HIGH COURT OF ZIMBABWE
HARARE, 12 January 2015, 9, 23 February 2015 & 15 April 2015
E. Jori, for the applicant
J.S. Samukange, for the respondent
DUBE J: The applicant has brought an application for summary judgment in terms of r 64. The parties will in this application, be referred to as the plaintiff and defendant respectively. The background to this dispute is as follows. On 10 December 2013 the plaintiff issued summons against the defendant, a former employee, claiming US $164 255-81 being monies due by the respondent in terms of a mortgage bond passed in its favour. The defendant entered appearance to defend followed by a plea as well as a counter claim for outstanding salaries and benefits from October 2012 to October 2013. The plaintiff responded by filing this application for summary judgment.
It is plaintiff’s averment that the defendant has failed to establish the existence of a bona fide defence to the plaintiff’s claim. The plaintiff submitted that the defendant makes a bold denial of the allegation that she is in breach of the terms of the mortgage bond and makes bold, unsubstantiated claims that she has been making payments in terms of the bond. That she has failed to state the amounts paid, the dates on which she made the alleged payments as well as the manner in which the payments were made. No proof of payment was produced. The plaintiff also challenges the defendant’s allegations that the foreclosure proceedings have been prematurely instituted on the basis that these allegations are not substantiated. The plaintiff maintains that once the mortgagee fell in arrears of her monthly instalments, the whole amount became outstanding and the loan became immediately due and recoverable entitling the plaintiff to foreclose. The plaintiff contends that the defendant has misinterpreted the arbitrators’ order which never made a definitive finding on the defendant’s
entitlement to salaries and benefits which she argues are sufficient to clear the outstanding balance. This argument is premised on defendant’s counterclaim wherein which she claims arrear salaries, benefits and costs. The plaintiff maintains that the counter claim is baseless and has no merit.
The respondent opposed the application wherein she challenged the deponent to the founding affidavit’s locus standi to depose to the affidavit on behalf of the applicant. She also took issue with the deponent’s failure to produce a resolution authorising him to depose to the affidavit. The defendant raised the defence of lis pendens on the ground that there is a similar matter pending in the Labour Court. On the merits, she claimed that summons was issued prematurely. That applicant’s officers connived to have the repayment period of the mortgage bond reduced from 15 years to 10 years so that the repayment rate would increase with the aim of putting her in arrears. She averred that her counterclaim is legitimate and justified. The defendant maintains that she has a bona fide defence to the merits of the claim on the basis of an arbitral award for reinstatement and payment of arrear salaries and benefits which she alleges have not been paid to her. Further that she has been making repayments towards the loan. The defendant alleges that there are disputes of fact regarding the amount that is allegedly in arrears and that this dispute is incapable of resolution on the papers. Counsel for the defendant urged the court to refer the matter to trial.
In answer, the plaintiff filed an answering affidavit which dealt with the subject of the authority of the deponent to the founding affidavit and other evidentiary issues which arose in the notice of opposition of the defendant. The affidavit was filed without leave of court.
At the hearing of this matter, an attempt to file a copy of the resolution was strenuously resisted by the defendant. The resolution had not been attached to the answering affidavit due to error. The plaintiff applied for condonation of its failure to attach the resolution to the answering affidavit. The defendant also took issue with the propriety of filing an answering affidavit in a summary judgment application. I requested the parties to prepare heads of argument on this point and they did. The applicant submitted that the admission of the supplementary affidavit would serve the interests of justice and help bring a just conclusion to the matter. The court was urged to take a liberal approach and properly deal with the issues arising in this matter. The plaintiff relies on dicta by Robinson J in Scotfin v Afri Trade Supplies (Pvt) Ltd 1993 (2) ZLR 170, for that proposal. I reserved judgment on these issues and indicated that my ruling would be part of the main judgment.
