CHIRIGA ESTATES (PVT) LTD

and

MILRITE FARMING (PVT) LTD

and

SILVERTON ESTATES (PVT) LTD

versus

MINISTER OF LANDS AND RURAL RESETTLEMENT

and

MR E. PORUSINGAZI

and

MR M. I. KAMBA

AND

MR A. MUSONA

and

MS A. CHITIMA

and

S. ZUZE

and

THE OFFICER COMMANDING Z R POLICE CHIPINGE

and

THE OFFICER COMMANDING Z. R. POLICE MANICALAND PROVINCE

and

THE COMMISSIONER-GENERAL Z.R. POLICE

and

THE ATTORNEY-GENERAL

HIGH COURT OF ZIMBABWE

MUSAKWA J

HARARE, 9, 10, 11 AND 15 FEBRUARY 2010

CHAMBER APPLICATION

Mr L. Uriri, for applicants

Mrs F. Chimbaru, for first, sixth, seventh, eighth, ninth and tenth respondents

Mr Ndudzo, for second respondent

Second, third,fourth and fifth respondents in default

MUSAKWA J: This is an application for a spoliation order pursuant to applicants’ conviction for contravening the Gazetted Land (Consequential Provisions) Act [Chapter 20:28]. Having been convicted and sentenced on 26^th January 2010, they were also ordered to vacate the land not later than 5.00 p.m on 27^th January 2010. The basis of the present application is that the applicants were forcibly dispossessed of the land by first to sixth respondents.

It is common cause that following their conviction by the Magistrates Court applicants sought a stay of execution of the order of eviction pending the determination of the appeal noted with the Supreme Court. The certificate of urgency in the present application was prepared by Mr Drury. Mr Drury also deposed to the founding affidavit. In my view this is undesirable. Mr Drury states that he was authorized by the applicants. He may have agreed to this arrangement as he had represented applicants in the criminal trial. In addition there would be nothing wrong for a legal practitioner to depose to an affidavit on behalf of a client as long as he positively swears to the facts. However, it is apparent from Mr Drury’s affidavit that a lot of the facts are largely hearsay as he attributes them to his clients. On the other hand some of the averments in the supporting affidavits do not confirm what is in the founding affidavit.

It is also apparent that the present application seems to have been hurriedly prepared at the expense of conforming to the requirements of spoliation. It is claimed that a mob armed with sticks, iron bars and other weapons summarily invaded Stillfontein farm. In paragraph 40 of the founding affidavit Mr Drury states that-

“Stilfontein has been summarily invaded by youths, probably under the direction of E. Porusingazi the 2^nd Respondent.”

There is nowhere else in the founding affidavit that the acts of spoliation are specifically linked to any of the respondents. The supporting affidavits are hardly helpful. The supporting affidavit by Mivhael Charles Jahme only alleges the invasion of Silverton Estates by third respondent on the strength of an offer letter. However, there is no similar averment by Mr Drury. The rest of the affidavit either contains hearsay or deals with other matters that do not specifically put the respondents in the picture.

The same applies to the supporting affidavit of Algernon Tracy Taffs. The affidavit only makes reference to fifth respondent and does not detail the acts done by the other respondents. Even then, like the preceding affidavit it does not confirm what was witnessed by Mr Drury.

It is quite clear that an element of spoliation has not been met. Although it is stated that unlawful deprivation of possession has occurred, there is no proof of the identity of the perpetrators. Such evidence if any is based on generalizations and hearsay.

There is the added handicap in respect of the citation of the second respondent. Mr Drury cited the second respondent by his name, national registration number as well as postal address. It is common cause that these particulars relate to Enos Porusingazi, the beneficiary of an offer letter relating to a portion of Stillfontein farm.

It is also not in dispute that the application and notice of set down was served at Stillfontein estates. As it turned out the party who attended court as second respondent contends that he has not despoiled the applicants. Although he is the holder of an offer letter, this second respondent contends that he is waiting for due process to take its course before he moves onto the portion of land allocated to him. Mr Uriri for applicants sought to explain that according to his instructions the person who exhibited the offer letter to applicants is the father of Enos Porusingazi and not the party who attended court.

