the attempt to mitigate.”
Reverting to the facts of this case, it seems to me clear on the evidence that if the
Nettlefolds had authorised the repairers to go ahead with the repairs when they were
ready to do so, those repairs would have cost $60 000. They chose to delay, and as a
result the repairs cost $70 000. The fact of the delay is established. Insofar as there is an
onus on the defendants, it is thus discharged. It was for the Nettlefolds to justify the
delay. They did not do so. Mr Dartnall’s explanation was colourless from the point of
view of justification. Accordingly, and in the absence of evidence from the Nettlefolds as
to why the delay occurred, it cannot be said the delay was reasonable or indeed that it was
in consequence of an intention to mitigate damages. The reasonable cost of repair was
$60 000. That must be the figure of damages subject to considerations of contributory
negligence, to which I now turn:
The case of Taunton Enterprises (Pvt) Ltd v Minister of Defence & Anor S-73-85 was
relied upon by both parties. In that case, as in this, a Mercedes driver, dazzled by the
lights of an on-coming car, collided with an unlighted vehicle parked partly on and partly
off the road. In Taunton the driver of the Mercedes was found, by a majority of this court,
to have been 15% to blame. (The dissenting judge said 50%.) In the present case the
court a quo found her 10% to blame (I take the finding “up to 10% to blame” to mean
“10% to blame” on the basis that courts normally do not go below 10% in such
assessments).
The only evidence as to the facts of the accident was given by Mrs Nettlefold herself. It is
true that she called the driver of the vehicle whose lights dazzled her, but he did no more
than confirm that the offending vehicle had been abandoned, partly on the road, for many
hours.
Mrs Nettlefold told the court that she was driving her newly purchased Mercedes back
from Durban with her husband. On 1 October 1986 she took over the driving just before
Chivhu. It was dusk. They were travelling slowly. Twenty-three kilometres beyond
Chivhu, at about 7 pm, when it was dark, she hit an unlighted truck parked on her side of
the road and protruding so that it blocked approximately half of the Harare-bound
carriageway. For some while before the collision she had been bothered by the lights of
an on-coming vehicle and had been flashing her lights in an attempt to persuade the on-
coming driver to dip his lights. She never saw the stationary vehicle until immediately
before
Page 144 of 1991 (2) ZLR 139 (SC)
she hit it. She was travelling slowly, because of the dazzle from the on-coming vehicle, at
about 50 kilometres per hour. She said that the on-coming vehicle did eventually dip its
lights, just before it passed her, and this was confirmed by Mr Mafika, the driver of that
vehicle, who said he dipped his lights just before they passed each other, in response to
her dipping her lights. He did not seem to have noticed her attempts to make him dip his
lights. He also confirmed that he heard the crash just after they had passed each other and
went back to assist. He was a frequent traveller on the road and had seen the stationary
vehicle several times before on that day.
It seems it was a large truck, described as an articulated Mercedes Benz truck with a
trailer attached, and with pipes protruding from the back. These pipes grazed the top of
Mrs Nettlefold’s Mercedes when the two vehicles collided. But we have no
measurements or description of the truck.
Mrs Nettlefold said she first saw Mr Mafika’s vehicle when it was (she estimated) about
two kilometres away. She had been dazzled for “quite a long time”, and she was not able
to see outside the range of her “heavy” lights. She had slowed down, but she admitted
that if she had been driving within the range of her lights she would have seen the vehicle
that she hit. In fact (she estimated) she only saw it from about 10-15 feet, when it was too
late to stop. Her husband was knocked unconscious from hitting the windscreen and was
otherwise uninjured. She was trapped for a while in the vehicle but was, apart from
bruises, not hurt at all. All this indicates support for her claim that she was travelling
quite slowly. (Her vehicle was, I should indicate, a left-hand drive model.)
I do not think it is necessary to rehearse the legal issues, and in particular the “driver’s
dilemma” issue, which were fully covered in the Taunton case supra. It is, however,
appropriate to say that, insofar as reliance may be placed on the passage in S v Ruzario
1990 (1) ZLR 359 (SC) at 366C-F, that passage should not be taken out of context. I do
not understand it as seeking to re-introduce the theory that the driver’s dilemma is a rule
of law. All it said was that in the circumstances in which Mr Ruzario found himself, he
was negligent not to reduce his high speed so as to be able to stop within the range of his
vision. We are saying the same thing in relation to Mrs Nettlefold’s far lower speed in her
particular circumstances.
There is no dispute about the fact that Mrs Nettlefold was negligent. That is not in issue.
There is thus no conflict with Ruzario supra. We are concerned here, not with the
question whether or not Mrs Nettlefold was negligent, but with the question “to what
extent was she negligent?”.
Page 145 of 1991 (2) ZLR 139 (SC)
In this case I am satisfied that it was very negligent indeed for the lorry driver to leave his
vehicle unlighted, unprotected by the mandatory reflective triangle, and protruding over
at least half the north-bound carriageway on a main road at night. I consider it was
negligent, but much less negligent, for Mrs Nettlefold to have proceeded slowly but not
slowly enough when she was dazzled by the lights of an on-coming car. She was
undoubtedly travelling much more slowly than the driver in Taunton supra.
On the other hand, there is no evidence, as there was in Taunton supra, that the stationary
vehicle was particularly difficult to see. In Taunton the vehicle was camouflaged —
designed to be invisible. In this case it was a large reticulated commercial vehicle and
trailer with pipes sticking out of it. In Taunton the silhouette of the stationary vehicle was
masked by a line of trees behind it, from the point of view of the approaching Mercedes.
In the present case there is no such evidence. The on-coming vehicle was first seen about
two kilometres away by Mrs Nettlefold.
It is very difficult to accept that a large shape, such as the appellant’s vehicle must have
been, would not have shown up either in the lights of Mrs Nettlefold’s own vehicle, or as
a silhouette against the skyline, or as a shape or a reflection in the lights of the on-coming
vehicle.
Indeed the very fact that negligence is not disputed indicates that the test set out by Baron
JA in Viriri v Wellesley Estate (Pvt) Ltd 1982 (1) ZLR 200 (SC) at 206B-C has been
satisfied, namely:
“[A driver] will be guilty of negligence provided the State or the plaintiff, as the case
may be, has proved that the obstacle was one which was capable of being seen in good
time by a driver keeping a proper look-out.”
One cannot demand of all drivers the caution of the ultra-cautious driver. One cannot
realistically expect every driver on a national road to slow down to a crawl or stop
whenever his or her vision is partially impaired by on-coming lights. But the carnage on
the roads is such that the courts must not allow the standard of the reasonable driver to
slip. I am satisfied that a reasonable driver, dazzled or blinded or troubled by on-coming
lights must make a conscious adjustment of his or her driving. The law must require some
combination of the ordinary safety measures that are appropriate in such circumstances.
This will involve some degree of slowing down, perhaps with the foot removed from the
accelerator and poised over the brake; some degree of extra care in looking out for
possible obstructions; and generally a heightened degree of disaster-
Page 146 of 1991 (2) ZLR 139 (SC)
preparedness which will enable the driver to react quickly if an emergency occurs.
I repeat what I said in Taunton supra at p 30:
“It is a matter of common knowledge that one is often dazzled (and I use the word here
to encompass everything from a slight impairment of peripheral vision to total temporary
blindness) when about to enter a stretch of road which has previously been clearly
illuminated either by one’s own lights, or by the oncoming car’s lights, or indeed by
some other source of light. It seems to me that a driver in such circumstances is entitled
to rely on his knowledge that the road is clear and to drive into the darkness,
concentrating most of his attention on the danger presented by the oncoming vehicle
which is the cause of the dazzle.
But where, as here, the stretch of road to be traversed has not previously been
illuminated, there must surely be a greater duty of care on the motorist who drives along
it partially or wholly unsighted. One who is dazzled by full headlights has a clear duty to
slow down — that is the essence of the decision in van Deventer’s case supra. But even a
person who is partially dazzled must take some action. What action he should take
precisely may be impossible to determine. It will depend on the amount of dazzle, the
extent of the impairment of his vision and perhaps many other factors. It may well be
impossible to say, in the majority of cases, that beyond any reasonable doubt he should
have slowed down to such and such a speed. But one may be able to say that on a balance
of probabilities the situation was such that a reasonable motorist would have slowed
down to some extent and would then have been able to avoid the accident.”
The learned judge in the court below did not give any particular reason for finding a
degree of negligence lower than that in Taunton, except that Mrs Nettlefold was
travelling more slowly than Mr Taunton. But that simply means that her failure to keep a
proper look-out was pro tanto greater. In my view, the driver in this case was more
negligent than Mr Taunton because:
1. The vehicle she hit was very much larger and was not camouflaged;
2. The lights of the on-coming vehicle had been visible for about two
kilometres, and over that distance there must have been occasions when, either in her
own lights or in the other vehicle’s lights, she could have picked out the shape or
silhouette of the abandoned vehicle;
Page 147 of 1991 (2) ZLR 139 (SC)
3. For the same reason, she had ample warning of the danger of being
blinded as the on-coming vehicle came closer. If she could not see adequately she should
have slowed down more.
Conscious as I am of the difficulty and subjectivity of assessments of relative degrees of
responsibility for collisions (see South British Insurance Co Ltd v Smit 1962 (3) SA 826
(AD) at 837F-G), and after consultation with my colleagues, I have come to the
conclusion that 10% is too low a figure. Not only is it lower than the figure in Taunton,
which it should not be, but also account must be taken of the fact that Taunton was a
majority decision. The then Chief Justice, who dissented, favoured a figure of 50%. So
the Taunton figure, to use the classic phrase, “if it errs at all, errs on the side of leniency”.
I consider that a figure of 20% more accurately reflects the relative responsibility of Mrs
Nettlefold for the accident.
In the circumstances, the appeal succeeds to the extent that the sum of $70 000 is to be
reduced first by deducting $10 000 to reach a figure of $60 000 and then by 20%, to
achieve a final figure of $48 000.
As far as the costs of appeal are concerned, Mr de Bourbon relied on the decision in
Minister of Defence & Anor v Jackson 1990 (2) ZLR 1 (SC) at 29 for the proposition that
there should be a special order. Certainly the notice of appeal was cast in such all-
embracing terms that it forced the respondent to come to court. Appellants who make
such extravagant claims (in this case that the first respondent’s degree of negligence
should have been assessed at not less than 100%) may in proper cases be deprived of all
or part of their costs. However, in the present case I understand that Mr Morris made it
clear at an early stage to Mr de Bourbon that he would not be claiming a 100% reduction
in the first respondent’s claim.
The appellant has achieved success on both the issues argued. It has reduced the quantum
from $70 000 to $60 000 and it has increased the first respondent’s percentage of
negligence from 10% to 20%. It does not seem to me that a special order is warranted.
Accordingly, I would allow the appeal with costs. The order of the court a quo is altered
to read:
“There will be judgment in favour of plaintiffs as follows —
Page 148 of 1991 (2) ZLR 139 (SC)
1. First plaintiff $48 000 and costs;
2. Second plaintiff $1 000 and costs.”
Gubbay CJ: I agree.
Korsah JA: I agree.
N H Franco & Co, appellants’ legal practitioners
Surgey, Pittman & Kerswell, respnodents’ legal practitioners
YOUNG v VAN RENSBURG
1991 (2) ZLR 149 (SC)
Division: Supreme Court, Harare
Judges: Gubbay CJ, McNally JA & Korsah JA
Subject Area: Civil appeal
Date: 3 June & 16 September 1991

Contract — illegality — in pari delicto rule — applicability and relaxation of rule.

Exchange control — contract for purchase of land in Zimbabwe — purchase price
payable outside Zimbabwe — single transaction — not prohibited by regulations —
meaning of ‘carrying on’ business or trade — single act not sufficient.
Legislation — Exchange Control Regulations 1977 — ss 8 (1) and 7 (1).
The respondent, then residing in South Africa, entered into an agreement of sale in
respect of a farm situated in Zimbabwe with the seller, also a resident of South Africa.
Payment was to be made in South Africa. To avoid any contravention of the law of
Zimbabwe, the land was transferred into the name of the appellant, then a resident of
Zimbabwe, who was to manage the land. The appellant then laid claim to the land as his
own. In addition he contended that the agreement between the respondent and the seller
was illegal, and could not be enforced as it contravened the exchange control legislation.
The respondent denied the illegality and in the alternative claimed relaxation of the pari
delicto rule. The respondent succeeded in the High Court (Gibson J) and the appellant
appealed.
Held, in the circumstances of the present case, the single transaction of the sale of the
farm did not constitute the carrying on of a trade or business such as to render the
transaction contrary to s 8(1) of the Exchange Control Regulations 1977.
Held, the payment to the seller in South Africa was not a payment prohibited by
Page 150 of 1991 (2) ZLR 149 (SC)
s 7 (1) of the Exchange Control Regulations 1977, following Macape (Pty) Ltd v
Executrix Estate Forrester 1991 (1) ZLR 315 (SC).
Held, in any event, this was a case where justice and equity required a relaxation of the
pari delicto rule.
Cases cited:
Smith v Anderson (1880) 15 Ch D 247 (CA)
R v Lionda 1944 AD 348
R v Bayedza 1947 SR 135; 1947 (4) SA 777 (SR)
R v Kapakasa 1963 R&N 684 (SR)
Macape (Pty) Ltd v Executrix Estate Forrester 1991 (1) ZLR 315 (SC)
Barclays National Bank Ltd v Thompson 1985 (3) SA 778 (A)
Dube v Khumalo 1986 (2) ZLR 103 (SC)
Jajbhay v Cassim 1939 AD 537
D R Drury for the appellant
A P de Bourbon SC for the respondent
[Editor’s note: The recitation of facts at the beginning of the judgment has been
abbreviated. For the full facts of the matter, see the cyclostyled judgment S-164-91]
KORSAH JA: The appellant was the unsuccessful defendant in proceedings commenced
at the instance of the respondent in the High Court, Harare, wherein the court granted the
respondent’s prayer for a declaration that:
(1) The respondent is the rightful owner of the farm described as the
remainder of Rupurara, measuring 1 383,738 hectares;
(2) The appellant, failing him the Deputy Sheriff at Harare, should sign all
necessary documents for the purpose of effecting transfer of the farm to the respondent;
and
(3) The appellant pay the costs of the action.
The appellant, being a brother to the respondent’s mother, is the maternal uncle of the
respondent. The respondent is a citizen of Zimbabwe by birth and is the holder of a
Zimbabwe passport, but is resident in South Africa where his business offices are
situated. He had no office in Zimbabwe, but does a lot of business here and, for that
purpose, frequents Harare every six to eight weeks.
Page 151 of 1991 (2) ZLR 149 (SC)
The respondent’s family had for some time not been happy living in South Africa and
was desirous of returning to Zimbabwe. An additional impetus for making such a move
was the convenience of Harare as a base for his company’s headquarters in respect of its
PTA connections.
Some time in 1985 the respondent’s brother, Frank Michael van Rensburg, learnt from
Mr Don Green, for whom he was erecting a fence round some property in Johannesburg,
that the Greens had a farm situated in Nyanga which they wanted to sell. Frank later
passed this information over to the respondent and the respondent requested Frank to go
and view the property the next time he was in Zimbabwe. The respondent furnished
Frank with the necessary funds and Frank visited the property at Nyanga and returned a
favourable report. The respondent decided to enter into negotiations for its purchase.
It was the respondent’s case that in the latter part of 1985 he entered into an agreement of
sale of land with Mr Green and his mother, Mrs Nora Green. The land the subject matter
of the agreement was an undeveloped tract measuring some 4 000 acres and situate at
Juliasdale in the Nyanga area, designated as Rupurara Farm.
It was agreed between the parties that the purchase price was to be R25 000 of which
R10 000 was to be paid as a deposit and the remainder in monthly instalments of
R350,with interest on the outstanding R15 000 at the rate of 16% per month payable after
the capital is repaid.
Believing that it was illegal to pay for property situate in Zimbabwe in foreign currency
outside the country, the parties agreed that the respondent’s legal practitioners should be
instructed to draw up an agreement of sale reflecting a purchase price of Z$20 000, of
which Z$2 000 would be the deposit payable in advance with a mortgage bond of Z$18
000 to secure the payment of the purchase price in South Africa.
When this decision was taken the respondent’s brother, Frank, who had expressed an
interest to come and look after the property while the respondent wound up his business
affairs in South Africa, had consented to the use of his name as the nominee registered
owner. To this end, Frank moved to Zimbabwe and later went with the respondent to
instruct Mr Chadwick to draw up an agreement of sale using the name of Frank as the
nominee purchaser.
After Frank had been in Zimbabwe for about five months, the respondent intimated that
the appellant, who was living on the charity of the respondent at
Page 152 of 1991 (2) ZLR 149 (SC)
the respondent’s home, was to join Frank in looking after the property. Frank took
exception to this arrangement and withdrew from the transaction.
The appellant welcomed the idea of becoming the caretaker of the property for the
respondent and travelled at his own expense to Zimbabwe to look after the property.
Later, the appellant suggested that to facilitate dealing with the squatter problem the
property be registered in his name and the respondent agreed to have the agreement so
registered.
Before the transfer of the property into the name of the appellant, the respondent also
visited the property and, together with the appellant, walked all over the property. This
inspection took some six hours, at the end of which the appellant was in such physical
distress that the respondent was fearful that he was about to have a heart attack. In order
to secure his investment in the land and not put at risk his family’s money, he requested
the appellant to make a will bequeathing the farm to him. This the appellant did. The
respondent then returned to South Africa in the belief that he had done all that was legally
necessary to secure his investment in the property against any loss which might arise
from the untimely demise of the appellant. He did not envisage the loss of the property in
the lifetime of the appellant. Such was his faith.
Although the proposed memorandum of an agreement of sale was in the appellant’s
name, the respondent it was who signed the document, with his wife as a witness to his
signature; but as previously arranged the property was transferred into the name of the
appellant.
It was common cause that on 25 February 1986 the property was registered in the name
of the appellant and a mortgage bond of Z$18 000 registered against the property,
requiring the appellant to pay Z$18 000 to the Greens if and when the Greens called in
the bond.
Mr Drury contended that, because of the illegality attaching to the contract between the
Greens and the respondent, the agreement between the respondent and the appellant is
tainted and, therefore, unenforceable by the respondent.
He referred to ss 8(1)(b)(i)and (ii) of the Exchange Control Regulations 1977 (RGN 399
of 1977) which recite that :
“8. (1) . . . Unless otherwise authorised by the Minister —
(a) ...
(b) no foreign resident carrying on any trade, business or any other
Page 153 of 1991 (2) ZLR 149 (SC)
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.”
Counsel submitted that the activity of purchasing land by the respondent (a non-resident)
from the sellers (also non-residents) constitutes the carrying out of a gainful activity in
Zimbabwe. Accordingly any payment made in pursuance of such an agreement outside
the country offends sub-para 8(1)(b)(i) of the Regulations.
Alternatively, counsel for the appellant submitted that once the respondent acquired the
land at Nyanga and continued to effect monthly payments or incurred obligations to
continue to do so, the provisions of sub-para 8(1)(b)(ii) were breached.
It seems to me that sub-para 8(1)(b)(i) envisages a situation where a foreign resident is
“carrying on” a trade, business or other gainful occupation or activity. The phrase
“carrying on” connotes an on-going activity, an advancing process, a continuing thing or
conduct. As was said by Brett LJ in Smith v Anderson (1880) 15 ChD 247 (CA) at 277-8:
“The expression ‘carrying-on’ implies a repetition of acts, and excludes the case of an
association formed for doing one particular act which is never to be repeated.”
The mere fact that a person walks into a shop and buys or sells one piece of jewellery is
not evidence that he is carrying on trade or business or other gainful occupation or
activity there. The phrase conceives of more than just a single act. See R v Lionda 1944
AD 348 at 351; R v Bayedza 1947 SR 135; 1947 (4) SA 777 (SR); R v Kapakasa 1963
R&N 684 (SR).
As Mr de Bourbon rightly submitted, sub-para 8(1)(a), which stipulates that:
“(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”
(emphasis supplied),
Page 154 of 1991 (2) ZLR 149 (SC)
recognises the performance of a single act; therefore the law-giver was envisaging
different situations when these sub-paragraphs were enacted. If the Legislature had
intended a single act by a foreigner to be illegal then it would have said so.
Mr de Bourbon conceded that “gainful activity” need not necessarily have to be a
profitable activity, but that there has to be a concept of gain which has not been
established in this case. Gainful implies the concept of deriving some benefit or profit
and that there has to be an element of gain before the prohibition arises.
It may perhaps be arguable that, in fact, the Greens were the party that gained because for
a Zimbabwean asset they received foreign exchange. But, in my view, once the concept
of “carrying on” is accepted as the phrase governing both occupation or activity, then that
is the end of the matter.
This conclusion is reinforced by the invocation of the eiusdem generis rule, that, in the
construction of statutes, general terms following particular ones apply only to such
persons or things as are of the same kind as that designated in the preceding particular
expression. “Activity”, expressed in the same breath in the sub-paragraph with carrying
on trade, business or any other gainful occupation, cannot assume a character different
from those particular expressions preceding it. In other words, the only interpretation that
must logically be placed on it is that, like the particular expressions preceding it, the
activity must be an on-going one.
It seems to me that the contra-distinction between “do any act” and “carrying on” in the
separate sub-paragraphs is reflective of the intendment of the Legislature that it did not
mean the performance of a single act to be caught under ss 8(1)(b) (i) and (ii) of the
Regulations. I am, therefore, in agreement with Mr de Bourbon’s submission that to
purchase, on a single occasion, a farm in Zimbabwe does not constitute “carrying on . . .
gainful occupation or activity”.
In his heads of argument Mr de Bourbon conceded that the payments made by the
appellant on behalf of the respondent, or indeed on behalf of the Greens, were in
contravention of s 7(1) of the Regulations, but retracted this concession in view of the
recent decision of this court in Macape (Pty) Ltd v Executrix Estate Forrester 1991 (1)
ZLR 315 (SC). That retraction was well made. Section 7(1) recites that:
“7 (1) Unless otherwise authorised by the Minister, no person shall, in Zimbabwe —
Page 155 of 1991 (2) ZLR 149 (SC)
(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 acknowledgment
or recording of such payment.”
In the instant case, there was an agreement between the Greens and the respondent, both
of whom were resident outside Zimbabwe, for the sale of land in Zimbabwe. That
agreement was not the subject-matter of litigation, but was of evidential value only.
There was a second agreement which was between the respondent and the appellant
creating the appellant a nominee for the respondent, that on demand the appellant would
transfer the farm to the respondent. It was this second agreement between the respondent
and appellant which the respondent was seeking to enforce and which was the subject of
the litigation between the parties.
Under the agreement, the subject-matter of this litigation, a deposit of $2 000 had been
made to the attorney of the Greens towards the purchase price of the farm at Nyanga. The
evidence was that that amount was still in the trust account of the attorneys and had not
been paid to the Greens.
As McNally JA pointed out in the Forrester case, supra:
“. . . there is a clear difference between ss 7 and 8. The former prescribes only the actual
payment. The latter proscribes both the payment and the underlying agreement to pay”
(emphasis supplied).
The proviso to s 7(1) is couched in unambiguous terms that “when a foreign resident”,
such as the respondent was at the time of the deposit of $2 000, “has paid a sum in or
towards the satisfaction of a debt due by him”, as in this case towards the settlement of
the purchase price of the farm, “the provisions of this paragraph shall not prohibit the
acknowledgement or recording of such payment”. In other words, the authority of the
Minister is required, not for payments in Zimbabwe towards the settlement of a debt due
to a foreign resident, but only when the actual funds are to be transferred out of the
country in settlement of the acknowledged debt. Were it not so, it would be impossible
for persons and companies in Zimbabwe to participate in foreign and international trade;
for foreign companies invariably want some assurance that monies are available,
Page 156 of 1991 (2) ZLR 149 (SC)
subject to Reserve Bank permission for payment abroad, before the release of goods to a
purchaser in some other country.
It is abundantly clear to me that the law-maker intended s 7 of the Regulations to strike
down, not the payment of legitimate debts due and owing in Zimbabwe to a foreign
resident, but the transfer of such funds abroad without authorisation from the Reserve
Bank. This is implied in, and is the logical sequel to, the decision in the Forrester case
supra, that an agreement to pay a debt due to a foreign resident to an agent in Bulawayo
is not tainted with illegality and is therefore enforceable at law; and where McNally JA
quoted with approval the following words adopted by Hoexter JA in Barclays National
Bank Ltd v Thompson 1985 (3) SA 778 (A) at 797F:
“The plaintiff is entitled to his judgment, and Treasury permission is a hurdle which can
be jumped when it is reached.”
I can only conclude that the agreement in Zimbabwe appointing the appellant a nominee
for the respondent in respect of the purchase of the farm at Nyanga did not offend any
law of Zimbabwe and is therefore not illegal.
Another aspect of this matter is that the South African agreement to pay in Rands was
between the Greens and the respondent. The Greens are not party to the instant action.
That contract is not the subject for resolution. The issue here is whether the appellant was
the nominee of the respondent in the purchase of the farm. What is sought here, if the
appellant is to be found to be a nominee of the respondent, is that an agent should fulfil
his obligation to his principal. This has nothing to do with the agreement in South Africa
between the respondent and the Greens. Whereas the agreement between the respondent
and the Greens cannot be enforced in Zimbabwe, the nominee agreement in Zimbabwe is
enforceable, and the transfer of the property into the name of the respondent does not
infringe any law of this country.
Even supposing that, because of the illegalities attaching to the agreement between the
respondent and the Greens, the nominee agreement between the appellant and the
respondent is tainted, which I do not accept, it would hardly be just to allow the
appellant, who knew all along of the illegality attaching to the South African agreement,
to take advantage of such illegality to acquire an asset without paying a cent.
Speaking of the maxim in pari delicto potior est conditio possidentis, ie where the parties
are equally in the wrong, he who is in possession will prevail, in Dube
Page 157 of 1991 (2) ZLR 149 (SC)
v Khumalo 1986 (2) ZLR 103 (SC), Gubbay JA (as he then was) said at p 109F:
“The objective of the rule is to discourage illegality by denying judicial assistance to
persons who part with money, goods or incorporeal rights, in furtherance of an illegal
transaction. But in suitable cases the courts will relax the par delictum rule and order
restitution to be made. They will do so in order to prevent injustice, on the basis that
public policy should properly take into account the doing of simple justice between man
and man.”
The learned Judge of Appeal then referred to the following passage in the judgment of
Stratford CJ in Jajbhay v Cassim 1939 AD 537 at 544-545 in expatiation of the
pronouncement above:
“. . . Courts of law are free to reject or grant a prayer for restoration of something given
under an illegal contract, being guided in each case by the principle which underlies and
inspired the maxim. And in this last connection I think a court could not disregard the
various degrees of turpitude in delictual contracts. And when the delict falls within the
category of crimes, a civil court can reasonably suppose that the criminal law has
provided an adequate deterring punishment and therefore, ordinarily speaking, should not
by its order increase the punishment of the one delinquent and lessen it of the other by
enriching one to the detriment of the other. And it follows from what I have said above,
in cases where public policy is not foreseeably affected by a grant or refusal of the relief
claimed, that a court of law might well decide in favour of doing justice between the
individuals concerned and so prevent unjust enrichment.”
Mr de Bourbon submitted that the appellant, who was found by Her Ladyship to be in
pari delicto, had neither a legal nor a moral claim to the property and hence no basis to
claim any equitable rights from this court. No third parties had acquired any rights to the
property and the only person to benefit from the refusal of relief is the appellant, and the
only person to suffer is the respondent. Whereas the appellant has given no value for the
property and has done nothing to improve the property, the respondent has paid for the
property and has made considerable improvements thereon. In the circumstances a refusal
to accord the respondent the relief sought would result in the unjust enrichment of the
appellant.
I am in agreement with Mr de Bourbon that even if it is accepted that the agreement
between the respondent and the appellant is tainted with illegality,
Page 158 of 1991 (2) ZLR 149 (SC)
which I do not accept, the refusal to enforce it will unjustly enrich the appellant. So that
whichever basis is adopted for determining the matter the appeal must fail.
Accordingly the judgment of Her Ladyship in the court below is confirmed and the
appeal is dismissed with costs.
Gubbay CJ: I agree.
McNally JA: I agree.
Gollop & Blank, appellant’s legal practitioners
Condy, Chadwick & Elliot, respondent’s legal practitioners
MACHOKOTO v MABIKA
1991 (2) ZLR 159 (HC)
Division: High Court Harare
Judges: Adam J
Subject Area: Civil action
Date: 21 August & 18 September 1991

Procedure — declaration introducing different cause of action to that on face of summons

— whether plaintiff may obtain judgment on new cause of action revealed in declaration.
Husband and wife — damages for seduction — factors to be considered in assessment
thereof.
Plaintiff appeared personally to apply for default judgment following the service of her
summons and declaration upon defendant who had not entered appearance. The summons
merely claimed damages for seduction and lying-in expenses whereas the declaration
included a claim for damages arising from breach of promise to marry.
Held, that the action for seduction is in delict and breach of promise to marry is founded
both in delict and contract.
Held, further that as plaintiff’s declaration introduced a new and totally different cause of
action which was not mentioned in the summons, plaintiff could not obtain judgment
based on that new cause of action.
Held, further that in assessing the quantum of damages for seduction regard must be had
to all the circumstances of the case including the social standing of the parties and the
manner in which seduction took place.
Cases cited:
Hermansberg Mission Society v Minister of Native Affairs & Ors 1910 TPD 832
Katekwe v Muchabaiwa 1984 (2) ZLR 112 (SC)
Page 160 of 1991 (2) ZLR 159 (HC)
Botha v Peach 1939 WLD 153
De Stadler v Cramer 1922 CPD 16
Hart v Yates (1896) 3 OR 201
Mafukidze v Matsinde S-118-87 (not reported)
Plaintiff in person
ADAM J: The plaintiff filed her summons with her declaration on 10 July 1991 and
service was effected at the defendant’s residence on 16 July 1991 who failed to enter an
appearance to defend. In her summons the plaintiff originally sought seduction damages
of $34 600 but in her declaration, para 7 initially provided for damages of $34 600,
described as damages of $10 100 for injured feelings, loss of good name and reputation;
loss due to promise to marry and in preparation for the intended marriage of $10 500;
loss of virginity resulting in her no longer having a good prospect of marriage calculated
at $13 000 and lying-expenses and maintenance of $3 000. In the affidavit filed on 2
August 1991 the plaintiff averred that her feelings were greatly injured because of the
seduction and breach of promise and her claim was $13 000 for seduction damages; $10
000 as general damages for breach of promise; $10 500 as special damage for breach of
promise and $2 100 for lying-expenses and $900 for maintenance.
In court the plaintiff, who appeared in person, applied to amend her summons and
declaration and affidavit, which was granted so that the summons now sought seduction
damages of $24 000; while the declaration claimed $24 000 by deletion of the claim of
$10 500 for loss due to breach of promise and preparation for intended marriage and of
the lying-expenses and amending maintenance to a claim of $900; and the affidavit was
amended by the deletion of the claim of special damages of $10 500 and lying expenses
of $2 100.
The High Court of Zimbabwe Rules, 1971 provides in Rule 11 that a summons shall
contain a general statement of the nature of the claims and of the relief or remedy sought
in the action. Rule 59 allows judgment in default of appearance or in default of plea upon
the summons or declaration. While Rules 109 and 110 indicate that the declaration shall
state specifically the relief claimed and where the relief was for several distinct claims or
causes of complaint based upon separate grounds they shall be stated separately.
In Hermansberg Mission Society v Minister of Native Affairs & Ors 1910 TPD 832
Wessels J at 837 said:
Page 161 of 1991 (2) ZLR 159 (HC)
“. . . though we have no rule providing that the declaration shall not vary from the
summons, I think it is inherent in the very nature of pleadings that there should be some
practice whereby the declaration shall not materially vary from the summons. Otherwise,
supposing a man were to be allowed to issue summons for libel, and then, in his
declaration, ask for an account, or for payment for goods sold and delivered, it would be
impossible to connect the declaration with the summons. Yet there must be some
concatenation in the pleadings from beginning to end. Therefore, the summons must
contain an indication of what the defendant is to expect in the declaration; but it need
contain no more than that. The declaration must not introduce a new and totally different
cause of action, of which no mention was made in the summons.”
The summons in this matter relates to seduction damages, particulars of which are said to
be found in the plaintiff’s declaration annexed to the summons. But as mentioned above
the plaintiff’s declaration also concerns damages for breach of promise to marry.
The delict of seduction under Roman-Dutch common law is sui generis, whereas the
remedy for breach of promise is founded on an action of breach of contract and on an
action in delict.
As the plaintiff’s declaration has introduced “a new and totally different cause of action”
that was not mentioned in the summons, the plaintiff cannot obtain judgment based on
that cause of action.
In Katekwe v Muchabaiwa 1984 (2) ZLR 112 (SC) at 125-128 Dumbutshena CJ
observed:
“The action for seduction embraces in our general law two claims: one is for satisfaction
for the defloration of the girl and the other for lessening her chances of a successful
marriage. The girl seduced is entitled to be compensated for the loss of her virginity, and
for her diminished chances of making a suitable marriage. See Bull v Taylor 1965 (4) SA
29 (AD) at 39.
According to van den Heever
‘there are three requisites to a claim of damages on the ground of seduction: (1) that the
woman has been seduced, (2) that there has been sexual intercourse, and (3) that the
woman was a virgin up to the time of seduction’ (see Breach of Promise and Seduction at
p 45).
The difference between an action for seduction in the general law and under
Page 162 of 1991 (2) ZLR 159 (HC)
customary law is that only the guardian of a woman is entitled to claim and keep damages
for seduction under customary law. Another difference is that under customary law a
woman need not be a virgin at the time she is seduced. . . .
In my view the right under the general law to seduction damages is personal to the person
seduced. It is a delict. It cannot be surrendered to the guardian by an adult woman . . .
Seduction in customary law is based, so it seems to me, on the concept of ownership. The
father owns the daughter. If she is seduced and thus wronged, it is the father who is
wronged and who is entitled to damages. That might have been so under customary law
as long as the woman remained a minor under the guardianship of her father.
...
Does the father still have the right to sue for damages for the seduction of his major
daughter? The answer is simple. He has not because his daughter is a major and cannot
vest her own right in her father. He has lost his right under customary law to sue for
damages for seduction. . . The daughter can sue for damages for seduction under the
general law of Zimbabwe, she has now the capacity to do so. That she was given, so to
speak, by s 3 of Act 15 of 1982.”
In Card v Sparg 1984 (4) SA 667 (E) at 670C Zietsman J said:
“The action for damages for seduction is not an action founded on injuri since seduction
implies consent on the part of the plaintiff and where there is consent there can be no
injuria. However the principle of volenti non fit injuria is not applicable to the action
which is seen as an action sui generis. Seduction implies that the plaintiff has been ‘led
astray’ by the defendant and has fallen as a result of his seductive efforts, and she is
accordingly held to be entitled to claim compensation from him for the loss of her
virginity and the consequent impairment of her marriage prospects.
See in this connection McKerron The Law of Delict 7 ed at 162; Lee and Honoré The
South African Law of Obligations 2 ed para 610-613; Bull v Taylor 1965 (4) SA 29(A);
and Claassen v Van der Walt 1969 (3) SA 68 (T). Where the seduction has resulted in
pregnancy and the birth of a child the plaintiff is entitled to claim also the lying-in
expenses incurred in connection with the pregnancy, birth and care of the child . . . Jansen
J (as he then was) in the case of Lourens v Van Biljon 1967 (1) SA 703(T) . . . held,
however, that the plaintiff could claim maintenance for herself for the period immediately
before and after the birth of the child. Such maintenance is regarded as being not for the
benefit of the mother but for the
Page 163 of 1991 (2) ZLR 159 (HC)
benefit and in the interests of the child who requires the care of its mother during this
period, and the amount awarded is regarded as part of the plaintiff’s lying-in expenses.”
In assessment of damages regard must be had to all the circumstances of the case
including the social standing of the respective parties and the manner in which the
seduction took place, with factors that incline to raise awards being such as the
defendant’s taking advantage of the plaintiff’s intoxication (Botha v Peach 1939 WLD
153 at 157) or the defendant being much older than the plaintiff (De Stadler v Cramer
1922 CPD 16 at 20) or the plaintiff was seduced under a false promise of marriage
(Hannah Hart v Myer Yates (1896) 3 OR 201).
In her affidavit in terms of Rule 60 the plaintiff averred that in 1990 she fell in love with
the defendant when each promised to marry the other on December 28, 1990; that on
January 6, 1991 the defendant called her to his residence for purposes of finalising their
marriage arrangements and upon this having been done he seduced her when she was
aged 24 years; that she was a person of repute from the fact that she had remained a
virgin to the age of 24 years and was a respectable member of the Roman Catholic
Church; that she never had sexual intercourse with anyone until she was seduced by the
defendant; that she became pregnant as a result; that in February 1991 the defendant
refused to marry her falsely asserting that he was already married; that he refused to
maintain her during the pregnancy and that her feelings were greatly injured because of
the seduction. She indicated that she had finished advanced typing in 1990 and was due
to start a course on computers and so did not take a job. She averred that the defendant, a
resident of Seke, has been employed as an experienced stores clerk for years and so a
high-class person. She maintained that she lost her virginity and no longer has prospects
of entering into a suitable marriage and because of this she suffered damages in the
amount of $13 000.
In Mafukidze v Matsinde S-118-87, the parties were both teachers who had promised to
marry each other in 1985. The appellant became pregnant in December 1985 and the
award to her by the magistrate’s court of seduction damages of $600 was held by Korsah
JA not to be out of line with damages awarded in similar cases. This was in 1987.
Taking all factors into account and on the basis of ex aequo et bono the plaintiff is
certainly entitled to compensation and accordingly she is awarded seduction damages of
$1 100 and maintenance before, at the time of and soon after the confinement of $900
and costs on the magistrates court scale.
L v COMMISSIONER OF TAXES
1991 (2) ZLR 164 (HC)
Division: High Court, Harare
Judges: Smith J
Subject Area: Income tax appeal
Date: 11 January & 18 September 1991

Income tax — medical expenses — deduction as expenses incurred in trade or business

— expenses of a capital nature — domestic or private expenses.
Income Tax Act [Chapter 181] — ss 15(2)(a) and 16(1)(a) & (b).
The appellant, a legal practitioner, incurred medical expenses in undergoing an operation
to her eyesight. She sought to deduct from her taxable income the total amount of the
medical expenses, maintaining that such expenses were essential to enable her to carry on
her profession as a lawyer. The respondent Commissioner disallowed the claim as a
deduction relying on ss 15(2)(a) and 16(1) of the Income Tax Act [Chapter 181]. The
appellant objected to the assessment and thereafter appealed.
Held, medical expenses are not of the nature of expenditure incurred for the purposes of
trade or in the production of income, and as such are not deductible under s 15(2)(a).
Per incuriam, the medical expenses claimed did not fall to be classed as being of a capital
nature.
Held, in any event, medical expenses were of the nature of domestic or private expenses,
and the deduction of such expenses is prohibited by s 16(1)(a) and (b).
Cases cited:
Port Elizabeth Electric Tramway Co v Commissioner for Inland Revenue 1936 CPD 241;
(1936) 8 SATC 13 (C)
Commissioner for Inland Revenue v Genn & Co (Pty) Ltd 1955 (3) SA 293 (A); (1955)
20 SATC 113(A)
Page 165 of 1991 (2) ZLR 164 (HC)
New State Areas Ltd v Commissioner for Inland Revenue 1946 AD 610; (1946)14 SATC
155 (A)
Smith v Secretary for Inland Revenue 1968 (2) SA 480 (A); (1968) 30 SATC 35 (A)
Norman v Golder [1945] 1 All ER 352 (CA)
Murgatroyd v Evans-Jackson [1967] 1 All ER 881 (Ch)
Prince v Mapp [1970] 1 All ER 519 (Ch)
Mallalieu v Drummond [1983] 2 All ER 1095 (HL)
ITC 833 (1956) 21 SATC 324 (C)
Case 50 (1955) 5 CTBR (NS) 329
Case 22 (1981) 25 CTBR (NS) 165
Case 24 (1983) 26 CTBR (NS) 556
Commissioner for Inland Revenue v Hickson 1960 (1) SA 746 (A); (1959) 23 SATC 243
(A)
ITC 1132 (1969) 31 SATC 155 (R)
A P de Bourbon SC for the appellant
M J Gillespie for the respondent
SMITH J: The appellant is a legal practitioner. She developed cataracts in both eyes and
decided to obtain treatment urgently to restore her eyesight. She ascertained that the only
place in Africa where she could obtain the necessary treatment was Cape Town. By
March 1987 she had lost virtually all sight in one eye and had only limited vision in the
other. She was unable to travel on her own or drive herself. Consequently she asked her
mother to accompany her, undertaking to pay all her mother’s expenses. The two went to
Cape Town where an operation was performed to replace the defective lens of one eye.
The appellant incurred expenditure amounting to $4 200 on air tickets, accommodation
and the hire of a car in Cape Town, fees for medical treatment and hospital and drug
charges. When submitting her return for income tax purposes she claimed that
expenditure as having been incurred for the purpose of trade or in the production of
income and therefore deductible. The claim was disallowed. She objected and the
respondent disallowed the objection insofar as the claim was made in terms of s 15(2)(a)
of the Income Tax Act [Chapter 181] (hereinafter referred to as “Chapter 181”). He
allowed the maximum disability abatement of $2 000 in terms of s 16 of the Finance Act
[Chapter 179] in relation to the expenditure of the $4 200. The effect of allowing that
abatement was to reduce the tax payable by the appellant by $633,28 and the taxable
income of the appellant by $1 055, leaving a balance claimed by the appellant in terms of
s15(2)(a) of Chapter 181 of $3 145 (hereafter referred to as “the disputed amount”). The
appellant’s case was that she was entitled to a deduction of the
Page 166 of 1991 (2) ZLR 164 (HC)
disputed amount as being expenditure incurred in repairing her eyesight. The expenditure
was not covered by s 16(1) of Chapter 181 in that it was not a cost incurred by her in the
maintenance of herself and neither was it a domestic or private expense in the
circumstances. Furthermore, it was not expenditure of a capital nature in that it consisted
of a repair to an existing facility which enabled her to carry on her trade. Alternatively
her case was that s 15(2)(a) of Chapter 181 allowed expenditure to the extent it was
incurred for the purposes of trade or in the production of income and that, to the extent of
at least 50%, the expenditure was so incurred in that that was the prime purpose of having
her eyesight repaired.
The respondent’s case was that even were it not for the appellant’s professional need for
the sense of sight, she would in any event have incurred expense in having it restored and
any extent to which such restoration advanced her professional capabilities was
irrelevant. He averred that the expenditure was not deductible because it was of a capital
nature and it was not incurred in the production of income for the purposes of trade as
provided in s 15(2)(a) of Chapter 181. Any deduction was prohibited under s 16(1)(a) and
s 16(1)(b) of Chapter 181 in that the expenditure was for the maintenance of the taxpayer
or for private and domestic purposes. Alternatively, if it were held that the expenditure
was not of a capital nature and would not have been incurred but for the professional
pursuits and requirements of the appellant, that portion of the expenditure relating to her
mother was nevertheless not so incurred and any portion of the expenditure allowed as a
deduction to the extent that it was incurred in the production of income but would not
otherwise have been incurred ought not to exceed one-third of the total expenditure.
The appellant gave evidence in support of her case. She said that she became a partner in
a firm of legal practitioners in 1984 and handled civil, as opposed to criminal, work, in
conveyancing, estates, contracts and commercial fields. Her work involved a lot of
reading and paper work. In September 1986 she discovered that cataracts had formed in
her eyes and she began to experience difficulty in reading. Thereafter her vision
deteriorated rapidly. She had started wearing spectacles for reading purposes only during
her first year at university but after leaving university she began wearing spectacles
regularly. By February 1987 her right eye was very bad and she had it operated on in
March. In her left eye the condition deteriorated at a slower pace and it was operated on
in September 1987. By the time her right eye was operated on her vision was minimal.
She had to use a magnifying glass in order to be able to read. This had harmful effects in
that it slowed up her rate of working, made her lose her self-confidence and caused
embarrassment with clients.
Page 167 of 1991 (2) ZLR 164 (HC)
She got behind in her work, had to work longer hours and could not handle such things as
urgent petitions. A local ophthalmic surgeon said that an operation to her eyes could be
performed in Zimbabwe if she waited until the cataract grew over the entire lens. The
lens would be removed and she would have to wear spectacles with thick lenses or
contact lenses It would necessitate her waiting 18 to 24 months. She visited a specialist
in the Republic of South Africa who advised her that a new kind of operation had been
perfected which was simpler and more advantageous than the old-style operation that was
being performed in Zimbabwe. It would improve her vision in a few days. There were,
however, divergent views amongst ophthalmic surgeons as to the risks involved in the
new operation.
The appellant felt that if she wanted to continue practising law she could not wait to have
an old-style operation in Zimbabwe. She had to have the operation as soon as possible
which meant that she would have to go to the Republic of South Africa. She went to Cape
Town and had a lens implanted. The operation was very successful and she was able to
see objects within a few days of the operation, although her eyes had to be bandaged for
three weeks. She was in South Africa from 1-13 March and was accompanied by her
mother as she needed a sighted person to help her cope. She received a certificate from
the ophthalmic surgeon to the effect that she needed a travelling companion and with that
she was able to get a foreign currency allocation from the Reserve Bank of Zimbabwe to
cover the expenses of herself and her mother. Whilst in South Africa she spent one day at
a clinic and the rest of the time she stayed in a flat she and her mother rented. After the
operation on her right eye the appellant went to the United Kingdom to have a similar
operation on her left eye. Since the operations she has been able to resume her legal
practice. She appears in court, handles urgent applications and is able to carry out
research. Without the operations she would not have been able to continue her practice of
law. She said that had she not been a legal practitioner or engaged in some other
commercial field she might well have waited for a more convenient time, possibly when
on holiday in Cape Town, to have the operation. It is because she wanted to retain her
practice and her partnership in a legal firm that she had decided to have the first operation
done as soon as possible.
The relevant provisions of Chapter 181 on which the facts of this case hinge are s 15(2)
(a) and s 16(1)(a) and (b). Section 15 of Chapter 181 provides for the deductions allowed
in the determination of taxable income. Para (a) of s 15(2) allows as a deduction:
“(a) expenditure and losses to the extent to which they are incurred for the
Page 168 of 1991 (2) ZLR 164 (HC)
purposes of trade or in the production of the income except to the extent to
which they are expenditure or losses of a capital nature.”
Section 16 provides for cases in which no deduction shall be made. The relevant paras in
subs (1) are as follows:
“(a) the cost incurred by any taxpayer in the maintenance of himself, his family
or establishment;
(b) domestic or private expenses of the taxpayer . . .”
Mr de Bourbon pointed out that Chapter 181 does not contain a provision similar to that
in the Income Tax Acts of South Africa (s 23(g)) and England which prohibits as a
deduction any moneys which are not wholly or exclusively laid out or expended for the
purposes of trade. A similar prohibition had been contained in para (b) of s 24 of the
Income Tax Act 1954 (No. 16 of 1954) of the former Federation but had been repealed
by s 12 of Act No. 26 of 1954 of the Federal Legislature. Mr de Bourbon said that there
could be little doubt that the applicant needed her eyesight in order to be able to practise
as a legal practitioner. Without being able to read she would not be able to work
effectively and therefore her ability to earn an income would be impaired. Any
expenditure she incurred to improve her situation in that regard would be deductible. He
argued that the appellant would not have incurred the expenditure in question but for the
need to carry on the practice of a legal practitioner. Even though it was a one-off
payment, it enabled her to continue as a legal practitioner and was not a capital payment.
Mr Gillespie argued that the expenditure in question was not deductible because it was
not so closely connected to the professional practice of the appellant that it may be
regarded as the cost of performing it — Port Elizabeth Electric Tramway Co v
Commissioner for Inland Revenue (1936) 8 SATC 13 (C); 1936 CPD 241 where at p 246
Watermeyer AJP said:
“. . . all expenses attached to the performance of a business operation bona fide
performed for the purpose of earning income are deductible whether such expenses are
necessary for its performance or attached to it by chance or are bona fide incurred for the
more efficient performance of such operation provided they are so closely connected with
it that they may be regarded as part of the cost of performing it.”
In Commissioner for Inland Revenue v Genn & Co (Pty) Ltd (1955) 20 SATC 113 (A);
1955 (3) SA 293 (A), at pp 120, 121 in SATC Schreiner JA, after referring to the Port
Elizabeth Electric Tramway case, supra, referred to New
Page 169 of 1991 (2) ZLR 164 (HC)
State Areas Ltd v Commissioner for Inland Revenue (1946) 14 SATC 155 (A); 1946 AD
610 where the then Chief Justice said:
“The problem which arises when deductions are claimed is, therefore, usually whether
the expenditure in question should properly be regarded as part of the cost of performing
the income-earning operations or as part of the cost of establishing or adding to the
income-earning plant or machinery.”
Schreiner JA at p 121 went on to say:
“In deciding how the expenditure should properly be regarded the Court clearly has to
assess the closeness of the connection between the expenditure and the income-earning
operations, having regard both to the purpose of the expenditure and to what it actually
effects.”
In my opinion the expenditure in question cannot be said to be so closely connected with
the performance of the appellant’s legal practice as to be regarded as part of the cost of
performing it. Undoubtedly the expenditure was necessary to enable the appellant to be
able to carry on her legal practice, but it does not automatically follow that it can be
regarded as part of the cost of performing it. There are many things people do to maintain
their health and which could therefore be regarded as being necessary for the more
efficient performance of their business or income-earning operations. However
expenditure on such things cannot, in my view, be regarded as part of the cost of
performing such operations. In my opinion, expenditure on medical operations to the
body of a taxpayer is more analogous to expenditure on the taxpayer’s “machinery for
producing income” than on his “income-producing operations”. Accordingly expenditure
on maintaining or improving one’s health is, I feel, not a deduction provided for in s
15(2)(a) of Chapter 181. It is too remote from the income-producing operations of the
appellant.
In the light of my conclusions set out above, it is not necessary to investigate whether or
not the expenditure in question was of a capital nature. In Smith v Secretary for Inland
Revenue (1968) 30 SATC 35 (A); 1968(2) SA 480 (A) at p 488C-E Steyn CJ said:
“‘Expenditure of a capital nature’ is, of course, not a precise expression. It connotes a
relation between expenditure and capital close enough to draw the expenditure into the
ambit of capital. The features of that relationship are not readily definable with any
precision and our Courts have not attempted any comprehensive definition. The words
‘of a capital nature’ qualify ‘expenditure’. The Court below paraphrased these words as
Page 170 of 1991 (2) ZLR 164 (HC)
meaning ‘of a nature akin to that of capital’. As a description of the kind of expenditure
contemplated that may not be a misstatement. The Court, however, applied this meaning,
not to the expenditure, but to the concept of capital, and found that the ‘structure’
surrounding the appellant’s income-earning capacity is akin to capital, ie of a capital
nature, and from that premise concluded that the expenditure is of a capital nature. That, I
consider, is begging the issue.”
At p 490 he continued:
“Good health, an energetic disposition, initiative, tact, a winning personality, all these
and others are qualities which would be correctly described as assets in the production of
income, but it does not follow that, for the purposes here in question, they are assets in
the same sense as capital assets. As a genera proposition it cannot be said that income
postulates capital, no matter how the income is produced, so that every factor
contributing to its production is to be characterized as a capital asset. . . .
In the absence of any indications to the contrary — and I have found none — the word
‘capital’ has to be given its ordinary meaning. Broadly speaking and for present purposes,
it may be said to connote money and every form of property used or capable of being
used in the production of income or wealth. Such a commercial or business sense is the
sense in which one expects it to be used in the context here in question, and it is to capital
in that sense that, for the purposes of sec 11(2)(b) bis at any rate, expenditure is to be
related in order to determine whether or not it is expenditure of a capital nature.”
Although Holmes JA dissented from the decision of the majority which was delivered by
Steyn CJ, it was on the basis that the expenditure under consideration in that case was for
the purpose of defending the goodwill of the taxpayer’s professional practice and could
therefore be classed as expenditure of a capital nature. I concur with the views so ably
expressed by Steyn CJ and consider that expenditure incurred on medical treatment could
not be classed as expenditure of a capital nature.
Even if I am wrong in my conclusions concerning s 15(2)(a) of Chapter 181, I consider
that paras (a) and (b) of s 16(b) of Chapter 181 prohibit a deduction of the expenditure in
question as being incurred by the appellant in the maintenance of herself or as being a
domestic or private expense. In Norman v Golder [1945] 1 All ER 352 (CA) at 354 Lord
Greene MR said:
Page 171 of 1991 (2) ZLR 164 (HC)
“It is quite impossible to argue that a doctor’s bills represent money wholly and
exclusively laid out for the purposes of the trade, profession, employment or vocation of
the patient. True it is that if you do not get yourself well and so incur expenses to doctors
you cannot carry on your trade or profession, and if you do not carry on your trade or
profession you will not earn an income, and if you do not earn an income the Revenue
will not get any tax. The same thing applies to the food you eat and the clothes you wear.
But expenses of that kind are not wholly and exclusively laid out for the purposes of the
trade, profession or vocation. They are laid out in part for the advantage and benefit of
the taxpayer as a living human being. Para (b) of the rule equally would exclude doctor’s
bills, because they are, in my opinion, expenses of maintenance of the party, his family,
or a sum expended for a domestic or private purpose, distinct from the purpose of the
trade or profession.”
The above-quoted extract was cited with approval in Murgatroyd v Evans-Jackson [1967]
1 All ER 881 (Ch), Prince v Mapp [1970] 1 All ER 519 (Ch) and Mallalieu v Drummond
[1983]2 All ER 1095 (HL). In Murgatroyd’s case supra where a trade mark agent claimed
that changes for treatment in a private nursing home were deductible Plowman J held that
he could not draw any distinction between the case before him and Norman’s case supra
where Lord Greene took the view that the medical expenses in question were excluded
from deduction because they were “expenses of maintenance of the party, his family, or a
sum expended for a domestic or private purpose”. In Prince’s case supra the taxpayer was
a draughtsman who played a guitar part-time, partly as a hobby and partly as a
profession. He severed a tendon in his little finger which impaired his dexterity with the
guitar and so he underwent a tendon-grafting operation. He claimed the expenditure on
the operation as a deduction. Pennycuick J at p 526 said:
“I do not see how the expense of this operation could on any ordinary use of the words be
treated as an expense of maintaining the taxpayer, his family or establishment. On the
other hand, the second limb of para (b) is more or less automatically satisfied where para
(a) is satisfied, that is to say: a sum which is expended in part for the purposes of a trade
and in part for the purposes of a hobby is a sum expended for some other domestic or
private purpose distinct from the purposes of the profession.”
He emphasized that he based his conclusion on the finding that the expense was incurred
to enable the taxpayer to continue to practise his hobby of playing the guitar as well as to
exploit his skill professionally by playing it. If the finding
Page 172 of 1991 (2) ZLR 164 (HC)
had been that the taxpayer would not have undergone the operation had he not wished to
continue to play the guitar professionally, then he might well have come to a different
conclusion. In ITC 833 (1956) 21 SATC 324 (C) Herbstein J was of the view that the
words “domestic or private expenses” were used in their ordinary natural signification
and not in any technical sense, and that one could do no better than to adopt what was
said in Case 50 in (1955) 5 CTBR (NS) 329 at pp 331-2:
“The words ‘private or domestic’ appearing in s 51 we take to be used in their ordinary
natural signification and not in any technical sense. Without attempting an exhaustive
definition of either variety of expenditure, losses or outgoings of a private nature we take
to mean here losses or outgoings relating solely to the person incurring them as an
individual member of society where that society is the society of human being, eg,
travelling expenses incurred by a person to and from his place of employment (see
particularly 12 CTBR Case 34 (3)). Losses or outgoings of a domestic nature we take to
mean here losses or outgoings which relate solely to the house, home, or family
organisation, of the person incurring them, eg, expenses paid by a person to a domestic to
enable the former to carry on his or her own employment.”
In the case before him Herbstein J held that the cost of wages of a domestic servant
employed to enable the taxpayer’s wife to take employment was expenditure of a
domestic nature and so inadmissible as a deduction. He held that the expenditure was laid
out “at any rate in part, for the advantage or benefit of the taxpayer as a living human
being . . . It was laid out for the purposes of comfortable living” In Australian Income
Tax Law and Practice by Mannix and Harris vol 2 at p 2018 in the section dealing with
private or domestic expenditure the following cases are mentioned:
“The cost of treatment by a hypnotherapist for speech defects was held to be of a private
nature notwithstanding that it had been suggested to the employee by his employer
[(1981) 25 CTBR, (NS) Case 22].
At a compulsory medical examination an airline pilot was advised to undertake a physical
fitness course. It was held in (1981) 25 CTBR (NS) Case 26 that the cost of the course
was of a private or domestic nature and was not an allowable deduction . . .
In (1981) 25 CTBR (NS) Case 43 a cine-camera operator engaged in filming news items
who sought to improve his standard of work purchased sun glasses and a digital watch,
and both items were used only on work
Page 173 of 1991 (2) ZLR 164 (HC)
assignments. His employer gave evidence that sufficient equipment was issued to the
taxpayer and the Board held that the expenditure was of a private nature and not
deductible. And see 26 CTBR (NS) Case 73 . . .
Expenditure on facilities necessitated by physical disabilities is private expenditure. So
also is expenditure on an attendant : (1982) 25 CTBR (NS) Case 96.
A professional dancer successfully claimed deductions for hairdressing for a specific role,
leg-waxing to improve the appearance under the theatre lights, and massage treatment
from a chiropractor to maintain her physical condition. Expenses associated with
evening-wear necessary when meeting guests at official receptions was held to be of a
private nature and not an allowable deduction: (1982) 26 CTBR (NS) Case 24 . . .
A primary producer claimed that a hearing aid used by him in connection with his
business was a loss or outgoing incurred by the partnership of which he was a member. It
was established that the hearing aid was necessary because of the taxpayer’s hearing
difficulty, but his argument that it was akin to a business radio was rejected on the
grounds that the expenditure was of a private nature: (1983) 26 CTBR (NS) Case 82.”
In Case 22, which is the first case referred to above, the Chairman of the Board, Mr KP
Brady said at p 166:
“3. We do not need to consider whether the expenditure came within the
phrase ‘incurred in gaining or producing the assessable income’ for we are clearly of the
opinion that it was in any event expenditure of a private nature, and as such excluded
from deductibility. Expenditure of a private nature has been described to mean ‘losses or
outgoings relating solely to the person incurring them as an individual member of society
where that society is the society of human beings’ (refer (1955) 5 CTBR (NS) Case 50,
329 at 331-332). The fees paid to the hypnotherapist fall within this description, and so
represent expenditure of a private nature, which is expressly excluded from deduction by
s 51(1).
4. Too much should not be made of our omission to discuss whether the
outgoings concerned fall within the first positive limb of the section or not. We would
simply repeat that because of the conclusion expressed in para 3 above, the question
cannot arise. But we might add a statement from the judgment of Menzies J in FCT v
Hatchett (1971) 71 ATC 4, 184 at 4,186; 2 ATR 557 at 560,which seems apposite. His
Page 174 of 1991 (2) ZLR 164 (HC)
Honour said that ‘it must be a rare case where an outgoing incurred in
gaining assessable income is also an outgoing of a private nature. In most cases the
categories would seem to be exclusive. So, for instance, the payment of medical
expenses’ (or, one might interpolate, of quasi-medical expenses such as are concerned in
the present case) ‘is of a private nature and is not incurred in gaining assessable income
notwithstanding that sickness would prevent the earning of income’.”
Similarly in Case 82, which is the last case referred to above, the Chairman of the Board,
Mr KP Brady said at p 557:
“4. It came out in the evidence that the hearing aid was purchased for A’s own
use. He informed us that his hearing was so bad that the shearers refused to work unless
he wore the hearing aid so that they could communicate with him. He also had a need to
communicate with stock agents. He reported that their first question on arriving at his
property was, ‘have you got your hearing aid?’ From our own observations we would
agree that communications would have been extremely difficult, if not impossible, had he
not been using the hearing aid. We therefore see the hearing aid as a means of
ameliorating his disability in the earning of his assessable income.
5. Despite that connection between the outlay of the partnership and A’s
income, we see the primary cause of the expenditure as being the correction of a
disadvantage personal to A. It is in that vital aspect that the hearing aid differs from those
items alleged by A to be similar, such as radios, inter-com systems, two-way radios,
head-phones and telephones. These latter items, being items of capital, may or may not
be deductible by way of depreciation allowances depending upon the use to which they
may be put. We see the outlay on the hearing aid as not being ‘necessarily incurred in
carrying on a business for the purpose of gaining or producing (assessable) income’, but
as one incurred to help overcome an unfortunate disability suffered by A. We therefore
regard the outlay as being of a private nature, and as such specifically excluded from
deduction under the terms of s 51(1).”
In Commissioner for Inland Revenue v Hickson (1959) 23 SATC 243(A); 1960 (1)
SA746(A) Beyers JA said at p 750-1
“‘Domestic and private expenses’ are, I should say, without attempting an exhaustive
definition, expenses pertaining to the household, and to the
Page 175 of 1991 (2) ZLR 164 (HC)
taxpayer’s private life as opposed to his life as a trader.”
This statement was quoted with approval by Whitaker QC in ITC 1132 (1969) 31
SATC155 (R).
It appears to me that in all the cases I have referred to, medical expenses incurred to
maintain the health or well-being of the taxpayer are regarded as “domestic and private
expenses”. The only case where an exception might have been made was in Prince’s case
supra where Pennycuick J said that if the taxpayer had undergone the tendon-grafting
operation solely in order to be able to continue to play the guitar professionally then he
might have held that the expenditure was not “domestic and private”. Such cases would
not be likely to occur very often.
In the light of the above, I have no hesitation in holding that the expenditure incurred by
the appellant in connection with the operation to restore the sight in her right eye was a
private expense, notwithstanding that blindness would prevent her earning an assessable
income, and was therefore a prohibited deduction in terms of s 16(b) of Chapter 181.
The appeal is dismissed.
Atherstone & Cook, appellant’s legal practitioners
Civil Division, Attorney General’s Office, respondent’s legal practitioners
DW HATTINGH & SONS (PVT) LTD v COLE NO
1991 (2) ZLR 176 (SC)
Division: Supreme Court, Harare
Judges: Manyarara JA, Korsah JA & Ebrahim JA
Subject Area: Civil appeal
Date: 29 July & 23 September 1991

