Tawanda Chirima v Sparrow Hauliers Pvt Ltd t/a J & J Transport and Esquire N Gwatidzo N.O.

1
                                                                                         HH 307-21
                                                                                        HC 5965/19
                                                                                   Ref Case 9118/19
TAWANDA CHIRIMA
versus
SPORROW HAULIERS PVT LTD t/a J & J TRANSPORT
and
ESQUIRE N GWATIDZO N.O


HIGH COURT OF ZIMBABWE
TSANGA J
HARARE, 26 March & 23 June 2021



Application for Review

M. A Kalira, for applicant
B Mahere, for 1st respondent
No appearance for the 2nd respondent



       TSANGA J: The applicant was a former employee of the first respondent and left
employment following allegations of having stolen specified tools from his employer. He had
signed an acknowledgement of debt in which he undertook to pay for the stolen items. Having
failed to pay the amount as embodied in the acknowledgment of debt, his employer filed an
application in the Magistrate’s court for recovery of the debt. His employer also held on to
applicant’s vehicle as security for the debt.
       In response to that application, the applicant herein had filed a counter application for the
return of his motor vehicle on the grounds that he had in fact settled the debt in full. The first
respondent having proceeded by way of application as opposed to by way of summons, the
applicant herein had also raised a point in limine with respect to the procedure used for the debt
recovery. The Magistrate had dealt with the application on papers and had found for the
employer, the first respondent herein.
       This application for review was filed by the applicant on the following grounds.

       1.      The 2nd respondent’s determination of the application for the debt recovery made under
               case Number 9118/19 on the merits in circumstances in which the 2 nd respondents had
               only been addressed by the parties in relation to the preliminary point taken is grossly
               irregular. Furthermore the 2nd Respondent’s pronunciation of the judgment on the merits
                                                                                                             2
                                                                                                  HH 307-21
                                                                                                HC 5965/19
                                                                                         Ref Case 9118/19
                under MC 9118/19 without first pronouncing a clear ruling on the preliminary point taken
                by the applicant is grossly irregular and unprocedural.
        2.      The 2nd Respondent’s decision to dismiss the counter application filed by the applicant
                under MC 9118/19 in circumstances in which the 2nd Respondent had not been
                addressed by the parties in relation to the counter application is also grossly irregular and
                unprocedural.
        3.      The 2nd Respondent’s decision granting the application for debt recovery under MC
                9118/19 is so grossly unreasonable that no reasonable judicial officer acting on the same
                facts and circumstances would have arrived at the same decision as the 2 nd respondent.
        4.      The 2nd respondent’s decision dismissing the counter application filed by the applicant
                under MC 9118/19 is grossly unreasonable such that no sensible judicial officer applying
                their mind on the same facts and circumstances would have arrived at the same decision
                as the 2nd Respondent.

        Relief is sought in the alternative. In the main, the applicant seeks the dismissal of the
debt recovery application and upholding of his counter application and the return of his motor
vehicle. He also seeks costs on a higher scale.
        In the alternative, he seeks that the application for debt recovery be set aside as well as
the setting aside of the dismissal of his counterclaim. In their stead, he seeks that both matters be
remitted back to the magistrates’ court for hearing before a different magistrate. He also seeks
costs of suit on a higher scale in the alternative relief.
        The first respondent raised a point in limine at the hearing that the application is a hybrid
application for both review and an appeal yet it has been placed before the court as a review. It
was also argued that there was no irregularity justifying any review of the proceedings.
        The difference between an appeal and a review was articulated in S v Maphosa 2013 (2)
ZLR 29 (H) as follows:
        “The essential difference between review and appeal procedure is that where the grievance is that
        the judgment or order of the magistrate is not justified by the evidence, and there is no need to go
        outside the record to ventilate the particular grievance, then the more appropriate procedure to
        follow for relief is by way of appeal. An election to appeal confines the legal practitioner to
        matters reflected in the record of proceedings.

