KADZVITI and Another v CHINHAMORA and Others (119 of 2025) [2025] ZWHHC 119 (28 February 2025)

8 HH 119-25 HCH 8027/22 CHIDO KADZVITI and ADELAIDE KADZVITI versus MARCELINE CHINHAMORA and VISLINK INVESTMENTS (PVT) LTD and DROCHIA INVESTMENTS HIGH COURT OF ZIMBABWE DEME J HARARE, 29 November, 2024 |& 28 February 2025 Opposed Application E Mubaiwa, for the applicants. RH Goba, for the 2nd and 3rd respondents. No appearance for the 1st Respondent. DEME J: On 29 November 2024, I made an order referring the matter to trial. More particularly, the order is as follows: “1. The matter be and is hereby referred to trial for determination of issues on the basis of oral evidence under the following conditions: The founding papers filed by the Applicants shall be regarded as summons.The opposing papers filed by the 2nd and 3rd Respondents shall be deemed to be the appearance to defend.The Applicants are required to file Plaintiffs’ Declaration within ten working days from the date of this order and thereafter, the matter shall proceed in terms of Rules. 2. Costs shall be in the cause.” The basis for the order of 29 November 2024 is as demonstrated herein. The Applicants approached this court seeking the following relief: “1. That the lease agreement entered into and between 1st and 3rd Respondent 2016 (sic) in respect of certain piece of land being Remainder of Lot 53A Borrowdale East situate in the District of Salisbury be and is hereby declared null and void. 2. That the lease agreement entered into between eh (sic) 1st and 2nd Respondent on 13th May 2014 be and (sic) declared the valid and binding lease agreement in respect of the land described in paragraph 1 above. 3. The Respondent (sic) shall jointly and severally the one paying the other to be absolved, pay the costs of this application on a legal practitioner – client scale.” The Applicants and the 1st Respondent jointly own the property known as certain piece of land being the Remainder of Lot 53A Borrowdale East situate in the District of Salisbury (hereinafter called “the property”). The 1st Respondent, with the concurrence of the Applicants, concluded the five-year lease agreement with the 2nd Respondent in 2014 in respect of the property. In 2022, the Applicants averred that they discovered that the 1st Respondent, who is their mother, concluded the second lease agreement with the 3rd Respondent without their approval. The second lease agreement was to run from 2016 until the expiration of twenty years. The Applicants alleged that the second lease agreement was unlawful in many respects. Firstly, they alleged that they did not authorise the conclusion of the second lease agreement. Secondly, they further affirmed that the second lease agreement was concluded whilst the first lease agreement was still running. Thirdly, the Applicants contended that the first lease was not validly cancelled before the second lease was concluded. Fourthly, the property was not available for lease since the property was in possession of the 2nd Respondent, according to the Applicants. The Applicants highlighted many provisions of the second lease which they are not comfortable with, including: A provision providing that the lease shall run for twenty years.A provision that the lessee may sublet the property.A provision which allows the lessee to effect improvements at the property and claim compensation from the lessors. The matter was opposed by the 2nd and 3rd Respondents from many respects. The 2nd and 3rd Respondents affirmed that the 2nd and 3rd Respondents are sister companies as they are controlled by one major shareholder. In light of this, the 2nd and 3rd Respondents alleged that the property is possessed by the related juristic person. They further asserted that the 1st Respondent acted through copies of power of attorney authored by the Applicants where they authorised the 1st Respondent to conclude the second lease. At all material time, according to the 2nd and 3rd Respondents, the Applicants were unknown to them. They further asserted that they negotiated the terms of two lease agreements with the 1st Respondent at all times. It is the case of the 2nd and 3rd Respondents that the 1st Respondent advised them that she was authorised by the other joint owners of the property who happen to be the Applicants. The 2nd and 3rd Respondents argued that the Applicants ought to have exhausted mediation and arbitration proceedings before approaching this court. However, during oral submission, Adv Goba abandoned this issue. The Applicants, responding to the issue of copies of power of attorney, insisted that such copies are invalid as they were not notarised in compliance with the provisions of Rule 85. The Applicants denied ever preparing copies of power of attorney. The Applicants, through their counsel, raised two points in limine to the effect that: The opposing affidavit was not properly commissioned.The deponent to the opposing affidavit did not demonstrate by way of resolution that he was authorised to depose to the opposing affidavit. These points in limine were eventually abandoned by the Applicants. The 2nd and 3rd Respondents raised a point in limine to the effect that the present application is pregnant with material disputes of fact which makes it impossible for the matter