Bar (PRACTICE AND PROCEDURE) https://old.zimlii.org/taxonomy/term/10935/all en Mukwindidza v Akram & Anor (HH 555-20, HC 8928/19) [2020] ZWHHC 555 (28 August 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/555 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p>OLGA MUKWINDIDZA</p> <p>versus</p> <p>MUHAMMAD AKRAM</p> <p>and</p> <p>MAGISTRATE B PABWE N.O (MAINTENANCE COURT)</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MANGOTA J</p> <p>HARARE, 25 June 2020 &amp; 28 August 2020</p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p><em>J Mafume</em>, for the applicant</p> <p><em>R Mahuni.</em>, for the respondent</p> <p> </p> <p> </p> <p>            MANGOTA J: On 3 June 2019 I reviewed the maintenance order which the second respondent issued. I reviewed it in favour of the applicant.</p> <p>            On 5 June, 2019 the first respondent appealed my decision. He did so under SC 316/19.</p> <p>            On 31 October, 2019 the applicant applied for leave to execute pending appeal. Her view was that the appeal of the first respondent was frivolous, vexatious and lacked merit.</p> <p>            The application for leave to execute was allocated to me. I instructed the registrar to serve notices of set down of the application on the parties. The registrar, through the sheriff, served notices of set down of the application on the parties.</p> <p>            On receipt of the notice of set down, the first respondent’s legal practitioners wrote a letter to the legal practitioners of the applicant. They copied the same to the registrar of this court. The letter reads, in the relevant part, as follows:</p> <p>            “It appears from the notice of set down that the matter is scheduled for hearing before Justice             Mangota, the same judge who adjudicated on the matter now subject of appeal. In that regard we     wish to advise you that we have been instructed by our client to seek the recusal of the Honourable         Justice Mangota from dealing with the present matter.”</p> <p> </p> <p>            The registrar referred the letter of the first respondent to me for my information. I returned the record of the parties’ case to the registrar for allocation to another judge. On consultation with colleague judges, it became apparent to me that a request for recusal is not made through a letter which the first respondent addressed to the legal practitioners of the applicant and copied to the High Court registrar. I became alive to the fact that a party who seeks my recusal must make a formal application giving reasons for the same.</p> <p>            It is in the stated set of circumstances that I recalled the file from registry and proceeded to re-set the application down for hearing.</p> <p>            When the second notice of set down was served upon the first respondent, his legal practitioner wrote to the High Court Registrar. He did so on 15 June, 2020. He stated, in the same, that he was surprised that the application had been re-set down before me. He requested the registrar to place his letter which he copied to the legal practitioners of the applicant before me for what he termed further directions.</p> <p>            On the set down date, the legal practitioner of the first respondent made two oral applications. He applied for:</p> <p>            (i)         my recusal from hearing the application for execution pending appeal – and</p> <p>            (ii)        upliftment of the bar which became operative against him when the first respondent                      failed to file his Heads within the time which the rules of court prescribed.</p> <p>            I heard the first application. I delivered an <em>ex tempore</em> judgment in terms of which I dismissed it with costs. I heard the second application and reserved judgment.</p> <p>            I dismissed the recusal application which was based on the first respondent’s feelings. His view, as gleaned from the submissions of his legal practitioners, was that, because I decided the application for review in favour of the applicant which decision he appealed I would not deal with the application for execution pending appeal in a fair manner. He submitted that the first respondent’s preference was that the application for execution pending appeal be heard by another judge. He stated that, if another judge were to hear the application, the first respondent would feel that justice had not been tempered with.</p> <p>            I refused to entertain the application which the first respondent anchored on his feelings. I agreed with the submissions of the applicant’s legal practitioners who stated, in opposition to the application, that the first respondent should have filed a written application stating his reasons for recusal clearly, cogently and concisely. He insisted, correctly so, that an application which is premised on the feelings of a litigant for a case which is before the court would create insurmountable challenges for the court and the other party.</p> <p>            The above-stated position is a <em>fortiori </em>where, as in <em>casu, </em>the legal practitioner of the first respondent dissociated himself from the views of his client. He submitted that he advised the first respondent that a judicial officer is a trained lawyer who appreciated the difference of matters which parties place before him. He submitted further, that his view was that I would not be biased against the first respondent who, contrary to his advice, continued to entertain the view that he would not have a fair hearing if I proceeded to hear the application for leave to execute pending appeal.</p> <p>            The first respondent placed his legal practitioner into an invidious position. He allowed him to be torn between his duty to the court and his duty to his client. The advice which he received from his legal practitioner should have put his mind to rest. He should have realised that if I exhibited any form of bias as his unfounded fears suggest, many options were open to him to pursue in an effort to challenge and correct the same. His unfounded apprehension did not warrant  my recusal from hearing the application which the applicant and him placed before me. His apprehension can, for lack of a better phrase, be likened to that of a person who runs away from his own shadow which he sees as a monster which is ready to tear him to pieces when it is not such and, even if it is, it has no capacity to devour him at all.</p> <p>            I agreed with the submissions of counsel for the applicant who stated that if the approach of the first respondent to maintenance matters, one being the application which the parties placed before me, were to prevail, the magistrates’ court and the children’s court would not be functional. He submitted, correctly so, that maintenance matters routinely come before the same magistrates in one form or the other amongst which are such applications as are for maintenance, variation and/or discharge of the same. He insisted that for the first respondent to simply allege that the judge who reviewed the order of the magistrate in favour of the applicant would be biased against him when he hears the application for execution pending appeal is not far from setting the standard of bias far too low. He cited two branches of this court where two judges sit in Masvingo and Mutare. He submitted, in my view correctly, that the same judges would hear the parties who appeared before them over and over again. He insisted that the approach which the fist respondent took in <em>casu </em>would make justice delivery impossible at court stations which are manned by two or three judges of this court. He stated that a party would simply tell the judge that “I appeared before you before and I have a reasonable fear of bias on your part” as a result of which the court would come to a standstill position where such an eventuality occurred.</p> <p>            I am indebted to the applicant who furnished me the case of <em>Pechi Investments (Pvt) Ltd</em> v <em>Maurice Mutatsi Nyamunda</em>, HB 142/10. The case discuses what the applicant in an application for recusal must establish to succeed on the same. It states at p 10 of the cyclostyled judgment that:</p> <p>            “A test of judicial bias was laid down in <em>Black </em> v <em>Pretoria Rent Board 1943</em> (P) 246 where it was     stated that the test of judicial bias is not whether there has been actual bias, but whether there is a   real likelihood of bias, or whether a reasonable man in all the circumstances might suppose that           there was an improper interference with the course of justice” (Emphasis added)</p> <p> </p> <p>            It is pertinent to note, from a reading of decided case authorities in which recusal was /is discussed that to succeed, the applicant in a recusal application must show, on an objective test, that the judicial officer should recuse himself. He must, in short, proffer clear and cogent reasons which satisfies a reasonable litigant or any reasonable man of the level of thinking of the reasonable litigant that the judge must recuse himself. He fails to prove the requirements for recusal where, as in <em>casu</em>, his application is premised on feelings or subjective views which are, if anything, difficult, if not impossible, to prove.</p> <p>            The test for bias is the reasonableness of the litigant. In <em>Sitwana and Another</em> v <em>Mnagithate, District of Picketber and Another</em> 2003 (5) SA @ 603 – 604 Foxcroft j ably stated that:</p> <p>            “…..The common law basis of the duty of a judicial officer in certain circumstances to recuse             himself was fully examined in the cases of <em>S</em> v <em>Radebe</em> 1973(1) SA 796 (A) and <em>South African             Motor Acceptance Corporation </em>v <em>Oberholzer, </em>1974 (4) SA 808 (T). Broadly speaking, the duty of             recusal arises where it appears that the judicial officer has an interest in the case or where there is    some other reasonable ground for believing that there is a likelihood of bias on the part of the       judicial officer: that is that he will not adjudicate impartially. The matter must be regarded from   the point of view of the reasonable litigant and the test is an objective one. The fact that in reality            the judicial officer was impartial or is likely to be impartial is not the test. It is the reasonable         perception of the parties as to his impartiality that is important.”</p> <p> </p> <p>It follows from the foregoing that not only must the person apprehending bias be a</p> <p>reasonable person, but the apprehension itself must, in the circumstances, be reasonable. The first respondent did not directly impute any bias on my part. Nor was he able to show that I have an interest in the case of the applicant and him. All what he stated is that I reviewed their case in the past and decided for the applicant. That <em>per se</em> does not point to any bias on my part. It does not do so from an objective assessment of the first respondent’s statement.</p> <p>            The first respondent‘s subjective view does not qualify to show that he established the requirements for my recusal. It is for the mentioned reason, if for no other, that I remained constrained to agree with his application for my recusal.  </p> <p>            The record shows that the applicant served her Heads on the first respondent on 4 February, 2020. It shows, further, that the first respondent filed his Heads outside the<em> dies induciae</em>. He should have filed them on 18 February, 2020. He filed them on 3 March, 2020 when the bar which is stated in the rules of court had become operative against him.</p> <p>            The late filing of Heads prompted the first respondent to file his second application. He applied for upliftment of the bar. He submitted, through counsel, that when he received the applicant’s Heads the applicant and him were involved in two applications. These, according to him, were the application: </p> <p>            (a)        for execution pending appeal – and</p> <p>            (b)        to compel the Sheriff to sell the applicant’s immovable property.</p> <p>            Counsel for him submitted that he misfiled the applicant’s Heads. He stated that, when the error which he made came to his knowledge, he filed his client’s Heads well before the five (5) day period which is stipulated in the proviso to para (b) of subr (2) of r 238 of the High Court Rules, 1971.</p> <p>            The submissions of the applicant on the issue of the bar were to the contrary. She maintained the view that the first respondent was barred and was, therefore, not before the court until he successfully dealt with the issue of the bar. She insisted that the proviso upon which the first respondent placed reliance did not suspend the ten-day period which is stipulated in the rules in terms of which the respondent should have filed its Heads. The proviso, according to her understanding, would only apply where the ten-day period during which the respondent’s Heads should have been filed overlaps with the set down date.</p> <p>            The position which the first respondent took on this aspect of the case created an unpalatable situation for him. He was, on the one hand, asserting that he did not file his Heads within the <em>dies induciae</em> and the same were, therefore, not before me. He was, on the other hand, stating that, because he filed his Heads five – days before the date of the hearing of the application, his Heads were, in terms of the proviso, properly before me. He, in short, was approbating and reprobating.</p> <p>            I drew counsel’s attention to the fact that he was blowing both hot and cold. I made him to understand that he was stating in one and the same breadth that the first respondent’s Heads were properly and improperly filed. I invited him to make a choice between applying for upliftment of the bar and standing by the proviso. He abandoned his application for upliftment of the bar. He submitted that the Heads which he filed five-days before the date of the hearing of the application were properly before me. He insisted that the proviso in terms of which he filed them adequately covered the situation of the first respondent.</p> <p>            The above-stated matter prompted me to reserve judgment on the mentioned aspect of the case. I decided to write a judgment which would clear the misunderstanding which the first respondent appeared to be suffering from. The judgment, in my respectful view, would be of immense benefit not only to the first respondent but also to any respondent who may be tempted to follow his line of thinking in future especially in so far as the filing of Heads by a party, the respondent in particular, is concerned.</p> <p>            The proviso which is mentioned in para (ii) of subr (2a) of rule 238 of the rules of court must be placed into context. The context is that the proviso is only but an exception to the general rule. It cannot, therefore, operate as the general rule.</p> <p>            It stands to reason that where both the applicant and the respondent are legally represented, Heads for each party must be filed with the registrar of this court. The applicant, for instance, cannot set the application down for hearing unless and until he:</p> <p>            (a)        files the applicant’s Heads with the registrar– and</p> <p>            (b)        delivers a copy of the applicant’s Heads to the respondent – and</p> <p>(c)        files with the registrar proof of such delivery of the applicant’s Heads to the respondent.