GWARADZIMBA NO v CJ PETRON & CO (PTY) LTD

SUPREME COURT, HARARE

[Civil Appeal SC 12-16]

September 12, 2014 and March 11, 2016

ZIYAMBI, GARWE AND HLATSHWAYO JJA

Practice and procedure  –  Point in limine  –  Proceedings were properly before the court  –  Court proceeding to deal with the merits without first deciding on the point in limine  –  Point in limine must be decided first.

The respondent in a review application objected that the application was not properly before the court. The court, while noting the objection, did not dispose of the objection and dealt with the merits.

On appeal, in remitting the matter to the court a quo the court reaffirmed the dicta in Longman Zimbabwe (Pvt) Ltd v Midzi & Ors 2008 (1) ZLR 198 (S) at 203D 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.”

Held, that it was improper for the court to determine the substantive factual and legal issues without first disposing of the point in limine.

Cases cited:

GMB v Muchero 2008 (1) ZLR 216 (S), applied

Kazingizi v Dzinoruma 2006 (2) ZLR 217 (H), applied

Longman Zimbabwe (Pvt) Ltd v Midzi & Ors 2008 (1) ZLR 198 (S), dicta affirmed

Minister of Local Government, Rural & Urban Development NO & Anor v Machetu & Ors SC 34-12 (unreported), referred to

Muchapondwa v Madake & Ors 2006 (1) ZLR 196 (H), applied

S v Makawa & Anor 1991 (1) ZLR 142 (S), referred to

Legislation considered:

Administrative Justice Act [Chapter 10:28], ss 3, 4, 10 (2)(b)

Constitution of Zimbabwe Amendment (No 20) Act, 2013, s 69

Reconstruction of State-Indebted Insolvent Companies Act [Chapter 24:27], ss 4, 6 (b)

High Court Rules, 1971 (RGN 1047 of 1971), O 32 r 226, O 33

T Mpofu, for the appellant

AP de Bourbon SC, for the respondent

GARWE JA:

In a judgment handed down on 16 April 2014, the High Court made an order setting aside the decision of the appellant refusing the request made by the respondent for leave to institute civil proceedings against SMM Holdings (Pvt) Ltd (“SMM”). The court further granted leave to the respondent to institute the proceedings and ordered the appellant to pay the costs of the application.

This appeal is against that judgment.

Factual background

SMM is a company under a reconstruction order issued by the Minister of Justice, Legal & Parliamentary Affairs in terms of the Reconstruction of State-Indebted Insolvent Companies Act [Chapter 24:27] (“the Reconstruction Act”). The appellant was appointed administrator of SMM in September 2004. Upon such appointment, the appellant was conferred by law with the power, inter alia, to raise money, in order to turn around the fortunes of the company.

In 2008 and 2009, the appellant sought loans on behalf of SMM in order to purchase spares and other consumables from various South African suppliers. The spares and consumables were meant to capacitate Shabani Mine so that its mining operations could continue. As at 31 December 2010, the total amount outstanding on the two loans was US$ 3 635 158.31 which amount the appellant acknowledged was due and owing.

Efforts by the respondent to recover the debt were in vain. Accordingly, in June 2012, the respondent made a written request to the appellant to grant it leave to institute proceedings against SMM in terms of s 6 of the Reconstruction Act. On 28 August 2012, the appellant, through his legal practitioners, declined to give such leave. Consequently, the respondent filed a court application in November 2012 seeking an order setting aside the decision of the appellant refusing it leave to institute civil proceedings and for the court itself to grant such leave.

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