to be resolved by way of affidavits. Adv Mubaiwa argued that there are no material disputes of fact. He argued that by not responding to the present application, the 1st Respondent has admitted to the allegations raised against herself. This was vehemently opposed by Adv Goba. He submitted that the 1st Respondent’s silence is a sign that she does not want to expose her daughters. Drawing from this point in limine, the sole issue that arises for determination is whether the present application does have material disputes of fact which may not be determined based on affidavit evidence. The test to be employed in analysing whether conflict of fact arises was superbly defined in the case of Supa Plant Investments (Pvt) Ltd v Chidavaenzi1, in the following comments: “It is my view that it is not the number of times a denial is made or the vehemence with which a denial is made that will create a conflict of fact such as was referred to by MCNALLY J (as he then was) in Masukusa v National Foods Ltd and Another 1983 (1) ZLR 232 (H) and in all the other cases that have followed. A material dispute of fact arises when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.” Further, a material dispute of fact also emerges where the court entertains a reasonable doubt as to the appropriate course of action to be taken in order to resolve the matter before it without hearing further evidence. In the case of Riozim (Pvt) Ltd v Falcon Resources (Pvt) Ltd and Another2, the Supreme Court splendidly remarked as follows: “In this regard, the mere allegation of a possible dispute of fact is not conclusive of its existence. From the decided cases, it is evident that a dispute of fact arises where the court is left in a state of reasonable doubt as to which course to take in resolving the matter without further evidence being led.” Reference is also made to the cases of van Niekerk v van Niekerk & Others3, Room Hire Co. (Pty) Ltd v Jeppe Street Mansions ((Pty) Ltd4 and Muzanenhamo v Officer in Charge CID Law and Order and Ors 5. The 2nd and 3rd Respondents are alleging that Applicants, through copies of power of attorney, authorised their mother to conclude the second lease agreement a fact which is denied by the Applicants. The relevant portion of paragraph 7E is as follows: “As regards the second lease this came about as a result of further negotiations and 1st Respondent’s appreciation of the work that had been done on the property. At the time of signing the second agreement, 1st Respondent voluntarily produced copies of power of attorney which she said was forwarded to her by her daughters.” Responding to this issue through the answering affidavit, the Applicants asserted that: “This is denied to the extent that my sister and I did not forward any power of attorney to 1st Respondent. The signature on the so-called powers of attorney are forged, the witnesses who signed the so-called powers of attorney are unknown to us and why would our mother sign the powers of attorney in Zimbabwe if they had been signed abroad by us. We are aware that powers of attorney signed abroad should be authenticated and notarised and to the extent that they are not, these are worthless pieces of paper. Why would it be necessary anywhere to give 3rd Respondent the powers of attorney when none was produced in 2014 when the first lease agreement was signed? If the 2nd and 3rd’s representative believed that our mother was the owner of the property it and (sic) had previously entered into a lease agreement without the production of powers of attorney from us, it would not be necessary to produce them on the second occasion. It is also worth mentioning that I have not been to Zimbabwe since 2006 and my sister was not in Zimbabwe in 2016 when the second lease was drafted.” There are a lot of issues which emerge from the comparison of the two affidavits which are before the court. On one hand, the 2nd and 3rd Respondent are alleging that the 1st Respondent was authorised by the Applicants through copies of power of attorney attached to the opposing affidavit. The Applicants, on the other hand, are alleging that the 1st Respondent committed acts of fraud and forgery. Despite the averments of the criminal enterprise having been allegedly committed by the 1st Respondent, there is no evidence placed before my attention that the 1st Respondent committed these crimes. Fraud and forgery cannot be substantiated by hollow allegations. The Applicants needed to go a step further in establishing and properly pleading forgery and fraud for the court to make a determination in their favour. No police report or decision of criminal court against the 1st Respondent was placed before my attention to substantiate the allegations of fraud and forgery. In light of this, it became impossible for me to make a determination in the absence of sufficient evidence for fraud or forgery. Only trial would enable the leading of the relevant evidence in this regard. The Applicants averred that they were not in the country at the material time. Absence from the country is easy to prove through one’s passport. The Applicants failed to tender such evidence through their affidavits. On this footing, I was not able to make a determination of whether or not the Applicants authorised their mother through