DISTRIBUTABLE
(39)
Judgment
No. SC.46/06
Civil
Application No. 66/01
BARBRA
MASIWA v DONALD NYASHA MASIWA
SUPREME
COURT OF ZIMBABWE
HARARE,
SEPTEMBER 20 & OCTOBER 11 2006
H
Nkomo, for the
applicant
H.
Zhou, for the
respondent
Before:
GWAUNZA JA, In Chambers, in terms of Rule 34(5) of the Supreme
Court Rules.
This is an application filed on
behalf of the applicant, for reinstatement of her appeal in case No
66/01, and for condonation of
the late filing of her heads of
argument.
It
is common cause that the applicant was represented in case No 66/01,
which is a divorce action, by Mrs Mtetwa, who was then a
consultant
with Messrs Kantor and Immerman, legal practitioners.
It
is also common cause that Mrs Mtetwa left Messrs Kantor and Immerman
to become a partner in the firm of Messrs Mtetwa and Nyambirai,
which
was established on 1 June 2006. Mrs Mtetwa deposed to the founding
affidavit filed in support of this application.
The respondent has raised a
point in limine
which I propose to deal with first and, depending on my determination
on this point, may then proceed to consider the merits of the
application.
Point in limine
The respondent argues that this
matter is not properly before the Court, since Messrs Kantor and
Immerman, who were the applicants
legal practitioners in the main
divorce action, have not renounced agency on her behalf. Nor, the
respondent further argues, has
the firm of Messrs Mtetwa and
Nyambirai, who have filed this application on her behalf, filed a
notice of assumption of agency.
The contention is also made on
behalf of the respondent, that the applicant herself has not deposed
to an affidavit to support Mrs
Mtetwas assertion that the former
had instructed the firm of Messrs Mtetwa and Nyambirai to take up the
matter on her behalf.
These
assertions are not, and cannot on the papers be, denied. Mrs
Mtetwas explanation, in so far as I can understand it, is
that the
present application is separate and distinct from the main divorce
action, and therefore constitutes fresh instructions
in a new
application. That being the case, it is argued, the firms of
Messrs Kantor and Immerman and Messrs Mtetwa and Nyambirai
can only
renounce and assume agency, respectively, if the application is
successful and the appeal is reinstated.
I
have some difficulty in following this argument. The applicant noted
an appeal against a High Court judgment in a divorce action.
She
failed, for whatever reason, to file her heads of argument and the
appeal was deemed to have lapsed. A letter to this effect
was sent
to the applicants legal practitioners of record, Messrs Kantor &
Immerman, who held the applicants brief to prosecute
her appeal to
the Supreme Court. The legal practitioner charged with the task left
the firm of Messrs Kantor and Immerman to join
another newly
established firm. The applicant was invited, in writing, by Messrs
Kantor and Immerman to indicate whether she preferred
that firm to
continue representing her, or whether she wished her particular legal
practitioner, Mrs Mtetwa, to take the matter with
her to the new
firm. On the evidence before the Court, Mrs Mtetwa left before the
applicant had made known her preference. As far
as this court was
concerned therefore, Messrs Kantor and Immerman remained the
applicants legal practitioners. That being the
case, a notice of
renunciation of agency sent to the court when this firm handed over
the applicants record (as it must have)
to Messrs Mtetwa and
Nyambirai, would not have been out of place. Nor would have been a
notice from Messrs Mtetwa and Nyambirai
to the effect that they had
assumed agency on behalf of the applicant.
The Court, going by its Rules,
normally accepts the notices of renunciation and assumption of
agency, as indications of a litigants
choice of legal practitioner
where a change happens in the process of prosecuting his/her case.
This is for the convenience of the
court and allows for order and
efficiency in the prosecution of legal proceedings. I am not
satisfied the present application is
so divorced from the main
divorce action, as to render the filing of these notices,
unnecessary.
As
it is, there is nothing in the papers before me to indicate that the
applicant did indeed abandon Messrs Kantor and Immerman
and took up
with the firm of Messrs Mtetwa and Nyambirai. As argued for the
respondent, the applicant could at the very least
have deposed to an
affidavit confirming Mrs Mtetwas, assertion that she (the
applicant) had indeed instructed Messrs Mtetwa and
Nyambirai to
represent her.
Be
that as it may, I have been urged, in the alternative and in my
discretion, to condone the failure by Messrs Mtetwa and Nyambirai
to
file a notice of assumption of agency in this matter.
It
is true that the applicant herself is in no way to blame for the
failure by Messrs Mtetwa and Nyambirai to file a notice of assumption
of agency on her behalf, nor for that matter the failure by Messrs
Kantor and Immerman to file a notice of renunciation of agency.
Legal practitioners normally do not require specific instructions to
that effect. All that the applicant was required to do was
indicate
her preference as to which of the two firms was to represent her in
view of the changes that had taken place. It would
therefore be an
injustice to the applicant if the consequences of this default were
visited on her. For this reason I will condone
the non-filing of the
notices in question.
Merits
It has been submitted and not
seriously challenged that the failure to file the applicants heads
of argument was attributable in
the main to the confusion that
attended on the movement of Mrs Mtetwa from Messrs Kantor and
Immerman to the new firm. This explanation
I find to be plausible
under those circumstances. If any blame for the default is to be
apportioned, it would in my view be between
the applicants
erstwhile and present legal practitioners. While the courts have in
some cases extended to the litigant the blame
attributable to his or
her legal practitioners for a default of this nature, I do not
believe this is such a case.
As for the applicants
prospects of success on the merits, I am persuaded, among other
submissions, by the contention made on her
behalf that the court a
quo may have
misdirected itself in granting to the applicant a specific amount of
money and not a percentage of the value of the property
in question,
as is normally done. The possibility of this court reaching a
different decision on this and the other related arguments
advanced
on behalf of the applicant cannot, in my opinion, be discounted.
The
application accordingly succeeds and an order in terms of the draft
is hereby made.
Mtetwa & Nyambirai,
applicants legal practitioners
Gill,
Godlonton & Gerrans,
respondent's legal practitioners