This was an urgent chamber application. At the end of the hearing, I dismissed it with costs on a legal practitioner-and-client scale. I deprecated the conduct of the applicant's legal practitioners.The purported urgent chamber application was not only bad in many respects, it was incurably bad.What I was particularly concerned ...
This was an urgent chamber application. At the end of the hearing, I dismissed it with costs on a legal practitioner-and-client scale. I deprecated the conduct of the applicant's legal practitioners.
The purported urgent chamber application was not only bad in many respects, it was incurably bad.
What I was particularly concerned with were the patent falsehoods in the applicant's papers.
Furthermore, there was an apparent disconnection between the order sought, the facts laid out in support thereof, and the allegations in the certificate of urgency.
Here are the details.
(a) Application Defective
In the case of Marick Trading (Private) Limited v Old Mutual Life Assurance Company of Zimbabwe (Private) Limited & Anor HH667-15 I prefaced my judgment with the following remarks:
“Legal practitioners should keep abreast with, and heed pronouncements from the courts. It is a duty. The determination of cases, on the merits, should not be impeded or stalled unnecessarily for failure to follow the rules. This was the case in this matter.”
It was also the case in the instant matter.
In Marick Trading (Private) Limited v Old Mutual Life Assurance Company of Zimbabwe (Private) Limited & Anor HH667-15 I went on to say…,.:
“The point in limine by the respondent was that there was nothing before me to determine because the applicant's application was neither in Form No.29 nor Form 29B as required by Rule 241(1) of the Rules of this Court.
Rule 241 reads:
'(1) A chamber application shall be made by means of an entry in the chamber book and shall be accompanied by Form 29B duly completed, and, except as is provided in subrule (2), shall be supported by one or more affidavits setting out the facts upon which the applicant relies: Provided that, where a chamber application is to be served on an interested party, it shall be in Form No.29 with appropriate modifications.'…,.
In casu, the applicant's urgent chamber application was one to be served. Indeed, it was served.
So it had to be in Form No.29. But it was not. It was also not in Form No. 29(B) either. It read like this:
'TAKE NOTICE that the Applicant hereby makes an Urgent Chamber Application for an order in terms of the draft order annexed to this application and the accompanying affidavits and documents will be used in support of the application.'
I observe, in passing, that, the format of the application used by the applicant seems so popular among legal practitioners in this jurisdiction. I do not know where it comes from. But, all that is required of litigants is simply to copy and paste either Form 29B or Form 29, the latter with appropriate modifications if the application is a chamber application that needs to be served on interested parties.”
It was exactly the same situation obtaining in the instant matter.
The applicant's urgent chamber application read like this:
“BE PLEASED TO TAKE NOTICE THAT an Application is hereby made on an urgent basis and the accompanying affidavits and documents will be used in support thereof.”
Counsel for the applicant tried to save the situation, firstly, by arguing, that, the format used by the applicant was the “…, appropriate modification…,” contemplated by the proviso to Rule 241(1).
But, it could not possibly be.
Before you modify the forms prescribed by the Rules, you got to adopt them first. That is what the Rules command.
As with many other similar applications that have been rejected by the courts before, the applicant in casu adopted neither of the Forms.
At p3 of my cyclostyled judgment in Marick Trading (Private) Limited v Old Mutual Life Assurance Company of Zimbabwe (Private) Limited & Anor HH667-15, I re-stated what I believe is trite:
“Form 29 is for use in ordinary court applications, or those chamber applications that require to be served.
One of its most important features is that it sets out a plethora of procedural rights. It alerts the respondent to those rights. For example, in notifying the respondent of the court application, the form also notifies the respondent of his right to oppose the application and warns him of the consequences of failure to file opposing papers timeously.
On the other hand, Form 29B, for simple chamber applications, requires, that, the substantive grounds for the application be stated, in summary fashion, on the face of that form.
Nothing can be more elementary.
The courts, both in this jurisdiction and elsewhere, have repeatedly drawn attention to the need to follow the rules on this. It is not a 'sterile' argument about forms: Per HLATSHWAYO J in Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H) at p103C.