power of attorney as the Applicants failed to tender evidence of their absence from Zimbabwe. I was also unable to make a decision of whether the copies of power of attorney ought to be notarised as argued by Adv Mubaiwa. This decision can only be made after the Applicants have proved that they were not in Zimbabwe at the material time. This dispute can only be resolved through trial. No party tendered expert evidence drawing conclusion on signatures on the copies of power of attorney. The tools for trial have the potential of unearthing whether the Applicants signed their respective copies of power of attorney. The two counsels gave conflicting versions for the interpretation of the 1st Respondent’s failure to respond to the present application. Their versions have been captured before. In my view, her failure to respond is subject to various interpretations. Assuming that the 1st Respondent’s failure to respond is an admission to the allegations raised against her, as argued on behalf of the Applicants by Adv Mubaiwa, can only be nothing but a mere conjecture. The court does not operate upon assumptions or speculative evidence. It is motivated by tangible evidence. Such tangible evidence can be extracted through action procedure. The reason for the 1st Respondent’s silence may be uncovered through trial procedure. For these reasons, I saw it impossible to determine the application on the basis of the affidavits. Only a referral of the matter to trial will enable the matter to be resolved on the basis of oral evidence. An action procedure has generally been regarded as a more disciplined way of resolving disputes than an application procedure. In the case of Mashingaidze v Mashingaidze6 Robinson J superlatively remarked as follows: “The Applicant may indeed be able to put forward her claim for relief on alternative grounds when re-commencing proceedings by way of action, a procedure which lends itself more appropriately, both from a pleading and from an evidence point of view, to a resolution of the issues in this matter. In this connection, I would refer again to Masukusa’s case supra, in which, in giving a more general reason as his third reason for dismissing the application, Mc NALLY J (as he then was) stated at 236F- 237A: “Procedure by way of notice of motion, though often convenient, is far less disciplined than procedure by action. A good novelist can write a series of exciting affidavits and at the end claim large sums of money. It takes a lawyer to draw a declaration. To draw a declaration it is necessary to analyse your claim and decide exactly what you have to prove.”” In casu, the present matter involving forgery, fraud and other issues highlighted before can only be conclusively resolved by way of action procedure taking advantage of trial tools. Through trial, the court will be able to draw appropriate inference from the conduct of the parties which cannot be possible through motion procedure. Where the court is faced with a case that does have material disputes of fact it has various options at its disposal. Reference is made to the case of Muzanenhamo supra. The court can make one of the following decisions: Dismissing the matter where it was apparent from the beginning that the matters involved cannot be resolved by way of motion procedure. I did not make this decision as this would not bring finality to litigation.Employ a robust and common-sense approach where the court proceeds to make its determination based on available evidence. In my view, this approach does not promote finality to litigation between the parties hereto. Hence, I did not explore this route.Striking the application from the roll allowing the parties to re-commence by way of action procedure. In my opinion, this route is not in the interest of justice as it delays the finalisation of the dispute.Referral of the matter to trial for resolution of the dispute through oral evidence. In my view, this option is the best remedy available which allows the conclusive resolution of the dispute. The court must, as far as possible, endeavour to ensure that the dispute between the parties is resolved in a more expedient and just manner with regard being had to the circumstances of each and every case. Referral of this matter to trial achieves this purpose in the circumstances.In terms of Rule 58(12) of the High Court Rules, 2021, this court may call for oral evidence where the court is of the view that it is in the interest of justice to do so. I did not explore this available option as this was not in the interests of justice. In my view, this matter requires a comprehensive approach which will allow the dispute to be fully ventilated. Referral of the matter to trial provides such mechanism. With respect to costs, I saw it prudent that such costs be in the cause. It is just that the decision of costs be suspended until the definitive resolution of the matter. In the circumstances, I was motivated by the aforesaid reasons to refer the matter to trial. Mabulala and Dembure, applicants’ legal practitioners. Venturas and Samukange, 2nd and 3rd respondents’ legal practitioners. 1 2009 (2) ZLR 132 (H). 2 SC28/22. 3 1999 (1) ZLR 421 (S) at 428F-G 4 1949 (3) SA 1155 (T) at 1163. 