Edmore Veterai & 4 Ors v Elisha Tamirepi & 3 Ors

### Preamble
1
CIV ‘A’18-19
HMA 40-20
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EDMORE VETERAI

PETER HARUZIVISHE

LOICE SANJOBO

ELIAS NYATOWO

KAWRENCE MAZANHI

versus

ELISHA TAMIREPI

WINSTON MUNYARADZI MAFA

BERNADETTE CHIPEMBERE

LEVISON MABASA

HIGH COURT OF ZIMBABWE

WAMAMBO J AND ZISENGWE J

MASVINGO 3  JUNE, 2020 & 14 AUGUST, 2020

Civil Appeal

Mr R. Chavi, for the appellants

Mr W. Muzenda, for the respondents

ZISENGWE J:  	The phrase “the Magistrates’ Court is a creature of statute” has almost become a cliché in discourse on the hierarchy and jurisdiction of courts. The same holds true for the expression “the powers of the Magistrates Court are located within the four corners of the statute creating it”. These expressions aptly capture the fact that unlike the High Court which enjoys inherent (unlimited) jurisdiction (save in instances where such jurisdiction is otherwise ousted or limited by an Act of Parliament) the powers of the Magistrate Court are only to be exercised within the parameters of the Magistrates Court Act, [Chapter 7:10] (or some other enactment which confers such other power).

Yet, as the appeal sadly portrays, this simple principle eludes some within the profession. This is a matter in which the parties are haggling over the control of assets belonging to an organisation which goes by the name ‘Zimbabwe Sugarcane Development Association’(ZSDA in short). There appears to be two groups of persons each of which vies for the right to administer and transact on behalf of the organisation to the exclusion of the opposing faction.

The squabbling soon spilled over into the courts with the group comprising the four respondents (then as applicants) initially approaching the court on an ex parte basis in case number GL 54/19 seeking and subsequently obtaining an order in the following terms:

“Whereupon after reading documents filed of reach rule nisi be and hereby granted returnable on the 27th day of March 2019 to this Honourable Court, calling upon all the respondents to show cause, if any, why this order should not be confirmed as final.

1st respondent be and is hereby interdicted from removing any Association property from Stand Number 527 Euphobia Drive, Chiredzi

All the five respondents be and are hereby interdicted from holding any meetings purporting to be Associations’ Executive Meetings forthwith until elections are done.

All the five respondents are interdicted forthwith from making withdrawals and transfer from all Associations bank accounts particularly accounts number 02822466650010 CBZ, 1005230870 and 1005230986 both held at CABS or authorise any expenditure of any nature on behalf of the Association until re-election.”

The appellants (then respondents) anticipated the return date and in their opposing papers specifically objected, inter alia, to the court’s jurisdiction. They averred that the value of the transactions going through the Association’s accounts exceed the monetary jurisdiction of the Magistrates Court.

That particular matter was soon settled with the parties filing a deed of settlement. However in the said deed, no reference was made to the issue of the control over the accounts among other Association assets. The deed merely confined itself to the question of elections for office bearers of that organisation. The deed of settlement was filed on 27 March 2019. The terms of the deed of settlement were subsequently captured as a court order by the Magistrate the very next day (28 March 2019).

The overarching term of that deed of settlement was that elections for new office bearers were to be conducted 12 April 2019.

No sooner had the ink dried on the deed of settlement, (metaphorically speaking) did the respondents one again approach the court on an urgent ex parte basis on the 23rd of April 2009 seeking an order (which they obtained) in essentially the same terms as in the previous application. They averred in their founding affidavits that the appellants did not show up for the elections as hitherto agreed. They further averred that the term of office of the appellants had since expired and as such they had no mandate to continue transacting on behalf of the Association.

Not surprisingly though, the respondents opposed the application contending inter alia that the matter was res judicata and more tellingly reiterated that the matter exceeded the monetary jurisdiction of the Magistrates Court. Regarding their failure to show up for the elections they referred to numerous written requests for the postponement of that election (copies of the letters were attached to their opposing papers).

When the matter was eventually argued, the court a quo gave a somewhat lengthy order, which order basically paved way for the holding of fresh elections and the modalities attendant thereto.

In the only paragraph dealing with assets of the association (namely paragraph 2) the court ordered as follows:

“2.	The association bank accounts which have been frozen be and are hereby unfrozen but only for the following purposes:-

Payment of workers’ wages and salaries

The financing of the elections. The ballot material prepared for the botched election schedules for the 1st of April (sic) should be made good use of in this regard.”

