Motsamai (Private) Limited t/a Tuli Limpopo v Gwanda Rural District Council & 2 Ors

### Preamble
Judgment No. SC 131/20 1
Civil Appeal No. SC 244/19
REPORTABLE (123)
1
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REPORTABLE	(123)

MOTSAMAI     (PRIVATE)     LIMITED     t/a     TULI     LIMPOPO

v

GWANDA     RURAL     DISTRICT     COUNCIL

NATIONAL     PARKS     AND     WILDLIFE     MANAGEMENT     AUTHORITY

THE     OFFICER     IN     CHARGE     ZIMBABWE     REPUBLIC     POLICE     GWANDA

SUPREME COURT OF ZIMBABWE

GARWE JA; HLATSHWAYO JA; MAKONI JA

BULAWAYO, JULY 23 & 24 2019 & OCTOBER 12, 2020

T. Magwaliba, for the appellant

S. Chamunorwa, for the first respondent

No appearance for the second and third respondents

MAKONI JA:

This is an appeal against the whole judgment of the High Court handed down at Bulawayo in which it granted an interim interdict in favour of the first respondent.

The facts of the matter are as follows.

The appellant and the first respondent entered into a joint venture agreement in terms of which the appellant was granted the right to operate an “ecotourism farm development project” at Doddieburn-Manyole Ranch in Gwanda. The relationship between the parties broke down when the first respondent alleged that the appellant breached the terms of the agreement by conducting unsanctioned hunts. The first respondent also stated that the appellant had failed to meet some of its contractual obligations.

Pursuant to the alleged breach of the agreement, the first respondent wrote a letter giving the appellant 30 days written notice within which to remedy its breach in terms of clause 4.2(c) of the agreement. The appellant denied   breaching the terms of the agreement. The agreement was consequently terminated by the first respondent.

The first respondent approached the court a quo, on an urgent basis, seeking a Provisional Order in the following terms:

Terms of final order sought

That you show cause to this Honourable Court why a final order should not be made in the following terms:-

“1. Pending the finalisation of the arbitral proceedings, to be instituted in terms of Clause 11 of the Joint Venture Agreement dated 12 August 2016. The 1st Respondent, and all those claiming authority through it or acting on its behalf, be and is hereby interdicted from carrying on the business of a safari operator at Doddieburn Manyole farm including market, selling or conduct hunting and safari activities at the farm.

The 1st Respondent be and is hereby ordered to render all books of accounts to the applicant in respect of the period dating from 12 August to date of judgment.

The 1st Respondent be and is hereby ordered to furnish the Applicant with all TR2 Forms relating to all the hunts conducted at the farm in the period from 12 May 2016 to date of judgment.

The 1st Respondent, and all those claiming authority through it or acting on its behalf, be and is hereby directed to allow employees of the Applicant to enter Doddieburn Manyole farm to conduct perimeter wall inspections and repair of the fences and generally to carry out such activities as delegated by Council, pending the determination of the aforesaid arbitral proceedings.

The 3rd Respondent be and is hereby interdicted from issuing the 1st Respondent with any permits to conduct hunting activities without the written consent of the Applicant.

In the event that the 1st Respondent conducts any hunts without the requisite consent of the Applicant, the 2nd Respondent be and is hereby authorised to institute criminal prosecution proceedings against the 1st Respondent and its officers in terms of the law.

The 1st Respondent be and is hereby ordered to pay costs of suit.

Interim relief

Pending the determination of this matter, the applicant is granted the following relief.

1.	The 1st Respondent, and all those claiming authority through it or acting on its behalf, be and are hereby interdicted from carrying out hunting activities on 3 – 8 September 2018 or any date thereafter, at Doddieburn-Manyole Farm, without the knowledge and written consent of the Applicant.”

The application was opposed by the appellant which raised several points in limine. The gist of the preliminary points was that the matter was not urgent, the deponent to the founding affidavit was not authorised to represent the first respondent, and that the first respondent did not have the requisite and proper authority to terminate the agreement. It was also argued that the same dispute was pending before the court a quo under HC 2103/18. The appellant did not address the merits of the matter in the opposing affidavit. It indicated that it will seek leave of the court to address it if the matter proceeds to the merits.