5 CCZ3/13 6 1995 (1) ZLR 219 at 226 8 HH 119-25 HCH 8027/22 8 HH 119-25 HCH 8027/22 CHIDO KADZVITI and ADELAIDE KADZVITI versus MARCELINE CHINHAMORA and VISLINK INVESTMENTS (PVT) LTD and DROCHIA INVESTMENTS HIGH COURT OF ZIMBABWE DEME J HARARE, 29 November, 2024 |& 28 February 2025 Opposed Application E Mubaiwa, for the applicants. RH Goba, for the 2nd and 3rd respondents. No appearance for the 1st Respondent. DEME J: On 29 November 2024, I made an order referring the matter to trial. More particularly, the order is as follows: “1. The matter be and is hereby referred to trial for determination of issues on the basis of oral evidence under the following conditions: The founding papers filed by the Applicants shall be regarded as summons. The opposing papers filed by the 2nd and 3rd Respondents shall be deemed to be the appearance to defend. The Applicants are required to file Plaintiffs’ Declaration within ten working days from the date of this order and thereafter, the matter shall proceed in terms of Rules. 2. Costs shall be in the cause.” The basis for the order of 29 November 2024 is as demonstrated herein. The Applicants approached this court seeking the following relief: “1. That the lease agreement entered into and between 1st and 3rd Respondent 2016 (sic) in respect of certain piece of land being Remainder of Lot 53A Borrowdale East situate in the District of Salisbury be and is hereby declared null and void. 2. That the lease agreement entered into between eh (sic) 1st and 2nd Respondent on 13th May 2014 be and (sic) declared the valid and binding lease agreement in respect of the land described in paragraph 1 above. 3. The Respondent (sic) shall jointly and severally the one paying the other to be absolved, pay the costs of this application on a legal practitioner – client scale.” The Applicants and the 1st Respondent jointly own the property known as certain piece of land being the Remainder of Lot 53A Borrowdale East situate in the District of Salisbury (hereinafter called “the property”). The 1st Respondent, with the concurrence of the Applicants, concluded the five-year lease agreement with the 2nd Respondent in 2014 in respect of the property. In 2022, the Applicants averred that they discovered that the 1st Respondent, who is their mother, concluded the second lease agreement with the 3rd Respondent without their approval. The second lease agreement was to run from 2016 until the expiration of twenty years. The Applicants alleged that the second lease agreement was unlawful in many respects. Firstly, they alleged that they did not authorise the conclusion of the second lease agreement. Secondly, they further affirmed that the second lease agreement was concluded whilst the first lease agreement was still running. Thirdly, the Applicants contended that the first lease was not validly cancelled before the second lease was concluded. Fourthly, the property was not available for lease since the property was in possession of the 2nd Respondent, according to the Applicants. The Applicants highlighted many provisions of the second lease which they are not comfortable with, including: A provision providing that the lease shall run for twenty years. A provision that the lessee may sublet the property. A provision which allows the lessee to effect improvements at the property and claim compensation from the lessors. The matter was opposed by the 2nd and 3rd Respondents from many respects. The 2nd and 3rd Respondents affirmed that the 2nd and 3rd Respondents are sister companies as they are controlled by one major shareholder. In light of this, the 2nd and 3rd Respondents alleged that the property is possessed by the related juristic person. They further asserted that the 1st Respondent acted through copies of power of attorney authored by the Applicants where they authorised the 1st Respondent to conclude the second lease. At all material time, according to the 2nd and 3rd Respondents, the Applicants were unknown to them. They further asserted that they negotiated the terms of two lease agreements with the 1st Respondent at all times. It is the case of the 2nd and 3rd Respondents that the 1st Respondent advised them that she was authorised by the other joint owners of the property who happen to be the Applicants. The 2nd and 3rd Respondents argued that the Applicants ought to have exhausted mediation and arbitration proceedings before approaching this court. However, during oral submission, Adv Goba abandoned this issue. The Applicants, responding to the issue of copies of power of attorney, insisted that such copies are invalid as they were not notarised in compliance with the provisions of Rule 85. The Applicants denied ever preparing copies of power of attorney. The Applicants, through their counsel, raised two points in limine to the effect that: The opposing affidavit was not properly commissioned. The deponent to the opposing affidavit did not demonstrate by way of resolution that he was authorised to depose to the opposing affidavit. These points in limine were eventually abandoned by the Applicants. The 2nd and 3rd Respondents raised a point in limine to the effect that the present application is pregnant with material disputes of fact which makes it impossible for the matter to be resolved by way of affidavits. Adv Mubaiwa argued that there are no material disputes of fact. He