Kudzanai Chimedza v Petromoc Exor (Private) Limited & 3 Ors

### Preamble
Judgment No. SC 78//25
1
Civil Appeal No. SC 341/25
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REPORTABLE    (78)

KUDZANAI     CHIMEDZA

v

PETROMOC     EXOR     (PRIVATE)     LIMITED     (2)     CANDRID     PETROLEUM    (PRIVATE)     LIMITED     (3)     MINISTER     OF    LANDS,     AGRICULTURE,     WATER,     CLIMATE     AND     RURAL   SETTELMENT    (4)     SHERIFF    OF     ZIMBABWE

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, MATHONSI JA & MWAYERA JA

HARARE: 24 JULY 2025

B. Maunze with K. Ncube, for the appellant

T.G Chigudugudze, for the first respondent

D.Machingauta, for the third respondent

MATHONSI JA:	By judgment delivered on 28 April 2025, the High Court (the court a quo) brought to an end the appellant`s extended occupation of Duncombe Fuel Filling Station situated on Duncombe Farm in Concession, Mashonaland Central Province.  It declared that the first respondent was the lawful lessee of the fuel station in question, that the appellant and the second respondent have no right, title or interest in it and ordered their eviction there-from.  This appeal is against that judgment of the court a quo.

After hearing submissions from counsel on 24 July 2025, the Court issued an order dismissing the appeal with costs.  The Court indicated that the reasons for the order would follow in due course.  What follows are those reasons.

The Court holds that the fuel station is situated on gazetted farmland, being Duncombe of Belle Vue of Moores Grant, otherwise known as Duncombe Farm (Pvt) Limited, which was listed for acquisition by the State in the Government Gazette Extra Ordinary Vol. LXXX, No.5 of 18 January 2002.  As such, the third respondent is the acquiring authority in terms of the Land Acquisition Act [Chapter 20:01] with exclusive power and authority over both the acquired farm land and the fuel station located on it.

The Court also holds that in the exercise of his unfettered power and authority over the property, the third respondent leased the fuel station to the first respondent who then acquired the exclusive rights of a lessee enforceable against the appellant and those claiming through him.  Accordingly, the appellant, who occupies the fuel station and its confines against the wishes of both the first and third respondents, has no right whatsoever over it and should be evicted in accordance with the law.

Further, the Court holds that the appellant, being an illegal occupier who is not privy to the lease agreement entered into between the first and second respondents, has no legal basis to found a claim or defence on the lease agreement in question.  The issue of mootness could therefore not arise in the circumstances of the case or at the instance of the appellant, neither could the issue of the validity or otherwise of the lease agreement in question.

THE FACTS

The appellant is a male adult who claims to have a right to occupy and operate a fuel station sometimes called Duncombe Service Station and at other times called Concession Service Station, which is the subject of the dispute between the parties.  The first and second respondents are companies incorporated in terms of the laws of Zimbabwe.  It is not clear how the second respondent is connected to the dispute between the parties except that it is associated with the appellant, having vouched for him as having spent US $40 000.00 on improvements done on the property.

The third respondent is the Minister responsible for land acquisition who was cited in his official capacity as the acquiring authority and lessor of the fuel station in terms of a lease agreement signed with the first respondent.  The fourth respondent was also cited in his official capacity as the Sheriff for Zimbabwe charged with enforcement of court orders.

The first respondent was previously known as Exor Petromoc (Pvt) Limited.  It changed its name at some stage to Petromoc Exor (Pvt) Ltd but not before it had entered  into a 25 year lease agreement with Duncombe Farm (Pvt) Limited in May 2001 for the lease of the fuel station.  Back then, the latter was the registered title holder of Duncombe Farm on which the fuel station is located.  The farm was held under Deed of Transfer Number 3148/1989.  The                    25 year lease was due to expire on 30 June 2026.

Following the conclusion of the 25 year lease agreement, the first respondent effected improvements on the premises installing fuel tanks, fuel pumps and the canopy.  There is no convergence between the appellant and the first respondent on how the appellant came to take occupation of the fuel station.  According to the first respondent, in September 2013, it entered into a Franchise Agreement with the appellant in respect of the operation of the fuel station, after which the appellant moved in and commenced operations as a franchisee paying franchise fees to the first respondent.