There is no doubt then that the second respondent was not properly cited. Mr Uriri submitted that there would be no prejudice if the application is granted notwithstanding this anomaly. The question that immediately arises is which second respondent will have to comply with the order. Court orders are meant to be obeyed and there are consequences that follow non-compliance. I am satisfied that second respondent is not before the court by reason of poor citation.

Although the third to sixth respondents were in default I was not moved to grant the application against them. Suffice to note that the case against them is plagued with the same material inadequacies as that against second respondent. It therefore means that the application fails. Mr Ndudzo for second respondent sought costs de bonis propiis against Mr Drury on account of his objectionable conduct. He submitted that he even wrote a letter to Mr Drury in which he pointed out the deficiencies in the application. In the letter he even suggested that the application against his client be withdrawn failing which he would seek costs de bonis propiis against Mr Drury. This went unheeded.

Although in the course of hearing argument on this issue I had pointed out the propriety of awarding costs against Mr Drury without giving him an opportunity to be heard, on further reflection it is clear that he had such opportunity but failed to exercise it. This is evidenced by the letter addressed to him dated 11 February 2010.

Costs de bonis propiis are granted against a legal practitioner in exceptional circumstances. As was stated by EBRAHIM J.A in the case of Matamisa v Mutare City Council 1998 (2) ZLR 439 (SC), at 447-

“Costs de bonis propriis will be awarded against a lawyer as an exceptional measure and in order to penalise him for the conduct of the case where it has been conducted in a manner involving neglect or impropriety by himself: Omarshah v Karasa 1996 (1) ZLR 584 (H) at 591 per GILLESPIE J. Such costs  E  are only awarded in reasonably grave circumstances. Generally speaking, dishonesty, mala fides wilfulness or professional negligence of a high degree fall into this category: Techniquip (Pvt) Ltd v Allan Cameron Engineering (Pvt) Ltd 1994 (1) ZLR 246 (S) at 248G per GUBBAY CJ.”

I am further fortified in my decision by the case of Masama v Borehole Drilling (Pvt) Ltd. 1993 (1) ZLR 116 SC. In that case the appellant’s legal practitioner had failed to attend a pre-trial conference. This was despite the fact that respondent’s legal practitioner had informed him in writing and had also attached a copy of the notice of set down. Default judgment was then granted as a result. In seeking rescission of judgment appellant’s legal had filed a supporting affidavit in which he sought to explain circumstances surrounding the default. On the issue of costs GUBBAY C.J had this to say at pp 120-121-

“With regard to costs I take the view that although the appeal was brought in the name of his client it is Mr Mutezo who, in reality, is seeking relief from this court - in all probability to avoid the ire of the appellant and a prospective claim for damages for professional negligence. As he is shown to have been negligent in a serious degree in the handling of the appellant's litigation there seems to me to be every justification to "crack the whip" and order him to pay the costs of the appeal de bonis propriis. See Immelman v Loubser & Anor, supra, at 825B-D; Machumela v Santam Insurance Co Ltd 1977 (1) SA 660 (A) at 664B; Waar v Louw 1977 (3) SA 297 (O) at 304C-E; Webb & Ors v Botha 1980 (3) SA 666 (N) at 673B-F.  H 

There are, in addition, many precedents where a court has directed that a legal practitioner should not be permitted to recover costs from his client. See, Machumela v Santam Insurance Co Ltd supra at 664B-D; Coley Hall (Pvt) Ltd v Sinclair Builders 1972 (2) RLR 101 (G) at 104E; Ruzvidzo v Kanhanga S-70-91 (unreported); and the further instances cited in Jacobs and Ehlers Law of Attorneys Costs and Taxation Thereof at pp 48-49.”

This is the same approach I have adopted with regard to the issue of costs. Accordingly it is ordered that-

1. The application be and is hereby dismissed.
2. The costs of this application be borne on the legal practitioner and client scale by Mr Drury of Gollop and Blank legal practitioners de bonis propiis.
3. Gollop and Blank legal practitioners shall not recover from applicants in this matter any costs and if any costs or disbursements have already been paid, they be refunded to the applicants immediately.
4. The Registrar is directed to serve a copy of this judgment on the Secretary of the Law Society.

Gollop & Blank, applicants’ legal practitioners

Civil Division of Attorney-General’s Office, first, sixth, seventh, eighth, ninth and tenth respondents’ legal practitioners

Mutamangira & Associates, second respondent’s legal practitioners