</p> <p>Subrule (2) of r 238 of the High Court Rules, 1971 places a duty on the legal practitioner</p> <p>of the respondent who has been served with the applicant’s Heads to file with the High Court registrar the respondent’s Heads of Argument. These, in terms of subr (2a) of r 238 of the rules of court, should be filed not more than ten days after the applicant’s Heads were delivered to the respondent. Where the respondent fails to file his Heads within the <em>dies induciae</em> of ten days of his receipt of the applicant’s Heads, the respondent shall, in terms of subr (2b) of r 238, be barred and, where the bar remains operative, the court or judge may deal with the matter on the merits or direct that it be set down for hearing on the unopposed roll.</p> <p>            Subrule (2a) of r 238 of the High Court Rules, 1971 is the principal rule. It obligates a legally represented respondent to file his Heads within ten days of his receipt of the applicant’s Heads. The principal rule and the proviso are reconciled by practice. The question which begs the answer relates to the circumstances under which the proviso – the exception to the main rule – becomes operational.</p> <p>            In the olden days where courts were less congested, matters could be fast-tracked. In such circumstances, the respondent would find himself without ten days in respect of which he would file his Heads. Under the stated set of circumstances, the respondent was offered a leeway to file his Heads at least five days before the date of hearing of the application.</p> <p>            The case of <em>Vera </em>v <em>Imperial Asset Management</em> 2006 (1) ZLR 436 (H) offers clarity to the meaning and import of the proviso. It reads, in the relevant part, as follows:</p> <p>“The operative part of the rule is not to be found in the proviso. It is in the main provision. It is to the effect that the respondent is to file his or her Heads within ten days of being served with the applicant’s Heads. That is the immutable rule. However, in the event that the respondent has been served with the applicant’s Heads close to the set down date, he or she shall not have the benefit of the full ten – day period within which to file and serve Heads as stipulated in the main provision but shall have to do so five clear days before the set down date. This is the import of the proviso to the main provision of the rule.”            </p> <p> </p> <p>            The reasoning of the court in <em>Vera</em> v <em>Imperial Asset Management </em>was followed closely in <em>Assistant Master &amp; Anor </em>v <em>Ellington Trading (Pvt) Ltd, </em>2013 (1) ZLR 332 (H) where Mutema J held that:</p> <p>“the respondent is to file his Heads within ten – days of being served with the applicant’s Heads. If the respondent has been served with the applicant’s Heads close to the set down date, he shall not have the benefit of the full ten day period within which to file and serve his Heads but he must do so five clear days before the set down date.”</p> <p> </p> <p>The applicant and the first respondent were, and are, legally represented in the main</p> <p>matter. The application for leave to execute pending appeal was initially set down for hearing at 10 am of 2 June, 2020. The first respondent received the applicant’s Heads on 4 February, 2020. He, therefore, had all the time in the world to file his Heads within the <em>dies induciae</em> which is stipulated in subr (2a) of r 238 of the rules of court. He, in effect, should have filed his Heads on 18 February, 2020. He did not do so and the bar which is mentioned in subr (2b) of rule 238 became operative as against him with effect from 19 February, 2020 to date. His case falls outside the proviso upon which he places reliance. He was not served with the applicant’s Heads close to the set down date. He received the applicant’s Heads some four months before the set down date. The proviso is, therefore, not available to him.</p> <p>The first respondent’s decision to abandon his application for upliftment of the bar dealt</p> <p>him a severe blow. His Heads are not before me and the bar remains operative against him. He, in the stated set of circumstances, made up his mind to, as it were, hand judgment to the applicant on a silver platter. He did not, in short, oppose the application to execute pending appeal.</p> <p>            The applicant, in the circumstances of the present case, proved her case on a balance of probabilities. The application is, in the result, granted as prayed in the draft order.</p> <p><em>Mafume Law Chambers</em>, applicant’s legal practitioners</p> <p><em>Mahuni, Gidiri Law Chambers</em>, 1st respondent’s legal practitioners</p> <p> </p> <p> </p> <p>       </p> <p>               </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/555/2020-zwhhc-555.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24809">2020-zwhhc-555.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/555/2020-zwhhc-555.pdf" type="application/pdf; length=243032">2020-zwhhc-555.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/f">F</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/family-law">FAMILY LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/children%E2%80%99s-court-0">Children’s court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/court-jurisdiction">Court jurisdiction</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/bar-practice-and-procedure">Bar (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/upliftment-bar">upliftment of bar</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/r">R</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/recusal">RECUSAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/allegation-bias-recusal">Allegation of bias (RECUSAL)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-recusal">Application for recusal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review-0">REVIEW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-review-0">Application for review</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/bulawayo-high-court/2010/142">Pechi Investments (Pvt) Ltd v Nyamuda t/a Ebunandini Restaurant (Case No. HC 167/09) [2010] ZWBHC 142 (17 November 2010);</a></div></div></div> Thu, 10 Sep 2020 12:34:40 +0000 Sandra 9854 at https://old.zimlii.org Lesley Faye Marsh Private Limited t/a Premier Diamonds & 7 Others v African Banking Corporation of Zimbabwe Private Limited & Another (SC 4/19, Criminal Appeal Case No. SC 1014/17) [2019] ZWSC 4 (15 February 2019); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2019/4 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>DISTRIBUTABLE</strong><strong>           (8)</strong></p> <p> </p> <ol> <li> <strong>LESLEY FAYEMARSH PRIVATE LIMITED T/A PREMIER DIAMONDS 2) RAYDIAMBVBA3)ZARDIAM DMCCTHENEEMILLENIUMPOWERANDHEAVYEQUIPMENTZIMBABWEPRIVATELIMITED4)JAMALJOSEPHHAMED5)NEOCLIS CHARITONOS6)EXODUS FUELS PRIVATE LIMITED7)BACKLODGE INVESTMENTS8)INCHESTER INVESTMENTS PRIVATE LIMITED </strong></li> </ol> <p><strong>v</strong></p> <p><strong>AFRICAN     BANKING     CORPORATION    OF    ZIMBABWE    PRIVATE   LIMITED    AND    ABC     HOLDINGS    PRIVATE    LIMITED</strong></p> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA DCJ, MAKARAU JA &amp; MAKONI JA</strong></p> <p><strong>HARARE 25 JUNE 2018 AND 15 FEBRUARY 2019.</strong></p> <p> </p> <p> </p> <p><em>S.M. Hashiti</em> for appellants,</p> <p><em>T. Mpofu</em> for respondents.</p> <p> </p> <p> </p> <p>            <strong>MAKARAU JA</strong>: This is an appeal against the whole judgment of the High Court handed down on 31 March 2015, in which the court <em>a quo</em> dismissed the appellants’ application for rescission of judgment for want of prosecution.</p> <p> </p> <p><strong>The facts.</strong></p> <p>The respondents issued summons against the appellants out of the High Court, claiming the sum of US4 634 547-72 together with interest thereon at the rate of 3 percent <em>per annum</em> from the date of summons to date of payment in full. The claim was not only defended but was also met with a counterclaim for US2,1 million.</p> <p> </p> <p>When the appellants and their legal practitioners failed to attend a pre-trial conference scheduled for the matter, the respondents successfully applied for the appellants’ defence to be struck off and a default judgment was entered in their favour. By design or by omission, the counterclaim was left extant. </p> <p> </p> <p>No issue turns on this development. The determination of the counterclaim has proceeded independently and was at the pre-trial conference stage at the time of the hearing of this appeal. I merely highlight the development in passing as it is one of the instances in which the determination of the dispute between the parties has been fragmented. I will highlight the other instance in due course as I frown at the piecemeal fashion in which this dispute has been presented and is proceeding.</p> <p> </p> <p>A day following the granting of the default judgment, the appellants filed an application seeking to reverse the default judgment that had been granted against them. In view of the fact that the respondents subsequently filed another application to dismiss this application and which I refer to below, I shall refer to this application as “the application for rescission” for convenience and clarity.</p> <p> </p> <p>The respondents opposed the application for rescission. The appellants did not file any other papers in the matter for a period in excess of one month. Thereafter, the respondents filed a chamber application to have the application dismissed for want of prosecution. I shall refer to this second application as “the application for dismissal”.</p> <p> </p> <p>Immediately after the filing of the application for dismissal, the appellants filed answering affidavits and heads of arguments in the application for rescission. The respondents also filed their heads of argument in the matter.  The exact dates on which each party filed its papers are fully captured in the judgment <em>a quo.</em></p> <p>     It is recorded in the judgment <em>a quo</em> that before the set down of the application for dismissal, the appellants wrote to the Registrar of the High Court, requesting that both applications be heard on the same date.  The letter is not on record. It is however not clear from the judgment <em>a quo</em> whether the request to the Registrar and which was forwarded to the judge, was given any consideration by the court<em>.</em>  It is also not clear whether the appellants followed this request with a formal application before the court for the consolidation of the hearing of the two applications.  What emerges from the judgment <em>a quo</em> is that no hearing of either matter took place on the first set down date as counsel for the respondents successfully applied for the matters to be postponed to enable him to take instructions on whether or not to argue the application for rescission.</p> <p>When the court <em>a quo</em> resumed its sitting, only the chamber application for dismissal was argued and determined. On the turn, the court granted the application sought by the respondents, effectively dismissing the application for rescission of judgment.</p> <p> </p> <p>Whilst the issue of consolidation of the hearing of the two applications does not arise in this appeal, I raise the issue because had that practical course been taken, this appeal would not have arisen and again the piecemeal fashion in which this dispute has proceeded would have been minimised or avoided. This is yet another incident in which the determination of the dispute between the parties was fragmented. It is undesirable that disputes, especially commercial disputes such as the one between the parties <em>in casu</em>, be dealt with in a piecemeal fashion as this tends to unnecessarily protract the resolution of the dispute.</p> <p> </p> <p><strong>Ratio decidendi of the judgment <em>a quo.</em></strong></p> <p>At the hearing of the matter in the court <em>a quo</em>, the respondents took a point <em>in limine</em>. They contended and correctly so, that the appellants were barred, having filed their heads of argument out of time. After dismissing the application to lift the bar, the court <em>a quo</em> held that as a consequence of the appellants remaining barred, the application for dismissal was unopposed. It treated the application as such and granted the order prayed for by the respondents. In its words, the court <em>a quo</em> held:</p> <p>“It is clear that once a party is barred and remains barred, the matter is treated as unopposed.”</p> <p> </p> <p> </p> <p>I form the above view on the <em>ratio</em> of the judgment <em>a quo</em> notwithstanding that the court made some reference to the poor prospects of success of both applications on the merits. Having listed the many transgressions of the appellant and its legal practitioners, the court <em>a quo</em> opined:</p> <p>“Given the non-compliance with the rules, I am of the view that the respondents do not have any prospects of success in the event of this application being determined on the merits. Any prejudice to be suffered by the respondents is of their own making……”</p> <p> </p> <p> </p> <p>Having expressed itself thus, the court however proceeded to conclude as follows:</p> <p>“The trajectory of all three matters was necessary as the manner in which the respondents conducted themselves in the matter had a bearing on the determination of the application for the upliftment of bar and postponement. The conduct clearly reflects the respondents’ and their legal practitioners’ dilatoriness. The analysis of the conduct should therefore not be seen as an attempt to determine the merits of the present application or the application under case no HC 2754/14.”(The emphasis is mine).</p> <p> </p> <p> </p> <p>On the basis of the above, it appears clearly to me that whilst expressing a view on the prospects of success of both applications, the court <em>a quo</em> did not determine the application for dismissal on its merits.</p> <p><strong>The appeal.</strong></p> <p>Aggrieved by the decision, the appellants noted this appeal, raising three grounds of appeal. The essence of the appeal is to attack the court’s failure to consider the application on its merits and in particular, to make reference to the defence that the appellants had raised in the application for rescission of judgment.</p> <p> </p> <p><strong>The issue.</strong></p> <p>The issue that falls for determination in this appeal therefore is whether or not the court <em>a quo</em> was correct in treating the application for dismissal as unopposed and to proceed to grant the order prayed for without making any reference to the defence proffered by the appellants.</p> <p> </p> <p>The determination of this issue entails interpreting the rules of procedure regulating the powers of a court when a respondent defaults in filing heads of argument on time.</p> <p> </p> <p><strong>The law.</strong></p> <p>The law governing the powers of the court in circumstances where a respondent files heads of argument out of time is clearly spelt out in r 238(2) (b).  