Practice and procedure — special plea — lis alibi pendens — court has discretion —
balance of equities and convenience.
Appellant issued summons claiming transfer of a ranch. Having encountered difficulties
in service of summons he took the matter no further. Respondent subsequently applied on
notice of motion for cancellation of the agreement of sale and ejectment. Appellant then
filed a plea in abatement of lis alibi pendens.
The special plea was dismissed. The appellant thereafter appealed.
Held, although the issue of summons rather than service marked the commencement of
proceedings when considering whether an action has been commenced in time, this rule
is not immutable for other purposes.
Held, further, that the court has a discretion whether to order or grant a stay of
proceedings on the grounds of lis alibi pendens having regard to the equities and balance
of convenience in the case.
Appeal accordingly dismissed.
Cases cited:
Nxumalo v Minister of Justice & Ors 1961 (3) SA 663 (W)
Marine & Trade Insurance Co Ltd v Reddinger 1966 (2) SA 407(A)
Baldwin v Baldwin 1967 RLR 289 (G)
Bains Motors v Piek 1955 (1) SA 534 (A)
Macape (Pty) Ltd v Executrix Estate Forrester 1991(1) ZLR 315 (SC)
Young v van Rensburg 1991 (2) ZLR 149 (SC)
Page 177 of 1991 (2) ZLR 176 (SC)
D P Carter for the appellant
A P de Bourbon SC for the respondent
KORSAH JA: This is an appeal against a judgment of Muchechetere J in the High Court
Bulawayo in which he granted the respondent’s prayer:
(a) that the agreement of sale between the parties has been validly cancelled;
(b) that the appellant shall forthwith vacate the farm and that the Registrar of the
High Court is authorised forthwith to issue a writ to eject from the farm the appellant and
all those claiming under it; and
(c) that the appellant shall bear the costs of the proceedings.
The uncontroverted facts set out in the respondent’s heads of argument from which the
following chronology of events is culled are as follows.
On 16 July 1985, the deceased Albertus Lambertus Prinsloo sold Welkom Ranch to the
appellant at a price of $65 000 payable as follows:
$5 000 payable on the 30th September 1985
$5 000 payable on the 30th September 1986
$5 000 payable on the 30th September 1987
$5 000 payable on the 30th September 1988
$5 000 payable on the 30th September 1989
$42 000 payable not later than 30 September 1990.
Clause 7 of the said agreement provided that:
“In case of non-payments of any indebtedness on the prescribed date the seller may in his
discretion cancel the sale and repossess the property and hold the buyer liable for any
losses whatsoever the seller may have incurred and which can be claimed through the
courts. All monies paid up to that date will be forfeit to the seller.”
Between July 1985 and the end of 1988, the appellant paid a total of $18 000 in respect of
the farm. Such payments were often late and the deceased often had to resort to the use of
attorneys in order to enforce payment.
The demise of Albertus Lambertus Prinsloo occurred on 30 July 1989. In accordance
with the wish expressed in his last will and testament, his wife, Anna Aletta Prinsloo was
appointed to be the executrix testamentary to his estate. On
Page 178 of 1991 (2) ZLR 176 (SC)
6 October 1989, Albertus Lambertus Prinsloo Jnr, being the son of the deceased and the
executrix, describing himself as acting for and on behalf of the executrix of the
deceased’s estate, wrote to the appellant drawing his attention to the fact that the
instalment for 30 September 1989, had not been paid. The appellant denied receipt of this
letter even though it was correctly addressed to the domicilium stated in the agreement of
sale.
On 19 October 1989, a registered letter was dispatched by Prinsloo Jnr, to the domicilium
of the appellant stipulated in the agreement of sale, giving the appellant until 27 October
1989, to make payment, failing which the agreement would be cancelled. The appellant
admits receiving the letter of 19 October 1989, and claims that it immediately forwarded
a cheque to the relevant Bank in Bulawayo in settlement of the outstanding instalment of
$5 000. However, this cheque was post-dated for 15 November 1989.
Not having received payment by 27 October 1989, Prinsloo Jnr again wrote to the
appellant at its domicilium on 30 October 1989, cancelling the agreement of sale. On 21
December 1989, Webb, Low & Barry, representing the estate of the late AL Prinsloo
wrote to the appellant confirming cancellation of the deed of sale agreement and
intimating that that firm of attorneys had been instructed to apply for an order of
ejectment. On 12 January 1990, Webb, Low & Barry again wrote to the appellant
complaining that the appellant had neither responded to their letter of 21 December 1989,
nor taken any steps to vacate Welkom Ranch, and confirmed that they were proceeding
with an application for an order of ejectment.
On 16 January 1990, Mr Hattingh, on behalf of the appellant, telephoned the respondent’s
duly appointed representative, Mr Robert Hepburn Cole, senior partner in Webb, Low &
Barry, to inform him that he (Mr Hattingh) had returned from holiday to find the
threatening letters from both Prinsloo Jnr and Mr Cole.
On 14 February 1990, the attorney of the appellant wrote to the deceased averring that the
appellant had complied with all its obligations in terms of the agreement of sale and has a
last payment of $42 000 due on 30 September 1990. In that same letter appears the
following paragraph:
“I am advised by my client that you have been advertising the property in South Africa as
a swop of the property in Mwenzi for a property in South Africa. As you know this is a
clear breach of the Exchange Control Regulations.”
Page 179 of 1991 (2) ZLR 176 (SC)
On 12 March 1990 the appellant commenced proceedings by summons in case no. HC
889/90 claiming an order that the respondent take all necessary steps to transfer to the
appellant the farm called Welkom Ranch against payment of the balance of the purchase
prices of $42 000. Service of the said summons was attempted on the respondent on 16
March 1990, without success, because of Mr Cole’s refusal to accept service on the
ground that he was not the administrator of the deceased’s estate. Up to date that
summons resides in the Registry and has yet to be properly served.
Acting in terms of letters of executorship issued by the Master of the Supreme Court in
Cape Town, South Africa, Anna Aletta Prinsloo executed a power of attorney on 2
October 1989, in favour of Prinsloo Jnr to generally manage the estate of the deceased
and take all such actions that he deems necessary for the benefit of the deceased’s estate.
Clause 15 of the power of attorney recites that:
“This power of attorney and instruction is also applicable to any assets of the estate
which is situate outside the Republic of South Africa.”
On 21 December 1989 the respondent received letters of instruction from Prinsloo Jnr
with copies of the letters dated 6 September, 19 October and 30 October 1989,
aforementioned, addressed to the appellant, enclosed. It was upon the receipt of these
instructions that Webb, Low & Barry, as attorneys for Prinsloo Jnr, directed
correspondence dated 21 December 1989 and 12 January 1990 to the appellant,
confirming cancellation of the deed of sale and subsequently applied for the grant of
letters of administration to the respondent.
It was only on 14 July 1990, that the letters of administration of the respondent were
signed by the Master. Thus clothed with the legal authority to commence proceedings for
and on behalf of the estate, the respondent initiated proceedings by way of notice of
motion, as nomine officii, against the appellant for the prayer granted by the trial court
and with which the appellant is aggrieved and dissatisfied.
To the respondent’s application, the appellant filed a plea in abatement of lis pendens,
contending that he had instituted proceedings by summons in respect of the same subject-
matter against the respondent anterior to the commencement of the motion proceedings
and that the motion proceedings should be stayed to abide the decision in case no. HC
889/90. The same issue is again raised in this appeal.
The general rule is that the issue of a summons, and not the service of it,
Page 180 of 1991 (2) ZLR 176 (SC)
constitutes the commencement of proceedings. This rule may be absolute only where a
statute requires a person to institute proceedings within a specific period. In such case,
the issue of the summons within the stipulated period, even without the service of it,
constitutes a commencement of proceedings to stop the cause of action being prescribed
by the effluxion of time. See Nxumalo v Minister of Justice & Ors 1961 (3) SA 663 (W);
Marine & Trade Insurance Co Ltd v Reddinger 1966 (2) SA 407 (A) at 413D-E.

The rule, however, is not otherwise immutable. As Lewis J said in Baldwin v Baldwin
1967 RLR 289 (G) at 190D:
“The court has a discretion to order or refuse a stay of proceedings on the grounds of lis
alibi pendens, and in the exercise of that discretion it will have regard to the equities and
to the balance of convenience in the matter. (See Michaelson v Loweinstein, 1905 S 324;
Osman v Hector 1933 CPD 503; and Loader v Dursot Bros (Pty) Ltd 1948 (3) SA 136
(T).)”
In the instant case, clause 7 of the agreement provided for the cancellation of the
agreement in the event of non-payment of an instalment on the agreed date. In order to
bring about this situation it was necessary to place the appellant in mora. Since by 2
October 1989, Prinsloo Jnr had been granted a power of attorney by the executrix to act
as her lawful attorney in all matters pertaining to the deceased estate, the letters of 6 and
19 October 1989, which were sent to the domicilium did precisely that. Even if it is
accepted that the first of these letters went astray, it is admitted that the second letter was
received by the appellant.
Instead of making payment by 27 October 1989 as demanded, the appellant dispatched a
post-dated cheque, the date of payment of which was beyond the period given for the
making of payment. Whereas by modern commercial practice it has become acceptable
for a debtor to effect payment by cheque and for a creditor to accept a cheque in payment
of a debt, unless otherwise agreed by the parties a post-dated cheque does not relieve the
debtor of the obligation to make payment on due date.
[As Professor Christie points out in his work Business Law in Zimbabwe at p 104:
“Unless the contract or (where admissible in evidence) the surrounding circumstances
indicate to the contrary, performance must be exact (in forma specifica) and equivalent
performance (per acquipollens), even if equally or more advantageous to the creditor, will
not be acceptable.
Page 181 of 1991 (2) ZLR 176 (SC)
This principle was well expressed by Beadle ACJ in Holmes v Palley 1975 (2) RLR 98
(A) 105:
‘If A agrees to buy a particular white cow from B and B is unable to supply that white
cow but is able to supply a black cow, and the evidence proves clearly that the black cow
is every bit as good as the white cow, perhaps even a better cow than the white cow, B
cannot insist on making A accept the black cow instead of the white cow because, in
terms of the contract, it was the white cow which A agreed to buy and not the black cow.
It is not for the court to remake the contract of the parties’.”]
The appellant, having been placed in mora, was given up to 27 October 1989 to make
good his default. Instead of complying with the demand and sending a cheque which was
payable on due date, he dispatched a post-dated cheque to the respondent. This does not
constitute compliance with the demand to pay or payment on due date, and the court
cannot compel the respondent to accept a payment which does not comply with the
agreement between the parties. In the circumstances the appellant cannot rely on payment
by a post-dated cheque which at best represents only a hope of being in funds at the date
of maturity, in order to avoid the consequences of being placed in mora. In any event the
cheque was referred to drawer and not met.
With regard to the lex commissoria it was clear and unambiguous and there was no
acceptable evidence from the appellant that the deceased waived any rights in terms of
the agreement, particularly in respect of the due date of payment. There is indeed
evidence to the contrary on record that the deceased personally wrote two letters to the
appellant to insist on compliance with due date and eventually had to resort to lawyers at
one stage to enforce payments. Such evidence does not accord with any waiver of rights
under the lex commissoria to sustain a belief by the appellant that the late payment of
instalments was acceptable to the deceased. As van den Heever JA said in Baines Motors
v Piek 1955 (1) SA 534 (A) at p 544A:
“A lex commissoria was itself a pactum adjectum. If agreed upon without further
qualifications, it merely resulted in the recision of the sale, both parties making restitution
(Voet 18.3.2. and 3).”
Accordingly there was no defence which could defeat the respondent’s right to evict the
appellant from the premises. And such right having crystallised earlier than the remedy
sought by the appellant in case no. HC 889/90, the balance of convenience lay with
proceeding with the notice of motion proceedings, and the
Page 182 of 1991 (2) ZLR 176 (SC)
learned trial judge cannot be faulted in the exercise of his discretion to entertain the
respondent’s application despite the earlier issue of summons in case no. HC 889/90.
It was also contended on behalf of the appellant that the agreement of 7 July 1985 was
tainted with illegality because it was alleged that to ensure that the deceased received the
proceeds of sale of Welkom Ranch, a director of the appellant who was living in South
Africa entered into a collateral agreement with the deceased in South Africa on 10 July
1985 to pay the instalments stipulated in the agreement of 7 July 1985 in rands to the
deceased, who was also resident in South Africa at the time; and that he did pay such
instalments to the deceased on due date and that as far as could be recollected the last
payment was sent to Prinsloo Jnr via his bankers in Nelspruit where he was living at that
stage.
In fact, the agreement produced as evidence of this South African transaction was dated
30 September 1985. The amounts stipulated in the collateral agreement produced as
evidence of illegality are different from those stated in the agreement which the
respondent was seeking to enforce. The amounts in the alleged collateral agreement are
stated in rands which are not the equivalent of the same amounts stated in Zimbabwe
dollars in the agreement of 7 July. Furthermore, the original allegation of illegality was
that Prinsloo Jnr had advertised the farm for a swop of property in South Africa and not
that the deceased had sold property in Zimbabwe and accepted payment abroad. As Mr
de Bourbon rightly pointed out, if the payments in South Africa were to be a form of
guarantee it is surprising that the document signed was not simply a guarantee and that
moneys were actually paid to the deceased.
The letter from Mare Kruger & Lourens (Attorneys) dated 20 July 1988, written at the
instance of the deceased to the appellant reads:
“Dear Sir,
AL Prinsloo: Deed of Sale: Welkom Ranch
We have been instructed by our client as above-mentioned that you have neglected to pay
the instalment of $5 000-00 of the purchase price of the above property, which became
due and payable on 30th September 1987.
Our client has instructed us to grant you the opportunity to pay the said amount into his
account No. 0779962 at the Beit Bridge Branch of Standard Bank on or before the 10th
August 1988 failing which our client shall exercise his rights as set out in paragraph 7 of
the above Deed of Sale.”
Page 183 of 1991 (2) ZLR 176 (SC)
It was not denied that this letter was received by the appellant.
If the collateral agreement in South Africa had been entered into on either 10 or 30
September 1985, and all payments had been made in rands on due date to the deceased in
South Africa as deposed to by Frederick Carel Hattingh, why would the deceased employ
the services of an attorney to demand due compliance with the terms of the original
agreement or suffer the consequence spelt out in paragraph 7 of that agreement? Why,
indeed, would the deceased direct that payment be made into his account at Beit Bridge
in conformity with paragraph 4.2 of the original agreement if he has already received
payment in rands.
Paragraph 4.2 reads:
“All monies shall be paid into the Account of ALK Prinsloo Standard Bank Beit Bridge,
Account No. 077992 and all payments shall be free of any commission, exchange rates or
any deduction whatsoever.”
I am in agreement with Mr de Bourbon that these facts militate against the assertion that
there was a collateral illegal agreement entered into by the deceased and the appellant in
South Africa.
Even if such an agreement were entered into by the deceased with the appellant, that
collateral agreement is not the one which the respondent sought to enforce, and the
agreement sought to be enforced is not tainted by any illegality attaching to the collateral
agreement entered into in South Africa. See Macape (Pty) Ltd v Executrix Estate
Forrester 1991(1) ZLR 315 (SC) and Young v van Rensburg 1991 (2) ZLR 149 (SC).
The issue was raised for the first time in the appellant’s heads of argument, and
contended by Mr Carter, that the provisions of the Conventional Penalties Act [Chapter
42] do not appear to have been considered by the trial court. He submitted that the
granting of the application resulted in a penalty on the appellant which was unfairly out
of proportion to the prejudice suffered by the respondent.
He also contended that in cases of this nature, where a lex commissoria falls for
determination, motion proceedings are an inappropriate vehicle by which to conduct the
matter, and that this aspect of the case should have been considered by the trial court in
the exercise of its discretion.
Although in the written submissions to the trial court counsel for the appellant
Page 184 of 1991 (2) ZLR 176 (SC)
stated that:
“In the absence of reliance upon the lex commissoria the breach is not sufficient to justify
cancellation of the contract”,
the Conventional Penalties Act was not expressly mentioned and the trial court cannot be
faulted for paying no heed to it. It could only exercise its discretion on the basis of the
issues canvassed by the parties. In any event Prinsloo Jnr deposed to the fact that he
offered “to alleviate matters for the appellant by means of entering into a short term lease
agreement to enable them solve their problems apropos foot and mouth disease
restrictions etc . . .” Moreover, if the appellant has suffered any loss it could still bring an
action to recover any amount it considers due to it.
In the result the appeal is dismissed with costs.
Manyarara JA: I agree.
Ebrahim JA: I agree.
Ali Ebrahim, appellant’s legal practitioners
Webb, Low & Barry, respondent’s legal practitioners
AGRAMAC (PVT) LTD v CHISVO & ANOR
1991 (2) ZLR 185 (SC)
Division: Supreme Court, Harare
Judges: McNally JA, Korsah JA & Ebrahim JA
Subject Area: Civil appeal
Date: 23 September 1991

Practice — superior court — representation in — company can only be represented by

legal practitioner.
A company, being a fictitious person and incapable of appearing in person, can only be
represented in the High Court or Supreme Court by a legal practitioner. No postponement
allowed to enable such representation to be obtained since appeal had no prospect of
success.
Cases cited:
Alino & Anor v Alino; Frylink v Dudhia & Anor HH-181-90 (not reported)
Ramsey v Fuchs Garage (Pty) Ltd 1959 (3) SA 949 (C)
Dormehl’s Garage (Pty) Ltd v Magagula 1964 (1) SA 203 (T)
Stuart Nixon Estate Agency (Pty) Ltd v Brigadoon (Pty) Ltd & Anor 1970 (1) SA 97 (N)
Yates Investments (Pty) Ltd v Commissioner for Inland Revenue 1956 (1) SA 364 (A)
A director of appellant in person
First respondent in person
McNALLY JA: Mr and Mrs Chisvo sued Agramac (Pvt) Ltd and the Registrar of Deeds
in the High Court seeking an order that the company (which I will call Agramac) should
sign all necessary papers to effect transfer of 95 Chiltern Drive, Waterfalls (the property)
to them. Failing that, they asked that the Deputy Sheriff be directed and empowered to
sign the relevant papers.
Page 186 of 1991 (2) ZLR 185 (SC)
The application was made on notice of motion and was subsequently referred to trial. The
Registrar of Deeds opted to abide by the decision of the court. On 18 July 1990 an order
was made, with costs, substantially as prayed. The company then appealed.
At the appeal hearing the company/appellant was represented by Mr van der Merwe
while Mr Chisvo appeared in person and on behalf of his wife.
At the outset I asked Mr van der Merwe whether he (as a non-lawyer) had any authority
to appear for the company, and whether in any event a company could appear in the
Supreme Court otherwise than through a legal practitioner. Understandably, he was
unable to answer the latter question. As to the former, he undertook to lodge a proper
resolution by the company authorising him to represent it. It appears that it is a family
company, of which he is the moving spirit. The resolution was to be lodged by 4 pm on
Friday 27 September. (This has been done.) Compare Alino & Anor v Alino; Frylink v
Dudhia & Anor HH-181-90 (not reported).
The latter question is more difficult. In my view, however, a company can only be
represented in the High Court or the Supreme Court by a legal practitioner. See Ramsey v
Fuchs Garage (Pty) Ltd 1959 (3) SA 949 (C); Dormehl’s Garage (Pty) Ltd v Magagula
1964 (1) SA 203 (T); and Stuart Nixon Estate Agency (Pty) Ltd v Brigadoon (Pty) Ltd &
Anor 1970 (1) SA 97 (N) at 102D-E. In Yates Investments (Pty) Ltd v Commissioner for
Inland Revenue 1956 (1) SA 364 (A) the Appellate Division in South Africa refused to
hear an individual who claimed to be the sole beneficial shareholder in the appellant
company. I am convinced there have been similar decisions in this jurisdiction, though
none seem to have been reported. The simple logic is that we allow a person to appear
either in person or through a legal practitioner (the position is different in the
Magistrate’s Court by reason of the provisions of Order 4, Rule 1 of the Rules — SI 290
of 1980). But a fictitious person cannot appear in person. Therefore it must appear
through a legal practitioner. Compare the English practice as set out in Order 5 Rule 6(2)
of the Rules of the Supreme Court.
[Editor's note: The remainder of the judgment is not relevant to the report. On the merits
the appeal had no prospects, and was dismissed.]
Korsah JA: I agree.
Ebrahim JA: I agree.
S v HUSSEY
1991 (2) ZLR 187 (SC)
Division: Supreme Court, Harare
Judges: McNally JA, Korsah JA & Ebrahim JA
Subject Area: Criminal appeal
Date: 14 September 1991
Criminal procedure — bail pending trial — factors to be considered — Criminal
Procedure and Evidence Act [Chapter 59] s 106(3) — onus on applicant.
The appellant was arrested and charged with two counts of theft of a motor vehicle. He
applied to a judge in Chambers for bail. Bail was refused and he appeals against that
decision.
Held, that in a consideration of an application for bail the judicial officer must take into
account the provisions of s 106 (3) of the Criminal Procedure and Evidence Act [Chapter
59].
Held, that an onus lies on an applicant to show, on a balance of probabilities, that his
admission to bail would not prejudice the interests of justice.
Held, that the fact that an applicant is facing a serious charge is never enough to justify
him being held in custody.
Held, that the prosecutor should place before the court cogent reasons, supported by
information and evidence in opposing an application for bail.
Held, that the prosecutor had failed to do this and this had led to the learned judge a quo
misdirecting himself in refusing to grant bail.
Held, that the appellant was entitled to bail subject to terms and conditions.
Cases cited:
S v Chiadzwa 1988 (2) ZLR 19 (SC)
S v Maratera S-93-91 (not reported)
Attorney-General v Blumears 1991 (1) ZLR 118 (SC)
McNabb v United States 318 US 332
Page 188 of 1991 (2) ZLR 187 (SC)
S v Fourie 1973 (1) SA 100 (D)
J B Colegrave for the appellant
A Guvava for the respondent
EBRAHIM JA: The appellant is to face trial on a charge of two counts of theft of motor
vehicles. He applied to a judge in Chambers for bail. The learned judge refused to grant
the appellant bail. He appealed against that decision to this court.
The granting of bail to an offender in this country is governed by the provisions laid
down in s 106(3) of the Criminal Procedure and Evidence Act [Chapter 59]. These
provisions were given consideration by Dumbutshena CJ in the case of S v Chiadzwa
1988 (2) ZLR 19 (SC) where, at p 20E-F, he stated:
“In my view, it is not proper to refuse bail just because the court has set down the date of
hearing of the case. It does not seem to me that that approach safeguards the liberty of the
accused, who must decide whether to attend his trial when out on bail or to remain in
custody for reasons beyond his means of control. In the instant case the 19th September
1988 was far away. There may be exceptional cases when the date set down for trial is a
few days away and the releasing of the accused would create transport or accommodation
problems for him. This reason alone is not good enough. There must be other reasons
which, when coupled with a fixed trial date, compel the court to refuse bail.”
See also S v Maratera S-93-91.
The Attorney-General, who opposed the granting of bail to the petitioner when he applied
for bail before a judge in Chambers, did so on the grounds that the appellant was likely to
interfere with witnesses and that he was likely to abscond and not face the charges laid
against him at his trial. The State also relied on the fact that the charges levelled against
the appellant were serious charges and that the appellant has a known association with a
convicted criminal.
The learned judge a quo gave three reasons for refusing bail. These are —
1. The nature of the crime and the risk of a long term of imprisonment;
2. A well-grounded fear of interference with witnesses re 2 of the 4 counts
where investigations are still in progress; and
Page 189 of 1991 (2) ZLR 187 (SC)
3. His business association with one Raphael Chakanetsa, who has been
convicted of the same offence.
In this country the law requires a judge or magistrate who is considering a bail
application to take into account the provisions laid down in s 106(3) of the Criminal
Procedure and Evidence Act [Chapter 59]. Subsection (3) reads:
“(3) In any case in which the judge or magistrate has power to admit the accused person
to bail, he may refuse to admit such person if he considers it likely that if such person
were admitted to bail he would —
(a) not stand his trial or appear to undergo the preparatory examination or to receive
sentence; or
(b) interfere with the evidence against him; or
(c) commit an offence;
but nothing in this subsection shall be construed as limiting in any way the power of the
judge or magistrate to refuse to admit an accused person to bail for any other reason
which to him seems good and sufficient.”
Two of the above matters were considered by the judge a quo. The third matter, that is,
whether if admitted to bail the appellant would “commit an offence”, was not considered.
It was never part of the State’s allegation that the appellant was likely to commit further
offences should he be allowed to go free on bail.
It is true that there lies an onus on the appellant to show, on a balance of probabilities,
that his admission to bail would not prejudice the interests of justice. It is equally true
that the factor that the crimes with which the appellant is charged, if he is convicted,
would result in him facing a long term of imprisonment. These are factors which the
learned judge a quo could properly have regard to in determining whether the appellant
should have been granted bail. See S v Chiadzwa supra and S v Maratera supra. A careful
scrutiny of both these cases, however, reveals that there were more than bald assertions
made by the State that the accuseds were likely to interfere with witnesses who may be
called by the State.
In the Chiadzwa case supra the police made serious allegations against Chiadzwa that he
was likely to interfere with witnesses and there was evidence put before the judicial
officer to that effect even though the appellant denied it. In the Maratera case supra there
was evidence that there had been an interference with the course of justice and that factor,
taken together with other factors, provided sufficient reasons for the refusal of bail.
Page 190 of 1991 (2) ZLR 187 (SC)
I do not understand that either the Chiadzwa or the Maratera cases supra are authority for
the proposition that the mere fact that an offender is facing a serious charge, albeit a very
prevalent offence, justifies his incarceration pending his trial. It is clearly a factor that
should be taken account of, together with other factors, in determining whether a person
should be kept in custody until the time of his trial, but it can never be the only factor to
justify keeping alleged offenders in custody. It is a well-established principle of our law
that a man is innocent until proved guilty. To disregard this very well-founded principle
and to incarcerate an individual purely because he faces a serious offence would be in
disregard of this very valid and important principle and weaken respect for the law and
the social condemnation of those who break it.
I have also had regard to s 13(2)(e) of the Constitution of Zimbabwe and in particular to
what Gubbay CJ said in that context in the case of Attorney-General v Blumears 1991 (1)
ZLR 118 (SC). At p 122B-D he made the following observations:
“The standard for deprivation of personal liberty under s 13(2)(e) of the Constitution is
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.”
The Chief Justice, when he made this observation, was considering that constitutional
provision in the context of the arrest and remand of accused persons and the procedures
pertaining to that event in this country. It is my view that what he said, as outlined above,
applies with equal force when consideration is given to whether an accused person should
be granted bail.
I have also had regard to the wise words of Justice Frankfurter in McNabb v United
States 318 US 332 at 343:
Page 191 of 1991 (2) ZLR 187 (SC)
“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 or judgment. Disinterestedness in law enforcement
does not alone prevent disregard of cherished liberties. Experience has therefore
counselled that safeguards must be provided against dangers of the over zealous 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 participants upon
whom the criminal law relies for its vindication.”
I shall now consider the merits of this appeal, bearing in mind what I have said above:
From the record of appeal it emerges that the State placed no information before the
learned judge a quo outlining why it was feared that there was a possibility that the
appellant would interfere with investigations. From the record it appears that this
possibility was put forward as a bald assertion by counsel representing the State. There
were no affidavits put in as was done in the Chiadzwa case supra indicating on what
premise the fear of interference with investigations was based. There was no information,
as was the case in the Maratera case supra that there had been an interference with the
course of justice.
The allegation that the possibility of the applicant absconding could not be disregarded
was not supported in any way. In any event, against these allegations must be considered
the fact that the appellant is aged 57, has a minor child aged three-and-a-half years old
and his wife is expecting their second minor child. He is Zimbabwean born and has
resided in this country all his life. He owns his own business and has been in custody
since 17 July 1991. This fact alone should have afforded the investigating authority time
to progress with their investigations.
Granted the appellant is facing serious charges, but, as I have already stated earlier in this
judgment, the mere fact that an accused is facing serious charges does not in itself justify
his incarceration pending his trial. It may well be a significant factor to be considered,
taken together with other factors, for the conclusion to be drawn that the likelihood of an
accused person attempting to escape from a severe sentence of imprisonment cannot be
discarded. It is my view that the fact that an accused person is facing a serious charge
alone is never enough to justify him being held in custody but this fact, taken together
with
Page 192 of 1991 (2) ZLR 187 (SC)
other considerations, may lead a judicial officer properly to refuse the granting of bail.
Here again I would like to make reference to what Gubbay CJ said in the Blumears case
supra. At p 126C-E he said:
“. . . I consider that prosecutors would be well advised to be more open and forthright
when informing a remand court of the facts relied upon to establish 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 unco-operative 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.”
I do not suggest that in approaching the bail application before the judge a quo that the
State was deliberately concealing or being unco-operative, but it seems to me that by its
failure to be open it placed itself at a disadvantage. There was nothing of substance
before the judge a quo to justify him refusing the appellant bail. There was nothing, save
an allegation that he would interfere with investigations and would abscond. In S v
Fourie 1973 (1) SA 100 at 101G-H Miller J stated:
“It is a fundamental requirement of the proper administration of justice that an accused
person stand trial and if there is any cognizable indication that he will not stand trial if
released from custody, the Court will serve the needs of justice by refusing to grant bail,
even at the expense of the liberty of the accused and despite the presumption of
innocence. (Cf S v Mhlawli and Others, 1963 (3) SA 795 (C) at p 796B-C.) But if there
are no indications that the accused will not stand trial if released on bail or that he will
interfere with witnesses or otherwise hamper or hinder the proper course of justice, he is
prima facie entitled to and will normally be granted bail.”
As I have said earlier, the State, by its failure to place cogent reasons supported by
information before the judge a quo, put itself at a disadvantage which should have
precluded the decision to refuse the granting of bail in this matter. The learned judge a
quo misdirected himself in refusing to grant bail in this case.
Page 193 of 1991 (2) ZLR 187 (SC)
It is for these reasons that the appellant was successful in his appeal in this court and was
granted bail in the following terms:
“1. The appellant is granted bail in the sum of $30 000 (thirty thousand
dollars) provided that:
2. The appellant surrenders all his travel documents to the Clerk of the Court,
Harare Magistrates’ Court;
3. The appellant does not communicate with any of the officials of the
Central Vehicle Registry until after the completion of his trial;
4. The appellant does not communicate with any of the officials of the
Customs and Excise Department of this country until after the completion of his trial;
5. The appellant remains within the confines of Plot D, Solitude of
Alexandra, Marondera until after his trial is completed, save —
(i) that he is to report to Marondera Police Station once daily between the
hours of 7.00 am and 9.00 am, travelling there and returning by the most direct route;
(ii) that he may leave these premises in order to attend his trial wherever that
may be held; and
(iii) that he may leave these premises when he is required to attend the
Magistrates’ Court, Harare, for the purposes of remand in connexion with this case.
McNally JA: I agree.
Korsah JA: I agree.
Stumbles & Rowe, appellant’s legal practitioners
MAGAMA & ANOR v TOWN CLERK OF CITY OF HARARE & ANOR
1991 (2) ZLR 194 (HC)
Division: High Court, Harare
Judges: Adam J
Subject Area: Notice of motion
Date: 19 & 25 September 1991

Urban Councils Act [Chapter 214] — interpretation of s 78(1) — locus standi in judicio
— whether nominated election candidates qualify as persons having an enforceable right
— completion of general election of councillors — only after polling complete at all
stations.
The petitioners who were nominated candidates in a municipal election but the elections
for whose wards had yet to take place obtained a temporary interdict restraining the
respondents from proceeding with the election of a mayor, deputy mayor and
chairpersons of committees of the city council on the grounds that to do so before the
election of all councillors had taken place would contravene s 78(1)(b) of the Urban
Council Act. The confirmation of the rule was opposed on the grounds that s 78(1) could
be interpreted as meaning that all councillors need not have been elected before the
election of the mayor, deputy mayor and chairpersons but merely that a series of elections
must have taken place despite special vacancies remaining and further that petitioners had
no locus standi in judicio to institute the proceedings.
Held, that for the purposes of s 78(1) of the Urban Councils Act [Chapter 214] a general
election has not taken place until polling has taken place at all stations.
Held, further that the election of mayor, deputy mayor and the appointment of
chairpersons of committees cannot take place until all councillors have been elected.
Held, further that nominated candidates have locus standi in judicio in proceedings
Page 195 of 1991 (2) ZLR 194 (HC)
of this nature by virtue of the harm that they might suffer if the election of mayor, deputy
mayor and the appointment of chairpersons of committees were to take place before the
completion of polling in their wards.
Cases cited:
Patz v Green & Co 1907 TS 427
Roodepoort-Maraisburg Town Council v Eastern Properties (Pty) Ltd 1933 AD 87
Salisbury Bottling Co (Pvt) Ltd & Ors v Central African Bottling Co (Pvt) Ltd 1958
R&N 17; 1958 (1) SA 750 (FSC)
CD of Birnam (Suburban) (Pty) Ltd & Ors v Falcon Investments Ltd 1973 (3) SA 838
(W)
Charlestown Town Board & Anor v Vilakazi 1951 (3) SA 361 (A)
G C Mararike for the petitioners
M J Gillespie for first respondent
ADAM J: The petitioners were granted a rule nisi on 29 August 1991 by this court,
which rule operated as a temporary interdict restraining the first and second respondents
from proceeding with the election to the office of the mayor, the deputy mayor and
chairpersons of committees for the Harare City Council. The petitioners aver that on 2
August 1991 this court directed that municipal elections for Ward 31 and Ward 32 be
postponed until the voters rolls had been corrected and that the petitioners are standing as
independent candidates for the two wards. They indicate that on 21 August 1991 their
legal practitioners wrote to the first respondent informing him that the election of the
mayor and the deputy mayor would be in contravention of s 78(1)(b) of the Urban
Councils Act [Chapter 214] which the petitioners stated provided that they could only be
elected after the general election of councillors. The petitioners maintain they sought
clarification from the first respondent about a notice issued advising councillors that there
would be elections to elect the mayor, the deputy mayor and chairpersons of committees
on 29 August 1991 and they were informed that the second respondent in terms of the
Urban Councils Act had written on 27 August 1991 to the first respondent stating that
they could proceed with the elections notwithstanding that the election had yet to be held
in Ward 31 and Ward 32. The petitioners aver that to proceed with the elections is
extremely prejudicial to the petitioners. The petitioners state that the communication from
the second respondent whilst conceding that elections have not yet been completed
brazenly flouts the law.
Page 196 of 1991 (2) ZLR 194 (HC)
I should point out that the second respondent did not file a notice of opposition nor an
opposing affidavit. But the first respondent in his opposing affidavit agrees that the
second respondent had indeed written to him on 27 August 1991 but disputes that the
petitioners sought clarification from him. He further indicates that neither petitioner has
intimated to him that he intends, if elected as councillor, to contest for election as the
mayor or the deputy mayor. He takes issue with the petitioners that there is nothing in
law to prevent the holding of elections for the mayor, the deputy mayor and the
chairpersons of committees. He avers that at present the administration of the Harare City
Council is effectively paralysed as the bulk of that daily administration is done through
various committees which, due to the issue of the rule nisi, have not yet been formed. He
mentions that this is causing grave difficulties including concern in the recovery of
revenue.
In his answering affidavit the first petitioner indicates that it is sufficient, as his legal
practitioner’s letter of 21 August 1991 addressed to the first respondent stated, that no
elections be held because it was potentially prejudicial to the petitioners who, no doubt,
had an obvious interest in the matter. He maintained that to carry out the elections was a
flagrant contravention of the clear provisions of the legislation.
In the petitioners’ heads of argument their legal practitioner submitted that the petitioners
have established a clear right. Mr Mararike argues that to conceive of s 78(1)(a) of the
Urban Councils Act as read with s 2 as susceptible to any interpretation other than the
literal meaning of it is to stretch the canons of interpretation.
In his heads of argument the first respondent’s legal practitioner submits that the grounds
for an applicant seeking an interdict are those set out in Setlogelo v Setlogelo 1914 AD
221 at 227. As for clear right, the questions to be determined are whether it affords the
petitioners any cause of action and whether the provisions of the legislation are as
claimed by the petitioners. Mr Gillespie argues that “after the general election of
councillors” in s 78(1)(a) is ambiguous and susceptible of meaning either after
councillors have been elected in all wards or after the series of election held on the first
Wednesday and Saturday (or Sunday) in August. He suggests that the latter interpretation
is to be preferred because the elections are over although special vacancies remain,
because the postponement of polling at a station does not mean the postponement of the
general election (s 44 of the Act) and because it is more conducive to a smooth transition
and thus more consistent with the legislative intent. Mr Gillespie also submits that in the
event that it be held that the general elections are not over until
Page 197 of 1991 (2) ZLR 194 (HC)
after all polling at all stations, even those where polling is lawfully adjourned then a
mayor and the deputy mayor may not be elected but committees may still function and a
chairman be elected (ss 42(2)(b), 72(1), (3), (4) and (5) and 78(1)) and that it is a
dereliction of duty for councillors to fail to meet to consider these matters.
[The learned judge then dealt with the principles on which a temporary interdict is
granted and continued:]
Looking at the Urban Council Act, s 2 defines “general election” as meaning a general
election of councillors referred to in s 38(2). Section 38(2) is as follows:
“ (2) . . . a general election of councillors shall be held in every fourth year —
(a) within the areas that have been declared to be specified areas in terms of section
nineteen, on —
(i) the first Saturday or Sunday in August; or
(ii) the first Saturday and the immediately following Sunday
whichever the council may resolve;
(b) within every other part of the council area, on the first Wednesday in August.”
Section 78 states:
“78. (1) At . . . the first meeting held —
(a) after the general election of councillors, . . .
the councillors present at that meeting shall elect —
(i) in the case of a municipal council, one councillor to be mayor and
thereafter another councillor to be deputy mayor; . . .
(2) A person elected in terms of subsection (1) shall forthwith enter upon his office and,
. . . shall hold office until the election of his successor in office.”
It appears that a councillor retires from office on polling day (s 40(10)) and a councillor
shall assume office on the day following polling day (s 42(2)). Section 40(9) allows when
a nominated candidate dies (after close of nomination and before or after poll) to declare
that election to be void and to treat that as a special vacancy. On the other hand s 50(1)
allows the adjournment of the poll due to interruption or disruption by any public
violence to the following day and if necessary, may adjourn until there is no further such
interruption or disruption and to continue the poll thereafter. Section 50(2) states that if
no poll
Page 198 of 1991 (2) ZLR 194 (HC)
takes place for any other reason than public violence, the poll shall be adjourned until the
same day the following week. Section 50(3) permits the councillor that would have
retired to continue in office until the day following that on which the poll is held. Section
60(1) states that council shall meet for the dispatch of business as it thinks fit. Section
61(1) provides that one-third of the total membership of a council together with one other
councillor shall be the quorum at a council meeting. Section 72(1) permits appointment
of a finance and any other committee for such general or specific purposes as the council
considers to be necessary or desirable and may at that time appoint a chairman and vice-
chairman of those committees. Section 72(2) states that such committees shall have not
less than three members. Section 72(4) provides that a committee member ceases to be a
member after the general election held for the council or if he ceases to be a councillor.
It was forcefully submitted on behalf of the first respondent that the legislation does not
give the petitioners a cause of action and therefore no locus standi. It was stressed that a
statutory prohibition or obligation may be interpreted as providing an enforceable right of
action depending on whether it is enacted in favour of a particular person or class of
person as against the public interest generally and only where the availability of the
remedy arises expressly or by necessary intendment in the legislation — Patz v Greene &
Co 1907 TS 427 at 433; Roodeport-Maraisburg Town Council v Eastern Properties (Pty)
Ltd 1933 AD 87 at 96 and Salisbury Bottling Co (Pvt) Ltd & Ors v Central African
Bottling Co (Pvt) Ltd 1958 R&N 17.
In CD of Birnam Ltd & Ors v Falcon Investments 1973 (3) SA 838 (W) at 844 Margo J
said:
“. . . the applicants’ locus standi must be tested against the principle stated in Patz v
Greene, 1907 TS 427, per Solomon J at p 433 namely —
‘Everyone has the right . . . to protect himself by appeal to a Court of law against loss
caused to him by doing of an act by another,which is expressly prohibited by law. Where
the act is expressly prohibited in the interests of a particular person, the Court will
presume that he is damnified, but where the prohibition is in the public interest, then any
member of the public who can prove that he has sustained damage is entitled to his
remedy.’
In Roodeport-Maraisburg Town Council v Eastern Properties (Pty) Ltd 1933 AD 87 at p
96, the first part of this statement of law was amplified. It is not necessary that the act
should be expressly prohibited in the interests
Page 199 of 1991 (2) ZLR 194 (HC)
of the particular person who claims the interdict. It is enough if the prohibition is in the
interests of a class of person of which he is a member, and if the prohibition is impliedly
in the interests of such class.”
With the foregoing I turn to examine the status of the petitioners. But before doing so it is
clear from Mr Gillespie’s submission that the phrase “after the general election of
councillors” is susceptible to two meanings, one of which being after councillors have
been elected in all wards. This meaning Mr Gillespie suggests postulates an unworkable
transitional period between the commencement and termination of polling where polling
extends beyond the prescribed date and points out that the mayor continues in office until
his successor’s election, while a councillor enters his office the day after polling which
results in that a mayor may therefore lose his seat on the council but still remain a mayor
for a period despite another occupying his council seat. He asserts that this period should
surely be as short as possible. He argues that this interpretation leads one to the
conclusion that no councillors assume office until after the last polling is complete. Mr
Gillespie states that there is no provision for a “lame duck” administration. He maintains
that a true interpretation of the Act discloses that a general election is that process which
occurs on the specified polling day and is not supposed to cover adventitious (and
extended) delays in polling at individual stations. He submits that by looking at it in this
way the newly elected councillors can get on with the job of running the city and electing
a mayor but leaving any delay or dereliction to be dealt with by the Minister under s
262(1) of the Act.
Section 262(1) in the marginal notes declares “Correction of errors and omission” and
reads as follows:
“262. (1) If any act or thing required to be done by or in terms of this Act is omitted to
be done or is not done in the manner or within the time so required, the Minister may
order all such steps to be taken as in his opinion are necessary or desirable to rectify such
act or thing, and the said 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:
Provided that no person shall be deprived in terms of this section of any right which he
may have acquired before the Minister makes an order in terms of this section.”
Mr Gillespie does not elaborate how the Minister could deal with delay as a result of an
adjourned poll or dereliction when there are express statutory
Page 200 of 1991 (2) ZLR 194 (HC)
provisions that apply which would assist the petitioner. Nor does he elucidate the stage
during the series of elections held on the first Wednesday and on the the first Saturday (or
Sunday) or on the first Saturday and Sunday in August that it can be said a general
election has taken place. As is clear from the Urban Council Act a quorum for the council
to function is a membership of one-third plus one councillor of all the councillors. Would
series of elections held on the first Wednesday and on the first Saturday or Sunday, or on
the first Saturday and Sunday in August which results in the number of councillors to
constitute a quorum be sufficient to declare that a general election has taken place or
what higher percentage of councillors have to be elected before it can be said that a
general election has taken place. It would seem to me that whatever number of
councillors above the quorum is selected that would be arbitrary. In the instant case to
leave it at the number of councillors presently elected without councillors for Ward 31
and Ward 32 is also arbitrary.
I should point out that Mr Gillespie does concede that the alternative interpretation that a
general election is not over until after all polling at all stations does not paralyse the
council from functioning as the outgoing mayor continues in office and the council is free
to appoint committees.
There are also many disadvantages in adopting the solution suggested by Mr Gillespie.
For example polling in specified areas can be held on the first Saturday or Sunday in
August or on the first Saturday and Sunday in August and in every other part of council
area on the first Wednesday in August. If there are sufficient elected councillors from the
specified area or for that matter from the other part of council area to constitute a
quorum, it would seem on the interpretation being relied upon by the first respondent,
such an elected council could, if it so desired, elect the mayor and deputy mayor, appoint
committees and chairpersons of these committees either on the Tuesday where the polling
was on the first Saturday or Sunday or the first Saturday and Sunday in August, or on the
Friday where the polling was on the first Wednesday in August (depending whether the
first Saturday or Sunday was earlier in the month of August then the first Wednesday of
that month of August) without awaiting the poll either on the first Wednesday or on the
first Saturday or Sunday or first Saturday or Sunday as the case may be. This state of
affairs would prevail even where a nominated candidate was unopposed as such a person
only becomes a councillor the day following polling day. Surely the legislature could not
have intended that such persons would be deprived of the right to stand for mayor, deputy
mayor or of the right to be appointed to committees and as chairpersons of such
committees.
Page 201 of 1991 (2) ZLR 194 (HC)
In my view the disadvantages of this approach far outweigh the so-called “unworkable
transitional period”. The alternative interpretation mentioned by Mr Gillespie does not
seem to have the effect of infringing upon any persons’ right nor working prejudicially to
the functioning of the council. The presently newly-elected councillors have been council
members since the day following the polling day and as the mayor and deputy mayor
continue in office until their successors are elected pursuant to ss 60 and 72 of the Act, a
meeting of the council could be held to despatch business and to appoint committees and
their chairpersons. Hardly an unworkable situation.
Furthermore, as Schreiner JA in Charlestown Town Board & Anor v Vilakazi 1951 (3)
SA 361 (A) at 370D observes:
“. . . such enactments too must be dealt with in the light each of its own language, scope
and object and the consequences in relation to justice and convenience of adopting one
view rather than the other.”
The phrase “after the general election of councillors”, therefore, does not have the
meaning ascribed to it by Mr Gillespie. For purposes of this case I hold that a general
election of councillors has not taken place for purposes of s 78(1) and that the elections
for Ward 31 and Ward 32 are not those for special vacancies. It follows that the first
meeting of the council after the general election of councillors cannot be held in order to
elect the mayor and the deputy mayor.
Looking at the issue of the petitioners’ locus standi, it could not be disputed that had all
the nominated candidates been cited as petitioners in this matter that they would have
qualified as belonging to a particular class of persons who would “have an enforceable
right”. As Margo J observed it was enough if he were a member of that particular class.
The petitioners certainly fall into that category.
Turning to the interdict, the petitioners have shown that they do have a prima facie right
though open to some doubt. They have established that there is well-grounded or
reasonable apprehension of irreparable harm if an election for the mayor and the deputy
mayor were to take place prior to the polling for Ward 31 and 32 as this would deprive
the successful candidates from participating in that election. The candidates in Ward 31
and Ward 32 do not have a clear right but do have a prima facie right. A mayoralty
election prior to the polling for Ward 31 and Ward 32 would not only be prejudicial, but
also such elections would have not been in accordance with the provisions of s 78(1) of
the Act. I am also satisfied that the balance of convenience favours the petitioners in that
the
Page 202 of 1991 (2) ZLR 194 (HC)
Harare City Council is not hampered in any way in the carrying out of its responsibilities
under the Act, having a mayor and a deputy mayor and being able to hold meetings of the
council and being able to appoint committees. In short, the Harare City Council is not
prejudiced in any manner other than not being able to conduct the election of a mayor and
a deputy mayor until the completion of elections in Ward 31 and Ward 32. The
petitioners have also shown that they do not have an alternative satisfactory remedy or an
adequate ordinary remedy. It can hardly be maintained that an approach to the Minister in
terms of s 262(1) of the Act would give the petitioner such a remedy, more so as
according to the papers filed in this matter the Minister had previously directed the first
respondent that elections for the mayor and deputy mayor be conducted by the Harare
City Council. Further, there is no certainty from the provisions of s 262(1) that the
Minister could in any case provide the petitioners a satisfactory remedy.
[The learned judge then dealt with other issues not relevant to this report.]
Accordingly it is ordered —
That the first and second respondents be and are hereby interdicted from proceeding with
the elections of office of the mayor and deputy mayor pending the completion of the
election of councillors to Ward 31 and Ward 32.
That this order does not prevent the Harare City Council pursuant to the provisions of ss
60 and 72 of the Urban Councils Act from holding meetings or appointing committees
whose term shall only be until the completion of the election of councillors to Ward 31
and Ward 32.
That this order be discharged upon the completion of the election of councillors to Ward
31 and Ward 32.
That the first respondent pay the costs of this application.
Mararike & Partners, petitioners’ legal practitioners
Honey & Blanckenberg, first respondent’s legal practitioners
MAYHEW v ALCOCK NO
1991 (2) ZLR 203 (SC)
Division: Supreme Court, Harare
Judges: McNally JA, Korsah JA & Ebrahim JA
Subject Area: Civil appeal
Date: 16 & 30 September 1991