In light of the fact that the dispute between the parties remained unresolved either by arbitration or in the pending matter in HC 2103/18, the court opined that it had to temporarily restore the status quo ante so that neither party could have an unfair advantage over the other until resolution of the dispute. The court stated that it had the mandate to grant interim relief in terms of Article 9(3) of the UNCITRAL Model Law as set out in the schedule to the Arbitration Act [Chapter 7:15] (“the Model Law”) where an arbitrator has not yet been appointed and the matter is urgent.

It was the court`s finding that the dispute between the parties narrowed down to the question of whether the legality of a hunt was to be sanctioned by the National Parks and Wildlife Management Authority or in terms of the Joint Venture Agreement between the parties. It accordingly found that the appellant could not circumvent the agreement by enlisting the services of the National Parks and Wildlife Authority by virtue of its general statutory mandate in the absence of clear statutory provision or a clause in the agreement conferring it with the status of a regulatory authority.

The court held that in the circumstances of the case, the first respondent had made a prima facie case for the grant of the interim relief and granted, seven months after the filing of the urgent application, the following relief:

“Pending the determination of this matter, applicant is granted the following relief:

That the 1st respondent, and all those claiming authority through it, or acting on its behalf be and are hereby interdicted from carrying out hunting activities at Doddieburn-Manyole Farm, without the knowledge and written consent of the applicant.”

I must at this stage observe that the court a quo did not grant the Provisional Order but only the interim interdict.  It deleted all reference to the terms of the final order sought. It also amended the terms of the draft interim relief sought. It however did not give reasons for granting the order as amended.

Aggrieved by that decision, the appellant noted an appeal to this Court on the following grounds:

The court a quo failed to exercise its discretion judiciously by treating the matter as urgent while at the same time acknowledging that it pertained to events that had been overtaken by events and, also thereafter rendering its judgment seven months later.

The court a quo erred in accepting and dealing with an application where there was no valid affidavit signed by a person duly authorized to represent the first respondent.

The court a quo erred in granting an interdict when all the requirements for the granting of a prohibitory interdict had not been satisfied.

At the hearing of this appeal, the parties’ arguments were premised on the issue of whether the appeal was prohibited by Article 9(1) of the Model Law. Mr Magwaliba, who appeared for the appellant, submitted that the court a quo granted an ordinary common law interdict as opposed to an interdict in terms of Article 9(1) of the Model Law. He submitted that this appeared from the terms of the interim relief couched in part as follows:

“Pending the determination of this matter, applicant is granted the following relief …”

The final relief sought, which was not granted in the chamber application, was the relief that was contemplated in terms of Article 9(1) of the Model Law. He further contended that the interim relief in terms of Article 9(1) of the Model Law cannot be granted pending the resolution of the High Court proceedings as in casu, but pending the appointment of an arbitrator or resolution of the arbitration proceedings. He concluded by saying the appellant had a right of appeal against the decision of the court a quo.

On the other hand, Mr Chamunorwa, for the first respondent, submitted that the appeal is incompetent and a nullity in that it is prohibited by Article 9(4) of the Model Law. He further contended that the first respondent`s founding affidavit stated the nature of the cause of action as being an urgent interim interdict against the appellant to stop hunting activities pending the arbitration proceedings. He also submitted that the sentiments expressed by the court a quo confirm that it rendered judgment in terms of the Model Law.

The appellant in response insisted that the proceedings in the court a quo were not in terms of the Model Law. It averred that the failure by the court a quo to deal with the preliminary objections it had raised when it determined the application for interim protection renders the judgment as one done outside Article 9(1). It further submitted that the court’s decision is therefore appealable and the court maintains its jurisdiction to deal with the matter in terms of s 21 of the Supreme Court Act [Chapter 7:13] (the Act). The appellant also contended that Article 9(4) must be narrowly construed as it limits the constitutionally entrenched right of access to the courts.

To the contrary, the respondent submits that if it is established that the proceedings in the court a quo were in terms of the Model Law, the appeal ought to fail. The respondent further asserts that this Court cannot exercise its appellate jurisdiction in terms of s 22 of the Act to interfere with the court a quo’s order since there is no valid appeal before the court.

From the above submissions, it seems to me that the issue that  arises for determination in this matter is  whether the proceedings in the court a quo were in terms of the Model Law and if so the effect thereof.