Even though the appellant flatly denies entering into any Franchise Agreement with the first respondent insisting that he only occupied the fuel station by virtue of a lease agreement he entered into with Mazowe Rural District Council on 1 July 2013, there is a letter dated 3 March 2014 addressed to the first respondent in which the appellant acknowledged the factual conspectus as set out by the first respondent.  He wrote:

“Re: Response to letter of final demand $6605.24 in arrears at Concession Service Station.

Exor Petroleum aka Petromoc Exor had a license agreement entered between them and myself with regard Concession Service Station.

I acknowledge it is Exor Petroleum that had the right of the movable property thereof.  However, with charges (sic) related the Land Acquisition Act aka Land Reform Exercise, the said property, now changed to become State (sic) and naturally all properties sited on (sic).

State land became State property. Disputes arose on the said site and I applied for the same piece of land and the same was divided into three equal parts and I have the rights to title of the land on which Concession Service Station under a Lease agreement I hold with Mazowe Rural District Council.

With that Exor cannot claim rentals from me with effect from the first of July 2013 to date.  In fact, will this note serve as notice of 1 month to vacate my said piece within a period of 1 month on which you are continually illegally continuing (sic) business without my express authority. Please kindly see attached Lease Agreement entered between myself and the local authority.

Feel free to communicate with me if there are any queries.

Thank you for your usual cooperation.

Chimedza Kudzanai.”

Claiming that sudden turn of events, the appellant dug in and refused to pay any rentals to the first respondent but continued running the fuel station up to date.  Only that his reasons for doing so have varied and changed like a chameleon.  In addition to the appellant`s letter quoted above, the first respondent produced the “Service Station Franchise Licence Agreement” for Exor Concession Service Station signed by itself and the appellant on 3 July 2012 before the parties became aware that the land had long been acquired by the State.

Upon realizing that it had lost its rights over the fuel station when the land was acquired, the first respondent set about regularizing its position.  In 2016, it successfully submitted an application for the lease of the fuel station to the third respondent.  As a result, the first and third respondent entered into a written lease agreement in July 2019, which was meant to commence on 1 July 2019 and terminate on 30 June 2024.  The lease agreement did not take effect because the appellant refused to vacate despite valiant efforts by the third respondent to have him evicted.

THE APPLICATION

Finding itself with no sense of solution, the first respondent filed an application in the court a quo on 14 July 2020 for a declaratory order that it was the lawful lessee and occupier of the fuel station and for ancillary relief.

In the application, the first respondent set out the background of the matter, how it had entered into a 25-year lease expiring in 2026 with Duncombe Farm (Pvt) Limited for the lease of the fuel station and how it had effected improvements at the place by installation of fuel tanks and canopy. It explained how it allowed the appellant to move onto the site and commence operations by virtue of a franchise agreement with him paying franchise fees to it.

According to the first respondent, the appellant defaulted in paying franchise fees accumulating arrears of US$6605 .24.  Upon the first respondent attempting to enforce the franchise agreement, it was discovered that the farm, together with the fuel station, had long been acquired by the State.  It was State land.  The first respondent stated that, in due course, it applied for the lease of the fuel station from the third respondent and signed a lease agreement meant to run initially from 1 July 2019 to 30 June 2024.

The first respondent averred that, despite holding a lease agreement entered into with the third respondent, it failed to take occupation of the fuel station because the appellant and the second respondent refused to give it vacant possession. The third respondent tried to evict them without success and eventually passed the responsibility of doing so to the first respondent.  It is then that the first respondent resorted to filing an application for declaratory and consequential relief.

The application was opposed only by the appellant.  He asserted that he had the right to occupy the fuel station having signed a written lease agreement with Mazowe Rural District Council on 3 September 2013 on the recommendation of the Ministry.  The appellant stated that, after the expiry of his lease agreement with the local authority, he continued to pay rentals thereby becoming a statutory tenant.

In addition, the appellant insisted that he had upgraded the fuel station at a cost of US$40 000.00, contending that he was entitled to recover that from the third respondent before vacating the premises.  The appellant challenged the authenticity of the lease agreement between the first and third respondents on the basis that it did not show the person who represented the lessee and the capacity in which he or she represented it.

The appellant denied ever entering into any franchise agreement with the first respondent.  In that regard the appellant stated at para 6 and 7 of his opposing affidavit:

“6 Ad Paragraph 10

I dispute having at any point entered in a franchise agreement or any other form of legal relationship with the applicant.  I put the applicant to the strictest proof thereof.  I never paid any fees to the appellant.