Company law — carrying on business of company in a fraudulent manner or for a

fraudulent purpose — personal liability of directors.
Companies Act [Chapter 190] — s 281 — application and effect..
The appellant was a director of a company which was the subject of a winding-up order.
The liquidator sued the appellant for a declaration in terms of s 281 of the Companies Act
[Chapter 190] to render him personally liable for certain debts of the company, on the
basis that the appellant had conducted the business of the company for a fraudulent
purpose and with intent to defraud creditors. The High Court found in favour of the
respondent, see 1990 (2) ZLR 346 (HC). The appellant appealed.
Held, to render a director personally liable there must be at least an element of dishonesty
in the manner that he carried on the business of the company.
Held, on the facts, that the respondent had shown that certain transactions were
undertaken for a fraudulent purpose, and thus the decision to render the appellant
personally liable was correct.
Cases cited:
Young v van Rensburg 1991 (2) ZLR 149 (SC)
Public Service Commission & Anor v Tsomondo 1988 (1) ZLR 427 (SC)
Gordon NO and Rennie NO v Standard Merchant Bank Ltd & Ors 1984 (2) SA 519 (C)
Dorklerk Investments (Pty) Ltd v Bhyat 1980 (1) SA 443 (W)
Re Sarflax Ltd [1979] Ch 592; [1979] 1 All ER 529 (Ch)
Page 204 of 1991 (2) ZLR 203 (SC)
Howard v Herrigel & Anor 1991 (2) SA 660 (A)
R v Grantham [1984] QB 675; [1984] 3 All ER 166 (CA)
A P de Bourbon SC for the appellant
E W W Morris for the respondent
McNALLY JA: This case raised for the first time in this jurisdiction the question of the
meaning and effect of s 281 of the Companies Act [Chapter 190]. The section was
introduced first as s 275 of the Companies Act 1951 (47 of 1951 and has remained
unchanged since then. It was presumably modelled on the equivalent provision of the
English law. Both in England and in South Africa the equivalent sections (332 in
England, 424 in South Africa) have been amended and updated. Our section has not.
Subsection (1) reads as follows:
“281. (1) If in the course of a winding up or the judicial management of a company it
appears that any business of the company has been carried on with intent to defraud
creditors of the company or creditors of any other person or for any fraudulent purpose,
the court, on the application of the Master, or the liquidator or judicial manager or any
creditor of or contributory to the company, may, if it thinks proper so to do, declare that
any of the directors, whether past or present, of the company or any other persons who
were knowingly parties to the carrying on of the business in manner aforesaid shall be
personally responsible, without any limitation of liability, for all or any of the debts or
other liabilities of the company as the court may direct.”
I think two points may be made at the outset: The first is that the section comes into play
in three situations, namely, where “any business of the company has been carried on” —
1. with intent to defraud creditors of the company;
2. with intent to defraud creditors of any other person; or
3. for any fraudulent purpose.
So, clearly, as Mr Morris put it, the genus is “fraud” rather than “creditors”. Without
wishing to define the phrase “for any fraudulent purpose”, I can say that the purpose need
not be to defraud existing creditors.
Page 205 of 1991 (2) ZLR 203 (SC)
The second point is that, in the phrase “any business of the company has been carried
on . . . for any fraudulent purpose”, the words “any business” mean “any business
transaction” and the words “carried on” mean simply “transacted”. Mr de Bourbon, for
the appellant, sought to convince us that “carrying on business” is a continuous process
and that the phrase cannot be used of an isolated transaction. In the proper context that is
quite right. See Young v van Rensburg 1991 (2) ZLR 149 (SC). But in this context the
legislator is not speaking in the present or past continuous tense. There is no reason to go
behind the ordinary meaning of the words. The use of the word “any” before “business”
instead of “the” indicates that a single transaction undertaken in pursuance of any of its
objectives for a fraudulent purpose is covered by the section.
Having made those general observations, I return to the facts of the case:
Mr Alfred Mayhew was one of two directors of a company called Cool Air Zimbabwe
(Pvt) Ltd. He owned 50% of the paid-up shares in the company. The other 50% was
owned by one Gary Vincent Mayhew who was also a director. His relationship to Alfred
Mayhew is not stated. Although Alfred Mayhew is not formally described as managing
director he clearly played the part of managing director in the major transaction which is
the main subject of this case.
It is also relevant to note that a sister company of Cool Air Zimbabwe (Pvt) Ltd exists.
That company is called Cool Electro-Plating (Pvt) Ltd.
I will speak of the various relevant parties as “Alfred Mayhew”, “the liquidator”, “Cool
Air”, and “the sister company” respectively.
On 25 January 1989 Cool Air went into provisional liquidation. On 22 February 1989 a
final order was granted. Liquidation was at the instance of the company itself. The
liquidator found that at the date of liquidation Cool Air had no assets, apart from certain
disputed legal claims which he decided not to pursue. It had creditors estimated to be
claiming some $78 037,09.
Investigation by the liquidator revealed two sets of transactions by Cool Air which
seemed to him to be prima facie such as to fall within the scope of s 281(1):
1. AIR TICKETS
He found that Cool Air had purchased on credit (and had not paid for) air tickets worth
over $15 000, which had been used by various persons as follows —
Page 206 of 1991 (2) ZLR 203 (SC)

Mr AW Mayhew Harare-Lusaka-Gabarone-return
Mr G MayhewLondon-Geneva-London-Los Angeles-Harare
Mrs L Ellis (daughter)Harare-Gabarone-Harare
Miss C R Mayhew London-Harare
Mr and Mrs Mayhew Harare-London-Toronto-Calgary-Toronto-
London-Harare
Mrs Ellis (daughter) Harare-Gabarone.

The tickets were for flights between June and October 1987, and the liquidator contended
that they could not have been for official business since neither Mrs Ellis nor Miss
Mayhew nor Mrs Mayhew were company employees. Nor was there any evidence in the
books to show that the journeys were undertaken on behalf of Cool Air.
In reply Alfred Mayhew said that his wife, Mrs Mayhew, did in fact do the books of Cool
Air as well as a lot of secretarial work. She was not paid because it was “a family
business”. As for the rest, he said their trips were made “to negotiate the purchase of
compressors relating to refrigeration, and to fulfil contracts for work done by the
company in liquidation”. In particular he said:
“Mrs Ellis is my daughter. She made the trips referred to in Annexure ‘C’ for the
company. She brought into the country controls and piping for the company. She used her
own currency to purchase the items referred to.
Mrs Mayhew accompanied me on a business trip in September, 1987. The reason for this
trip was to examine the potential for a joint venture scheme for the company with
Canadian Aid.
Miss Mayhew was at the time living in Geneva. She had brought in thermo-stats for the
company. The company resolved to pay her air fare in payment for the thermo-stats.
All the trips were taken during this period because the company was facing severe
shortages in spare parts and components. As a result the company was losing work and in
order to revamp the company trips were made for barter deals and to arrange joint
venture schemes. Business was in fact conducted with these countries and the statement
far flung cities is quite incorrect.”
These allegations are attacked as being bald and unsatisfactory. Indeed they are. The
liquidator comments that there is nothing in the books of Cool Air to bear
Page 207 of 1991 (2) ZLR 203 (SC)
out these allegations. The learned trial judge came to the conclusion that there was no
proof that these transactions involved a fraud on creditors, but that that aspect of the
company’s business was knowingly carried on for a fraudulent purpose. He was satisfied
on a balance of probabilities that Alfred Mayhew was not acting in the interests or for the
benefit of the company, but in his personal interest, when he committed Cool Air to pay
for these air tickets.
2. THE SALE OF COOL AIR’S IMMOVABLE PROPERTY
Cool Air sold its premises to Turnall Holdings (Pvt) Ltd in May 1987 for $220 000.
However, the liquidator’s research revealed quite beyond doubt that Alfred Mayhew had
used the transaction to syphon off $100 000 of Cool Air’s money to its sister company.

This is how it was done: Turnalls wanted to buy the premises, and also to buy certain
other movable assets from the sister company. Alfred Mayhew negotiated both deals,
representing both Cool Air and the sister company (whose directors were again himself
and G V Mayhew). Turnalls’ offer was $320 000 for the premises of Cool Air, $100 000
for the movable assets of the sister company, and $80 000 for certain chemicals of the
sister company.
The evidence was that Alfred Mayhew telephoned Mr Plunkett of Turnalls and asked him
to amend the values of the individual items so as to reduce the price for the premises by
$100 000 and to increase the price for the movable assets by the same amount. Mr
Plunkett agreed. It seemed to make no difference to his company since the total amount
remained the same. In due course the assets were purchased. A cheque for $220 000 was
paid to Cool Air. A cheque for $280 000 was paid to the sister company.
It will be apparent that the result was to pay Cool Air $100 000 less than it would
otherwise have received, and to pay the sister company $100 000 more. The evidence
was that $320 000 was a reasonable price for the premises. Turnalls were willing to pay
that price. Mr Alfred Mayhew said in his affidavit that the two companies were not sister
companies. He made no comment on the fact that they had the same directors and similar
names. He claimed that it was not he who suggested the reduction in the price of the
premises but Mr Plunkett.
The reason, he said, was that certain building operations were not completed. This totally
fails to explain why the price of the movable assets was increased by an identical amount.
Page 208 of 1991 (2) ZLR 203 (SC)
This is the kind of situation in which a judge may properly disbelieve a written statement
on oath without calling for viva voce evidence. That is what Mr Justice Reynolds did. He
was absolutely correct. The court was not being asked to decide credibility as between
conflicting pieces of paper (see my remarks in Public Service Commission & Anor v
Tsomondo 1988 (1) ZLR 427 (SC) at 441E). It was a situation where the court was being
asked to believe something which could not be true. We are required to be cautious, not
credulous.
I now propose to look at the law as to the application of s 281 of the Companies Act to
those facts:
THE LAW AS TO THE APPLICATION OF SECTION 281
Basically, as Reynolds J said, the purpose of the provision is:
“. . . to render personally liable any person who is knowingly a party to the carrying on of
any business of a company in a . . . fraudulent manner” (per De Kok J in Gordon NO and
Rennie NO v Standard Merchant Bank Ltd & Ors 1984 (2) SA 519 at 528G).
It is not sufficient to prove an intent to prefer one creditor over another — see Dorklerk
Investments (Pty) Ltd v Bhyat 1980 (1) SA 443 (W) at 447 and In re Sarflax Ltd [1979]
1 All ER 529 at 545. And, although the case turned on the question of “recklessness”,
which is not part of our statute, the decision in Howard v Herrigel & Anor NNO 1991 (2)
SA 660 is useful because of its reference to the liquidator’s right to choose between
motion proceedings and action (664E). The respondent must establish at least some
element of dishonesty — see R v Grantham [1984] 3 All ER 166 (CA) at 171.
THE APPLICATION OF THE LAW TO THE FACTS
His Lordship found, in regard to the air tickets, that there was no fraud on creditors.
Certainly there is no evidence that creditors were prejudiced. His Lordship then went on
to consider whether the facts established “any fraudulent purpose”. He asked whether the
journeys undertaken “were indeed for the benefit of the company, or whether they were
for the personal benefit of the respondent and his family”. He concluded, on a balance of
probabilities, that Alfred Mayhew was acting “for personal benefit at the company’s
expense”.
While I have much sympathy with that conclusion on a balance of probabilities,
Page 209 of 1991 (2) ZLR 203 (SC)
I am not certain, with respect, that that was the right test. When one is dealing with
motion proceedings, as I said earlier in this judgment, one must be wary of deciding
matters on the basis of the relative credibility of pieces of paper. I am doubtful whether
one can reject as untrue, without viva voce evidence, the statements made by Alfred
Mayhew in his affidavit. Moreover three of the six journeys were undertaken by Alfred
and Mr G Mayhew, the two directors of the company. I am doubtful that it is possible, on
affidavit evidence alone, to reject his explanations that the journeys were for the benefit
for the company. Had Alfred Mayhew been examined at the second meeting of creditors
the position might well have been different. He would have had difficult questions to
answer.
Speaking for myself, I would prefer to leave this matter open. As will become apparent, I
agree with the main conclusion of the learned judge on the second leg of the argument,
and thus with the order he made. It is therefore unnecessary to decide whether or not he
was right on the question of the air tickets.
In relation to the $100 000, the learned judge found that this transaction “was carried on
with the intention to defraud creditors of the company and for a fraudulent purpose”.
I do not think the first part of this finding can be supported. The liquidator’s report states:
“The monies received from the sale of the immovable property was (sic) used to pay off
creditors outstanding at that time”. So there were no existing creditors to be defrauded or
prejudiced at the time the $100 000 was “syphoned off” to the sister company. All
creditors could be paid in full, and were paid in full, out of the reduced amount of $220
000 received from the sale of the premises.
But however one defines the general term “fraudulent purpose” (and I do not seek to do
so), it seems to me to be clear that this transaction falls within the definition. The
company itself was caused gratuitously to suffer a loss of $100 000, to the unearned
benefit of its sister company. The Fiscus was potentially prejudiced in regard to Capital
Gains Tax on the immovable property. Potential creditors were put at risk in dealing with
a company for a further two years which had no premises from which to operate, and
which was gratuitously impoverished to the extent of $100 000. As things turned out,
they were indeed prejudiced. See the reference to “milking a company of funds” at p
1192 of Palmers Company Law 23 ed.
While we cannot say exactly why Alfred Mayhew chose gratuitously to reduce
Page 210 of 1991 (2) ZLR 203 (SC)
the assets of Cool Air, we can say that his explanation of his motive is unacceptable. In
all those circumstances, I am satisfied that Reynolds J was correct in holding that the
transaction must have been undertaken, and therefore was undertaken, for a fraudulent
purpose.
In a proper case it might well be appropriate for the court to limit the extent to which the
director concerned should be personally responsible. But in this case the amount owing to
creditors — some $78 000 — is less than the amount of the fraudulent transaction. So
there is no need for any limitation.
I would dismiss the appeal with costs.
Korsah JA: I agree.
Ebrahim JA: I agree.
Ali Ebrahim, appellant’s legal practitioner
Atherstone & Cook, respondent’s legal practitioners
CHIBANDA v HEWLETT
1991 (2) ZLR 211 (HC)
Division: High Court, Harare
Judges: Sandura JP
Subject Area: Opposed motion
Date: 4 July & 9 October 1991

Landlord and tenant — option to renew lease — tacit relocation — renewal thereby of
original terms and conditions incident to relationship of landlord and tenant but not those
so onerous that preclude automatic renewal unless expressly undertaken — termination
of lease on tacit relocation.
Commercial Premises (Rent) Regulations 1983 — whether option granted by expired
lease preserved by s 23.
In 1982 the applicant let certain business premises to the respondent for a period of five
years with an option to renew the lease for a further five years. The first five-year period
expired on 17 March 1987 but the respondent remained in occupation, continuing to pay
rent as he had previously done.
On 21 September 1987 the applicant wrote to the respondent indicating that, as the
respondent had not exercised his option to renew the lease, he had become a monthly
tenant. Thereafter on 8 October 1987 the applicant wrote to the respondent and purported
to exercise his option to renew the lease for a further five-year period. To this the
applicant did not respond but the rental paid by the applicant was subsequently increased
by agreement.
The learned judge having rejected the respondent’s contention that he had verbally
exercised his right to renew before the expiry of the initial five-year period, in an
application for the respondent’s ejectment,
Held, that a lessee who wishes to exercise his option to renew (the lease) must
communicate his acceptance of the offer to the lessor.
Held, further, that the conduct of the parties in continuing the previous
Page 212 of 1991 (2) ZLR 211 (HC)
arrangement, viz occupation of the premises by the respondent and acceptance of the
rental by the applicant, amounted to a tacit relocation.
Held, further, that where a relocation occurs there is a presumption that the property is
relet at the same rent and that those provisions which are incidental to the relationship of
landlord and tenant are renewed and that an option to renew the original lease is a
provision incidental to the relationship of landlord and tenant.
Held, further, however, that it does not automatically follow that an option to renew
would become a term of the tacit lease and that in the case of conditions which are harsh
or onerous, a party will not be taken as having submitted thereto in the absence of express
agreement, an option to renew being an onerous condition in this regard.
Held, further, that where a tacit relocation has occurred, either party may terminate the
relationship on reasonable notice.
Held, further, that, whereas the respondent had become a statutory tenant by virtue of the
provisions of the Commercial Premises (Rent) Regulations 1983, s 23 of which provides
inter alia that a lessee who retains occupation by virtue of s 22 shall be entitled to the
benefit of all the terms and conditions of the original contract of lease in so far as the
same are consistent with the regulations, s 22 must be restrictively interpreted to mean
those terms and conditions incident to the beneficial use and enjoyment of the tenant‘s
statutory right of occupation and thus the respondent’s original right of renewal was not
thereby preserved.
Held, further, that the applicant having shown good and sufficient grounds for the
respondent’s ejectment, the applicant was entitled to succeed.
Cases cited:
Bowhay v Ward 1903 TS 772
Cope v Zeman & Anor 1966 (1) SA 431 (SWA)
Doll House Refreshments (Pty) Ltd v O’Shea & Ors 1957 (1) SA 345 (T)
Levy v Banket Holdings (Pvt) Ltd 1956 (3) SA 558 (FSC); 1956 R&N 98 (FSC)
Rhoodie v Curitz 1983 (2) SA 431 (C)
A J Dyke for the applicant
G S Wernberg for the respondent
SANDURA JP: This is an application for the eviction of the respondent from certain
business premises at Kwe Kwe. It is opposed by the respondent.
The facts of this case are these. At the beginning of 1982 the applicant leased
Page 213 of 1991 (2) ZLR 211 (HC)
his business premises at Kwe Kwe to the respondent for a period of five years with effect
from 17 March 1982 at a rental of $250 per month. The lease agreement provided that the
respondent would have the option to renew the lease for another five years and thereafter
for a further period of five years subject to an escalation of rental as agreed between the
parties for the final five year period of the said lease. The initial five-year period of the
lease expired on 17 March 1987 by which time the respondent had not exercised the
option to renew the lease for a further period of five years. Nevertheless, the respondent
continued occupying the premises and paying rent to the applicant as he had done before
the expiration of the lease. On 21 September 1987 the applicant sent a letter to the
respondent informing him that as he had not exercised his option to renew the lease he
(the respondent) had become a monthly tenant. Thereafter, on 8 October 1987 the
respondent, in a letter addressed to the applicant, purported to exercise his option to
renew the lease for a further period of five years. There is nothing to indicate that the
purported renewal of the lease was accepted by the applicant. However, the rental for the
premises was subsequently increased by agreement from $250 to $450 per month.
Finally, on 6 July 1990 the applicant gave the respondent one month’s notice to vacate
the premises, but the respondent refused to leave. These are the circumstances in which
the eviction order is sought.
Mr Wernberg, who appeared for the respondent, advanced the following defences on
behalf of the respondent:
“A. That he had verbally exercised his right to renew the lease for a further
period; alternatively,
B. That his later written exercise of this right was valid because there had
been a tacit relocation in regard to the premises in question which had preserved
respondent’s right to exercise his option to renew the lease beyond the date of its initial
expiry; alternatively,
C. That the respondent’s right of renewal was preserved beyond the date of
the expiry of the initial lease period by virtue of respondent having become a statutory
tenant thereafter, which meant that by operation of law, the original agreement together
with all its terms and conditions continued in force.
D. That in the event that respondent did not validly renew the option
agreement at all, respondent is a statutory tenant and applicant has not shown good cause
for his ejectment.”
I now wish to examine each of these defences and determine whether or not any of them
is valid.
Page 214 of 1991 (2) ZLR 211 (HC)
With regard to the first defence the respondent avers as follows:
“4.2. I repeat the submissions which I have made in Paragraph 3 above namely
that there was no legal obligation upon me to give notice of my intention to renew the
lease for further periods thereof after the initial five years.
4.3. However at the beginning of 1987 I verbally informed the applicant as a
matter of courtesy that I would be continuing with the lease in terms of the initial
arrangements which we had made in 1982 namely I would remain in occupation for the
full period of the remaining ten years of the lease.”
It is clear from these two paragraphs that the respondent alleges that he verbally exercised
his option to renew the lease although he was under no obligation to give the applicant
notice of his intention to renew the lease. It is, I think, incorrect for the respondent to say
that he was under no obligation to notify the applicant that he intended renewing the
lease. Cooper in his well known book, The South Africa Law of Landlord and Tenant
(1973 ed) has this to say at p 317:
“A lessee who wishes to exercise his option to renew must communicate to the lessor his
acceptance of the latter’s offer.”
In the circumstances, I am satisfied that if the respondent wished to renew the lease he
was obliged to notify the applicant. Having said that, I would like to determine whether
or not the respondent notified the applicant verbally in 1987 that he intended renewing
the lease. The respondent says he did but this is denied by the applicant. In order to
determine this issue, it is necessary to look at the correspondence between the applicant
and the respondent. On 21 September 1987, the applicant wrote the following letter to the
respondent:
“I notice that you did not renew your lease agreement when your first term of lease
expired.
I assume you were not interested in renewing it and I have now decided to place you on a
month to month lease.
The Butchery is now open to any interested party and I would consider offers of rentals.
Thank you for our cordial business relationship during the past five years.”
On 8 October 1987 the respondent wrote the following letter to the applicant:
Page 215 of 1991 (2) ZLR 211 (HC)
“I thank you for your letter of the 3rd instant and wish to advise that I have exercised my
option to renew for 5 years with effect from 1st October 1987. However, the rent will be
negotiated when next you are in Kwekwe and could you please contact me on Kwekwe
2092 or Chakari 491, to make the appointment.”
After perusing this letter it can be observed that the respondent makes no mention of the
allegation that he had verbally exercised his option to renew the lease at the beginning of
1987. In my view, this is significant. If he had exercised his option to renew the lease at
the beginning of 1987, he would have said so in his letter to the applicant. Furthermore,
in the letter set out above, the respondent states that he has exercised his option to renew
the lease for five years with effect from 1 October 1987. Such a statement would have
been unnecessary if the option had already been exercised. In the circumstances, I am
satisfied that the respondent did not verbally exercise his option to renew the lease at the
beginning of 1987. His first defence to the applicant‘s claim, therefore, fails.
I now proceed to deal with the respondent’s second defence. In this regard, it was
submitted on behalf of the respondent that the respondent’s exercise of his option to
renew the lease for a further five years which was communicated to the applicant by
means of a letter dated 8th October 1987 was valid because there had been a tacit
relocation in regard to the premises in question which had preserved the respondent’s
right to exercise his option to renew the lease beyond the date of its initial expiry. The
question which must be considered here is whether the option to renew the lease for a
further five years has been duly exercised by the respondent, either before the expiration
of the initial five-year period on 17 March 1987 or subsequently.
As already stated, a lessee who wishes to exercise his option to renew a lease must
communicate to the lessor his acceptance of the lessor’s offer. The lessee must
communicate his decision to the lessor during the period stipulated in the lease. If no such
period is stipulated in the lease, then the decision must be communicated to the lessor
before the lease has been lawfully terminated or has lapsed through effluxion of time :
Bowhay v Ward 1903 TS 772; Cope v Zeman & Anor 1966 (1) SA 431 (SWA). In the
present case I am satisfied that the respondent did not exercise his option to renew the
lease before 17 March 1987, the date when the initial period of five years expired. This is
so because I have already found that the respondent did not verbally exercise his right to
renew the lease at the beginning of 1987 as alleged by him. The only question remaining
for consideration, therefore, is whether the purported exercise of the option to
Page 216 of 1991 (2) ZLR 211 (HC)
renew the lease which was communicated to the applicant by means of the letter dated 8
October 1987 was valid. In this regard, it was argued by Mr Wernberg that the exercise
by the respondent of his option to renew the lease on 8 October 1987 was valid because
there had been a tacit relocation in regard to the premises in question which had
preserved the respondent‘s right to exercise his option to renew the lease after the expiry
of the initial period of five years on 17 March 1987. Before dealing with that submission
I would like to set out very briefly what tacit relocation means.
The learned author, Cooper, defines tacit relocation at p 319, op cit, as follows:
“A tacit relocation is an implied agreement to relet and is concluded by the lessor
permitting the lessee to remain in occupation after the termination of the lease and
accepting rent from the lessee for the use and enjoyment of the property.”
That is the test which must be applied to the facts of this case in order to determine
whether or not there was a tacit relocation of the premises in question after the expiry of
the initial five-year period on 17 March 1987. In my view, there can be no doubt on the
facts before me that there was a tacit relocation because after 17 March 1987 the
applicant permitted the respondent to remain in occupation of the premises in question
and accepted rent from the respondent for the use and enjoyment of the premises.
Having said that I now proceed to consider what terms of the original lease would be
embodied in the tacit lease concluded after the expiry of the original lease. Dealing with
this question Ramsbottom J had this to say in Doll House Refreshments (Pty) Ltd v
O’Shea & Ors 1957 (1) SA 345 (T) at 348F-H:
“Assuming that there was a tacit relocation in July, 1953, the question which has to be
decided is whether that relocation included the grant of a right of pre-emption. It is, I
think, clear that a relocation after a lease has expired is a new contract which may be
express or tacit. If the reletting is express the question which of the terms of the expired
lease form part of the new contract is a question of interpretation as is explained in Webb
v Hipkin 1944 AD 95. Where the relocation is tacit, there is a presumption that the
property is relet at the same rent and that those provisions that are incident to the relation
of landlord and tenant’ are renewed. But provisions that are collateral, independent of and
not incident to that relation are not presumed to be incorporated in the new letting.”
Page 217 of 1991 (2) ZLR 211 (HC)
After discussing a number of authorities, the learned judge concluded that a right of pre-
emption in the original lease does not become a term of a tacit lease concluded after the
termination of the original lease.
In the present case the question which I must determine is whether an option to renew the
original lease would become a term of the tacit lease concluded after the expiry of the
original lease. Stated differently, the question is whether an option to renew a lease is a
provision which is incident to the relation of landlord and tenant or whether it is
collateral, independent of and not incident to that relation : Doll House’s case supra. This
is not an easy question to answer as can be gathered from what Tredgold CJ said in Levy
v Banket Holdings (Pvt) Ltd 1956 (3) SA 558 (FSC) at 564H:
“The difficulty lies in deciding what is incident to the relationship of landlord and tenant
and what is not. But the fact that in borderline cases it may not be easy to apply does not
affect the soundness of the principle. In fact, unless an agreement to extend a lease
simpliciter is to be taken to extend every other stipulation in the same document, I can
see no other satisfactory logical principle upon which a distinction can be made.”
However, in the present case it seems to me that an option to renew the original lease is a
provision which is incident to the relationship of landlord and tenant. Although counsel
have not referred me to any authority on this issue I am satisfied that the conclusion I
have reached is both logical and sound. However, that conclusion does not end the
matter. It does not automatically follow that an option to renew the original lease would
become a term of the tacit lease after the expiry of the original lease. The learned author,
Pothier, appears to acknowledge that there are exceptions to the principle that where there
is a tacit relocation there is a presumption that those provisions which are incident to the
relationship of landlord and tenant are renewed. In his Treatise on the Contract of Letting
and Hiring (Mulligan’s Translation), Pothier has this to say in para 363 and 364:
“363. Relocation is taken to be made at the same rent as that of the preceding
lease and upon the same conditions. The respective undertakings of the lessor and the
lessee are the same as those in the preceding lease.
 364. If, by the terms of his lease, the lessee had made himself liable to arrest
and imprisonment should he fail to carry out his obligations under the lease, is he to be
held to have also made himself liable to arrest and imprisonment in respect of his
obligations under the relocation? I
Page 218 of 1991 (2) ZLR 211 (HC)
should not think so. Imprisonment is so harsh that no-one can be taken to
have submitted himself to it, unless he has done so in express terms.”
I agree and would like to add that an option to renew a lease is so onerous to the lessor
that the lessor should not be taken to have agreed to it unless he has done so in express
terms. In the present case, therefore, the option to renew the original lease was not a term
of the tacit lease concluded after the expiry of the original five-year lease. It follows,
therefore, that the purported exercise of the option to renew the lease by the respondent in
October 1987 was of no force or effect.
As for the duration of a tacit lease Cooper op cit has this to say at p 321-322:
“In general our courts have . . . made the duration of a tacit lease dependent upon the rent
period. Thus, the effect of a tacit relocation of premises originally let for one year at a
monthly rent . . . is to renew the lease from month to month, and each time only for one
month. The same has been held in respect of the tacit renewal of a monthly lease. On this
reasoning, upon the expiration of a period the lessee should be entitled to vacate the
premises and the lessor to claim his eviction, but the courts held that the tacit relocation
can be terminated unilaterally only upon reasonable notice being given. . .”
In my view reasonable notice was given to the respondent on the 6th July 1990. In the
circumstances, the second defence raised by the respondent cannot succeed.
I now proceed to consider the respondent’s third defence. That defence was that the
respondent‘s right to renew the lease was preserved beyond the date of expiry of the
initial lease period by virtue of the respondent having been a statutory tenant thereafter,
which meant that by operation of law, the original agreement, together with all its terms
and conditions continued to be in force. The argument was that as the option to renew the
lease was provided for in the lease the respondent was entitled to the benefit thereof and
could renew the lease at any time during his statutory tenancy. Before dealing with that
submission I must determine whether or not the respondent is a statutory tenant.
Section 22(2) of the Commercial Premises (Rent) Regulations 1983 (SI 676 of 1983)
reads as follows:
“No order for the recovery of possession of commercial premises or for the ejectment of
a lessee therefrom which is based on the fact of the lease having
Page 219 of 1991 (2) ZLR 211 (HC)
expired, either by effluxion of time or in consequence of notice duly given by the lessor,
shall be made by a court, so long as the lessee —
(a) continues to pay the rent due, within seven days of due date; and
(b) performs the other conditions of the lease;
unless the court is satisfied that the lessor has good and sufficient grounds for requiring
such order other than that —
(i) the lessee has declined to agree to an increase in rent; or
(ii) the lessor wishes to lease the premises to some other person.”
Looking at these provisions and bearing in mind the fact that the applicant terminated the
tacit lease by giving the respondent one month’s notice on 6 July 1990 I am satisfied that
the respondent is a statutory tenant in terms of the Commercial Premises (Rent)
Regulations.
I now turn to consider the effect of that conclusion. Section 23 of the said Regulations
provides as follows:
“A lessee who, by virtue of section 22, retains possession of any commercial premises
shall, so long as he retains possession, observe and be entitled to the benefit of all the
terms and conditions of the original contract of lease, so far as the same are consistent
with the provisions of these regulations, and shall be entitled to give up possession of the
premises only on giving such notice as would have been required under the contract of
lease or, if no notice would have been so required, on giving reasonable notice. . .”
It was submitted by respondent’s counsel that as the respondent was a statutory tenant he
was entitled to the benefit of the option to renew the lease and could renew it at any time
during his statutory tenancy. Both counsel have not referred me to any cases dealing with
this point either in this country or in South Africa, and I have been unable to find any
such case law on the point. However, the issue was raised in Rhoodie v Curitz 1983 (2)
SA 431 (C), but was left undecided. In that case Berman AJ had this to say at p 439-440:
“Section 34(1) of the Rent Control Act 80 of 1976 provides, insofar as is relevant to Mr
Jacob’s contention now under consideration, that a lessee who continues in personal
occupation of the leased premises after the expiry of his lease is entitled to the benefit of
all the terms and conditions of such lease. Mr Jacobs contended that as an option to
renew the lease beyond 30 June 1981 was provided for in the lease . . . respondent was
entitled to the benefit thereof and to avail himself thereof at any time during his statutory
tenancy.
Page 220 of 1991 (2) ZLR 211 (HC)
This is, at first blush, an appealing argument . . . There is no case law directly bearing
upon this point in this country. Dr Cooper, in his work The Rent Control Act 1st ed
1977, in a persuasive passage, questions the validity of this contention and expresses an
adverse view thereon. I am fortunately not required in this particular action to decide this
point.”
The learned acting judge then left the issue undecided. However, I feel that I must now
determine the matter because it is necessary to do so before resolving the real issues
between the parties in this case. Before making a decision on the point it would be
helpful to look at the relevant passage in Dr Cooper’s book. It is at p 160 and reads as
follows:
“Although s 34(1) states that a statutory tenant is entitled to the benefit of all the terms
and conditions of the original lease, these words, it is submitted, should be restrictively
interpreted. It could not have been the legislature’s intention, it is submitted, that the
statutory lessor should continue to be bound, for example, by an option to purchase
(which had to be exercised during the currency of the original lease) or by a clause
preventing him personally . . . from competing with the lessee. It is accordingly submitted
that the phrase should be interpreted as meaning the terms and conditions incident to the
beneficial use and enjoyment of the statutory tenant’s statutory right of occupation.”
I entirely agree. In my view, to hold that a statutory tenant is entitled to the benefit of the
option to renew the lease and can renew such lease at any time during his statutory
tenancy would create an absurd situation. I therefore agree with Dr Cooper that the words
‘All the terms and conditions of the lease” must be interpreted respectively to mean all
the terms and conditions incident to the beneficial use and enjoyment of the statutory
tenant’s statutory right of occupation. In the circumstances, the third defence advanced by
the respondent cannot succeed.
I now come to the respondent’s fourth defence. That defence is that the respondent as a
statutory tenant should not be evicted from the premises in question because the applicant
has not established good and sufficient grounds for the eviction. In his founding affidavit
the applicant avers that he would like to renovate and alter the premises and then conduct
his own business on the premises. He avers that he intends to carry out extensive
alterations and additions so as to convert the existing premises into a complex comprising
a supermarket, a bakery and a wholesale centre. He has had plans drawn up in respect of
the proposed additions and alterations and has annexed to his
Page 221 of 1991 (2) ZLR 211 (HC)
application a number of documents to support his averments. In the circumstances, I am
satisfied that the applicant has established good and sufficient grounds for the
respondent’s eviction.
It is, therefore, ordered as follows:
(1) That the respondent vacate the leased premises on the remaining portion
of Lot 2 of Stand 1312 A, Amaveni, Kwekwe, on or before the 31st day of October,
1991.
(2) That the respondent pay the costs of this application.
Danziger & Partners and Atherstone & Cook, applicant’s legal practitioners
Wilmot & Bennett, respondent’s legal practitioners
MUDEHWE v MUKONDOMI
1991 (2) ZLR 222 (SC)
Division: Supreme Court, Harare
Judges: Manyarara JA, Korsah JA & Ebrahim JA
Subject Area: Civil appeal
Date: 14 October 1991

Customary law — seduction damages — no award to be made by court without evidence

