Chenga v Chikadaya & Others (SC 7 of 2013, Civil Appeal SC 232 of 2010) [2013] ZWSC 7 (24

February 2013);

1. When does an appellate court interfere with the decision of a trial court?
2. Bonafide v Mala fide purchaser.
3. The Remedy of Rei Vindicio
4. Res litigious.
(a) Appellate Court interfering with decisions of the trial court.

 It is trite that an appellate court will not interfere with a decision of a trial court
based on findings of fact, unless there is a clear misdirection or the decision
reached is irrational. In the case of Hama v National Railways of Zimbabwe 1996 (1)
ZLR 664 (S) at 670C-E KORSAH JA stated the following:
“The general rule of the law, as regards irrationality, is that an appellate
court will not interfere with a decision of a trial court based purely on a
finding of fact unless it is satisfied that, having regard to the evidence
placed before the trial court, the finding complained of is so outrageous in
its defiance of logic or of accepted moral standards that no sensible
person  D  who had applied his mind to the question to be decided could
have arrived at such a conclusion: Bitcon v Rosenberg 1936 AD 380 at
395-7; Secretary of State for Education & Science v Metropolitan Borough
of Tameside [1976] 3 All ER 665 (CA) at 671E-H; CCSU v Min for the Civil
Service supra at 951A-B; PF-ZAPU v Min of Justice (2) 1985 (1) ZLR 305
(S) at 326E-G.” 
(b) Bonafide v Malafide purchaser.

(c) Rei Vindicio

 Common law remedy that is available to an owner of the property for its recovery from the
possession of any other person. In such action, there are two essential elements of the remedy
that require to be proved. These are: proof of ownership and possession of the property in
question by another person. Once the two requirements are met, the onus shifts to the
respondent to justify his occupation.

 Wille and Millin's in their book Mercantile Law in South Africa” by Phillip Millin and
George Wille, 18th edition at p 182 states that:
“If, however a vendor knowing himself not to be the true owner of the
thing, represents himself to be the owner of ascertained goods, and sells
them to a person ignorant of the truth so as to wilfully to expose the latter
to the danger of having the possession taken away from him by the true
owner, the law regards such conduct on the part of the vendor as
fraudulent; and the buyer is entitled to repudiate the contract and sue the
seller for damages even before he is evicted. This reflects the view of De
Villers JA in Kleynhans Bros v Wessels’s Trustee 1927 AD 271, and is
 submitted to be preferable to the contrary view of Wessels JA in that case
– at least as regards the sale of a specific merx.”
 It was pointed out by LORD DENNING in Macfoy v United Africa Company
limited (1961) 3 All ER 1169 (PC) at 1172:
“If an act is void, then it is in law a nullity. It is not only bad, but incurably
bad. There is no need for an order of court to set it aside. It is automatically
null and void without more ado, though it is sometimes convenient to have
the court declare it to be so. And every proceeding which is founded on it
is also bad and incurably bad. You cannot put something on nothing and
expect it to stay there. It will collapse.”
 The same sentiments were also echoed by MAKARAU JP, as she then was,
in Katirawu v Katirawu & Ors HH-58-07 at p 5 of the cyclostyled judgement when
she said:
“... Nothing legal can flow from a fraud. His appointment was null and
void ab initio on account of fraud. It is as if it was never made. It is a
nothing and upon which nothing of consequence can hang.”
(d) Nemo day quod non Janet
 It is a common law principle which means no one can transfer more rights to another than he
himself has. Thus, a person who is not the legitimate owner of the property in question can not
purport to sell it and cannot transfer the right of ownership which he did not possess.
(e) Res litigiosa
 In Waikiki Shipping Company Limited v Thomas Barlaw and Sons (Natal) Ltd and Anor 1978 (1) SA
671 at 676 H the court defined “res litigiosa” as objects that are the subject matter of
litigation.