The Rule provides:</p> <p>“(2b)  Where heads of argument that are required to be filed in terms of subrule (2) are not filed within the period specified in subrule (2a), the respondent concerned shall be barred and the court or judge may deal with the matter on the merits or direct that it be set down for hearing on the unopposed roll.”</p> <p> </p> <p>Rule 238 (2) (b) is self -contained and deals exclusively with instances where the respondent has filed heads of argument out of time.  In the self- contained provision, it is expressly provided that a respondent who defaults in filing heads of argument out of time is barred for that reason. The Rule then proceeds to regulate how the matter in which the respondent has defaulted is to be disposed of. This is to be contrasted with the provisions of r 239 which also governs the hearing of applications generally and in the proviso to the rule, the hearing of applications where a party is barred.</p> <p>Rule 239 provides that:</p> <p>“At the hearing of an application-</p> <ul> <li>Unless the court otherwise orders, the applicant shall be heard in argument in support of the application, and thereafter, the respondent’s argument against the application shall be heard and the applicant shall be heard in reply.</li> <li>The court may allow oral evidence.</li> </ul> <p>Provided that if one of the parties has been barred, the court shall deal with the application as though it were unopposed, unless the bar is lifted.”</p> <p> </p> <p>Clearly, it is only when the court is proceeding under Rule 239 that it shall treat the application as unopposed if the respondent is barred. This is the point that GARWE J A made in <em>GMB V Muchero</em> SC59/07. In useful <em>orbiter </em>in that matter, the learned judge drew the distinction between the effect of a bar in proceedings under r 238(2) (b) and in proceedings under r 239 as read with r 233.</p> <p> </p> <p>A clear reading of the rules and of the decision in <em>GMB v Muchero</em> (<em>supra</em>) makes it clear that the effect of the bar arising from the late filing of heads of argument and a bar arising from any other default in terms of the rules are different.</p> <p> </p> <p>It presents itself quite clearly to me that where the respondent is barred for failing to file his or her heads of argument on time, the application cannot be treated as un -opposed. The provisions of r 238 (2) (b), which I have cited in full above, are clear on that point.  The provisions of the rule direct the court hearing such an application where heads have been filed out of time, to either hear the matter on the merits or to refer it to the unopposed roll. The rule does not deem the application unopposed.</p> <p> </p> <p>The Rule appears to me to be sound and based on the fact that once a notice of opposition and opposing papers have been validly filed, the late filing of heads of argument cannot automatically have the effect of negating or nullifying such filing. The rule re-asserts the common-sense position that the pleadings, having been validly filed, remain extant until struck off the record by a competent court order. A referral of the matter to the unopposed roll is one such competent court order that will have the effect of nullifying or striking off the record, the otherwise validly filed pleadings. A specific order striking off the notice of opposition and opposing affidavits is yet another competent order that can be made in the circumstances.</p> <p> </p> <p>For reasons of expediency, it may be argued that a court hearing such an application where heads have been filed out of time may convert itself into “the unopposed court” envisaged by the rule and dispose of the matter by granting the order sought. I express no views on this procedure. The point to make is that there must be a referral of the matter after holding that the respondent is barred. The referral has the same effect as striking off the respondent’s defence. Whether a court can then thereafter refer the matter to itself or not is not a matter that arises in this appeal.</p> <p> </p> <p>In <em>casu</em>, the court <em>a quo</em> fell into the error of holding that once a party has been barred under r 238 (2) (b), and “remains barred“ the matter is treated as unopposed. </p> <p> </p> <p>As I have shown above, the application does not automatically become unopposed. The court or judge may, using their discretion, proceed to determine the matter on the merits or negate and nullify the respondent’s defence by referring the matter to the unopposed roll. In other words, the court has to either dispose of the matter on the merits or declare it to be now unopposed by reason of the default.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>Disposition and costs.</strong></p> <p>The court <em>a quo</em> fell into error by treating the application as un- opposed in disregard of r 238 (2) (b) of the High Court Rules. Its decision cannot therefore stand as it is not in accordance with the law. Accordingly, the appeal must succeed and succeed with costs. The matter must be remitted for it to be dealt with in terms of the Rule.</p> <p> </p> <p>In view of the fact that the court had expressed its views on the merits of the matter, the matter must be remitted to a different judge.</p> <p> </p> <p>In the result, I make the following order:</p> <p> </p> <ol> <li>The appeal is allowed with costs.</li> <li>The matter is remitted to the High Court for it to proceed in terms of Rule 238 (2) (b) of the High Court Rules 1971.</li> <li>The Registrar of the High Court is directed to place the matter before a different judge.</li> </ol> <p> </p> <p><strong>GWAUNZA DCJ</strong>                              I agree.</p> <p> </p> <p><strong>MAKONI JA</strong>                                     I agree.</p> <p> </p> <p><em>Venturas &amp; Samkange</em>, appellant’s legal practitioners.</p> <p><em>Sawyer&amp; Mkushi</em>, respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2019/4/2019-zwsc-4.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=32832">2019-zwsc-4.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2019/4/2019-zwsc-4.pdf" type="application/pdf; length=125143">2019-zwsc-4.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/bar-practice-and-procedure">Bar (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/opposed-application-set-down-unopposed">opposed application set down as unopposed</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/default-judgment">Default judgment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rescission-default-judgment">rescission (Default judgment)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/heads-argument">Heads of argument</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/effect-failure-file-heads-argument-timeously">effect of failure to file heads of argument timeously</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/time-within-which-heads-argument-be-filed">time within which heads of argument to be filed</a></li></ul></span> Mon, 24 Jun 2019 10:58:36 +0000 admin 9333 at https://old.zimlii.org Lupepe v Ecobank Zimbabwe Limited (HH 34-19, HC 1681/18) [2019] ZWHHC 34 (20 November 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/34-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>DELMA LUPEPE</p> <p>versus</p> <p>ECOBANK ZIMBABWE LIMITED</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>ZHOU J</p> <p>HARARE, 20 November 2018</p> <p> </p> <p> </p> <p><strong>Opposed application</strong></p> <p> </p> <p> </p> <p><em>T Govere</em>, for the appellant</p> <p><em>A Muchandiona</em>, for the respondent</p> <p> </p> <p>            ZHOU J: This is an application for upliftment of the bar which became effective against the applicant following his failure to file heads of argument timeously in a court application for summary judgment. The application for summary judgment is filed under case No HC 803/16. The applicant <em>in casu</em> is the respondent in the application for summary judgment in which his ejectment is being sought from the immovable property which is described in the papers as Lot 9 of Subdivision 2 of Subdivision B of Farm 7 and stands 75-85 and Roads of Matshemhlope situate in the District of Bulawayo otherwise known as No. 4 Bunting Close, Matsheumhlope, Bulawayo. It is common ground that that property is registered in the name of the respondent. It was so–registered in March 2016. The instant application is opposed by the respondent.</p> <p>            The brief facts which are pertinent to this application are as follows. After the applicant had entered appearance to defend the main summons matter a court application for summary judgment was instituted. The applicant opposed that application through his erstwhile legal practitioners. The applicant’s legal practitioner renounced agency in February 2017 before the respondent had served its heads of argument upon the applicant. These were then served upon the applicant on 10 March 2017. At that time the applicant had become a self-actor, which fact excused him from filing heads of argument in terms of the rules. The applicant instructed his current legal practitioners to represent him on 3 November 2017. They assumed agency on that day. The applicant states that the legal practitioners only assumed agency for the purposes of negotiating a proposed settlement, a submission which clearly does not make sense and is startling. On 31 January 2018 the applicant’s legal practitioners filed the heads of argument for the applicant. This was almost 3 months after they had assumed agency on his behalf.</p> <p>            The factors which are relevant to the consideration of an application for condonation are settled in this jurisdiction. They include the degree of non-compliance with the rules, the explanation therefor, the importance of the case, prospects of success, the respondent’s interest in the finality of the judgment, the convenience of the court, the avoidance of unnecessary delay in the administration of justice. The catena of cases in which these have been highlighted illustrate that the factors are not to be considered individually but collectively and with the application as a whole.</p> <p>            In the present case the delay in filing the heads of argument is considerable. Even discounting the vacation period for December 2017, the delay comes to about one and a half months. The explanation for the delay is clearly unreasonable. It is suggested that the applicant’s current legal practitioners only assumed agency for the purposes of engaging the respondent’s legal practitioners in negotiations. Not only is this an unacceptable explanation, it has not been supported by any evidence. The applicant does not suggest that his legal practitioners filed a second assumption of agency with a redefined mandate when they then filed the heads of argument on 31 January 2018.</p> <p>            On the prospects of succeess, the applicant’s case is without merit. There is a clear misunderstanding of the <em>actio rei vindicatio</em> and the defences which can be set out to such an action at law. The respondent has the property registered in its name. The applicant is in occupation of that property without the consent of the respondent. The summary judgment proceedings were insituted are to recover the property from the applicant through the eviction proceedings. In the face of these facts, and the fact that the deed of transfer has not been set aside, the applicant alleges that the property should not have been transferred to the respondent because the respondent was the judgment creditor in the enforcement of whose judgment the property was sold by private treaty. There is no rule of law which precludes a judgment creditor from bidding for or otherwise purchasing a property being sold in the execution of a judgment given in his favour. The complaint that the applicant was not notified by the Sheriff before the property was sold by private treaty to the respondent is contradicted by the correspondence from the Sheriff which is clearly copied to the applicant. In any event, the applicant is mistaken in thinking that the Sheriff was enjoined to notify him before concluding the sale by private treaty. The property was already under attachment when it was sold.</p> <p>            This is a case in which the need for finality in litigation would be upheld by dismissing their application for condonation. The court should put an end to the dispute and avoid unnecessary delay in the administration of justice.</p> <p>            The respondent has asked for costs to be awarded on the attorney-client scale against the applicant. This is a punitive order of costs which is awarded in special cases. In this case the vexatiousness of the application justifies such an order. Not only was the degree of non-compliance considerable but also the explanation for it is clearly unreasonable and the prospects of success on the merits non-existent. But there is an additional factor relative to the issue of costs. The use of intemperate language by the legal practitioner for the applicant is unacceptable. In his submissions he accused the Sheriff, without any shred of evidence, of hypocrisy and fraud. This is matter in which the court would have considered costs <em>de bonis propriis</em> against Mr <em>Govere</em> for the applicant if such a request has been made. Legal practitioners are officers of this court and must use respectful and measured language in relation to other officers of the court. There is no justification for impugning the professional integrity of another officer of this court especially where serious allegations are being made without evidence to support them.     </p> <p>            In all the circumstances of this case, the application is without merit.</p> <p>            In the result, it is ordered that:</p> <ol> <li>The application be and is hereby dismissed.</li> <li>The applicant shall pay the cost on the attorney client scale.</li> </ol> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>Govere Law Chambers,</em> applicant’s legal practitioners</p> <p><em>Danziger &amp; partners</em>, respondent’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/34/2019-zwhhc-34.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=19474">2019-zwhhc-34.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/34/2019-zwhhc-34.pdf" type="application/pdf; length=112871">2019-zwhhc-34.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/bar-practice-and-procedure">Bar (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/upliftment-bar">upliftment of bar</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/summary-judgment">Summary judgment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-summary-judgment">application for summary judgment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/property-and-real-rights">PROPERTY AND REAL RIGHTS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/ownership">Ownership</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/actio-rei-vindication">actio rei vindication</a></li></ul></span> Thu, 31 Jan 2019 09:20:07 +0000 admin 9260 at https://old.zimlii.org Masenda & 6 Others v N. Stipinovich (Pvt) Ltd & 8 Others (HB 107-18, HC 859/15) [2018] ZWBHC 107 (26 April 2018); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2018/107 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>JOSHUA MASENDA</strong></p> <p><strong>SEBASTIAN DUBE</strong></p> <p><strong>BETTER KWENGI</strong></p> <p><strong>MARTIN MAMUTSE</strong></p> <p><strong>RUEBEN MOYO</strong></p> <p><strong>ANDREW MATSHAZI</strong></p> <p><strong>BENJAMIN TSHUMA</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>N. STIPINOVICH (PVT) LTD</strong></p> <p><strong>ROZANNA STIPINOVICH</strong></p> <p><strong>NATASHA STIPINOVICH</strong></p> <p><strong>PHILLIPE STIPINOVICH</strong></p> <p><strong>SVRNAM (PVT) LTD</strong></p> <p><strong>ANGELO JOSEPH STIPINOVICH</strong></p> <p><strong>FRANCESCA ANN STIPINOVICH</strong></p> <p><strong>THE ESTATE OF THE LATE JOSEPH STIPINOVICH</strong></p> <p><strong>REGISTRAR OF DEEDS N.O.