to prove such damages.
In a claim for damages for seduction the presiding magistrate in granting a judgment in
default assessed damages without hearing evidence. The plaintiff appealed against the
quantum of damages, complaining that the magistrate should not have assessed damages
without hearing evidence on the matter.
Held, on appeal, whereas a tribal court presided over by a chief or headman, assisted by
assessors chosen by him from the area of his jurisdiction, all of whom have a general, if
not an intimate knowledge of the parties in the dispute, and receiving audience or
spectator participation, may be imbued with knowledge of the characters and worth of the
parties which will enable them, without the benefit of evidence, to make what may, in the
modern day, appear to be an oracular pronouncement of damages a magistrate sitting
alone is denied such knowledge. He is expected to have no intimate knowledge of the
parties before him, and if he has such knowledge of the parties he should recuse himself.
In such circumstances, the quantum of damages should only be assessed on the basis of
evidence adduced before him.
Held, that as no such evidence had been led only the entry of the default judgment could
be confirmed on appeal. The award of damages must be set aside and the matter remitted
for the assessment of damages after hearing evidence.
Page 223 of 1991 (2) ZLR 222 (SC)
Case cited:
Katekwe v Muchabaiwa 1984 (2) ZLR 112 (SC)
The appellant in person
No appearance for the respondent
KORSAH JA: The appellant commenced proceedings by summons against the
respondent in the court of the Provincial Magistrate, Harare, claiming damages for
seduction as well as damages for breach of promise to marry in the sum of $5 000. What
portion was to be allocated to seduction and which to breach of promise was not
specified.
Apart from the particulars of claim endorsed on her summons, the appellant deposed to
an affidavit reciting how after six years of a romantic association, during which she
preserved her virginity, she was eventually persuaded by the respondent on 4 May 1986
to succumb to an act of sexual intercourse. Her second experience of sexual intercourse
with the respondent resulted in her pregnancy. The respondent later admitted
responsibility for her pregnancy and she went to live at his rural home until she gave birth
on 5 July 1989. Thereafter, continued the affidavit, the respondent’s family started ill-
treating her and accusing her of imposing a child, who was not their son, upon them.
They took the appellant back to her family and the respondent has indicated that he will
not marry her.
On 18 December 1989, the respondent having been duly served, and not having entered
appearance within the time limit for indicating that he intended to defend the action, the
appellant applied to have a default judgment entered against him. The trial court acceded
to the appellant’s request and, without hearing any evidence, entered judgment as
follows:
“Default judgment entered for three hundred dollars only and costs.”
The complaint of the appellant was that she was not given a hearing before judgment was
pronounced.
Dealing with the assessment of compensation by tribal courts in their work African Law
and Custom in Rhodesia Goldin and Gelfand have this to say at p 124:
“Evidence is rarely adduced concerning the amount of compensation claimed. No proof
of damages sustained or alleged is required. A plaintiff
Page 224 of 1991 (2) ZLR 222 (SC)
is awarded what is considered a proper and just amount but it never exceeds the amount
claimed.”
No doubt a tribal court, such as the learned authors were cognisant of, presided over by a
chief or headman, assisted by assessors chosen by him from the area of his jurisdiction,
all of whom have a general knowledge, if not an intimate knowledge, of the parties in the
dispute, and receiving audience or spectator participation, may be imbued with
knowledge of the characters and worth of the parties which will enable them, without the
benefit of evidence, to make what may, in modern day, appear to be an oracular
pronouncement of damages.
The same cannot be said of a court constituted by a District Magistrate sitting alone. Such
knowledge of the parties as was available to the chief and his assessors is denied him. He
is expected to have no intimate knowledge of the parties before him, and, having such
knowledge, to recuse himself. The quantum of damages thus becomes an issue for
assessment by him upon evidence adduced by one or other party, or both. A District
Magistrate, not having the advantage of the chief or headman, cannot suck a figure out of
the air and award it as fair and adequate compensation for seduction.
My views in this regard are reinforced by the following passage from J G Storry’s
Customary Law in Practice, which is a more recent work in time than Goldin and
Gelfand’s. At p 60 of Customary Law in Practice, the learned author has this to say:
“Damages are awarded not only to compensate the girl’s guardian for the diminution in
the lobolo he can expect when the girl marries, but also for any other financial loss
suffered by him through the wrongful act of the seducer — Percy Budiyo v Peter
Chimivedzi 1974 AAC 13. In assessing such damages certain factors should be
considered, viz whether the girl was a virgin, whether pregnancy resulted, the character
of the girl, the social standing of both parties, and whether intercourse was persisted in —
Aggrey Chingombe v Tonderai Mudzi 1973 AAC 32; Edward Ndhlovu v Dogo Malaba
1959 SRN 639.”
It seems to be a necessary inference from the above passage that the matters to be
considered before an award is made can be placed before a tribunal only through
evidence adduced by witnesses.
It is also well to remember that time has not stood still, and, since the Legal Age of
Majority Act 1982, a woman of over eighteen years of age is bestowed with
Page 225 of 1991 (2) ZLR 222 (SC)
the right to claim seduction damages personally — Katekwe v Muchabaiwa 1984 (2)
ZLR 112 (SC). A claimant in a seduction suit is, therefore, no longer necessarily the
father or guardian of the victim, and the presiding officer over such actions no longer has
the advantage of his predecessor in assessing the quantum of damages without the benefit
of evidence.
Since the trial court heard no evidence before awarding damages the award is without
proper foundation and must be set aside.
The above are our reasons for making the orders that:
1. The appeal succeeds and the appellant is awarded costs of $30,00;
2. The default judgment is to stand;
3. The award of damages is hereby set aside; and
4. The matter is remitted to the District Magistrate’s Court for the assessment
of damages either by the magistrate who presided over the matter or any other magistrate.
Manyarara JA: I agree.
Ebrahim JA: I agree.
SATELLITE TELEVISION USERS ASSOCIATION v POSTS AND
TELECOMMUNICATIONS CORPORATION
1991 (2) ZLR 226 (HC)
Division: High Court, Harare
Judges: Smith J
Subject Area: Opposed motion
Date: 2 & 16 October 1991
Statutes — Radiocommunication Services Act [Chapter 252] — power to declare satellite
receivers to be radio stations.
Interpretation of statutes — reasonableness of subsidiary legislation — licensing fees —
test.
The respondent promulgated subsidiary legislation declaring “satellite receive-only
stations” to be radio stations for the purposes of the Radiocommunication Services Act
[Chapter 252], and imposed an initial issuing fee of $1500 and an annual fee of $500. The
applicant was an association of users and owners of satellite dishes for television
reception. It alleged that the legislation declaring the receivers to be radio stations was
ultra vires the enabling legislation. It also argued that the amount of the fees imposed was
so out of proportion to other fees charged under the Act as to render the fees as
unreasonable.
Held, the clear wording of the Radiocommunication Services Act [Chapter 252]
precluded a declaration of satellite receivers as radio stations.
Held, further and in any event, the fees raised by the respondent were grossly
unreasonable, and thus also invalid.
Cases cited:
S v Nyamapfukudza 1983 (2) ZLR 43 (SC)
PF-ZAPU v Minister of Justice, Legal & Parliamentary Affairs (2) 1985 (1) ZLR 305
(SC); 1986 (1) SA 532 (ZS)
Page 227 of 1991 (2) ZLR 226 (HC)
Council of Civil Service Unions & Ors v Minister for the Civil Service [1985] AC 374;
[1984] 3 All ER 935 (HL)
Delew v Brakpan Town Council 1937 TPD 439
A P de Bourbon SC for the applicant
G S Wernberg for the respondent
SMITH J: The Radiocommunication Services Act [Chapter 252] (hereinafter referred to
as “Chapter 252”) provides for the control of and supervision over radiocommunication
services within, into and from Zimbabwe. In terms of s 14(1) thereof no person is
allowed to have in his possession a radio station specified or defined in the Schedule to
Chapter 252 otherwise than in accordance with the terms and conditions of a licence
issued by the respondent (hereinafter referred to as the “PTC”) and on payment of such
fee as may be prescribed. The Schedule to Chapter 252 classifies and describes various
radio stations. Section 31 of Chapter 252 confers powers on the PTC to make by-laws. In
terms of subs (2)(b) thereof such by-laws may provide for the classification of radio
stations, other than broadcasting stations and radio stations used solely in connection with
broadcasting and diffusion services, and in so doing may amend the Schedule or vary the
definition of a radio station specified in the Schedule (emphasis my own). Certain terms
used in, or necessary for interpreting, this provision are set out in s 2 of Chapter 252.
They are as follows:
“‘broadcasting service’ means a radiocommunication service for reception by
members of the general public;
‘broadcasting station’ means a radio transmitting station used for the purposes of
carrying on a broadcasting service;
 ‘Hertzian waves’ means electromagnetic waves of frequencies between ten
kilohertz and three million megahertz propagated in space without artificial guide;
‘radiocommunication service‘ means the transmission, emission or reception of
writing, signs, signals, pictures, impulses and sounds of all descriptions whatsoever
wholly or partly by means of Hertzian waves
‘radio receiving station’ means apparatus referred to in paragraph (b) of the
definition of ‘radio station’’;
‘radio station‘ means —
(a) apparatus, other than generating apparatus, capable of being used for the
transmission or emission of writing, signs, signals, pictures, impulses and sounds of all
descriptions whatsoever wholly or partly by means of Hertzian waves; or
(b) apparatus capable of being used for the reception of writing, signs,
Page 228 of 1991 (2) ZLR 226 (HC)
signals, pictures, impulses and sounds of all descriptions whatsoever wholly or
partly by means of Hertzian waves; or
(c) apparatus referred to in paragraph (a) of this definition and apparatus referred to
in paragraph (b) of this definition in combination;
‘radio transmitting station’ means apparatus referred to in paragraph (a) of the
definition of ‘radio station’, whether in combination with apparatus referred to in
paragraph (b) of that definition or otherwise . . .”
The Broadcasting Act [Chapter 248] (hereinafter referred to as “Chapter 248”) in s 31
makes it an offence for a listener to have a receiver in his possession unless he has a
licence. Licences are issued by the Zimbabwe Broadcasting Corporation (hereinafter
referred to as the “ZBC”) which is empowered to fix licence fees which are paid into its
general fund. A listener is defined in s 2 of Chapter 248 as any person who has in his
possession a receiver (with certain exceptions which are not relevant) and a receiver is
defined as follows —
“‘receiver’ means an apparatus —
(a) in respect of which no licence is required in terms of the Radiocommunication
Services Act [Chapter 252]; and
(b) which is capable of being used for the reception of a broadcasting service . . .”
The term broadcasting service has the same meaning as in Chapter 252.
On 6 July 1990 the Radiocommunication Services (Classification of Television Receive-
Only Stations) By-laws 1990 were published (SI 146 of 1990). The effect of those by-
laws was to classify a radio receiving station used exclusively for the purpose of
receiving a broadcast service direct from a satellite broadcasting service as a television
receive-only station (hereinafter referred to as a “TVRO station”). The PTC fixed the fee
for the issue of a TVRO station licence at $1 500 and the annual renewal fee at $500 (see
SI 145 of 1990).
The applicant has instituted this action seeking an order that the licence fees fixed by the
PTC for a TVRO station are ultra vires Chapter 25 and therefore of no force and effect.
[The learned judge then set out the contents of the affidavits filed in the matter, and
continued:]
The validity of the licence fees for TVRO stations was attacked on three grounds. Firstly,
Mr de Bourbon submitted that SI 146 of 1990 was ultra vires
Page 229 of 1991 (2) ZLR 226 (HC)
s 31(2)(b) of Chapter 252. In terms of the said s 31(2)(b) the Minister may only classify
radio stations which are not broadcasting stations or radio stations used solely in
connection with broadcasting and diffusion services. As TVRO stations are used solely
for receiving broadcasting services they could not be classified as radio stations for the
purposes of Chapter 252. Mr Wernberg argued that in the context of s 31(2)(b), although
the term “radio station” is used, the intention of the Legislature was to refer to radio
transmitting stations and therefore receiving stations could be classified as radio stations.
Alternatively, the reference to broadcasting service means a local and not a foreign
service. Secondly Mr de Bourbon submitted that a receiving station could be classified as
a radio station only if it is capable of being used for the reception of signals wholly or
partly by means of Hertzian waves. In terms of the definition of Hertzian waves,
electromagnetic waves which are propagated in space with an artificial guide are
excluded from the definition. As a satellite in orbit is an artificial guide, the signals
received by a TVRO station are not transmitted by means of Hertzian waves. Mr
Wernberg argued that a satellite in orbit was not an artificial guide. Finally Mr de
Bourbon submitted that the level of the fees fixed by the PTC is grossly unreasonable and
therefore ultra vires. Mr Wernberg argued that the fees are reasonable having regard to
the administrative costs involved in the monitoring of TVRO stations.
In my view s 31(2)(b) of Chapter 252 very clearly and expressly precludes the PTC from
classifying as a radio station those radio stations which are used solely in connection with
broadcasting services. In s 2 of Chapter 252 the terms radio receiving station, radio
station and radio transmitting station are all defined. Where any provision in Chapter 252
contains one of those terms then it must be presumed that the Legislature intended to use
that particular term and not one of the others. In terms of s 11(1) of the Interpretation Act
[Chapter 1], definitions contained in an enactment shall apply to the construction of the
provisions of the enactment which contain those definitions. That provision may only be
negatived if the application thereof would give to the provision concerned an
interpretation inconsistent with the context — see s 2(1)(b) of the Interpretation Act
[Chapter 1]. Despite the arguments advanced by Mr Wernberg, I can find nothing in
Chapter 252 to indicate that to give the term radio station where it is used in s 32(1)(b)
the meaning as given in the definition in s 2 would be inconsistent with the context. In
fact the contrary is the case. Section 31(2)(b) of Chapter 252 excludes from radio stations
which may be classified in the Schedule to that Act broadcasting stations and radio
stations used solely in connection with broadcasting and diffusion services. As the term
“broadcasting station” means radio transmitting station used for the purpose of carrying
on a broadcasting service, it seems to me to be clear that the second
Page 230 of 1991 (2) ZLR 226 (HC)
part of the exclusion would constitute radio receiving stations used solely in connection
with a broadcasting service because radio transmitting stations used for such purpose are
covered by the term broadcasting station. Therefore the context requires that the term
radio station where it is used in s 32(1)(b) must be given its defined meaning or at least
the narrower meaning of a radio receiving station. It is significant that at the head of the
Schedule to Chapter 252 it is stated “In this Schedule, “radio station” does not include a
broadcasting station or a radio receiving station used solely in connection with a
broadcasting or diffusion service (emphasis my own). Thus in the heading to the
Schedule the Legislature has clearly stated that radio receiving stations used solely in
connection with a broadcasting service may not be classified as a radio station in that
Schedule. I can see no basis for the argument that the term broadcasting service when
used in s 32(1)(b) of, or the Schedule to, Chapter 252 must be limited to broadcasting
services transmitted by the ZBC. Had that been intended by the Legislature it could easily
have said so. It did not. As TVRO stations are clearly radio stations that are used solely
for the purpose of receiving television programmes which are transmitted for reception
by members of the general public, it must follow that the Radiocommunication Services
(Classification of Television Receive-Only Stations) By-laws 1990 (SI 146 of 1990) are
ultra vires. Such a finding is, I would point out, consistent with the provisions of Chapter
248. In terms of Chapter 248 the ZBC is entitled to fix and collect licence fees which are
paid into the funds of the ZBC and help to pay for its operations. The ZBC is entitled to
fix the fees that are payable by listeners — that is persons in possession of a receiver, the
definition of which has been set out earlier. If the PTC were to be able, in terms of
Chapter 252, to classify radio receiving stations used solely for the reception of
broadcasting services as being radio stations which are required to be licensed in terms of
Chapter 252, the ZBC would be liable to be deprived of a substantial part of its income.
In this connection I would point out that the ZBC may demand licence fees from listeners
even though they cannot receive ZBC broadcasting services. Mere possession of a
receiver as defined renders a listener liable to pay the fee prescribed. The possessor of a
television set who stays at Beitbridge and cannot receive signals from ZBCTV but
receives foreign broadcasting services cannot refuse to pay the licence fee on the grounds
that he does not receive a service from the ZBC. TVRO station owners would be in a
similar position. As I have found that the classification of TVRO stations is invalid it
must follow the PTC cannot fix fees for TVRO station licences.
Having concluded that the by-laws in question are ultra vires, it is not necessary for me to
decide whether or not the signals received from a satellite in orbit
Page 231 of 1991 (2) ZLR 226 (HC)
would be regarded as Hertzian waves and whether or not the fees fixed by the PTC are
unreasonable. However I would like to comment on the two issues. In my opinion, it is
not possible to determine on the papers whether the television broadcasts are propagated
in space without artificial guide. Certainly the satellite in orbit is an artificial object and
not a natural phenomenon. When the signals are broadcast they are propagated in space.
It may well be that when transmitted they are propagated without artificial guide,
although presumably they are directed at the satellite, in which case they would fall
within the definition of Hertzian waves. However once the signals are received by the
satellite they are then redirected or guided back to a receiving station on earth. Prima
facie, therefore, it would appear that there is some basis for holding that the satellite in
orbit is an “artificial guide”. I consider, however, that further technical evidence would be
necessary before a finding could be made on this issue.
The final issue is the reasonableness of the fees fixed by the PTC for TVRO stations. It is
accepted by our courts that by-laws and other subsidiary legislation may be struck down
on the grounds of unreasonableness. In S v Nyamapfukudza 1983 (2) ZLR 43 (SC) at p
46D Georges JA, when dealing with the argument that the regulations under
consideration in that case were unreasonable, said:
“There is no dispute as to the proper test to be applied. It is that laid down in Kruse v
Johnson [1898] 2 QB 91 at 99; [1895-9] All ER Rep 105 at 110:
‘. . . I do not mean to say that there may not be cases in which it would be the duty of the
Court to condemn by-laws, made under such authority as these were made, as invalid,
because unreasonable. But unreasonable in what sense? If for instance, they were found
to be partial and unequal in their operation between different classes; if they were
manifestly unjust; if they disclosed bad faith; if they involved such oppressive or
gratuitous interference with the rights of those subject to them as could find no
justification in the eyes of reasonable men, the Court might well say, ‘Parliament never
intended to give authority to make such rules; they are unreasonable and ultra vires.’
But it is in this sense, and this sense only, as I conceive, that the question of
unreasonableness can properly be regarded. A by-law is not unreasonable merely because
particular judges may think that it goes further than is prudent or necessary or convenient,
or because it is not accompanied by a qualification or an exception which some judges
may think ought to be there.’
The onus is on the person challenging a regulation as unreasonable to show that this is
so.”
Page 232 of 1991 (2) ZLR 226 (HC)
The test referred to above was also cited with approval in PF-ZAPU v Minister of Justice
(2) 1985 (1) ZLR 305 (SC), 1986 (1) SA 532 (ZS). Dumbutshena CJ referred also to the
grounds of “illegality”, “irrationality” and “procedural impropriety” that were enunciated
in CCSU v Minister for the Civil Service [1984] 3 All ER 935 (HL). The applicant has
pointed out that fees fixed under Chapter 252 for radio stations other than TVRO stations
do not exceed $30 and in some cases are as low as $6 for the issue of a licence and $3 for
a renewal. In the case of such radio stations they transmit as well as receive signals and
therefore the PTC is responsible for allocating frequencies and monitoring the use of the
equipment.
The inordinate difference between the fees fixed by the PTC for TVRO stations and those
for other radio stations does prima facie support the applicant’s contention that the fees
are “partial, unequal and grossly unfair”. There is no evidence from the respondent to
rebut that contention. The statements by Messrs Makira and Matavire which were filed
by the respondent were not sworn before a commissioner of oaths and so are not properly
before the court. However a glance at the contents of those statements shows that if they
had been properly made as affidavits they would not have sufficed to rebut the
applicant’s contention. It is obvious that the respondent is scratching around and, like a
drowning man, grasping at any straw to justify the high level of fees. Factors such as the
high capital cost of a TVRO station, much of it in foreign currency, that TVRO station
owners constitute a small minority group, that three Harare hotels use them to entice
patrons, that video clubs use videos recorded by TVRO station owners, that video
recordings from them are used by clubs for commercial public screening, that so-called
“pirated” signals should not be lightly licensed by the PTC are, or should be, completely
irrelevant in determining the level of fees. They are completely extraneous
considerations. The attempts by the two officials to establish the cost to the PTC of
monitoring TVRO stations are noteworthy for their vagueness and lack of any
particularity. There is no statement of the type of equipment needed or number of
technicians that would need to be employed, no estimate of the anticipated costs and no
estimate of the number of TVRO station owners and therefore of the anticipated income
from fees. Had the issue been necessary for me to decide on the papers filed, I would
have had no hesitation in concluding that the TVRO station fees were manifestly unjust
and possibly disclosed bad faith on the part of the PTC in that the true reasons for fixing
fees at the level of $1500 and $500 have not been disclosed. One wonders whether the
motivation was“let’s soak the rich” or “it’s only the small minority so it doesn’t matter”
or whether it was to deter members of the public from having access directly to foreign
television broadcasting services. The PTC cannot, of course, prescribe a fee which is so
unreasonable that it in
Page 233 of 1991 (2) ZLR 226 (HC)
effect makes the keeping of a radio station prohibitive. That is clear from the judgment of
Tindall AJP in Delew v Brakpan Town Council 1937 TPD 439 at p 443:
“Where such a power (ie to fix licence fees) is given the Court cannot interfere on the
mere ground that it considers the fee unreasonably high. The size of the fee, however,
might in certain circumstances be a factor in considering whether the Council genuinely
exercised its powers of licensing and regulating, or mala fide used such powers for
achieving an ulterior object such as prohibition. For instance, the Council might prescribe
a licence fee so outrageously high that the only reasonable inference was that the object
was to prohibit the business in question entirely.”
As the applicant has been successful it is entitled to its costs.
It is ordered that —
(1) the Radiocommunication Services (Classification of Television Receive-
Only Stations) By-laws, 1990 (SI 146 of 1990) classifying television receive-only
stations as radio stations are ultra vires and therefore null and void;
(2) the Radiocommunication Services (Amendment) By-laws, 1990 (No. 8)
(SI 145 of 1990) prescribing fees for television receive-only station licences are ultra
vires and therefore null and void;
(3) the respondent pay the applicant’s costs.
Scanlen & Holderness, applicant’s legal practitioners
Coghlan, Welsh & Guest, respondent’s legal practitioners
S v DELTA CONSOLIDATED (PVT) LTD & Ors
1991 (2) ZLR 234 (SC)
Division: Supreme Court, Harare
Judges: Manyarara JA, Korsah JA & Ebrahim JA
Subject Area: Criminal appeal
Date: 17 June & 30 October 1991

Statutes — subsidiary legislation — doctrine of ultra vires — inherent jurisdiction to

declare subsidiary legislation null and void where it does not accord with the intention of
legislature — onus of proof — regulations ultra vires because of unreasonableness —
onus on the party which makes such allegation — intention of legislature — presumption
that legislature intends that subsidiary legislation will only be imposed where reasonably
necessary to further the objects of an act.
Control of Goods Act [Chapter 280] — s 3(1) as read with s 19 — Control of Goods
(Price Control) Regulations, 1989 (SI 153B of 1989) — Fourth Schedule — regulations
not ultra vires — promulgation of subsidiary legislation —no specific duty to consult
with those likely to be affected thereby before promulgation — legitimate expectation of
traders that they would be consulted.
Criminal procedure (sentence) — price control regulations — failure of Government to
explain and consult with traders concerning price control regulations — mitigatory
feature in considering sentence — caution and discharge appropriate.
While courts are reluctant to exercise this jurisdiction (bordering as it does on a
transgression of the divide between the judicial and legislative functions of Government),
it does have an inherent jurisdiction to declare null and void subsidiary legislation on the
ground that it is ultra vires if it cannot be construed so as to accord with the intention of a
reasonable Legislature.
The onus of proving that regulations are ultra vires on the ground of unreasona-
Page 235 of 1991 (2) ZLR 234 (SC)
bleness is on the person who seeks to prove their unreasonableness.
In dealing with the review of an executive decision, it is an essential precondition that the
decision-maker should have followed a prescribed procedure of logic in arriving at his
decision. If he does not do so, his decision can properly be reviewed. Similarly, a
regulation made in terms of an enabling instrument of primary legislation must fulfil the
same overriding presumption of reasonableness because it is presumed that Parliament,
which is the maker of primary legislation, intended that regulations should be imposed
only where reasonably necessary to further the objects of the primary legislation.
The appellants had been convicted of contravening s 3(1) of the Control of Goods Act
[Chapter 280] as read with s 19 and the Fourth Schedule of the Control of Goods (Price
Control) Regulations, SI 153B of 1989. It was contended upon their behalf that the
regulations were ultra vires their parent act because they were unreasonable. In support of
this contention, evidence was led at the trial that the appellants had repeatedly attempted
to contact the relevant government departments in efforts to seek clarification of the
contentious provisions of the regulations, which imposed price controls upon a wide
variety of products. Despite the far-reaching implications of these price control
regulations for both traders and the public as a whole, the relevant government
departments maintained an uncompromising silence in regard thereto.
Held, that while it could not be said that the regulations were ultra vires the parent act
upon grounds of unreasonableness, given the peculiar nature of these particular
regulations, the failure of Government to explain them constituted a valid ground
justifying intervention.
Held, further, that while there is no specific duty upon makers of subordinate legislation
to consult anyone before promulgating laws, in the peculiar circumstances appertaining to
these regulations, traders had a legitimate expectation that at least they would be fully
informed regarding the contents thereof.
Held, further, that the fines which had been imposed upon all the appellants should be set
aside and the sentences in each case be altered to a caution and a discharge.
Cases cited:
S v Nyamapfukudza 1983 (2) ZLR 43 (SC)
Sinovich v Hercules Municipal Council 1946 AD 783
Kruse v Johnson [1898] 2 QB 91; [1895-9] All ER 105 (CA)
CCSU v Minister for the Civil Service [1895] AC 374; [1984] 3 All ER 935 (HL)
Page 236 of 1991 (2) ZLR 234 (SC)
PF-ZAPU v Minister of Justice 1985 (1) ZLR 305 (SC); 1986 (1) SA 532 (ZS)
R v Secretary of State, ex parte Brind [1990] 1 All ER 469 (CA)
R v General Medical Council, ex parte Colman [1990] 1 All ER 489 (CA)
Staatspresident en Andere v United Democratic Front en ’n Ander 1988 (4) SA 830 (A)
Mafuya & Ors v Mutare City Council 1984 (2) SA 124 (ZHC); 1983 (2) ZLR 226 (HC)
R v Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators Association [1972] 2
QB 299 (CA); [1972] 2 All ER 589 (CA)
Port Louis Corporation v Attorney-General of Mauritius [1965] AC 1111 (PC)
R v Hull Prison Board of Visitors [1979] 1 All ER 701 (CA)
O’Reilly v Mackman & Ors [1982] 3 All ER 1124 (HL)
Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 All ER 346 (PC)
Castel NO v Metal & Allied Workers Union 1987 (4) SA 795 (A)
Makoena & Ors v Administrator, Transvaal 1988 (4) SA 912 (W)
A P de Bourbon SC for the appellants
A V M Chikumira for the respondent
EBRAHIM JA: The appellant companies contend that their convictions, sustained in
various courts of the Provincial Magistrate in Bulawayo, were wrong. The State prefered
against each company a charge of contravening s 3(1) of the Control of Goods Act
[Chapter 280] (which I will refer to as “the Act”), as read with s 19 and the Fourth
Schedule of the Control of Goods (Price Control) Regulations, SI 153B of 1989 (which I
will refer to as “the Regulations”). Less technically, the appellants were accused of
contravening the Price Control Regulations by selling various items at prices in excess of
those permitted by the Regulations. It is noted here that the word “sell” is so defined in
the Act as to include an offer to sell. Hence the Regulations are contravened when a
trader displays goods and indicates the price in excess of that permitted by the
Regulations; it is not necessary that goods be exchanged for value.
The appeals were heard together because of the similarity of the defences raised in the
courts a quo and in the grounds of appeal noted before this court.
The first appellant is a furniture shop in Bulawayo known as Pelhams. The charge was
that a cooking stove, a Nuchef, was sold for $2 218,30, whereas the regulated price was
$2 136,14. On conviction, the accused was fined $75. The citation of the accused in this
case calls for comment: Pelhams is but one of eighteen shops belonging to the Furniture
Division of Delta Consolidated
Page 237 of 1991 (2) ZLR 234 (SC)
(Private) Limited. The citation inculpated one John Rouse representing Delta
Consolidated and nothing further. In the circumstances this citation was inadequate. The
name Pelhams ought, in my view, to have featured therein. This was a criminal charge
and it is a matter of public interest that those so charged should be identified with
precision. In this case the factor of partiality should also have been considered. The other
appellant companies are cited by their commonly known names. As John Rouse is a
director of Delta Consolidated (Private) Limited the error is not fatal.
The second appellant is the Bulawayo Branch of OK Bazaars. It is one of twenty-four
departmental retail shops the OK Bazaars organisation operates throughout the country.
The organisation is itself owned by Delta Consolidated (Private) Limited), the company
involved in the first case. OK Bazaars was convicted of selling a hot plate for $107,00,
whereas the regulated price was $103,19. Delta Consolidated, which, as the parent
company, had been charged, was fined $75.
The third appellant is Paul of Carnaby Street (Private) Limited, a company which owns a
gentlemen’s clothing shop. It was convicted of selling a “Pierre Cardin” suit for $695,95,
whereas the regulated price was $480,94. Paul of Carnaby Street was fined $100,00.
The fourth appellant is a company named Cullen and Kuhn (Private) Limited. It operates
a men’s clothing shop which trades under the name of “Members”.
This conviction related to a “Firenzi” suit which was sold for a price of $389,00, whereas
the regulated price was $329,06. The accused company was fined $100,00.
All allegations outlined above were common cause between the State and the accused
companies, yet pleas of not guilty were entered in each case. The explanation for this
situation is that the accused companies challenged not merely their convictions but the
validity of the law in terms of the parent Act under which they were charged. Both before
the courts of first instance and now before this court, counsel for the defence has urged
that the Regulations are invalid by reason that they are ultra vires the Act. Courts have an
inherent jurisdiction to declare null and void subsidiary legislation on the ground that
they are ultra vires if they cannot be construed so as to accord with the intention of a
reasonable Legislature. (See, for instance, S v Nyamapfukudza 1983 (2) ZLR 43 (SC);
Sinovich v Hercules Municipal Council 1946 AD 783; and Kruse v Johnson [1895-9] All
ER (Rep) 105.)
Page 238 of 1991 (2) ZLR 234 (SC)
Naturally courts are reluctant to exercise this jurisdiction. It borders closely on a
transgression of the divide between the judicial and legislative functions of government,
so fundamental to our constitutional law. It will be noted that the jurisdiction to strike
down legislation is normally confined to subordinate legislation. It will not normally be
exercisable in relation to Acts of the Legislature. Laws can be tested in this way only by
reference to a given context; and that context is the intention of the Legislature, as
expressed in the Act in terms of which the subordinate legislation has been formulated.
The courts, in claiming the jurisdiction to strike down legislation do not, in other words,
lay claim to any power to say by what laws people ought to be governed. This is the
exclusive preserve of the Legislature. The jurisdiction claimed serves to entitle courts to
rule that a particular by-law is procedurally unsound (and therefore unenforceable) in
terms of its own parent Act.
The standard judicial test for unreasonableness was set out many years ago in the case of
Kruse v Johnson supra by Lord Russell of Kilwonen. After alluding to the fact that there
may be occasions when a court will condemn regulations as invalid on the grounds of
unreasonableness, His Lordship continued (at p 110):
“But unreasonableness in what sense? If, for instance, they were found to be partial or
unequal in their operation between different classes; if they were manifestly unjust; if
they disclosed bad faith, if they involved such oppressive and gratuitous interference with
the rights of those subject to them as could find no justification in the mind of reasonable
men, the court might well say ‘Parliament never intended to give authority to make such
rules, they are unreasonable and ultra vires’. But it is in this sense, and this sense only, so
I conceive, that the question of unreasonableness can properly be regarded. A by-law is
not unreasonable merely because particular judges may think that it goes further than is
prudent or necessary or convenient, or because it is not accompanied by a qualification or
an exception which some judges may think ought to be there.”
This passage was quoted in Nyamapfukudza’s case supra at p 46D-F. Georges CJ added
that the onus was on the person challenging the regulations in question to prove their
unreasonableness.
Since Nyamapfukudza’s case supra the House of Lords has elaborated on the Kruse v
Johnson definition of unreasonableness, making it more specific in order to better
conform with the somewhat more exacting requirements of contemporary law. CCSU v
Minister for the Civil Service [1985] AC 374;
Page 239 of 1991 (2) ZLR 234 (SC)
[1984] 3 All ER 935 (HL) was not a challenge to legislation but an application to review
an allegedly unreasonable decision of the Minister. (She had ruled that employees at a
communications establishment were excluded from membership of the applicant trade
union.) In the course of his opinion Lord Diplock proposed three new grounds on which
to base an application to review any matter (including the reasonableness or otherwise of
legislation). These grounds were accepted by other Law Lords in that case and have
subsequently been adopted in other cases in superior courts in England and in this
country. Notably, for present purposes, Dumbutshena CJ adopted and applied the ratio of
the CCSU case in the leading local case of ZAPU (PF) v Minister of Justice 1985 (1)
ZLR 305 at 324.
Both the CCSU case supra and the PF-ZAPU case supra involved applications for the
review of executive decisions and not of subsidiary legislation. But the process is
precisely the same. The Executive — and any member thereof — is bound to reach
decisions on the basis of some or other prescribed rule or code of practice. If the decision
is — on the analysis in the CCSU case — “illegal”, “irrational” or “procedurally
improper” in the context of the instrument in terms of which it was reached, it will be null
and void. This is because it must be presumed in any well-ordered and democratic society
that prescriptive rules are based on reason and intended to be applied only after a rational
appreciation of the situation which necessitates the making of the decision in question.
Moreover, it is an essential pre-condition that the decision-maker should have followed a
prescribed procedure of logic in arriving at his decision. If he does not do so, the decision
can be properly reviewed. Similarly a regulation made in terms of — on the basis of —
an enabling instrument of primary legislation must fulfil the same overriding presumption
of reasonableness. It is assumed that Parliament, the maker of primary legislation,
intended that regulations should be imposed only where reasonably necessary to further
the objects of the primary legislation, only where the delegated authority has applied its
mind to the area where it considers the object requires furthering and has evolved a
design to remedy the shortcoming, only where the design falls within the jurisdiction of
the delegated authority to implement, and, finally, only where the delegated authority, in
implementing the design, has followed procedures prescribed either by the general law
(eg the rules of natural justice) or by the instrument itself which would enable the
decision to be reviewed.
There has been some judicial discussion in Britain as to whether Lord Diplock, in
mentioning separately “illegality”, “irrationality” and “procedural impropriety”, intended
to expound three new grounds for review. Certainly, in this case, counsel for the
appellants appears to have taken the view that he did.
Page 240 of 1991 (2) ZLR 234 (SC)
In the pleadings the challenged Regulations are alleged to be unreasonable and irrational.
I do not think this is a valid distinction. The difference between the definitions, in this
context, is slight: if the Regulations are irrational they are also unreasonable, and vice
versa. In the broader context I am of the opinion that the three grounds described by Lord
Diplock in the CCSU case supra were not intended as separate bases from which to
launch attacks on a decision to have it reviewed. The justification for applying to have a
decision reviewed remains the assertion that the decision was unreasonable. Lord
Diplock’s grounds were a contemporary response to Lord Russell’s question in the Kruse
v Johnson case supra: “But unreasonable in what sense?”. They are, in my view, a
convenient categorisation of the aspects of unreasonableness entertained by the English
courts in the late twentieth century. A fine-tuning of a legal tenet to make it more
accessible to modern requirements. My opinion in regard to the fact that Lord Diplock
was not setting new grounds for review is fortified by the opinions expressed by Lord
Donaldson MR in R v Secretary of State, ex parte Brind [1990] 1 All ER 469 at 480h,
and Ralph Gibson LJ in R v General Medical Council, ex parte Colman [1990] 1 All ER
489 at 504e. Both these authorities are opinions expressed in the English Court of
Appeal.
Apart from the general ground of unreasonableness, the following grounds of appeal
were common to all cases. I propose to deal with these grounds before deciding the
question of unreasonableness or otherwise of the Regulations:
The first such additional ground of appeal is that the magistrates erred in holding that the
appellants bore the onus of proving what incidental charges were incurred in connection
with the purchase of the commodity in question. Incidental charges are defined costs
which may, in terms of s 4 of the Regulations, be added to the permitted cost price and
mark-up allowance for the purpose of obtaining a selling price. The interpretation section
of the Regulations defined incidental charges, at the time of the offence, as meaning (a)
customs duty and clearing charges, (b) interest, bank and finance charges, and (c)
purchasing, shipping and confirming commissions incurred in connection with the
importation or purchase of any commodity. Having regard to the diverse nature of these
costs and the likelihood that they will vary with each consignment of commodities if not
with each commodity, I do not think it is at all unreasonable to assume that the onus of
proving these costs was to be borne by a person or company accused of contravening the
Regulations. This is a necessary exception to the general rule in criminal trials, which
requires the State to prove its assertions. In my opinion, the magistrates did not err in
holding that the primary onus of proving incidental charges lay on the appellants, and on
this aspect the appeal must fail.
Page 241 of 1991 (2) ZLR 234 (SC)
The second additional ground of appeal was that the magistrates had erred in holding that
transport costs between storage and selling facilities within the same business
organisation could not be included in the “pre-sale cost” of a commodity. There is, I
think, considerable merit in this argument. The relevant provision appeared as item (b)
(iii) of the definition of “pre-sale cost” at the material time. (It has since been re-
categorised.) It provides:
“‘Pre-sale cost’ means —
(b) if the seller is the manufacturer, wholesaler, dealer or retailer of the commodity in
question, the total of the charges incurred per unit by the seller in respect of —
 ...
(iii) transport costs to the factory or business premises of the seller . . .” (my
emphasis).
In my opinion the clear meaning of this provision is that where the end-seller also
manufactures, sells by wholesale or retail, or deals in the commodity in question, he
ought to be permitted to offset the cost of transport of that commodity to his factory or
place of business. No mention is made of the place of origin of the commodity. I can see
no good reason for distinguishing, in respect of transport costs, between a commodity
which is stored in a warehouse belonging to the same company as the end-seller and a
commodity stored in the warehouse of an independent contractor. In both cases transport
costs will be incurred by the seller. There seems no good reason to discriminate against
the seller who has his own warehouse by not allowing him to include transport costs in
his selling price. I draw particular attention to the fact that a valid integer of “pre-sale
cost” is the allowance to a seller/dealer of transport costs to the business premises of the
seller.
In my opinion, the clear implication of this provision is that where an “end-seller” also
manufactures, distributes by wholesale or retail, or deals in the commodity in question, he
may integrate into his pre-sale costs expenditure on transport to his factory or place of
business. No specific reference is made to the point of origin, although it may fairly be
assumed that this is the place of manufacture or dealing or place from which wholesale or
retail distribution is made. In these circumstances I can see no good reason for
discriminating against a seller who, by reason of the size of his business or through,
perhaps, completely unrelated circumstances, owns storage facilities of his own. It is trite
that laws cannot be unequal in their application. A seller who owns storage facilities will
incur costs of transporting his commodities to his factory or business premises in the
same way as a seller who does not. It would be a most
Page 242 of 1991 (2) ZLR 234 (SC)
unequal application of this law if the latter was entitled to factor transport costs into his
pre-sale costs, while the former was prohibited from doing so. For these reasons it is my
view that there is merit in this ground of appeal.
The third ground is that the magistrates erred in accepting that the State had established
the correct selling price of the commodities involved. It follows from what I have said in
regard to the second ground that if the transport costs were incorrectly excluded from the
alleged price then the total must have been incorrect. Therefore, the appeal on this ground
has merit. The impact of this decision on the individual convictions will be discussed
below.
The fourth ground constitutes the essential defence that the Regulations are ultra vires the
Act, particularly in that the concepts of “incidental charges” and “pre-sale costs” (both of
which are essential components in the calculation of the controlled price) are “vague,
uncertain, unreasonable and irrational”. The law and evidence in this regard will be
discussed in detail below.
The fifth ground common to all cases was a challenge to the magistrates’ rejection of the
appellants’ submission that the prices at which the relevant articles were offered for sale
were not so unreasonable as could not be accommodated within the terms of the
Regulations.
In other words, as I understand it, this ground was offered as an alternative to the fourth
ground. The appellants seem to be saying that, even if the court holds that the concepts of
“pre-sale cost” and “incidental charges” were correctly found to be reasonable, the
magistrates ought to have found that the prices were reasonable in reality and the alleged
excess over the controlled price ought to have been included in the calculation of the total
price under the item “incidental charges”.
In respect of the appellants Pelhams and OK Bazaars I would be inclined to accept this
submission. The excess over the controlled price alleged in the charges against them was
low — 3,85% and 3,69% respectively. I have mentioned above that I think transport
charges are an allowable pre-sale cost to these appellants, notwithstanding the fact that
the transport was between departments of the same company. In these circumstances it is
quite conceivable that these small percentages might represent the itemised transport
costs. Unfortunately no evidence was led as to what were the actual transport costs, so it
is impossible for me to say whether or not the magistrates did err in this respect. It is
insufficient to suspect that an inferior court may have reached a wrong conclusion on a
ground of appeal. An appellate tribunal must be certain
Page 243 of 1991 (2) ZLR 234 (SC)
that there has been a misdirection in order to avail itself of the jurisdiction to interfere.
The fifth ground of appeal must therefore fail.
In respect of the appellant Cullen and Kuhn (Private) Limited, trading as “Members”, an
additional ground of appeal was noted. The company had been charged with selling a suit
for $389,00 when the maximum permitted price was $329,06. The suit had been obtained
from the supplier at a cost of $195,00. In terms of the Regulations the company was
permitted a 50% mark-up. In fact they had taken one of 76%. Before the magistrate the
company’s representative contended that, in the light of his own costs, a 50% mark-up
was inadequate to make what he considered to be a reasonable profit. (His costs included,
apart from the normal running costs of a shop, the repayment on a large loan taken in
order to purchase the business.) The magistrate took the view that a 50% mark-up was
reasonable and enforceable. (I think there is a typing error in the notice of appeal —
“unreasonable” in Ground 6 ought to read “reasonable”.) It is against this decision that
the company appeals. In my opinion, subject to what will be said below in regard to the
general appeal, a 50% mark-up cannot be said to be unreasonable in terms of the
regulations and it was most certainly enforceable on the view the magistrate took of the
matter. This ground of appeal is therefore without merit.
I come now to consider whether the Regulations are so unreasonable as to justify striking
them down. The magistrates considered that, although they might well bear heavily on
businesses of a certain type, they could not be held to be unreasonable in the context of
the trading community as a whole. With respect, while there may well be some truth in
this observation, it hardly does justice to the merits of these cases in the context of the
wealth of learning on the subject. By adopting this simplistic approach the magistrates a
quo denied the cases the mature judicial consideration deserved. A plethora of cases and
many thousands of words of learned writers provide a fertile environment for the due
consideration of whether or not the Regulations may be declared null and void.
I take as a point of departure a distinction drawn by Schreiner JA in the case of Sinovich
v Hercules Municipality supra. At p 802 the learned judge pointed to a distinction
between excess of power and unreasonableness. It was important, he said, to maintain
this distinction, if the “dangerous error” of treating such matters as questions of
interpretation was to be avoided. It should, I respectfully agree, be emphasised that the
jurisdiction of the court in these matters consists in more than merely ruling on the
meanings of words. Schreiner JA’s contention in this regard was fairly recently applied in
the case Staatspresident v United Democratic Front 1988 (4) SA 830 (A) at 869A. This
Page 244 of 1991 (2) ZLR 234 (SC)
said, before any decision can be taken in regard to the fate of the challenged Regulations,
the court has to be certain of the extent of the powers granted to the subordinate
legislator. This implies interpretative investigation.
The regulations were published in terms of s 3 of the Act. Subsection (1) of this parent
provision gives the President, “whenever it appears to (him) expedient or necessary”,
wide powers to control the import into or export from Zimbabwe of any goods or the
distribution, disposal, purchase and sale or the wholesale or retail prices of any goods and
the charges which may be made for (a) services relating to the distribution, disposal,
purchase and sale of the goods, and (b) delivery of goods subject to price control under
this section.
Subsection (2) (in para (a)) requires persons carrying on or employed in business
specified in the relevant Regulations to produce to a person (also specified in any such
Regulations) any books, accounts and other documents relating to that business. (The
paragraph also requires “any person” to furnish to a specified person “such estimate or
returns as the President considers desirable to obtain for the effectual exercise of any of
his powers under this section”. This requirement does not directly bear upon the issues
discussed in this case.)
The issue of unreasonableness has been raised in respect of two aspects of the
Regulations, namely the definitions of “incidental charges” and “pre-sale costs”. The
actual wording of the challenge is that the definitions are “vague, uncertain, unreasonable
and irrational”. However, respectfully adopting the approach taken in the ex parte Brind
case supra, I propose to deal with all these complaints as one, labelled
“unreasonableness”.
Reference to s 2 of the Regulations reveals that the definitions at the time of the offence
were as follows:
“‘Incidental charges’ means —
(a) customs duty and clearing charges;
(b) interest, bank and finance charges;
(c) purchasing, shipping and confirming commission incurred in connexion with the
importation or purchase of any commodity.”
“‘Pre-sale costs’, in relation to any commodity sold by a seller, means —
(a) if the seller is an importer of the commodity in question —
(i) the cost, insurance, freight value of the commodity, whether the
commodity was originally sold to him inclusive of ‘cost, insurance freight’ or on any
other terms; and
Page 245 of 1991 (2) ZLR 234 (SC)
(ii) the total of the charges, if any, referred to in paragraph (b) that are
incurred by the seller after the importation of the commodity into Zimbabwe;
(b) if the seller is a manufacturer, wholesaler, dealer or retailer of the commodity in
question, the total of the charges incurred per unit by the seller in respect of —
 (i) the factory cost or cost from the supplier;
(ii) the cost of packing and dispatching by the factory or supplier as detailed
on the factory or supplier’s packing note;
(iii) transport costs to the factory or business premises of the seller;
(iv) all insurance costs prior to arrival at the factory or business premises of
the seller;
less any trade discount and the value of free commodities allowed by the factory or
supplier, and not including incidental charges.”
The definitions find practical application in the terms of s 19 of the Regulations, which
provide for the control of prices on commodities with specified mark-ups. Subsection
19(2) refers to retail dealers, and so is relevant in the present circumstances. It provides:
“(2) No retail dealer shall sell any commodity listed in the Fourth Schedule from any
business premises at a price greater than that obtained by applying to the pre-sale cost of
such commodity the percentage mark-up pertaining to that commodity stated in the fourth
column of the Fourth Schedule.”
With this provision must be read s 4, which provides:
“4. (1) Where incidental charges are incurred by the seller, the seller shall, in arriving at
any price in terms of sections 9, 10, 11, 19, 20 or 28, first apply the mark-up to the pre-
sale cost of the commodity, then add such incidental charges to the total thus obtained;
(2) For the purposes of subsection (1), where a seller has added any incidental charges
to the prices of any commodity, he shall keep a record of all incidental charges incurred
in respect of such commodity, specifying the amount and description of each incidental
charge thus incurred.”
I do not think it can be seriously maintained that any of the provisions cited above in any
way exceed the regulatory powers vested in the President by s 3 of the Act. Indeed, such
was not contended by Mr de Bourbon, who represented the companies, both individually
in the magistrates’ court and collectively
Page 246 of 1991 (2) ZLR 234 (SC)
before this court. The thrust of his argument for them was that the mentioned provisions
were conceptually unreasonable. The departure point of his argument was to compare the
1989 Regulations with their predecessors, the 1982 Regulations. The former, he implied,
were reasonable in their provisions, the latter not.
The 1982 Regulations, to which Mr de Bourbon referred, were, in fact, directions
published as an Order in terms of the Control of Goods (Price Control) Regulations,
1954, FGN 255 of 1954. (See Control of Goods (Price Control) Order, 1982.) The
concepts of the landed costs being used as a basis for the computation of prices and the
inclusion of interest, bank and finance charges in the stipulated percentage mark-up, to
which learned counsel adverted for purposes of comparison, were part of a scheme which
originated some 35 years prior to the new Regulations coming into force. It was a tried
and trusted scheme, although regarded, perhaps, with some disapproval by those to whom
they applied, as is almost inevitable with controls of this nature.
However, the 1954 Regulations were introduced and, until 1980, were maintained by
successive administrations which, for want of a more concise description, were oriented
towards a capitalist economy in which free-market forces were, as far as was practical,
encouraged. In 1980 the new administration which formed the post-independence
Government adopted a very different economic philosophy based on socialist principles.
It is not within our competence to expound in more than the broadest outline what this
philosophy consists of, but it appears to be widely recognised that socialism implies a
more interventionist approach by central Government on behalf of the common man.
Market forces are not relied on to the same degree to determine prices and this results in
increased regulation of the detailed activities of the trader. This recognition is borne out
by the most cursory comparison of the 1982 Order with the 1989 Regulations. The latter
imposes more stringent controls on the methods to be used in calculating the selling price
of any article. I refer here particularly to the concepts of “incidental charges” and “pre-
sale costs”. In this connection, too, it is instructive to note the increased particularisation
of items whose prices are subject to control.
Now, there can be no objection to the Government of the day tailoring the law to suit its
own ideology. Indeed the essence of a democratic society is that law should reflect the
will of the people. But when a political party does form a Government it is trite
constitutional law that it assumes a different character. It becomes responsible for the
affairs of State and for the good governance of all citizens. Inter alia this must mean that
any changes it proposes must be made
Page 247 of 1991 (2) ZLR 234 (SC)
with the minimum disruption to their lives. Here we touch what I perceive to be the nub
of the appellants’ case. They do not object to the fact of price control, nor even to the fact
of change therein. The essential objection, which appears clearly from the evidence given
in the magistrates courts, is that the changes were effected without consultation or
explanation before or after promulgation. Repeatedly representatives of the appellants
recounted attempts to contact the relevant Government departments in efforts to seek
clarification of the contentious provisions of the Regulations, but to no avail. For reasons
of its own, the Ministry concerned maintained an uncompromising silence in regard to
these Regulations, despite the far-reaching implications for both traders and the public as
a whole.
In my view, this refusal to explain the Regulations constitutes a valid ground on which
the court may justify intervention in this matter. The evidence in this regard was not led
in a great deal of detail, but it is abundantly clear that the civil servants concerned were
quite unwilling to countenance any dialogue on the subject. This is surely a quite
inexcusable attitude when the subject of the enquiries was a new price control regime
which, depending on its proper interpretation, had the potential of ruining the businesses
of many enquirers and making the conduct of normal trading extremely difficult for
others. Further, it seems obvious from the bewilderment of the appellants that either no
prior consultation had taken place regarding the Regulations or the authors thereof had
disregarded any recommendations arising from such consultation.
There is no specific duty on makers of subordinate legislation to consult anyone before
promulgating laws. However, a situation where legislators possess untrammelled power
to legislate against the wishes and possibly to the detriment of individual subjects is not
in keeping with modern constitutional law and practice. In the United States of America
the Federal Administrative Procedure Act of 1946 gives a right, albeit subject to various
exceptions, to interested persons to participate in “rule-making” through the submission
of written data, views or arguments. Of the situation in this regard in England Professor
Wade comments (at p 865 of the Sixth Edition (1988) of his book Administrative Law):
“Consultation before law-making, even when not required by law, is, in fact, one of the
major industries of government.”
Particular British statutes often require, Professor Wade adds, particular interests to be
consulted, or advisory committees or councils set up in terms of various Acts must be
consulted before rules are made. All of this adds up to less prescriptive and more
democratic government.
Page 248 of 1991 (2) ZLR 234 (SC)
Developments in administrative law, particularly as regards the concept of “legitimate
expectation” and the device of suspending an action pending the application of the audi
alteram partem rule (see Mafuya & Ors v Mutare City Council 1984 (2) SA 124 (ZHC);
R v Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators’ Association [1972]
2 QB 299 (CA); and Port Louis Corporation v Attorney-General of Mauritius [1965] AC
1111 (PC)) enable me to grant limited relief to the appellants.
It may well be that, in the absence of a contrary provision in the enabling statute, the
authors of subsidiary legislation are under no obligation to consult those whom a by-law
will affect before they promulgate it. However, in the light of the peculiar circumstances
appertaining to these by-laws, I am of the opinion that the appellants and other traders
had a legitimate expectation that they would at least be fully informed regarding the
contents of the Regulations on the basis that to be forewarned is to be forearmed. There
was evidence in the OK Bazaars case of the immense cost to the company of a
compulsory price change. It was said that a recent alteration in sales tax rates cost the
company in excess of $50 000 just to relabel merchandise. While OK Bazaars is
doubtless an extreme case due to their large volume of goods, the cost of the changes
necessary to comply with the Regulations, I would imagine, would in none of these cases
be insignificant.
“Legitimate expectation” is a concept developed by the English courts during the last
decade or so: see R v Hull Prison Board of Visitors [1979] 1 All ER 701; O’Reilly v
Mackham [1982] 3 All ER 1124 (HL); and Attorney-General of Hong Kong v Ng Yuen
Shiu [1983] 2 All ER 346 (PC). It is designed to grant relief to a subject who has been
disadvantaged by his reliance on a substantial indication that the Executive would take a
course of action which it did not, in fact, take. It has been accepted into South African
law in cases such as Castel NO v Metal and Allied Workers Union 1987 (4) SA 795 (A),
and Makoena & Ors v Administrator, Transvaal 1988 (4) SA 912 (W). In the CCSU case
supra at 954f Lord Roskill said of legitimate expectation:
“The principle may now be said to be firmly entrenched in this branch of law. As the
cases show, the principle is closely connected with the right to be heard. Such an
expectation may take many forms. One may be an expectation of prior consultation;
another may be an expectation of being allowed to make representations, especially
where an aggrieved party is seeking to persuade an authority to depart from a lawfully
established policy adopted in connection with the exercise of a particular power because
of some suggested exceptional reasons justifying such a departure.”
Page 249 of 1991 (2) ZLR 234 (SC)
It is significant that Lord Roskill chose to single out prior consultation as an example of a
legitimate expectation.
Closely related to legitimate expectation as a ground of unreasonableness is a seeming
contradiction in legislative policy. In normal circumstances no court would enquire into
this field, but an examination of reasonableness involves an essentially practical rather
than a strictly legalistic approach.
The anomaly here is the nature of the Regulations in the light of the economic structural
adjustment programme (“ESAP”) which is presumably sponsored, at least partially, by
the same Ministry. The thrust of ESAP is the liberalisation of trade and the lessening of
central control on the economy. This amounts to a major change in economic policy: the
legal philosopher, Hans Kelsen, would have viewed it as a change of the economic norm.
It is, on any view, a change of approach so fundamental that this court cannot ignore its
implications. Into this new environment the Regulations still allow for a price control
regimewhich seeks to increase central control (see, for instance, the expanded range of
goods whose price is specifically controlled) and inhibit the ability of traders to modify
their profit margin to suit their trading conditions. The necessity of some form of price
control in an economy such as ours would be unquestionable, even if it was open to the
courts to pronounce on it. Competition is too weak to allow total freedom to traders in
this area. But controls must be reasonable. They must not impose such an administrative
burden on the individual trader that they are impossible, or even difficult to operate,
neither should they impose theoretical restrictions on profit margins which are
unworkable in practice. I refer here particularly to the definitions of pre-sale costs and
incidental charges, which appear to me academic and artificial.
Before concluding, I would like to comment on one aspect of the evidence in the cases
against Paul of Carnaby Street and Cullen and Kuhn. It was alleged that the suppliers
dictated, by unwritten pacts, minimum retail prices and threatened to withdraw their
prestigious franchises if such prices were not maintained. This I regard as a thoroughly
obnoxious and insidious practice and one which would mitigate considerably the offences
of these two appellants. Further, it seems to me that provision ought to be made to
eradicate this type of practice.
The order I propose reflects my finding that the applicants had a legitimate expectation
that they would be consulted before the Regulations were published. I have noted my
opinion that some form of price control is necessary in the economy of Zimbabwe so I
am unable to say the Regulations are wholly
Page 250 of 1991 (2) ZLR 234 (SC)
unreasonable. It would be rather presumptuous of me, as one unversed in economics in
general and local trade in particular, to sift through the provisions declaring this or that
section to be unreasonable. Moreover such a course would be unwise, as many potential
lacunae would be opened thereby. Instead I would venture to suggest that the operation of
current Regulations should be suspended for a period to allow the responsible Ministry
time to reconsider the terms of the necessary legislation and to attempt to reach a
consensus with those whom they will affect on how best to implement an effective
system of price control.
The appeals against sentence succeed in respect of all the appellants, and the sentences
are altered to read “Cautioned and Discharged”. The appellants succeeded in this appeal
only insofar as I was persuaded that they had a legitimate expectation of being consulted
and that this was not done. I suggested the suspension to allow a consultative dialogue to
proceed, not because I have ruled that any specific section was unreasonable. My opinion
in regard to the appellants’ frustrated expectation is mitigatory, but it does not mean I am
satisfied that the magistrates wrongly convicted the companies.
Manyarara JA: I agree.
Korsah JA: I agree.
Winterton, Holmes & Hill and Ben Baron & Partners, appellants’ legal practitioners
MANGA v MANGA
1991 (2) ZLR 251 (SC)
Division: Supreme Court, Harare
Judges: Gubbay CJ, McNally JA & Manyarara JA
Subject Area: Civil appeal
Date: 24 & 31 October 1991

Mandament van spolie — joint possessors — order available at the instance of one joint
possessor against the other.
Husband and wife — one spouse removing jointly held matrimonial property from the
matrimonial home — order to restore.
When one of two joint possessors of a thing illegally takes exclusive possession of that
thing a mandament van spolie will lie at the instance of the other possessor in the same
way as if the applicant had enjoyed exclusive possession.
The respondent, who was married to the appellant, left the matrimonial home taking with
him certain items which had up to then been in possession of both spouses. The appellant
delayed for some five months in bringing her application in the court a quo, although the
commencement of the action was preceded by several demands for restoration of the
claimed items.
Held, that the appellant was entitled to a spoliation order.
Held, that the appellant’s delay in instituting proceedings did not amount to acquiescence
in the dispossession.
Cases cited:
Petersen v Petersen 1973 (2) RLR 270 (R)
Rosenbuch v Rosenbuch & Anor 1975 (1) SA 181 (W)
Oglodzinski v Oglodzinski 1976 (4) SA 273 (D)
Coetzee v Coetzee 1982 (1) SA 933 (C)
Jivan v National Housing Commission 1977 (3) SA 890 (W)
Page 252 of 1991 (2) ZLR 251 (SC)
A J Dyke for the appellant
R Makarau for the respondent
GUBBAY CJ: The appellant, who was the applicant in the court below, is the wife of the
respondent, their marriage having been solemnised in terms of the Marriage Act [Chapter
37]. Until 4 February 1989 they lived together for several years in a block of flats in
Harare and jointly possessed all the furniture and household effects, as well as an Alpha
Romeo motor vehicle. At some stage serious disharmony arose between them, which
culminated in the respondent’s departure from the matrimonial home on the date afore-
mentioned.
There is a dispute as to whether the respondent was driven out by the appellant, but
whether he was or not is of no relevance to the present issue. What is common cause
between the parties is that when he did leave, he removed those household goods, and the
motor vehicle, enumerated and described by the appellant.
Considering herself aggrieved by the respondent’s action, the appellant instituted
proceedings for a spoliation order. She deposed in para 4 of her affidavit, filed in support
of the notice of motion, that:
“. . . prior to the respondent’s dispossessing me, I enjoyed lawful, peaceful and
undisturbed possession of the property.”
In his opposing affidavit the respondent did not dispute the allegations in para 4 and did
not suggest that the appellant had, either expressly or tacitly, acquiesced in the removal of
the property in question. That was not his defence. The justification for his conduct was
worded in this way:
“The applicant and myself enjoyed lawful, peaceful and undisturbed possession of the
property jointly since we are married and stayed together in the matrimonial home. When
the applicant chased me from the matrimonial home all I did was to simply take my
property (having purchased all of it either prior to or during the marriage) to my new
residential home.” (Emphasis added.)
While appreciating that a defence of ownership of the spoliated thing is not permissible,
the learned judge who heard the application dismissed it on the ground that the
mandament van spolie does not lie at the suit of a person who holds jointly with others —
exclusivity of possession being an essential requirement.
Page 253 of 1991 (2) ZLR 251 (SC)
Even in relation to the special situation of husband and wife, I am in respectful
disagreement with that proposition as being a correct reflection of the law. The only case
which affords it some support is Petersen v Petersen 1973 (2) RLR 276 (R). There, a
matrimonial action was pending between the spouses. Both claimed to own the household
property, but neither’s right to possession thereof was inferior to the other’s. Beck J (as
he then was), having regard to the applicant’s obligation to provide his wife and children
with a suitable home, decided to allow her to retain the goods she so needed, and ordered
the remaining goods to be returned to the husband. He considered that the principles of
spoliation were an unsatisfactory basis on which to determine a dispute between the
spouses pendente lite (see at 271G-H). This approach undoubtedly provided an equitable
and practical solution.
With all deference, however, I prefer the reasoning of Colman J in Rosenbuch v
Rosenbuch & Anor 1975 (1) SA 181 (W). In that case the husband, married out of
community of property, applied for a spoliation order against his wife, who had left the
matrimonial home taking with her certain furniture and household effects. On the
assumption that the articles concerned had been jointly possessed by the spouses up to the
time of their removal by the wife, the learned judge held the husband entitled to the
spoliation order sought. He said at 183F-G:
“(It) seems to me that in principle a joint possessor who has been deprived of his share of
the possession of something should be entitled to the remedy of a spoliation order if the
other factors requisite for such relief are present. When one of two joint possessors of a
thing illicitly takes exclusive possession of that thing against the will of his co-possessor
the ratio underlying the remedy of a spoliation order would seem to me to be as fully
applicable as in the case where a person has been wrongfully deprived of exclusive
possession.”
Colman J rejected a contention that the ordinary principles of spoliation did not arise
because the husband had in fact driven the wife from the joint household and thus
wrongly deprived her of the possession of her share of the household goods. He
explained at 184A-D:
“I do not know whether the husband did that or not; he denies it, and that is one of the
issues which will fall to be determined in the pending action; it certainly cannot be
determined at this stage. But even if the husband did commit the type of constructive
desertion suggested I find it difficult to see how that can assist the wife in the present
proceedings. A spoliator cannot
Page 254 of 1991 (2) ZLR 251 (SC)
justify his conduct, and avoid the consequences of that conduct, by saying that he was the
victim of prior spoliation. If he was, he had a remedy in law, but not the right to take the
law into his own hands. If the wife in this case was driven out of her home and thus
deprived of the use of the goods which she reasonably required she had her remedy in an
application to this Court for maintenance pendente lite or possibly for some specific
relief. But it would be flying in the face of the well established principles underlying our
law of possession and spoliation if it were to be said that in such circumstances she had
the right, against the will of her husband, to take for herself whatever she needed or
thought she needed.”
In Oglodzinski v Oglodzinski 1976 (4) SA 273 (D) at 276B Leon J likewise approved of
the remarks of Colman J and what was held to be the position in the Rosenbuch case
supra.
Notwithstanding the absence of any argument to the contrary, I have considered whether,
in contra-distinction to the restoration of the household furniture and effects, the
appellant is entitled to the remedy of spoliation with respect to the Alpha Romeo motor-
vehicle. I think she is. The allegation was made, and not denied, that the motor-vehicle
was one of the assets jointly possessed by the parties at the time it was removed by the
respondent. One can only assume, therefore, that it was in use for the purposes of the
matrimonial home. Certainly the respondent did not suggest otherwise. It is true that the
appellant admitted that the motor vehicle was purchased by the respondent, though
adding that she enabled him to save money for its purchase by personally meeting all the
household expenses. It may well be that her prospects of being able to resist a vindicatory
claim are weak, but she cannot on that ground be denied the relief of having the status
quo ante restored. See Coetzee v Coetzee 1982 (1) SA 933 (C).
Finally, it was urged on the respondent’s behalf that this court should decline to interfere
with the judgment of the court a quo, on the ground that the appellant had failed to seek a
spoliation order within a reasonable time after the date of dispossession, albeit the
lodging of the application, on 10 July 1989, had been preceded by numerous demands for
restoration of the property.
A similar argument was presented to Steyn J in Jivan v National Housing Commission
1977 (3) SA 890 (W). He considered that the bar of one year, which under the common
law is imposed in the case of the mandament van complainte, should be a guide to
modern practice as regards the mandament van spolie; but that the court was not
necessarily bound to refuse an order sought after a year, or to allow an order if less than a
full year had elapsed, especially if, on account
Page 255 of 1991 (2) ZLR 251 (SC)
of the delay, no relief of any practical value could be granted (see at 892 in fine-893C).
The learned judge held that the delay of eight months, in the matter before him, was not
so gross, nor had it such self-defeating consequences, as to justify the refusal of relief.
I am satisfied that in casu a delay of five months cannot be regarded as consistent only
with acquiescence on the part of the appellant in the dispossession. Nor was the delay so
extensive as to disable the court a quo from granting any practical relief.
In the result, the appeal succeeds with costs. The order of the High Court is altered to
read:
“1. The respondent is ordered to restore possession to the applicant of the
property listed in Annexure A to the Notice of Motion within seven (7) days of the
service of this order upon him, failing which the Deputy Sheriff be and is hereby directed
to effect restoration of possession to the applicant.
2. The respondent is to pay the costs of suit.”
McNally JA: I agree.
Manyarara JA: I agree.
Coghlan, Welsh & Guest, appellant’s legal practitioners
Gambe, Chinyenze & Associates, respondent’s legal practitioners
KATSUMBE v BUYANGA*
1991 (2) ZLR 256 (HC)
Division: High Court, Harare
Judges: Robinson J
Subject Area: Civil trial for damages
Date: 31 October 1991

Husband and wife — adultery — damages — factors to be considered — quantum.

