CHEDA J: This is an urgent application seeking
to suspend the construction and development of a maternity and gynaecological
clinic or medical suite at stand number 18 Hillside, Bulawayo.
The
facts of the matter are that applicants are an elderly couple residing at 54
Cecil Avenue, Hillside Bulawayo. First
respondent is a consultant obstetrician and Gynaecologist. Second respondent is the local authority in
charge of administering the affairs of the City of Bulawayo.
Applicants
and respondents are adjacent neighbours and are separated by a durawall. Sometime in May 2011, first respondent
notified respondents of his intention to construct and develop a clinic. This, was after second respondent advised him
to notify his immediate neighbours as per its requirements where one intends to
put up a structure or embark on a development which may adversely affect his
neighbours.. Applicants lodged an
objection to the said intended development.
Their objection was considered by second respondent which however,
overruled them and proceeded to grant applicant permission to construct and
develop a clinic.
Applicants
were not happy with second respondent's decision and filed an application for
Review of second respondent's decision under case number HCR 132/11. This application is still pending. In order to stop the further development
applicants filed this urgent chamber application. It is their argument that the
construction of this clinic next to their property will:
(1) affect the peace and quiet atmosphere of
the suburb,
(2) introduce communicable diseases and
(3) encourage undesirable elements of
society such as thieves and some such other unlawful activities.
Both respondents opposed this urgent
application. Mr P Ncube for both respondents raised two points in limine namely:
(1)
Urgency
It
is his argument that the applicants have not adequately shown that the matter
is urgent as they did not show that irreparable harm will result if it is not
dealt with urgently. Under the ordinary
course of events all matters coming before the courts are as a result of one
dispute or the other which dispute has an inherent prejudice to the other
party. Therefore, in an urgent
application in order to succeed, applicant must show that, in addition to
either impending or existing prejudice which if not urgently acted upon
irreparable harm will result, see CABS v
Ndlovu HH 3/2006. The urgency of a
matter as envisaged by the rules of this court is that applicant should show
that he stands to suffer either actual or potential prejudice which is
irreparable. Since an urgent application
takes precedence on the court's roll, applicant must, therefore, justify his
desire to be accorded first preference ahead of others. This point was made clear in Madzivanzira and Others v Dexprint
Investments (Pvt) Ltd and Another 2002(2) ZLR 316.
Applicant's certificate of urgency
has failed to justify the urgency as laid down in the cases cited (supra).
It is the duty of applicant to put the court in its confidence by
clearly showing the irreparable harm, it can not leave it to the court's
conjecture. The court can only exercise
its discretion in determining the urgency of the matter at hand and that
discretion can only be exercised on the basis of facts, see Triangle Ltd v Zimbabwe Revenue Authority
HB 12/11 and Hove v Commissioner General
Zimra HB 29/11.
REVIEW
(2) The second point raised is the validity
of the application for Review.
Respondents have argued that the application was filed out of time.
Review applications are governed by Order 33
Rule 259 of the High Court Rules, which reads:
“ORDER 33
Reviews
259 Time within which
proceedings to be instituted
Any
proceedings by way of review shall be instituted within eight weeks of the
termination of the suit, action or proceedings in which the irregularity or
illegality complained of is alleged to have occurred:
Provided that the court
may for good cause shown extend the time.”
The eight weeks expired on the 30
September 2011 and the Application for Review was filed on the 15th
November 2011. It was, therefore, way
out of time. The proviso in Rule 259 allows the applicant to apply for the extention
of time on good cause shown.
On the 18th November 2011
respondent's legal practitioners wrote a letter to applicants wherein they
advised them of the defect of their Application for Review. They advised them that the said application
was filed out of time and that they should, therefore, have first applied for
condonation of the late filing of the said Review Application. They, went further and courteously advised
then to withdraw the said Review Application.
In the same letter they asked them to do so by the 22 November 2011
failing which they would file their opposing papers and ask for costs de bonis propriis. Needless to say that applicants' legal
practitioners did not heed this advice.