The court will deal first with the issue regarding filing of an answering affidavit in a summary judgment application. The law governing the filing of additional affidavits in a summary judgment is provided for in r 67. The rule reads as follows:
“67. Limitations as to evidence at hearing of application
No evidence may be adduced by the plaintiff otherwise than by the affidavit of which a copy was delivered with the notice, nor may either party cross-examine any person who gives evidence viva voce or by affidavit:
Provided that the court may do one or more of the following—
(a) permit evidence to be led in respect of any reduction of the plaintiff’s claim;
(b) put to any person who gives oral evidence questions—
(i) to elucidate what the defence is; or
(ii) to determine whether, at the time the application was instituted, the plaintiff was or should have been aware of the defence;
(c) permit the plaintiff to supplement his affidavit with a further affidavit dealing with either or both of the following—
(i) any matter raised by the defendant which the plaintiff could not reasonably be expected to
have dealt with in his first affidavit; or
(ii) the question whether, at the time the application was instituted, the plaintiff was or should
have been aware of the defence.
[Proviso substituted by s.i. 25 of 1993]’
Rule 67 requires an applicant bringing an application for summary judgment to substantiate fully his claim and evidence upon which he relies on in his founding affidavit. He may not file a further affidavit without the leave of the court. In Omarshah v Karasa 1996 (10 ZL;R 584 2 587A-D Gillispie J said the following ,
“...no evidence may be led in support of an application for summary judgment otherwise than by the founding affidavit. The opportunity which is afforded by para (c) of the proviso to this rule, namely, the filing with leave of an affidavit to traverse new matter raised in the opposition, is one which is expressly limited to the circumstance where the opposing papers advance matter which could not reasonably have been anticipated at the time of the application. In Lincoln Court (Pvt) Ltd v Axis International (Pvt) Ltd HH-54-94 it has been explained that the purpose of this provision is not to enable a reply in the usual sense to the opposing affidavit. It remains the policy to limit the evidence adduced for the plaintiff to that which is in the founding affidavit. The purpose of this is to maintain the distinction properly drawn between summary judgment and other opposed proceedings on application. The latter frequently permit of a robust approach which is anathema to the concept of summary relief given only to an unanswerable claim. The deponent of this affidavit is expected, given his awareness of the facts and of correspondence between the parties relating to the issue, to anticipate in his application the defence that is relied upon and to show why it is untenable. Only where the opposition contains a departure which could not have been reasonably expected is he entitled to seek leave to respond. It is in addition axiomatic that the leave is only to be given where it is necessary to file the further papers.”
See also Beresford Land Plan v Urquhart 1975 1 RLR 260 (A), Stanbic Bank Zimbabwe Ltd v Dickie & Anor 1998(1) ZLR 205 (H).
The proviso to the rule allows the court to permit a supplementary affidavit only where a defendant in his opposition papers raises matters which the plaintiff could not reasonably be expected to have dealt with in the first affidavit. The rule was never meant to afford an applicant in a summary judgment application an opportunity to reply to issues raised generally in the opposing affidavit and to file an answering affidavit to serve the same purpose as in the ordinary application. The applicant is expected in his founding affidavit to go out of his way and anticipate the opposition and show why any possible defence is not available to the defendant. Our rules allow the admission of further evidence through an answering affidavit in an application for summary judgment, only in exceptional cases and with the leave of the court. In Scotfin v Afri Trade Supplies (Pvt) Ltd (Supra), the court allowed an answering affidavit in a case where the defendant had made allegations that were false. The court made the following remarks:
“I was satisfied that this was a case in which, in the interests of justice, the court should exercise its discretion in favour of the applicant under r 45 (a) of the rules of the High Court by authorising a departure from r 67 and admitting the applicants answering affidavit with the documentary evidence annexed to 1. I did so on the ground that at the time the applicant signed its affidavit in support of its application for summary judgement on 26 May 1992 the applicant had no fore knowledge that the respondent would raise the defence it did in para 5 of its opposing affidavit of an indication allegedly given by the applicant that it had instructed its legal practitioners to withdraw proceedings against the respondent or that after having failed to ask for further particulars in its request …… on 22 May 1992, in regard to the applicant’s allegation in para 10 of its a declaration that it had given notice cancelling the hire – purchase agreements, the respondent would, in para 6 of its opposing affidavit deny that notice of cancellation of the agreements had been given to it”.
The learned judge later advocates for a liberal and less rigid and inflexible practice of the English courts which allows applicants for summary judgment to rely on documentary and other evidence to show that the defendant has no bona fide defence to a claim. The court went on to remark as follows:
“Let me say, in passing, that I consider that the stage has now been reached where an applicant for summary judgment should always be allowed to file a replying affidavit to show that a respondent's opposition to his application is not bona fide or is ill founded. In this regard, I can see no good reason for distinguishing any longer between an applicant for summary judgment and any other applicant insofar as the filing of a replying affidavit is concerned. Accordingly, I would strongly recommend that our Rules of Court be amended to entitle an applicant for summary judgment to file a replying affidavit if he so elects.”