7 Ad Paragraph 11-14

I have already explained how I occupied the service station.  It was on the basis of a lease agreement which was offered to me by Mazowe Rural District Council on behalf of the Ministry of Lands.  After the expiry of the lease agreement in 2018, the Ministry of Lands directed me to make direct deposits into its accounts thereby becoming a statutory tenant in the process.  I attach hereto proof of payments of the 2018 and 2019 rentals to the Ministry of Lands and mark them as Annexures ‘E1’ and ‘E2’ respectively.  Furthermore, I made some improvements on the said service station which I have not fully recovered. The ‘oral agreement’ that has been referred to by the applicant only pertained to the period after 2018 which the Ministry of Lands ordered me to deposit rentals into their account until they had processed a new lease agreement.  However, that does not take away the fact that I had already become a statutory tenant.”

I mention in passing that, in his opposition to the application, the appellant did not rely on the lease agreement between the first and second respondents having been concluded under a repealed law.  Indeed, even the issue of the matter having become moot by virtue of the said lease agreement having expired on 30 June 2024 is one which counsel for the appellant only raised from the bar.

I also mention in passing that the appellant`s denial of the existence of a franchise agreement was not an honest one because the written agreement and his confirmation of its existence were later filed by the first respondent attached to its answering affidavit.  The validity of the appellant`s lease agreement with Mazowe Rural District Council was snuffed out by the third respondent through the District Lands Officer for Mazowe.  In a letter dated 14 July 2016 addressed to the Chief Land Officer for Bindura, the latter wrote:

“RE: CONFIRMATION FOR DUNCOMBE SERVICE STATION IN    CONCESSION.

The above matter refers.

This note serves to confirm that the Duncombe Service Station is still under State land.  It has not yet been handed over to the local authority, Mazowe Rural District Council.”

To assist the court in its determination of the matter, the third respondent filed a report on 4 December 2024 which reads:

“REPORT ON THE STATUS OF DUNCOMBE FARM

Duncombe is a farm situated in the Mazowe District, Mashonaland West Province.

The farm was acquired by Government on 18 January 2002.  It was acquired in terms of Government Gazette Extraordinary Vol. LXXX No.5.

It is State agricultural land.

The land in question is administered over by the Minister of Lands, Agriculture, Fisheries, Water and Rural Development.

PROF O.JIRI

SECRETARY LANDS, AGRICULTURE, FISHERIES, WATER AND RURAL DEVELOPMENT.”

Having submitted that report, the third respondent advised the court a quo that he was not opposed to the relief sought by the first respondent.  On 1 July 2021, after hearing submissions from the parties, the court a quo, per Mangota J, struck the matter off the roll on the basis that the lease agreement forming the basis of the application did not indicate the natural person who represented and signed it on behalf of the first respondent. It doubted the authenticity of the lease agreement.  The court a quo`s judgment under HH 533/21 was taken on appeal before this Court.

On 29 May 2023 this Court delivered judgment in Petromoc Exor (Pvt) Ltd v Chimedza & Ors SC 49/23. The judgment in HH 533/21 was set aside and the matter remitted to the court a quo for a hearing de novo before a different judge.  It is on that basis that the matter was dealt with by Musithu J who delivered the judgment forming the basis of the present appeal. At the hearing, the appellant raised a preliminary point that the matter had become moot following the expiry of the lease agreement between the first and third respondents.

On the preliminary point based on mootness, the court a quo took the view that it retained the discretion to hear the matter in the interests of justice.  It held that since the alleged mootness arose in the middle of proceedings since the first respondent`s lease agreement expired on 30 June 2024, the nature of the dispute militated against the court declining jurisdiction on the basis of mootness.  Taking into account that the said lease agreement contained a provision for renewal and that nothing was placed before it to suggest that such renewal was not done, the court a quo was persuaded to exercise its jurisdiction.  It dismissed the preliminary point on mootness.

Regarding the merits of the application, the court a quo found that the fuel station was located on State land and not on Council land.  It found that the third respondent, who is the authority responsible for State land, had disowned the appellant and wanted him evicted from the premises.  Accordingly, the court a quo concluded that the appellant had no legal right to remain in occupation of the premises.  It granted the declaratory order and consequential relief sought by the first respondent.

THE APPEAL

The appellant was aggrieved by the judgment of the court a quo.  He noted the present appeal on the following grounds.