Dissatisfied with the outcome of the application the appellants appealed to this court.

The grounds of appeal were stated as follows;

The court a quo erred in adjudicating the same matter twice and not making a finding on the matter being res judicata

The trial court erred and misdirected itself in finding that the case before it was urgent and that it warranted issuance of an order ex parte.

The court a quo erred in finding that the case before it fell within its monetary jurisdiction.

The trial court erred in issuing a final interdict when the legal requirements were not met; applicants hand no clear right, they had alternative remedies within their reach and there was no harm suffered or reasonably apprehended.

The learned trial Magistrate erred and misdirected itself in granting relief outside that sought by the parties and further issuing a declaratory order that the ZSDA executive will be illegally in order after 8 July if no elections are held in that date.

It was upon one of the points raise in limine, in the proceedings a quo and reiterated as ground 3 of appeal that this appeal was ultimately decided, this relates to the monetary jurisdiction of the court a quo to decide on the issue of the assets of the Association.

It is the backdrop against which the sentiments expressed in the opening paragraph of this judgment were made.

The appellants argued then as they did now that the court a quo should not have entertained the application for want of jurisdiction and they are correct in so contending. The dispute at least as it relates to the assets of the organisation, exceeded the monetary jurisdiction of the Magistrates Court. The appellants maintained throughout that the Association CBZ Account had as of the date of 18 December, 2018 held the sum of $35 157.41 and further that the value of transactions per month exceeded the $10 000 jurisdictional ceiling of the Magistrates Court.

The appellants in their opposing affidavits further insisted that the Association pooled gross sugarcane revenue for all its members who approximated one hundred and thirty individual farmers. The total revenue thereby collected exceeding half a million dollars. Reference was made to some of the immovable assets falling under the direct control of the executive whose gross value they indicated placed the matter well beyond the monetary jurisdiction of the Magistrates Court.

The closest the appellants came to confronting the question of jurisdiction is to be found in their closing submissions in the wake of the hearing of the application by the court a quo. Their position is captured in paragraph 4 of the said written submissions where it was stated that the monetary jurisdiction was $50 000 and that the $35 157.41 which was held in the Association bank account rendered the dispute properly within the court’s jurisdiction.

In the view of the Magistrate (as expressed in his ruling on that subject) the value of the property in dispute is irrelevant in a determination for an interdict.

The court went on to give a curious analogy of bus and its wheels. It being suggested that whereas a Magistrate Court may lack jurisdiction to entertain a dispute over a bus (supposedly because its value exceeds the court’s monetary jurisdiction) it may nonetheless have jurisdiction to interdict the removal of its wheels (supposedly because the value of the wheels falls within the court’s monetary jurisdiction). Apart from that analogy clearly contradicting the basic premise that jurisdiction is irrelevant in interdicts, it is also hardly applicable to the present situation.

This is because the interdict that the respondents sought related to “the whole bus” not just “its wheels” as clearly demonstrated by the draft order. They sought an order interdicting the 1st respondent from interacting in any manner on behalf of the association and that all five respondents be interdicted from making any transfers or withdrawals from all the Associations bank accounts (emphasis added).

That puts paid to the somewhat comical bus analogy.

Sadly, the court a quo’s misapprehension of matters attendant to the Magistrates Court’s jurisdiction in civil matters in general and interdicts in particular was carried forward to this court in this appeal by counsel for the respondents who strenuously argued that the value of the subject matter of contestation is irrelevant in respect of interdicts.

Section 11 of the Act spells out the jurisdiction of the Magistrates Court in civil matters. Not only does it set out the jurisdiction of that court in respect of the various types of cases that may be brought before it, but it also prescribes the monetary jurisdiction in respect of the same. More pertinently in Section 11(1)(b)(vii) it provides as follows:-

“11.	 Jurisdiction in civil cases

(1) 	Every court shall have in all civil cases, whether determinable by the general law of Zimbabwe or by customary law, the following jurisdiction—

(a) ---

(b) (i) – (vi) [ irrelevant]

(vii) in all these actions other than those already specified in this     paragraph, where the claim or the value of the matter in dispute does not exceed such amount as may be prescribed in the rules…”

Section 12 on the other hand provides as follows:-

“12 	Arrests and interdicts

Subject to the limits of jurisdiction prescribed by this Act, the court may grant against persons and things orders for arrest tamquam suspectus de fuga, attachments, interdicts and mandamenten van spolie”.