argued that by not responding to the present application, the 1st Respondent has admitted to the allegations raised against herself. This was vehemently opposed by Adv Goba. He submitted that the 1st Respondent’s silence is a sign that she does not want to expose her daughters. Drawing from this point in limine, the sole issue that arises for determination is whether the present application does have material disputes of fact which may not be determined based on affidavit evidence. The test to be employed in analysing whether conflict of fact arises was superbly defined in the case of Supa Plant Investments (Pvt) Ltd v Chidavaenzi1, in the following comments: “It is my view that it is not the number of times a denial is made or the vehemence with which a denial is made that will create a conflict of fact such as was referred to by MCNALLY J (as he then was) in Masukusa v National Foods Ltd and Another 1983 (1) ZLR 232 (H) and in all the other cases that have followed. A material dispute of fact arises when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.” Further, a material dispute of fact also emerges where the court entertains a reasonable doubt as to the appropriate course of action to be taken in order to resolve the matter before it without hearing further evidence. In the case of Riozim (Pvt) Ltd v Falcon Resources (Pvt) Ltd and Another2, the Supreme Court splendidly remarked as follows: “In this regard, the mere allegation of a possible dispute of fact is not conclusive of its existence. From the decided cases, it is evident that a dispute of fact arises where the court is left in a state of reasonable doubt as to which course to take in resolving the matter without further evidence being led.” Reference is also made to the cases of van Niekerk v van Niekerk & Others3, Room Hire Co. (Pty) Ltd v Jeppe Street Mansions ((Pty) Ltd4 and Muzanenhamo v Officer in Charge CID Law and Order and Ors 5. The 2nd and 3rd Respondents are alleging that Applicants, through copies of power of attorney, authorised their mother to conclude the second lease agreement a fact which is denied by the Applicants. The relevant portion of paragraph 7E is as follows: “As regards the second lease this came about as a result of further negotiations and 1st Respondent’s appreciation of the work that had been done on the property. At the time of signing the second agreement, 1st Respondent voluntarily produced copies of power of attorney which she said was forwarded to her by her daughters.” Responding to this issue through the answering affidavit, the Applicants asserted that: “This is denied to the extent that my sister and I did not forward any power of attorney to 1st Respondent. The signature on the so-called powers of attorney are forged, the witnesses who signed the so-called powers of attorney are unknown to us and why would our mother sign the powers of attorney in Zimbabwe if they had been signed abroad by us. We are aware that powers of attorney signed abroad should be authenticated and notarised and to the extent that they are not, these are worthless pieces of paper. Why would it be necessary anywhere to give 3rd Respondent the powers of attorney when none was produced in 2014 when the first lease agreement was signed? If the 2nd and 3rd’s representative believed that our mother was the owner of the property it and (sic) had previously entered into a lease agreement without the production of powers of attorney from us, it would not be necessary to produce them on the second occasion. It is also worth mentioning that I have not been to Zimbabwe since 2006 and my sister was not in Zimbabwe in 2016 when the second lease was drafted.” There are a lot of issues which emerge from the comparison of the two affidavits which are before the court. On one hand, the 2nd and 3rd Respondent are alleging that the 1st Respondent was authorised by the Applicants through copies of power of attorney attached to the opposing affidavit. The Applicants, on the other hand, are alleging that the 1st Respondent committed acts of fraud and forgery. Despite the averments of the criminal enterprise having been allegedly committed by the 1st Respondent, there is no evidence placed before my attention that the 1st Respondent committed these crimes. Fraud and forgery cannot be substantiated by hollow allegations. The Applicants needed to go a step further in establishing and properly pleading forgery and fraud for the court to make a determination in their favour. No police report or decision of criminal court against the 1st Respondent was placed before my attention to substantiate the allegations of fraud and forgery. In light of this, it became impossible for me to make a determination in the absence of sufficient evidence for fraud or forgery. Only trial would enable the leading of the relevant evidence in this regard. The Applicants averred that they were not in the country at the material time. Absence from the country is easy to prove through one’s passport. The Applicants failed to tender such evidence through their affidavits. On this footing, I was not able to make a determination of whether or not the Applicants authorised their mother through power of attorney as the Applicants failed to tender evidence of their absence from Zimbabwe. I was also