</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>MAKONESE J</p> <p>BULAWAYO 23 JANUARY &amp; 26 APRIL 2018</p> <p> </p> <p><strong>Special Plea</strong></p> <p> </p> <p><em>Mr J. Masenda</em> in person</p> <p><em>J. Tshuma</em> for the defendants</p> <p>            <strong>MAKONESE J:        </strong>This matter was set down for hearing on 23 January 2018 for oral argument on a special plea filed by the defendants, now applicants, in this matter.  After hearing the parties I entered the following order:</p> <p>            “1.       The special plea is upheld</p> <p>            2.         The plaintiffs’ claims be and are hereby dismissed with costs.”</p> <p>              I have been requested to furnish the reasons for judgment.  I now set out my detailed reasons.</p> <p> </p> <p><strong>Background</strong></p> <p>            The plaintiffs in this matter issued summons against the defendants claiming an order upholding an agreement of sale between the plaintiffs and Joseph Stipinovich and four others, concluded on the 4th March 2005, together with ancillary relief.  On 24th April 2015, upon receipt of the summons the defendants’ legal practitioners addressed a letter to the plaintiffs in the following terms:-</p> <p><em>“We are instructed by 1st to 8th defendants in the above matter, as you will have seen from the notice of appearance to defend filed of record on the 8th April 2015 and served on you the same day.</em></p> <p> </p> <p><em>Notwithstanding, that you as plaintiffs are self actors are nevertheless instructed and indeed are obliged, taking into account the manner in which you have pleaded to the claims in your declaration to except to substantial portions of your declaration as being, inter alia, argumentative, irrelevant and superfluous, evasive and vague and embarrassing and contain matters which may tend to prejudice, embarrass and delay the fair trial of this action.</em></p> <p> </p> <p><em>The matter which defendants find to be excepiable on the grounds referred to are contained in paragraph 3, 4, 5, 6, 7, 8 and 9 of your declaration.  We must ask you to amend your declaration so as to remove the cause of this complaint within 14 days of the service of this letter upon you.</em></p> <p> </p> <p><em>Should you fail to act in terms of this request and amend your declaration to remove the causes of complaint,  the defendants will file an exception and an application to strike out the portions of the paragraphs complained of and ask for costs against you.</em></p> <p> </p> <p><em>This letter is written to you as a matter of urgency as self-actors and in terms of Rule 140 of the High Court Rules.</em></p> <p> </p> <p><em>            Yours faithfully</em></p> <p> </p> <p> </p> <p><em>            Webb low &amp; Barry”</em></p> <p>            The plaintiffs filed a purported amended declaration which the defendants objected to on the basis that the summons was fatally defective in that at law only a legal practitioner was entitled to sue out a summons in the name of another person.  Further, and in any event, the defendants contended that the claims were prescribed.  The declaration in both form and content was still vague and embarrassing and argumentative.  For the sake of completeness, it is important to indicate that the basis of the plaintiffs’ claims arise from an agreement entered into between Joseph Stipinovich and four others on the one hand and Joshua Masenda and three others.  The agreement is headed “<strong>Agreement of Association”.</strong></p> <p>            The agreement provides as follows:</p> <p><em>“(a)     The two parties hereby agree to be partners in the business of N. Stipinovich (Pvt) Ltd whereby workers will be entitled to 70% of income remitting 30% to the shareholders or directors listed above through the account number 2541014 Barclays Bank, Main Street, Bulawayo.  This is so during the absence of the said directors.</em></p> <p> </p> <p><em>(b)        It also agreed (sic) that the workers are at any point entitled to the value of 70% value of the company, N. Stipinovich (Pvt) Ltd.  This is to cover the workers’ pensions and all terminal benefits which the company is not capable of paying.</em></p> <p> </p> <p><em>(c)        The workers will pay each other should one decide to resign or pay off to the deceased’s family should a worker die it shall not be the responsibility of the directors …”</em></p> <p>            The agreement was signed on the 4th of March 2005.  On 30th March 2005 A.J. Stipinovich a director of N. Stipinovich (Pvt) Ltd addressed a letter to the plaintiffs in the following terms:</p> <p><strong><em>“This letter is addressed to the ex-employees of N. Stipinovich (Pvt) Ltd who are currently using the company premises to operate the co-operative</em></strong></p> <p> </p> <p><em>Unfortunately, since the members of the co-op have not been able to maintain a viable operation and the company premises is being compromised, I hereby give you notice to vacate the premises as soon as possible and not later than 30th June 2015.</em></p> <p> </p> <p><em>No further business is to be conducted on the premises by the co-op and no property or equipment belonging to the company is to be removed by the co-op.</em></p> <p> </p> <p><em>Representatives of the major shareholders SVRNAM (Pty) Ltd, being Rozanna, Natasha and Phillipe will liaise with you with regard to your withdrawal.</em></p> <p> </p> <p><em>Please not that the shareholders have taken a decision to dispose of the remaining assets at 69 Bon Accord and sell the premises.</em></p> <p> </p> <p><em>The SVRNAM representatives have the mandate and approval of the other major shareholders, F. Stipinovich (Pvt) Ltd and A.J. Stipinovich to conduct the affairs mentioned above.</em></p> <p> </p> <p><em>            Yours faithfully</em></p> <p> </p> <p> </p> <p> </p> <ul> <li><em>J. Stipinovich</em></li> </ul> <p><em>Director”</em></p> <p>            This is the letter that triggered the issuance of summons by the plaintiffs.  It is apparent that the initial agreement of the 4th of March 2005 was so loosely worded that it is difficult to understand the contractual rights and obligations of the parties under that agreement.  The plaintiffs were obviously not deterred and filed the summons and declaration, which are now the subject of the special plea ,which I upheld on 23 January 2018.</p> <p><strong>The issues</strong></p> <p>            The defendants filed a special plea on two separate grounds.  The first ground raised is that the first plaintiff could not act for and on behalf of the other plaintiffs as such conduct is prohibited under the Legal Practitioners Act (Chapter 27;07).  The defendants contended that for that reason the summons was fatally defective.  The second objection is that the claims were prescribed.  The defendants’ defence to the special plea is firstly, that the defendants were barred and therefore could not file the special plea.  The defendants further averred that the first plaintiff was appointed by Resolution that gave him the requisite authority to act on behalf of the other individuals.  Lastly, the plaintiffs claimed that the claims were not prescribed because the agreement was intended to be “permanent and did not amount to a “debt” as defined in the Prescription Act (Chapter 8;11)</p> <p>            I shall deal with each of the issues raised in turn.</p> <p><strong>Whether the defendants were barred</strong></p> <p>            The record shows that on the 11th of June 2015 the plaintiffs caused to be served on the defendants’ legal practitioners, a purported notice of intention to bar in terms of Rule 80 of the High Court Civil Rules, 1971.  The rule provides as follows:</p> <p>            <strong><em>“Notice of Intention to Bar</em></strong></p> <p> </p> <p><em>A party shall be entitled to give five days’ notice of intention to bar to any other party to the action who has failed to file his declaration, plea or request for further particulars within the time prescribed in the rules and shall do so by delivering a notice in Form 9 at the address for service of the party in default.”</em></p> <p>            The above rule is peremptory in stating that the notice of intention to bar shall be in Form 9.  The contents of Form No. 9 shall not be replicated in their entirety,  however, there must be substantial compliance with the Form.  The notice of intention to bar filed by the plaintiffs in this matter contained the first part of Form 9.  It does not contain the requisite proof of service, nor does it contain the actual bar.  The notice of intention to bar and bar is therefore fatally defective as the plaintiffs failed to comply with the requirements of Rule 80 of the Rules.  Further, and in any event, the plaintiffs failed to comply with Rule 81 of the High Court Rules when attempting to effect  the bar.  Rule 81 relates to the actual method of barring and provides as follows:</p> <p>            “<strong>Procedure for barring</strong></p> <p> </p> <p><em>On the expiry of the time limited by the notice, the party who has served the notice</em> may <em>bar the opposite party by filing a copy of the notice with the Registrar.  The endorsement on Form No. 9 shall be duly completed before filing and it shall be signed by the party who has given the notice to his attorney.”</em></p> <p>            Rule 81 makes it a procedural requirement that the endorsement on Form No. 9 shall be completed before filing.  The plaintiffs did not include the endorsement on the notice of intention to bar and therefore this could not be completed as required by Rule 81.  The bar was therefore not effected  in terms of the Rules.  A bar not effected in terms of the rules is incompetent and of no force and effect.</p> <p>            Further, and in any event,  the purported barring by the plaintiffs was unprocedural in that the plaintiffs failed to provide any proof of service to indicate that the notice of intention to bar had been served.  In the case of <em>Heating Elements Engineering (Pvt) Ltd &amp; Ors</em> v <em>Th</em>e <em>Eastern and Southern African Trade &amp; Development Bank (PTA Bank)  </em>SC-13-02, SANDURA JA held that the failure to comply with the peremptory provisions of Rule 81 meant that no bar had been effected.  He observed at page 3 of the cyclostyled judgment as follows:-</p> <p><em>“Thus, the endorsement on the copy of the notice of intention to bar filed with the Registrar of the High Court in terms of Rule 81 was not duly completed and no certificate of service was filed with the Registrar as required in Rule 81.  The provisions of Rule 81 were not therefore complied with.  In the circumstances, the chamber application for a default judgment was not in order because the respondent did not comply with the barring procedure set out in Rule 81.  The appellants were, therefore, not barred and the learned Judge President should not have granted the default judgment.”</em></p> <p>            In this matter, I am satisfied that the plaintiffs’ claim that the defendants are under bar is of no moment as the notice of intention to bar was fatally defective in that the procedural requirement for effecting a bar had not been complied with. The defendants were not barred.</p> <p><strong>Whether the first plaintiff’s representation of other plaintiffs was competent</strong></p> <p>            The first plaintiff is a self actor.  He sued out a summons for and on behalf of the other plaintiffs.  The first plaintiff purported to rely on a Resolution of the other plaintiffs, and averred that he was granted authority to act on behalf of the other parties by such Resolution.  The first plaintiff purported to rely on powers of attorney that were not part of the pleadings.  Inspite of these purported powers of attorney, the first plaintiff’s attempt to act on behalf of other persons in this matter contravenes section 9 (2) of the Legal Practitioners Act.  Section 9 of the Act provides in part that:</p> <p>“(2)      Subject to any other law, no person other than a registered legal practitioner who is in possession of a valid practising certificate issued to him shall –</p> <p> </p> <ul> <li>Sue out any summons or process or commence, carry on or defend any action, suit or other proceeding in any court of civil or criminal jurisdiction in the name of any other person; …”</li> </ul> <p>It is common cause that first plaintiff is not a registered legal practitioner.  The first plaintiff purported to sue out the summons in these proceedings in the name of the second to seventh plaintiffs and on their behalf.  This he could not do. The first plaintiff’s actions contravened the provisions of the Legal Practitioners Act, and as such, are therefore clearly a nullity.  The summons and declaration are fatally defective in that regard and the pleadings are consequently incompetent.  The first plaintiff refused or failed to remedy the defect inspite of being called upon to do so.</p> <p><strong>Whether the claims are prescribed</strong></p> <p>            The agreement on which the plaintiffs rely in these proceedings was entered into on the 4th of March 2005.  The plaintiffs contend that the agreement existed   in perpetuity, and that for that reason, was not subject to the provisions of the Prescription Act ( Chapter 8:11).  The plaintiffs argued that the debt they are suing for is not a “debt” as defined in the Prescription Act.</p> <p>            As I have indicated earlier, the exact nature of the plaintiffs’ claims is unclear from the agreement and the summons.  The cause of action arose from the purported “<strong>Agreement of</strong> <strong>Association</strong>” entered into between the late Joseph Stipinovich. The plaintiffs’ allege that a sum of US$350 000 is due and owing to them in terms of the agreement.  It is not clear from the provisions of the agreement how the defendants’ indebtedness arose.  The agreement provides that at any point the workers would be entitled to a 70% value of the company.  It is not stipulated what the value of the company was.  No such value was computed and clearly the agreement was worded in vague terms.  The agreement was entered into on 4th march 2005.  In terms of the Prescription Act, section 15 (d) an ordinary debt  shall prescribe after 3 years.  In terms of section 16 of the Act, Prescription begins to run as soon as the debt is due.</p> <p>            In order to determine when the debt was due, an examination of the wording of the agreement is necessary.  The agreement stated that the workers were entitled at any point to  70% of the value of the company.  As such, the debt became due on the date of signature of the agreement.  The debt therefore prescribed 3 years after the date of signature of the agreement, on 5th March 2008.  The plaintiffs’ claims, if any, were therefore prescribed by operation of law.