A resolution of this issue in the affirmative would mean that the appellant would have no right to appeal against the judgment of the court a quo, and that would dispose of the entire appeal. It is therefore imperative to have regard to the nature of the proceedings a quo and how the court determined the application placed before it.

It is common cause that the agreement between the parties contained an arbitration clause. Clause 11.1 is pertinent in this regard and it provided as follows:

“Any dispute between the parties arising under this agreement whether before or after termination shall be referred to arbitration in accordance with the provisions of the Arbitration Act or any statutory modification or re-enactment for the time being in force in Zimbabwe. The arbitrator shall be appointed by the parties and failing agreement on the appointment of the arbitrator, the President of the Law Society of Zimbabwe shall appoint the arbitrator.”

The first respondent argues that the appeal before the court is a nullity as it is prohibited by Article 9(4) of the Model Law. The first respondent further states that the court a quo in granting the interim interdict, pending arbitration proceedings, was exercising the interventionary power conferred upon it by the Model Law as opposed to its inherent jurisdiction to grant common law interdicts.

The first respondent`s cause of action before the court a quo was clearly stated in para 17 of its founding affidavit. It read as follows:

“The applicant is approaching this Honourable Court for urgent ex parte relief in the form of an interim interdict against the 1st respondent that it stops all present and future hunting activities or the disposal of wildlife at the applicant`s farm pending the arbitration proceedings and, further, that it allows Council employees unhindered access to the farm as contemplated by the JVA amongst other ancillary relief”

Article 5 of the Model Law regulates the extent of a court`s involvement in any matters that are governed by the Model Law. It provides:

“Extent of court intervention

In matters governed by this Model Law, no court shall intervene except where so provided in this Model Law.”

Consequently, the court a quo could only intervene in limited circumstances and the court`s powers to intervene in the dispute and grant interim relief are set out in Article 9 of the Model Law. It provides:

“(1) It is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from the High Court an interim measure of protection and, subject to paragraphs (2) and (3) of this article, for the High Court to grant such measure.

(2) Upon a request in terms of paragraph (1) of this article, the High Court may grant—

(c) an interdict or other interim order; or

(3) The High Court shall not grant an order or interdict in terms of paragraph (1) of this article unless—

(a) the arbitral tribunal has not yet been appointed and the matter is urgent; or

(b) the arbitral tribunal is not competent to grant the order or interdict; or

(c) the urgency of the matter makes it impracticable to seek such order or interdict from the arbitral tribunal;

and the High Court shall not grant any such order or interdict where the arbitral tribunal, being competent to grant the order or interdict, has determined an application therefor.” (emphasis added)

There is ample evidence on record that suggests that the court a quo was alive to the parameters within which it was to be involved in the dispute between the parties. It comments as follows, at page 4 of the cyclostyled, judgment:

“I notice further that applicant`s application is premised on Article 5 as read with Article 9 of the Model Law. Article 9 empowers the court to grant interim relief such as an interdict or other interim order in the event that a party to an agreement which is subject to arbitration in terms of the Act requests the same (Article 9(2)(c) of the Model Law). Applicant stated that a letter has been written to the President of the Law Society of Zimbabwe requesting an appointment of an arbitral tribunal in terms of clause 11 of the joint venture agreement. The arbitral tribunal is yet to be appointed. First respondent contends that the court should guard against granting relief pending alleged intended arbitration proceedings that may eventually never take place. However, Article 9(3)(a) of the Model Law provides that the court shall not grant an interdict unless the court is dealing with a matter when the arbitral tribunal has not yet been appointed and the matter is urgent. In the circumstances therefore, the court would be within its mandate and discretion to grant interim relief.”

A clear interpretation of Article 9 of the Model Law will show that the High Court can grant interim relief such as an interdict or interim order and that such remedies are not inconsistent with arbitration agreements. In casu, the court a quo granted provisional relief in the form of an interim interdict. It cannot be gainsaid that the relief granted by the court a quo falls within the purview of the court`s powers in terms of Article 9(2).

This Court is therefore of the view that the court a quo was acting within the ambit of Article 9 when it granted the interim interdict in favour of the first respondent. The argument by the appellant that the court a quo was exercising its inherent jurisdiction and granted a common law interdict does not find favour with this Court because it is not supported by either the record or the evidence.

