The
first respondent instituted proceedings against the two applicants in
the Magistrates Court seeking, inter alia, an order for their
eviction from office premises at Main Court, Bulawayo. The applicants
entered appearance to defend whereupon the first respondent made an
application for summary judgment.
The
Magistrates Court granted summary judgment on the 4th
of
March 2010 paving the way for eviction. The two applicants appear to
have done nothing about the matter for sometime because it was not
until the 5th
of
May 2010, exactly two months later, that they purported to file a
notice of appeal in this court under case number HCA88/10. The
applicants were then represented by their current legal practitioners
who should have known that they were way out of time to note an
appeal.
Days
later, on the 11th
of
May 2010, the applicants filed something that looked like an
application for condonation for the late filing of a notice of
appeal. It was neither a chamber application nor a court application
although the filing cover bears the heading of a court application.
The said application was placed before my brother NDOU J on the 21st
of
May 2010.
He
did not grant the order sought but raised certain queries.
That
application was not prosecuted and the applicants appear to have
abandoned it as they neither attended to the queries nor amended what
was clearly a defective application. On the 27th
June 2010 the Messenger of Court served the applicants with a notice
of eviction which was due to take place on the 5th
July 2010. Again, the applicants did not act immediately and were
duly evicted on the set date.
Two
days after eviction, on the 7th
July 2010, the first applicant, Thabani Moyo, deposed to an affidavit
in support of an urgent application for a stay of execution of the
eviction order well knowing that the eviction had taken place.
The
application was put together and certified urgent by a legal
practitioner, Yvonne Mbayiwa, who certified that:
“The
Applicants are due to be evicted from a property in question (sic) by
the first Respondent who has not yet fully established his right in
the property because of the pending application for condonation. This
application has the effect of condoning the late filing of the appeal
and subsequently suspending the first Respondent's right in the
property.”
If
it was not dead serious this would be a source of amusement.
What
Ms Mbayiwa meant by this can, at best, be left to conjecture, and, at
worst, it was misleading the court in the worst possible manner.
Legal practitioners, as officers of the court, are required by the
rules to certify a matter urgent after applying their own mind and
judgment to the circumstances of the matter. Having done so, they
must reach a personal view which they pass to a judge in their honour
and name that the matter is urgent; General Transport and Engineering
(Pvt) Ltd and Others v Zimbabwe Corp (Pvt) Ltd 1998 (2) ZLR 301, 302
E-F; Musunga v Utete and Another HH90-03…,.
Where
a lawyer could not reasonably entertain the belief that he/she
professes in the urgency of the urgency of the matter he/she risks a
conclusion that he/she not only acted dishonestly but also
wrongfully. Such a conclusion is normally visited with costs de
bonis propiis against those legal practitioners.
There
is no doubt that Ms Mbayiwa did not satisfy herself as to urgency
before appending her signature on the certificate.
In
any event, where in the world has a mere application for condonation
given rise to conclusions made by the legal practitioner in the
certificate?
Be
that as it may, the applicants proceeded to file this application on
the 9th
of
July 2010 - four days after their eviction. This did not deter them
from seeking an interim relief interdicting the first respondent from
evicting them and that if eviction has taken place they should be
restored pending an application for condonation which had already
been rejected.
At
the time the applicant lodged this application they had already been
evicted. They did not disclose this to the court. Not only that,
their application for condonation had, for all intents and purposes,
been abandoned. Indeed, legal practitioners have a duty to restrain
their clients from abusing the process of the court and from making
untruthful assertions and yet this application is littered with not
only wrong conclusions of the law but outrightly mendacious
statements.
This
application was brought on an ex parte basis with the obvious
intention of hoodwinking the court and snatching a judgment. In an ex
parte application, the utmost good faith must be observed by
litigants and the courts frown at such applications where they are
characterised by mala fides and material non disclosures as in this
case. Graspeak Investments (Pvt) Ltd v Delta Operations (Pvt) Ltd and
Another 2001 (2) ZLR 551. See also HERBSTEIN and Van WINSEN, The
Civil Practice of the Supreme Court of South Africa, 4th
Edition…,.
I
must warn legal practitioners who certify such matters as urgent when
they have not bothered to apply their minds at all to the facts of
the matter or even read the papers and those who saddle the courts
with such dishonest applications that in future the courts will not
only visit them with costs de bonis propiis but also direct that they
should not recover any fees from their clients.
I
have exercised my discrection in favour of the two offending
practitioners in this matter in recognition that they are very junior
professional assistants.
In
the result, I come to the conclusion that the matter is not urgent
and it is also without merit. Accordingly, the application is
dismissed with costs on an attorney and client scale.