</p> <p><strong>Disposition</strong></p> <p>            For the aforegoing reasons, I have no doubt that the defendants have not been barred in this matter as the purported notice of intention to bar was fatally defective.  The first plaintiff’s purported representation of the other plaintiffs in the matter is prohibited under the Legal Practitioners Act.  The plaintiffs’ claims are clearly incompetent.</p> <p>            The proceedings filed in this matter are fatally defective and incurably bad.  In any event, plaintiffs’ claims if any, are wholly prescribed.</p> <p>            Accordingly after hearing oral arguments from the parties I entered the following order:</p> <ol> <li>The special plea is upheld.</li> <li>The plaintiffs’ claims be and are hereby dismissed with costs.</li> </ol> <p><em>Webb, Low &amp; Barry,</em> defendants’ legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/107/2018-zwbhc-107.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24848">2018-zwbhc-107.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/107/2018-zwbhc-107.pdf" type="application/pdf; length=241174">2018-zwbhc-107.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/bar-practice-and-procedure">Bar (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/procedure-barring">procedure for barring</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/locus-standi">Locus standi</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/plea">Plea</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/prescription">PRESCRIPTION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/pleading-prescription">Pleading (PRESCRIPTION)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1975/31">Prescription Act [Chapter 8:11]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1981/15">Legal Practitioners Act [Chapter 27:07]</a></div></div></div> Wed, 06 Jun 2018 07:42:47 +0000 admin 8887 at https://old.zimlii.org Nyahondo Farm & 3 Others v Birketoft (HH 214-18, HC 4962/17) [2018] ZWHHC 214 (25 April 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/214 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>NYAHONDO FARM</p> <p>and</p> <p>KIM BIRKETOFT</p> <p>and</p> <p>MELLISA BIRKETOFT</p> <p>and</p> <p>VANESSA BIRKETOFT</p> <p>versus</p> <p>DENISE ROSAMOND BIRKETOFT</p> <p> </p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>MWAYERA J</p> <p>HARARE, 26 January 2018 and 25 April 2018</p> <p> </p> <p> </p> <p><strong>Opposed Matter</strong></p> <p><em>Advocate T. Magwaliba</em>, for the applicants</p> <p><em>Matizanadzo</em>, for the respondent</p> <p> </p> <p> </p> <p>            MWAYERA J: The applicants approached the court seeking for rescission of judgment in terms of order 49 rule 449 (1) of the High Court Rules, 1971. The issue that falls for determination is whether or not the judgment sought to be rescinded was erroneously granted.</p> <p>            It is worth noting that the second applicant is the Managing Director of the first applicant. The second to fourth applicants are shareholders to the first applicant. The second applicant and the respondent are a divorced couple. The applicant sought amendment on citation to reflect the first applicant as a private limited company. Given the common cause aspect that the order sought be rescinded under HC 9608/16 correctly spell out the then respondent as a private limited company and that the company was party to the proceedings therein in my view there is no prejudice which will be occasioned on the respondent by the  amendment of pleadings to reflect the first applicant properly as a private limited company.</p> <p>            The brief background of the matter has to be put into perspective. The respondent obtained a judgment from this court under HC 9608/16. The order granted the respondent’s application for liquidation and it dismissed the applicants’ opposition over none filing of heads of arguments. Effectively the applicants were held to have been barred.</p> <p>            The applicants in approaching the court argued that the judgment in HC 9608/16 was issued in error as the applicants had timeously filed their heads of argument and the court proceeded as if the heads had not been filed. Despite allowing both parties to make oral submissions the judge in HC 9608/16 concluded that the applicants were not before him and thus treated the application as an unopposed application. The applicants further argued that the judgment under HC 9608/16 was issued in error as the court granted a final order at the first instance instead of giving a provisional order with a return date where the provisional order would be confirmed or set aside. The judgment in HC 9608/16 makes it clear that the court concluded that the applicants were erroneously heard as they had not filed heads of argument and where barred giving the impression the applicants’ side of the story was not heard thus breaching the principles of natural justice <em>audi alteram partem</em> rule. This was despite the clear index of the matter before the court reflecting that applicants’ heads of argument were part of the record. The applicants argued that the judgment was issued in error as the parties were not called to address the issue of heads of argument which might have been missing from the record.</p> <p>            The indication of heads being part of the record and the index should not have been brushed aside by the court. The respondent opposed the application arguing that the applicants were heard and in attendance. The respondent further made interesting concessions that the last two paragraphs of the judgment which forms the subject of the application was issued in error. The respondent suggested that the applicants should apply for correction of judgment by expunging the last two paragraphs as there was a patent error in terms of r 449 (1) (b).</p> <p>            The question that begs an answer is how one can remove or sever only a portion of the judgment occasioning an order. The concession by the respondent goes to the root of the matter as it is indeed a clear concession of an error in judgment. The relevant passages which the respondent conceded were erroneous and had to be expunged on p 9 read as follows:</p> <p>“The respondent’s opposition cannot stand for the further reason that they were heard in error. They had no right of audience before the court as they did not file any heads of argument. I overlooked that matter when I set it down for hearing. The oversight arose from the fact that item 27 of the consolidated index referred to the respondent’s heads as having been filed at pp 145-158 of the record, as it stands, end at p 144.</p> <p> </p> <p>The respondent’s heads do not form part of the record. The respondents were therefore, barred and they should not have been heard. They did not apply for upliftment of the bar or condonation. There was, in essence, no opposition to the application. The application is accordingly, granted as prayed.”</p> <p> </p> <p>            What the applicant seeks here is rescission of judgment which was erroneously granted as provided for in r 449 (1) of the High Court Rules, 1971. The rule provides as follows:</p> <p>“The court or a judge may, in addition to any other power it or he may have <em>mero motu</em> or upon the application of any party affected, correct, rescind, or vary any judgment or order.</p> <p> </p> <ul> <li>That was erroneously sought or erroneously granted in the absence of any party affected thereby.”</li> </ul> <p> </p> <p>The requirements for rescission are:   </p> <p> </p> <p>1.         That the judgment was erroneously sought or granted</p> <p> </p> <p>2          That the judgment was granted in the absence of the applicant</p> <p> </p> <p>3.         That the applicant’s rights or interest are affected by the judgment.</p> <p> </p> <p>            See <em>Moonlight Provident (Pvt) Ltd </em>v <em>Sebastion and Ors </em>HB 254/16 and also <em>Banda </em>v <em>Piluk</em> 1993 (2) ZLR where the court held that in deciding an application of this nature the court is only obliged to decide if the judgment was entered in error or not. If it was erroneously entered the applicant is entitled to rescission.  </p> <p> </p> <p>The Honourable judge in the Banda case <em>supra</em> had this to say at p 64 E to F:</p> <p>“Let me reiterate immediately that rescission of a judgment under r 449 (1) (a) is entirely</p> <p>different and must be distinguished from an application for rescission under r 63 which</p> <p>requires the court, before it sets aside the judgment under that rule, to be satisfied that ‘there</p> <p>is good and sufficient cause to do so’. Nor is the court concerned with the issue of whether the</p> <p>defendant had ‘a good prima facie defence to the action.”</p> <p> </p> <p>See also <em>Zindi </em>v <em>Zimbabwe Farmers Development Company United </em>HH 309-15, and</p> <p><em>Mutembwa </em>v <em>Mutembwa and Anor</em> 2001 (2) SA 193. In the present case the court came up with a judgment on the assumption that there were no heads of arguments filed by the then respondents and that the latter was barred. The judgment cannot escape scrutiny for having been issued as a result of a mistake. The court proceeded to make a finding that the application was not opposed as there were no heads of arguments filed and that the respondents were barred. This assumption given the facts of the matter and concession by the  respondent is the error which would avail the remedy of rescission of a judgment issued in error and by mistake. The heads of argument had been filed timeously and so the respondents in that matter HC 9608/16 were not barred. The fact that the respondents made oral submissions does not cure that judgment was issued in error. This is moreso when one considers that the judge disregarded the presence of the respondent whom he said had been heard in error and that there were no heads of argument filed hence no opposition. The heads which were filed timeously were not considered.</p> <p>            Given the obvious error occasioned by treating the matter as unopposed on the basis that no heads had been filed, when in actual fact the respondent’s heads had been filed the judgment which was issued in error and by mistake ought to be rescinded.</p> <p>            Accordingly it is ordered that:</p> <ol> <li>The application for rescission of the judgment under HC 9608/16 be and is hereby granted.</li> <li>The costs to be in the cause.</li> </ol> <p>          </p> <p><em>Mberi Chimwamurombe Legal Practice</em>, applicants’ legal practitioners</p> <p><em>Matizanadzo and Warhurst</em>, respondents’ legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/214/2018-zwhhc-214.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=22499">2018-zwhhc-214.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/214/2018-zwhhc-214.pdf" type="application/pdf; length=119670">2018-zwhhc-214.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/administrative-law">ADMINISTRATIVE LAW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/audi-alteram-partem-rule">Audi alteram partem rule</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/bar-practice-and-procedure">Bar (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/failure-file-plea">failure to file plea</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rescission-judgment">Rescission of judgment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-rescission-judgment">application for rescission of judgment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/principles-rescission-judgment">principles (Rescission of judgment)</a></li></ul></span> Thu, 24 May 2018 12:37:42 +0000 admin 8872 at https://old.zimlii.org Searson & 3 Others v Samalyn Investments (Pvt) LTD & 2 Others (HH 219-18, HC 2255/18) [2018] ZWHHC 219 (25 April 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/219 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>TIMOTHY JAMES SEARSON</p> <p>and</p> <p>SIMON DAVID SEARSON</p> <p>and</p> <p>BRENDA CAROL LEEPER</p> <p>and</p> <p>COUCH GRASS (PVT) LTD</p> <p>versus</p> <p>SAMALYN INVESTMENTS (PVT) LTD</p> <p>and</p> <p>THE REGISTRAR OF DEEDS N.O.</p> <p>and</p> <p>THE MASTER OF THE HIGH COURT N.O.</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MWAYERA &amp; MUZENDA JJ</p> <p>HARARE,14 March &amp; 25 April 2018</p> <p> </p> <p> </p> <p><strong>Urgent chamber application</strong></p> <p> </p> <p> </p> <p><em>W Warhurst</em>, for the applicants</p> <p><em>W Ncube</em>, for the respondents</p> <p> </p> <p>            MWAYERA J: The applicants approached the court through the urgent chamber book seeking registration of a caveat and set down of a rescission of judgment application. The specific terms of the relief sought being</p> <p>            “TERMS OF FINAL ORDER MADE</p> <ol> <li>That the caveat placed on the immovable property identified as certain piece of land in the district of Salisbury called Remainder of Lot 40 of Reitfontein measuring 6, 8288 hectares as will more fully appear upon reference from Deed of Transfer Reg No. 9563 with diagram annexed in respect of Lot 4 of Reitfotein made in favour of Godfrey James King on the 4th of January 1912 and to the subsequent Deed so Transfer the last of which passed in favour of Jun Mclachlan (Reg No. 3125/74) on the 23rd day of May 1974 remain and not be capable of being removed without an appropriate order by this Honourable Court until the conclusion of the application for rescission of default judgment in case no. HC 993/18.</li> <li>That the 1st respondent’s legal practitioners Douglas Shese and Julius Chikomwe shall jointly and severally, the one paying for the other to be absolved pay all costs incurred by the applicants in these proceedings on an attorney and client scale.</li> </ol> <p> </p> <p>INTERIM RELIEF</p> <p>Pending the hearing of the matter, the applicant is granted the following relief</p> <p> </p> <p>2.1 that the 2nd respondent be and is hereby ordered to place a caveat on the immovable property identified as certain piece of land situated in the district of Salisbury called Remainder of Lot 4 of Reitfontein measuring 618288 hectares, as will more fully appear upon reference from Deed of Transfer (reg No. 95631 with diagram annexed in respect of Lot 4 of Reitfontein made in favour of Godfrey James King on the 4th January 1912 and the subsequent Deeds of Transfer the last of which passed in favour of June Maclachlan (Reg No 3125/74 on the 23rd day of May 1941 under whatever title it is currently held.</p> <p>2.2. That the application for rescission of default judgment in case No. HC 993/18 be and is hereby ordered to be set down as a matter of urgency on the opposed motion roll and the Registrar of the High Court is directed to set the matter down for hearing.”</p> <p> </p> <p>            The first respondent obtained a default judgment against the applicants on 3 January 2018 under HC 9866/17. Pursuant to the default judgment the applicants filed an application for rescission of the default of judgment under case HC 993/18. The default judgment was occasioned by the fact that the applicants filed opposition out of time and they were barred. The applicants did not seek to uplift the bar but rather argued they were not properly served yet before the court were valid certificates of service.</p> <p>            Faced with the default judgment the applicants approached this court under HC 1052/18 seeking on an urgent basis stay of execution of the default judgment.  