The plaintiff sued the defendant for damages for adultery, claiming $3 000. The
defendant did not appear at the trial. The court considered the various factors relevant to
the assessment of damages for the delict of adultery.
Held, in the absence of mitigatory circumstances, the court should take a strong and
principled stand by awarding high levels of damages for adultery, otherwise the court will
be a party to unlicensed promiscuity.
Held, the contumelia suffered by the plaintiff justified an award of damages of $3 000.
Cases cited:
Doyle v Salgo 1957 R&N 840; 1958 (1) SA 36 (FSC)
Viviers v Kilian 1927 AD 449
Potgieter v Potgieter & Anor 1959 (1) SA 194 (W)
Smit v Arthur 1976 (3) SA 378 (A)
JR Devittie for the plaintiff
ROBINSON J: At the conclusion of the hearing of this action on 31 October, 1991 I
ordered that judgment be entered for the plaintiff against the defendant in the sum of
$3 000 together with costs of suit in respect of the damages sustained by the plaintiff by
reason of the defendant’s adultery with the plaintiff’s wife and said that I would give a
written judgment recording the facts and reasons on which my order was based. This I
now do.
The plaintiff mounted his action against the defendant, who was described as a protocol
official in the Ministry of Foreign Affairs, on 29 December 1986 claiming the sum of
$3 000 as damages allegedly sustained by the plaintiff as a result of the defendant’s
adultery with the plaintiff’s wife, whom the plaintiff had married in South Africa in 1980
and to whom the plaintiff is still married, over the period February 1986 to November
1986. (At that time the ceiling of jurisdiction in the magistrates court for unliquidated
claims was $2 000.)
I now turn to address the first legal issue, that of liability.
Although the plaintiff said that he had instructed his original legal adviser fully about the
acts of adultery which, according to his wife’s confession, had taken place between her
and the defendant in South Africa (“the South African acts of adultery”), the plaintiff’s
then legal adviser has pleaded and relied upon only the acts of adultery committed by the
defendant with the plaintiff’s wife in Harare over the period February 1986 to November
1986 (“the Zimbabwean acts of adultery”). It is, therefore, solely with the Zimbabwean
acts of adultery that this court is concerned. However, I allowed the plaintiff to lead
evidence on what has happened in South Africa, albeit some of it may have been hearsay,
to explain the background to the Zimbabwean acts of adultery.
By admitting the Zimbabwean acts of adultery in his plea, the defendant has conceded the
plaintiff’s allegations in regard to liability and given credence to the plaintiff’s wife’s
disclosures to the plaintiff in that respect.
Accordingly, in the light of the plaintiff’s unchallenged denial that he was aware at the
time that the defendant was committing adultery with his wife and that he raised no
objection thereto, the way is clear for me to proceed to the next issue, namely, the
quantum of damages to be awarded to the plaintiff.
In approaching this matter, I am mindful of the caution issued by Tredgold CJ in Doyle v
Salgo 1957 R&N 840 (FSC) at 841B-C; 1958 (1) SA 36 (FSC) at 37B (an undefended
case involving a claim for adultery damages) that the fact that an action for damages is
undefended does not relieve the trial judge from the
Page 258 of 1991 (2) ZLR 256 (HC)
obligation of scrutinising the evidence closely; further, I must disregard completely the
South African acts of adultery.
Next, it is crucial to note that, in this action, there is no question of damages being
awarded to the plaintiff for the loss of his wife’s consortium, that is to say, for “the loss
of the comfort, society and services of his wife” (see Viviers v Kilian 1927 AD 449 at
456) as a result of the defendant’s adultery with the plaintiff’s wife since the plaintiff
elected to condone his wife’s acts of adultery and to remain married to her, to the extent
of having two further children with her.
This being the case, the plaintiff’s claim for damages is confined to one based on
contumelia, that is to say, for the injury, hurt, insult and indignity inflicted upon the
plaintiff by the defendant as a result of the latter’s adultery with the plaintiff’s wife. In
assessing damages under this head, it is not relevant for the court to have regard to factors
such as those raised by the plaintiff — that he cannot trust his wife any more and that he
always has a picture of the defendant when he has sexual intercourse with his wife; nor
may the court accept as a factor aggravating the damages to be awarded under the head of
contumelia that the defendant caused the plaintiff’s wife to fall pregnant by him by
requiring her to have her contraceptive loop removed since this was something which
arose out of the South African acts of adultery, which were not included in the plaintiff’s
pleadings.
Before addressing myself to the quantum of damages to be awarded to the plaintiff. I
wish to say that, in my view, where a third party is shown to have intruded sexually upon
a marriage and to have contributed to the breach of the duty of marital fidelity which each
spouse owes the other by committing adultery with the one spouse, the courts, in the
absence of mitigating circumstances, should be seen, in their award of damages, to come
down hard on the adulterer or adulteress as opposed to treating him or her with kid gloves
for a variety of expedient reasons. The courts should ensure, as far as is reasonably
possible, that an aggrieved spouse who approaches them is not made to feel, after their
award of damages, that the adulterer or adulteress has been the winner and that it would
have been better for the aggrieved spouse to have taken the law into his or her own hands.
Hopefully, we have not reached the stage where we have to be told that adultery is
something to be eschewed and condemned
Accordingly, unless they are prepared to take a strong and principled stand in this regard
in support of the vital institution of marriage, the courts will only be party to society’s
further slide down the slippery slope to the unlicensed promiscuity which scoffs at the
spiritual prohibitions against pre-marital and
Page 259 of 1991 (2) ZLR 256 (HC)
extra-marital sex and which has landed the world in the sexual morass over which the
monster, AIDS, now presides in all its frightening aspects.
Turning now to the quantum of damages in this case, I find the following to be features in
aggravation of the damages to be awarded to the plaintiff for the contumelia suffered by
him, namely —
(a) that the defendant resorted to an insidious lie to ensnare the plaintiff’s wife
sexually by telling her that the plaintiff was planning to divorce her so that he could
marry a girlfriend;
(b) that, to compound matters, in committing adultery with the plaintiff’s wife, the
defendant betrayed the plaintiff’s friendship in a most despicable way, to the point of
having sexual intercourse with the plaintiff’s wife even in the plaintiff’s home in
Hatfield;
(c) that when his acts of adultery with the plaintiff’s wife became known to the
plaintiff, the defendant, far from showing any sign of contrition, behaved in a most
brazen fashion, to the extent of compelling the plaintiff to prove his marriage to his wife
and by alleging that the plaintiff had corruptly acquiesced in the commission of the
Zimbabwean acts of adultery and also by trying, through various threats, to intimidate the
plaintiff into dropping his action against the defendant.
In the circumstances there can be no doubt about the grave and humiliating indignity felt
by the plaintiff, particularly within the circle of his business friends, as a result of the
defendant’s adultery with his wife. Indeed, one can perhaps understand why it was that
the plaintiff should have been driven to the desperate point of wanting to kill the
defendant because of the latter’s sexual escapades with the plaintiff’s wife.
At the end of the day, it might be said of the defendant that he was truly a ram in sheep’s
clothing and one can only feel pity for a profligate man such as this who has brought
shame not only upon himself and his adulterous partner but also upon his family and
upon the Government, as his employer.
A high award of damages is clearly called for in the circumstances of this case, an award
which will recognise the serious injuria inflicted upon the plaintiff in the light of the
cunning misuse of his position and friendship by the defendant and the subsequent
contempt with which he treated the plaintiff. See Potgieter v Potgieter & Anor 1959 (1)
SA 194 (W) at 195D. There being a penal element
Page 260 of 1991 (2) ZLR 256 (HC)
in the form of damages for contumelia, this is certainly a case which cries out for the
adulterer to be penalised, see Potgieter’s case supra at 195F.
In Smit v Arthur 1976 (3) SA 378 (A) at 387B-C Miller AJA, when dealing with an
award of damages for adultery, said that in “assessing an adequate award to compensate
the appellant, who was undoubtedly humiliated and deprived by the wrong done to him, it
is necessary to bear in mind, when looking at awards made in the past, the decreased
value of money”.
Because, in my view, the courts have tended to pay only lip service to their condemnation
of adultery, their awards of damages for adultery have been relatively low, even where
damages have been awarded for both contumelia and loss of consortium. However, even
if one looks at a past award such as that made in Doyle v Salgo supra one finds that the
court awarded the plaintiff the sum of £50 sterling as damages for contumelia arising out
of the defendant’s adultery with the plaintiff’s husband, in circumstances which lacked
the aggravating features found in the present case. In my view, had this case been before
the Federal Supreme Court then, that court would have awarded the plaintiff a much
higher amount which, translated into today’s monetary terms, would certainly have
exceeded the sum of $3 000 which the plaintiff is claiming.
Accordingly, in view of the attitude which I adopt towards adultery and having regard to
the aggravating features in this case, to the business callings and financial and social
circumstances of the parties and to the value of money in present day Zimbabwe, I
consider the plaintiff is entitled to every dollar of the $3 000 which he is claiming (and
which, of course, is worth much less now than when he instituted his action in December,
1986) from the defendant on the ground of the defendant’s acts of adultery with the
plaintiff’s wife in Zimbabwe.
It is for these reasons that I ordered that judgment be entered for the plaintiff against the
defendant in the sum of $3 000 together with costs of suit.
Atherstone & Cook, plaintiff’s legal practitioners
THE PRESBYTERIAN CHURCH OF SOUTHERN AFRICA v SHIELD OF
ZIMBABWE INSURANCE LTD
1991 (2) ZLR 261 (HC)
Division: High Court, Bulawayo
Judges: Muchechetere J
Subject Area: Trial action
Date: 25 September & 8 November 1991

Insurance — meaning of the word “riot” in policy — whether a term of legal art as
recognised in English Law — terms of contract only to be accorded the status of a term
of legal art where so recognised by the country in which it is contemplated by the parties
that the loss will occur.
Insurance — interpretation, of insurance contracts — no special rules of interpretation
applicable thereto —ordinary grammatical meaning to apply in the absence of an absurd
result — application of the contra proferentem rule.
Insurance — onus — reverse onus clause in insurance contract — what an insurer is
liable to prove to bring such a clause into operation in his favour in order to rely on an
exception in the policy.
In the action against the defendant in respect of two policies of insurance provided by the
latter in favour of the plaintiff in which certain exceptions absolved defendant from
liability for loss occurring due to riot, it was contended for the defendant that whereas the
term “riot” is, in English law visited with the status of a term of legal art and as such not
necessarily defined in accordance with the popular belief that, inter alia, a riot involves
noise or disturbance the English Law definition ought to be applied in Zimbabwe.
Held, that a word or phrase can only be a term of legal art if it is recognised as such by
the law of the country in which it was envisaged by the parties that the loss would occur.
Page 262 of 1991 (2) ZLR 261 (HC)
Held, further that in the interpretation of contracts of insurance there are no special rules
of construction peculiar to the interpretation of insurance policies and that in the absence
of an absurd result, the plain ordinary and popular meaning of words will be applied.
Held, further, after a review of various dictionary definitions of the word “riot”, that in
summary the term appears to mean “uproar, tumult, and disorderly behaviour of a crowd
or mob of the populace”.
Held, further, that in interpreting the term “riot” thus, the defendant was also caught by
the contra proferentem rule.
Held, further that where an insurance policy contains a reverse onus clause and the
insurer wishes to rely upon exceptions contained in the policy, where there is a loss
which, prima facie falls within the risk insured against, the insurer must adduce evidence
pointing to the applicability of the exception in order to have the reverse onus clause
operate in his favour.
Cases cited:
Field & Ors v The Receiver of Metropolitan Police [1907] 2 KB 853; [1904-07] All ER
Rep 435 (KB)
S v Sharp [1957] 1 All ER Rep 577 (CCA)
London & Lancashire Fire Insurance Co Ltd v Bolands Ltd [1924] AC 836; [1924] All
ER Rep 642 (ML)
Commercial Union Fire, Marine & General Insurance Co Ltd v Fawcett Security
Organisation Bulawayo (Pvt) Ltd 1985 (2) ZLR 31 (SC); 1986 (1) SA 432 (ZS)
S v Mayers 1970 (1) RLR 198 (A); 1970 (3) SA 720 (RA)
Quick v Goldwasser 1956 R&N 302; 1956 (2) SA 525 (SR)
Scottish Union & National Insurance Co Ltd v Native Recruiting Corporation Ltd 1934
AD 458
Joosub Investments (Pty) Ltd v Maritime & General Insurance Co Ltd 1990 (3) SA 373
(C)
D M Campbell for the plaintiff
J B Colegrave for the defendant
MUCHECHETERE J: The plaintiff issued summons against the defendant claiming the
sums of $25 000 and $1 000 in terms of policies of insurance numbers 9250313465 and
3150312572 respectively.
The facts in the matter are that on 8 July 1987 the defendant insured the plaintiff in terms
of the above policies of insurance. In the first one the defendant agreed to indemnify the
plaintiff against the loss or destruction or damage to buildings
Page 263 of 1991 (2) ZLR 261 (HC)
and their contents at Gloag Ranch Mission, Turk Mine, (hereinafter referred to as “the
Mission”), caused by fire, riot and strike and riot fire as defined in the policy up to an
amount of $97 277. In the second policy the defendant was to be indemnified against the
loss of or damage to a Landrover motor vehicle registration number 320-781Z
(hereinafter referred to as “the landrover”) up to an amount of $1 000. On 8 July 1987
while both policies were in full force and effect the buildings and contents at the Mission
were lost, destroyed and/or damaged by fire and the landrover was also destroyed by fire.
In connection with the said buildings and contents thereof the plaintiff also claims in the
alternative that they were caused by “riot fire” or “riot and strike” as defined in the
Special Extensions to the relevant policy. The plaintiff claims that it suffered loss in the
amounts it claims.
The parties agreed, at a pre-trial conference of 7 June 1991 that the following happened
on 8 July 1987 at the Mission:
“a) On the day in question four armed men arrived at the school and collected
together staff and pupils;
b) Under the direction of the armed men all were ordered to pile furniture
and books together, to pour diesel fuel thereon and to set the pile on fire which was done;
c) The school tuck shop was damaged and thereafter set on fire;
d) Property left in the tuck shop was damaged and thereafter set on fire;
e) Many buildings and their contents were destroyed by the fires thus started.
f) The armed men then stole the landrover after the children loaded it with
stolen goods and it was later found some distance from the school, burnt out and
abandoned;
g) The activities outlined above were carried out in an orderly and
methodical fashion without any element of tumult, unruliness or uproar.”
The defendant maintains that the loss and damage suffered by the plaintiff was sustained
by or in consequence of a “riot”. It therefore contends that in the circumstances it is not
liable to the plaintiff by virtue of the provisions of Clause 1(c) and Clause 4 of the
General Exceptions to the first and second policies respectively. Clause 1(c) of the
General Exceptions to the first policy reads:
“Unless specifically stated to the contrary in any particular section this policy does not
cover
1) Loss destruction or damage whatsoever or any legal liability of
Page 264 of 1991 (2) ZLR 261 (HC)
whatever nature directly or indirectly caused by or arising from or in
consequence of or contributed to by . . .
(c) Mutiny riot military or popular rising insurrection rebellion revolution
military or usurped power martial law or state or siege or any of the events or causes
which determine the proclamation or maintenance of martial law or state of siege. . . ”
And Clause 4 of the General Exceptions to the second policy reads:
“4.The Company shall not be liable in respect of: Any accident injury loss damage
and/or liability directly or indirectly proximately or remotely occasioned by contributed
to by or traceable to or arising out of a or in connection with War Invasion the Act of
Foreign Enemy Hostilities or Warlike Operations (whether war be declared or not) Civil
war Strike Riot Civil commotion Mutiny Rebellion or Usurped Power or by any direct or
indirect consequence of any of the said occurrences and in the event of any claim under
this Policy the Insured shall prove that the accident loss damage and/or liability arose
independently of and was in no way connected with or occasioned by or contributed to by
or traceable to any of the said occurrences or any consequences thereof and in default of
such proof the company shall not be liable to make any payment in respect of such
claim.”
The parties also agreed at the said pre-trial conference that the question as to whether
what happened at the Mission amounted to “riot” within the meaning of the said clauses
would be argued in limine. It was also agreed that the question as to the party upon whom
the onus in connection with the calling into operation of the general exceptions and the
special exceptions to the riot extensions in the first policy rested would also be argued at
the same time. This judgment is therefore concerned with these two issues only.
On the first issue of “riot” Mr Campbell, for the plaintiff, submitted that under the law of
England the concept of “riot” is well settled and for its definition see Field & Ors v The
Receiver of Metropolitan Police [1907] 2 KB 853 at 860 to 861. He also submitted that
there it is a term of legal art especially in the interpretation of insurance policy
provisions. See R v Sharp [1957] 1 All ER 577 at 579H where Lord Goddard said:
“The word ‘riot’ is a term of art and, contrary to popular belief, a riot may involve no
noise or disturbance of the neighbours though there must be some force or violence.”
Page 265 of 1991 (2) ZLR 261 (HC)
In London and Lancashire Fire Insurance Co Ltd v Bolands Ltd 1924 AC 836 at 847
Lord Summer said:
“It is true that the uninstructed lay man probably does not think, in connection with ‘riot’,
of such a scene as is described in the case stated. How he would describe it I know not,
but he probably thinks of something, if not more picturesque at any rate more noisy.
There is, however, no warrant here for saying that, when the proviso uses a word which is
emphatically a legal term of art, it is to be confined, in the interpretation of the policy, to
circumstances which are only within popular notions on the subject, but are not within
the technical meaning of the word. It clearly must be so with regard to martial law; it
clearly, I think, must be so with regards to acts of foreign enemies; and I see no reason
why the word ‘riot’ should not include its technical meaning here as clearly as ‘burglary’
and ‘housebreaking’ do.”
Mr Campbell thereafter submitted that “riot” is not a term of legal art in Zimbabwe and
that in the circumstances it must be given its plain, ordinary and popular meaning. See
Commercial Union Fire, Marine & General Insurance Co Ltd v Fawcett Security
Organisation (Bulawayo) (Pvt) Ltd 1985 (2) ZLR 31 (SC). In that case Gubbay JA (as he
then was) referred to London and Lancashire Fire Insurance Co Ltd v Bolands supra and
other English cases and thereafter stated at pages 35-36:
“. . . In the first place as stressed by Lord Summer, it is only where a word is
‘emphatically a term of legal art’, that is, one which has acquired a recognised technical
meaning in law that the wider or narrower popular meaning attaching to it is
displaced . . .
Secondly, the word or phrase must be a term of legal art according to the law of the
particular country where the parties contemplated the loss covered by the policy might
occur” (the emphasis is mine).
In this connection Mr Campbell pointed out that “riot” is not an offence as such in
Zimbabwe and that its common law kindred offence is public violence and that there are
a number of statutory offences which could apply appropriately in situations of riotous
behaviour. In S v Mayers 1970 (1) RLR 198(A) at 200-201 it was held that the word
“riotous” imparted some form of public violence or “general brawl” which accords with
the popular perception of riot. Further in the Oxford English Dictionary the word “riot” is
defined as follows:
Page 266 of 1991 (2) ZLR 261 (HC)
“violence, strike, disorder, tumult, esp. on the part of the populace. A violent disturbance
of the peace by an assembly or body of persons; an outbreak of active lawlessness or
disorder among the populace.”
In Collins English Dictionary it is defined as follows:
“a disturbance made by an unruly mob or (in law) three or more persons (ie English
Law); tumult or uproar.”
And in American Websters Dictionary it is also defined as:
“Any public disturbance of a boisterous and violent nature, usually caused by a large
crowd.”
In conclusion he submitted that the feature common to the plain, ordinary and popular
meaning of the word “riot” appears to be uproar, tumult and disorderly behaviour on the
part of a crowd or mob of the populace. Mr Campbell thereafter submitted that since it is
admitted that the activities at the Mission on 8 July 1987 “were carried out in an orderly
and methodical fashion without any element of tumult unruliness or uproar” the events
which gave rise to the loss and damage in this case did not constitute riot within the
meaning of the said clauses of the general exceptions.
Mr Colegrave for the defendant submitted that if the word “riot” were to be given its
plain, ordinary and popular meaning, that is, as it is understood by the man in the street
then he would concede that what happened at the Mission on 8 July 1987 could not be
described as a “riot”. He also accepts the dictionary definitions of the word “riot“ which
have ben quoted above. He however submits that the plain ordinary and popular meaning
should not be given to the word “riot” in the context of policies of insurance because
therein it is used as a term of legal art. He also cites the above English cases to indicate
its acceptance as a term of legal art and argues that there is no reason why a Zimbabwean
court should not follow the English Courts on the matter. He goes on to state that our
courts and those of South Africa frequently look to English cases for guidance in matters
of insurance because the case law there is richer. He goes on to argue that it is
particularly important in insurance cases for the English cases to be followed because of
the international nature of contracts of insurance.
I do not agree with the submissions of Mr Colegrave. In the first instance it should be
restated that the interpretation of insurance contracts is not a matter peculiar to the law of
insurance. In Quick v Goldwasser 1956 (2) SA 525 (SR) Beadle J (as he was then) stated
at page 528D:
Page 267 of 1991 (2) ZLR 261 (HC)
“. . . The General principle, however, unquestionably is that there are no special rules of
construction peculiar to the interpretation of insurance policies. . . ”
See also Scottish Union & National Insurance Co Ltd v Native Recruiting Corporation
Ltd 1934AD458 at 465 where Wessels CJ stated:
“It has been repeatedly decided in our courts that in construing every kind of written
contract the court must give effect to the grammatical and ordinary meaning of the words
used therein.”
The above in my view implies that if a word used in an insurance policy can be given its
proper plain, ordinary, popular and grammatical meaning there is no reason to look
anywhere else for another meaning just because it involves an insurance policy. In the
circumstances one does not therefore have to look to English law in this case when a
proper meaning of the word “riot” is available just because the word is used in an
insurance contract. In my view the question of looking at meanings other than the plain,
ordinary and popular one would only come to play if the ordinary sense of the word leads
to some absurdity or to some repugnance or inconsistency with the rest of the policy. This
is not the position in this case. Secondly I agree with Gubbay JA’s above stated view that
a word must be a term of legal art according to the law of the country where the loss
covered might occur for it to be acceptable as such. It is significant that the learned
judge’s comments were made in the course of interpreting words in an insurance policy.
In this case it was contemplated by both parties that the loss covered would occur in
Zimbabwe where there is no precedent for using the word “riot” as a term of legal art.
Thirdly I am also of the view that the defendant in this case is caught by the contra
proferentem rule which requires a written document to be construed against the person
who drew it on the ground that it was for him to express himself in plain terms.
Furthermore the defendant is caught by the further rule that the court should lean towards
upholding the policy and against producing a forfeiture. For the above propositions see
Getz and Davis’s The South African Law of Insurance 3 ed, pp 226-229.
In conclusion I am of the view that the events which gave rise to the loss and damage in
this case did not constitute “riot” within the meaning of the general exceptions contained
in either of the policies.
On the question of onus, Mr Campbell submitted that the defendant must at least adduce
some evidence to provide a factual basis for bringing the loss within such of the
exceptions as it contends for and not merely reach into the “grab bag”
Page 268 of 1991 (2) ZLR 261 (HC)
and scatter them before the plaintiff requiring it to negative such as the defendant may
produce. See Joosub Investments (Pty) Ltd v Maritime & General Insurance Co Ltd 1990
(3) SA 373 (C) where it is stated as follows in the headnote:
“Held that it could never have been the intention of the parties that the defendant could
invoke the reverse onus clause and transfer the onus of proof to the plaintiff merely be
alleging that one of the excepted risks applied without there being any evidence pointing
to the existence of an excepted risk as the cause of the loss.
Held, accordingly, that if the reverse onus clause was interpreted in the aforegoing
manner, there was no room for the finding that the provision was contrary to public
policy; for the clause to operate the defendant would have to adduce some evidence to
provide a factual basis for bringing the loss within the ambit of the relevant exception. . .”
And at page 385D Seligson AJ said:
“. . . Suffice it to say that, where it is established that there is a loss which prima facie
falls within the risk insured against, the insurer would have to adduce evidence pointing
to the applicability of an exception in order to have the reverse onus clause operate in his
favour.”
Mr Campbell went on to submit that in this case the defendant merely points to a number
of possible exceptions. He thereafter argued that some evidence must however be
adduced by the defendant to provide a factual basis for bringing the loss within the
exceptions contented. And that in particular the defendant will have to adduce evidence
to show that the gang of men responsible for the destruction were acting on behalf of or
in connection with the political organisation called PF-ZAPU and that its activities were
directed towards the overthrow by force of the Government of Zimbabwe or to the
influencing of it by terrorism or violence.
I agree with Mr Campbell’s submissions. I consider it not satisfactory to simply allege
that because it is common cause that violent malcontents were causing havoc throughout
Matabeleland at the relevant time this should trigger the reversal of the onus. In my view
the defendant should go further and adduce evidence indicating that the malcontents were
politically allied or acting on behalf of a political organisation or otherwise acting in
concert.
Page 269 of 1991 (2) ZLR 261 (HC)
In the circumstances I am of the view that the onus still rests with the defendant in this
matter.
For the reasons given above I make the following order:
(a) That the events which gave rise to the loss and damage in this case do not
constitute “riot” within the meaning of the general exceptions contained in either of the
policies.
(b) That the onus in this case still rests with the defendant.
(c) That the costs of this action are reserved for the main case.
Calderwood, Bryce Hendrie & Partners, plaintiff’s legal practitioners
Winterton, Holmes & Hill, defendant’s legal practitioners
MINISTER OF PRIMARY AND SECONDARY EDUCATION & ANOR v
RAMHEWA
1991 (2) ZLR 270 (SC)
Division: Supreme Court, Harare
Judges: Gubbay CJ, Korsah JA & Ebrahim JA
Subject Area: Civil appeal
Date: 29 October & 11 November 1991

Statutory interpretation — effect to ordinary grammatical meaning.

Public service — Public Service (Officers) (Misconduct and Discharge) Regulations
1986 — s 20(1)(f1) — meaning — not applicable where salary not paid.
The respondent was discharged from his employment by the Public Service Commission.
The court a quo ordered his re-instatement with payment of remuneration as it considered
his discharge was unlawful because certain procedures had not been followed by the
Commission.
The Commission thereafter purported to act in terms of the penalty provisions of the
Regulations by ordering the forfeiture of his salary to be paid to him for the period of his
unlawful suspension.
Held, that the wording of the penalty section in the Regulations should be construed
strictly. That the order of forfeiture by the Commission was improper in that the penalty
section provides for the recovery of remuneration paid to an officer and not to
remuneration that has not been paid or received by him.
Held, that if there are two constructions of a penalty provision that are open to
interpretation then the more lenient construction should prevail.
Held, that the court a quo was correct in its interpretation of the meaning of the penalty
section s 20(1)(f1) of the Regulations and that the order of forfeiture imposed on the
respondent by the Commission was improper and was set aside properly by the court a
quo.
Page 271 of 1991 (2) ZLR 270 (SC)
Case cited:
Ramhewa v Secretary, Public Service Commission 1988 (1) ZLR 257 (HC)
H Simpson for the appellants
D M Foroma for the respondent
GUBBAY CJ: This is an appeal against the judgment of Adam J in which he ordered, in
effect, that:
(1) The Minister of Primary and Secondary Education (now the first
appellant) pay to the applicant (now the respondent) the salary and other benefits for the
period 28 November 1986 to 30 April 1988 in the sum of $24 169.
(2) The determination of the Chairman of the Public Service Commission
(now the second appellant) to the extent that it stated that the applicant be paid no
remuneration for the period 28 November 1986 to 18 May 1988 be set aside as
amounting to a penalty not permissible under s 20 (1) of the Public Service (Officers)
(Misconduct and Discharge) Regulations 1986.
The relevant historical events giving rise to the dispute between the parties may be
summarised as follows:
(1) The respondent was employed as a principal executive officer in the
Ministry of Primary and Secondary Education.
(2) On 28 November 1986 the Commission purported to discharge the
respondent upon a finding that he was guilty of misconduct. He had not been suspended
from service under the Regulations at any time prior thereto.
(3) The respondent brought the decision of the Commission on review before
the High Court, and on 13 April 1988, Greenland J set aside the finding that he was guilty
of misconduct as well as the decision to discharge him. The learned judge indicated that
in the event of disciplinary proceedings being reinstituted against the respondent, an
enquiry was to be held in terms of s 16 of the Regulations. See Ramhewa v Secretary of
the Public Service Commission 1988 (1) ZLR 257 (HC) at 269D-F.
(4) On 18 May 1988 the respondent was suspended from service with the
Ministry pending the holding of an enquiry into whether he had committed an act of
misconduct.
Page 272 of 1991 (2) ZLR 270 (SC)
 (5) On 19 October 1989 Reynolds J in an application brought before him,
ordered the Minister to pay the respondent his arrear salary and other benefits for the
period 28 November 1986 to 30 April 1988, in the sum of $24 169. He reasoned that as
the act of discharge on 28 November 1986 was a nullity, the respondent had remained an
employee of the Ministry until lawfully suspended from service on 18 May 1988. As
such, the respondent was entitled to be paid his salary during that period. An appeal was
noted against this judgment.
(6) On 8 December 1988 the respondent was advised in writing that he had
been found guilty of misconduct by the Commission and was discharged from the Public
Service. The letter further informed him that:
“The Commission also determined that you be paid no remuneration for the period 28th
November, 1986 to 18th May, 1988 or alternatively any remuneration paid to you for that
period be recovered in full. You should also accrue no leave during the same period.”
(7) The Commission believed that it was empowered to impose this penalty
by virtue of the provisions of s 20(1)(f1) of the Regulations, which read:
“. . . direct that the full amount of any remuneration paid to the officer since the
misconduct or such part of that amount as the Commission may determine, be recovered
from him, where the Commission considers that the officer concealed the true nature of
the misconduct and that the misconduct was such as to justify the officer’s suspension.”
This sub-paragraph was inserted into the Regulations on 15 July 1988, by
Statutory Instrument 111/1988; that is, two months after the respondent had been
suspended from service.
(8) In its letter of 9 January 1989 the legal practitioners acting on behalf of the
respondent protested that the determination that he should not be paid for the period 28
November 1986 to 18 May 1988 was impermissible in law and had the effect of ousting
or overruling the decision of Reynolds J.
(9) The response was that the determination made was wholly competent in
that it effected a set-off of the judgment debt owed to the respondent by the State against
an equivalent debt created by the imposition of the penalty, and thereby owed by the
respondent to the State. The judgment of Reynolds J, therefore, had not been overridden,
for the consequence of the set-off was to discharge the judgment debt.
Page 273 of 1991 (2) ZLR 270 (SC)
(10) Confident in the correctness of this contention, on 28 December 1989, the
Minister formally abandoned the appeal noted against the judgment of Reynolds J.
As a result of the impasse, the respondent instituted proceedings for relief by way of
notice of motion. In allowing the application Adam J pointed out, correctly to my mind,
that the penalty imposed by the Commission that the respondent should not, at that time,
be paid any remuneration for the period 28 November to 18 May 1988 was not
sanctioned by any of the provisions of s 20 of the Regulations. This is not now in
contention.
The crisp issue, which relates to the alternative penalty, is whether the learned judge a
quo was right in holding that as, in fact, no remuneration had been paid to the respondent
for the period in question, the penalty under s 20 (1)(f1), which permits of the recovery
from the officer of any remuneration or part thereof paid to him since the misconduct,
could not be imposed by the Commission; what had not been paid could not be
recovered.
Mr Simpson, who appeared for the appellants, was not constrained to argue that the
learned judge had erred in his interpretation of s 20(1)(f1) and did not advance the set-off
contention which figures so prominently in the opposing affidavit of the Commission’s
Chairman. Mr Foroma, on the other hand, strongly supported the reasoning of the learned
judge.
It is a well-established principle of interpretation that it is only if the legislative intention
is not disclosed with sufficient certainty by the clear and unambiguous meaning to be
assigned to the words of the enactment, read in its proper context, that recourse to other
canons of construction is justified. This may occur where an adherence to literalism
would lead to absurdity or an anomaly so glaring that the law-maker could not possibly
have intended it; or where the language used is, in fact, ambiguous.
In my opinion, effect can be given to the wording of s 20(1)(f1) of the Regulations taken
in its plain and ordinary meaning. The critical phrases are “any remuneration paid to the
officer” and “to be recovered from him”. Read together they convey the meaning that the
remuneration must have been actually received by the officer — payment thereof must
have been made. The penalty is designed to enable the Commission to recover from the
officer any remuneration, or part thereof, he had actually received from his Ministry
subsequent to having committed the act of misconduct in question.
Page 274 of 1991 (2) ZLR 270 (SC)
Section 20(1)(g) reflects exactly the same legislative intent. It allows for the recovery as a
penalty of any allowance or part thereof paid to the officer during the period he was
under suspension.
If the intention of the law-maker was to make it competent for the Commission to impose
a penalty depriving the officer of an amount due and payable from a Ministry either
under a judgment debt or otherwise, but not yet paid, it would have used the words “paid
or payable” before the words “to the officer” in both sub-paragraphs (f1) and (g).
Even if the wording of s 20(1)(f1) were not, as I deem it to be, against the view adopted
by the Commission in correspondence, it must at least be held to be doubtful. The
principle must accordingly be applied that if there are two constructions of a penalty
provision that are reasonably open the more lenient should prevail. In short, a court
should strive to avoid adopting a construction which penalises the person in a way which
was not made absolutely clear by the law-maker.
It follows that the learned judge was correct in the meaning he assigned to s 20(1)(f1) of
the Regulations.
This conclusion makes it unnecessary to consider the alternative argument raised by Mr
Foroma. This was to the effect that as the penalty prescribed in sub-paragraph (f1) only
came into operation on 15 July 1988, and as the respondent’s claim related to a period
prior and up to 18 May 1988, it was, in any event, incompetent for the Commission to
deprive him of, or interfere with, existing acquired rights.
Mr Simpson, in a plea ad misericordiam, attempted to persuade this court that it ought not
to countenance a situation in which an officer in the Public Service, who had been
properly found guilty of an act of misconduct, should be entitled to enforce a judgment
for the payment of an amount in respect of salary and benefits covering a period
subsequent to his having misconducted himself.
No doubt it was to prevent what was perceived to be an inequitable retention of
remuneration by an officer that the penalty prescribed in sub-para (f1) was made
available to the Commission. Its imposition at the discretion of the Commission, is, I
think, unobjectionable. But whether it is or not is beside the point. In order to have
recourse to it the requirements of the enactment creating it must be strictly complied
with. If not, the penalty is liable to be set aside as invalid. This is precisely what has
occurred here.
Page 275 of 1991 (2) ZLR 270 (SC)
Whether the result would have been different if the judgment debt of $24 169 had been
paid to the respondent before the Commission purported to impose the penalty does not
fall for determination.
I would, therefore, dismiss the appeal with costs.
Korsah JA: I agree
Ebrahim JA: I agree
Civil Division, Attorney-General’s Office, appellants’ legal practitioners
Sawyer & Mkushi, respondent’s legal practitioners
ASHARIA v PATEL & ORS
1991 (2) ZLR 276 (SC)
Division: Supreme Court, Harare
Judges: Gubbay CJ, Korsah JA & Ebrahim JA
Subject Area: Civil appeal
Date: 28 October & 11 November 1991

Contract — mora in persona — interpellatio — reasonable time — notice of cancellation

— what is sufficient.
Where time for the performance of a contract has not been agreed upon between the
parties, performance is due on conclusion of the contract or so soon thereafter as is
reasonably possible in the circumstances. But the debtor does not fall into mora ipso
facto. He must know he has to perform. This is known as mora ex persona and only arises
after interpellatio or demand. If the time stipulated in the demand for performance is
unreasonably short, the demand will be invalid.
Both demand and notice of rescission are necessary for cancellation of a contract for non-
performance; commonly the two are contained in the same notice which then fulfils a
double function of fixing a time for performance after which the debtor will be in mora,
and creating a right of cancellation on account of that mora.
In order to constitute a notice of rescission, the language must clearly and unequivocally
convey an intention to cancel.
The question of on whom rested the onus of proving the interpellatio reasonable
discussed but not decided.
Cases cited:
Nel v Cloete 1972 (2) SA 150 (A)
Flugel v Swart 1979 (4) SA 493 (E)
Ver Elst v Sabena Belgian World Airlines 1983 (3) SA 637 (A)
Fluxman v Brittain 1941 AD 273
Page 277 of 1991 (2) ZLR 276 (SC)
Mackay v Naylor 917 TPD 533
Wellington Board of Executors Ltd v Schutex Industries (Pty) Ltd 1952 (3) SA 170 (C)
Rae v Rohrs & Anor 1954 (2) SA 235 (N)
Pillay v Krishna & Anor 1946 AD 946
Willowdene Landowners (Pty) Ltd v St Martin’s Trust 1971 (1) SA 302 (T)
St Martin’s Trust v Willowdene Landowners’ (Pty) Ltd 1970 (3) SA 132 (W)
Pretorius v Greyling 1947 (1) SA 171 (W); [1947] 1 All SA 103 (W)
Ponisammy & Anor v Versailles Estates (Pty) Ltd 1973 (1) SA 372 (A)
Putco Ltd v TV & Radio Guarantee Co (Pty) Ltd 1985 (4) SA 809 (A)
Kangisser & Anor v Rieton (Pty) Ltd 1952 (4) SA 424 (T)
A P de Bourbon SC for the appellant
E W W Morris for the respondent
GUBBAY CJ: The appeal to this court is from a judgment of the High Court (Gibson J),
which dismissed with costs the appellant’s claim for an order for specific performance of
a contract of sale entered into with the first respondent, in terms whereof he purchased,
for the sum of $275 000, all the issued share capital in the company Pathelena (Pvt) Ltd
(“Pathelena”).
The factual background to the dispute between the parties was in large measure common
cause and may be set out chronologically in the following way:
One of the assets in the estate of the late S B Patel was an immovable residential
property, known as Subdivision C of Lot 48, Block A of Avondale, in the District of
Harare. I shall henceforth refer to it as “the property”. The heir to the estate was the
deceased’s wife, Mrinalini Patel, and the executor dative was the deceased’s brother, the
first respondent. It was arranged by the Patel family that the property was to be
transferred from the estate to Mrs Patel and thereafter from her to Pathelena, the
shareholders of which were two other companies, Bachu Holdings (Pvt) Ltd and Ferco
(Pvt) Ltd (the second and third respondents), the former holding virtually all the issued
share capital. The property would then comprise Pathelena’s sole asset.
On 23 January 1989 the first respondent wrote to the appellant confirming, inter alia, that:
“. . . the property will be sold to you on share transfer basis. Therefore you shall be
purchasing the shares in Pathelena (Pvt) Ltd and our loan account therein for a total of
$275 000,00.”
Page 278 of 1991 (2) ZLR 276 (SC)
No time for payment of the purchase price, or for the transfer of the shares, was fixed by
the parties.
Notwithstanding that ownership of the property had not passed to Pathelena, the
appellant was given occupation, free of rental, on 1 February 1989, subject to his being
responsible for the payment of all service charges as well as the wages of a gardener and
a security guard.
On 20 March 1989 registration of the property was effected into the name of Pathelena
and in early April 1989 the title deeds thereto were handed to the appellant. This was
done to enable him, so it was believed, to raise finance from a building society for the
purchase of the issued share capital in Pathelena against the security of a mortgage bond
registered against the property.
During May 1989 the appellant decided to lease the property at a rental of $3 000 per
month with effect from 1 July 1989. The keys to the homestead were handed to the
prospective tenant in mid-June 1989 to allow her to carry out certain building
improvements she had agreed to make. The latter, however, entertained misgivings as to
whether she had the right to lease the property from the appellant, and so approached the
first respondent. He was distressed to discover that the appellant was proposing to lease
Pathelena’s property before he had paid for the issued share capital. Accordingly he
recovered the keys, thereby terminating the appellant’s possession.
On 2 June 1989 the appellant delivered the deed of transfer to a firm of legal practitioners
with instructions to register a mortgage bond against the property in favour of the
building society he had negotiated with — the amount to be advanced being $206 000.
He was later informed that it was unlawful to apply for a mortgage bond on the security
of a company’s property in order to pay for shares in that company.
On 12 June 1989 , and shortly before he had recovered the keys to the homestead, the
first respondent addressed a personal note to the appellant, informing him that he was
being placed under pressure by Mrs Patel and wished to rid himself of all involvement.
He asked that the keys be handed to the bearer of the note and undertook to compensate
the appellant for any costs incurred in respect of the property. The note ended:
“I hope you will understand. If you are interested in some other property deal I have
something in the offing and (can) give you details.”
Page 279 of 1991 (2) ZLR 276 (SC)
The appellant declined to agree to the cancellation of the sale and on 26 June 1989
instructed his legal practitioners to enforce specific performance of the contract. As he
was not then in a position to tender the purchase price, the instruction was not
implemented.
In their letter of Friday, 21 July 1989 the legal practitioners acting on behalf of the
respondents gave the appellant until 31 July 1989 to pay for the issued share capital in
Pathelena. It seems that the appellant only received the letter on Monday 24 July 1989
and immediately handed it to his legal practitioners for reply. The appellant had,
therefore, six business days within which to raise the sum of $275 000.
The appellant protested at the short time limit allowed him. He stated that he was willing
to perform within a more reasonable period, but did not indicate what further period he
required. In the event, it was only on 4 August 1989 that the appellant tendered the
agreed purchase price through his legal practitioners. This was done notwithstanding the
written intimation received the previous day that the respondents had cancelled the sale
and that the title deeds were to be returned forthwith.
Faced with this impasse, the appellant instituted proceedings on notice of motion against
the respondents. In refusing the relief sought, Gibson J made three important
determinations: First, that as a matter of law, the onus was upon the appellant to prove
that the period of time allowed him to perform his obligations was unreasonable. Second,
that, having regard to all the relevant circumstances, the appellant had failed to discharge
that onus. Third, that the letter of 21 July 1989 served a dual purpose. It placed the
appellant in mora and, in addition, gave notice of the intention to cancel the contract
should there be a failure to perform during the period stipulated.
The correctness of each determination is at the heart of this appeal, and it was to them
that the arguments, so persuasively advanced by counsel on behalf of the parties, were
directed.
The general applicable rule is that where time for performance has not been agreed upon
by the parties, performance is due immediately on conclusion of their contract or as soon
thereafter as is reasonably possible in the circumstances. But the debtor does not fall into
mora ipso facto if he fails to perform forthwith or within a reasonable time. He must
know that he has to perform. This form of mora, known as mora ex persona, only arises
if, after a demand has been made calling upon the debtor to perform by a specified date,
he is still in default. The
Page 280 of 1991 (2) ZLR 276 (SC)
demand, or interpellatio, may be made either judicially by means of a summons or extra-
judicially by means of a letter of demand or even orally; and to be valid it must allow the
debtor a reasonable opportunity to perform by stipulating a period for performance which
is not unreasonable. If unreasonable, the demand is ineffective.
Where a debtor has fallen into the mora ex persona after demand, the creditor can acquire
a right to cancel the contract by serving notice of rescission in which a second reasonable
time limit is stipulated, making time of the essence. Both demand and notice of rescission
are necessary in order to allow for cancellation for non-performance. The two may be,
and commonly are, contained in the same notice. Such notice will then fulfil a double
function: It will fix a time for performance after which the debtor will be in mora, and
create a right in the creditor to rescind the contract on account of that mora. See Nel v
Cloete 1972 (2) SA 150 (A) at 163E; Flugel v Swart 1979 (4) SA 493 (FCD) at 502E-H;
and generally Joubert General Principles of the Law of Contract at pp 202-203; Kerr The
Principles of the Law of Contract 4 ed at pp 461-462; de Vos Mora Debitoris and
Rescission (1970) 87 SALJ at pp 310-311.
This brings me to the issue of the burden of proof. Was it on the respondent to show that
the period fixed for performance in the interpellatio of 21 July 1989 was reasonable, or
on the appellant to show that it was unreasonable?
Prior to the decision in the South African Appellate Division in Ver Elst v Sabena
Belgian World Airlines 1983 (3) SA 637 (A), the view which commanded support was
that it is the debtor who carries the burden of proof regarding the unreasonableness of the
period allowed for performance. In Fluxman v Brittain 1941 AD 273 Tindall JA, when
dealing with this issue, said at 296:
“. . . the rule was correctly laid down in Mackay v Naylor that ordinarily it rests on the
debtor to advance the reasons for the granting of the delay. That being so, the defendant
cannot rely on non-expiration of a reasonable time as he did not take this defence in his
plea.”
The cited case of Mackay v Naylor 1917 TPD 533 concerned the lease of a racehorse, the
immediate return of which was claimed by the respondent on the ground that, as the lease
mentioned no time for termination, he had the right to peremptorily terminate it.
Gregorowski J strongly remarked at 540 in fine-541 that:
“If the respondent, the bailee, contends that he ought to have a reasonable
Page 281 of 1991 (2) ZLR 276 (SC)
notice and that the bailor is acting unreasonably in not giving a proper interval of time for
the return of the thing leased, it is for him to set that up as a defence and to prove that the
termination is unreasonable and what under the circumstances is a reasonable notice.”
See also Wellington Board of Executors Ltd v Schutex Industries (Pty) Ltd 1952 (3) SA
170 (C) at 175C-H; Rae v Rohrs & Anor 1954 (2) SA 235 (N) at 237C-H; Wessels The
Law of Contract vol 2 para 2893; Wille The Principles of South African Law 7 ed at p
362; de Vos op cit at p 311.
But in Nel v Cloete supra at 164F Wessels JA, while observing that considerations of
equity strengthen the contention that the onus should rest on the debtor to prove that the
time allowed was unreasonably short, was prepared to leave the point open, as it had not
been canvassed in argument and its determination was unnecessary to the appeal.
In the Ver Elst case supra the facts were that a house had been let to the respondent for
nine years, one of the conditions being that the appellant would effect certain
improvements to the house immediately after occupation had been taken. No time limit
was prescribed for the completion of the improvements. The respondent served a demand
fixing a time for performance as 26 days after the date of receipt of the notice, which
inter alia informed the appellant of its intention to resile from the agreement on non-
compliance with the demand. Trengove JA (in whose judgment Viljoen JA and Grosskoff
AJA concurred) was of the view that the decisions referred to above were irrelevant, as
they concerned the fulfilment of contractual obligations whereas the case before him
involved the acquisition of an extra-contractual right, namely, the right of cancellation
relied on by the respondent. Accordingly, the respondent had to prove that he had
acquired that right, and one of the prerequisites for the acquisition thereof was that the
appellant had fallen into mora. The learned Judge of Appeal stated the principle, as he
understood it, at 647 in fine (in translation) thus:
“. . . where in the present case the respondent relies on a right of cancellation, the burden
of proof rests upon him to prove inter alia that he made his demand of the appellant
opportuno loco et tempore.”
As the respondent had failed to discharge the onus of proving that the prescribed period
for compliance had been reasonable, the appellant had not been effectively placed in
mora, thereby disabling the respondent from resiling from the contract.
Page 282 of 1991 (2) ZLR 276 (SC)
This decision has attracted some criticism. See Kerr op cit at p 472; Farlan and Hathaway
Contract 3 ed at p 505.
For principally three reasons Gibson J favoured the “hallowed view” that the debtor bears
the onus: First, her Ladyship considered as artificial the distinction drawn that the right
of cancellation relied upon by the respondent was in the nature of an “extra-contractual
right”; it was simply a right to be implied as a term into the contract. Second, she
stressed that it is the debtor who knows why he cannot perform in the time fixed by the
creditor and, therefore, it is for him to inform the court of the factors and circumstances
which prevented his timeous performance. Considerations of equity require that this be
so. After all, as pointed out by Davis AJA in Pillay v Krishna & Anor 1946 AD 946 at
954:
“. . . all rules dealing with the subject of the burden of proof rest ‘for their ultimate basis
upon broad and undefined reasons of experience and fairness’ . . .”
Third, where time for performance has not been fixed by the parties, performance by each
is due immediately the contract comes into existence, or as soon thereafter as is
reasonably possible in the circumstances, and neither is entitled to remain supine. Thus,
he who argues for a further delay ought to bear the onus of establishing the extent of the
duration necessary.
There is much to commend the approach of the learned judge. Nonetheless, for the
purposes of this appeal, and to the advantage of the appellant, I am prepared to accept
that the onus rested on the respondents. I do so because in my opinion, for reasons which
will soon become apparent, they succeeded in showing that the period of notice given
was, in truth, reasonable.
In determining whether a reasonable time was allowed for fulfilment, the court must give
attention to:
“. . . difficulties and delays within the contemplation of the parties at the time of the
contract (and also to) difficulties and delays which would have been within the
reasonable contemplation of areasonable man at the time of the contract.”
(per Claassen J in Willowdene Landowners (Pty) Ltd v St Martin’s Trust 1971 (1) SA
302 (T) at 305G, approved of in Nel v Cloete supra at 165H-166B). Difficulties and
delays other than the above are not to be taken into account. The court should postulate
reasonably prompt and appropriate action and due
Page 283 of 1991 (2) ZLR 276 (SC)
diligence and must have regard to the commercial and other interests of both parties to
the contract. See St Martins Trust v Willowdene Landowners’ (Pty) Ltd 1970 (3) SA 132
(W) at 136A-B.
Only one factor arising after the conclusion of the contract is relevant to the assessment
of a reasonable time, and that is the time lapse itself between the conclusion of the
contract and the making of the demand. In other words, the court must have regard to
both the elapsed period and the further period specified in the mora notice. This is
because, as explained by Colman J in the first Willowdene judgment supra at 136D:
“The party obliged is not entitled to remain inactive, after the conclusion of the contract,
on the assumption that if and when he receives the notice putting him in mora he will
thereafter still have the benefit of the full period which was reasonable for performance,
whatever period that may be.”
Put differently, what is a reasonable period of notice depends on what has gone before.
I believe it would have been in the contemplation of the parties at the time of the contract
that some delay would be occasioned in transferring the property to Pathelena. This was
achieved on 20 March 1989, and the title deeds handed to the appellant early the next
month. It necessarily follows that the period which elapsed from 21 March 1989 must be
taken into account in determining the reasonableness or otherwise of the period in the
interpellatio.
What exactly did the appellant do prior to receiving the letter of 21 July 1989? In what
way did he busy himself in making arrangements to obtain the necessary finance? No
reliance can be placed on the delay resulting from the faulty and inept measures taken by
him in that direction. It was of no concern to the respondents what business arrangements
the appellant had to make in order to put himself in funds to purchase the share capital.
That was his own domestic problem. See Pretorius v Greyling 1947 (1) SA 171 (W) at
174. And, having learned in June 1989 that the method he intended to use was illegal, the
appellant did nothing about finding alternative sources of funding before receiving the
demand.
Moreover, the appellant ought to have been put on his guard that patience was wearing
thin: In early June 1989 the first respondent sent a telex to the appellant’s legal
practitioners, urging them to expedite the registration of the mortgage bond and account
to Pathelena for the nett proceeds. A copy of the
Page 284 of 1991 (2) ZLR 276 (SC)
telex was sent to the appellant. A further warning was sounded by the letter of 12 June
1989. The suggestion contained therein that the deal be called off, should have been seen
by the appellant as an indication that the first respondent regarded the delay as
embarrassing and that time, as far as the latter was concerned, was fast running out. The
repossession of the property was yet another warning sign to be heeded.
Against the irrefutable fact that the appellant was never in a position, until 4 August
1989, to tender the purchase price, his claim that he was continually pressing the
respondents to complete the transaction, lacks credence. How could he possibly have
expected the issued share capital to be registered into his name if he was not ready and
able to pay for it? The contrary averment by the first respondent, that on half a dozen
occasions over the period April to June 1989 he advised the appellant that he was most
upset that the money was not forthcoming and that he received only empty assurances
that payment would be made soon, must be accepted as overwhelmingly probable.
Transfer of the property having been effected to Pathelena, there was absolutely no cause
why the respondents would not be desirous of finalising the transaction.
Finally, it is not without significance that within four days of the time limit having
expired the appellant was able to tender the purchase price. If he was in a position to
raise $275 000 in only ten business days during July 1989, one can only assume that he
had taken an unreasonably lengthy period to perform his obligations prior to the demand.
The cumulative effect of these features satisfies me that the appellant’s inability to
comply with the time fixed by the demand was due to his own fault.
This does not, however, dispose of the matter. There remains the issue of whether the
letter of 21 July 1989 gave notice of the intention to cancel the contract.
The learned judge expressed the view that the aforesaid letter contained more than an
interpellatio. It also gave the appellant notice of the intention to cancel the contract of
sale entered into on 23 January 1989 (though not in precise words) in the event of his
failure to perform by 31 July 1989. The final paragraph of the letter, which is pertinent,
reads:
“In the circumstances we are instructed to advise you that our client requires payment of
the purchase price by no later than Monday 31st July 1989, failing which our client
requires you to return the Title Deeds on or before
Page 285 of 1991 (2) ZLR 276 (SC)
the 31st July 1989. Should you fail either to pay the purchase price or to return the Title
Deeds by the aforestipulated date, proceedings will be instituted against you without
further notice for delivery of the Deed of Transfer and such costs that may be occasioned
thereby.”
In order to constitute a notice of rescission the language used must clearly and
unequivocally convey an intention to cancel the contract if the stipulated term is not
fulfilled. This requirement is so stated in Ponisammy & Anor v Versailles Estates (Pty)
Ltd 1973 (1) SA 372 (A) at 385F in these words:
“Where time is not of the essence of the contract, but one of the contracting parties elects
to make it so, giving a notice of rescission (a unilateral act), he should at least take care
that the notice is clear and unequivocal, so that the other contracting party is aware of the
consequences of a failure on his part to perform timeously.”
See also Putco Ltd v TV & Radio Guarantee Co (Pty) Ltd 1985 (4) SA 809 (A) at 830E.
Mr de Bourbon, who appeared for the appellant, submitted that the letter in question
made no mention of the respondents’ intention to cancel if payment was not made by the
date fixed. And that there was nothing to show that the appellant had understood it as
such. It merely spelt out that such failure would oblige the appellant to return the title
deeds to the property. The purported cancellation after 31 July 1989 was, thus,
ineffective.
I am unable to agree. The letter must not be divorced from the events which preceded it.
The appellant’s premature possession of the property had been terminated the previous
month but he had retained the title deeds, given to him in order to facilitate the raising of
finance to purchase the share capital. The title deeds, therefore, were the only remaining
connection the appellant had with the property. Their return would restore the status quo
ante.
Bearing in mind what had gone before between the parties, I am satisfied that the demand
for the return of the title deeds in the event of non-performance, and the threat to enforce
that demand by recourse to legal proceedings, could only reasonably have been
understood to convey an intention to cancel. Compare Kangisser & Anor v Rieton (Pty)
Ltd 1952 (4) SA 424 (T). Indeed, as Mr Morris was at pains to stress, it is difficult to
envisage for what purpose unrelated to cancellation the return of the title deeds were
sought.
Page 286 of 1991 (2) ZLR 276 (SC)
Furthermore, it is significant that the appellant deposed in his founding affidavit that he
regarded:
“. . . the sudden notice to complete within a ten day period as not having been made in
good faith, but with an ulterior motive.”
This pronouncement appears to me to evince an appreciation that the letter put him on
terms — if he did not pay the purchase price as demanded the contract would be
immediately cancelled. Consistent with this is the lack of an averment by the appellant
that he had been misled by the letter.
In the result, I find myself in complete agreement with the conclusion reached by the
court a quo, and I would dismiss the appeal with costs.
Korsah JA: I agree.
Ebrahim JA: I agree
Coghlan, Welsh & Guest, appellant’s legal practitioners
Kantor & Immerman, respondent’s legal practitioners
S v DU PLESSIS
1991 (2) ZLR 287 (SC)
Division: Supreme Court, Harare
Judges: Gubbay CJ: In Chambers, in terms of s 9A of the Supreme Court of
Zimbabwe Act, 1981.
Subject Area: Review of a criminal conviction
Date: 13 November 1991

