MATHONSI J: The applicant has approached this court
on a certificate of urgency seeking a provisional order in the following
terms:
“TERMS OF THE FINAL ORDER (SIC)
(a) That execution of the order by
consent entered on the 26th of November 2012 be and is hereby
stayed.
(b) The applicant is hereby granted leave to
file application for recession (sic) of judgment of the order within five (5)
days after the grant of this order.
(c) The respondents to pay costs if they
oppose the application.
TERMS OF INTERIM ORDER (SIC)
Pending the determination of the matter, the applicant is
granted the following relief:
(a) The third respondent be and is hereby
interdicted from executing order by consent entered on the 26th of
November 2012.
(b) In the event that this order is granted
after attachment the third respondent be and is hereby ordered to restore
position (sic) of the motor vehicles in the applicant's custody.”
Apart from the obvious grammatical frailties in the wording
of the relief sought by the applicant it is apparent that the couching of the
provisional order is at variance with the rules of this court. Rule 247 (1) of
the High Court of Zimbabwe Rules, 1971 is of peremptory application. It
provides:
“Subject to subr (3), a provisional order shall-
(a) be in Form 29 C; and
(b) specify upon whom copies of the provisional
order and the application, supporting documents, shall be served and if service
is not to be effected in terms of these rules, how service is to be effected;
and
(c) specify the time within which the
respondent shall file a notice of opposition if he opposes the relief
sought.”
The draft provisional order which I have cited above is not
in Form 29 C and the applicant's counsel appears to have invented his own form in
complete disregard of the rules. Indeed the bulk of urgent applications being
filed in court of late contain varying types of draft provisional orders not
provided for in the rules. Legal practitioners now believe that they are at
liberty to come up with their own inventions of Form 29 C ignoring the
peremptory provisions of r 247 (1).
It is amazing how so many can fail to simply reproduce or
copy what is provided to them by the rules. The time has come to remind legal
practitioners of the need to adhere to the rules in formulating draft orders
and indeed in drafting other processes. The forms provided for in the rules are
there for a purpose and not decorative in nature.
Be that as it may, the genesis of this matter is that the
first respondent sued the applicant and the second respondent, his driver, in
HC 10768/11 for damages arising from bodily injuries, pain and suffering and
medical expenses as a result of a road accident which occurred on 4 April 2011.
The first respondent had been cycling when he was knocked down by a commuter
omnibus belonging to the applicant and driven by the second respondent.
In that action, the first respondent alleged that the
accident was caused by the negligence of the applicant's driver who was acting
within the scope and course of his employment and sought damages of US30 000-00
for pain and suffering, US$31-00 transport costs and US$2 599-00 for medical
expenses.
Both the applicant and the second respondent contested the
action alleging that the accident was instead caused solely by the negligence
of the first respondent. They were represented by legal practitioners of their
choice, Messrs C Mpame & Associates.
When the matter came up for the pre-trial conference of the
parties before a judge on 27 July 2012 it was postponed “for further engagement
by consent of both parties.” It was again postponed on 19 October 2012 “for
further discussion.” Clearly the parties were engaged in negotiations to settle
the dispute.
The negotiations led to the filing of a consent order by
the parties on 26 November2013. V.C. Maramba of Thondlanga & Associates
signed the consent on behalf of the first respondent while B M Machanzi of C
Mpame & Associates signed on behalf of the applicant. An order was then
granted by consent by DUBE J in the following:
“IT IS ORDERED BY CONSENT THAT:
1. The first defendant
(Alfred Mamvura) shall pay to the plaintiff an amount of US$2000-00 in special
and general damages arising out of a road accident on or before the 30th
of June 2013.
2. The second defendant
(applicant in casu) shall pay to the plaintiff an amount of US$8
000-00 being special and general damages and future medical expenses on or
before the 31st of January 2013.
3. Each party to meet its
costs of suit.”
It now turns out that the applicant did not satisfy the
judgment resulting in the first respondent issuing a writ against his property
and the attachment of such property on 26 February 2013. It is remarkable that
Mpame & Associates have not renounced agency on behalf of the applicant.
This prompted the applicant to make this application through a different firm
of lawyers seeking relief aforesaid.
In his amazingly brief founding affidavit, the merits of
the application are dealt with in essentially five short paragraphs which read:
“6.
I was not aware of the judgment in the matter yet I filed all proceedings and
even filed summary of evidence in case number 10768/11.