My sister judge Matanda-Moyo J struck the matter off the urgent roll on the basis that the applicants were aware of the respondents’ intention to seek default judgment as far back as 22 November, 2017, but did nothing to protect their rights. The applicants did not seek upliftment of bar despite being put on notice. The applicants then sought on 5 February 2018 to stay execution of the default judgment which application was dismissed by this court on 7 March 2018.</p> <p>            The applicants then under the pretext of seeking to register a caveat and set down an application for rescission of judgment on urgent basis approached this court for relief. The effect of the relief sought is to stay execution pending the determination of an application for rescission of judgment granted on 3 January 2018 under HC 9866/17. The applicants’ argument in the present case is to have the extant default order stayed. Having had the same relief thrown out for want of urgency to mount another application for stay of execution disguised as registration of a caveat and setting down an application for rescission on urgent basis amounts to abuse of court process.</p> <p>            Furthermore, it is settled that a matter is viewed to be urgent if the party so seeking treats the matter urgently. See <em>Dex Print Investments Pvt Ltd </em>v <em>ACE Properties and Investments </em> HH 120/02, <em>Kuvarega </em>v <em>Registrar General and Anor </em>1998 (1) ZLR 188.</p> <p>            It is absurd that the applicants seek to have an application for rescission of judgment in HC 933/18 set down on urgent basis when clearly the applicants have adopted a dilatory stance. The application for rescission of judgment is opposed and the respondents filed opposition papers on 19 February 2018. At the time of hearing on 14 March 2018 the referenced file HC 933/18 for rescission has no answering affidavit filed by the applicants, no heads of arguments filed by the applicants, and no notice of set down. In other words the applicants, have done nothing to prepare for hearing of the application for rescission. The applicants have simply not complied with the rules of this court and thus cannot seek incompetent urgent set down of an application for rescission of judgment for a matter which the applicants have not treated as urgent. I must hasten to point out that urgency contemplated by the rules of this court does not include self-created urgency. The applicants going by the history of the matter from the time of being barred, issuance of default judgment, striking out of application stay of execution, has shown total disregard and disdain of the rules of the court.</p> <p>            Urgency has been defined in many cases by this court. It does not include deliberate or careless abstention from action till the deadline arrives. Further, urgency does not arise where a party sits on its laurels till the day of reckoning. Neither does urgency arise where the nature of relief and cause of action does not justify urgency.  See <em>Documents Support Centre (Pvt) Ltd</em> v <em>Mapuvire </em>2006 (2) ZLR and <em>Independent Financial Services </em>v <em>Colste </em>2003 ZLR 494 wherein HUNGWE J in dismissing an application for stay of execution remarked</p> <p>“--- A matter is not urgent merely because property has been attached. That is self-created urgency born out of dilatory manner in which a party concludes its affairs. It cannot be a good reason to stay satisfaction of a lawfully due debt as here.”</p> <p>The same sentiments are applicable to the dilatory manner in which the applicants went about their business in respect of this matter. The applicants instead of explaining their position in an application for upliftment of bar did not file such an application and approached this court on an urgent basis seeking stay of on extant court order. The Registrar complied with the order of this court under HC 1052/18. To seek reversal of such compliance on an urgent basis is not only incompetent but an after event application when the horse has already bolted. That further paints the applicants application for registration of a caveat is not urgent as it does not meet the requirements of urgency. The applicants by requesting for prohibitory interdict is seeking to interdict a court order. An interim interdict is not a remedy available for prohibiting lawful conduct. The second respondent complied with a default judgment.</p> <p>            The applicants find themselves in the position of seeking to interdict a court decision in circumstances where the applicants ought to have acted and applied for upliftment of bar and prosecute the application for rescission. The applicants are is merely taking a gamble with the court more so, when one considers that this court on 7 March 2018 struck off the urgent roll an application for stay of execution. The same nature of relief of stay of execution is brought back to court under the guise of urgent set down of an application for rescission and registration of a caveat. Effectively the applicant is seeking stay of execution in order to be assisted in buying time to comply with rules of this court. Such conduct is frowned at by the court. Even the audacity to seek urgent set down when there has been no compliance with the rules. To request rescission of judgment application to be set down in full knowledge that the applicants have not filed an answering affidavit and heads is clearly seeking the court to issue out an incompetent order.</p> <p>            The conduct of smuggling in of an application for stay of execution instead of complying with the rules calls for cost of a higher scale.</p> <p>Accordingly the application is dismissed with costs on legal practitioner and client scale.</p> <p>      </p> <p>MUZENDA J agrees ….………….</p> <p><em>Matizanadzo &amp; Warhurst</em>, applicant’s legal practitioners</p> <p><em>Thompson, Stevenson &amp; Associates</em>, 1st respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/219/2018-zwhhc-219.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24539">2018-zwhhc-219.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/219/2018-zwhhc-219.pdf" type="application/pdf; length=122617">2018-zwhhc-219.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/interdict">INTERDICT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-interdict">Application (INTERDICT)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/final-interdict">Final interdict</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grant-interdict">Grant of interdict</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/abuse-process">abuse of process</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/stay-proceedings-abuse-process">stay of proceedings (Abuse of process)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-practice-and-procedure">Application (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/bar-practice-and-procedure">Bar (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/upliftment-bar">upliftment of bar</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/urgent-application">Urgent Application</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/what-constitutes-urgency-urgent-application">what constitutes urgency (Urgent application)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/when-may-be-made-urgent-application">when may be made (Urgent application)</a></li></ul></span> Thu, 24 May 2018 08:06:13 +0000 admin 8866 at https://old.zimlii.org Mwayera v Chivhize & 3 Others (SC 16/16, Civil Appeal No. SC 174/11) [2016] ZWSC 16 (01 November 2016); https://old.zimlii.org/zw/judgment/harare-high-court/2016/16-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>REPORTABLE</strong><strong>        (11)</strong>               </p> <p> </p> <p><strong>FANUEL     MWAYERA</strong></p> <p>v</p> <ol> <li><strong>MOLLY CHIVIZHE (2)STANLEY CHIVIZHE (3)THE REGISTRAR OF DEEDS (4)GILBERTJONGA</strong></li> </ol> <p> </p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA JA, GOWORA JA &amp; HLATSHWAYO JA</strong></p> <p><strong>HARARE</strong>, <strong>NOVEMBER 1 2013</strong></p> <p> </p> <p> </p> <p><em>T Mpofu,</em> for the appellant</p> <p><em>L Uriri,</em> for the 4th respondent</p> <p>No appearance for the 1st, 2nd &amp; 3rd respondents</p> <p> </p> <p> </p> <p><strong>GOWORA JA:</strong>   After reading papers filed of record and hearing counsel in this matter we allowed the appeal and issued an order as prayed for. We indicated that our detailed reasons would follow in due course. These are they.</p> <p> </p> <p>The appellant is the registered owner of an immovable property known as Stand 671 Borrowdale Town of Sub division 4 of Lot D of Borrowdale Estate.  On 30 May 2001, the appellant concluded a written agreement with the first and second respondents in terms of which he sold the said property to them. The said respondents failed to pay the purchase price as stipulated in the agreement and as a consequence the appellant cancelled the sale through his legal practitioners.</p> <p> </p> <p>Subsequent to this, on 25 July 2001, the appellant concluded an agreement of sale with the fourth respondent in respect of the same property. The fourth respondent duly made payments in cash and also furnished the appellant with several cheques. Upon becoming aware of the developments between the appellant and the fourth respondent, the first and the second respondents approached the High Court on a certificate of urgency and in default of the appellant, obtained a provisional order interdicting transfer of the property to the fourth respondent.  The fourth respondent was not cited as a party in the High Court proceedings.  The provisional order was subsequently confirmed.</p> <p>           </p> <p>The appellant became aware of the order confirming the provisional order and filed an application for rescission of the judgment, which rescission was granted.  Thereafter, he filed a notice of opposition and opposing affidavit to the provisional order granted in favour of the first and the second respondents.  In due course, the fourth respondent got wind of the litigation and filed an application for his joinder to the litigation which was granted. He then filed his opposing papers to the application filed by the first and the second respondents.</p> <p> </p> <p>In the meantime, alleging that some of the cheques tendered in payment of the purchase price by the fourth respondent had been unpaid and returned by the former’s bankers upon presentation, the appellant cancelled the agreement on the basis that the fourth respondent was in breach of his obligations under the agreement of sale.</p> <p> </p> <p>The first and the second respondents took no further interest in the matter thereafter. In July 2006 the fourth respondent filed heads of argument in respect of the confirmation of the provisional order obtained by the first and second respondents for the interdict against transfer of the stand by the appellant to himself. Simultaneously with the heads of argument the fourth respondent served a notice of set down upon the appellant. Upon receipt of the notice of set down the appellant filed an application to have the automatic bar operating against him uplifted in order to enable him to file his own heads of argument. The application was opposed by the fourth respondent. In the opposing affidavit attached to his notice of opposition, the fourth respondent made reference to a counter-application for an order for specific performance against the appellant. A draft order comprising the relief sought was attached to the opposing affidavit. </p> <p> </p> <p>The application by the appellant for the upliftment of the bar having been granted, the High Court proceeded to hear the application filed by the first and the second respondents for an interdict.  The first and the second respondents who were the applicants in the applications were not before the court and the provisional order granted in their favour was discharged.  The court then proceeded to deal with the counter-application and an order for specific performance was granted in favour of the fourth respondent.  This appeal is directed at that order.</p> <p> </p> <p>The first issue I deal with is whether or not the counter-application was properly before the court <em>a quo</em>.</p> <p> </p> <p> </p> <p>Although the appellant did not raise this as one of his grounds of appeal, in his address, Mr<em> Mpofu</em> on behalf of the appellant, submitted that this was a point of law which is not dependent on facts for its resolution and which goes to the root of the matter.  He referred to <em>Muchakata v Netherburn</em> <em>Mine</em> 1996 (1) ZLR 153 (S) as authority for this proposition.  At p 157A-B this Court stated:</p> <p>“Provided it is not one which is required by a definitive law to be specifically pleaded, a point of law, which goes to the root of the matter, may be raised at any time on appeal, if its consideration involves no unfairness to the party against whom it is directed: <em>Morobane v Bateman</em> 1918 AD 460; <em>Paddock Motors (Pty) Ltd v Igesund</em> 1976 (3) SA 16 (A) at 23D-G.”</p> <p> </p> <p>In his heads of argument, Mr<em> Uriri</em> for the fourth respondent countered that the raising of the alleged defect of the counter-application at this stage of the proceedings was prejudicial to the fourth respondent.  Before us however, this aspect of the argument was not persisted with, and it was clear that counsel was content to have the issue argued and determined for reasons that appear hereunder.</p> <p> </p> <p>As submitted by counsel for both parties, this was the first time for such an issue to come before this Court. Whilst the appellant argued that the counter-application was fatally defective for want of form, the fourth respondent submitted that this Court should not allow form to prevail over substance, and the application should be found to have been properly brought before the court <em>a quo</em>.</p> <p> </p> <p>The rules of the High Court provide for the filing of counter-applications in r 229A which provides:</p> <p><strong><em>“229A. Counter-applications</em></strong></p> <p>(1) Where a respondent files a notice of opposition and opposing affidavit, he may file, together with those documents, a counter-application against the applicant in the form, <em>mutatis mutandis</em>, of a court application or a chamber application, whichever is appropriate.</p> <p>(2) This Order shall apply, <em>mutatis mutandis</em>, to a counter-application under subrule (1) as though it were a court application or a chamber application, as the case may be, and subject to subrule (3) and (4), it shall be dealt with at the same time as the principal application unless the court or a judge orders otherwise.</p> <p>(3) If, in any application in which the respondent files a counter-application under subrule (1), the application is stayed, discontinued or dismissed, the counter-application may nevertheless be proceeded with.</p> <p>(4) The court or a judge may for good cause shown order an application and a counter-application filed under sub rule (1) to be heard separately.” </p> <p> </p> <p>A number of applications were filed before the court <em>a quo</em> but for purposes of resolution of this appeal the only pertinent ones are the following, viz; HC 8068/01, HC 10464/02, HC 5426/02 and HC 192/02.  The first is the urgent application filed by the first and the second respondent for an interdict against transfer of the property to the fourth respondent.  