Criminal law — Miscellaneous Offences Act [Chapter 68] s 3(1)(n) —public place —
meaning — bar of a country club.
The appellant had been convicted in a magistrates court of using obscene or abusive
language in a public place. The alleged offence occurred in the bar of the Chipinge
Country Club. The appellant contended that such premises were not ‘a public place’ in
terms of the legislation. The Attorney-General did not support the conviction.
Held, the State had failed to prove that the offence occurred in a public place.
Held, a private bar to which only members and their guests are admitted is not a public
place.
Cases cited:
City of Salisbury v Mehta 1961 R&N 1000; 1962 (1) SA 675 (FSC)
R v Kane & Ors [1965] 1 All ER 705
R v Morris & Ors (1963) 47 Cr App R 202
GUBBAY CJ: In this matter the Attorney-General has given notice that he does not
support the conviction of the appellant. I am satisfied that this is a proper attitude.
The appellant was charged in a magistrate’s court with a contravention of s 3(1)(n) of the
Miscellaneous Offences Act [Chapter 68], it being alleged that on 8 August 1989 he
made use of obscene, abusive, insulting or threatening
Page 288 of 1991 (2) ZLR 287 (SC)
language in a public place, namely the Chipinge Country Club, by saying: “Who brought
this thing here, this kaffir?”, referring to the complainant.
Such an offence can only be committed in a “public place” as defined in s 2 of the Act.
As there was no dispute that the alleged incident occurred in the bar of the Chipinge
Country Club premises, being a “building” or “ part of a building” as specified in sub-
para (b) of the definition, the first issue which fell for determination by the court a quo
was whether the Club, and in particular its bar, was a place:
“. . . to which the public or any section of the public has access or are permitted to have
access, whether on payment or otherwise and whether or not the right of admission
thereto is reserved.”
The phrase “any section’ has no special significance in the context of this case. It
contemplates division on any recognised or recognisable basis, such as a division by
race. See City of Salisbury v Mehta 1961 R & N 1000 (FSC) at 1014H; 1962 (1) SA 675
(FSC) at 700F.
The trial court held that on the evening in question there were some 30 to 40 people in the
bar of the Club and some of them, like the complainant, “could have been invited by their
friends who are members”; that “the whole atmosphere was characteristic of a public
place, with a considerable number of people drinking and chatting the evening away . . .
albeit within enclosed and private premises”.
What the trial court should have addressed its mind to was not the atmosphere in the bar
(which was an irrelevant factor), but who had access thereto.
It admits of no doubt, and this was appreciated, that the Chipinge Country Club is a
private place. It is a private club, open to members. Yet if on the night of 8 August 1989
the public had access to it or were permitted to have access to it, then for the duration of
that limited period of time, it became a public place.
The onus was on the State to prove that this was so. It had to establish by reliable
evidence that ordinary members of the public were present as of right, in the sense that
they had access, although being neither members of the Club, nor the invited guests of
members.
Support for this view is to be found in R v Kane & Ors [1965] 1 All ER 705. Barry J, in
refusing an application to withdraw the case from the jury, said at 708E-F:
Page 289 of 1991 (2) ZLR 287 (SC)
“I feel that this problem, in the particular case now under review, is one for the jury, and I
propose to direct them, in substance, that, if they come to the conclusion that the Stage
and Press Club was run in such a way as to be open, albeit after some slight formalities
had been complied with, on occasion, to the ordinary general members of the public in
Leamington Spa, then they are entitled, if that is their view of the evidence, to find that it
was a public place. It might well be that they will arrive at a contrary conclusion if they
take the view that this club was being run, and intended to be run, as a private club, but
that, on occasion, the odd trespasser might have succeeded in effecting entry. I am quite
satisfied, however, that, if the ordinary members of the public were to be allowed to come
into this club, then it would be a public place, and I propose so to direct the jury.”
Later, in the course of summing-up to the jury, the learned judge remarked at 709C:
“The real question is whether the Stage and Press Club is open to the public, whether on
payment or not, or whether, on the other hand, access to it is restricted to a particular
class, or even to particular classes, of the public, such, for example, as the members of an
ordinary householder’s family and his relations and friends, and the plumber or other
tradesmen who come to do various repairs about the house. If it is restricted to that sort of
class of person then, of course, it is not a public place, it is a private place. Also I feel
bound to direct you that it would be a private place and not a public place if access to it
was restricted to the members of the club or their guests. If access was restricted to the
members of the club or their guests, then the place would not be a public place.”
Compare R v Morris & Ors [1963] 47 Cr App R 202.
What then was the status of the persons in the bar?
The State failed absolutely to show that anyone present at the material time was a non-
member or was not the guest of a member. The complainant was a guest of a Mr
Sanyanga who, as required by the Club’s regulations, had entered his name in the
visitor’s book. The chairman, Mr Orick, confirmed that it was definitely not the policy of
the Club to open its doors to the public at large. Members were only permitted to invite
three guests in any one year, and on occasion the sporting committee of the Club would
allow a visiting team to utilise the facilities. In this way, access to the Club was restricted
to those favoured individuals.
Page 290 of 1991 (2) ZLR 287 (SC)
Accordingly, in the exercise of the power conferred in s 9A of the Supreme Court of
Zimbabwe Act, 1981, and with the concurrence of Korsah JA, I order that the appeal be
allowed and the conviction and sentence be set aside.
FAWCETT SECURITY OPERATIONS (PVT) LTD v OMAR ENTERPRISES (PVT)
LTD
1991 (2) ZLR 291 (SC)
Division: Supreme Court, Harare
Judges: Gubbay CJ, McNally JA & Manyarara JA
Subject Area: Civil appeal
Date: 24 October & 18 November 1991

Employment — vicarious liability of employer for dishonest acts of employee — test is

whether goods have been entrusted to employee.
Delict — negligent breach of term of contract — liability can arise.
The appellant appealed against the decision of Greenland J (1990 (2) ZLR 108 (HC))
dismissing an application to strike out certain paragraphs of the declaration in the trial
action.
The appellant provided a security guard to detect and prevent theft from the respondent’s
supermarket. The guard chosen for the task was dishonest and participated in or allowed
the theft of goods worth $139 539. The respondent sought to hold the appellant
vicariously liable for the dishonest acts of its servant.
Held, unless the goods in question have been entrusted to the custody of the employee,
the employer is not vicariously liable for any dishonest acts of an employee, even if the
employment provided the opportunity to the employee to act in a dishonest manner.
Held, a claim in delict can arise where it is alleged that a dishonest guard was employed
in breach of a duty of care, or where there has been a failure to properly supervise a
guard.
Cases cited:
Electra Rubber Products (Pvt) Ltd v Socrat (Pvt) Ltd 1981 ZLR 356 (A); 1981 (4) SA
451 (ZA)
Page 292 of 1991 (2) ZLR 291 (SC)
Nott v ZANU (PF) 1983 (2) ZLR 208 (SC); 1984 (2) SA 115 (ZS)
Morris v C W Martin & Sons Ltd [1966] 1 QB 716; [1965] 2 All ER 725 (CA)
Leesh River Tea Co Ltd & Ors v British India Steam Navigation Co Ltd [1967] 2 QB
250; [1966] 3 All ER 593 (CA)
Rustenburg Platinum Mines Ltd & Ors v SA Airways and Pan American Airways Inc
[1979] 1 Lloyd’s Rep 19 (CA)
Nel & Anor v Minister of Defence 1978 RLR 455 (G); 1979 (2) SA 246 (R)
Feldman (Pty) Ltd v Mall 1945 AD 733
Mkize v Martens 1914 AD 382
SA Railways & Harbours v Marais 1950 (4) SA 610 (A)
South British Insurance Co v du Toit 1952 SR 239; 1952 (4) SA 313 (SR)
Deatons (Pty) Ltd v Flew (1949) 79 CLR 370 (HC of Australia)
Minister of Police v Rabie 1986 (1) SA 117 (A)
Canadian Pacific Railway Co v Lockhart [1942] AC 951; [1942] 2 All ER 464 (PC)
SA Railways & Harbours v Albers & Anor 1977 (2) SA 341 (D)
Lillicrap, Wassenaar & Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475
(A)
Compass Motors Industries (Pty) Ltd v Callguard (Pty) Ltd 1990 (2) SA 520 (W)
D M Campbell for the appellant
A P de Bourbon SC for the respondent
GUBBAY CJ: This is an appeal consequent upon the grant of leave, from the High Court
dismissing with costs an application brought by the defendant, the present appellant, to
strike out as being bad in law, certain paragraphs of the declaration filed by the plaintiff,
now the respondent. These are: (i) paragraphs 5 and 6; (ii) paragraph 7; and (iii)
paragraph 9. The judgment of the court a quo has been reported as Fawcett Security
Operations (Pvt) Ltd v Omar Enterprises (Pvt) Ltd 1991 (2) SA 441 (ZH).
At the hearing before this court, though not in his heads of argument, Mr de Bourbon,
who appeared for the plaintiff, wisely conceded that the objection to paragraph 9 was
well taken and withdrew the claim for the repayment of $5 400 set out therein. It follows
that to that extent, at least, this appeal must succeed.
The application to strike out paragraphs 5 and 6, as further particularised, is the
substantive and most contentious issue in the appeal. In order to properly appreciate its
basis, it is necessary to refer also to the allegations contained in
Page 293 of 1991 (2) ZLR 291 (SC)
the two preceding paragraphs. The scenario which then emerges may be stated thus:
1. The defendant, as its name suggests, undertakes the business of providing
both uniformed and plain-clothed security details on hire for reward. During October
1987 it was expressly agreed, orally by the parties, that the defendant was to provide a
plain-clothed security guard at the plaintiff’s supermarket in Mutare at a fee of $330 per
month. It was an implied term of such agreement that the security guard was to perform
his duties in a workmanlike, responsible and honest manner.
2. The plain-clothed security guard so provided by the defendant was one
Morris Govere. His responsibilities were to detect and prevent shop-lifting and other
thefts occurring at the plaintiff’s premises. These responsibilities were either expressly
agreed or, alternately, agreed by implication.
3. Between the period October 1987 and December 1988, Govere and other
persons to the plaintiff unknown, acting on behalf of Govere, or with his connivance,
knowledge or approval, stole goods from the supermarket to the value of $139 539.
4. At all relevant times in perpetrating or conniving at such thefts, Govere
was acting in the course and scope of his employment with the defendant.
The point raised by the defendant is that a person employed in the capacity and with the
responsibilities described, cannot in law be said to be acting within the course and scope
of that employment if he (i) steals goods himself; and/or (ii) engages others to steal
goods on his behalf; and/or (iii) connives with others so as to permit them to steal goods.
It is not alleged by the plaintiff that the agreement entered into was one of depositum or
any form of bailment. It was no more than it is pleaded to be — that the defendant would
provide a security guard whose function it was “to detect and prevent shop-lifting and
other thefts” of the goods in the supermarket. See Electra Rubber Products (Pvt) Ltd v
Socrat (Pvt) Ltd 1981 (4) SA 451 (Z AD) at 452E-H.
Obviously, it was envisaged that Govere, dressed inconspicuously as an ordinary shopper
or labourer, would prowl up and down the aisles of the supermarket, mingling with the
shoppers. He was there to prevent, to the best of his ability, other persons in the
supermarket, be they potential customers or
Page 294 of 1991 (2) ZLR 291 (SC)
members of staff, from stealing the merchandise. He was to be constantly vigilant, and if
he happened to observe anyone secreting goods about his person, or leaving the premises
without paying for goods taken, to apprehend him.
There can be no question of the goods displayed on the shelves of the supermarket, or
elsewhere on the premises, being placed into the possession or charge of the defendant.
They were not entrusted to its care, and through it, to its security guard; but remained
under the control and possession of the plaintiff. Customers were permitted to remove
merchandise from the shelves, place what it was intended to purchase into a trolley or
basket, and move around the supermarket selecting additional goods; in the event of a
change of mind, items previously taken from the shelves would be returned thereto.
It was formerly thought that an employer could not be held vicariously liable for a theft
committed by his employee on the ground that the act of stealing necessarily took the
employee out of the course of his employment. Dishonesty or fraud by the employee for
his own benefit did not render the employer liable.
This view of the law no longer prevails. It is now recognised and accepted that theft by an
employee to whom the goods concerned have been entrusted is, in fact, an improper and
dishonest mode of performing what he was employed to do, namely, to take care of the
goods. In such circumstances, the employee is acting nonetheless in the course of his
employment, and so the employer is vicariously liable for the loss of the goods.
This doctrine of vicarious liability of an employer for the intentional wrongdoing of his
employee committed in the course of his employment is a part of the law of Zimbabwe.
See Nott v Zimbabwe African National Union (Patriotic Front) 1983 (2) ZLR 208 (SC)
at 210E; 1984 (2) SA 115 (ZS) at 117H.
In advancing their respective contentions counsel referred to Morris v C W Martin &
Sons Ltd [1965] 2 All ER 725 (CA). In that case the plaintiff’s fur coat had been
delivered, with her permission, to the defendant company to be cleaned. Morrissey, the
defendant’s employee, to whom it had been handed for the necessary work to be done,
stole it. The Court of Appeal held the defendant liable on the ground that its duty as
bailee for reward had been breached by reason of Morrissey’s theft. The defendant could
not rid itself of responsibility by delegating it to another. Having entrusted to its
employee possession of the fur coat, together with the duty to take reasonable care and
clean it, the defendant was answerable for the manner in which Morrissey conducted
himself. It was appreciated, however, that if the theft of the fur coat had been committed
by
Page 295 of 1991 (2) ZLR 291 (SC)
some other employee to whom its possession had not been entrusted, the result would
have been different. It would not have been possible to hold that it had been stolen by the
employee through whom the defendant had chosen to discharge its duty of care. In the
words of Salmon LJ at 740G-H:
“A theft by any servant who is not employed to do anything in relation to the goods
bailed is entirely outside the scope of his employment and cannot make the master liable.
So in this case, if someone employed by the defendants in another depot had broken in
and stolen the fur, the defendants would not have been liable. Similarly in my view if a
clerk employed in the same depot had seized the opportunity of entering the room where
the fur was kept and had stolen it, the defendants would not have been liable. The mere
fact that the master, by employing a rogue, gives him the opportunity to steal or defraud
does not make the master liable for his depredations.”
See also Diplock LJ at 738D-E and G.
It is clear that the Court of Appeal could have decided the case on the ground that
Morrissey had stolen the fur coat in the course of his employment. An essential element
of liability on either ground was that the employer had entrusted possession of the fur
coat to its employee. The result would have been the same whether the matter had been
considered in terms of the employer’s own duty as bailee or in terms of the principle of
vicarious liability.
Where an employee has committed a theft, the test to be applied is to enquire whether the
goods stolen had been entrusted to his care by his employer. If they had not, the theft is
outside the scope of his employment and the employer is not vicariously liable. The theft
is the act of the employee pursuing his own selfish ends — something he has done
entirely on his own account. The employer may, of course, be liable on the ground of his
negligence in selecting the employee, or because the theft was induced by his own
negligence, or because of the negligence of some other employee to whom the charge of
the stolen property had been committed. See Clerk and Lindsell on Torts 16 ed at para 3-
27 p 221; Winfield and Jolowicz on Tort 12 ed at p 587; Salmond and Heuston on the
Law of Torts 19 ed at p 529.
This approach is supported by two decisions of the Court of Appeal which fall on
different sides of the line. In Leesh River Tea Co Ltd & Ors v British India Steam
Navigation Co Ltd [1966] 3 All ER 593 (CA) the plaintiffs consigned chests of tea on the
defendant’s vessel for shipment from Calcutta to London, Hull and Amsterdam, via
Colombo and Port Sudan. The tea was properly and
Page 296 of 1991 (2) ZLR 291 (SC)
carefully loaded and stowed in No. 2 hold. The defendant employed a local firm of
stevedores for discharging and loading the cargo at Port Sudan. One or more of the
stevedores removed and stole in the course of the discharge or loading of the tea, a small
brass plate which was the cover plate of a storm valve. This enabled sea-water to enter
the hold and damage the tea. The defendant was sued and one of the issues which had to
be considered was whether it was entitled to rely on the immunity conferred by a
provision of the Carriage of Goods by Sea Act, 1924. This depended upon whether the
stevedores who stole the plate were the agents or servants of the defendant when they
committed the theft. It was held that the defendant was entitled to the immunity because
the theft was in no way incidental to the discharge and loading of the cargo. As Sellars LJ
stated at 597A-B:
“It is beyond question, I think, that the shipowners could not have escaped liability if the
stevedores’ men in the performance of the work in hand had damaged or stolen the cargo
they had to handle; but the men involved did not damage the cargo which they were
handling and did not steal any of it. They took the opportunity to remove a very small
part of the ship itself in order to steal it and, in so doing, so damaged the ship that
seawater could enter.”
In similar vein Salmon LJ said at 599E-F:
“Moreover if the stevedores handled the cargo dishonestly, for example if they stole it,
the shipowners would be liable to its owners for the stevedores’ dishonest acts. It seems
to me however that the theft in this case had nothing to do with the handling of the cargo.
The stevedore’s employment merely afforded him the opportunity of stealing the plate.
No doubt the shipowners owed the cargo-owners a duty to take care that no one stole any
part of the ship if the theft of such part might render the ship unseaworthy and damage
the cargo. There was however no breach of that duty. The fact that the thief was a
stevedore was quite fortuitous as the theft had nothing to do with the work on which he
was engaged. The fact that his employment on board presented him with the opportunity
to steal does not, in my judgment, suffice to make the shipowners liable . . .”
In Rustenburg Platinum Mines Ltd & Ors v South African Airways and Pan American
World Airways Inc [1979] 1 Lloyd’s Rep 19 (CA), the facts were these: The plaintiffs
were the owners, consignors and consignees of two boxes of platinum which were flown
into London’s Heathrow Airport from South Africa by the first defendant and were to be
flown to the United States of America by the second defendant, Pan Am. The two boxes
were stored in Pan
Page 297 of 1991 (2) ZLR 291 (SC)
Am’s warehouse over the week-end and were subsequently conveyed to the aircraft.
They were handed into the custody of two of Pan Am’s loaders who were engaged in
loading the hold of the aircraft. One of the loaders who was inside the aircraft placed one
of the boxes in a position where it could be seen and easily removed. When everybody’s
back was turned he handed it down to someone in a security vehicle which was parked
alongside the aircraft. The box of platinum was discovered missing only after the aircraft
arrived at its destination. It had been stolen by the combined operation of the loader who
was entrusted with the actual loading of it into the hold and one or more of the persons in
the security vehicle. Pan Am was held to be liable for the loss on the ground that the
wilful misconduct of the loader was so bound up with the task entrusted to him by his
employer, which was to load the box into the aircraft, as to bring the theft within the
scope of his employment. This was explained by Lord Denning MR at 24 as follows:
“To have wilful misconduct in the scope of the man’s employment it has to be pinned on
to some person who was entrusted with the task of taking care of the goods. As I ventured
to say in Morris v CW Martin & Sons Ltd . . .
‘. . . when a principal has in his charge the goods or belongings of another in such
circumstances that he is under a duty to take all reasonable precautions to protect them
from theft or depredation, then if he entrusts that duty to a servant or agent, he is
answerable for the manner in which that servant or agent carries out his duty . . .’
To which I may add if that servant is guilty of wilful misconduct in the way he carries out
his duty, in so far as he steals the goods himself or combines with others to steal them or
allows them to steal the goods, then in those circumstances that servant or agent is guilty
of wilful misconduct within the scope of his employment.”
Everlleigh LJ, to much the same effect, remarked at 24:
“For my part, I would be content to base the liability of the employer upon the principles
of bailment as enunciated by Lord Denning, MR, in Morris v CW Martin & Sons Ltd, but
also I would base it upon the ordinary rules of master and servant, that is to say of
vicarious liability. This loader was employed to load for safe transit. His job was to load
it in a way which would see to its safe transit, but he in fact loaded it in a way which put
it in peril. He put it in a position from which it could be readily stolen and that was his
intention when he put it there. In my view he was doing wrongly that which he was
employed to do.”
See also Sir David Cairns at 25.
Page 298 of 1991 (2) ZLR 291 (SC)
Accordingly, as I perceive the law, in order to render the employer vicariously liable for
the theft of goods by the employee, the goods must in some way or other have been
entrusted into the possession or charge of the employee. The culpable employee must be
one to whom the custody of the goods was deputed by his employer; not just any
employee whose employment simply afforded him the opportunity to steal them. See Nel
& Anor v Minister of Defence 1978 RLR 455 (G) at 458F-G; 1979 (2) SA 246 (R) at
248F; the Leesh River Tea case supra at 599F. The theft must have been committed “in
the course of doing that class of acts which the (employer) had put the servant in his
place to do”, per Diplock LJ in Morris v Martin & Sons Ltd supra at 738F.
Unquestionably Morris Govere falls into the category of the “unfaithful servant” referred
to by Watermeyer CJ in Feldman (Pty) Ltd v Mall 1945 AD 733 at 742 in these terms:
“If . . . the harm to the third party is not caused by the servant’s abandonment of his
master’s work but by his activities in his own affairs, unconnected with those of his
master, then the master will not be responsible.”
This dictum echoes the observation of Innes JA made thirty years before in Mkize v
Martens 1914 AD 382 at 390, cautioning that:
“. . . an act done by a servant solely for his own interests and purposes, and outside his
authority, is not done in the course of his employment, even though it may have been
done during his employment. Such an act cannot be said to have taken place ‘in the
exercise of the functions to which he (the servant) is appointed’.”
See also Solomon JA at 384; South African Railways & Harbours v Marais 1950 (4) SA
610 (A) at 617C; South British Insurance Co v du Toit 1952 SR 239 at 242; 1952 (4) SA
313 (SR) at 316D-E.
A somewhat different test to the issue of whether the employer is vicariously liable for
the loss caused to a third party by the intentional wrongdoing for his own benefit by the
employee, is suggested by the Australian academic, Professor John Fleming, in his
acclaimed work The Law of Torts 7 ed at p 356. Relying on a passage in the judgment of
Dixon J (as he then was) in Deatons (Pty) Ltd v Flew (1949) 79 CLR 370 at 381, he
writes:
“In order to attract vicarious liability, the servant’s dishonesty must consist of ‘acts to
which the ostensible performance of his master’s work gives
Page 299 of 1991 (2) ZLR 291 (SC)
occasion or which are committed under cover of the authority the servant is held out as
possessing or of the position in which he is placed as a representative of his master’. It is
preeminently in this context that the courts have forsaken the ‘course of employment’ test
and reduced the employer’s responsibility by invoking the agency doctrine of actual or
ostensible authority, borrowed from the law of contract.”
A similarity of thought is to be found in the majority judgment of Jansen JA in Minister
of Police v Rabie 1986 (1) SA 117 (AD) in which he said at 134J-135A that by
appointing Van der Westhuizen as a member of the Police Force:
“. . . and thus clothing him with all the powers involved, the State created a risk of harm
to others, viz the risk that Van der Westhuizen could be untrustworthy and could abuse or
misuse those powers for his own purposes or otherwise, by way of unjustified arrest,
excess of force constituting assault and unfounded prosecution.”
Applying this approach, the same may be asserted of a security guard in commercial
employment who is “clothed” by his employer with certain ostensible authority. If in the
abuse or misuse of that authority he were to cause harm to others, his employer would be
liable.
In the present case, on the facts alleged, there was no abuse or misuse of the authority
with which the defendant clothed Govere. In conducting his theftuous activities Govere
was not purporting to exercise any of the ostensible authority with which it may be said
he was clothed. He simply took advantage of the opportunity, which his employment
afforded him, to steal. This is not a risk created by the defendant in the sense intended by
Jansen JA.
The learned judge a quo, supra at 448D, considered that the thefts alleged, albeit
unauthorised, were “so connected with authorised acts that ‘they may rightly be regarded
as modes — although improper modes — of doing them” per Canadian Pacific Railway
Co v Lockhart [1942] AC 591 (PC)at 599.
Mr Campbell, for the defendant, contended that such a conclusion cannot be supported
logically. I agree with him. A guard is authorised to detect and prevent the theft of goods.
Instead of doing so, he steals the goods for himself or connives with others to allow them
to steal. Such conduct on his part is not so connected with what he is authorised to do as
to be a mode of carrying out that function.
Page 300 of 1991 (2) ZLR 291 (SC)
The true situation, so it seems to me, is that the unauthorised and wrongful acts of Govere
fall squarely into the third category mentioned by Leon J in South African Railways and
Harbours v Albers & Anor 1977 (2) SA 341 (D) at 345C-G as being “an independent act
for which the master is not responsible”.
Appreciating, perhaps, the cogency of the defendant’s argument, Mr de Bourbon strove
to meet it on another front. He submitted that as a matter of public policy this court
should pronounce that the law does not exonerate a security firm from liability where it
had been contracted to detect and prevent shop-lifting and other thefts in a supermarket,
and the guard it deputes to carry out such a function himself steals the goods, or causes
others to steal them, or connives at such thefts. Put differently, in such a situation, policy
considerations require that the law impose absolute liability upon the security firm; that
such wrongful and dishonest conduct was a risk that social justice and fairness demanded
the security firm should bear, unless, of course, it had been sufficiently far-sighted to
exempt itself therefrom under its contract.
Attractive as Mr de Bourbon’s invitation appears to be, I am not persuaded that there is
any warrant to accept it. Where men of business enter into a contract on an equal footing
there is no call to enlist the aid of public policy in the event of what is later seen to be a
contractual deficiency. In casu it was open to the plaintiff to have contracted on the basis
that any loss occasioned by the theft of the security guard employed by the defendant
would be the responsibility of the latter. It chose not to do so.
For the reasons aforegoing, I am of the opinion that the application to strike out
paragraphs 5 and 6 of the declaration ought to have been allowed by the learned judge.
Paragraph 7, which is the subject of the second application to strike out, reads:
“Alternatively, and in any event, and by virtue of the oral agreement aforesaid, the
defendant owed the plaintiff a duty of care to ensure that the plaintiff did not sustain any
loss by theft, but breached such duty of care in that —
(a) it selected an employee, namely, Morris Govere, who was not honest and
trustworthy; and/or
(b) it failed to supervise the activities of the said Morris Govere adequately, thus
enabling him and others to steal goods from the plaintiff’s store.”
Page 301 of 1991 (2) ZLR 291 (SC)
In its further particulars the plaintiff disavowed an intention to maintain that any theft
which occurred during the currency of the agreement would be the responsibility of the
defendant, in the sense that it would be obliged to compensate the plaintiff therefor.
The objection taken is twofold: First, the terms of the agreement both express and
implied as alleged in paragraph 4 of the declaration do not impose such absolute liability
on the defendant; and second, all the words following upon the comma in sub-paragraph
(b) are argumentative and superfluous.
Mr Campbell was not inclined to urge that breach of a contractual duty in the
performance of professional work is not per se a wrongful act for the purposes of
Aquilian liability. He was aware that such a proposition had not found favour in Lillicrap,
Wassenaar & Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A), and
accepted that the plaintiff may have a cause of action, by virtue of the contractual
relationship, based on a legal duty of care owed to it by the defendant. Nor did he suggest
that the two respects of negligence alleged could not in law give rise to a breach of that
duty. As to which, see Compass Motors Industries (Pty) Ltd v Callguard (Pty) Ltd 1990
(2) SA 520 (W). Counsel complained that the cause of action had been somewhat
inelegantly and inconsistently pleaded — in one breath it is alleged that the contract gave
rise to an absolute duty on the defendant’s part to ensure that the plaintiff did not sustain
any loss by theft; and in another, acknowledges that the defendant was not in the nature
of a bailee or insurer.
I have no difficulty in accepting that the cause of action could have been pleaded in a
clearer and more precise manner. But viewed as a whole it is apparent that the plaintiff is
seeking to relate its loss of $139 539, occasioned as aforedescribed in the declaration, to
the particulars of negligence alleged in paragraph 7, either or both of which constituted a
breach of the duty of care.
I also accept that the closing words of sub-paragraph (b) are out of place. What ought to
have been alleged in a subsequent paragraph was something to the effect that:
“As a result of the defendant’s negligence as particularised above, the said Morris Govere
and other persons were able to steal goods from the plaintiff’s store to the value of $139
539.”
This again was clearly what was intended, and what, I think, emerges upon a reasonable
interpretation of the pleading.
Page 302 of 1991 (2) ZLR 291 (SC)
The complaint, which in any event is directed to the whole of the paragraph and not
solely to the two aspects debated, is technical and, in reality, a matter of semantics. In the
circumstances, I am not disposed to interfere with the dismissal of this application by the
court a quo.
Insofar as the costs incurred in both courts are concerned, it seems to me that the
defendant must be held to have achieved substantial success. The objection taken to
paragraphs 5 and 6 has now been upheld and that to paragraph 9 conceded. In essence the
issues between the parties have been much narrowed.
The order made is:
1. The appeal succeeds to the extent that paragraphs 5, 6 and 9 of the
declaration are struck out as being bad in law, but is dismissed with regard to the
application to strike out paragraph 7.
2. The costs of the appeal are to be borne by the respondent.
3. The order of the court a quo is set aside and substituted therefor is the
following:
(1) The application to strike out paragraphs 5, 6 and 9 of the declaration is allowed,
but is dismissed in respect of paragraph 7.
(2) The respondent (the plaintiff) is to pay the costs of this application.
McNally JA: I agree.
Manyarara JA: I agree.
Calderwood, Bryce Hendrie & Partners, appellant’s legal practitioners
Gollop & Blank, respondent’s legal practitioners
DRUMMOND v DE HAAST
1991 (2) ZLR 303 (SC)
Division: Supreme Court, Harare
Judges: Gubbay CJ, Manyarara JA, Korsah JA
Subject Area: Civil appeal
Date: 11 & 21 November 1991

Administration of estates — executor — retraction of renunciation of appointment —

necessary requirements.
In every situation, a person seeking to retract his renunciation as executor under a will
must show (1) good and persuasive cause to explain the retraction — that it is not simply
a change of heart; (2) that this would be for the good of the estate or of those interested
under the will. Among the important considerations are any expressed wishes of the
testator and the likely result in costs and in delay on the finalisation of the estate.
The respondent, named as executor in his late father’s will, renounced appointment in
favour of the appointment of his legal practitioner overlooking the substitutory
nomination of the appellant in the event of his failing to take office. The legal practitioner
brought the estate to an advanced stage of winding up before the mistake was realised
and the appellant obtained the setting aside of his appointment. The respondent thereafter
sought an order permitting him to retract his renunciation and to take office as executor.
Held, the renunciation was no change of heart but an attempt to remedy a genuine
mistake. There had never been any intention on the part of the respondent to relinquish
control of the estate.
Cases cited:
Drummond v The Master & Ors 1990 (2) ZLR 227 (SC); 1991 (2) SA 449 (ZS)
In the Goods of Stiles [1898] P 12
In the Goods of Thacker [1900] P 15
In the Goods of Gill (1873) LR 3 P&D 113
Page 304 of 1991 (2) ZLR 303 (SC)
In the Estate of Heathcote [1913] P 42
M J Gillespie for the appellant
D A Matyszak for the respondent
GUBBAY CJ: On 9 July 1988 Raymond Duckworth De Haast died at Harare. He left a
last will and testament under which his son, the respondent, was appointed to act as the
executor and, in the event of the latter being unable for whatever reason to act, he
appointed in his stead his daughter, the appellant.
A month later, on 10 August 1988, the respondent signed a document in which he
renounced appointment as executor testamentary and requested the Master of the High
Court to appoint his legal practitioner, Mr DW Aitken in his place.
The Master complied. At an edict meeting held on 5 October 1988 Mr Aitken was duly
appointed executor dative of the deceased testator’s estate. Letters of administration
certifying such appointment were issued recording that the respondent had renounced his
appointment as executor testamentary.
After a lapse of several months, during which period Mr Aitken proceeded to administer
the estate, the appellant called upon the Master to revoke and annul the appointment of
the executor dative on the ground that it was contrary to the direction of the testator.
Acknowledging his error, the Master revoked the letters of administration issued to Mr
Aitken. He allowed the respondent to withdraw his renunciation and granted him letters
of administration certifying that he was the duly appointed executor testamentary and, as
such, was authorised to administer the estate.
The appellant protested that the respondent was not entitled by law to retract the
renunciation of appointment as executor testamentary, but the Master was unmoved.
Ultimately her objection to the procedure adopted was upheld by this court on the ground
that the Master had no authority to accept the respondent’s retraction, such power being
vested solely in the High Court. It was ordered, inter alia, that the respondent, be he so
advised, was to make application to the High Court for permission to retract his
renunciation of appointment as executor testamentary by not later than 14 September
1990, failing which the Master was directed to grant letters of administration to the
appellant as executrix testamentary. See Drummond v The Master & Ors 1990 (2) ZLR
227 (SC); 1991 (2) SA 449 (ZS).
Page 305 of 1991 (2) ZLR 303 (SC)
Persisting in his desire to resume appointment as executor testamentary, the respondent
made a timeous application to the High Court for permission to retract his renunciation.
The relief sought, though opposed by the appellant, was granted by Mtambanengwe J.
Regrettably the dispute between the parties now comes to this court for the second time.
What are the factors which a court should take into account in considering whether or not
to allow an application of this nature?
I would think that where, in consequence of the renunciation, letters of administration
had been validly issued to a person entitled in lower degree, very exceptional
circumstances would have to be present. If, for instance, the respondent, appreciating that
Mr Aitken could not be appointed executor dative, had, notwithstanding, renounced his
own appointment, in consequence of which letters of administration were granted to the
appellant as executrix testamentary, the prospect of him obtaining retraction and having
the letters of administration set aside would be minimal. The decision In the Goods of
Stiles [1898] P 12 is illustrative of the need for extraordinary circumstances. Two
executors had been jointly appointed under the will of the deceased. The one renounced,
the other took probate. Upon the latter absconding, the former was permitted to retract his
renunciation and take probate. See also In the Goods of Thacker [1900] P 15.
In every situation a person seeking to retract his renunciation as executor must discharge
the onus of proving that:
1. The desire to retract is not based purely on a change of heart — an
appreciation that he had made a mistake in renouncing. Good and persuasive cause must
be shown in the sense, perhaps, that the renunciation was the result of his having been
misled or misinformed in some way as to its effect; or that subsequent thereto unforeseen
circumstances had arisen that made him more suitable than anyone else to assume the
appointment. See In the Goods of Gill (1873) LR 3 P & D 113 at 115; In the Estate of
Amy Heachcote [1913] P 42.
2. It is for the benefit of the estate or those interested under the will of the
deceased. See Drummond v The Master & Ors supra at 453E; Williams on Executors
and Administrators 14 ed vol 1 at 48; Tristram and Coote’s Probate Practice 27 ed at
444.
These two criteria may, and often will, overlap. The reason relied upon for the
Page 306 of 1991 (2) ZLR 303 (SC)
renunciation may have a bearing upon whether it is in the interests of the estate or the
beneficiaries to permit of its retraction.
In spite of Mr Gillespie’s submissions to the contrary, I am well satisfied that the
respondent’s desire to retract the renunciation of his appointment was not a change of
mind — an “afterthought” which had caused him to adjudge his position in a different
way. In my opinion, the respondent was able to advance a genuine and compelling
explanation for having decided to renounce. It is plain to me that at no stage did he intend
to relinquish the control his deceased father had clothed him with, especially to the
appellant, with whom he was much in conflict. As his business commitments required
him to travel frequently throughout the Southern African region, he consulted his legal
practitioner on how he should deal with the estate. The advice received from Mr Aitken,
which was incorrect, led the respondent to renounce his appointment instead of simply
authorising Mr Aitken to act on his behalf under a power of attorney.
Material support for the respondent’s stance is to be found in the form of renunciation,
prepared by Mr Aitken, which expresses the request that the latter be appointed executor
dative. Furthermore, it is accepted by Mr Aitken that he was responsible for giving the
respondent erroneous advice. This emerges from his supporting affidavit, the relevant
paragraph of which reads:
“In giving such advice (namely, that the best course of action was to file a renunciation as
executor) neither myself nor my own adviser turned our attention to the fact that upon
renunciation the (appellant) would be nominated as executrix in accordance with the will.
Had I done so I obviously would not have arranged the edict meeting, or advised upon
the course of action taken.”
In short, the respondent, with justification, placed the blame for his predicament upon Mr
Aitken. That he consistently wished to retain control over the administration of the estate
is confirmed by Mr Aitken. Unfortunately their collective minds failed to advert to the
substitutory nomination of the appellant under the will.
I have not overlooked that in the previous proceedings Mr Aitken was party to a
statement in which he admitted to having drawn the respondent’s attention to the fact that
“it was not necessary for (him) to sign a form of renunciation in that it was open to (him)
to accept appointment as executor testamentary and appoint me under a power of attorney
to act as his agent in Zimbabwe to assist with the administration of the estate”.
Page 307 of 1991 (2) ZLR 303 (SC)
It would have been prudent for Mr Aitken to have dealt with this aspect in the affidavit he
later deposed to, but I do not consider that any material inconsistency is revealed.
Certainly the statement does not lead to the inference that the respondent “flew in the
face” of his legal practitioner’s advice, as is urged by the appellant. It seems to me that
Mr Aitken merely indicated the two options available and then, as explained in the
affidavit, advised the respondent that his best course was to renounce. As a layman it is
not surprising that the respondent followed that advice.
Mr Gillespie conceded, and properly so, that an important factor in the determination of
whether the retraction sought is for the benefit of the estate or those interested under the
will, is the intention of the deceased testator. It was the respondent who was the testator’s
first choice to be the executor of his estate.
Where there is an acceptable explanation for the renunciation and no more prejudice will
be caused to anyone interested in the estate than if the appointment had been accepted,
the court will be far more inclined to restore the status quo ante than to defeat the
testator’s wishes. This is the position in casu.
There is also the feature emphasised by the learned judge a quo. The winding-up of the
estate has reached a fairly advanced stage. An estate account has been filed and
advertised as lying for inspection. Considerable costs have been incurred. The
appointment of a new executor will thus entail additional and unnecessary costs. In other
words, it is for the benefit of the estate to minimise such costs by allowing the respondent
to retract.
Finally, it is of relevance that, apart from the respondent who is the heir, the others
interested in the estate are legatees who are to receive fixed sums of money. It has not
been suggested that there will be insufficient funds to meet these bequests. Consequently,
if the deceased’s assets are not brought into the estate the only one to suffer prejudice will
be the respondent. He is undoubtedly the person best suited to ensure that this be done.
In the result I would order that the appeal be dismissed with costs.
Manyarara JA: I agree.
Korsah JA: I agree.
Coghlan, Welsh & Guest, appellant’s legal practitioners
D W Aitken & Co, respondent’s legal practitioners
BOKA ENTERPRISES (PVT) LTD v PINE
1991 (2) ZLR 308 (SC)
Division: Supreme Court, Harare
Judges: McNally JA, Korsah JA & Ebrahim JA
Subject Area: Civil appeal
Date: 24 September & 28 November 1991