Further, the appellant in its heads of argument filed in the court a quo accepted that the application was based on Article 5 as read with Article 9 of the Model Law and that the first respondent had the right to approach this Court for interim relief pendete lite. Its only contention was that the facts did not justify the relief. Having accepted this, it is disingenuous of the appellant to submit to the contrary on appeal.

Consequently Article 9(4) of the Model Law was applicable. That article states that the decision of the court a quo shall not be subject to appeal. This provision is couched in clear and peremptory terms which admit of no doubt. Where the language in a statute is clear, it is to be given its grammatical and ordinary meaning, unless this would result in some absurdity or repugnancy. This is the golden rule of interpretation of statutes. (See Chihava & Ors v The Provincial Magistrate Francis Mapfumo N.O & Anor CCZ 6/15).

In the instant case, the literal interpretation of Article 9(4) does not lead to an absurdity. The provision is exceptionally clear in its meaning that the appellant has no right to appeal against the decision of the court a quo. Therefore, in this instance, the law itself ousts that right of appeal in no uncertain terms.

In National Telephone Co Ltd v His Majesty`s Postmaster General [1913] 2 KB 614 (CA) it was held as follows at 621:

“The creation of a right of appeal is an act which requires legislative authority. Neither the inferior court nor the superior court nor both can create such a right, it being essentially one of limitation and of the extension of jurisdiction.”

By parity of reasoning, where the right of appeal has specifically been ousted by the Legislature, it is not incumbent upon the courts to create such a right. In casu, the right of appeal is explicitly and specifically ousted by the Model Law. Accordingly, I find no merit in the appellant’s submission that the proceedings in the court a quo were not in terms of the Model Law or that this Court can exercise its appellate jurisdiction in terms of s 22 of the Act to deal with the matter.

Accordingly, the appeal is not properly before the court and should be struck off the roll.

After these deliberations, and in view of the following irregularities

(a) that the court a quo had not dealt with some of the issues raised before it,

(b) that the court a quo initially granted the provisional order as prayed for but later cancelled its signature

(c) that it went on to grant interim relief only which was an amended version of the draft interim relief without giving reasons,

and at the request of the court, the parties made further written submissions in response to the following questions:

In the event that this Court finds that the application heard by the court a quo was one under the Model Law (in which case there would be no right of appeal to the Supreme Court), what would be the fate of the irregular order issued by the High Court.

The effect, on proceedings conducted by the court a quo, of the failure to deal with preliminary issues raised by the respondent a quo.

Whether the Supreme Court can invoke the provision of section 25 of the Supreme Court Act [Chapter 7:13] (the Act) in relation to irregularities in proceedings conducted under the Model Law.

From the above issues the questions that arise for determination are what would be the fate of the irregular order issued by the High Court and whether the court can invoke s 25 of the Act to rectify irregular proceedings conducted under the Model Law a quo.

The appellant contended that the court a quo’s failure to deal with the preliminary points raised regarding the validity of the respondent’s founding affidavit and whether the matter was urgent renders the proceedings in the court a quo grossly irregular. As such, the appellant argued that, apart from using its jurisdiction in terms of s 22 of the Act, the court may invoke its powers of review in terms of s 25 of the Act to rectify the irregular decision of the court a quo.

Per contra, the respondent avers that the appropriate recourse would be a remittal to the court a quo for a decision on the issues it omitted to dispose of. The respondent also submitted that this Court cannot invoke s 25 of the Act concerning irregularities in proceedings under the Model Law as it enjoys the same powers of review as the court a quo. To this end, the respondent cites Kwaramba v Bhunu N.O 2012 (2) ZLR 358 (S) for the proposition that the Supreme Court cannot review the judgment of another judge of the same jurisdiction.

The issue, therefore, narrows down to whether this Court can employ s 25 of the Act to deal with the irregularity. Section 25 of the Act confers upon this Court the power to review proceedings and decisions of inferior courts of justice, tribunals or administrative authorities to the following extent:

“25 Review powers

(1) Subject to this section, the Supreme Court and every judge of the Supreme Court shall have the same power, jurisdiction and authority as are vested in the High Court and judges of the High Court, respectively, to review the proceedings and decisions of inferior courts of justice, tribunals and administrative authorities.

