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Hwange Coal Gasification Company (Private) Limited v Paarlweb Investments (Private) Limited & Anor
SC 53/25SC 53/252025
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### Preamble Judgment No. SC 53/25 1 Chamber Application No. SC 471/24 --------- REPORTABLE (53) HWANGE COAL GASIFICATION COMPANY (PRIVATE) LIMITED v PAARLWEB INVESTMENTS (PRIVATE) LIMITED (2) AFROCHINE SMELTING SUPREME COURT OF ZIMBABWE HARARE: 23 AUGUST 2024 & 28 OCTOBER 2024 & 3 JULY 2025 E. Mubaiwa with T. Danana, for the applicant G. Maromo with G. Nyengedza, for the respondent IN CHAMBERS CHIWESHE JA: This is an opposed chamber application for condonation and extension of time within which to inspect and certify the record of appeal and for reinstatement of the appeal in SC 344/24 made in terms of r 43 (1) as read with r 70 (2) of the Supreme Court Rules, 2018. It is trite that in applications of this nature the court exercises its discretion in determining whether good cause has been shown to warrant the grant of the indulgence sought by a litigant who has infringed its rules. In exercising that discretion the court is guided by a number of factors chief among which are the extent of the delay in complying with the infringed rule, the reasonableness of the explanation proffered for such delay and the prospects of success in the intended appeal. See Bishi v Secretary for Education1989 (2) ZLR 240 (H). THE FACTS The applicant was aggrieved by the decision of the High Court (the court a quo) granting an interdict against it in favour of the first respondent (applicant a quo) in the following terms: “1. The application for an interdict is granted. The first respondent retracts the contents of its letters to the Zimbabwe Revenue Authority dated 15 February 2024 and to the second respondent dated 17 April 2024: such retraction shall be communicated to the state agencies to whom the said letters were copied. The first respondent is interdicted from making further communication repeating the allegations contained in the letters referred to in para 2 hereof to any person whatsoever. The first respondent shall pay costs on the attorney client scale”. The applicant noted an appeal against that decision in this Court under SC 344/24. However, that appeal was, by operation of law, deemed abandoned and dismissed for failure by the applicant to inspect and certify the record of proceedings within the time prescribed by the Rules of Court. The applicant now seeks condonation for that infringement and reinstatement of its appeal. THE EXTENT OF THE DELAY AND THE EXPLANATION THEREFOR The applicant states that it was unable to upload its certificate of inspection by the deadline date of 3 July 2024 because of network problems on the IECMS system. It only managed to do so on 4 July 2024, a day after the dies induciae had lapsed. As a result, its appeal was deemed to have been abandoned and dismissed. However, the first respondent avers that the reason given by the applicant for the delay is false in that in a previous application, the applicant had said that it was the IECMS system which was down. It had promised to submit a system failure report. It has not submitted such report and instead it now blames the network and not a failure of the IECMS system. The applicant’s explanation is that to all intents and purposes it faced technical problems in its quest to comply with the rules. As no technical evidence has been adduced to show that the applicant’s explanation is false or misleading, the applicant must be given the benefit of the doubt, more so in view of the fact that the period of the delay was not inordinate. In the circumstances, the delay not being inordinate and the explanation for such delay being reasonable, the applicant deserves the indulgence of condonation in that regard. PROSPECTS OF SUCCESS IN THE INTENDED APPEAL The applicant’s first ground of appeal attacks the decision of the court a quo to hear the matter before it on an urgent basis. This ground has no merit whatsoever. In C. G. D Chiwenga v M. Mubaiwa SC 86/20 this Court held that the hearing of a matter on an urgent basis is not appealable as it does not affect the correctness of a judgment arrived at after a litigant is allowed to be heard ahead of other litigants. The court went further to state that-: “Looked at differently, an order granting the urgent hearing of a matter is generally not appealable. This is for the simple reason that the order has no bearing on the merits of the application or judgment.” In its heads of argument the applicant conceded that the first ground had no merit. The matter must end there. The rest of the grounds of appeal (other than the last ground relating to costs), do not address the real issue before the court a quo. The real issue before the court a quo was an application for an interdict. What the grounds of appeal should be addressing is the question whether the requirements for the grant of an interdict were met and whether the court a quo exercised its discretion judiciously. Instead, the applicant goes to town on the question of defamation and argues at length as to whether the first respondent had proved that delict. The fact that the parties and indeed the court a quo made reference to that delict in relation to the letters complained of did not change the nature of the application before the court a quo. Indeed the order of the court a quo was purely interdictory. It did not include any finding as to whether the first respondent had been defamed in the strict sense of that word. The court