Jockstar Investments (Private) Limited and Jiti Law Chambers v Tarisai Mashiri and Messenger of Court

Tarisai Mashiri sought a compelling order in the Magistrates Court against Jockstar Investments (Private) Limited and Jiti Law Chambers to facilitate transfer of stand number 3024 of Zizalisari Lot 4, held under deed of Transfer number 1406/2003. A point in limine was raised regarding material disputes of fact requiring the matter to go to trial. The Magistrates Court upheld the point in limine and referred the matter for trial. However, the appellants had expressly abandoned the preliminary point about material disputes of fact in their supplementary heads of argument (at paragraph 1.3, page 107 of the record). Both parties were dissatisfied with the Magistrates Court decision, leading to a main appeal and a cross appeal. The main appellants also raised other preliminary issues including security for costs (as the applicant was a peregrinus) and the joinder of the second appellant, which were not determined by the Court a quo.

• Whether the Court a quo erred in rendering a decision on a point in limine that had been expressly abandoned by the parties
• Whether the Court a quo erred in failing to determine preliminary issues of security for costs payable by a peregrinus
• Whether the Court a quo erred in failing to determine the issue of joinder of the second appellant
• Whether the cross appeal was properly noted in compliance with Order 31 Rule 3 and 4(a) of the Magistrates Court Rules
• Whether a cross appellant can seek substantive relief when the Court a quo did not deal with the merits of the case

1. The main appeal was allowed. 2. The cross appeal was dismissed. 3. The matter was remitted to the Court a quo for a hearing de novo before a different Magistrate. 4. Each party to bear its own costs.

A court commits a material misdirection and exceeds its mandate when it renders a decision on a point in limine that has been expressly abandoned by the parties. The function of a court is to determine disputes placed before it by the parties through pleadings and evidence - it cannot go on a frolic of its own by deciding abandoned issues. Where preliminary issues are properly raised before a court, the court must determine all such issues and cannot selectively address some while ignoring others. A cross appeal that fails to identify which part of the judgment is being appealed against does not comply with Order 31 Rule 3 and 4(a) of the Magistrates Court Rules. An appellate court cannot substitute a judgment rendering substantive relief that was not addressed and resolved by the lower court on the merits.

The court observed that where a point of law or factual issue exercises the court's mind but has not been raised by the parties or addressed by them either in their pleadings, evidence, or submissions, the court is at liberty to put the question to the parties and ask them to make submissions on the matter before deciding it. The court also noted that in circumstances where errors are entirely attributable to the lower court and not of either party's making, fairness requires that each party bear its own costs rather than costs following the event.

This case is significant in Zimbabwean civil procedure for establishing important principles regarding: (1) the proper conduct of courts when dealing with abandoned points in limine - courts cannot decide issues that parties have expressly abandoned; (2) the mandatory duty of courts to determine all properly raised preliminary issues, not selectively address some while ignoring others; (3) the limits of judicial discretion - courts must confine themselves to determining disputes placed before them by parties and cannot act mero motu on issues not raised or abandoned; (4) the proper formulation of cross appeals under the Magistrates Court Rules, particularly the requirement to identify which part of the judgment is being appealed; and (5) the principle that appellate courts cannot grant substantive relief that was never determined on the merits by the lower court. The case also demonstrates the court's equitable approach to costs where errors are attributable to the lower court rather than the parties.