The second is the application for rescission of judgment filed by the appellant.  The third relates to the application for joinder brought by the fourth respondent with the last being filed by the appellant for the uplifting of an automatic bar for failure to file heads of argument relating to the application for an interdict.  It is to this last mentioned application that the fourth respondent incorporated a counter-application in the notice of opposition.</p> <p> </p> <p>A counter-application must take the form of a court application and must be in Form 29. There was no such court application filed by the fourth respondent.  Instead what was filed was an affidavit. Again, contrary to the rules of court the affidavit was not in proper form. The fourth respondent filed an opposing affidavit in which reference was made to a counter-application. It was to this affidavit that a draft order was attached. The rule is clear and unambiguous.  It is also peremptory in its terms and must be complied with to the letter.  In <em>Zimbabwe Open University v Mazombwe</em> 2009 (1) ZLR 101(H), <strong>HLATSWAYO J </strong>(as he then was) stated:</p> <p>“Rule 230 of the High Court of Zimbabwe Rules, RGN 1047/1971 as amended prescribes in mandatory terms that a court application shall be made in Form No. 29 or where it is ex parte, in Form No. 29B, which latter form is generally used for chamber applications. It is common cause that the form used by the applicant for rescission of judgment is neither of the above stated forms, that is, it is in neither the court application form nor the chamber application form nor the hybrid ex parte court application form.</p> <p>Now, Rule 4C gives the court or judge discretion to condone departures from the rules, while Rule 229C deals with a specific form of departure, viz, proceeding by way of court instead of chamber application and vice versa.</p> <p> </p> <p>……</p> <p>Lest an impression be formed that this is a sterile dispute about forms, I have deemed it necessary to outline in a summary way what each of the two forms contains, on the one hand, and the unique features of the format used by the applicant, on the other.  In Form 29 the applicant gives notice to the respondents that he or she intends to apply to the High Court for an Order in terms of an annexed draft and that the accompanying affidavit/s and documents shall be used in support of the application.  It goes on to inform the respondent, if he or she so wishes, to file papers in opposition in a specified manner and within a specified time limit, failing which the respondent is warned that the application would be dealt with as an unopposed application.  In Form 29B, an application is made for an order in terms of an annexed draft on grounds that are set out in summary as the basis of the application and affidavits and documents are tendered in support of the application.  By contrast, the unique format used by the applicant consists of a heading: “Application for Rescission of Judgment” and the following terse statement: “Take notice that the Applicant, Zimbabwe Open University, hereby applies for Rescission of Judgment.  The annexed affidavit is used in support thereof.”</p> <p>……</p> <p>Can this substantial departure from the rules be condoned under r4C? Rule 4C states as follows:</p> <p> </p> <p>“The court or judge may, in relation to any particular case before it or him, as the case may be-</p> <ul> <li>Direct, authorize or condone a departure from any provision of these rules, including an extension of any period specified therein, where it or he, as the case may be, is satisfied that the departure is required in the interests of justice;</li> <li>Give such directions as to procedure in respect of any matter not expressly provided for in these rules as appear to it or him, as the case may be, to be just and expedient.”</li> </ul> <p> </p> <p>“In <strong>Simross Vintners (Pvt) Ltd v Vermeulen, VRG Africa (Pvt) Ltd v Walters T/A Trend Litho, Consolidated Credit Corporation (Pvt) Ltd v Van der Westhuizen 1978 (1) SA 779</strong>, (T), the applicants, in three applications for compulsory sequestration, had used the notice of motion prescribed in Form 2 of the South African Uniform Rules of Court, which was a form appropriate to <em>ex parte</em> applications.  The applicant in the first application had not served the notice on the respondent, but the applicants in the other two applications had so served the notices on the respondents.  It was held that in the first application the use of the Form 2 was perfectly in order as the application was brought ex parte.  However, as to the other two applications, it was held that as they were not brought <em>ex parte,</em> the notices of motion used in these applications (i.e., the Form 2 notice) were nullities and their use could not be condoned and the applications had to be struck off the roll.”</p> <p> </p> <p> </p> <p>I respectfully associate myself with the comments of the learned judge above.  Rule 230 espouses a peremptory norm and must be complied with.  A failure to comply with the rule cannot be condoned in the absence of compliance by a litigant with any form of application.  The undisputed fact is that the fourth respondent never filed any application in any form.  The counter-application was, as a consequence, a non-event.  The draft order attached to the opposing affidavit could not create something that never was.  Consequently no relief could ensue from the same.</p> <p> </p> <p> </p> <p>In addition to the above, the application for the upliftment of the bar was of a procedural nature.  The relief sought therein was not substantive and was aimed at the first and second respondents principally as the applicants to the prayer for the interdict. The heads of argument were to be filed in relation to a claim for an interdict sought by the first and second respondents. The fourth respondent was seeking the same relief as the appellant; that is the discharge of the provisional order. A counter-application is one which seeks relief that is counter to the one sought in the main.  In the matter before the High Court the counter-application did not seek to counter the prayer for the up-liftment of the bar.  It follows therefore that it would be impermissible to file a counter-application which seeks substantive relief when the main application is for relief of a procedural nature.  There was therefore no proper counter-application before the court <em>a quo.</em></p> <p> </p> <p> </p> <p>Additionally, the relief sought therein was in respect of an application in which the applicants were the first and second respondents.  That said it begs the question how the fourth respondent could logically seek relief from a counter-application against a litigant who was cited as a respondent in the said proceedings.</p> <p> </p> <p>The obvious defects adverted to above should dispose of the dispute as the appeal is aimed at an order that is based on proceedings that in essence are a nullity. A determination of the appeal on a technical basis may not serve the interests of the parties to the dispute surrounding the purchase of the immovable property. This is because the court <em>a quo</em> proceeded to deal with the substance of the application and made findings of fact as to the parties’ respective rights and obligations under the agreement of sale. It seems to me in the circumstances necessary to delve into the merits as set out in the pleadings filed of record.</p> <p> </p> <p>   </p> <p>As to the merits of the appeal, the first issue for consideration is whether or not the court erred in granting specific performance in respect of a cancelled contract without a prayer for the setting aside of such cancellation. It is trite that cancellation is a unilateral act which takes effect as at the time of its communication to the other party to the contract.  It requires no concurrence from the party receiving notification of the same. The effect of the cancellation was to put an end to the primary obligations between the parties. Primary obligations are those related to the performances due by the respective parties under the contract. In the instant case, once the contract was terminated by the appellant, the entitlement to specific performance by the fourth respondent terminated.  In order to obtain specific performance under the cancelled contract, it behoved the fourth respondent to first seek an order setting aside the cancellation as a basis for the order prayed for.  This he failed to do.  The court in effect gave relief under an agreement that was no longer in existence for the performance of bilateral obligations.</p> <p> </p> <p>     The appellant has also attacked the judgment on the basis that the learned judge in the court <em>a quo</em> granted an order for specific performance in favour of a litigant who was a party in a synallagmatic contract under circumstances where such party had himself not pre-stated.  The position of the law governing such contracts was stated by <strong>PATEL J</strong> (as he then was) to be:</p> <p>“It is a fundamental premise of every contract that both parties will duly carry out their respective obligations. See Green v Lutz 1966 RLR 633; ESE Financial Services (Pty) Ltd v Cramer 1975(2)SA 805(C)at 808-809. As is explained by Christie; Business Law in Zimbabwe at pp 106 &amp;119;</p> <p>‘There is a presumption that in every bilateral or synallagmatic contract, i.e. one in which each party undertakes obligations towards the other, the common intention is that neither should be entitled to enforce the contract unless he has performed or is ready to perform his own obligations…….Conversely, a party who has caused the other to commit a breach cannot found a claim on the breach….’”</p> <p> </p> <p> </p> <p>            It was contended on behalf of the appellant that the live issue for determination was whether the fourth respondent had paid the appellant’s creditors in accordance with the terms of the contract of sale.  It was argued that the court <em>a quo</em> erred in resolving the dispute on an erroneous acceptance by the appellant in other proceedings to the effect that payment in respect of the purchase price for the immovable property had been made in full.</p> <p> </p> <p>It is fair to state that the papers filed in the court <em>a quo</em> by both parties are the cause of the confusion which bedevilled the learned judge who had to deal with this matter.  Due to the multiplicity of actions and the extended period over which such actions were dealt with the parties thereto had to make statements on oath as to their respective positions. For this reason in seeking to defeat the application by the first and the second respondents for an interdict against transfer to the fourth respondent, the appellant stated that having cancelled his agreement with them he had concluded another with the fourth respondent whom he said had fully complied with his obligations under the second agreement.  The affidavit in question was deposed to on 6 November 2002.  On 16 October 2008, the appellant, in the affidavit in support of his application for the upliftment of the automatic bar, averred that the fourth respondent had furnished him with cheques which were returned unpaid by his bankers.</p> <p> </p> <p>A statement produced by the appellant tends to show that a cheque in the sum of Z$2 697 236.53 deposited into the appellant’s account with Intermarket Building Society on three occasions was returned unpaid each time. The amount in question was never credited to the appellant’s account.</p> <p> </p> <p> </p> <p>Although the court <em>a quo</em> found as a fact that a cheque in the said sum was presented and paid on 14 December 2001, the statement from the appellant which was not challenged by the fourth respondent paints a different picture. In August 2005 Intermarket Building Society advertised the immovable property for sale in execution.  In my view these two factors tend to negate the fourth respondent’s claim that he had settled all of the appellant’s debts and that all his cheques were met on presentation.</p> <p>       </p> <p>There exists a clear dispute of fact on the manner of payment of the purchase price on the part of the fourth respondent. Those disputes of facts are not capable of resolution on the papers and for this reason the order for specific performance in the circumstances would not be merited.</p> <p> </p> <p>In my view the court <em>a quo</em> misdirected itself in several aspects as detailed above.  In the premises the appeal has merit. It was for these reasons that the court allowed the appeal and issued the following order.</p> <p> </p> <p>IT IS ORDERED THAT:</p> <ol> <li>The appeal be and is hereby allowed with costs.</li> <li>The judgment of the court <em>a quo</em> is hereby set aside and substituted with the following:-</li> </ol> <p>“The counter-application be and is hereby struck off the roll with costs.”</p> <p>     </p> <p> </p> <p><strong>GWAUNZA JA:                               </strong>I agree</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>HLATSHWAYO JA:           </strong>            I agree</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>Kantor &amp; Immerman</em>, appellant’s legal practitioners</p> <p> </p> <p><em>Mandizha &amp; Company</em>, respondent’s legal practitioners</p> <p> </p> <p>1 Blumo Trading  (Pvt)  Ltd v Nelmah Milling Co (Pvt) Ltd &amp; Anor 2011 (1) ZLR 196  at  201F-H</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2016/16/2016-zwsc-16.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=46068">2016-zwsc-16.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2016/16/2016-zwsc-16.pdf" type="application/pdf; length=224632">2016-zwsc-16.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/contract">CONTRACT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/breach">Breach</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/cancellation">Cancellation</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/breach-contract">breach of contract</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/bar-practice-and-procedure">Bar (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/upliftment-bar">upliftment of bar</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/condonation-practice-and-procedure">Condonation (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-condonation">application for condonation</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/condonation-non-observance-any-time-limit">condonation of non-observance of any time limit</a></li></ul></span> Tue, 22 May 2018 09:24:37 +0000 admin 8849 at https://old.zimlii.org Chaza v Chawareva & Another (SC 2/18, Civil Appeal No. SC 576/16) [2018] ZWSC 2 (26 October 2017); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2017/2-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>EX TEMPORE</strong></p> <p> </p> <p><strong>LOVEMORE     CHAZA</strong></p> <p><strong>v</strong></p> <ol> <li> <strong>NEVER CHAWAREVA (2) MINISTER OF LOCAL GOVERNMENT PUBLIC WORKS AND NATIONAL HOUSING</strong></li> </ol> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA JA, HLATSHWAYO JA &amp; ZIYAMBI AJA</strong></p> <p><strong>HARARE, OCTOBER 26 2017</strong></p> <p><em>M. Mavhiringidze,</em> for the appellant</p> <p><em>F. Chiriwawadzimba</em>, for the first respondent</p> <p>No appearance for the second respondent</p> <p><strong>GWAUNZA JA</strong>:        In this matter Counsel for the first respondent raised a point in <em>limine</em> to the effect that the appellant having been barred in the court <em>a</em> <em>quo </em>for failure to file his heads of argument, had no right of audience before this court.