The mischief behind r 67 was to adopt a robust approach in view of the unanswerable claim which is deemed not to require an answer and afford a prompt remedy to the applicant. Our courts are inundated with applications for leave to file answering affidavits in summary judgment applications. The judge’s view was that this rule should be done away with to allow every applicant in a summary judgment application to file an answering affidavit if he so elects. I agree with the sentiments expressed by Robinson J. The tendency in most applications for summary judgement is to file answering affidavits albeit without leave of the court. The situation is compounded by the defendants who realising that they have sham defences put up frivolous defences which clearly the applicants cannot have anticipated. The response usually is for the applicant to ask for leave to admit the answering affidavit or file one without leave of the court. The proviso to r 67 causes unnecessary delays as an application for leave to file or admit the additional affidavit has to be made. As a result most summary judgment applications end up with an answering affidavit being filed. It is accepted that the summary judgment procedure does away with the need for a trial and affords a speed remedy to an applicant. However, the delays encountered when seeking leave, result in the period being prolonged further, causes unnecessary delays and are undesirable. I have not seen much advantage to the speedy resolution of the matter where the applicant is required to apply for leave of court to file or admit additional this affidavit. The option to file an answering affidavit should be left to the applicant. The applicant has the onus and should have the last word and should always be afforded an opportunity to cement his case. In other jurisdictions like England applicants for summary judgment are allowed an opportunity to file answering affidavits. This extra step in this type of application has not been shown to slow down the process or have any other disadvantages. It may now be time to consider the usefulness of r 67.
The court in determining whether to allow the additional affidavit is required to consider whether at the time the application was instituted the plaintiff was or should have been aware of the defendant’s defence and secondly whether any matter raised by the defendant is one which the plaintiff could reasonably be expected to have dealt with in his first affidavit and whether it would have been possible for the plaintiff to have dealt with the issues or defences raised in the additional affidavit at the time it filed its founding affidavit. The court is required to exercise its discretion judicially in allowing a departure from the rules.
The plaintiff in its answering affidavit dealt with the subject of the locus standi of the deponent to the applicant’s founding affidavit to bring summary judgment proceedings on behalf of the applicant, allegations of victimization and harassment, issue regarding summons
being issued prematurely, reasons why the tenure of the mortgage bond was reduced, the counterclaim and its consequences and existence of disputes of fact. All these are issues that could not have been reasonably expected to have dealt with in the founding affidavit. The defendant’s defence that the deponent to the founding affidavit was not authorised thereto is not part of the respondent’s plea to the main matter. The issue came to the fore in the defendant’s notice opposition. There is no legal requirement for a party bringing proceedings on behalf of a company to attach a resolution authorising him to act on behalf of the company at the commencement of proceedings. There is no way that the applicant could have known that the defendant would challenge the authority of the deponent to the founding affidavit’s authority to bring these proceedings. It is not necessary to attach a resolution of a company when an application is brought to prove that a deponent has authority to bring proceedings on behalf of a company. It can be produced from the bar. The allegation that the proceedings were meant to harass her and that the deponent was conniving with other senior employees of the plaintiff to gang against her is raised for the first time in her opposing affidavit. The plaintiff was entitled to respond to this allegation. The issue regarding the plaintiff having enticed her on the strength of getting a mortgage bond, again is a fresh allegation. The counterclaim for instance, could not have been anticipated. I am satisfied that the plaintiff could not have dealt with the allegations that later surfaced in the notice of opposition. The interests of justice demand that the plaintiff’s answering affidavit be allowed in order that the plaintiff is able to respond to these allegations which are material to the determination of the issues at hand. This is a classic case where the interests of justice demand that an answering affidavit be allowed in summary judgment proceedings.