“GROUNDS OF APPEAL

The court a quo grossly erred in refusing to decline its jurisdiction in the matter on the basis that it was not clear demonstration (sic) of changed circumstances when the fact of expiration of the lease agreement was common cause and remains so to date.

The court a quo grossly erred in relying on conjecture in its that finding (sic) that the lease agreement was renewed when there were no facts of such renewal pleaded on record by first respondent nor evidence of the alleged renewal that was tendered before it.

The court a quo erred and grossly so in declaring as valid a lease agreement that was entered into on the basis of a repealed law- Rural Land Act [Chapter 20:18], repealed on 26 February 2018 by the Land Commission Act.  Put differently, the court a quo could not declare as valid an agreement that was made pursuant to a non-existent law.

A fortiori, the court a quo erred in granting the application by deriving its reasoning or ratio decidendi on a repealed law (Rural Land Act).

The court a quo, grossly erred at law in finding that the dispute between the appellant and the first respondent was not rendered moot by the expiration of the lease agreement between the first respondent and the third respondent.

By granting the declaratory order as it purportedly did in terms of s 14 of the High Court Act, the court a quo created an agreement or a contract between the first respondent and third respondent contrary to well established tenets of law.

Finally, the court a quo erred in declaring rights and granting consequential relief wherein the same did not exist at law by finding that the date of filing of the application was material as opposed to the date of the determination of the dispute.

RELIEF SOUGHT

TAKE FURTHER NOTICE THAT the appellant seeks the following relief:-

a. That the instant appeal be and is hereby allowed with costs on an attorney client   scale.

That the judgment of the court a quo is set aside and, in its place and stead is substituted with the following:

IN THE MAIN

‘The court hereby declines its jurisdiction on the basis that the matter has become moot.’

ALTERNATIVELY

‘The application be and is hereby dismissed with costs on an attorney client scale.’”

ISSUES FOR DETERMINATION

The grounds of appeal are many and very repetitive.  They point to only three issues for engagement in this appeal.  They are:

Whether or not the court a quo erred in exercising jurisdiction over the dispute.

Whether or not the lease agreement between the first and third respondents was valid.

Whether or not the court a quo erred in granting declaratory relief.

Mr Maunze, who appeared for the appellant, initially objected to the participation of the third respondent in the appeal arguing that, apart from the report he submitted to the court a quo, the third respondent did not participate in the proceedings a quo.  In his view, the third respondent should not be allowed to participate on appeal notwithstanding the fact that it is the appellant who cited him as a party to the appeal.  After some engagement with the Court, Mr Maunze abandoned his objection.

For his part, Mr Chigudugudze, for the first respondent, had also lined up his own three preliminary objections to the appeal.  Firstly, he submitted that the appellant did not furnish security for the respondents’ costs of appeal as determined by the registrar of the Court on 2 June 2025.  When his attention was drawn to proof that security for costs was paid timeously on 12 June 2025, he beat a hasty retreat promptly abandoning the preliminary objection.

Secondly, Mr Chigudugudze objected to the appeal on the basis that the preamble narrated that the appeal was against the whole judgment of the court a quo when it is against part of that judgment.  In his view, the appellant could not possibly appeal against the part of the judgment directed against the second respondent, a fuel company operating at the disputed fuel station.  Counsel’s damascene moment occurred when it was drawn to his attention that even that part of the judgment also affects the appellant.  He abandoned the objection.

Thirdly, counsel for the first respondent raised the issue of “dirty hands” arguing that, to the extent that the appellant had not complied with the court a quo’s eviction order, he was approaching the Court with dirty hands.  It was small thrift given that the judgment appealed against was the same judgment which counsel wanted the appellant to comply with. See Wood N. O v Edwards & Anor 1966 RLR 336 (G).  Again, counsel abandoned it upon the Court pointing out that an appeal suspends the judgment appealed against.

On the merits, Mr Maunze for the appellant prosecuted the appeal on two fronts.  Firstly, counsel advanced the argument that the matter was moot and as such, the jurisdiction of the court a quo was not engaged.  Secondly, it was strongly argued on behalf of the appellant that a declaratory order in terms of s 14 of the High Court Act [Chapter 7:06] could not be issued on expired rights.

Regarding mootness, Mr Maunze submitted that the matter became moot when the lease agreement between the first and second respondents expired on 30 June 2024.  In his view, when the court a quo heard the matter on 4 December 2024, it was fully aware that the lease agreement had expired and there were no existing or future rights upon which declaratory relief could be granted.  The court a quo, so it was argued, should not have exercised jurisdiction on that basis.