Negligence — proof of — doctrine of res ipsa loquitur — applicability of — what factors

give rise to application of doctrine — effect of doctrine on burden of proof.
Respondent had been driving behind another vehicle along a road when a vehicle being
towed in the opposite direction suddenly overtook the towing vehicle and at the same
time strayed into respondent’s path and that of the vehicle ahead of her. The towed
vehicle collided with both respondent’s vehicle and that ahead of her. Respondent sued
the driver of the towing vehicle for damage sustained to her vehicle.
Held, that before the invocation of the doctrine res ipsa loquitur it must be established
that whatever caused the accident was in the exclusive control of the defendant.
Held, further, that to apply the doctrine is to do no more than to shift the burden of proof.
A prima facie case is assumed to have been made out which throws upon defendant the
task of proving that he was not negligent.
Held, further, that firstly the proven facts must be examined to find out whether they give
rise to the application of the doctrine. Secondly the defence proffered must also be
scrutinised to see if it establishes that the defendant was not, in fact, negligent, or that the
accident was one which could have occurred without any negligence on the part of the
defendant.
Held, further, that the doctrine could only have been invoked in the circumstances of this
case if both the drivers of the towing vehicle and the vehicle in tow had been joined as
defendants.
Page 309 of 1991 (2) ZLR 308 (SC)
Cases cited:
Arthur v Bezuidenhout & Mieny 1962 (2) SA 566 (A)
Naude NO v Transvaal Boot and Shoe Manufacturing Co 1938 AD 379
Woods v Duncan [1946] AC 401; [1946] 1 All ER 420 (HL)
D P Drury for the appellant
A J Dyke for the respondent
KORSAH JA: At about 7 pm on 16 April 1987, the respondent was driving in an
easterly direction along Mutare Road, behind an army landrover. At the intersection of
Mutare Road and Stevens Drive, she observed a truck being towed by another truck
travelling in a direction opposite to her. All of a sudden, while the towing truck remained
on its proper side of the road, the truck being towed drove past the towing truck on its
wrong side of the road and first collided with the army landrover in front of the
respondent, and thereafter ran into her Ford Laser, causing extensive damage to her
vehicle.
The vehicle in tow, which collided with the respondent’s vehicle was an 8-ton Mercedes
Benz vehicle owned by Mr Maposi, as was the tow-bar with which it was being towed.
The vehicle in tow was being steered, at the time of the accident, by a driver in the
employ of Mr Maposi. The towing vehicle, a 10-ton DAF truck, was the property of the
appellant and was in the custody, and under the control of Leonard Marozva, a driver
employed by the appellant.
The respondent claimed liquidated damages in the sum of $3 822,72 from the appellant in
respect of the loss sustained by her as a result of the accident. In her declaration it was
alleged that the second vehicle broke loose from the towing hitch, veered onto the wrong
side of the road and collided with her vehicle. This much was common cause. It was also
common cause that in towing the broken-down vehicle Leonard Marozva was acting in
the course of and within the scope of his employment. But the appellant denied the
allegation that the collision was caused through the negligence of Leonard Marozva in
that he towed another vehicle when the towing hitch was unsafe.
The respondent testified that at all times relevant to this accident the appellant’s vehicle
kept to its proper side of the road and did not collide with her vehicle. She did not know
what caused the vehicle in tow to veer from behind the towing vehicle and come crashing
into her vehicle; nor did she hear, prior to the collision, the squealing of brakes
signifying an attempt on the part of the person steering the vehicle in tow to stop the
vehicle.
Page 310 of 1991 (2) ZLR 308 (SC)
Patrol Officer Mawonera, who attended the scene of the accident, testified that although
he compiled a Traffic Accident Book when he attended the scene, as was the practice,
that TAB had been destroyed after the expiration of two years. He could, however, recall
that at the scene of the accident he saw an army landrover and the respondent’s vehicle
parked facing an easterly direction along Mutare Road, and a lorry on the other side of
the road facing the opposite direction. The road runs downhill in a westerly direction.
About 600 to 700 metres from the scene of the accident in a westerly direction was a
solitary vehicle parked on its left hand side of the road.
Investigations revealed to PO Mawonera that the lorry parked at the scene, with the army
landrover and the respondent’s vehicle, had been towing the solitary vehicle parked some
600 odd metres down the road from the scene of the accident. From his observation the
tow-bar which was being used to tow the vehicle got broken into two and that was how
the vehicle in tow became separated from the lead vehicle and crashed into the
respondent’s vehicle. PO Mawonera was unable to shed any light on whether the tow-bar
was defective in any way, but suggested that the tow-bar broke because it could not take
the weight of the vehicle in tow. He, however, could not recall the thickness or length of
the tow-bar, and so his opinion that the tow-bar could not take the weight of the vehicle
in tow was a generalisation which does not explain the reason why the tow-bar snapped
in two.
The tow-bar may have been, in thickness and length, perfectly adequate for towing a
weight equal or greater than that of the vehicle in tow, but may have been defective in a
manner not visible to the naked eye. In other words there may have been a latent defect in
the tow-bar. No one knows how or why the tow-bar snapped, and the respondent
contended that the breaking of the bar was more consistent with its being caused by
negligence for which Leonard Marozva was responsible than by other causes, and that the
mere breaking of the tow-bar affords reasonable evidence in the absence of any
explanation from Leonard Marozva, that the accident arose from the want of care on his
part.
In addition to shifting the onus of proving that he was not in fact negligent onto Leonard
Marozva, evidence was led that Leonard Marozva had, on 13 May 1987, signed an
“Admission of Guilt” Form No. 480785 admitting to a contravention of s 61(1)(b) of the
Road and Road Traffic (Construction Equipment and Use) Regulations, No. 412 of 1972
charging that he had towed another vehicle which was not under proper control, and had
paid a spot fine of $20 rather than go to court to contest the charge. If the Admission of
Guilt fine was adduced in evidence in substantiation of an admission of
Page 311 of 1991 (2) ZLR 308 (SC)
liability on the part of Leonard Marozva, then what he was admitting to requires careful
scrutiny.
Section 16(1)(b) of GN 412 of 1972 recites that:
“61. (1) No person shall drive on any road any motor vehicle towing another vehicle —
(a) ...
(b) unless the vehicle being towed is so attached to the towing vehicle as to be under
proper control.”
If, as was common cause, the veering of the vehicle in tow onto its improper side of the
road was as a result of the tow-bar snapping, then the cause of the accident had nothing to
do with the vehicle in tow being so insecurely attached to the towing vehicle as not to be
under proper control. On the facts, the charge was incompetent and the admission bad
and ineffectual as an admission to the liability contemplated by the section. Support for
this view also emanates from the evidence that the police explained to Leonard Marozva
that they were preferring this charge against him because his tow-bar was not safe
(because it snapped).
I turn now to the applicability of the doctrine res ipsa loquitur to the facts of this case.
The learned trial judge remarked that:
“Where as in this case, a collision occurs on the incorrect side of the road it has been held
res ipsa loquitur, as the only reasonable inference to draw was that the Mercedes Benz
truck found on the incorrect side of the road was due to the failure to exercise proper
care. Proof that the Mercedes Benz truck was on the incorrect side of the road is prima
facie proof of negligence. Marais v Caledonion Insurance Co Ltd 1967 (4) SA 1999 (E).”
While it is true, as stated by Cooper Motor Law vol 2 p 99 that the doctrine of res ipsa
loquitur applies where:
“. . . the occurrence . . . (was) . . . of such a kind which ordinarily does not occur unless
someone has been negligent, and it must be due to a thing or means within the exclusive
control of the Defendant”,
to apply the principle is to do no more than shift the burden of proof, which may
adequately be met by showing that the defendant was not in fact negligent.
First, the proven facts must first be examined to find out whether they give rise
Page 312 of 1991 (2) ZLR 308 (SC)
to the application of the doctrine. Secondly, the defence proffered must also be
scrutinised to see if it establishes that the defendant was not in fact negligent, or that the
accident was one which could have occurred without any negligence on the part of the
defendant.
The chronology of events in the instant case which are uncontroverted is as follows:
At around 5.30 pm on 16 April 1987, upon instructions received, the appellant’s driver
Marozva took his 10-ton DAF truck to a point some two-and-a-half kilometres west of
Ruwa on the main Harare to Mutare Road to tow a broken-down vehicle into Harare.
Upon arrival at the point indicated to him, Marozva found an 8-ton Mercedes Benz
vehicle on the side of the road which had attached to it a tow-bar. Both the 8-ton
Mercedes vehicle and the tow-bar were the property of Mr Maposi.
The said tow-bar was made of iron. It was approximately three to four paces in length
and was about four inches in diameter. It was fitted with the necessary coupling
mechanisms and satisfied the description demanded by law. Having thus assured himself
that the tow-bar was of regulation specification and fit for use, Marozva ensured that the
tow-bar had been effectively coupled to his vehicle. He got into his vehicle while the
driver of the vehicle in tow also climbed into his, to enable that vehicle to be steered and
controlled whilst under tow. Therefore, except for lending propulsion to the vehicle in
tow, that vehicle was not completely under the management and control of Marozva.
In a way, the circumstances may be likened to persons pushing a vehicle to start it.
Although they give motion to the vehicle they are not in the management and control of
it. The main difference being that while the towing vehicle leads the vehicle in tow and
may be said to guide to a limited extent the vehicle in tow, those pushing a broken-down
vehicle have no guidance, management or control over the vehicle. The limited
management and control over the vehicle in tow by the towing vehicle persists while the
towing continues. To my mind, unless there are special circumstances, such management
and control of the vehicle in tow by the towing vehicle is severed when the vehicle in tow
is detached from the towing vehicle, where such severance is not the result of negligence
on the part of the driver of the towing vehicle.
To revert to the chronology of events, pursuant to embarking on the journey, but without
having ascertained the cause of the break-down of the towed vehicle and, in particular, as
to whether such vehicle was equipped with brakes,
Page 313 of 1991 (2) ZLR 308 (SC)
Marozva carried out a braking test under tow before departing from Ruwa to Harare.
While approaching the intersection of Stevens Drive in Harare with Mutare Road,
Marozva was compelled by a motor vehicle ahead of him to apply his brakes. He first
signalled by hand that he was slowing down and then gently applied his brakes. Before
slowing down he was travelling at 40 kph. When he applied his brakes the tow-bar
linking the two vehicles snapped and the towed vehicle overtook the towing vehicle on its
right hand side and collided with the respondent’s vehicle. As the vehicle in tow was
overtaking the appellant’s vehicle Marozva drove to his nearside of the road and stopped
about fifteen metres from where the vehicle in tow crashed into the respondent’s vehicle.
The vehicle in tow, after crashing into the respondent’s vehicle, moved to its proper side
of the road and stopped some 600 to 700 metres from the scene of the accident.
Do these proven facts give rise to the application of the doctrine of res ipsa loquitur?
Before the invocation of the doctrine it must be established that whatever caused the
accident was in the exclusive control of the defendant. In the two cases cited by the
learned trial judge viz Arthur v Bezuidenhout and Meiny 1962 (2) SA 566 (A); and
Naude NO v Transvaal Boot and Shoe Manufacturing Company 1938 AD 379, to
illustrate the application of the doctrine, the motor vehicle in each case was under the
exclusive control of the defendant.
In the instant case apart from the towing vehicle lending propulsion to the vehicle in tow,
the vehicle in tow, which collided with the respondent’s vehicle, was at all times under
the management and control of Mr Maposi’s driver. Even if it could be said that, while in
tow, the towed vehicle was partially under the control of Marozva, it is evident that it was
never under the exclusive control of Marozva even when in tow.
It seems to me that whereas the doctrine may well be invoked by an injured party who
sues two drivers the collision of whose vehicles on the road results in injury to him,
because each has the exclusive control of his vehicle at the time of the accident, and the
occurrence is not one which could happen without negligence on the part of one or the
other driver, the doctrine has no application where the injured party elects to sue only one
of two drivers whose negligence may have caused the accident, for by doing so the
injured party alleges that he is aware that it was the one rather than the other who was
negligent. If that be the case then
Page 314 of 1991 (2) ZLR 308 (SC)
he must be cognisant of the manner in which the accident was caused. The matter is then,
not one that speaks for itself, but one with regard to which the manner in which the
defendant was negligent was known and evidence must be adduced to establish that
negligence.
It cannot be over-emphasised that the doctrine may be invoked where the thing causing
the accident is shown to be under the exclusive control or management of the defendant
or his servants, and the accident is such as in the ordinary course of things does not
happen if those who have the management use proper care. All that happened in the
instant case was that the appellant was towing a vehicle, the tow-bar snapped and the
vehicle in tow, being steered by Mr Maposi’s driver, moved onto its incorrect side of the
road and smashed into the respondent’s vehicle. It is not a necessary inference that
Marozva’s conduct caused the vehicle towed by him to veer to the right and crash into the
respondent’s vehicle. Especially is this inference incapable of being drawn when the
driver of the vehicle in tow, once it became detached from the towing vehicle, must be
taken to have assumed exclusive control of the steering mechanism and all other systems
of the vehicle in tow before the accident. To put it another way the vehicle in tow was at
no time under the exclusive control and management of Marozva.
In my view, res ipsa loquitur could only have been invoked in the circumstances of this
case if both the drivers of the towing vehicle and the vehicle in tow had been joined as
defendants, and not otherwise.
It is not, in my opinion, conclusive to say that the snapping of the tow-bar was the cause
of the accident, because nothing may have happened if Mr Maposi’s driver had not
steered the vehicle in tow so as to overtake the towing vehicle on its right side, rather
than stop, resulting in the ensuing accident. Without suing the two drivers jointly, the
matter, instead of speaking for itself, becomes even more obscure.
In any case, even if the doctrine were applicable, (which I do not for a moment admit for
the reasons above stated), and if I may be permitted to adopt the language of Lord
Simonds in Woods v Duncan [1946] AC 401 at 439:
“. . . to apply this principle is to do no more than shift the burden of proof. A prima facie
case is assumed to have been made out which throws upon him the task of proving that
he was not negligent. This does not mean he must prove how and why the accident
happened, it is sufficient if he satisfies the court that he personally was not negligent. It
may well be that
Page 315 of 1991 (2) ZLR 308 (SC)
the court will be more easily satisfied of this fact if a plausible explanation which
attributes the accident to some other cause is put forward on his behalf; but this is only a
factor in the consideration of the probabilities. The accident may remain inexplicable, or
at least no satisfactory explanation other than his negligence may be offered; yet if the
court is satisfied by his evidence that he was not negligent, the plaintiff’s case must fail.”
The second issue which falls for resolution is whether the defence proffered established
that Marozva (the appellant’s driver) was not in fact negligent, or that the accident was
one which could have occurred without any negligence on the part of Marozva.

While it may be inferred that the braking of the towing vehicle caused tension on the tow-
bar which snapped under pressure, the inquiry concerning negligence, as Mr Drury
rightly submitted, must go further, having regard to the defence put forward by Marozva.
He examined the tow-bar by sight and found it to be in order and of regulation standard;
he checked the couplings and, before leaving Ruwa, carried out a braking test which he
found to be in order. In the circumstances the conduct of Marozva prior to the accident
was reasonable and adequate and did not in any way constitute negligence or a cause of
conduct which fell below that of a reasonably prudent driver.
If the tow-bar had a latent defect which was not discoverable by ordinary skill and care,
and Marozva did visually examine the tow bar and found no discernible flaws, then
Marozva had done all that was humanly possible to ensure that he carried out his duties
safely. It was not for Marozva to establish that the tow-bar had a latent defect in order to
be absolved of liability. It is sufficient for him to put forward a plausible explanation
which attributes the accident to some cause other than negligence on his part. The learned
trial judge thus fell into error when he held that the onus was on the appellant to establish
that the tow-bar had a latent defect which was not discoverable by ordinary skill and care.
It would appear that another ground on which the learned trial judge found the appellant
to be negligent was his failure to ascertain whether or not the vehicle in tow had
serviceable brakes. But, as Mr Drury again rightly submitted, that issue was neither
pleaded nor relied upon and no evidence was led to establish the condition of the braking
system on the vehicle in tow. No inference that its brakes were defective can be drawn
from the fact that the vehicle in tow came to a halt 600 to 700 metres from the point of
impact with the respondent’s vehicle. It may well be that the driver of the vehicle
Page 316 of 1991 (2) ZLR 308 (SC)
in tow was in a state of shock after crashing into two vehicles and failed to apply his
brakes.
The learned trial judge misdirected himself by placing reliance on particulars which were
neither pleaded nor relied upon to found negligence, especially as there was no evidence
regarding the condition of the braking system on the vehicle in tow. In any event to tow a
vehicle without brakes is not an offence under the Regulations. What is clear from the
evidence is that the appellant relied on his vehicle and its brakes during the towing
process, and there was no evidence in that regard that the brakes on the appellant’s
vehicle were unsuitable or inadequate. Indeed the two vehicles had travelled a not
inconsiderable distance from Ruwa to Harare by this method without anything untoward
happening, and there was no evidence to establish that such conduct was negligent or
unlawful.
It seems to me that the appellant gave an account of the accident which indicated that it
was not negligent. The appellant is not required to prove exactly how the accident
occurred. It is sufficient for it to give an explanation which is consistent with no
negligence on its part. And this it did.
In the result the appeal is allowed with costs. The judgment in the court below is set aside
and in its place is substituted the following:
“The plaintiff’s claim is dismissed with costs.”
McNally JA: I agree
Ebrahim JA: I agree
Gollop & Blank, appellant’s legal practitioners
Scanlen & Holderness, respondent’s legal practitioners
REITH v ANTAO
1991 (2) ZLR 317 (SC)
Division: Supreme Court, Harare
Judges: McNally JA, Manyarara JA & Ebrahim JA
Subject Area: Civil appeal
Date: 8 November & 5 December 1991

Husband and wife — adultery — damages — measure and quantum.

The respondent sued the appellant for damages of $10 000 for enticement and adultery.
The trial court found that the respondent’s wife had deserted him and thereafter
commenced an association with the appellant The trial court found that no enticement
had been proved. As to the issue of when adultery commenced, the trial court found on
the probabilities that adultery had occurred before the issue of the summons, and awarded
$10 000 as damages for adultery. The appellant appealed.
Held, the award was too high, in particular as the adultery was not the cause of the break-
up of the marriage.
Cases cited:
Smit v Arthur 1976 (3) SA 378 (A)
Cottham v Cottham GS-5-76 (not reported)
Hickey v Hickey & Anor GS-28-79 (not reported)
Meakin v du Plessis HH-384-83 (not reported)
Shonge v Shonge & Anor HH-414-86 (not reported)
Dzemwa v Makarati HH-85-87 (not reported)
Sidubi v Middlemiss HB-130-87 (not reported)
Gumunya v Munyanyi HB-130-89 (not reported)
Kasirowore v Muzenda HH-127-90 (not reported)
Mtungwazi v Sibanda HB-67-90 (not reported)
Ncube v Mguni HB-77-90 (not reported)
Page 318 of 1991 (2) ZLR 317 (SC)
A P de Bourbon SC for the appellant
S B A Longhurst for the respondent
McNALLY JA: In the High Court Mr Antao was awarded the sum of $10 000 against
Mr Reith by way of damages for adultery. The adultery was admitted. The factual issue
was the date of the adultery. The plaintiff, Mr Antao, claimed that Mr Reith had enticed
his wife to leave him and that they had committed adultery before she had left him. The
damages claimed were therefore based on enticement as well as adultery. The declaration
makes that very clear. The defence was that the relationship had developed only after she
had left Mr Antao and after the marriage had irretrievably broken down. The claim, I
should add was for $10 000, the sum that was in the end awarded.
The learned judge found on the evidence that there was no enticement. He found that she
had left her husband and gone to stay with Mr Reith’s brother and his wife. He found that
Mr Reith had nothing to do with that move. It was only after the move that a relationship
developed. Four months after the move she left the brother’s house and moved into Mr
Reith’s house. She and Mr Reith both denied that they lived together at that stage. She
had a separate apartment in his house. Their sexual relationship developed some months
later.
The learned judge did not believe that. He found on a balance of probabilities that the
sexual relationship began when she was still at the brother’s house. He found that this
relationship made any question of reconciliation impossible. He, therefore, granted the
divorce to Mr Antao (both had claimed a divorce) and awarded damages as aforesaid.
The finding that there was no enticement cannot seriously be challenged on the evidence.
But it seems to me, with respect, that His Lordship did not give sufficient weight to that
finding in making his award for damages.
Argument was addressed to us about the sexual mores of the community and whether or
not the action for adultery is outdated in today’s society. I do not propose to make a
definitive ruling on the subject, save to say that the action has certainly not been
abrogated by disuse. I am not qualified to say whether adultery is committed more
frequently today than it was ten or twenty or fifty years ago. One can say that society is
more tolerant of, and less shocked by adultery than it was fifty years ago. But whether
that level of tolerance is greater than it was say in the 60s and 70s is a matter of opinion. I
note Boberg’s remark (The Law of Persons and The Family at p 184, note 15) that
“contemporary awards tend to be relatively small”.
Page 319 of 1991 (2) ZLR 317 (SC)
What is to my mind absolutely clear is that the courts have always in the last thirty years
drawn a very sharp distinction between adultery which breaks up a happy and stable
marriage on the one hand, and adultery which ensues after an unhappy and unstable
marriage has broken down in all but name, on the other.
All the evidence in this case indicates that the adultery in this case falls into the latter
category. Mrs Antao (as she then was) was married on 21 March 1981. She left her
husband and started divorce proceedings on 25 February 1982. There was a
reconciliation. She instituted proceedings again in 1984. There was another
reconciliation. The daughter Sara was born in October 1985. She left him again in April
1986. Clearly therefore the marriage was highly unstable and deeply unhappy. I know
that Mr Antao denies that, but the facts are against him.
It is true, as the learned judge said, that it was the relationship with Mr Reith which then
made a further reconciliation impossible. But, as Mr de Bourbon so tellingly submitted,
that relationship did not end the marriage relationship. It simply put an end to the
possibility that it might re-start. And one must point out that that possibility was
increasingly remote. Each break-up made reconciliation more unlikely. One cannot
divide human relationships into separate and watertight compartments. The fact is, on the
evidence, that the marriage had all but broken down when Mr Reith came upon the scene.
Some point was made of the facts that the summons claiming, inter alia, damages for
adultery, was issued on 6 January 1987. If adultery was committed only after that date, no
damages were payable.
The learned judge found that adultery began in the period May 1986 to September 1986. I
see no reason on the evidence to quarrel with that finding. But even if it only occurred
when she moved in to Mr Reith’s house in September 1986 I am satisfied that it began
before the issue of summons. (Compare the approach of the court in Smit v Arthur 1976
(3) SA (A) at 384-6.) Damages are therefore payable.
As to quantum, a number of cases were cited. Cottham v Cottham & Anor GB-5-76;
Hickey v Hickey & Anor GS-28-79; Meakin v du Plessis HH-384-83; Shonge v Shonge
& Anor HH-414-86; Dzemwa v Makarati HH-85-87; Sidubi v Middlemiss HB-130-87;
Gumunya v Mungani HB-130-89; Kasirowore v Muzenda HH-127-90; Mtungwazi v
Sibanda HB-67-90; Ncube v Mguni HB-77-90. It was argued whether the value of
chastity is
Page 320 of 1991 (2) ZLR 317 (SC)
depreciating faster or slower than the value of money. I am not prepared to say that an
award of $10 000 could never be made in today’s circumstances. But I am satisfied that
the learned trial judge misdirected himself in awarding the full amount claimed when the
major element on which the claim was based, namely, enticement, was specifically
dismissed, and loss of consortium on the evidence was a negligible factor.
In my view no more than $700 should have been awarded.
Accordingly the appeal is allowed with costs and the order of the High Court is amended
by the substitution of the figure of $700 for the figure of $10 000.
Manyarara JA: I agree
Ebrahim JA: I agree
Winterton, Holmes & Hill, appellant’s legal practitioners
Ben Baron & Partners, respondent’s legal practitioners
ATTORNEY-GENERAL v MZIZI
1991 (2) ZLR 321 (SC)
Division: Supreme Court, Harare
Judges: Gubbay CJ, McNally JA & Manyarara JA
Subject Area: Criminal appeal
Date: 18 November & 5 December 1991

Appeal — against discharge of accused at close of State case — leave of judge of

Supreme Court required.
Criminal procedure — application for discharge of accused at close of State case — test
applicable — how credibility of prosecution witnesses to be treated — competent
verdicts —not competent to acquit on main charge and proceed on lesser charge revealed
by evidence — proper procedure in such cases is to remit the matter for continuation of
trial.
Criminal Procedure and Evidence Act [Chapter 59] — s 188 (3) — application for
discharge at close of State case — section not operative where there is evidence upon
which accused might be convicted of lesser offence — amendment to subs (3a) — effect
is to allow appeals against decision granting discharge at close of State case — subs (3b)
(b) allows remittal for continuation of trial or for a trial de novo.
Evidence — credibility of prosecution witnesses —how to be measured in application for
discharge — test applicable.
Legislation — Criminal Procedure and Evidence Act [Chapter 59] s 188(2b)(b)(i); s 188
(3); 188 (3a); s 199.
Where the trial magistrate had acquitted the accused consequent upon an application for
discharge at the close of the State case, appellant had appealed under the amendment to s
188(3a) of the Criminal Procedure and Evidence Act [Chapter 59]. The court found that
as there was evidence of a lesser offence upon which the accused might have been
convicted, the
Page 322 of 1991 (2) ZLR 321 (SC)
decision to acquit had not been competent and remitted the matter for continuation of the
trial in terms of s 188 (3b)(b)(i).
Decisions made under the unamended section had been rendered irrelevant by the
amendment.
Cases cited:
R v Herholdt & Ors (3) 1956 (2) SA 722 (W)
S v Mpetha & Ors 1983 (4) SA 2162 (C)
R v Dzingayi & Ors 1965 RLR 171 (G)
Attorney-General v Bvuma & Anor 1987 (2) ZLR 96 (SC)
J Zindi for the appellant
D P Carter for the respondent
McNALLY JA: The appellant appeals, with the leave of this court granted in terms of
subs (3a) of s 188 of the Criminal Procedure and Evidence Act [Chapter 59], against the
decision of the Regional Magistrate for the Western Division, Bulawayo, to discharge the
respondent at the close of the State case in terms of s 188(3).
The charge was one of assault with intent to rape and rape. The magistrate found that the
complainant was unreliable and deliberately untruthful, and that her aunt, who gave
corroborating evidence, was, “to say the least, a pathetic and shameless liar”.
The defence had been a defence of consent. It was common cause that the parties had
previously been in love and had had a sexual relationship. The State case was that the
complainant had terminated that relationship in August 1990 and had then been assaulted
and raped in November 1990.
Subsection (3) of s 188 reads as follows:
“If at the close of the case for the prosecution the court considers that there is no evidence
that the accused committed the offence charged in the indictment, summons or charge, or
any other offence of which he might be convicted thereon, it may return a verdict of not
guilty.”
The new subs (3a), introduced by Act 24 of 1989, provides:
“If the Attorney-General is dissatisfied with a decision in terms of subsection (3) he may,
with the leave of a Judge of the Supreme Court, appeal against such decision to the
Supreme Court.”
Page 323 of 1991 (2) ZLR 321 (SC)
In terms of the proviso to that subsection legal aid was granted to the respondent, and the
court is grateful to Mr Carter for his assistance.
The test that is applied is whether the evidence presented by the prosecution “is such that
a reasonable man, acting carefully, might properly convict”. (Per Bekker J in R v
Herholdt & Ors (3) 1956 (2) SA 722 (W).)
This is a question of law. Credibility is obviously a relevant consideration, but the
credibility of the prosecution witnesses must be measured against the same yardstick. The
court must be satisfied that no reasonable man, acting carefully, might properly convict
on such evidence. Compare S v Mpetha & Ors 1983 (4) SA 262 (C) at 265 E-F; and Lord
Parker’s Practice Note reported in [1962] 1 All ER 448.
It is unnecessary for us to decide whether, on the facts, the magistrate erred in his
assessment of the credibility of the prosecution witnesses. And since we propose to remit
the matter on another ground it may be undesirable that we should comment on this
aspect.
The respondent frankly admitted that he assaulted the complainant. A conviction for
assault is competent on a charge of rape or of assault with intent to commit rape — see s
199 of the Criminal Procedure and Evidence Act. Indeed the magistrate conceded that he
had overlooked this point.
Mr Carter submitted that we should not follow R v Dzingayi & Ors 1965 RLR 171,
which is clear authority for the proposition that, where there is evidence upon which the
accused might be convicted of a lesser offence, the section is not operative. It is not
competent for the court to acquit the accused on the main charge and direct that the trial
proceed on the lesser charge. It is all or nothing.
Mr Carter referred us to the case of Attorney-General v Bvuma 1987 (2) ZLR 96. That
case, however, was based on a different section of a different Act. Insofar as the
judgment refers to s 188 of Chapter 59, it refers to the unamended section, and is no
longer relevant. Indeed it seems likely that the section was amended because of the
decision in Bvuma’s case supra. Subsection (3b) now specifically provides for remittal of
the case for continuation of the trial.
I can see no reason for departing from the decision in Dzingayi supra. It has stood
unchallenged in our law reports for 26 years. Moreover, it gives a meaning to the clear
words of the section “or any other offence of which he might be convicted thereon”. The
section therefore permits a discharge at the
Page 324 of 1991 (2) ZLR 321 (SC)
end of the State case when, and only when, there is no evidence on which a reasonable
man, acting carefully, might properly convict either on the main charge or on any
alternative or competent charge.
In this case the conditions for a discharge were not fulfilled. There was evidence upon
which a court might have convicted the accused of a lesser offence and such conviction
would have been a competent verdict. The decision to acquit at that stage was therefore
as a matter of law incompetent.
In the circumstances the appeal succeeds. I see no reason to follow any course other than
that provided for in subs (3b)(b)(i). I set aside the magistrate’s verdict and remit the case
for continuation of the trial. I make it clear that the magistrate is entirely free, within the
limits of judicial discretion, and at the completion of all the evidence, to acquit or convict
the respondent of the main offence charged or to enter a verdict of guilty or not guilty in
relation to any of the lesser offences specified in s 199 of the Criminal Procedure and
Evidence Act [Chapter 59]. In short, he should continue with the trial as if the question of
discharge had never arisen.
Gubbay CJ: I agree.
Manyarara JA: I agree.
Pro Deo
S v ADOLFO
1991 (2) ZLR 325 (HC)
Division: High Court, Harare
Judges: Smith J
Subject Area: Criminal trial
Date: 5, 6 & 12 December 1991

Evidence — tape recordings — one side of conversation only audible — evidential value
may be weakened but still admissible.
Criminal procedure (sentence) — evidence relating to mitigation — rules of admissibility
relaxed — defective tape recording — intended to be used by the State — only fair that
accused should be allowed to make use of it.
Criminal law — bribery — very serious offence —offence aggravated if bribe is offered
to a magistrate —sentence must however depend on the circumstances — accused not
initiator of bribe — gravity of offence reduced.
The fact that only one side of a tape-recorded conversation is capable of being
reproduced may weaken the evidential value of the tape or transcript because it is not
possible to get a complete picture of the full conversation but the cogency and weight to
be attached to the transcript must be decided by the court. The tape recording itself must
be admissible.
The decision whether to admit such a defective tape recording was reinforced by the fact
that it related solely to mitigation and when a court considers submissions in mitigation
the rules of admissibility of evidence are relaxed. The fact that the recording machine
was set up by the State with the intention of obtaining a tape recording of the
conversation between the accused and the other party to the conversation, for the purpose
of prosecuting the accused, was also relevant.
The offence of bribery is very serious and where a bribe is offered to a
Page 326 of 1991 (2) ZLR 325 (HC)
magistrate, the offence is aggravated. The sentence to be imposed, however, must depend
on the circumstances and where an accused person was not the initiator of the bribe, the
gravity of the offence is reduced.
Cases cited:
S v Ramgobin & Ors 1986 (4) SA 117 (N)
S v Baleka & Ors 1986 (1) (4) SA 192 (T)
S v Magqabudi & Anor 1983 (4) SA 54 (TSC)
S v Paweni & Anor 1985 (2) ZLR 113 (SC)
S v Narker & Anor 1975 (1) SA 583 (A)
S v van der Westhuizen 1974 (4) SA 61 (C)
S v Govere & Ors S-125-85 (not reported)
S v Kuntz S-180-82 (not reported)
J Shava for the State
J B Colegrave for the accused
SMITH J: The accused pleaded guilty to a charge of bribery. He offered $5 000 to a
regional magistrate as an inducement to the magistrate to sentence a Mr Krebbs, whom
he had convicted of contravening a provision of the Gold Trade Act [Chapter 164], to a
fine and not to a term of imprisonment. The accused was convicted in accordance with
his plea. The circumstances in which the bribe was offered are important in order to
appreciate the moral blameworthiness of the accused. There are certain facts which are
not in dispute between the State and the accused. They are as follows. The accused comes
from a large family, he has seven sisters and five brothers. It is a close-knit family, all are
staunch members of the Roman Catholic faith and are regular church-goers. They are
highly respected in the community in which they live. The accused is 31 years old and is
a teacher at a primary school in Bindura. He is dedicated to his profession, being
prepared to teach in rural areas. He established a football club in Sunningdale, the suburb
in which his family lived, to give youths some activity to keep them out of mischief, and
was associated with the club for five years. Krebbs married the accused’s sister last year.
He was convicted on Friday 8 March. On Sunday 10 March the accused came to Harare
from Bindura, where he was staying. Members of his family were discussing Krebbs’
conviction. Krebbs was very concerned that if he were sentenced to imprisonment he
would be deported. During the family discussions the accused mentioned through a
mutual friend that he had met the magistrate who had convicted Krebbs and regarded him
as a friend. Krebbs then asked the accused to talk to the magistrate and ask him to be
lenient with Krebbs and sentence him to a fine rather than to imprisonment.
Page 327 of 1991 (2) ZLR 325 (HC)
The accused was reluctant to do so but eventually Krebbs persuaded him to talk to the
magistrate. The accused then drove to the house in Sunningdale where the magistrate
used to live and spoke to the magistrate’s sister who gave the accused her brother’s
telephone number. The accused returned to his sister’s house and spoke to the magistrate
on the telephone. The accused telephoned the magistrate again the next day, Monday 11
March, at about 7 am and asked if he could visit the magistrate and talk to him. The
magistrate agreed that the accused could visit him at his office in the Harare Magistrate’s
Court at 11 am. The visit took place, lasting about half an hour. The accused returned to
the magistrate’s office in the afternoon and asked him if $5 000 was sufficient. The
magistrate agreed that it was. The accused said that he would be in Harare on the
afternoon of Thursday 14 March and could hand the money over then. On the Thursday
the accused came into Harare at lunch time and went to his sister’s house where he saw
Krebbs. At about 3 pm they drove into town and the accused went to the magistrate’s
office and told the magistrate that he had money but not on him because he was afraid
that he would be searched when he entered the building and if a large amount of money
was found on him suspicions would be aroused. He asked the magistrate if he would go
outside with him and then the money could be handed over. The magistrate refused so the
accused went out to his car, collected the money from Krebbs and went back to the
magistrate’s office. It was while he was counting the money, or just about to do so, that
the police officer entered the office and arrested the accused. The accused then
apologised to the magistrate, saying “I’m sorry about this”.
The disputes between the State and the accused centre around what was said by the
accused and the magistrate during their telephone conversations and meetings. With
regard to the first telephone conversation on the Sunday afternoon, the accused said that
he had asked the magistrate if he could do him a favour and be lenient with Krebbs and
the magistrate had said he would look into it. Then the conversation ended. However the
magistrate said that he had told the accused that if he wanted to speak about Krebbs’ case
he should leave things alone and not get involved. When the accused insisted that he
wanted to meet him, he had put the phone down. The accused denied that the magistrate
had advised him not to get involved. He said that if the magistrate had said that, he would
not have made any further attempt to contact him. In fact he would not have contacted the
magistrate again, because he felt he had done enough, had it not been for Krebbs. With
regard to the second telephone conversation on the Monday morning, the accused said
that he asked the magistrate if he could see him and the magistrate agreed. He did not
insist, as the magistrate claimed. In fact, if the magistrate had refused to see him he
Page 328 of 1991 (2) ZLR 325 (HC)
would have taken the matter no further.
With regard to the conversation in the magistrate’s office on the Monday morning, the
accused said that his intention was to ask the magistrate if he could do him a favour and
be lenient with Krebbs. He had no intention of offering the magistrate a bribe. He himself
had no money to do so and he did not know whether Krebbs had because they had not
discussed any such thing. The accused said that it was only during the course of
conversation that he realised that the magistrate was actually soliciting for a reward in
return for his favour. As he had not discussed the matter with Krebbs, he could not pursue
that aspect and so he had had to return to Krebbs to see whether Krebbs was prepared to
offer any money, and if so, how much. The magistrate, on the other hand, said that fairly
soon after the accused entered his office the accused made a vague offer that “something
would be done for him” and he spent the rest of the interview trying to get some clarity as
to exactly what was being offered to him.
The magistrate when he went to his office on the Monday morning after agreeing to meet
the accused at 11 am, had discussed the matter with his colleagues and the then Chief
Magistrate and with some police officers. A tape recorder was fitted up so that the
conversation between him and the accused could be recorded. Unfortunately the machine
provided was not powerful enough to pick up the accused’s words sufficiently clearly so
that they could be transcribed. Accordingly the transcription of the tapes gives only what
the magistrate said. Mr Colegrave applied to have the transcript admitted in evidence.
Miss Shava objected on the grounds that it did not give a true picture of what had taken
place as it did not show what the accused had said. She relied on S v Ramgobin & Ors
1986 (4) SA 117 (N) and S v Baleka & Ors (1) 1986 (4) SA 192 (T). In the former case
Milne JP at 135C-D said:
“In the result, for these recordings to be admissible, it must be proved that the exhibits
sought to be put in (a) are the original records and (b) that, on the evidence as a whole,
there exists no reasonable possibility of ‘some interference’.”
In this case the exhibits are the original recordings and there is no possibility of some
interference. In Baleka’s case supra van Dijkhorst J at 145C said that South African and
English courts have admitted evidence of tape recordings even where the recordings were
imperfect, parts were inaudible and the whole was not decipherable. At 195H-I he said:
Page 329 of 1991 (2) ZLR 325 (HC)
“When a tape has been tampered with in the sense that certain words have been erased or
certain portions inserted, the remainder of the tape is still original. The interference may
have the result of diminishing or destroying its evidential value, but that does not mean
that it is inadmissible.”
It seems to me that the same principle would apply in this case. The tape recorder was
unable to pick up clearly what the accused said but virtually everything the magistrate
said was clearly audible. The fact that only one side of the conversation is capable of
being reproduced may weaken the evidential value of the tape or transcript because it is
not possible to get a complete picture of the full conversation but the cogency and weight
to be attached to the transcript must be decided by the court. The tape recording itself
must be admissible. My decision to admit the transcript is reinforced by two further
considerations. Firstly, the defence wishes to produce the transcript for the purposes of
submissions in relation to mitigation. The accused has already been convicted. When a
court considers submissions in mitigation the rules of admissibility of evidence are
relaxed. Hearsay evidence may be allowed — see for example S v Magqabudi & Anor
1983 (4) SA 54 (TSC). Secondly, the recording machine was set up by the State with the
intention of obtaining a tape recording of the conversation between the accused and the
magistrate for the purpose of prosecuting the accused. The tape has been in the
possession of the State all the time and it is the defence counsel who wishes the tape to be
produced in evidence. It seems to me that the State should not be able to prevent the
production of the tape recording in the circumstances.
Mr Colegrave has wisely conceded that bribery is a very serious offence and that where
the bribe is offered to a judicial officer the offence is aggravated. In S v Paweni & Anor
1985 (2) ZLR 133 (SC) at 140G Beck JA said:
“Bribery of public officials is a most serious evil in any society, and is particularly to be
guarded against in a developing country.”
He referred with approval to the view expressed by Holmes JA in S v Narker & Anor
1975 (1) SA 583 (A) at 586A that bribery “is a corrupt and ugly offence striking
cancerously at the roots of justice and integrity, and it is calculated to deprive society of a
fair administration. In general, courts view it with abhorrence”. In S v van der
Westhuizen 1974 (4) SA 61 (C) at 65G Baker J said:
“In many cases of bribery of officials in the past even first offenders have been sent to
gaol for their offence, without the option of a fine.”
Page 330 of 1991 (2) ZLR 325 (HC)
The sentence to be imposed in a case of bribery depends, of course, on the circumstances
of the case. In some cases, it is the official who accepts the bribe whose conduct is the
more blameworthy whereas in others it is the conduct of the person offering the bribe.
That is clearly illustrated in S v Govere & Ors S-125-85 (not reported). The four
appellants in that case were officials who had been bribed by Paweni, the appellant in
Paweni’s case supra. At p 4 of the cyclostyled judgment (S-74-85) Beck JA said:
“I consider that Paweni’s bribery of the appellants is very much more serious and morally
objectionable than the behaviour of any one of the appellants in accepting the corrupt
offers made by Paweni.”
In S v Kuntz S-180-82 (not reported) the appellant had been convicted of bribery and
sentenced to 12 months’ imprisonment. He had offered a bribe of R1000 to be paid in
South Africa to a captain in the Zimbabwe National Army to induce the latter to persuade
the Army to purchase fire engines from his company. The Supreme Court considered that
the magistrate’s finding that the Army captain did not solicit the bribe could not be
supported and that there was the very real possibility, if not the probability, that it was the
Army captain who prompted the appellant into making the offer that was made. Beck JA
at p 5-6 of the cyclostyled judgment said:
“The likelihood that De Villiers solicited the bribe that the appellant, as the magistrate
correctly found, seriously and deliberately offered him is no defence to the charge of
bribery, which offence is complete when the corrupt consideration is intentionally
offered, or agreed to. It does however have a material bearing on the matter of sentence.
...
I think it is obvious that, where corruption already exists in the breast of a public official,
and is used by him to exert pressure on others to pander to it so as to obtain the advantage
of that official’s favour (or perhaps to avoid the disadvantage of his unfair disfavour) the
moral culpability of the person who succumbs to such an overture is significantly less
than that of one who on his own initiative seeks to corrupt a yet uncorrupted official.”
In the present case there is of course no suggestion that corruption already existed in the
breast of the magistrate. He was clearly incensed at the suggestion that he would be
influenced by any consideration or bribe.
The magistrate, although he could not remember the actual words he used, was certain
that when the accused telephoned him on the Sunday afternoon
Page 331 of 1991 (2) ZLR 325 (HC)
he had told him not to get involved. The accused disputed this. From the evidence given
about the accused’s nature and from observing him in court I am sure that if the
magistrate had been blunt and told the accused that he was skating on thin ice and should
not get involved, the accused would not have attempted to make further contact. There is
no reason not to believe the accused when he says that Krebbs pressurized him to make
further contact and attempt to see the magistrate. The magistrate himself agreed that the
accused was acting under pressure from another, obviously Krebbs. When the accused
telephoned the magistrate again on the Monday morning the magistrate told him that he
could see him at 11 am. If therefore the accused had not gained the impression from the
telephone conversation on the Sunday evening that the magistrate was not interested, and
indeed was hostile to any suggestion of interference, the magistrate admits that the
accused would not have gained such an impression from the telephone conversation on
the Monday morning. Quite the contrary in fact. The fact that the magistrate agreed to see
him at 11 am would have led the accused to believe that he could persuade the magistrate
to act leniently. At least the magistrate was prepared to see him and listen to him. The
magistrate said that the accused had been insistent that he wanted to see the magistrate
and that was why he, the magistrate, agreed to the meeting. The accused denied that he
had been insistent. Again, having regard to the accused’s manner in court, it is difficult to
believe that he would have persisted had it been made clear that he was not welcome. It
could well be that the magistrate was annoyed at the second telephone call and that in his
annoyance he read more into the accused’s call than the accused intended. With regard to
the meeting at 11 am on the Monday, the magistrate said that the accused had said that
something would be done for him, that is some consideration would be given to him. The
accused, on the other hand, said that he had not said so and in fact had not even
considered offering any consideration. The magistrate’s impression of what was said to
him was obviously coloured by the fact that he believed that the accused was coming to
offer him a bribe. Had he not thought that, he would not have had the prior discussions
with his colleagues and the police and set up the recording machine. I feel sure that if the
accused had intended, when he went to the meeting, to offer a bribe he would have made
a specific offer before he left. The magistrate made it clear that he would be risking a lot,
putting himself on the line, as he expressed it, and wanted to know how far they were
prepared to go. Even with such encouragement and enticing from the magistrate the
accused could not make a definite offer. He had to consult Krebbs. It seems to me that the
moral blameworthiness of the accused in this case must be equated with that of the
appellant in Kuntz’s case supra although in that case the court found that the Army
captain had probably solicited the
Page 332 of 1991 (2) ZLR 325 (HC)
bribe whereas in this case the magistrate was enticing the accused in order to trap him
into making a specific offer. In Kuntz’s case supra at p 6 of the cyclostyled judgment,
Beck JA said:
“It is no easy matter to decide on an appropriate sentence in this case. Corruption of the
kind under consideration is so serious that I do not think that a fine, even though it must
be a substantial fine, would by itself reflect the inherent gravity of the offence. Bearing in
mind, however, the very important consideration that the appellant was probably not the
initiator of the bribe, and having regard to the seriously damaging consequences that his
offence has brought upon him, I am of the view that a sentence of imprisonment, in
addition to an appropriate fine, may justly be suspended.”
Similar considerations, I feel, apply in this case. The aggravating feature is that the
official to whom the bribe was offered was a regional magistrate. On the other hand, the
accused himself had nothing to gain from the transaction. He was not the initiator of the
bribe, Krebbs was. He was not trying to further his own interests or that of his employer.
He was trying to help Krebbs and Krebbs’ wife, his sister. He was subjected to a lot of
pressure from Krebbs. He has been suspended from his employment for nine months and
may well be discharged. He will have to leave the profession for which he is trained and
which he loves.
The accused is sentenced to a fine of $2 000 or, in default of payment, six months’
imprisonment and to six months’ imprisonment suspended for five years on condition
that he is not convicted of having committed, during that period, any offence involving
bribery or a contravention of the Prevention of Corruption Act, 1985, for which he is
sentenced to imprisonment without the option of a fine.
The $5 000 offered as a bribe is forfeited to the State.
Stumbles & Rowe, accused’s legal practitioners
CLAN TRANSPORT CO (PVT) LTD v MHISHI
1991 (2) ZLR 333 (SC)
Division: Supreme Court, Harare
Judges: Gubbay CJ, Korsah JA & Ebrahim JA
Subject Area: Civil appeal
Date: 31 October & 12 December 1991

Contract — common carrier — definition of — status not affected by restriction on

liability — carriage of goods by land — “owner’s risk” clause in contract for — may not
place upon consignor onus of proving how goods lost or damages.
Anyone who undertakes to carry the goods of all persons indifferently, for hire, is a
common carrier whether or not he restricts his liability for the goods transported.
The common law rule which places upon a carrier of goods by land the onus of proving
the basis for release from liability for loss of, or damage to, goods in his custody is a rule
of evidence and may not be altered by contract. Accordingly, while an “owner’s risk”
clause in a contract for the carriage of goods by land may limit the liability of the carrier,
it may not place a consignor whose goods are lost or damaged in transit the onus of
proving how such loss or damage occurred.
Cases cited:
Cotton Marketing Board of Zimbabwe v National Railways of Zimbabwe 1988 (1) ZLR
304 (SC); 1990 (1) SA 582 (ZS)
Burger v Central South African Railways 1903 TS 571
Pohoomull Bros v Rhodesian Railways 1921 SR 88
Canada Steamship Lines Ltd v Regem [1952] AC 192; [1952] 1 All ER 305 (PC)
Transport and Crane Hire (Pvt) Ltd v Hubert Davies & Co (Pvt) Ltd 1991 (1) ZLR 190
(SC); 1991 (4) SA 150 (ZS)
Page 334 of 1991 (2) ZLR 333 (SC)
Bickle v Ministers of Law and Order 1980 ZLR 36 (G); 1980 (2) SA 764 (R)
A J Dyke for the appellant
Mrs B Mtetwa for the respondent.
KORSAH JA: On 11 January 1988 the respondent entered into an agreement with the
appellant, a limited liability company, incorporated in accordance with the laws of
Zimbabwe and carrying on business as transporters, to convey certain building materials,
hereinafter referred to as “the materials”, from Gweru to No. 3 Stonechat Lane at
Borrowdale in Harare.
The materials were in an undamaged state when they were handed over to the appellant at
Gweru, but were delivered at the specified address in Harare in a damaged condition and
as a result were unfit for use. The respondent alleged that such damage was occasioned to
the materials through the negligence of the appellant and claimed and was awarded
damages of $1 331,73 for the loss of the materials.
Two other subsidiary claims for damages by the respondent against the appellant in
respect of other matters were decided in favour of the respondent, but as they are not the
subject of appeal they need not detain us. The appeal is in respect of only those materials
consigned to the appellant for carriage from Gweru to Harare.
The first issue which calls for attention is that the appellant’s consignment notes all have
printed on them in extremely small writing that:
“The company is not a COMMON CARRIER and does not accept the liabilities of a
COMMON CARRIER.”
The explanation proffered for this assertion was that a common carrier is one who carries
everything and has few, if any, conditions of carriage, but although the appellant carries
everything, it will only carry certain things at owner’s risk.
This is a lame excuse for saying that the appellant is not a common carrier. The question
whether a person is a common carrier or not is one of fact. A man may be a common
carrier without so styling himself. Anyone who undertakes to carry the goods of all
persons indifferently, for hire, is a common carrier. It is of no consequence that that
carrier restricts his liability for the goods transported; that does not make him any the less
a common carrier. Cotton Marketing Board of Zimbabwe v National Railways of
Zimbabwe 1988 (1) ZLR 304 (SC).
Page 335 of 1991 (2) ZLR 333 (SC)
Clause 8 of the appellant’s “Conditions of Carriage” recites that:
“8. (i) The loading, unloading and transportation by the Carriers of the classes of
merchandise described hereunder shall be undertaken only at owner’s risk; save where
the Carriers, or any of them, specifically declare otherwise in respect of any particular
class or classes of merchandise —
(a) ...
(b) goods which are not packed or merchandise contained or wrapped in paper or
similar material or goods which, in the opinion of the Carriers, are not securely packed or
are not sufficiently protected to ensure safe delivery or which appear to be damaged or
defective.”
It was common cause that the respondent’s materials were delivered in an unpacked state.
The appellant contended that the materials fell within the description of goods
contemplated by s 8(i)(b) of the “Conditions of Carriage” and were, therefore, conveyed
at “owner’s risk”. The respondent, on the other hand, maintained that whenever he had
been obliged to employ the services of the appellant in conveying goods from one place
to another, and the appellant intended to carry the goods at owner’s risk, the appellant
had signified its intention so to do by stamping “OWNER’S RISK” on the consignment
note, and thus brought to the attention of the consignor that the goods were being so
carried. On this occasion, as the appellant omitted to stamp “OWNER’S RISK” on the
consignment note for the materials, so the respondent argued, the materials were not
being carried at owner’s risk.
The reason for this dispute as to whether or not the materials were carried at owner’s risk
is that in the definitions section of the “Conditions of Carriage”:
“‘Owner’s risk’ means that the transportation of the goods is undertaken by the Carriers
on the special condition that the Carrier shall not be liable for damage, shortage, or delay
except upon proof by the consignor that such damage, shortage or delay arose as a direct
consequence of the wilful misconduct or gross negligence of the Carrier’s servants,
agents or sub-contractors.”
It was common cause that the respondent signed the appellant’s consignment note,
requesting the appellant to “receive and transport subject to your conditions of carriage”.
The respondent admitted that at the time of signature he was aware that the note referred
to conditions of carriage. The respondent must, therefore, have known that he was putting
his signature to a contractual
Page 336 of 1991 (2) ZLR 333 (SC)
document binding himself in terms of the conditions referred thereto, and those
conditions formed an integral part of the document he signed, whether or not he took the
trouble to ascertain the exact nature of the terms and conditions he was assenting to.
Burger v Central South African Railways 1903 TS 571. Consequently, the respondent
was bound by Clause 8(i)(b) of the Conditions of Carriage.
In Cotton Marketing Board of Zimbabwe v National Railways of Zimbabwe, supra, it
was held that the Praetor’s Edict de nautis, cauponibus et stabulariis applied equally to
common carriers by land. Dumbutshena CJ expressed himself at p 315D and F of the
report thus:
“I cannot see any good reason why the strict liability imposed by the Edict on public
carriers by water should not be extended to public carriers by land. The principle is the
same: the carrier is liable for loss of the goods (or injury to the goods) because he does
not deliver them in an undamaged condition or at all.”
A salutary effect of the strict liability for damages to, or loss of, the goods which the
Edict imposes on common carriers is that it places the onus on the carrier to prove that:
“the loss was due to vis major or to damnum fatale, to inherent vice in the goods or to the
negligence of the owner of the goods.”
(See Pohoomull Brothers v Rhodesia Railways 1921 SR 88.)
There is no onus on the consignor of goods who brings an action for damages against the
carrier to prove how the goods were damaged, lost or destroyed. After all, he would not
be present during the course of the journey and it would be placing an intolerable burden
on him to require of him proof of what he cannot possibly know. All he can do is to
establish that he handed over the goods in an undamaged condition and that they were
damaged when he received them back.
Generally speaking, carriers by land may exempt themselves from the strict liability
imposed by the common law or limit such liability. See Cotton Marketing Board of
Zimbabwe case supra at 315H-316A. And if the exemption or exclusionary clause
contains language which expressly exempts the person in whose favour it is made from
the consequences of negligence of his own servants, effect must be given to the
provision. See Canada Steamship Lines
Page 337 of 1991 (2) ZLR 333 (SC)
Ltd v Regem [1952] AC 192 at 208, [1952] 1 All ER 305 (PC) at 310A (quoted with
approval in Transport and Crane Hire (Pvt) Ltd v Hubert Davies & Co (Pvt) Ltd 1991 (1)
ZLR 190 (SC); 1991 (4) SA 150 (ZS).
As the definition of “owner’s risk” specifically exempts the appellant from certain types
of negligence, effect must be given to that exemption or exclusionary clause, but only
after ascertaining its meaning, like any other clause in a contract, having regard to the
nature and purpose of the contract, and the context within which the words were used.
To begin with, to the extent that the exclusionary clause attempts to shift the onus of
proving negligence onto the consignee it is bad in law. The rules of evidence are based on
considerations of fairness and experience. It is the court that determines the party upon
whom the burden of proof lies. The parties cannot by their contract deprive the court of
this responsibility. They may contract out of liability for negligence, but not out the rules
of evidence by which negligence may be established.
The burden of proof, in the sense of the risk of non-persuasion, may be taken from the
pleader desiring action and placed upon the opponent. Common sense and experience
have dictated that the burden of proving a fact is on the party who is presumed to be
possessed of the peculiar means of knowledge enabling him to prove its falsity, if it is
false. In the instant case, the damage to the materials occurred when they were in the
possession of the appellant. The respondent was not present when such damage was
occasioned. The appellant, and the appellant alone, is the party who presumably has
peculiar means of knowledge enabling it to prove whether the damage occurred as a
direct consequence of the wilful misconduct or gross negligence of its servant, agents or
sub-contractors.
The owner’s risk clause in this case appears to exempt the appellant from all damage
except such as was caused by it as a direct consequence of “the wilful misconduct or
gross negligence”. As Beadle AJ (as he then was) rightly pointed out in Bickle v
Ministers of Law and Order 1980 ZLR 36 (G) at 40H; 1980 (2) SA 764 (R) at 770B-C,
the words “gross negligence” “must be construed in the context in which they are used
because the words may have different meanings in different contexts”. Used in
juxtaposition to “wilful misconduct”, “gross negligence” must be construed as something
other than wilful. As the learned judge said: “They must mean precisely what they say,
ordinary negligence of an aggravated form which falls short of wilfulness”. This was the
extent to which the appellant bound itself for the negligence of its servants, agents and
sub-contractors.
Page 338 of 1991 (2) ZLR 333 (SC)
As already stated, the cause of the damage to the materials was something which was
peculiarly within the knowledge of the appellant. The onus was thus on the appellant to
establish that such damage as was occasioned to the materials, while they were in its
custody, occurred without wilful misconduct or gross negligence on its part. However,
because the appellant thought the respondent bore the burden of proving its negligence,
the appellant made no attempt to discharge this burden. It cannot be over-emphasised that
the apportionment of the risk of non-persuasion is a duty bestowed upon a court by both
common sense and law, and that duty the parties cannot, by their contract, take away
from the court.
In the result, the appeal is dismissed with costs.
Gubbay CJ: I agree
Ebrahim JA: I agree
Coghlan, Welsh & Guest, appellant’s legal practitioners
Kantor & Immerman, respondent’s legal practitioners
In re MLAMBO
1991 (2) ZLR 339 (SC)
Division: Supreme Court, Harare
Judges: Gubbay CJ, McNally JA, Manyarara JA, Korsah JA & Ebrahim JA
Subject Area: Referral pursuant to the Constitution
Date: 26 November & 12 December 1991