unable to make a decision of whether the copies of power of attorney ought to be notarised as argued by Adv Mubaiwa. This decision can only be made after the Applicants have proved that they were not in Zimbabwe at the material time. This dispute can only be resolved through trial. No party tendered expert evidence drawing conclusion on signatures on the copies of power of attorney. The tools for trial have the potential of unearthing whether the Applicants signed their respective copies of power of attorney. The two counsels gave conflicting versions for the interpretation of the 1st Respondent’s failure to respond to the present application. Their versions have been captured before. In my view, her failure to respond is subject to various interpretations. Assuming that the 1st Respondent’s failure to respond is an admission to the allegations raised against her, as argued on behalf of the Applicants by Adv Mubaiwa, can only be nothing but a mere conjecture. The court does not operate upon assumptions or speculative evidence. It is motivated by tangible evidence. Such tangible evidence can be extracted through action procedure. The reason for the 1st Respondent’s silence may be uncovered through trial procedure. For these reasons, I saw it impossible to determine the application on the basis of the affidavits. Only a referral of the matter to trial will enable the matter to be resolved on the basis of oral evidence. An action procedure has generally been regarded as a more disciplined way of resolving disputes than an application procedure. In the case of Mashingaidze v Mashingaidze6 Robinson J superlatively remarked as follows: “The Applicant may indeed be able to put forward her claim for relief on alternative grounds when re-commencing proceedings by way of action, a procedure which lends itself more appropriately, both from a pleading and from an evidence point of view, to a resolution of the issues in this matter. In this connection, I would refer again to Masukusa’s case supra, in which, in giving a more general reason as his third reason for dismissing the application, Mc NALLY J (as he then was) stated at 236F- 237A: “Procedure by way of notice of motion, though often convenient, is far less disciplined than procedure by action. A good novelist can write a series of exciting affidavits and at the end claim large sums of money. It takes a lawyer to draw a declaration. To draw a declaration it is necessary to analyse your claim and decide exactly what you have to prove.”” In casu, the present matter involving forgery, fraud and other issues highlighted before can only be conclusively resolved by way of action procedure taking advantage of trial tools. Through trial, the court will be able to draw appropriate inference from the conduct of the parties which cannot be possible through motion procedure. Where the court is faced with a case that does have material disputes of fact it has various options at its disposal. Reference is made to the case of Muzanenhamo supra. The court can make one of the following decisions: Dismissing the matter where it was apparent from the beginning that the matters involved cannot be resolved by way of motion procedure. I did not make this decision as this would not bring finality to litigation. Employ a robust and common-sense approach where the court proceeds to make its determination based on available evidence. In my view, this approach does not promote finality to litigation between the parties hereto. Hence, I did not explore this route. Striking the application from the roll allowing the parties to re-commence by way of action procedure. In my opinion, this route is not in the interest of justice as it delays the finalisation of the dispute. Referral of the matter to trial for resolution of the dispute through oral evidence. In my view, this option is the best remedy available which allows the conclusive resolution of the dispute. The court must, as far as possible, endeavour to ensure that the dispute between the parties is resolved in a more expedient and just manner with regard being had to the circumstances of each and every case. Referral of this matter to trial achieves this purpose in the circumstances. In terms of Rule 58(12) of the High Court Rules, 2021, this court may call for oral evidence where the court is of the view that it is in the interest of justice to do so. I did not explore this available option as this was not in the interests of justice. In my view, this matter requires a comprehensive approach which will allow the dispute to be fully ventilated. Referral of the matter to trial provides such mechanism. With respect to costs, I saw it prudent that such costs be in the cause. It is just that the decision of costs be suspended until the definitive resolution of the matter. In the circumstances, I was motivated by the aforesaid reasons to refer the matter to trial. Mabulala and Dembure, applicants’ legal practitioners. Venturas and Samukange, 2nd and 3rd respondents’ legal practitioners. 1 2009 (2) ZLR 132 (H). 1 2009 (2) ZLR 132 (H). 2 SC28/22. 2 SC28/22. 3 1999 (1) ZLR 421 (S) at 428F-G 3 1999 (1) ZLR 421 (S) at 428F-G 4 1949 (3) SA 1155 (T) at 1163. 4 1949 (3) SA 1155 (T) at 1163. 5 CCZ3/13 5 CCZ3/13 6 1995 (1) ZLR 219 at 226 6 1995 (1) ZLR 219 at 226