On the grant of declaratory relief, it was submitted on behalf of the appellant that it could not be granted on expired rights, the first respondent’s rights in terms of the lease agreement having come to an end aforesaid.  Counsel then appeared to convolute that aspect with the issue of the repealed law.  He contended that the court a quo erred in declaring the lease agreement valid when, in terms of its preamble, it was entered into on the basis of a repealed law, the Rural Land Act [Chapter 20:18] which was repealed by the Land Commission Act [Chapter 20:29].  The latter statute came into operation on 20 February 2018 before the lease agreement was signed.

Asked by the Court, if the issue of the repealed Act was argued before the court             a quo, Mr Maunze conceded that it was not and that it was being taken for the first time on appeal.  That issue became pertinent, given that the appellant could not, while arguing on the basis that the lease agreement had expired, at the same time argue that the lease agreement was invalid.  He had to take one position and rely on it instead of being all over the place.

Per contra, Mr Chigudugudze for the first respondent, submitted that it is the appellant who alleged mootness.  As the asserter the appellant bore the onus to prove its existence.  According to counsel, the court a quo was correct to find that mootness had not been established.  In any event, so counsel argued, in a tenancy, it is the lessor’s primary obligation to give the lessee vacant possession.  When the lessor failed to give vacant possession, the tenure of the lease agreement did not kick off as its clock could only start ticking upon the first respondent taking occupation.

Mr Chigudugudze bemoaned the attempt by the appellant to raise the issue of the lease agreement being premised on a repealed statute for the first time on appeal.  He submitted that, the issue not having been taken a quo, it could not be taken on appeal.  Apart from that, counsel asserted, it is a point which cannot be taken in conjunction with the appellant’s avowed position a quo, which was that the lease agreement was valid but had expired. Counsel strongly argued that the appellant could not be allowed to approbate and reprobate a position in the same case.  At the case management meeting before the court a quo, so it was revealed, the appellant accepted the validity of the agreement and chose to rely on another defense.

Having made those submissions, counsel for the first respondent still reiterated the fact that the complaint about reference to the repealed Rural Land Act in the lease agreement was of no moment.  This was so, he contended, because it is contained in the preamble to the agreement, which preamble does not give any substantive rights as the lease agreement itself is entered into in Clause 3 thereof.

Mr Machingauta, who appeared for the third respondent, was very brief in his submissions.  He stood up to abide by the heads of argument filed and to underscore the third respondent’s unwavering position that the first respondent is the lawful lessee of the fuel station in question.

THE LAW

The court a quo has full original civil jurisdiction over all persons and over all matters within Zimbabwe reposed to it by s 13 of the High Court Act [Chapter 7:06].  In terms of s 14 thereof:

“14 High Court may determine future or contingent rights.

The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.” (The underlining is mine)

It is clear from the above provision that when called upon to grant declaratory relief the court a quo is engaged in the exercise of judicial discretion.  As succinctly articulated by this Court in Bowers v Bowers SC 11/18 at pp 7-8:

“There is no gain saying the fact that in reasoning and concluding thus, the judge a quo exercised a discretion.  The respondent in this respect contends correctly that nowhere in his arguments did the applicant challenge the exercise of this discretion.  It is an established principle of the law that a higher court will not lightly interfere with the exercise of discretion by a lower court.  It can only do so if it is established that the discretion was exercised capriciously or erroneously, that the lower court acted on a wrong principle, allowed extraneous or irrelevant matters to guide it, mistook the facts or disregarded some relevant considerations.”

See also Barros & Anor Chimphonda 1999 (1) ZLR 58 (S) at 63-64.

The powers of the court a quo in terms of s 14 of the Act have been the subject of a lot of judicial pronouncements the essence of which is that declaratory relief cannot be sought merely for abstract, hypothetical or academic purposes.  The authorities are clear that the approach of the court involves a two-stage inquiry.  The first stage is to inquire whether the applicant for a declaratory order is an interested person in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court.  See Munn Publishing (Pvt) Ltd v ZBC 1994 (1) ZLR 337 (S) at 343G, 344 A-E, Chitiga v NSSA 2019 (2) ZLR 414 (H).