a quo analysed the facts and came to the conclusion that the balance of convenience favoured the grant of the interdict. It correctly outlined the requirements for the grant of a final interdict as being a clear right on the part of the applicant, an injury actually committed or reasonably apprehended and the absence of similar protection by any other remedy. Having so defined these requirements, the court a quo proceeded to apply them to the facts before it. It found as a matter of fact that the applicant had authored and distributed the letters complained of and that the letters attributed criminal conduct to the first respondent, namely theft of the applicant`s coke. It also noted that a police investigation had cleared the first respondent of any wrong doing and that despite that police report, the applicant continued its criminal allegations. It further noted that the applicant had persistently stated that it had evidence incriminating the first respondent but failed to produce such evidence either orally or on affidavit. The court a quo concluded, therefore, that the allegations were either false or unsubstantiated and injurious to the first respondent`s business interests. Indeed, the second respondent, to whom the coke had been supplied, was refusing to pay for that delivery because of the letters originated by the applicant and copied to the police and other government agencies. Although the court a quo was of the view that the contents of the letters were defamatory to the first respondent, it granted the interdict not because the first respondent had been defamed per se, but because the contents of the letters were false and injurious to the first respondent`s business interests. The court a quo further noted that the applicant had persistently stated that it had evidence incriminating the first respondent but failed to produce such evidence either orally or on affidavit. In the circumstances, the court concluded that the first respondent was entitled to the protection of an interdict. In its heads of argument, the applicant submits that the question of whether the intended appeal has prospect of success can be resolved in its favour in line with the issues raised in ground 2 of its grounds of appeal. With regards ground 2 (a) the applicant avers that the court a quo did not determine an issue raised by it and argued by the parties, namely, its submission that the first respondent had not, as was stated in Mushunje v Associated Newspapers of Zimbabwe (Pvt) Ltd SC 62/22, cited verbatim the contents of the defamatory letters in its founding affidavit. For that reason, the first respondent had failed to establish a cognisable cause of action. However, the record shows that at p 4 of its judgment the court a quo dealt with that issue and ruled that it did not agree with the applicant’s submission in that regard and that in its view, it was permissible for the court to look at the whole article in considering whether the article was defamatory. Accordingly, the court a quo did determine that issue in no uncertain terms. Therefore, this ground of appeal has no merit whatsoever. Ground 2 (b) is equally without merit. It criticises the court a quo for failure to determine another issue placed before it, namely, whether the first respondent failed to allege that the applicant intended to defame it, and if so, whether such failure meant that the first respondent failed to establish a cause of action. However, there is nothing in the record of proceedings of the court a quo to show that such an issue was ever raised. The applicant’s opposing affidavit a quo does not contain any reference to that particular issue neither do the applicant’s heads of argument a quo. The applicant then says the issue was raised orally and authorities cited orally in support of its submission. However, the record of proceedings attached to the applicant’s papers, which the applicant does not impugn, does not reflect that such issue was raised orally or otherwise. On the contrary, the first respondent argues that no such issue was raised as the record shows. There being nothing on record to support the applicant’s assertions, ground 2 (b) has no prospects of success. Ground 2 (c) is difficult of comprehension. Is it being alleged that the court a quo was precluded from determining the matter before it because there was another matter pending under HCH 1868/24, and if so, was the cause of action and the parties thereto the same as in the present matter? Was this a case of “lis pendens” and was such a plea raised a quo? The first respondent argues that HCH 1868/24 did not involve the first respondent or any of its representatives and that both parties had agreed that HCH 1868/24 was irrelevant to the proceedings at hand. Indeed, the record of proceedings does not reflect that such an issue was ever presented to the court a quo. This ground has no merit. Grounds 3 (a) to (d) are based on the same complaint, namely that “The court a quo misdirected itself, acted on a wrong principle and contrary to the evidence”. It does not say in what way the court a quo so misdirected itself or acted on a wrong principle or contrary to the evidence. For that reason, the ground of appeal is invalid for lack of substance and particularity. An invalid ground of appeal faces the fate of being struck out. (See S v Ncube 1990 (2) ZLR 303 and Chimaiwache S SC 18/13). Under ground 3 (a) the applicant attacks the finding of the court a quo to the effect that there were no material disputes of fact which could not be resolved on the papers without hearing viva voce