At the material time the monetary jurisdiction of the Magistrates Court was governed by SI 163/2012 (Magistrates Court (Civil Jurisdiction) (Monetary Limits) Rules, 2012 which provided a monetary ceiling of $10 000 for “Other actions: maximum value of claim or matter in dispute” (a category to which interdicts belong).

Counsel for the respondents was at pains to explain away these provisions when same were brought to his attention save to bravely persist with the argument monetary ceiling in civil matters is irrelevant when it comes to interdicts.

As a matter of fact this matter is almost on all fours with the South African Supreme Court of Appeal Case of Botha v Andrade 2009 (1) SA 259 (SCA). The question for determination in that appeal was the extent to which the jurisdiction of the Magistrates Court to grant an interdict under s 30(1) of the Magistrates Court Act 32 of 1944 (equivalent to our section 12) is limited by s 29(1)(g) of the Act (which is equivalent to our Section 11) which sets a monetary limit on the value of the subject in dispute. The court had this to say in this regard.

“The approach adopted by GOOSEN AJ in the court below, where he discusses the interrelationship between ss 28, 29 and 30 cannot be faulted. The Magistrate’s conclusion that s 29 was inapplicable to the granted of an interdict under s 30(1) is clearly incorrect. It seems to me that the two sections complement each other and where the limit of the Magistrates jurisdiction are required to be determined in interdict proceedings, in so far as the value of the matter in dispute in concerned, the two sections ought to be read together. Section 29 speaks to the value of the matter in dispute and s 30 limits the jurisdiction of the court to the limit in s 29, which at the present moment is fixed at R100 000. In my view this accords with the limitation placed on jurisdiction as a creature of statute. To follow the approach adopted by the Magistrate, which in effect places no jurisdictional limit at all on interdict orders granted in that court, cannot be correct, and would result in the court exercising parallel jurisdiction with the High Court, a consequence which could never have been contemplated by the legislature”

The court continued as follows:

“To hold, as the Magistrate did in this case, that s 29 of the Act is not applicable displays a lack of appreciation of the interplay between the two sections (i.e. 29 and 30). In Mans v Marais 1932 CPD 352 the interplay between the two sections and how they complement each other was neatly illustrated by GARDINER JP, where he rejected a contention similar to the approach adopted to the effect that s 29 applied to actions only. The learned judge said at 357):

‘it is contended that as this section refers throughout to actions, one of the limits upon the Magistrates jurisdiction is that he can try only actions, or matters connected with actions. But it seems to me a fair construction to apply it to say that the “limits” provided by section 29 are limits of amount. Actions are not limits. But are the things to which the limits are to be applied. By section 29 the limits are applied as actions; by section 30 they are applied to arrests, attachments, interdicts and mandamenten van spolie. A writ of spoliation cannot be granted by a Magistrates Court where the value of the property seized exceeds £200; that in the limit by which the Magistrates jurisdiction is confined, whether he is hearing an application for a spoliation, or he is trying an action.”

The court concluded as follows:

“It follows that s 29(1)(g) is applicable to interdicts granted by the Magistrates under s 30 and the section operates to set the jurisdictional limit of the value of the subject matter in dispute and other specific matters referred to in s 20”

The court a quo therefore clearly lacked jurisdiction to entertain the matter as the value of the property in respect of which the respondents sought to have the appellants interdicted from dealing with exceeded its monetary jurisdiction.

The only material difference between the Botha v Andrade case (supra) and the present one is that whereas in the former matter the respondents failed to establish that the value of the property exceeded the monetary jurisdiction of the court, in the latter, the respondents in their papers conceded at the very least that the bank balance in one of the accounts in question was over $35 000, and therefore exceeded the court’s jurisdiction.

It was on that basis that we upheld the appeal.

It has come to my attention that the decision has since been further appealed against to the Supreme Court. A perusal of the notice of appeal appears to suggest that it is apparently based on this court’s failure to appreciate that “there was a prior agreement by the parties to give a ruling”. No such argument was ever presented both in the court below and before this court.

It is for the above reasons that we upheld the appeal and gave the following order:

IT IS ORDERED THAT

The appeal be and is hereby upheld.

The decision of the court a quo be and is hereby set aside and substituted with the following:-

The point in limine in re-jurisdiction is upheld and the application be and is hereby dismissed for want of jurisdiction.

The respondents to meet the costs of this appeal.

Zisengwe J.

Wamambo J. agrees …………………………………………………………

Ross Chavi Law Office, Appellants legal practitioners

Muzenda & Chitsama Attorneys, respondents legal practitioners