 In Zimbabwe Banking Corporation Ltd & Anor v Shiku Distributors (Pvt) Ltd and
Ors 2000 (2) ZLR 11 (H) at 18F the court held that:
“- - - a res litigiosa may not be sold after institution of action as there is no-
one who can be enriched by the right as everyone has an equal right to
prosecute it.”
 It is trite that all personal actions have the effect of rendering their subject matter res litigious
at the stage of litis contestatio. The relevant stage is not the time of commencement of action,
but the time of litis contestatio.
 In the case of Opera House (Grand Parade) Restaurant (Pvt) Ltd v Cape Town City Council 1986
(2) SA 656 (C), it was held that in a real action (action in rem) the land becomes res litigiosa on
the service of summons while in a personal action, that status was achieved at the closure of
pleadings.
 It is now settled in our law that where an object is res litigiosa this does not preclude or
prevent it from being alienated or similarly dealt with, as long as the rights of the non-
alienating litigant in the res are protected. See the cyclostyled judgment of Supa Plant
Investments (Pvt) Ltd v Edgar Chidavaenzi HH-92-09 at p 6-7.
 1. Citation of Parties.

It is essential in proceedings to clearly define the parties before court.

The authors Herbestein and Van Winsen in The Civil Practice of the High Courts and the
Supreme Court of Appeal of South Africa 5th Ed p 143 put it this was;
“Before one cites a party in a summons or in application proceedings, it is important to
consider whether the party has locus standi to sue or be sued (legitima persona standi in
judicio) ad to ascertain what the correct citation of the party is.”
This enables the appropriate party to respond accordingly and it saves time on the part of the court.

The court would then deal with the substantive dispute between the parties rather than being
bogged down with preliminary issues.

2. Whether leave of court is required before determining the issue of condition where an
answering affidavit is filed after the parties have filed heads of argument. (Application for
condonation).

Ndou J in Magurenje v Maphosa & Ors 2005 (2) ZLR 44 (HC) at 47 had this to say:

“ In my view, the filing of an answering affidavit after the parties have filed heads
of argument can only be done in exceptional cases and only with the leave of the
judge. The applicant did not seek such leave.  Instead, he submitted that he was
entitle to do so in terms of the rules.  He is mistaken as such a procedure would
defeat the whole purpose of filing heads of argument as set out in Order r 238 (1)
(a).  For departure from the proper sequence, the indulgence from court or judge
is necessary.  In this record, I refer to James Brown & Hamer (Pty) Ltd v Simmons
NO 1963 (4) SA 656 (A) where at 660 D-F Ogilvie Thompson JA said:
“It is in the interest of the administration of justice that the well known and well
established general rules regarding the number of sets and the proper sequence of
affidavits in motion proceedings should ordinarily be observed.  That is not to say
that those general rules must always be rigidly applied: some flexibility controlled
by the presiding judge exercising his discretion in relation to the facts of the case
before him, must necessarily also be permitted. (my emphasis)”
The requirements for an application for condonation are well captured by
Sandura JA in Kodzwa v Secretary for Health & Anor 1999(1) ZLR 313 (S) at 315
B-D.
 “The factors which the court should consider in determining a n
application for condonation are clearly set out in Herbestein  & Van
Winsen’s The Civil Practice of the Supreme Court of South Africa 4 ed by van
Winsen, Cilliers and Loots at pp 897-898 as follows:
“Condonation of the non-observance of the rules is by no means a
mere formality.  It is for the applicant to satisfy the court that there
is sufficient cause to excuse him from compliance….
The court’s power to grant relief should not be exercised arbitrarily and
upon the mere asking, but with proper judicial discretion and upon
 sufficient and satisfactory grounds being shown, the basic principle is that
the court has a discretion, to be exercised judicially upon a consideration of
all the facts, and in essence it is a matter of fairness to both sides in which
the court will endeavor to reach a conclusion that will be in the best
interests of justice.  The factors usually weighed by the court in
considering applications for condonation…. Include the degree of non-
compliance, the explanation for it, the importance of the case, the
prospects of success, the respondent’s interest in the finality of his
judgment, the convenience of the court and the avoidance of unnecessary
delay in the administration of justice.”
Implicit is that the court is enjoined to exercise it’s discretion in the interests of justice
and when the reasons for non-compliance with rules have been explained to the
satisfaction of the court grant condonation.
Where the degree of non-compliance to the rules is gross: The remarks by Chidyausiku J
(as he then was) in Lovemore Sango v Chairman of The Publicc Service Commission and
Anor HH 28 -96 p 2 of the cyclostyled judgment are apposite.
“Those who sit on their litigation until cows come home have only themselves to blame
if condonation is refused when they finally wake up from their years of somnambulism”
A case stands or falls on it’s found papers- Makoni J in Turnor and Sons (Supra)
The answering affidavit must not contain fresh allegations (Condonation).
The answering affidavit sought to be condoned is not to be used to bring fresh
allegations against the opposing party (ies) as the door would have been closed to them
before they could be responded.
As was stated by the authors Herbestein and Van Winsen- The Civil Practice of The High
Courts and the Supreme Courts of Appeal of South Africa: 5th Ed at p 429
“The primary purpose of the replying affidavit (answering affidavit) is to put up evidence
which serves to refute the case made out by the respondent in the answering affidavit
(notice of opposition).”
Answering affidavits must not be voluminous in nature:
In preparing Answering Affidavits consideration should be given to the remarks by
Schustz JA in Minister of Environment Affairs and Tourism and Others v Phambili Fisheries
(Pty) Ltd; Minister of Environmental Affairs and Tourism and Others v Bato Fishing (Pty)
Ltd 2003 (6) SA 407 (SCA) at 439 G-H where he stated;
“There is one other matter that I am compelled to mention-replying
affidavits.  In the great majority of cases the replying affidavit should be by
far the shortest.  But in practice it is very often by far the longest- and the
most valueless.  It was so in these reviews.  The respondents, who were
the applicants below, filed replying affidavits of inordinate length.  Being
forced to wade through their almost endless repetition when the pleading
of the case is all but over brings about irritation, not persuasion.  It is time
that the courts declare war on unnecessarily prolix replying affidavits and
upon those who inflate them.”
3. The sequence of affidavits in motions proceedings is set out in Order 32:
  Rule 230 – Founding affidavit
 Rule 233- Notice of opposition and Opposing Affidavits
 Rule 234- Answering affidavit
 Rule 235 – Further affidavits

