CHATUKUTA J:
On 19 January 2010 the applicant filed an application for condonation
for the late filing of rescission of judgment granted in case NO. HC 6889/07 on
27 February 2008. The application was
opposed by the respondent.
On
the date of hearing, the applicant withdrew the application and tendered costs
on an ordinary scale. However, the
respondent prayed for an order for costs de
bonis propriis against the applicant's legal practioner, Mr Diza. The
respondent contended that Mr Diza's conduct in handling the matter amounted to
professional negligence and dishonesty.
I ordered that Mr Diza bear the costs for the withdrawal de bonis propriis. These are my reasons for the order.
The
background to the application is that the respondent filed a court application
on 30 November 2007 for an order compelling cession of rights and interests in
Stand No 1691 Unit M, Seke, Chitungwiza pursuant to an agreement between the
respondent and one Zivanai Madzinga. Service
of the application was effected on 9 December 2007. Zivanai
Madzinga did not oppose the application and on 27 February 2008, judgment was
granted in default.
However,
it turned out that Zivanai had died on 18 January 2008 before the order was
granted. The applicant brought the
present proceedings in her capacity as the executrix dative of the estate of
the Late Zivanai Madzinga. The applicant
contented that she became aware of the default judgment on 20 October 2009when
she was served with an urgent chamber application brought by the respondent in
case No. 5033/09.
The
respondent contended that, according to an application for rescission of
judgment filed by the applicant in case No HC 3708/08, the applicant had in
fact become aware of the default judgment in June 2008 and not in October
2009. It was contended that the
applicant was clearly lying and the falsehoods had been raised with the
applicant's legal practitioner who chose not to take the appropriate action to
deal with the falshoods.
It
is apparent that the applicant lied to the court that she only became aware of
the default judgment in case No. HC 6889/07 on 20 October 2009. On 18 July 2008 she indeed filed a court
application for the rescission of the judgment in case No HC 3708/08. She deposed in the founding affidavit to that
application that on 4 April 2008 she became aware of the fact that the
respondent had filed a court application when she attended to the Seke South
District Offices, Chitungwiza. She only
became aware of the default judgment on 16 June 2008 after her legal
practitioners had made numerous visits to the High Court to establish the
status of the application. She then
proceeded to file the application for rescission. The application was dismissed on 8 October
2009 for want of prosecution upon
application by the respondent in case No. HC 1516/09.
Upon
being served with the present court application on 19 January 2010, the
respondent's legal practitioners wrote to the applicant's legal practitioners
raising issue with the falsehoods in the application and the negligent manner
in which the legal practitioners were dealing with the matter. The letter raised the following concerns:
“We wish to bring to your attention that you are
deliberately making falsehoods in your application and definitely abusing Court
process. Kindly be advised that your
client duly filed an application for Rescission of Judgment on the 16th
July 2008 with the assistance of her then Legal Practitioners, Messrs Mungeni
Legal Practitioners. She never pursued
her application after we had duly filed our client's opposing papers. We subsequently filed a Chamber application
for dismissal of your client's application for want of prosecution since we had
given her several reminders to file her Answering Affidavit or set the matter
down. Our said Chamber Application was
duly granted and her application was dismissed.
What is more surprising is that you have proceeded to
file the instant application despite full knowledge of these past events. Surely you cannot claim that your client did
not advise you accordingly since in our urgent chamber application filed under
case no HC 5033/09 and to which you duly filed your client's opposing papers,
this position was clearly set out and the necessary documentary proof including
inter alia, your client's court
application for rescission of judgment under case No HC 3708/08 and all the
orders were duly attached.”
Despite
these concerns, Mr Diza persisted
with the application with the falshoods therein contained. He was warned of the consequences of
proceeding with the application and that is the respondent would pray for costs
de bonis propriis but he proceeded
regardless of the warning.
There is plethora of cases that warn
legal practitioners to desist from acting negligently and in a highly
reprehensible fashion least they are ordered to bear costs of any litigation de bonis propriis. (See Doelcam
(Pvt) Ltd v Pichanick & Ors 1999
(1) ZLR 390 (HC), Matamisa v Mutare City
Council (Attorney-General Intervening) 1998 (2) ZLR 439 (SC), Zimbabwe Banking Corp Ltd v Masendeke
1995 (2) ZLR 400 (SC), Omarshah v Karasa,
1996 (1) ZLR 584 (HC), Masama v Borehole
Drilling (Pvt) Ltd 1993 (1) ZLR 116 (SC), Techniquip (Pvt) Ltd v Allan Cameron Engineering (Pvt) Ltd 1994 (1)
ZLR 246 (SC) Gondwe v Bangajena, 1988
(1) ZLR 1 (HC)).
It
is my view that Mr Diza's conduct
warrants that he be penalised for exposing not only the respondent but also his
client to considerable prejudice. Mr Diza had been the applicant's legal
practitioner in No. HC 5033/09 when the applicant opposed the respondent's
urgent chamber application. The urgent
chamber application contained all the information that would have assisted him
in ascertaining the averments that had been made by the applicant in previous
litigation. The order dismissing the
court application in case No 3708/08 was attached to the founding affidavit. All
that he needed to do was to check with the references to ascertain when the
applicant first became aware of the default judgment. The order itself was an indication that the
applicant had previously instituted proceedings in relation to case No HC
6887/07. As he rightly conceded, he was
negligent in not having conducted proper research. The letter from the respondent's legal
practitioners should also have prompted him to be cautious and to reconsider
the application and then adopt the proper procedure in addressing the issued
contained in that letter.
In
the result it is ordered that the costs of the application shall be borne by Mr
Diza of Musunga and Associates de bonis
propriis.
Musunga and Associates, applicant's
legal practitioners
Sakutukwa &
Partners, respondent's legal practitioners