(2) The power, jurisdiction and authority conferred by subsection (1) may be exercised whenever it comes to the notice of the Supreme Court or a judge of the Supreme Court that an irregularity has occurred in any proceedings or in the making of any decision notwithstanding that such proceedings are, or such decision is, not the subject of an appeal or application to the Supreme Court.

(3) Nothing in this section shall be construed as conferring upon any person any right to institute any review in the first instance before the Supreme Court or a judge of the Supreme Court, and provision may be made in rules of court, and a judge of the Supreme Court may give directions, specifying that any class of review or any particular review shall be instituted before or shall be referred or remitted to the High Court for determination.”

It is settled that s 25(2) of the Act widens the parameters in which this Court may review irregular proceedings and decisions of lower courts, tribunals or administrative authorities, although these may not be the subject of the appeal or application the court is seized with. Nonetheless, a litigant cannot approach this Court for review in the first instance.

The point was made in The Chairman Zimbabwe Electoral Commission and Anor v Bennet and Anor SC 48/05, where the court shed light on the import of s 25(2) as follows:

“What is also clear from a reading of s 25 is that, but for s 25(2), the Supreme Court would be unable to correct such irregularities as are envisaged in that subsection unless such proceedings were the subject of an appeal or application properly before it. Thus s 25(2) relaxes, to the extent stated therein, the limitation on the jurisdiction of the Supreme Court to appeals and applications in terms of s 24 of the Constitution.”

The logical consequence of such an interpretation is that a finding that an appeal is not competent at law does not limit the appellate court’s powers to review any irregularities evident in lower court proceedings which have been raised as part of the appeal.

The contention that this Court cannot review the decision of a High Court judge as that would be tantamount to reviewing a judgement of another judge of the same jurisdiction as pronounced in Kwaramba v Bhunu (supra) does not assist the respondent. In Kwaramba v Bhunu (supra), a judge, by way of chamber application, was seized with a request of the opinion of a judge and directions on whether an application for review could be instituted in this Court against the decision of the High Court in a bail application. The court remarked thus at p 4 of the judgment:

“I have considered the request for directions and concluded that on the facts of this case it is not competent for a Judge of this Court to issue directions for the review of a High Court judgment in terms of s 25 of the Act.   See Chairman, Zimbabwe Electoral Commission and Anor v Bennett and Anor 2005 (2) ZLR 296 (S) and Nherera v Kudya N.O. 2007 ZLR 253 (S).”

At p10, it further remarked:

“Sections 17(h) and 25 of the Act confer concurrent review jurisdiction on the Supreme Court with the High Court over inferior tribunals. What this means is that a Supreme Court Judge, in the exercise of jurisdiction conferred by ss 17 and 25 of the Act, has the same review jurisdiction as a High Court Judge.  A Judge cannot order the review of a judgment of another Judge of the same jurisdiction. Thus, from a jurisdictional standpoint, the request is not competent. See Chairman, Zimbabwe Electoral Commission and Anor v Bennett and Anor supra and Nherera v Kudya N.O.” (supra).

In my view the above position that a “Supreme Court Judge, in the exercise of jurisdiction conferred by s 25 of the Act, has the same review jurisdiction as a High Court Judge” is, with respect, not correct. I agree with the approach taken in Zimasco (Pvt) Ltd v Marikano 2014 (1) ZLR 1 (S) at 6F-&7D which was recently quoted with approval in Joseph Lungu & Others v Reserve Bank of Zimbabwe SC 1/17 at p 6 of the cyclostyled judgment. In the two matters this Court was dealing with a similarly worded provision in the Labour Act [Chapter 28:01]. The relevant provision, s 89 (i)(d)(1), provides that the Labour Court shall exercise the same powers of review as would be exercisable by the High Court in respect of labour matters. The following was stated:

“The above provisions are, in my view, clear and unambiguous. In respect of labour matters, the Labour Court shall exercise the same powers of review as does the High Court in other matters.  The jurisdiction to exercise these powers of review is in addition, and not subject, to the power the court has to hear and determine applications in terms of the Act ….

