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      HB 105/15

    HC 2700-14

REVEREND CLEMENT NYATHI

and

REVEREND FIDELIS MORRIS

and

REVEREND JOSEPH MATONGO

and

REVEREND ABEL HELE MEPHULANGOGAJA

and

REVEREND PHIBION TAGARIRA MANYOWA

and

APOSTOLIC FAITH MISSION OF AFRICA

Versus

TONY TSHUMA

and

ELLIOT NCUBE

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 25 MARCH 2015 & 28 MAY 2015

Opposed Roll

T. Magwaliba for the applicants

F. Museta for the respondents

TAKUVA J:  This is an application for an interdict in the following terms:

“1.       The 1^st and 2^nd respondents be and are hereby interdicted from interfering, visiting and or using the 6^th applicant’s property without the consent of the applicants.

2.         The 1^st and 2^nd respondents are barred from presenting or purporting to act as the leaders of the 6^th applicant either to the 6^th applicant’s members or to the members of the public.

3.         The 1^st and 2^nd respondents are ordered to release and return the control of the 6^th applicant’s affairs and activities into the 1^st to 5^th applicants forthwith.

4.         The respondents are ordered to pay costs of suit on a client – attorney scale”.

            The background facts are briefly as follows:

1. The 1^st to 5^th applicants are members of the Board of Trustees for the 6^th applicant and the 1^st respondent used to be a member of the board of trustees before he was expelled from the board following some acts of misconduct.
2. After the 1^st respondent was notified of his ouster he teamed up with the 2^nd respondent to disrupt the smooth administration of the 6^th applicant.
3. The 6^th applicant approached this court on 17^th November 2014 seeking an order inter alia interdicting the respondents from interfering with the 6^th applicant’s operations.  The application was duly served on the respondents on the 21^st of November 2014.
4. On 5^th of December 2014 the respondents filed a notice of opposition wherein an opposing affidavit was not annexed to the same.
5. On 19^th of November 2014 the respondents filed an opposing affidavit with no notice of opposition.

On the date of the hearing, the applicants raised a point in limine, namely that the respondents had not complied with the rules of this court in that since the opposing affidavit was filed out of time, the respondents were automatically barred.

Applicants relied on Order 32 Rule 232 as read with Order 32 Rule 233.  These rules state:

“Order 32 Rule 232 the time within which a respondent in a court application maybe required to file a notice of opposition and opposing affidavits shall be not less than 10 days, exclusive of the day of service, plus one day for every 200 kilometres or part thereof where the place at which the application is served is more than 200 km from the court where the application is to be heard.

Provided that in urgent cases, a court application may specify a shorter period for the filing of opposing affidavits if the court on good cause shown agrees to such shorter period.

233.     Notice of Opposition and opposing affidavit

(1)The respondent shall be entitled, within the time given in the court application in accordance with rule 232, to file a notice of opposition in Form No. 29A, together with one or more opposing affidavits.

(2)As soon as possible after filing a notice of opposition and opposing affidavit in terms of sub-rule (1), the respondent shall serve copies of them upon the applicant and, as soon as possible thereafter, shall file with the registrar proof of such service in accordance with Rule 42B.

(3)A respondent who has failed to file a notice of opposition and opposing papers in terms of sub-rule (1) shall be barred”. (my emphasis)

In casu, it is not in dispute that the respondents filed a notice of opposition without attaching an opposing affidavit to it.  This was done on 5 December 2014.  Twenty-four days later on 29 December 2014, respondents filed an opposing affidavit without attaching a notice of opposition.

The literal rule of statutory interpretation leads to one meaning of Rules 232 and 233, namely that the notice of opposition must be filed together with an opposing affidavit/s.  Not only that, even the service of these documents on the applicant must be done simultaneously.  The word “together” here simply means at the same time.  To file the documents separately would clearly defeat the purpose and spirit of the two rules in that the dies induciae of not less than ten days would be rendered ineffective.  Indeed this is precisely what the respondents appeared to be doing in casu.  They wanted to beat the deadline as it were by just filing a notice of opposition without an opposing affidavit.

Advocate Magwaliba for the applicants submitted that the respondents’ notice of opposition is defective and that they are automatically barred.  He relied on ADAM J’s decision in HPP Studios (Pvt) Ltd v Associated Newspapers of Zimbabwe (Pvt) Ltd 2000 (1) ZLR 318.  See also Satelite Television vs P.T.C. 1991 (2) ZLR 226 (H).  Respondents had on 14 January 2015 filed another notice of opposition this time together with an opposing affidavit.  Quite clearly, this new set was filed out of time without an application for condonation being made first.  Advocate Magwaliba moved that the respondents be barred by operation of the law as the court has no discretion in such matters.

Advocate Nkomo for the respondents disdainfully indicated that the respondents had “their own points in limine” to raise with the court despite the fact that they had no right of audience.  When it was pointed out that this was not possible until the upliftment of the bar, he then feebly said his intention was to make an oral application for condonation in terms of Rule 4C of this Court’s Rules.  He submitted that in terms of this rule, the court has a discretion to condone the late filing of the opposing affidavit.

Rule 4C states

“Departure from rules and directions as to procedure

The court or a judge, may, in relation to any particular case before it or him, as the case maybe –

(a)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 maybe, is satisfied that the departure is required in the interests of justice;

(b)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 maybe, to be just and expedient”.

In my view Rule 4C cannot be used to cover trickery, dishonest and crafty behaviour by litigants.  The respondents simply sneaked in the opposing affidavit into the file hoping to hoodwink the Registrar and the court into believing that all was in order.  They did not timeously apply for condonation.  Even in their purported oral application they did not give even a single reason for the default.

Consequently, the application to uplift the automatic bar and to be condoned in terms of Rule 4C is hereby dismissed.  The respondents remain automatically barred.  The matter is unopposed and is therefore referred to that roll.

Mugiya & Macharaga Law Chambers c/o Mashayamombe & Company, applicants’ legal practitioners

Ndove, Museta Legal Practitioners, respondents’ legal practitioners