The plaintiff, having filed the answering affidavit without leave of court, has not formally asked the court for leave to file the answering affidavit but has still asked the court to admit the additional affidavit and urges the court to adopt a liberal approach and in terms of the proviso to r 67, to permit a supplementary affidavit which raise matters which the plaintiff could not have reasonably be expected to have dealt with in the first affidavit. The plaintiff has submitted supplementary heads of argument dealing with why the court should allow the affidavit. In any case where a litigant is required to file a document with the leave
of the court or admit a one already on record, he is expected to explain the reasons he requires to file the document and why it should be part of the record. He should formally request for the permission of the court to admit such a document. I take it by asking the court to adopt the liberal approach the plaintiff is in effect seeking the permission of the court to admit the affidavit. I do not read the rule to require that an actual application be made for admission of the affidavit already on record or for leave to file it. I have decided in my discretion to indulge the plaintiff. The answering affidavit is hereby admitted.
The defendant challenged the deponent to the founding affidavit’s authority to bring these proceedings. Although the answering affidavit has been admitted, the resolution to bring these proceedings is not part of it. The founding affidavit was deposed to by Collins Chikukwa, the applicant’s recoveries manager. He stated in the affidavit that he was duly authorised to depose to the affidavit on behalf of plaintiff. The plaintiff omitted to attach the resolution to the answering affidavit and seeks the court’s indulgence to admit this document. It is not a legal requirement for a company, in every case it embarks on litigation to produce a resolution of its board of directors to show that such litigation has been approved or the person deposing to a founding affidavit in such a matter has the authority of the company to do so. It is only where such authority is challenged that it is expected that such authority be produced. Such a resolution can be produced from the bar. The resolution in this matter did not have to be produced through the answering affidavit. The applicant chose to do so through an answering affidavit which has now been admitted but the resolution is still not part of the answering affidavit. The fact that the plaintiff failed to attach a resolution that it alluded to in its answering affidavit is explicable and not fatal. The defendant is taking an arm chair approach. To err is human. It is clear that the plaintiff intended to produce the resolution but omitted to attach it to the answering affidavit. I say so because the applicant makes reference to a resolution authorising the institution of legal proceedings in the answering affidavit. It is purely an oversight. This sort of mistake is common with legal practitioners. It is a genuine error that deserves the condonation of the court. I have in terms of r4C allowed a departure from the rules. The resolution is hereby admitted. The plaintiff has produced proof that the deponent to the founding affidavit has proof to institute proceedings on behalf of the plaintiff. The resolution itself, filed with supplementary heads of argument was not meaningfully challenged. It is signed by the secretary supposedly of the board, is a photocopy and is by the board. It did not have to be signed by the board members.
It appears to the court that the defendant is mala fide in her raising of her challenge to the authority of the deponent to the founding affidavit. The parties have previously been engaged in litigation where the defendant challenged the plaintiff’s employees’ authority including that of Mr Chikukwa to represent it. In HH 268/14, a vindicatory claim against the defendant a involving the same parties, the court ruled against her and found that the employees had authority to represent it. It is therefore apparent that it is the plaintiff that is litigating and the defendant knows this fact. The deponent to the founding affidavit is not on a frolic of his own. This point fails.
The defendant has a case pending in the Labour Court on the subject of her dismissal salary and benefits andnvolving the same parties, urgu defendant has raised the defence of lis pendens. I am still not satisfied that the matter pending in the Labour Court pertains to the same subject matter as this one and further that the cause of action is the same. Van Winsen in the Civil Practice of the Superior Courts in South Africa 3rd ed at p 269 defines the defence as follows:
“If an action is already pending between the parties and the plaintiff therein brings another action against the same defendant on the same cause of action and in respect of the same subject t matter, whether in the same or a different court, it is open to such defendant to take the objection of lis pendens, that is another action respecting the identical subject matter has already been instituted, whereupon the court, in its discretion, may stay the second action pending the decision of the first action.”
The same approach was enunciated in Mhungu v Mtindi 1986 (2) ZLR 171 (S), Williams v Shub 1976 (4) SA 567 (c). A defence of lis pendens will only succeed where there is a dispute between the same parties, the subject is the same and where the dispute is founded on the same cause of action. The dispute over the dismissal of the defendant and her outstanding salary and benefits is pending in the Labour Court and not in this court. The parties before the Labour Court may be the same as in this case but the cause of action and subject matter is different. These proceedings deal with foreclosure of a mortgage bond and a claim for an outstanding debt whilst those at the Labour Court deal with a challenge over the dismissal of the defendant. The claims are different. The issue of lis alibi pendens does not arise. The defendant’s counterclaim has been raised clearly to cloud issues.
