This
is an application in terms of Rule 235 of the Rules of Court wherein the
applicant is seeking the following:
“It
is ordered that:
(1)
The affidavit of Shungu Andrew Toendepi is hereby admitted as part of the
record in case number HC 1475/09 with the annexures attached hereto; and
(2)
The costs of this application be costs in the main application.”
Actually
the affidavit that the applicant seeks to admit is that of Mr Earnest Chivaura
not that of Shungu Andrew Toendepi …,.
The
applicant averred that the reason why it was seeking to file an additional
affidavit and documents was that at the time the opposing papers were filed,
they had been battling for time to put their case together because not only was
the application issued in Bulawayo, when they were based in Harare, but they
also had come across the affidavit of Mr Earnest Chivaura who was very privy to
the facts of the matter which he had prepared and handed over to it but because
of its content it did not use it in its application.
This
is difficult to follow.
Be
that as it may, the applicant went on to allege that it was only after it had
filed opposing papers that it became aware of the existence of that affidavit
which Mr Earnest Chivaura had deposed to setting out the factual position of
the matter. It was that affidavit, along with other documents, that the
applicant sought to introduce as part of the record especially the agreement
entered into between Intaglio Enterprises (Pvt) Ltd and Guscole Investments
(Pvt) Limited (David Whitehead Consortium's vehicle) under which the shares
held by Intaglio Enterprises (Pvt) Ltd were sold to Guscole Investments (Pvt)
Limited.
The
applicant believed that it would be in the interest of justice, and, indeed,
for the benefit of the court that the documents be made available to the court.
The respondent had been made aware of the existence of the documents and had
been advised in advance that this application would be made to the court
seeking their admission. The applicant submitted that no prejudice would be
occasioned by the introduction of the documents.
The
respondent vehemently opposed the application to file an additional affidavit
and documents because the applicant always had the said affidavit by Mr Earnest
Chivaura in its possession. It had it before it filed its opposing papers.
Hence, it was not true for the applicant's deponent to suggest, in paragraph 4
of his founding affidavit that it was only after filing opposing papers that
the applicant became aware of Mr Earnest Chivaura's affidavit. The correct
position was that the respondent filed its main application, which it served on
the present applicant, on 24 September 2009. The following day i.e. 25 September
2009, the present applicant wrote a letter to Madondo concerning the
application. Madondo referred the letter and application to Mutamangira &
Associates Legal Practitioners who, on 2 October 2009, wrote and encouraged the
applicant to oppose the main application.
The
applicant had received Mr Earnest Chivaura's affidavit by 2 October 2009 which
it forwarded to the respondent by 5 October 2009. The applicant's deponent only
swore to his founding affidavit on 9 October 2009 – 7 days after the applicant
had it. Mr Earnest Chivaura's affidavit
was, in fact, deposed to on 30 September 2009. Consequently, the applicant's
explanation for failure to file the said affidavit with the opposing papers is
clearly false and misleading. That is particularly so when regard is had to the
supporting affidavit of Shungu Andrew Toendepi who deliberately conceals the
fact that he was the one who had faxed Mr Earnest Chivaura's affidavit to
Mujuru, the respondent's deponent, on 5 October.
Similarly,
the applicant failed to explain why the agreement between Intaglio Enterprises
(Pvt) Ltd and Guscole Investments (Pvt) Limited was not filed together with all
the other documents filed in opposition. The said parties entered into that
agreement in 2007.
There
is no truth in the assertion that the applicant only became aware of the
agreement after filing opposing papers.
Rule
235 of the Rules of Court was designed to assist a respondent who only becomes
aware of additional information after the filing of opposing papers.
The
applicant in this case has always been aware of the additional affidavit and
agreement it seeks to file belatedly. There was no acceptable explanation why
they did not file them timeously. The explanation it proffered was, in fact,
false and misleading. The application must, in the result, fail.
Consequently, it is ordered that this
interlocutory application be and is hereby dismissed with costs on an attorney
and client scale.