Constitutional law — right to a fair hearing within a reasonable time — purpose

underlying Constitutional guarantee — interpretation of s 18(2) of the Constitution —
factors to be considered — onus — assessment of reasonableness — remedy — costs
follow the event.
Criminal procedure — calculation of reasonable period — runs from moment accused is
charged — State cannot resort to expedient of withdrawing charge before plea to defeat
Constitutional guarantee.
Applicant was arrested on 3 October 1986 on allegations of theft. After two weeks in
custody he was admitted to bail. On 15 January 1987 he was formally charged with theft.
Thereafter he was remanded on no fewer than twelve occasions until 28 August 1987
when the charges were withdrawn before plea. Three years later he was summoned to
appear on the same charges. He applied in terms of s 24(2) of the Constitution for a
referral to the Supreme Court on the grounds that there had been an infringement of his
constitutional rights to a fair hearing within a reasonable period. The matter having been
so referred:
Held, that if an accused person complains that there has been an infringement of his right
to a fair hearing within a reasonable time, he may properly raise the issue with the lower
court before reference to the Supreme Court.
Held, further, that the object of s 18(2) of the Constitution is the protection of the
individual interest in fundamental justice.
Held, further, that the withdrawal of charges before plea does not interrupt the time-frame
which commences to run from the time of arrest or first remand
Page 340 of 1991 (2) ZLR 339 (SC)
Held, further, that the factors to be considered in determination of whether the accused
has been afforded a fair hearing within a reasonable time include the reason for the delay,
the assertion of his rights by the accused person, prejudice arising from the delay and the
conduct of the prosecutor and of the accused person in regard to the delay.
Held, further, that where the entire delay is attributable to the actions of the State then,
unless there is some strong basis to counter this factor, it will not be possible to tolerate
such delay.
Held, further, that in an application of this nature it is permissible to order that the costs
incurred should follow the event.
Application accordingly granted with the Attorney-General ordered to pay the costs of
the application.
Cases cited:
S v Marutsi 1990 (2) ZLR 370 (SC)
Mandirwhe v Minister of State 1986 (1) ZLR 1 (AD); 1981 (1) SA 759 (ZAD)
Bickle & Ors v Minister of Home Affairs 1983 (2) ZLR 400 (SC)
Zinyemba v Minister of the Public Service & Anor 1989 (3) ZLR 351 (SC)
United States v MacDonald 456 US 1 (1982)
United States v Loud Hawk 474 US 302 (1986)
R v Askov (1991) 49 CRR 1 (SC Canada)
Barker v Wingo 407 US 514 (1972)
Eckle v Germany (Federal Republic) (1983) 5 EHRR 1
Foti v Italy (1983) 5 EHRR 313
United States v Marion 404 US 307 (1971)
R v Carter (1986) 21 CRR 170 (SC Canada)
Klopfer v North Carolina 386 US 213 (1967)
Perreault v R (1985) 19 CRR 101 (Ontario District Court)
Fikilini v Attorney-General 1990 (1) ZLR 105 (SC)
United States v Van Neumann 474 US 243 (1986)
Bell v Director of Public Prosecutions of Jamaica & Anor [1985] 2 All ER 585 (PC)
Jago v District Court of New South Wales & Ors (1989-90) 168 CLR 23
König v Federal Republic of Germany (1980) 21 EHRR 170
Mills v R (1986) 21 CRR 76 (SC Canada)
Rahey v R (1988) 33 CRR 275 (SC Canada)
R v Conway (1989) 40 CRR 1 (SC Canada)
S v Ruzario 1990 (1) ZLR 359 (SC)
Bull v Attorney-General & Anor 1987 (1) ZLR 36 (SC); (1988) LRC (Const) 324
Page 341 of 1991 (2) ZLR 339 (SC)
D P Carter for the applicant
J Ndlovu for the Attorney-General
GUBBAY CJ: In this matter the question which falls to be determined was referred to
this court by the presiding magistrate in terms of s 24(2) of the Constitution of
Zimbabwe, at the request of counsel for the applicant. It raises, first, the scope and
character of the right, under s 18(2) of the Declaration of Rights contained in the
Constitution, of a person charged with a criminal offence, to be afforded a fair hearing
within a reasonable time; and, second, the nature of the remedy to be provided for an
infringement of that right.
Section 18(2) reads in full:
“If any person is charged with a criminal offence, then, unless the charge is withdrawn,
the case shall be afforded a fair hearing within a reasonable time by an independent and
impartial court established by law.”
What approach should be taken to the interpretation of the provision? In my view
considerable assistance may be derived from reference to jurisdictions interpreting the
“right to a speedy and public trial” entrenched by the Sixth Amendment to the
Constitution of the United States, and “the right to be tried within a reasonable time”
guaranteed by s 11(b) of the Canadian Charter of Rights and Freedoms and by Article 6
para 1 of the European Convention for the Protection of Human Rights and Fundamental
Freedoms.
THE FACTUAL BACKGROUND
The applicant was employed by the Municipality of Harare as a stores officer. On 3
October 1986 he was arrested by the police, without warrant under s 29 of the Criminal
Procedure and Evidence Act [Chapter 59], and informed that there were reasonable
grounds to suspect him of having stolen goods from the Municipal stores between April
1984 and July 1986. Inevitably, information had been laid to that effect. He was held in
custody for two weeks before being admitted to bail on condition that he deposit an
amount of $1 000 and report his presence to the police twice per week.
On 15 January 1987 the applicant was formally charged by the police with having stolen
the goods and was invited to make a warned and cautioned statement in answer thereto.
In his written response he denied the allegations.
During the period between the date of his arrest and 23 August 1987, the applicant was
brought before a magistrate for remand on charges of theft by
Page 342 of 1991 (2) ZLR 339 (SC)
conversion, on no fewer than twelve occasions. He was then unrepresented. On the latter
date a legal practitioner was engaged to appear on the applicant’s behalf. He complained
to the magistrate at the lengthy delay in bringing the applicant to trial and made strong
representations that a date for the trial be fixed. Thereupon the prosecutor promptly
withdrew the charges, to which the applicant had not, at that stage, pleaded. It was made
clear to the applicant that by adopting that procedure the Attorney-General had not lost
the right to prosecute him at any later time, upon the same charges. His bail deposit was
refunded and the obligation to report fell away.
On 28 August 1990 the applicant was served with a summons directing him to appear in
the magistrate’s court to answer thirteen counts of fraud, in respect of property owned by
the Municipality of Harare, alleged to have been committed by him from 12 April 1984
to 11 July 1986. Although the offences were now described as “fraud”, they related to the
exact items of property which had been the subject of the theft by conversion charges.
For all practical purposes the charges were no different from those withdrawn three years
earlier. Prior to service of this summons, the applicant had received no intimation from
either the police, or the Office of the Attorney-General, that the charges were to be
resurrected. The summons set the trial down for 5 to 7 November 1990.
A different legal practitioner was instructed to defend the applicant. He wrote on several
occasions to the clerk of the criminal court requesting the provision of copies of the
documents which the State intended to produce at the trial. These were not forthcoming.
In the event, on 5 November 1990 this legal practitioner sought a postponement of the
trial. It appears that the prosecutor then mandated to conduct the trial had not been
furnished with these letters. He agreed to a postponement and undertook to make the
documents available to the defence. The applicant was remanded out of custody to 2
April 1991, which was the earliest available date at which the trial could commence.
On 2 April 1991 counsel appeared for the applicant. The presiding magistrate was asked
to exercise his inherent jurisdiction to stay the prosecution on the ground that the
applicant’s rights under s 18(2) of the Constitution had been infringed by the delay in
bringing the case to trial. In the alternative, counsel drew the magistrate’s attention to s
24(2) of the Constitution, and submitted that recourse could be had thereto as the
question he raised was neither frivolous nor vexatious. No explanation for the delay was
proffered by the prosecutor who, though declining to admit any responsibility on the part
of the State, adopted the stance that a magistrates court has no jurisdiction to stay
proceedings upon the constitutional violation contended for.
Page 343 of 1991 (2) ZLR 339 (SC)
The presiding magistrate, it would seem, was singularly unimpressed with the
submissions advanced on the applicant’s behalf. He refused to refer the question to this
court and ruled that the trial was to commence. In his opinion the alleged constitutional
infringement could only be raised after the applicant had pleaded to the charges and not
before his pleas had been taken. Put differently, that the critical stage of being “charged
with a criminal offence” is only reached once the formal charge is put and a plea
recorded. That is a construction of s 18(2) which I cannot share.
The following morning the applicant was brought to trial before another magistrate. The
thirteen counts of fraud were read and he pleaded not guilty to each of them. His counsel
again sought a stay of the prosecution. In the alternative, he requested a referral of the
question under s 24(2). The applicant was called to testify and was cross-examined with
little effect. The prosecutor advanced the same contention as she had on the previous day
and adduced no evidence in justification of the long delay in bringing the applicant to
trial. The magistrate, however, wisely acceded to the request for a referral.
THE APPLICATION
In S v Marutsi 1990 (2) ZLR 370 (SC) it was held that if an accused complains that there
has been an infringement of his right to a fair hearing within a reasonable time, he must
raise the issue with the lower court before reference may be made to the Supreme Court.
This is what the applicant did. Of course, it is also permissible for the presiding judicial
officer to refer such a question mero motu, provided the answer is material to the decision
he is being called upon to make. But if the request is made, the only basis for refusing it
is where, in the opinion of the judicial officer, the question raised is “merely frivolous or
vexatious”.
I am satisfied that the present application is properly before this court. The difficulties
adverted to in Mandirwhe v Minister of State 1986 (1) ZLR 1 (SC) at 8E-F; 1981 (1) SA
759 (ZAD) at 764H, Bickle & Ors v Minister of Home Affairs 1983 (2) ZLR 400 (SC) at
432D-F, 1984 (2) SA 439 (ZS) at 441G-H, and Zinyemba v Minister of the Public
Service & Anor 1989 (3) ZLR 351 (SC) are not attendant upon it.
THE PURPOSE UNDERLYING THIS CONSTITUTIONAL GUARANTEE
In the opinion of the Supreme Court of the United States, the speedy trial guarantee in the
Sixth Amendment to the Constitution is “designed to minimise the possibility of lengthy
incarceration prior to trial, to reduce the lesser, but
Page 344 of 1991 (2) ZLR 339 (SC)
nonetheless substantial, impairment of liberty imposed on an accused while released on
bail, and to shorten the disruption of life caused by arrest and the presence of unresolved
criminal charges”. See United States v MacDonald 456 US 1 (1982) at 8, adopted in
United States v Loud Hawk 474 US 302 (1986) at 311.
These words aptly describe the main purpose of the right to be afforded a fair hearing
within a reasonable time under s 18(2) of the Constitution of Zimbabwe, namely, to
minimise the adverse effect on the person charged flowing from the pending disposition
of a still to be determined criminal charge. The right, therefore, recognises that, with the
passage of time, subjection to a criminal charge gives rise to restrictions on liberty,
inconveniences, social stigma and pressures detrimental to the mental and physical health
of the individual. It is a truism that the time awaiting trial must be agonising for accused
persons and their immediate family. I believe that there can be no greater frustration for
an innocent charged with an offence than to be denied the opportunity of demonstrating
his lack of guilt for an unconscionable time as a result of delay in bringing him to trial.
The right recognises, also, that an unreasonable delay may well impair the ability of the
individual to present a full and fair defence to the charge.
Trials held within a reasonable time have an intrinsic value. If innocent, the accused
should be acquitted with a minimum disruption to his social and family relationships. If
guilty he should be convicted and an appropriate sentence imposed without unreasonable
delay. His interest is best served by having the charge disposed of within a reasonable
time so that he may get on with his life. A trial at some distant date in the future, when
his circumstances may have drastically altered, may work an additional hardship upon
him and adversely affect his prospects of rehabilitation.
Although s 18(2) is concerned with ensuring respect for the rights of the individual, its
enforcement, which may from time to time admittedly allow the guilty to go unpunished,
nevertheless benefits society as well. There is a collective interest in making certain that
those who commit crimes are brought to trial quickly and dealt with fairly and justly.
Speedy trials strengthen this aspect of the community interest. Important practical
advantages flow from an expeditious resolution of the charges, the nature of which can be
stated no more eloquently than in the words of Cory J in R v Askov (1991) 49 CRR 1
(Supreme Court of Canada) at 20:
Page 345 of 1991 (2) ZLR 339 (SC)
“There can be no doubt that memories fade with time. Witnesses are likely to be more
reliable testifying to events in the immediate past as opposed to events that transpired
many months or even years before the trial. Not only is there an erosion of the witnesses’
memory with the passage of time but there is bound to be an erosion of the witnesses
themselves. Witnesses are people; they are moved out of the country by their employers;
or for reasons related to family or work they move from the east coast to the west coast;
they become sick and unable to testify in court; they are involved in debilitating
accidents; they die and their testimony is forever lost. Witnesses too are concerned that
their evidence be taken as quickly as possible. Testifying is often thought to be an ordeal.
It is something that weighs on the minds of witnesses and is a source of worry and
frustration for them until they have given their testimony.
It can never be forgotten that the victims may be devastated by criminal acts. They have a
special interest and good reason to expect that criminal trials take place within a
reasonable time. From a wider point of view, it is fair to say that all crime disturbs the
community and that serious crime alarms the community. All members of the community
are thus entitled to see that the justice system works fairly, efficiently and with
reasonable dispatch. The very reasonable concern and alarm of the community which
naturally arises from acts of crime cannot be assuaged until the trial has taken place. The
trial not only resolves the guilt or innocence of the individual, but acts as a reassurance to
the community that serious crimes are investigated and that those implicated are brought
to trial and dealt with according to the law.”
See also Barker v Wingo 407 US 514 (1972) at 519-520.
This societal interest, albeit of great importance, is not the object of s 18(2); it is a
consequence of it. The prime aim is the protection of the individual interest in
fundamental justice.
THE INTERPRETATION OF SECTION 18(2)
The concept of reasonableness is one which defies exact definition. Under s 18(2),
however, as this requirement is related to the passage of time, there is the advantage of
being able to refer to precise events and stages in the proceedings.
It is apparent that a reasonable time is necessary for the State to be in a position to get the
case to trial. A varying extent of time will be needed to prepare the
Page 346 of 1991 (2) ZLR 339 (SC)
docket, depending on the complexity or otherwise of the proposed charge or charges; to
record the statements of witnesses; and to arrange for their attendance. In addition, there
are the usual systemic delays, such as a congested court calendar, the availability of court
facilities, judicial officers and prosecutors, and the considerate accommodation of the
schedules of witnesses. The list is not exhaustive. The system is not perfect and resources
are limited, and one has to accept as normal and inevitable a period of delay in respect of
these matters. But this is not to accept that the State can justify abnormal periods of
systemic delay on such grounds. The fact that it may have been the practice to tolerate
such delays in the past does not now immunise them from scrutiny under s 18(2).
The distinction between what is a reasonable period and what is not cannot be drawn too
sharply. Undoubtedly it will be difficult in some cases to decide whether the lapse of time
in affording an accused a fair hearing of his case has passed the reasonable mark or not. It
is a question of degree. All the circumstances have to be considered in making what is
essentially a value judgment. However, I believe that the experience of judicial officers
enables them to determine on which side of the line the position of a particular accused
falls.
The time frame to be considered starts to run from the moment a person is charged. The
key word is “charged”. What does it mean in the context of s 18(2)? Does the provision
envisage only the situation where the accused is called upon in court to plead to a formal
charge? To my mind, such a restrictive construction has the effect of rendering the
protection almost nugatory. It squares more with an arraignment. And, of course, it would
be susceptible to untold abuse, permitting the State to delay inordinately before bringing
a person before the trial court, happy in the knowledge that by so doing there had been no
violation of a constitutional right.
I have no hesitation in holding that the time frame is designed to relate far more to the
period prior to the commencement of the hearing or trial than to whatever period may
elapse after the accused has tendered a plea. This meaning is wholly consonant with the
rationale of s 18(2) — that the charge from which the reasonable time enquiry begins,
must correspond with the start of the impairment of the individual’s interests in the
liberty and security of his person. The concept of “security” is not restricted to physical
integrity, but includes stigmatization, loss of privacy, anxiety, disruption of family, social
life and work.
Page 347 of 1991 (2) ZLR 339 (SC)
I may say that this view accords with the interpretation given to the materially similar
wording of Article 6 para 1 of the European Convention by the European Court of
Human Rights. In Eckle v Germany (Federal Republic) (1983) 5 EHRR 1, it was said at
31:
“In criminal matters, the ‘reasonable time’ referred to in Article 6 (1) begins to run as
soon as a person is ‘charged’; this may occur at a date prior to the case coming before the
trial court, such as the date of arrest, the date when the person concerned was officially
notified that he would be prosecuted or the date when preliminary investigations were
opened. ‘Charge’, for the purposes of Article 6 (1), may be defined as ‘the official
notification given to an individual by the competent authority of an allegation that he has
committed a criminal offence’, a definition that also corresponds to the test whether ‘the
situation of the (suspect) has been substantially affected’.”
And in Foti v Italy (1983) 5 EHRR 313 at 326 the European Court was at pains to
emphasise that:
“Whilst ‘charge’, for the purposes of Article 6 (1), may in general be defined as ‘the
official notification given to an individual by the competent authority of an allegation that
he has committed a criminal offence’, it may in some instances take the form of other
measures which carry the implication of such an allegation and which likewise
substantially affect the situation of the suspect.”
Arrests are not, and certainly ought not to be, investigatory procedures. Rather they are
vehicles to court and fall within the same category as the issuance and service of a
summons citing the crime the accused is alleged to have perpetrated. For a warrant for the
arrest of a person will only be granted on the laying of information that there are
reasonable grounds to suspect him of having committed an offence. And whenever an
arrest is made without a warrant, it is obligatory that the police officer effecting it, inform
the person forthwith of the cause thereof. (See s 36(4) of the Criminal Procedure and
Evidence Act.) It was just such a situation that inspired Justice White in United States v
Marion 404 US 307 (1971) to observe at 320:
“To legally arrest and detain, the Government must assert probable cause to believe the
arrestee has committed a crime. Arrest is a public act that may seriously interfere with the
defendant’s liberty, whether he is free on bail or not, and that may disrupt his
employment, drain his financial resources, curtail his associations, subject him to public
obloquy, and create anxiety
Page 348 of 1991 (2) ZLR 339 (SC)
in him, his family and his friends . . . So viewed, it is readily understandable that it is
either a formal indictment or information or else the actual restraints imposed by arrest
and holding to answer a criminal charge that engage the particular protections of the
speedy trial provision of the Sixth Amendment.”
In the present matter, even if the arrest of the applicant without a warrant on 3 October
1986 is not to be taken as an official notification by a competent authority of an
allegation that he had committed a crime (a proposition with which, obviously, I do not
agree), it admits of no doubt that compliance by the police with s 36(1) of the Criminal
Procedure and Evidence Act started the clock ticking against the State. That provision
enacts that any person arrested without warrant may be detained for a period not
exceeding forty-eight hours “unless he is brought before a judge or magistrate upon a
charge of any offence (my emphasis)”, and his further detention is ordered or a warrant
for his further detention is obtained.
Can the State stop the clock by resorting to the expedient of withdrawing the charge
before plea, as it is permitted to do under s 297(3) of the Criminal Procedure and
Evidence Act, only to reinstate the same charge, or a charge based on the identical
information, when in a position to commence with the trial?
In my opinion, the type of withdrawal envisaged in s 18(2) of the Constitution is an
irrevocable one — a withdrawal after plea by the Attorney-General in terms of s 13 of the
Criminal Procedure and Evidence Act, thereby entitling the accused to a verdict of
acquittal in respect of that charge. In other words, the withdrawal must be one in which
no hearing of the charge can ever arise. To adopt any other construction would be to
emasculate the protection the Constitution intends to afford.
The point did not escape the attention of Lamer J (as he then was) in R v Carter (1986) 21
CRR 170 (Supreme Court of Canada) where at 173 he said:
“As I indicated in Mills v The Queen . . . the time frame to be considered in computing
trial within a reasonable time generally runs only from the moment a person is charged.
In passing, I might add that I say ‘generally’ because there might be exceptional
circumstances under which the time might run prior to the actual charge on which the
accused will be tried. As an example, if the Crown withdraws the charge to substitute a
different one but for the same transaction, the computation of time might well commence
as of the first charge.”
Page 349 of 1991 (2) ZLR 339 (SC)
The Supreme Court of the United States in Klopfer v North Carolina 386 US 213 (1967)
reviewed a provision similar to that of withdrawal before plea. The criminal procedure of
North Carolina allowed a prosecuting attorney to take a nolle prosequi if he did not wish
to proceed further with a prosecution, thereby declaring that he would not at that time
prosecute the case further. But it was permissible to restore the case to the trial docket
when ordered by a judge upon the prosecuting attorney’s application. Klopfer was
indicted in February 1964 for criminal trespass. The prosecuting attorney moved for, and
was granted, a nolle prosequi in August 1965, eighteen months later. Klopfer contended
that the entry of the nolle prosequi, which merely suspended the prosecution, deprived
him of his right to a speedy trial, and that it did not relieve him of the limitations placed
upon his liberty and security. The Supreme Court of North Carolina ruled against him. In
allowing the appeal Warren CJ remarked at 222:
“By indefinitely prolonging this oppression, as well as the anxiety and concern
accompanying public accusation, the criminal procedure condoned in this case by the
(court below) denies the petitioner the right to a speedy trial which we hold is guaranteed
to him by the Sixth Amendment.”
The case, of course, involved an indeterminate delay in the resumption of the trial against
Klopfer. Nonetheless, it is implicit in the approach of the learned Chief Justice that the
period between the entry of the nolle prosequi and its lifting is to be taken in conjunction
with the delay preceding it in order to assess whether the right to a speedy trial had been
violated. See also Perreault v R (1985) 19 CRR 101 at 104 (Ontario District Court).
It necessarily follows, in my view, that the withdrawal of the charges against the
applicant on 23 August 1987 did not interrupt the time frame, which commenced to run
either upon the applicant’s arrest on 3 October 1986 or with his first remand by the
magistrate a few days later; and that the date of service of the summons is not to be taken
as the critical moment when the clock started to tick against the State. In sum, the correct
approach in this matter is to evaluate the reasonableness of the overall lapse of time.
THE FACTORS TO BE CONSIDERED IN A DETERMINATION OF WHETHER AN
ACCUSED PERSON HAS BEEN AFFORDED A FAIR HEARING WITHIN A
REASONABLE TIME
In Fikilini v Attorney-General 1990 (1) ZLR 105 (SC) at 112G this court approved of the
factors identified by Justice Powell in his landmark judgment
Page 350 of 1991 (2) ZLR 339 (SC)
in Barker v Wingo supra as amongst those to be taken into account in assessing whether
an accused has been deprived of his constitutional right to a speedy trial. He stated them
at 530-532, as follows:
“The length of the 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.
Closely related to length of delay is the reason the government assigns to justify the
delay. Here, too, different weights should be assigned to different reasons. 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.
We have already discussed 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 was 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 defendants which the speedy trial right was designed to
protect. This Court has identified three such interests: (i) to prevent oppressive pretrial
incarceration; (ii) to 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
Page 351 of 1991 (2) ZLR 339 (SC)
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.”
See also United States v Van Neumann 474 US 242 (1986) at 247.
These factors received the imprimatur of the Privy Council in Bell v Director of Public
Prosecutions of Jamaica and Another [1985] 2 All ER 585 (PC). In delivering the
judgment of the Board, Lord Templeman said at 591j:
“Their Lordships acknowledge the relevance and importance of the four factors lucidly
expanded and comprehensively discussed in Barker v Wingo. Their Lordships also
acknowledge the desirability of applying the same or similar criteria to any constitution,
written or unwritten, which protects an accused from oppression by delay in criminal
proceedings. The weight to be attached to each factor must however vary from
jurisdiction to jurisdiction and from case to case.”
See also the decision of the High Court of Australia in Jago v The District Court of New
South Wales and Others (1989-90) 168 CLR 23 at 33 and 60.
A not dissimilar approach was enunciated by the European Court of Human Rights in
König v Federal Republic of Germany (1980) 2 EHRR 170 at 197, in these terms:
“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 administrative and judicial authorities.”
Recent decisions of the Supreme Court of Canada in Mills v R (1986) 21 CRR 76, Rahey
v R (1988) 33 CRR 275, R v Conway (1989) 40 CRR 1, and R v Askov supra exhibit
dissension as to whether prejudice to the accused is a relevant factor for the purpose of
determining if his constitutional safeguard under s 11(b) of the Charter was infringed. In
the opinion of Lamer J (as he then was) in R v Conway supra at 29:
Page 352 of 1991 (2) ZLR 339 (SC)
“. . . whether the accused’s ability to mount a full and fair defence is or is not impaired is
not relevant to a determination of whether there has elapsed an unreasonable period of
time, as that goes to the fairness of the trial and is more properly related to the right to a
fair trial (specifically provided for under s 11(d)).”
The majority view, on the other hand, is well expressed by Wilson J in Rahey v R supra
at 297, in these words:
“. . . I believe that in assessing whether or not the delay in disposing of charges against an
accused was reasonable or not, prejudice to the accused resulting from the delay is very
relevant. I cannot accept a ‘water-tight compartment’ approach to Charter rights. I believe
that the same factors which are relevant to an alleged violation of one right may also be
relevant and entitled to consideration in relation to an alleged violation of another. To say
otherwise may well be to deny an accused the full measure of protection which the right
he asserts was intended to provide.”
See also Her Ladyship’s comments in Mills v R supra at 169.
With all deference, it is this approach that I prefer. But it is unnecessary to make a choice,
because the right which is protected under s 18(2) is the right to a fair hearing within a
reasonable time, and not simply the right to be tried within a reasonable time.
Consequently, prejudice to the accused’s ability to “mount a full and fair defence”
resulting from the delay in affording him a hearing is a most relevant factor.
What is emphasised in determining the cut-off point after which a delay becomes
unreasonable is a “balancing test, in which the conduct of both the prosecutor and the
defendant are weighed” (per Powell J in Barker v Wingo supra at 530). The variety of
factors to be considered may pull in opposite directions. In the absence of acquiescence,
express or implied, a certain degree of prejudice resulting from a long delay may be
inferred, if not rebutted by the State. Actual prejudice, such as impairment of the right to
a fair hearing due to the death or disappearance of witnesses, may further militate in
favour of the accused. Against this must be weighed factors related to the cause of the
delay. Was the responsibility that of the State? If so, was the delay attributable to malice,
negligence, mere inadvertence, or the inherently complex nature of the offence? Were
there unavoidable factors, such as the death or unexpected ailment of an essential
witness? Were there justifiable systemic delays?
Page 353 of 1991 (2) ZLR 339 (SC)
THE ONUS
It is for the person charged to persuade the court that the delay complained of exceeds
what is reasonable. See Fikilini v Attorney-General supra at 117D-E. The degree of
persuasion required of him is to show that the delay is prima facie unreasonable, or, in the
words of Powell J in Barker v Wingo supra at 530, “presumptively prejudicial”. It is that
which triggers the enquiry into the other factors that go into the balance. It is the
threshold at which the court may look to the State for an explanation.
It is, of course, neither possible nor desirable to identify precisely the length of delay
which will trigger the enquiry. Each case is to be viewed in the light of its own particular
circumstances in order to determine whether the delay is prima facie unreasonable.
ASSESSMENT OF REASONABLENESS
By way of preliminary comment, I find that the State’s conduct is indicative of a
sustained unconcern to proceed as quickly as possible against the applicant.
The overall length of the delay is four years and seven months. Even though fraud is a
serious offence and the charges levelled against the applicant are many, involving a total
amount of $4 252, the delay occasioned in bringing him to trial on 2 April 1991, is
certainly adequate to trigger an enquiry. It is “presumptively prejudicial”.
What is the explanation for the delay? None was proffered by the State, and a bald denial
of responsibility does not suffice. It is not claimed that any of the twelve remands were
sought by the applicant. True, he did not expressly oppose them, but his ultimate
engagement of a legal practitioner to appear for him evinces his dissatisfaction with the
on-going situation. On 23 August 1987 that legal practitioner protested so adamantly at
the State’s failure to bring the applicant to trial that the prosecutor, rather than be put on
terms by the court to fix a date of hearing, withdrew the charges. Three years later they
were reinstated. Yet again there is no explanation for this lapse of time. On receipt of the
summons to appear in court on 5 November 1990, the applicant instructed another legal
practitioner to defend him. Documents which were requested were not provided so that
the trial had to be postponed to the earliest available date, six months hence. Not even
that additional delay is attributable to the applicant. In sum, there can be no question of
the applicant in any way contributing to the regrettable situation in which the hearing of
his case was delayed to 2 April 1991.
Page 354 of 1991 (2) ZLR 339 (SC)
That the entire delay was attributable to the actions of the State weighs heavily in favour
of the applicant. Unless, therefore, there is some strong basis to counter this factor, which
becomes clear from an examination of other factors, it will not prove possible to tolerate
it.
Next to be set in the scale is the frequency and force of the objection to the delay. On 23
August 1987 and on 2 and 3 April 1991, objections were raised on the applicant’s behalf.
No objection was taken on 5 November 1990, but the omission to do so, in the context of
what occurred both before and after that occasion, cannot be viewed as a waiver of the
applicant’s constitutional guarantee. In any event, I think it doubtful that the applicant’s
erstwhile legal practitioner directed his mind to the constitutional protection available to
his client, understood its nature and deliberately waived the right provided by it. If the
trial had proceeded on 5 November 1990, without any complaint that s 18(2) had been
infringed, the position would have been different. See R v Ruzario 1990 (1) ZLR 359
(SC) at 367E-G.
With regard to the fourth factor, the evidence elicited from the applicant was that the
delay had caused him actual prejudice. Three of the witnesses, formerly senior employees
of the Municipality of Harare, who would have been called in his defence have emigrated
and their whereabouts are now unknown. With the passage of the years from the date of
the withdrawal, the applicant came to believe that he would not be prosecuted, and so did
not deem it necessary to keep in contact with these persons.
Moreover, a very long delay such as this, inherently gives rise to a strong presumption of
prejudice to an accused. Where the State can demonstrate that there was no prejudice
flowing from the delay, then such proof may serve to excuse it.
Balancing all the factors leads me irresistibly to the conclusion that the effect of this
extraordinarily lengthy delay is such as to deny the applicant the right to a fair hearing of
his case. Justice so delayed is an affront to the individual, to the community and to the
very administration of justice.
I am deeply aware of the consequence of so holding. The charges against the appellant
are far from trivial and there can be no doubt that it would be in the best interests of
society to proceed with the trial of those who are charged with the commission of serious
crimes. Yet, that trial can only be undertaken if the guarantee under s 18(2) of the
Constitution has not been infringed. In this case it has been grievously infringed and the
unfortunate result is that a hearing
Page 355 of 1991 (2) ZLR 339 (SC)
cannot be allowed to take place. To find otherwise would render meaningless a right
enshrined in the Constitution as the supreme law of the land.
REMEDY
Section 24(4) of the Constitution empowers the Supreme Court to:
“. . . make such orders, issue such writs and give such directions as it may consider
appropriate for the purpose of enforcing or securing the enforcement of the Declaration
of Rights.”
It is difficult to imagine language which would give this court a wider and less fettered
discretion. But relative to s 18(2) where, upon balancing the various factors, it is decided
that an accused’s right to a fair hearing within a reasonable time has been contravened, a
stay of proceedings must be the minimum remedy. For to direct, for instance, that the trial
proceed forthwith would be to contradict the accepted claim that the inordinate delay had
denied him the very right that is safeguarded under s 18(2). It would amount to
participating in a further violation of the provision.
A permanent stay of the proceedings is the relief sought by the applicant and it is the
relief I am disposed to grant. It seems to me that, notwithstanding the applicant’s plea of
not guilty, an order that the charge be dismissed would be tantamount to a
pronouncement of innocence. That I am not prepared to do. After all, the applicant has
elected to put a definitive but premature end to the prosecution instead of a final
determination of the issue of innocence or guilt.
COSTS
It is permissible in an application of this nature to order that the costs incurred should
follow the event. See Bull v Attorney-General of Zimbabwe 1987 (1) ZLR 36 (SC);
[1988] LRC (Constit) 324. I see no reason to deprive the applicant of his costs.
ORDER
Accordingly, I would order as follows:
1. The proceedings in the Magistrates’ Court, Harare, in the case of The State
v Shadreck Siyapi Mlambo, Case No. 15538/90, be and are hereby permanently stayed.
2. The Attorney-General is to pay the costs of this application.
Page 356 of 1991 (2) ZLR 339 (SC)
McNally JA: I agree.
Manyarara JA: I agree.
Korsah JA: I agree.
Ebrahim JA: I agree.
Muvingi & Machaya, applicant’s legal practitioners
COMMISSIONER OF TAXES v D
1991 (2) ZLR 357 (SC)
Division: Supreme Court, Harare
Judges: Manyarara JA, Korsah JA & Ebrahim JA
Subject Area: Tax appeal
Date: 15 October 1991 & 16 January 1992

Taxation — Capital Gains Tax Act 1981 — whether interest on a building society loan is
a deductible expense for the purposes of s 11(2)(a) of that Act.
The Commissioner disallowed a claim by a taxpayer to deduct the cost of a mortgage
loan against the sum realised on the sale of the immovable property for the purpose of
assessing any capital gain. The Income Tax Special Court upheld the right of the taxpayer
to claim such a deduction, and the Commissioner appealed.
Held, the interest paid on the loan from a building society used to purchase immovable
property or construct a house is a deductible expense in terms of s 11(2)(a) of the Capital
Gains Tax Act 1981.
Cases cited:
Financier v Commissioner of Taxes 1950 SR 69; 17 SATC 34 (SR)
Secretary for Inland Revenue v Eaton Hall (Pty) Ltd 1975 (4) SA 953; 37 SATC 343 (A)
Ex parte Minister of Justice: In re Rex v Bolon 1941 AD 345
Kantor v MacIntyre NO & Anor 1958 (1) SA 45 (FSC)
M J Gillespie for the appellant
E W W Morris for the respondent
MANYARARA JA: The issue in this case is whether interest paid on a building society
loan is deductible in arriving at the amount of capital gain
Page 358 of 1991 (2) ZLR 357 (SC)
for the purposes of the Capital Gains Act 1981. The appellant disallowed the amount and
the respondent objected to the assessment. His objection was disallowed. He appealed to
the Income Tax Special Appeals Court which allowed his appeal. The learned President,
(Smith J) ordered the assessment to be amended accordingly. The appellant appeals to
this court for an order setting aside the Special Court’s judgment and confirming his
assessment.
The facts are not disputed and I shall quote the learned President’s summary thereof. In
so doing, I shall refer to the appellant as “the Commissioner” and to the respondent as
“the taxpayer”, to which terms I shall adhere in the rest of this judgment. The summary is
as follows:
“The taxpayer bought a house in 1981 for $45 000. In the agreement of sale there was a
provision to the effect that the sale was subject to the condition that the purchaser
obtained a loan on the usual terms and conditions from a building society or other
financial institution in the sum of $33 750. A loan was obtained from a building society
and the sale was effected. In 1988 the taxpayer sold the house for $150 000, after having
built on a new bedroom in 1985. The Commissioner assessed the capital gain of the
taxpayer for the year ended 31 March 1988. In determining such capital gain he
disallowed amounts totalling $33 196 (hereinafter referred to as ‘the disputed amount’) of
which $27 720 was in respect of interest paid by the appellant during the period 15
November 1981 to 15 May 1988 on the loan he had obtained to buy the house and $5 476
was in respect of the related 5% allowance. The taxpayer objected to the disallowance of
the disputed amount. The objection was disallowed and the taxpayer noted an appeal to
this Court.”
As I have said, the learned President allowed the appeal in the terms already mentioned.
Mr Gillespie, for the Commissioner, submits that the relevant provision, s 11(2)(a) of the
Capital Gains Act,“is cast in a manner (which is) somewhat ambiguous” but “there is
much which is plain”. The contention is that the unexpressed legislative intent indicates
that the disputed amount is not deductible in both the extended and more limited context
of the enactment.
Section 11 of the Act provides as follows:
“11. (1) For the purposes of determining the capital gain of any person there shall be
deducted from the capital amount of such person the amounts
Page 359 of 1991 (2) ZLR 357 (SC)
allowed to be deducted in terms of this section:
...
(2) The deductions which shall be allowed for the purposes of subsection (1) shall be —
(a) expenditure to the extent to which it is incurred on the acquisition or construction
of such specified assets as are sold during the year of assessment other than expenditure
in respect of which a deduction is allowable in the determination of the seller’s taxable
income as defined in subsection (1) of section 8 of the Taxes Act. . . .
(b) expenditure to the extent to which it is incurred on additions, alterations or
improvements to specified assets referred to in paragraph (a) other than expenditure in
respect of which a deduction is allowable in the determination of the seller’s taxable
income as defined in subsection (1) of section 8 of the Taxes Act.”
Briefly, s 8(1) of the Taxes Act (the Income Tax Act [Chapter 181]) defines “gross
income” as the total amount received by the taxpayer in any year of assessment excluding
any amount which is proved by the taxpayer to be of a capital nature.
It will be evident that s 11(2)(a) as presently worded prohibits the deduction twice of any
expenditure in arriving at the amount of capital gain. This is made plain by the language
of the provision. What is not made so plain as Mr Gillespie correctly submits is whether
an expense which is allowed as part of “financing” the acquisition of the specified asset
(bond interest) is an expense which is incurred on the acquisition of the asset. The
Commissioner held that it was not and the learned President held that it was. In this
appeal, Mr Gillespie submits that the question could have been put beyond doubt by
inserting, after “specified asset,” the expression “or in respect of the financing of such
acquisition or construction”, to include bond interest; or the expression “which
expenditure shall not include expenditure in respect of the financing of such acquisition
or construction” to exclude bond interest. The logic of the suggestion is evident.
However, we are here dealing with the unexpressed legislative intent of the enactment.
Mr Gillespie argues in favour of the second formulation excluding bond interest as “the
extended context of the enactment” which he suggests shows the treatment of the whole
question of interest expenditure in relation to tax on principles which he summarized as
follows:
Page 360 of 1991 (2) ZLR 357 (SC)
1. That in terms of s 15(2)(a) of the Income Tax Act interest will be
deductible from income as a general deduction if it is incurred for the purpose of trading
or producing income and is not of a capital nature. Financier v Commissioner of Taxes
1950 SR 69; 17 SATC 34.
2. That if it is capital expenditure it could only be deducted from income
under one of the special deductions in respect of capital expenditure. In this regard, the
court is urged to follow the general approach adopted in Secretary for Inland Recenue v
Eaton Hall (Pty) Ltd 37 SATC 343 at 347-8, 1975 (4) SA 953 at 956-7.
3. That expenditure on interest of a capital nature is generally not deductible
from gross income although certain capital expenditure is deductible.
I have no quarrel with these principles. I also agree that they are recognized in the Capital
Gains Act. Section 11(2)(a) provides that capital expenditure already deducted from gross
income for the purpose of the Income Tax Act may not be again deducted for the purpose
of arriving at the amount of capital gain. It is also true that in terms of s 11(2)(c)(ii)
capital expenditure in respect of which a deduction has been allowed may be the subject
of a further annual allowance.
Put another way, the wording of s 11(2)(a) of the Capital Gains Act does not differ in
effect from s 15(2)(a) of the Income Tax Act which provides as follows:
“(2) The deductions allowed shall be:
(a) expenditure and losses to the extent to which they are incurred for the purpose of
trade or in the production of the income except to the extent to which they are expenses
and losses of a capital nature.”
The similarity of the two provisions is apparent. Section 15(2)(a) excludes “expenses or
losses of a capital nature”. What remains is “expenses or losses to the extent to which
they are incurred for the purpose of trade or in producing the income”, whose meaning is
unambiguous. Therefore I agree with Mr Morris for the taxpayer that the unexpressed
legislative intent must be that the words “expenditure to the extent to which it is incurred
on the acquisition or construction of the specified asset other than . . .”, appearing in the
disputed provision should not be construed differently from the similar expression
appearing in s 15(2)(a) of the Income Tax Act. It may be safely assumed that if the
legislature intended otherwise it would have used different language.
Page 361 of 1991 (2) ZLR 357 (SC)
Therefore, my respectful view is that the Eaton Hall approach is of general guidance only
in construing s 11(2)(a) as presently worded. The relevant passage at 1975 (4) SA 965F-
957B is to the following effect:
“Firstly, it is obvious from the context that ‘the cost of any building’ means the cost of
erecting that building. Secondly, in the absence of any definition in the Act of such cost
one must look at its ordinary meaning. The Oxford English Dictionary defines ‘cost’ as
meaning: ‘That which must be given or surrendered in order to acquire, produce,
accomplish, or maintain something; the price paid for a thing.’ Hence ‘the cost to the
taxpayer of the building’ ordinarily means the price or consideration given or paid by him
for the erection of the building. It does not, therefore, include expenses incurred by the
taxpayer in connection with the erection of the building unless, of course, they are part of
the price or consideration paid for the erection. Thirdly, as counsel for the Secretary
rightly pointed out, the use of the preposition ‘of’ instead of a phrase with a wider
connotation, like ‘in respect of’, between ‘cost’ and ‘any building’, indicates that the
connection between them must be direct and close, in other words, the expression
comprehends the cost of erecting the building and nothing more. Fourthly, as counsel for
the Secretary again rightly contended, that limited connotation is also manifested by the
use of the physical, identifiable, concrete object of ‘any building’ or ‘improvements’
instead of the abstract, gerundive concept of ‘building’ or ‘improving’ a structure. Thus,
‘the cost of building or improving’ something is not as well delineated as ‘ the cost of any
building or improvements’. The former might well cover certain expenses incurred
incidentally in building or improving a structure, whereas under the latter the cost is
delimited by the very physical nature of the building or improvements.
All those considerations point in one direction, namely, that the ordinary, grammatical
meaning of the words ‘the cost to the taxpayer of any building’ in those provisions is that
such cost is limited to the price or consideration given or paid by the taxpayer for the
erection of the building. Hence there is no need to invoke the aid of any of the other
canons of construction or the authorities canvassed in the arguments of counsel for the
parties to ascertain its true meaning.”
I agree with the learned President that in the context of the Capital Gains Act s 11(2)(a),
the words “expenditure to the extent to which it is incurred on the acquisition or
construction of the specified asset” must be given their ordinary grammatical meaning as
appears from the following passage of his judgment:
Page 362 of 1991 (2) ZLR 357 (SC)
“It seems to me, however, that even as presently worded s 11(2)(a) would include the
interest paid by the appellant. The Commissioner accepted that the bond costs and the
valuation fee paid by the taxpayer constituted expenditure incurred on the acquisition of
the house. Additionally, when the taxpayer built on a new bedroom in 1985 the
Commissioner accepted that the bond costs, valuation fee, architect’s fees and even the
fee for planning approval constituted expenditure incurred on the additions, alterations or
improvements to the house for the purposes of s 11(2)(b) of the Act. If costs of
registering a mortgage bond and valuation fees which are paid to a building society are
legitimately regarded as expenditure incurred on the acquisition of the property, I fail to
see why interest costs should not also be regarded as such expenditure. The taxpayer’s
agreement to buy the house was conditional upon his obtaining a loan from a building
society or other financial institution. Had he not obtained a loan he would not have
bought the house. He would not have obtained the loan had he not agreed to pay interest
thereon. Therefore it seems to me that the interest payments were expenditure incurred on
the acquisition of the house.”
I agree with the finding. The test to be applied is the purpose for which the money was
borrowed. Financier v Commissioner of Taxes supra at 36. I would, therefore, reject Mr
Gillespie’s argument as unsound.
The second argument is that the formulation of s 11(2)(a) is based on previous judicial
interpretation of a statute in pari materia in the Eaton Hall case supra and from this may
be deducted that the legislature intended the provision to be interpreted “narrowly” so as
to exclude bond interest. In particular, so the argument continued, the use of the
proposition “on”, instead of the more extended “in respect of” or “in connection with”,
shows the validity of the narrower construction. In Mr Gillespie’s opinion s 11(2)(a)(i)
and (ii) deliberately equates expenditure “on the acquisition” of an asset with the value of
an asset or the return to the person disposing of the asset “in such a way as to preclude
from consideration certain payments that may be made and would otherwise be incidental
to the acquisition”.
Reference is also made to s 11(5) which provides as follows:
“(5) Where the owner of immovable property has, as the lessor of such property, been
charged to income tax in terms of paragraph (c) of the definition of ‘gross income’ in
subsection (1) of section 8 of the Taxes Act, he shall be deemed to have incurred
expenditure in terms of paragraph (a) or (b) of subsection (2) in relation to such
immovable property equal to the
Page 363 of 1991 (2) ZLR 357 (SC)
amount so included in his taxable income at the time of such inclusion.”
I believe that the various aspects of the learned President’s judgment to which I have
referred deal adequately with the argument and it is unnecessary to repeat them at this
stage. The same goes for the further suggestion that the Commissioner’s application of
the disputed provision in the more limited context of the Act “is more in harmony with
the intent of the legislature”. As I have said, the learned President found the other way
and I agree with his reasons for doing so.
However, Mr Gillespie persists in his argument by submitting that the legislature’s
refusal to use any formulation showing a clear departure from the ratio of an earlier case,
namely, Ex parte Minister of Justice: In Re Rex v Bolon 1941 AD 345, ought to be taken
as indicating an intention that the Eaton Hall approach should be followed.
I have already referred to the Eaton Hall case. The passage from In Re Rex Bolon supra
cited by Mr Gillespie appears at 359-60 and reads as follows:
“Before answering specifically the questions submitted it is necessary to deal with a
further argument of the Attorney-General based on a principle enunciated in various
English cases, such as Webb v Outrim (1907 AC at p 89) and Mersey Docks v Cameron
(11 HLC 443, per Blackburn J at p 480) that:
‘when a particular form of legislative enactment which has received authoritative
interpretation, whether by judicial decision or by a long course of practice, is adopted in
framing a later statute, it is a sound rule of construction to hold that the words so adopted
were intended by the Legislature to bear the meaning which has been so put upon them’.
In Barras v Aberdeen Steam Trawling & Fishing Co (1933 AC 402) Lord MacMillan
stated that that rule of interpretation afforded only a valuable presumption as to the
meaning of the language employed in a statute. Before it can be applied one of the
requisites is that the judicial interpretation must be well settled and well recognised. It is
argued here that as Act 44 of 1937 was passed after the decision of the Appellate
Division in Rex v Jacobson & Levy the burden of proof placed on the employer by sec.
33 (8) was intended to be a burden of proving the fact beyond reasonable doubt. But in
view of the difficulty of determining the correct interpretation of Rex v Jacobson & Levy,
as above explained, I am not prepared to hold that the judgments in that case or the
references to that decision in various Provincial Courts between 1931 and 1937 are
sufficient to give rise to the
Page 364 of 1991 (2) ZLR 357 (SC)
presumption mentioned in the said rule of interpretation.”
Tindall JA held that the disputed expression in that case should be interpreted “using (it)
in its usual and correct sense”.
I find no substance in Mr Gillespie’s argument. In my view, the argument is yet another
attempt to have read into the disputed provision words which the legislature, in its
wisdom, has chosen not to use. Reference should be made to the learned President’s
judgment which shows that the basis on which the Commissioner purported to exclude
bond interest is illogical. The point need not be laboured.
The next argument concentrates on subsection (6) of s 11 relating to deeds of sale. The
subsection was inserted by the Finance Act 1988 and it provides that where a person
transfers his rights under a deed of sale he shall be deemed to have acquired the specified
asset from the person with whom he entered into the deed of sale for an amount equal to
the amount payable by him under the deed of sale.
The Finance (No. 2) Act 1988 added the words “excluding any interest payable on the
outstanding purchase price”.
Both Acts were made effective for the year of assessment following that in which the
taxpayer sold the house.
In this regard, the caution expressed in In Re Rex v Bolon supra is echoed in Kantor v
MacIntyre NO & Anor 1958 (1) SA 45 (FSC) by Tredgold CJ who dealt with the two
forms which the interpretation of legislation may take at 48C-E as follows:
“The first is an ‘Act of explanation’ which is an enactment that in express terms sets out
to explain the earlier Statute. Such Acts are now seldom used and it is fortunate that this
is so. They create great practical difficulty in the application of the original Act to events
that occur before the later Act is passed.
In the second place it may happen that a later Act, by assuming that an earlier cognate
piece of legislation has a particular meaning, throws light on what Parliament originally
intended. The use in this manner of later legislation to clear up ambiguity or obscurity in
earlier legislation has the approval of the House of Lords. Ormond Investment Company
v Betts,
Page 365 of 1991 (2) ZLR 357 (SC)
1928 AC 143 at p 156. But it is a method of construction which must, in my opinion, be
applied with very great caution. If a Statute is capable of two meanings and one is more
probable than the other, then the more probable meaning would presumably be adopted
by the Courts in any event. If a later Statute is involved to support the less probable
meaning, it comes dangerously near to making the later Statute retroactive and might
have serious effects upon people who, before it was passed, had, in good faith, acted
upon the alternative construction.”
As the learned President succinctly put it, “It would be anomalous if the meaning of the
law as in force at the time when the capital gain of (the taxpayer) was assessed was to be
determined by an amendment which was enacted later and became effective only in the
following year”. See s 11(2)(a). The argument to the contrary advanced by Mr Gillespie
must be rejected.
A further point raised by Mr Gillespie in pursuance of his argument is that the provision
of an annual allowance by the Finance Act 1982 “is not logically justified when applied
to ‘finance charges in connection with the acquisition or construction of the specified
asset’”. Mr Gillespie contrasts the taxpayer’s case with the position of a purchaser under
a deed of sale and suggests that the result is “the sort of absurdity which one should avoid
and can be avoided” by interpreting s 11(2)(a) in the manner which the Commissioner
interpreted the provision.
The point did not escape the learned President’s attention as appears from the following
passage of his judgment:
“I accept that this interpretation means that the taxpayer who borrows money to finance
the acquisition of a specified asset would get a larger deduction than the taxpayer who
uses his own money. But I do not see why that should be contrary to the intention of the
Legislature. After all, the taxpayer who borrows money to finance the acquisition of a
specified asset has incurred greater expenditure thereon than the taxpayer who has not
had to borrow money. In equity, therefore, the taxpayer who has incurred interest charges
should be permitted to deduct such expenditure before his capital gain is calculated. I can
see no reason why such expenditure should be excluded. It is expenditure directly related
to the acquisition of the property concerned.”
And:
“This finding of the court would mean that there is an inconsistency between contracts of
sale and transfer of rights under a deed of sale referred to in subs
Page 366 of 1991 (2) ZLR 357 (SC)
(6) of s 11 of the Act. To remove the inconsistency, I would recommend that
consideration be given to repealing the amendment to that subsection that was made by
Act No. 16 of 1988.”
I associate myself fully with those remarks.
It was submitted finally that the contra fiscum rule of interpretation can only be resorted
to if one finds oneself in doubt after examining the disputed provision in both the
extended and narrow contexts of the Act. I agree but in the light of the conclusion I have
reached the application of the rule, which would be decisive, does not arise.
The appeal is dismissed with costs.
Korsah JA: I agree
Ebrahim JA: I agree
Civil Division, Attorney-General’s Office, appellant’s legal practitioners
Atherstone & Cook, respondent’s legal practitioners