The second stage of the inquiry requires the court to decide, notwithstanding the finding in the first stage that the applicant has a direct interest, whether or not the case is a proper one for the exercise of the court’s discretion under s 14 of the Act.  In Munn Publishing (Pvt) Ltd, supra, this Court quoted with approval the remarks of Williamson J in Adbro Investment Co Ltd v Minister of the Interior & Ors 1961 (3) SA 283 (T) at 285 B-C, describing what constitutes a proper case for the exercise of the court’s discretion under s 14 thus:

“I think that a proper case for a purely declaratory order is not made out if the result is merely a decision on a matter which is really of merely academic interest to the applicant.  I feel that some tangible advantage in relation to the applicant’s position with reference to an existing, future or contingent legal right or obligation must appear to flow from the grant of the declaratory order sought.”

With reference to mootness of matters, the position of the law is also very clear.  It was discussed in great detail in Khuphe & Anor v Parliament of Zimbabwe & Ors 2019 (3) ZLR 915 (CCZ) at 920 C-G where the learned Chief Justice, writing for the apex court, stated:

“A court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy.  The position of the law is that if the dispute becomes academic by reason of changed circumstances the court’s jurisdiction ceases and the case becomes moot.  It is an established principle of law that not every constitutional point raised by a litigant can be heard by the courts.  The constitutional limits on the exercise of judicial power, combined with notions of the limited nature of judicial power, have evolved into a broad doctrine known as ‘justiciability’.”

The court went on to make the point that a matter is not moot only at the commencement of proceedings.  It may be considered moot at the time the decision on it is made.  It stated that the refusal of courts to decide cases which have become moot because of cessation of a dispute between the parties derives from the common law notion that the function of a court is limited to determining rights and obligations that are actionably controverted.

However, the position was made clear that mootness on its own does not prevent the court, at its discretion, to hear the matter in question.  At p 923 F-H the Court stated:

“The mere fact that the matter is moot does not constitute an absolute bar to a court to hear a matter.  Whilst a matter may be moot as between the parties, that does not without more render it unjusticiable.  The court retains a discretion to hear a moot case where it is in the interest of justice to do so. JT Publishing (Pvt) Ltd v Minister of Safety and Security 1997 (3) SA 514 (CC) at 525 A-B.

Courts may be guided in the exercise of discretion by considering the underlying rationale of the mootness doctrine.”

See also Ndewere v President of Zimbabwe N.O & Ors SC 57/22 and Citizens Coalition of Change Ors v Ncube & Ors SC 36/24.

It is true that the Rural Land Act [Chapter 20:18] was repealed and substituted by the Land Commission Act [Chapter 20:29] which came into effect on 20 February 2018.  The latter statute provides in s 65 (3) thus:

“Despite the repeal of the Rural Land Act [Chapter 20:18]-

an agreement or transaction entered into or deemed to have been entered into under that Act, and in force immediately before the date of commencement of this Act, shall continue in force;

regulations made or deemed to have been made under that Act and in force immediately before the date of commencement of this Act, shall continue in force until amended or repealed in terms of this Act and shall be deemed to have been made in terms of this Act;

(c)   anything done or commenced under that Act and which, immediately before the date of commencement of this Act, had or was capable of acquiring legal effect, shall be deemed, on or after that date, to have been made, done or commenced under the appropriate provision of this Act and shall continue to have or to be capable of acquiring, as the case may be, the same legal effect.”

Considering that the above provisions came into effect before the lease agreement sought to be challenged was signed on 17 July 2019, they are cited only to demonstrate the legislative intendment of legalizing even acts done or deemed to have been done under the repealed Act.

In light of the first respondent’s reliance on the principle that a litigant is not allowed to approbate and reprobate a course in any proceedings, it is instructive to make reference to the position of the law in that regard.  It is a principle closely linked to that of acquiescence.  See Munchville Investments (Pvt) Ltd t/a Bernstein Clothing v Mugavha SC 62/19.

It has repeatedly been stated by the courts that a party is not permitted to adopt two conflicting positions in proceedings.  That is the point emphasized in Alliance Insurance v Imperial Plastics (Pvt) Ltd & Anor SC 30/17 where at p 7 it was stated:

“It is trite that where there are two courses of action open to a litigant, as the appellant had, to either challenge the constitutionality of Article 34 or apply for the setting aside of the arbitral award in terms of that provision, and it unequivocally elected to take one of them, it cannot turn round afterwards and take the other course of action.  The point was made in S v Marutsi 1990 (2) ZLR 370 at p 374B that;

‘It is trite that a litigant cannot be allowed to approbate and reprobate a step taken in the proceedings.  He can only do one or the other, not both.’”