evidence. It is settled that a material dispute of fact only arises if the respondent disputes material aspects of the applicant’s averments and produces such evidence as would directly contradict, in a material way, such averments. In Muzanenhamo v Officer in Charge, CID Law and Order & Ors CCZ 3/13 the Constitutional Court had this to say with regards the threshold in determining whether there are material disputes of fact: “… the respondent’s defence must be set out in-clear and cogent detail. A bare denial of the applicant’s material averments does not suffice. The opposing papers must show a bona fide dispute of fact incapable of resolution without viva voce evidence having been heard.” I agree with the first respondent’s submission that the applicant merely made bald allegations and, as observed by the court a quo, declined to proffer such evidence as would support its bare allegations. In any event, it was common cause that the applicant had authored and distributed the letters complained of, that the letters incriminated the first respondent directly or through its employees, that a police report had cleared the respondent and its employees and that the second respondent had not paid for the coke delivered to it because of applicant’s allegations and that as a result the first respondent’s business interests were placed in jeopardy. The applicant sought to challenge the police report but failed to proffer any evidence to support its contentions. It only made bare assertions. No reasonable court either “mero motu” or on petition would, under those circumstances, consider that there were material disputes of fact. The court a quo had sufficient facts before it to determine whether or not to grant the interdict. Ground 3 (b) is all but an elaboration of the complaint under ground 3 (a), namely, whether there were disputes of fact incapable of resolution without hearing viva voce evidence. In this ground, the applicant avers that it was contesting the police report because that report did not include expert evidence from metallurgists who would be qualified to test the coke and determine its origins. In this regard, the applicant criticises the court a quo for its failure to order, mero motu, that such expert evidence be adduced. Surprisingly, the applicant absolves itself from the obligation to produce such evidence in the hope that the court a quo would itself call for such evidence mero motu. It is trite that he who alleges must prove his allegations. The court a quo acted on the basis of the evidence before it. It cannot be criticized for not calling for evidence which the applicant itself was reluctant to provide. Ground 4 is equally without merit. The applicant states that there cannot be defamation unless the defamatory statement has been published or communicated to a third party who understands the defamatory nature of the statement. As already pointed out, the court a quo was not seized with a claim for defamation. It dealt with an application for an interdict. This ground of appeal is accordingly misplaced. In ground of appeal number 5, the applicant avers that the two letters complained of did not incriminate the first respondent. The letters only relate to first respondent’s employee, one Bruno Takawira. For that reason, the applicant avers that the first respondent has no cause of action. However, the court a quo interrogated the matter and noted that the said Bruno Takawira was acting for the first respondent as its employee and that there were allegations that the coke had been stored at first respondent’s premises. It found, as a matter of fact, that the allegations in the letters complained of directly or indirectly roped in the first respondent. I see no misdirection in this factual finding of the court a quo. In its final ground of appeal, the applicant attacks the propriety of the order for costs on the higher scale made against it by the court a quo, alleging that there was no basis for it. It is trite that costs are awarded at the discretion of the trial court. However, costs at the scale of attorney and client can only be awarded under special circumstances. The court a quo was alive to this principle. It wrote-: “A punitive order of costs is granted in special circumstances, especially where there is some reprehensible conduct on the part of the party concerned. In this instance, the first respondent has brazenly persisted with the allegations notwithstanding the findings made by the police regarding the coke that is at the centre of the dispute. The first respondent has stated that it has witnesses who will testify that the coke in question which was delivered to the respondent by the applicant or on its behalf, belonged to it. But it has not attached a single affidavit from any of those witnesses who saw the coke being taken or experts who tested it. This attitude calls for censure, hence the special order for costs is warranted.” The reasons for that order for costs on the higher scale are there for all to see. There is no misdirection in that regard. The ground of appeal has no merit. DISPOSITION Although the applicant’s explanation for the delay is reasonable and deserving of condonation, the applicant`s prospects of success in the intended appeal are remote. There being no reasonable prospects of success, the present application cannot succeed. Costs will follow the result. Accordingly, it is ordered as follows: “The application be and is hereby dismissed with costs.” Manase & Danana Legal Group, applicant’s legal practitioners Hogwe & Nyengedza, 1st respondent’s legal practitioners.