The suggestion that the Labour Court has been given the same power of review as would be exercisable by the High Court in respect of labour matters is, in my considered view, incorrect and inconsistent with the provisions of the Act.  I say this for two reasons.  Firstly, the Act is clear that no court, other than the Labour Court, shall have jurisdiction in the first instance, to hear and determine any application, appeal or matter referred to in s 89(1) of the Act – see s 89(6) of the Act …. Secondly, it is clear that the interpretation given relies on a superficial reading of the wording of s 89(1)(d) [sic]. The section should be understood to mean ‘the same powers of review in respect of labour matters as would be exercisable by the High Court’ or alternatively ‘the same powers of review, as would be exercisable by the High Court, in respect of labour matters’.  Any other reading of the paragraph would clearly result in an absurdity.” (My own underlining)

Similarly, the meaning and import of s 25 of the Act should be that the Supreme Court would have the same powers of review as is exercisable by the High Court as any other reading would clearly lead to an absurdity. As the High Court is inferior to the Supreme Court, the Supreme Court would have the power of review, similar to that exercisable by the High Court, to review irregular proceedings of the High Court itself as well as other courts, tribunals and administrative authorities.

In any event the present situation is distinguishable from Kwaramba v Bhunu (supra) in that the powers of review are not being exercised upon application for review in the first instance. Rather, they emanate from irregular proceedings of the High Court which were subject of an appeal. Additionally the decision was made by a judge in chambers and is not binding on this Court.

In casu, the irregularity has been brought to the attention of court at the instance of the appellant as part of the appeal. The fact that the appeal itself is prohibited by the Model Law does not limit the wide powers of review conferred on this Court by s 25 of the Act. The determinant factor is that it is a decision of an inferior court to the Supreme Court which has come to the notice of the court. In casu the court a quo was the High Court exercising powers conferred to it by the Model Law, which court, happens to be an inferior court to this Court. As such, this Court can competently exercise its powers of review as regards the irregular decision made by the court a quo.

It is a settled position of the law that failure by a court to address issues placed before it constitutes a gross irregularity which vitiates the proceedings. The remarks by this Court in Gwaradzimba N.O v C.J Petron & Co (Pvt) Ltd SC 12/16 are apposite wherein the court at p 7 opined that:

“...a court must not make a determination on only one of the issues raised by the parties and say nothing about other equally important issues raised, “unless the issue so determined can put the whole matter to rest” – Longman Zimbabwe (Pvt) Limited v Midzi & Ors 2008 (1) ZLR 198, 203 D (S)” see also PG Industries v Bverekwa & Ors SC 53/16.

The other exception relates to an instance where the parties specifically withdraw all or some of the issues from judicial consideration. See Maswanganyi obo Machimane v Road Accident Fund (1175/2017) [2019] ZASCA 97.

In casu, there is no doubt that the learned judge in the court a quo left the two preliminary objections regarding the validity of the founding affidavit and urgency of the matter unresolved when it dealt with the application for interim protection placed before it. No reasons were advanced for that non-inclusion. Such is tantamount to an omission to consider and give reasons, a gross irregularity which vitiates the entire proceedings a quo – S v Makawa & Anor 1991 (1) ZLR 142.

There was no common ground between the parties as to the consequential disposal of the appeal if this Court finds that the court a quo failed to deal with all the issues placed before it. The appellant submitted that the court can invoke its powers of review to rectify the irregular decision of the court a quo. The respondent, on the other hand, and relying on Kwaramba v Bhunu (supra) submitted that a remittal would be appropriate in the circumstances as this Court lacked jurisdiction to review the decision of another judge of the same jurisdiction.

Having found that there was a gross irregularity in the manner the court a quo dealt with this matter, and pursuant to the powers conferred by s 25 of the Act, this would be a proper case to remit to the court a quo for it to determine the outstanding issues.  As  for costs, there is no reason to depart from the norm that costs should follow the cause.

It is accordingly ordered as follows

The appeal is struck off the roll with costs.

Pursuant to the powers of this Court under s 25 of the Supreme court Act, the decision of the court a quo be and is hereby set aside.

The matter is remitted to the court a quo for the determination of the points in limine.

GARWE JA:				I agree

HLATSHWAYO JA:		I agree

Moyo & Nyoni, appellant’s legal practitioners

Messrs, Calderwood, Bryce Hendrie & Partners, 1st respondent’s legal practitioners