An applicant in an application for summary judgement should show that a respondent’s opposition is not bona fide or is ill founded and that the defendant does not have a good prima facie defence. See Dube v Medical Investments International Ltd 1989 (2) ZLR 280 (SC), Scotfin Ltd v Afri Trade Supplies (Pvt) Ltd 1993 (2) ZLR (H). It must show that the
respondent has an unanswerable case. The respondent must outline a defence and material facts upon which it bases its defence with sufficient clarity so as to enable the court to decide whether he has a bona fide defence which if proved at the trial, will constitute a defence to the plaintiff’s claim. He must, although not required to deal exhaustively with the evidence and facts relied on to substantiate the defence, outline his defence and the material facts upon which he relies on with sufficient clarity and completeness to enable the court to decide whether his affidavit discloses a bona fide defence. See Mbayiwa v Eastern Highlands Motel (Pvt)(Ltd) S139/86. In Jena v Nechipote 1986 (1) ZLR 29(SC), Gubbay JA, remarked as follows:
“All that a defendant has to establish in order to succeed in having an application for summary judgment dismissed is that ‘there is a mere possibility of his successes; ‘he has a plausible case’; ‘there is a friable issue’; or, ‘there is a reasonable possibility that an injustice may be done if summary judgement is granted”.
In Shingadia v Shingadia, 1966 RLR 285 2 288 A-B the court held as follows:
“Accordingly, summary judgment should not be granted when any real difficulty as to matter of law arises, but it has been held that, however difficult the point of law is satisfied that it is really unarguable, judgment will be granted”
A court will grant summary judgment only in a case where the applicant has shown that the respondent has no arguable case or in other words, a genuine dispute regarding any material fact and that it is entitled to judgment at law. Where the evidence available does not support the absence of a genuine dispute regarding any material issues, summary judgment may be declined.
The defendant was head of credit with the respondent. She was offered as a condition of her employment, a mortgage bond and the instalments were deducted directly from her salary. Allegations of misconduct were levelled against her resulting in her being relieved of her duties. The applicant claims that the respondent has fallen into arrears and that it is entitled to foreclose. The plaintiff contends that the defendant breached the terms of the Mortgage Bond by failing to effect payment of the monthly instalments payable and that she is in arrears with regards repayment of the loan. The defendant does not deny that she is in arrears but avers that summons was issued prematurely and that she did not consent to the reduction of her length of payment which increased her repayments. It is not clear what her basis for claiming that the summons is premature is. The plaintiff admits that the tenure of the mortgage bond was reduced to 10 years in terms of clause 9 of the mortgage bond and that
the reason for this is that the respondent had ceased to be an employee of respondent. Further that she acquiesced to the alteration of payment. The plaintiff denies that the tenure of the mortgage bond was reduced from 15 years to 10 years in order to harass the respondent and make it difficult for her to service the bond. There can be no question of summons to recover the loan being premature.
As regards the amount owing, it is trite that once a mortgage falls into arrears of monthly instalments, the whole amount outstanding on the loan becomes due and recoverable entitling the mortgager foreclose. The terms of the mortgage bond are clear. The defendant registered a mortgage bond in the sum of $165,600-00 in favour of the plaintiff. The defendant was required to pay $2639-00 per month commencing from February 2012 until the indebtedness was cleared. The statement produced shows clearly that the defendant is in arrears of her monthly instalments. After she was suspended from employment, the respondent was still required to service the mortgage bond. As at 1 December 2013, the defendant was in arrears by the sum of $14 239-00. The total amount due and payable including interest and other charges in terms of the mortgage bond was $ 164 255-81. The defendant in her plea avers that she has been religiously paying her instalments and is not in breach. This is an undecorated denial. The defendant has failed to adduce evidence of what she has paid. This assertion is not supported on the papers. No receipts have been attached to prove this fact. The evidence on record shows that she failed to service the bond and was therefore in breach of the contract. No effort has been made to state the amounts paid, the manner in which they were paid and when paid. The evidence on record does not reveal that she has been servicing the loan. The defendant failed to pay the monthly instalments due and payable in terms of the Mortgage Bond. The defendant submitted that there is a dispute regarding the actual amount owing. She has made no attempt to proffer different figures. There is simply no argument over the figures. The defendant has failed to demonstrate and illustrate the disputes that allegedly exist on the papers. The disputes are illusionary. This claim is unanswerable. This is the sort of case that I feel confident to deal with on the papers filed of record without the need for oral evidence.