DETERMINATION OF THE APPEAL

When the court a quo sits to determine a matter in terms of s 14 of the High Court Act, it exercises a judicial discretion and may, in that exercise, grant or refuse declaratory relief.  A person wishing to challenge the exercise of judicial discretion on appeal is required, by dint of well established precedent, to lay out an acceptable basis for interference with the exercise of discretion by the appellate court.

This is so because it is an established tenet of our law that an appellate court will not lightly interfere with the exercise of discretion by a lower court.  It can only do so if it is shown that the discretion was improperly exercised.  See Bowers v Bowers, supra.  Consideration of a dispute in terms of s 14 of the High Court Act involves a two-stage inquiry alluded to above, namely, firstly, whether the applicant is an interested person in the sense of having a direct and substantial interest in the subject of the suit which could be prejudicially affected.  Secondly, the court has to decide whether the case is a proper one for the exercise of discretion under s 14.  See Munn Publishing (Pvt) Ltd, supra.

In addressing the requirements of a declaratory order, the court a quo concluded thus, at p 14 of its judgment:

“The application before the court is one for a declaratur.  The right that the applicant seeks to assert is based on the lease agreement that it signed with the third respondent.  The applicant therefore has an existing interest in the service station which makes it an interested person for the purposes of s 14 of the High Court Act.

In the final analysis, the court was satisfied that the applicant was the lawful holder of a lease agreement with the third respondent.  The first respondent on its part failed to establish any legal relationship with the third respondent.  The documents that he attached to his opposing affidavit proved the contrary.  He entered into a lease agreement with a party that had no legal rights over the service station.  The service station is located on State land and not council land.  The authority responsible for State land disowned the first respondent and wanted him evicted from the premises.  The first respondent has no legal right to remain in occupation of the premises.  The applicant’s claim must therefore succeed.”

In seeking to impugn that exercise of discretion, the appellant relied on seven grounds of appeal none of which lays a recognizable legal basis for interference, on appeal, with the exercise of discretion.  The court a quo can therefore not be faulted for exercising its discretion in terms of s 14 as it did, especially as nowhere in the appellant’s submissions, was an attempt made to lay the required ground work for interference.

It is unbelievable that the appellant thinks that he can remain in occupation of and running a business on State land without authority from the responsible Minister and without paying anything whatsoever for the use of the premises in question.  In doing so, the appellant has defied the authorities with impunity and has even had the audacity of coming all the way to this Court on appeal notwithstanding the fact that the papers that he relies on are replete with falsehoods he has not bothered to withdraw.  For instance, he shamelessly denied the existence of a franchise licensing agreement between himself and the first respondent notwithstanding that it is part of the record together with his own correspondence confirming it.

Apart from that, he doggedly insisted on having entered into an oral lease agreement with the third respondent despite the fact that at the specific time that he alleges to have entered into the oral agreement, the third respondent was writing letters, which are also in the record, seeking to evict him from the premises.  It is therefore not apparent from the papers, in terms of what law the appellant lays a claim to the fuel station.

The fuel station is situated on State land under the control of the third respondent.  The third respondent has given it to the first respondent and avows that it is only the first respondent who is authorized to occupy it and operate the business of selling fuel there from.  The third respondent has done so in the exercise of his unfettered power and authority over State land.  An illegal occupier, who is openly acting in defiance of the law, would like this Court to aid and abet his illegal enterprise.

The appellant, as an illegal occupier, is not privy to the agreement between the responsible authority and the first respondent.  He however wishes to rely on its terms relating to its expiry to mount a defence.  It is in that light that the appellant’s argument on mootness must be viewed.  Privity of contract is the celebrated legal truism that only parties to a contract can sue or be sued on it. Third parties, even if they would benefit from the contract, generally cannot enforce its terms, nor can they have obligations imposed upon them by the contract.  There are exceptions to the general rule, which do not arise in the present matter.

As articulated by this Court in TBIC (Pvt) Ltd & Anor v Mangenje & Ors 2018 (1) ZLR 137 (S) at 144 C-E, quoting with approval the learned author Innocent Maja in his book, The Law of Contract in Zimbabwe at p 27 para 1.5.3:

“The doctrine of privity of contract provides that contractual remedies are enforceable only by or against parties to a contract, and not third parties, since contracts only create personal rights.  According to Lilienthal, privity of contract is the general proposition that an agreement between A and B cannot be sued upon by C even though C would be benefited by its performance. Lilienthal further posits that privity of contract is premised upon the principle that rights founded on contract belong to the person who has stipulated them and that even the most express agreement of contracting parties would not confer any right of action on the contract upon one who is not a party to it.”