</p> <p>She submitted that consideration by the court <em>a</em> <em>quo </em>of the merits of the matter, did not alter the legal position, that in fact the judgment <em>a</em> <em>quo </em>was given in default. Counsel relied for these contentions on a judgment of this court, <em>Zvinavashe v Ndlovu </em>2006 (2) ZLR 372 (S) where the following was stated at pg 375;</p> <p>“for the avoidance of doubt, it is declared that the giving of reasons for the default judgment in question by the court <em>a quo </em>was unnecessary and consequently of no force or effect.  It does not convert the default judgment into a judgment on the merits”.</p> <p>None of the authorities cited by the appellant contradict this position.   Since it was a default judgment, the proper course of action was for the appellant to have obtained a rescission thereof in the court <em>a quo.</em> Accordingly, this matter is not properly before us and it is our unanimous view that it should be struck off the roll.</p> <p>Notwithstanding that the point in <em>limine </em>was a point of law which could be raised at any time, our view is that each party should bear its own costs.  This is because the point was raised for the first time at this hearing, without any prior notice having been given to the appellants.</p> <p>In the result, it is ordered as follows:</p> <ol> <li>The point in <em>limine </em>is upheld.</li> <li>The appeal be and is hereby struck off the roll.</li> <li>Each party is to bear its own costs.</li> </ol> <p><strong>HLATSHWAYO JA:</strong>                       I agree</p> <p><strong>ZIYAMBI JA:</strong>                                   I agree</p> <p><em> Mavhiringidze &amp; Mashanyare</em>, appellant’s legal practitioners</p> <p><em>Mapendere &amp; Partners</em>, 1st respondents’ legal practitioners.</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2017/2/2018-zwsc-2.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=21444">2018-zwsc-2.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2017/2/2018-zwsc-2.pdf" type="application/pdf; length=68175">2018-zwsc-2.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/bar-practice-and-procedure">Bar (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/failure-file-plea">failure to file plea</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/default-judgment">Default judgment</a></li></ul></span> Thu, 26 Apr 2018 09:59:42 +0000 admin 8764 at https://old.zimlii.org Chapfika v Central African Buidling Society (HH 2/18, HC 3611/17 X ref HC 12138/15) [2018] ZWHHC 2 (03 January 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/2 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>ABINA CHAPFIKA</p> <p>versus</p> <p>CENTRAL AFRICAN BUILDING SOCIETY</p> <p>HIGH COURT OF ZIMBABWE</p> <p>TAGU J</p> <p>HARARE, 17 November 2017 &amp; 3 January 2018</p> <p><strong>Opposed Application</strong></p> <p><em>E Mandaza</em>, for applicant</p> <p><em>E Jori</em>, for respondent</p> <p>             TAGU J: This is an application for the upliftment of an automatic bar in terms of Order 12 r 84 (1) (a) of the Rules of this Honourable Court. The facts are that on 10 December 2015 the respondent issued summons against a company called Racewin Trading (Private) Limited, David Chapfika, the applicant Abina Chapfika, and David Chapfika N O (In his capacity as Executor of the Estate Late Netsai Robson Chapfika) all co-principal debtors and surety respectively. The summons and declaration were duly served by the Sheriff on the applicant and other defendants on 17 December 2015 on their chosen <em>domicillium citandi et executandi</em> by handing the copies of the summons and declaration on one Enerst Chitsinde a caretaker at the address of service. It will be noted from the Deed of Surety on page 36 of the application that the applicant in the present application as a principal debtor and surety chose as her <em>domicillium citandi et executandi</em> Number 881 Endevour Crescent, Mount Pleasant Business Park, Harare. The summons and declaration were duly served at the given address.</p> <p>            In her founding affidavit the applicant Abina Chapfika the wife to the second defendant David Chapfika submitted that she was not served with the summons and declaration and was not aware that the other defendants therein had been served with the summons. She said she only became aware of the summons when she came across the summons accidentally in their matrimonial home on the evening of 18 January 2016 when she was doing her routine cleaning. She said the summons was not served upon her personally and as such she was not aware of its existence. Her husband who is the second defendant in the summons for reasons known to him did not inform her of the court process timeously and she was duly barred for failing to enter an appearance to defend. She now wants the automatic bar to be uplifted so that she files her appearance to defendant the action. Her explanation being that she has a strong case and defence on the merits because the respondent’s claim under case number HC 12138/15 is based on Surety Mortgage Bond No. 3876/2013 which she never signed. It is her contention that at no time did she execute a Deed of Suretyship in the respondent’s favour and she only became aware of the same sometime in January 2016 when she discovered the summons. She said her husband fraudulently forged her signature without her knowledge and the signature on the said Surety Mortgage Bond is not hers. She prays for an order that-</p> <ol> <li>“The operative automatic bar against the Applicant in Case No. HC 12138/15 be and is hereby uplifted.</li> <li>The first respondent be and are hereby ordered to pay costs of suit on a legal practitioner and client scale only if it opposes this Application.”</li> </ol> <p>             The application for the upliftment of the automatic bar is strongly opposed by the respondent. In his opposing affidavit Collins Chikukwa the respondent’s Recoveries Manager submitted among other things that there is no averment by the applicant on how the summons came to be in the matrimonial house. Further, there has been no attempt to explain why the husband did not bring the summons to the attention of the applicant. This could have been done by way of a supporting affidavit from the applicant’s husband confirming that he brought the summons into the matrimonial home and he did not bring them to the attention of the applicant. According to him its highly unlikely that having brought the summons home the husband would leave them lying around without bringing them to the specific attention of the applicant. The probability is that the applicant was advised of the service of the summons but probably left it to her husband to address the matter and this application is simply meant to frustrate the respondent in its efforts to recover the debt. This view is fortified by the fact that the applicant’s husband, the co-defendant, has not been cited in this matter.</p> <p> </p> <p><strong>THE LAW</strong></p> <p>          In an application of this nature the applicant must satisfy the requirements to be met in an application for the upliftment of the bar. The requirements were spelt out in the case of <em>Smith N O</em> v <em>Brummer N O &amp; Anor</em> 1954 (3) SA 352 (O) at p 358 as follows-</p> <p>          “(a) A reasonable explanation for the Applicant’s delay is forthcoming;</p> <p>(b) The Application must be bona fide and not made with intent to delay the other party’s claim;</p> <p>            (c) The Applicant must not be guilty of a reckless or intentional disregard of the rules</p> <p>             of court;</p> <p>              (d) The Applicant’s case should not be obviously without foundation; and</p> <p>            (e) The other party should not be prejudiced to an extent which cannot be rectified by</p> <p>              a suitable Order as to costs.</p> <p><strong>REASONABLE EXPLANATION FOR DEFAULT</strong></p> <p>            In my view the applicant must rebut the presumption of service created by the Sheriff’s return of service. The applicant’s explanation is that she was not personally served with the summons in case number HC 12128/15 and in the circumstances she could not enter an appearance to Defend within the stipulated time frame. The fact that the summons were not handed to the applicant personally is not decisive in her favour. This was not an action for civil imprisonment. The Rules of this honourable court provide for effective service on a person other than the defendant. Order 5 r 39 (2) (b) of the High Court Rules, 1971 clearly states in this respect as follows:</p> <p>“Subject to this Order, process other than process referred to in subrule (1) may be  served upon a person in any of the following ways-</p> <ol> <li>by personal delivery to that person or his duly authorised agent;</li> <li>by delivery to a responsible person at the residence or place of business or employment of the person on whom service is to be effected or at his chosen address for service.”</li> </ol> <p>          In this case the Sheriff‘s Return of Service shows that the Sheriff handed a copy of the Summons to Ernest Chitsinde, a caretaker and a responsible person at Number 881 Endevour Crescent, Mount Pleasant Business Park, Harare, the place which the applicant, in the Deed of Surety, had chosen as her <em>domicilium citandi et executandi</em>.</p> <p>           It is common cause therefore, that the Sheriff’s Return of service constitutes <em>prima facie</em> proof of service. It is trite law as stated in the case of <em>Phill</em> v <em>Gweru Investments</em> <em>Limited &amp; Others</em> HH195-16, that the delivery of a legal notice to a responsible person at the chosen <em>domicilium citandi et executandi</em> of a party to a contract will suffice as proper service for purposes of r 39 (2) (b). There is no legal requirement that, to be effective, the chosen address of service must be the defendant’s place of residence. In fact, to prescribe that would be to take away the element of choice that is inherently associated with the <em>domicilium citandi et executandi</em>. It is submitted, therefore, that whether or not the defendant resides at the address of service is immaterial when establishing if good and proper service was effected. Therefore, despite that the applicant in the present case was not served personally, there was proper service.</p> <p><strong>HAS APPLICANT ESTABLISHED THAT SURETYSHIP DEED WAS FORGED?</strong></p> <p>            In her founding and supporting affidavits the applicant has tried to disown the Deed of Suretyship which stipulates the address of service. It is with respect, submitted that the applicant has failed to discharge the evidentiary burden on her to establish the forgery. She has not produced any evidence which establishes her bona fides in making the allegation. She has not reported the alleged forgery which threatens to dispossess her of her matrimonial property to the police as any reasonable victim would do. The alleged forgery has not been admitted by the husband. The applicant has also failed to produce an affidavit of her husband admitting to this said forgery. The applicant has also not produced any report from a document expect proving that the signature appended on Annexure “H” to the Court Application really is a forgery as she alleges. There is no evidence whatsoever pointing to the fact that the applicant‘s husband forged the documents in question save for her unsupported declarations. The mere production of copies of her passport and Bank card are not enough in the absence of a finger print expert. She is therefore bound by the Suretyship agreement she signed.</p> <p><strong>IS APPLICANT BONA FIDE IN MAKING THIS APPLICATION?</strong></p> <p>            When all the facts of this case have been considered the inescapable conclusion is that the applicant is not bona fide in making this application. In establishing its bona fide the applicant must have set out material facts which if proved constitutes a valid and sufficient defence to the action. In my view the applicant failed to establish the same. This defence has been only raised to delay the respondent from getting its relief.</p> <p><strong>HAS THERE BEEN A RECKLESS OR INTENTIONAL DISREGARD OF THE RULES OF COURT?</strong></p> <p>           The Rules of this honourable Court clearly prescribe the time frame within which a defendant should file its Appearance to Defend. Rule 17 of the High Court Rules provides that <em>“The time within which a defendant shall be required to enter appearance to defend shall be ten days, exclusive of the day of service</em>”. When she realised that she had been automatically barred by operation of the law the applicant should not have rushed to try and file an appearance to defend but at that very moment if she was genuine should have applied for upliftment of the bar. That she did not do shows that she disregarded the rules of court.</p> <p><strong>WOULD THE RESPONDENT BE PREJUDICED TO AN EXTENT WHICH CANNOT BE RECTIFIED BY SUITABLE ORDER AS TO COSTS?</strong></p> <p>             We are at the end of the year 2018. The matter in case number HC 12138/15 has not been settled since 2015. As a bona fide creditor with a bona fide claim it is my view that the respondent has already been prejudiced in a manner deserving of costs on a higher scale without having to deal with this frivolous application from the applicant. The applicant did not exercise the degree of care expected of a litigant who has been barred. She waited for over a year to apply for the upliftment of the Bar operating against her from the time that she allegedly “came across” the Summons. In doing so she failed to exercise the degree of care expected in the circumstances and was therefore negligent in the sense defined by MAFUSIRE J in the case of <em>Local Authorities Pension Fund</em> v <em>Nyakwawa &amp; Ors</em> HH-60-15. See also the case of <em>Mears</em> v <em>Brooks’  Executor &amp; Anor</em> 1906 TS 546 where the court refused to remove the bar where the applicant in that case had delayed filing his pleadings for a year and had no reasonable explanation for such a lengthy delay.</p> <p>             In the circumstances I refuse to order the upliftment of the bar.</p> <p>IT IS ORDERED THAT</p> <ol> <li>The application is hereby dismissed with costs on a legal practitioner and client scale.</li> </ol> <p><em>Muhonde Attorneys</em>, applicant’s legal practitioners</p> <p><em>Wintertons</em>, respondent’s legal practitioners             </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/2/2018-zwhhc-2.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=23577">2018-zwhhc-2.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/2/2018-zwhhc-2.pdf" type="application/pdf; length=319435">2018-zwhhc-2.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/bar-practice-and-procedure">Bar (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/upliftment-bar">upliftment of bar</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2016/195">Phili v Gweru Inv. Ltd. &amp; Others (HH 195-16 HC 2146/11 Ref Case No’s SC 42/11 HC 5403/10) [2016] ZWHHC 195 (16 March 2016);</a></div></div></div> Thu, 15 Mar 2018 09:01:05 +0000 admin 8622 at https://old.zimlii.org