7.
A perusal of the record through my legal practitioners of record depicts that,
all pleadings were done and matter was set down for pre-trial conference before
Justice DUBE.
8.
Instead of proceeding to trial, I am advised my then legal practitioners filed
a consent order and same was not shown or explained to me. I did not authorise
them to consent to the judgment as I have a defence to the claim. I have
attached hereto a copy of my plea to the case marked annexure “D”.
9.
I will suffer irreparable harm if the Deputy Sheriff is not barred from
removing my property, as I may not be in a position to recover the said
property, from the first respondent who is of very little means.
10.
I need to file an application for recession (sic) of the purported judgment in
case number 10768/11 after my legal practitioners of record have (sic) allowed
enough time to complete compiling grounds for rescission of judgment.”
It is unbelievable that this is all the applicant has to
say in support of an application which seeks to overhaul a court order which
was granted by consent. He insinuates that his chosen legal practitioner is
guilty of improper conduct of consenting to an order without his authority, yet
he does not find it necessary to explain how this came about. More importantly,
no affidavit has been elicited from that legal practitioner explaining his
involvement and how and why he acted without his client's mandate.
Significantly, the same legal practitioner still represents
the applicant in that matter because he has not renounce agency. The applicant
does not even suggest that he has taken the issue up with that legal
practitioner to seek redress or that he has reported the matter to the Law
Society of Zimbabwe, that body charged with superintending and overseeing the
activities of legal practitioners in this country. In fact the applicant's
deposition is deliberately silent on all those monumental issues.
In addition to that, although the applicant's property was
placed under attachment on 26 February 2013 and he was given notice that it
would be removed for sale in execution on 5 March 2013, not only did he file
this application on the very last day, 4 March 2013, he also has not even filed
an application for rescission of the judgment he complains about. He in fact
wants the luxury of being given more time for his legal practitioners “to
complete compiling grounds for rescission of judgment.”
I have already stated that the record in HC 10768/11 shows
that the parties were engaged in negotiations over a period of time hence the
postponement of the pre-trial conference on more than one occasion. This
observation is confirmed by the first respondent's opposing affidavit which
affirms that the parties (with the applicant firmly in attendance), held a
series of meetings from 17 July 2012 culminating in the consent order being
granted in the applicant's presence on 26 November 2012.
If the applicant was aware of the existence of the order
from 26 November 2012, then he is out of time to make an application for
rescission of judgment. Not only that, this application is punctuated by
material non-disclosures. It has been stated on times without number that the
utmost good faith must be displayed by litigants approaching this court in this
manner and that all material facts must be disclosed to the court: Graspeak
Investments v Delta Corporation (Pvt) Ltd 2001
(2) ZLR 551 (H); N & R Agencies (Pvt) Ltd & Anor
v Ndlovu Anor HB 198/11; Shungu Engineering (Pvt)
Ltd v Songondimando & Ors HH 99/12.
I am in total agreement with the remarks made by NDOU J in Graspeak
Investments (supra) at p 555 C where the learned judge
said:
“The courts should, in my view, discourage urgent
applications, whether ex parte or not, which are characterised by
material non-disclosures, mala fides or dishonesty. Depending on
circumstances of the case, the court may make adverse or punitive orders as a
seal of disapproval of mala fides or dishonesty on the part of
litigants.”
It is now in vogue for litigants who find themselves with
court orders against them which they would have consented to or who have
compromised their cases to simply change legal practitioners and then bring
applications to overturn such court orders or processes without even abiding by
the rules of court dealing with change of legal representation.
In my view this is not only mala fide and
dishonest in the extreme, it is also a shameless abuse of court process which
should be discouraged.
In casu, it is clear that the applicant reached a
compromise with the first respondent which led to the reduction of the latter's
claim from more than US$30 000-00 to US$8 000-00. An order to that effect was
then granted by consent. He cannot come back now seeking to upset the apple
cart using half-truths, falsehood and outright dishonesty. He must just honour
the court order.
I therefore come to the inescapable conclusion that this
application is devoid of merit and as it is also an abuse of process which is
frowned upon by the courts, it must also come heavy on the pocket. The
applicant must therefore bear the costs of his misadventure on a punitive
scale.
Accordingly the application is dismissed with costs on a
legal practitioner and client scale.
C Mutsahuni Chikore & Partners, applicant's
legal practitioners
Thohlanga & Associates, 1st
respondent's legal practitioners