The correct legal position is that for a court to hear the Application
for Review where it has been filed out of time, an Application for Condonation
must not only be filed but must be filed, determined and granted first. There is a plethora of authorities
emphasising this time-honoured principle in our law. In Mlondiwa
v Regional Director of Education, Midlands Province N. O and Minister of Education
HB 19/94 MANYARARA, AJ held that where an Application for Review filed in
terms of R259, is to be heard, an application for condonation must be filed and
granted first. Such an application
precedes the main application. The
non-compliance of the Rules must be condoned by the court or Judge first. This is the law. The Supreme court, has, emphasised that
principle in Matsambire v Gweru City
Council S 183/95 and Forestry
Commission v Jedias Moyo 1997 (1) ZLR 254(S) amongst other cases.
In casu, applicants did not comply with Rule 259 in particular the proviso therein. The current application is predicated on the
Application for Review. The said
application, however, has fallen foul of the requirements of such application. The non-compliance is no doubt fatal and can
not, therefore, be revived as it is in my view still born. In other words there is no Application for
Review to talk about.
The position in this matter,
therefore, is that the urgent chamber application before me is a nullity as
there is no base for it to stand on in view of the non-compliance with the
rules regarding the application for an extension of time. This renders this application fatally
defective and invalid.
Such a defect is incurable as stated
by Lord Denming that eminent jurist and the doyen of English Law, in McFoy v United Africa company Ltd 1961 3
ALLER 1169 at 1172 where he stated;
“every
proceeding which is founded on it is also bad and incurably bad. You can not put something on nothing and
expect it to stay there. It will
collapse.”
See, also Hattingh v Pienaar 1977(2) SA 182 (0) and Jensen v Avacalos 1993 ZLR 216.
There has been an attempt to cure
this defect by an application for condonation filed on the 24th
November 2011. This defect can not be
cured by a mere application of this
nature, as the application should not only be filed, but, should be filed and
granted first thereby authorising applicant to apply for review of the
proceedings complained of.
COSTS
Mr P Ncube by letter of the 18th November 2011 advised
respondent's legal practitioners to withdraw their Review Application with a
threat for punitive costs
de bonis propiis in
the event of them not complying.
Unfortunately, applicants' legal practitioners in their wisdom or lack
of it were not persuaded. They persisted
with this application until the day of the hearing. It was during the hearing that a half hearted
attempt was made to concede that indeed a wrong procedure was used.
The general rule with regards to costs is that
costs follow the event. The awarding of
costs is the discretion of the court and such discretion should be judicially
exercised, see Levben Products (Pvt) Ltd
v Alexander Films (S.A) (Pty) Ltd 1957 (4) SA 225 (S.R) at 227 and Union Government v Heiberg 1919 A.D 477
at 484.
The common practice in the awarding
of costs de bonis propriis is where
the legal practitioner is guilty of improper or unreasonable conduct, or lack
of bona fides. What falls for determination here is whether
or not Mr Z. Ncube is indeed guilty of such
conduct. In making such determination,
the following are some of the factors which in my view should be taken into
account;
(1) the lawyers' age,
(2) his qualifications,
(3) his experience and
(4) his general character and attitude
towards his work.
Mr Z Ncube is a recently qualified legal practitioner with very little
experience, to my knowledge. He is
fairly young and strikes me as a determined and ambitious young lawyer. It is for that reason that his burning desire
to win an argument at all costs tends to cloud his judgment thereby depriving
himself of tapping from wise counsel hence his failure to heed Mr P. Nucbe's advise to withdraw his urgent
chamber application before dealing with his Application for Review. This, in my view, explains why he was
determined to fight for his clients even against all odds. His motives were, therefore, beyond
reproach. He is, however, guilty of a
considerable amount of muddled thinking which led him to act incorrectly.
In my view the less experienced the
lawyer is, the more sympathy he should receive from the courts as opposed to
the more experienced lawyers whose actions may be viewed as deliberate.
In view of his entirely innocent
motive, it is one of those cases where in the exercise of my discretion, he can
be spared the agony and financial burden of costs de bonis propriis, see Nkosi
v Caledonian Insurance Company 1961 (4) SA 649 (N) 663. In view of the time wasted and costs incurred
by respondents in this matter which could have been avoided, applicants cannot
avoid punitive costs.
Mr Z Ncube is however, warned to be more prudent in future. The application, therefore can not pass the
first hurdle of the points in limine raised
in this application.
Accordingly the following order is
made:
(1) The application be and is hereby
dismissed
(2) Respondents be and are hereby awarded
costs as between attorney and client scale.
Phulu and Ncube,
applicants' legal practitioners
Coghlan & Welsh,
respondents' legal practitioners.