In any event, the issue of privity of contract pales into insignificance, regard being had to the fact that the court a quo made a substantive finding that there was no evidence placed before it to show that the lease agreement between the first and the third respondents was not renewed at its expiry on 30 June 2024.  The court a quo considered that Clause 2 of the lease agreement provides that the third respondent could, at his sole discretion, renew the lease agreement.  It then reasoned:

“The preliminary point on mootness was raised for the first time from the bar by the first respondent’s counsel.  Heads of argument were filed as far back as October 2020, and no supplementary heads had been filed to address this point.  It was therefore not clear at the time of the hearing whether the applicant had exercised its right to renew the lease or not.  The court could not therefore proceed on the assumption that the lease expired on 31 June 2024 (sic), in the absence of further evidence pointing to a non-renewal.

The first respondent’s counsel did not submit as a matter of fact that upon its expiry, the applicant did not exercise its right to renew the lease.  These proceedings were initiated just a year after the said lease agreement was signed.  The court must be slow to decline jurisdiction on the grounds of mootness when there is no clear demonstration of the changed circumstances.  In the court’s view, the first respondent ought to have gone a step further to demonstrate that notwithstanding the expiry of the lease on 31 June 2024 (sic), the applicant had not taken steps to have it renewed in line with the renewal clause.”

The Court does not agree with Mr Maunze for the appellant, that this was a reversal of onus.  It is the appellant who sought to rely on the expiry of the lease agreement to mount a defence on mootness.  He had the onus to establish its existence and it was certainly not the obligation of the first and third respondents to assist him.  It is trite that he who alleges must prove.  As it is the court a quo was not satisfied, from the evidence placed before it, that the lease agreement no longer existed.  In my view, it cannot be faulted especially considering that the third respondent still maintained, even after 30 June 2024, that there is a valid lease agreement between him and the first respondent.  The matter ends there.

In any event, the authorities already cited make it very clear that, in deciding whether to withhold its jurisdiction on the basis of mootness, the court has a discretion.  The court a quo was very much alive to that and even made reference to the judgment of the Constitutional Court in Khupe & Anor, supra.  In its discretion, it exercised jurisdiction.  I have stated above that all the seven grounds of appeal do not lay any ground work for interference with the exercise of that judicial discretion.

It remains for me to make the point that the appellant’s third ground of appeal is not a valid ground at all.  The appellant seeks to impugn the judgment a quo on the ground that the Rural Land Act referred to in the preamble to the lease agreement had been repealed at the time the agreement was signed.  The Court agrees with Mr Chigudugudze that the argument is being raised for the first time on appeal.  While a point of law can be raised at any time even on appeal that is subject to the rider that there should be no prejudice to the other party.  See Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S).

In this matter there is prejudice on the first respondent because, before the court a quo, the appellant took a contrary view.  His case was premised on the fact that there was a valid lease agreement between the first and third respondents.  The appellant nailed his colours on the mast that the valid lease agreement had expired.

Having led both the court a quo and the first respondent down that path, the appellant is not allowed to opportunistically pursue a contradictory position that the lease agreement was invalid.  As it is said, the appellant is not allowed to approbate and reprobate a step in the same proceedings.  See Alliance Insurance, supra.

DISPOSITION

The appeal has no merit.  The appellant has no legally recognizable right to the fuel station in dispute. The first respondent has the right to it because it has been availed to it by the Minister responsible for State land.  The court a quo cannot be faulted at all for granting declaratory relief in the circumstances.

It is unfortunate that, for several years, the appellant has succeeded in circumventing legal process by mounting an extremely dubious, doomed and contradictory defence.  In fact, his case is all over the place without any meaningful or lawful basis for holding over at the fuel station.

It is for the foregoing reasons that the Court dismissed the appeal with costs.

GWAUNZA DCJ	:	I agree

MWAYERA JA 	:	I agree

Kossam Ncube & Partners, appellant’s legal practitioners.

Madanhe & Chigudugudze Legal Practitioners, 1st respondent’s legal practitioners.

Civil Division of the Attorney General, 3rd respondent’s legal practitioners.