        Where issues are raised challenging the propriety of the proceedings of an inferior tribunal and
        the facts which have to be proved in order to support these issues do not appear as established on
        the face of the record, the proceedings should be by way of review. In this event, the applicant
        would, by way of affidavit, bring under review other matters which do not appear ex facie the
        record.”
                                                                                                    3
                                                                                           HH 307-21
                                                                                          HC 5965/19
                                                                                     Ref Case 9118/19
       There is no doubt that this is a hybrid application in that grounds 3 and 4 of the purported
review application are in fact grounds of appeal founded on alleged misdirection on findings of
fact. The main relief sought is equally based on appeal grounds.
   Grounds 1 and 2 on the other hand, raise issues of procedural misdirection and are therefore
issues of review as contemplated by s 27(c) of the High Court Act [Chapter 7:06]. The point in
limine is therefore partly upheld in that grounds 3 and 4 are struck off as being appeal issues.
This court will only consider grounds 1 and 2 as the review issues against the back drop of the
alternative relief as the more appropriate remedy for procedural mis-direction should there be
found to have been any in this instance.
   Turning to the first ground of review, applicant’s complaint is that the Magistrate erred in
treating the point in limine as integrally intertwined with the main issue. Applicant’s point in
essence is that the debt could not be claimed using the application of procedure and that the
wrong procedure had been adopted. The Magistrate is said to have resolved the matter in his
judgment without resolving the point in limine of the procedure adopted.
       An examination of the judgment shows that the first issue that the Magistrate addressed
was in fact the issue of procedure. I quote:
       “The applicant has lodged the current application for the recovery of a sum of US$ 2298.07 from
       the respondent. It must be noted that in the ordinary course of events in such matters wherein one
       seeks the recovery of a debt summons are issued, with a subsequent application for summary
       judgement in circumstances where an applicant believes its claim is clearly unassailable.

       That notwithstanding, applicant’s basis for departing from that norm is that there is no positive
       rule of law which forbids that procedure adopted as there is no material dispute of facts
       warranting the protracted procedure”.

       The court then went on to deal with the crucial fact that the first respondent herein had
based its claim and its use of the application procedure on a clear acknowledgment of debt
whereby the applicant had undertaken to have extinguished the whole debt by 30 th June 2018. In
other words, the court did recognize that the normal procedure would be to issue summons but
countenanced the fact that the first respondent had sought to claim its debt using the application
procedure for the simple reason that it saw no dispute of facts.
       Again I quote from the judgment:
       “It must be appreciated that the application procedure is adopted only in instances where the facts
       material to the determination of the matter are largely common cause. In other words, the court
                                                                                                    4
                                                                                        HH 307-21
                                                                                       HC 5965/19
                                                                                 Ref Case 9118/19
       must be able to competently decide the matter merely on the documents filed without the aid of
       oral evidence and without working an injustice on any of the parties.”

       As to the appropriateness of the procedure measured against whether there were any
dispute the facts he concluded as follows:

       “In my view the facts of this matter are quite settled and admit of no serious dispute of fact. They
       can be summarized as follows:

       The respondent admitted to having stolen from the applicant property valued at the equivalent
       amount claimed when he was still employed by the applicant. To avoid subjecting the respondent
       to rigorous criminal process where he risked conviction and a custodial sentence, the respondent
       undertook to restitute n full. To that end he duly executed an acknowledgement of debt wherein
       he unequivocally undertook to pay the debt. He did so freely and voluntarily without duress. He
       further tendered his vehicle as security for the debt, which vehicle was only to be released to him
       back after full payment”.

       The court also emphasized that there was no room for departure in the acknowledgment
of debt of payment forms other than that stipulated therein. It is therefore simply not true in this
court’s view that the point in limine was not addressed or ruled upon. The absence of the words
“point in limine” in the articulation of the court’s acceptance of the first respondent’s use of the
application procedure does not in itself amount to failure to address that point. Whether a point
in limine has been addressed or not is surely a question of fact and substance which must emerge
from the judgment. Given what the point in limine was, which was that the wrong procedure had
been used, there is no doubt from a reading the judgment that the court proceeded on the basis of
accepting that the procedure could not be faulted as there was an acknowledgement of debt that
had been signed by the applicant herein. Given the nature of the point in limine being that the
wrong procedure had been used for the claim of a debt, evidently that issue could only be
determined by Magistrate looking at the matter as whole to ascertain if the application procedure
was indeed inappropriate to the factual circumstances in question. The first ground of review
lacks merit and is dismissed.
       The second ground of review is, in a nutshell, that the applicant’s counter application was
dismissed without the parties having addressed it. The record of proceedings on page 26 shows
that on the day of the hearing in the court below, both counsel for the applicant and counsel for
the respondent stood by all papers as filed of record. Clearly, since the parties stood by the
papers filed of record, if the point in limine was disposed of, the matter would be addressed on its
                                                                                                  5
                                                                                         HH 307-21
                                                                                        HC 5965/19
                                                                                   Ref Case 9118/19
merits in relation to all papers filed of record including the counter claim. In essence the
Magistrate would address the point in limine and if satisfied would then proceed to deal with all
other issues as contained in that application. There was nothing irregular about that since the
counsel for both parties, as the record shows, stood by their papers as filed in their entirety.
       Suffice to comment that in seeking to avoid a debt at all costs, a party can often end up
putting themselves and others through unnecessary expenses which far exceed settling the debt
itself. This is a case where the first respondent has been put to unnecessary expense defending an
application for review which is clearly not merited.
       The application for review is dismissed with costs on a higher scale.




Musengi and Sigauke, Applicants Legal Practitioners
Messrs Phillips Law, 1st Respondent’s Legal Practitioners