Zimbabwe Broadcasting Corporation v Cuthbert Elkana Dube and Others

The applicant, Zimbabwe Broadcasting Corporation (ZBC), brought a chamber application in terms of High Court Rule 226(2)(c) read with the proviso to High Court Rule 241 for an order in terms of section 19A of the High Court Act to refer civil trial proceedings in Case No. HC 2770/15 to the Chief Executive Officer of the Institute of Chartered Accountants of Zimbabwe (ICAZ) for inquiry and report. The underlying trial arose from alleged severe monetary losses incurred by ZBC between 1 January 2009 and 31 December 2013 during which period the respondents held corporate positions with ZBC. An independent audit report was commissioned, comprising 269 pages with 76 exhibits amounting to 291 pages, plus management accounts. The report implicated respondents in losses and corporate irregularities. At the initial trial hearing before Mathonsi J on 13 February 2019, during counsel's opening address, the court directed a written application on the applicability of section 19A. By consent, the opposed application was referred to the trial judge by Munangati-Manongwa J on 17 July 2019.

• Whether the court should invoke section 19A of the High Court Act to refer questions arising in the trial proceedings to a referee
• Whether the application to invoke section 19A was premature at the stage before evidence had been led
• What constitutes a 'question' requiring referral under section 19A of the High Court Act
• Whether the mere volume of documents justifies referral to a referee
• The proper interpretation of section 19A in light of constitutional rights to a fair hearing under sections 69(2) and (3) of the Zimbabwe Constitution

1. The application to refer proceedings between the parties in case number HC 2770/2015 at this stage to the Chief Executive Officer of the Institute of Chartered Accountants of Zimbabwe (ICAZ) in terms of section 19A of the High Court Act for inquiry and report was dismissed. 2. Costs of this application to be in the cause.

For section 19A of the High Court Act to be invoked, a specific question or questions requiring referral to a referee must first arise from the proceedings. Such questions can only emerge after evidence has been led in the trial. The mere volume or complexity of documents to be examined does not, by itself, justify referral under section 19A. An application to invoke section 19A is premature if made before the commencement of trial and the leading of evidence. Section 19A is an extraordinary provision that must be narrowly construed in light of constitutional rights to a fair hearing under section 62 of the Constitution of Zimbabwe. The trial court is presumed capable of resolving legal issues and analyzing any documents produced before it unless a specific question arises demonstrating otherwise.

The court observed that legal practitioners and the court must not be put off by the sheer volume of exhibits to be used in a case. The court noted that while it was not ruling that section 19A was inapplicable to the case generally, it was only premature at the current stage, leaving open the possibility that if during the trial a situation arises requiring resort to section 19A, the court could invoke it at an appropriate time. The court referenced the South African case of Wright v Wright and Anor to illustrate that a referee appointed under similar statutory provisions is required only to make factual findings and does not exercise judicial or quasi-judicial functions. The purpose of referral is to obtain assistance from a neutral expert on highly technical aspects or where bulk documentation requires streamlining, with the referee's report assisting but not binding the court. The court also noted the principle from National Employment Council for The Construction Industry v Zimbabwe Nantong International that there is a presumption against ouster of the High Court's jurisdiction unless clearly intended by the legislature, and any provision purporting to oust jurisdiction must be restrictively interpreted.

This case provides important guidance on the proper application and timing of section 19A of the High Court Act in Zimbabwean civil procedure. It establishes that the mere volume or complexity of documents is insufficient to justify referral to a referee, and that a specific question requiring expert examination must first arise from the evidence before section 19A can be invoked. The judgment emphasizes the principle that courts are presumed competent to examine all documents and resolve legal issues, and that provisions allowing referral to referees must be narrowly construed in light of constitutional rights to a fair hearing. It clarifies the procedural requirements and timing for invoking section 19A, preventing premature applications before the trial has commenced and evidence has been led. The case also distinguishes the role of a referee (who makes factual findings) from that of an assessor or arbitrator, and emphasizes that referral provisions should not become the norm but remain extraordinary measures.