The defendant’s assertion which is the subject of her counterclaim is that there are salary arrears due from the plaintiff that are adequate to clear the balance of the mortgage account. Where a counterclaim has been raised in defence to a claim in a summary judgment application, the court may not grant summary judgment where there is evidence suggesting
that the defendant’s counterclaim has the potential to counteract the plaintiff’s claim. The court is required to consider whether the defendant’s counterclaim presents evidence sufficient to defeat the plaintiff’s claim. The court should only grant summary judgment where it is satisfied that the counterclaim is devoid of any merit.
The applicant was suspended without salary and benefits from 8 October 2012 pending a hearing. A hearing was subsequently conducted and the applicant dismissed from employment with effect from 8 October. The applicant appealed and an appeals officer dismissed the appeal. She appealed to a Labour Officer and the matter was referred to an arbitrator. The arbitrator ordered the respondent to reinstate the applicant and conduct a hearing of the charges against her. The arbitral award reads as follows:
“1. The respondent shall reinstate the claimant with immediate effect but she will be suspended without pay and benefits.
2. The respondent shall conduct a hearing in respect of the facts of misconducts charged against the claimant within 14 days of the date of this award and should conclude the matter as soon as possible thereafter.
3. If the claimant is found not guilty of any misconduct or is found guilty but her contract of employment is not terminated, she shall be paid her full salary and benefits with effect from 8 October 2012.
4. The respondent shall pay the claimant’s costs in respect of this arbitration on the Legal Practitioner and client scale.”
A close interpretation of the award of Retired Justice Smith does not reveal that it automatically entitled her to salaries and benefits from October 2012 to October 2013 as asserted. This award has been misinterpreted. The impact of the award is that the respondent was to be reinstated with immediate effect. Thereafter she would be suspended without pay and benefits in terms of clause 1 of the award. In accordance with clause 2, a disciplinary hearing was supposed to be conducted with respect to the misconduct alleged within 14 days. A disciplinary hearing was conducted on 4 February 2014 and the defendant was found guilty and dismissed. In terms clause 3, if the claimant was cleared of the misconduct and her contract of employment not terminated, she would be paid her full salary and benefits. Clause 3 of the award makes the payment of arrear salaries conditional upon the outcome of the disciplinary proceedings to be conducted in terms of clause 2. The payments were only due and payable if the hearing did not result in her dismissal. If the defendant was reinstated, she would be entitled to her salary and benefits from 8 October 2012. Her contract of employment was terminated after she was found guilty of the misconduct. She is not entitled
to any salary and benefits for the period she was on suspension, thus after the award. The award only governs what was to happen after the reinstatement and subsequent hearing. The defendant’s counterclaim over arrear salary and benefits based on the award of the arbitrator has no merit. The counterclaim cannot constitute a defence to the foreclosure proceedings. It appears that the counterclaim is a deliberate ploy to delay the proceedings and cannot constitute a valid counterclaim to the plaintiff’s claim. It is a deliberate ploy to delay these proceedings.
The evidence on record is supportive of the plaintiff’s claim reveals that the defendant is in breach of the contract. The defendant has failed to show that she has a genuine dispute over the claim. I am not satisfied that the defendant has a good prima facie defence to the plaintiff’s claim. The plaintiff is entitled to the order sought. In the result it is ordered as follows:
“a) The sum of US$162, 844.01 (One Hundred and Sixty Two Thousand Eight Hundred and Forty Four United States Dollars and Eighty One Cents) being the full amount owed by the Defendant to Plaintiff under Mortgage Bond No. 7323/2011as of the 28th of February 2014 together with interest thereon at the rate of 15% per annum, with effect from the 28th of February 2014 to the date of final payment being made, capitalised monthly on the 1st day of each month.
b) Costs of suit on a Legal Practitioner and client scale .
c) That the mortgaged property known a Stand 40 Christon Bank Township of Christon Bank situate in the district of Bulawayo held under Deed of Transfer No. 5965/2011 dated 14th day of December 2011, be declared to be especially executable”.
Wintertons, applicant’s legal practitioners
Venturas &Samukange, respondent’s legal practitioners