Thereafter the rules provide for set down of the matter and the filing of Heads of Argument in Rules
236 and 283 respectively. See Turner & Sons (Pvt) Ltd v Master of the High Court & Ors (HC 9904 of
2011) [2015] ZWHHC 498 (02 June 2015);

Makoni J in Turner & Sons (Supra) pronounced that:

“The thinking of the drafters of the rules was that Heads of Argument, in which legal
arguments are presented, are filed after parties have presented their factual positions, in
affidavits, before the court.  This is in order to avoid the situation that the applicant found
itself in where a substantial portion of its answering affidavit is devoted to answering the
legal arguments raised in the Interveners Heads of Argument.    My view is that an applicant
who intends to file an Answering Affidavit after the filing of Heads of Argument must seek
leave of the court and must be able to establish a proper and satisfactory explanation why the
answering affidavit was not filed in proper sequence.”

4. Litigation meant to harrass or delay finalisation of the case:

5. Mc Nally said the following in Ndebele v Ncube 1992 (1) ZLR 288 (S) at 290 C-E:
6. “It is the policy of the law that there should be finality in litigation.  On the other
hand, one does not want to do injustice to litigants.  But it must be observed that
in recent years applications for rescission, for condonation, for leave to apply or
appeal out of time, and for other relief arising out of delays either by the
individual or his lawyer have rocketed in numbers.  We are bombared with
excuses for failure to act. We are beginning to hear more appeals for charity than
for justice.  In competence is becoming a growth industry.  Petty disputes are
argued and then re-argued until the costs far exceed the capital amount in
dispute.  The time has come to remind the legal profession of the old
adage, vigilantibus non dormientibus subveniunt-roughly translated, the law will
help the vigilant but not the sluggard.”
https://www.zimlii.org/zw/judgment/harare-high-court/2015/498