I sample some of the pronouncements by the courts…,.”
I then went on to cite and quote pertinent remarks in the cases of Simross Vintners (Pty) Ltd v Vermeulen; VRG Africa (Pty) Ltd v Walters t/a Trend Litho; Consolidated Credit Corporation (Pty) Ltd v Van Der Westhuizen 1978 (1) SA 779 (T); Jensen v Acavalos 1993 (1) ZLR 216 (S); Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H); Richard Itayi Jambo v Church of the Province of Central Africa & Ors HH329-13; Minister of Higher & Tertiary Education v BMA Fasteners (Private) Limited & Ors HB42-14; Base Minerals Zimbabwe (Private) Limited & Anor v Chiroswa Minerals (Private) Limited & Ors HH559-14.
So, counsel for the applicant could not save the application on the basis that the applicant's format was the appropriate modification contemplated by the Rules.
She changed tack and applied for condonation.
But, if the application was a nullity ab initio, there was nothing to condone.
At any rate, no good and sufficient cause was proffered why the applicant had, in the first place, refrained from simply “copying and pasting” the prescribed forms.
As the Supreme Court said, in Jensen v Acavalos 1993 (1) ZLR 216 (S), albeit in relation to a defective notice appeal, per KORSAH JA…,:
“The reason is that a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad, but incurably bad, and, unless the court is prepared to grant an application for condonation of the defect and to allow a proper notice to be filed, the appeal must be struck off the roll with costs….,.”
In casu, I was not prepared to grant condonation.
The application was dogged by numerous other defects.
(b) Certificate of Urgency Defective
Where a litigant has determined that his matter is so urgent that it cannot wait for determination in the normal course, the Rules of Court permit and facilitate the jumping of the queue.
This is done through an urgent chamber application.
In such a situation, the Rules require, that, if the applicant is to be represented by a legal practitioner, his urgent chamber application should be accompanied by a certificate from a legal practitioner certifying that the matter is urgent, and giving reasons for such belief.
Once that is done, the Registrar of this court is obliged to immediately submit such application to a judge in chambers.
On his part, the judge is implored to consider the matter forthwith, although retaining the discretion to call for oral submissions from interested parties as he or she may direct.
The duties of a legal practitioner, in relation to certificates of urgency, have been expounded in a number of cases.
In General Transport & Engineering (Pvt) Ltd & Ors v Zimbabwe Banking Corporation (Pvt) Ltd 1998 (2) ZLR 301 (H) GILLESPIE J said…,:
“Where the rule relating to a certificate of urgency requires a legal practitioner to state his own belief in the urgency of the matter, that invitation must not be abused.
He is not permitted to make, as his certificate of urgency, a submission in which he is unable to conscientiously concur. He has to apply his own mind and judgment to the circumstances and reach a personal view that he can honestly pass on to a judge and which he can support not only by the strength of his arguments but on his own honour and name.
The reason behind this is that the court is only prepared to act urgently, on a matter where a legal practitioner is involved, if a legal practitioner is prepared to give his assurance that such treatment is required.
It is, therefore, an abuse for a lawyer to put his name to a certificate of urgency where he does not genuinely believe the matter to be urgent.”
In Oliver Mandishona Chidawu & Ors v Jayesh Shah & Ors SC12-13, the Supreme Court (GOWORA JA) stated…,:
“In certifying the matter as urgent, the legal practitioner is required to apply his or her own mind to the circumstances of the case and reach an independent judgment as to the urgency of the matter.
He or she is not supposed to take verbatim what his or her client says regarding perceived urgency and put it in the certificate of urgency.
I accept the contention by the first respondent, that, it is a condition precedent to the validity of a certificate of urgency that a legal practitioner applies his mind to the facts.”
After making reference to General Transport & Engineering (Pvt) Ltd & Ors v Zimbabwe Banking Corporation (Pvt) Ltd 1998 (2) ZLR 301 (H), the learned judge of appeal continued as follows…,.:
“In order for a certificate of urgency to pass the test of validity, it must be clear ex facie the certificate itself that the legal practitioner who signed it actually applied his or her mind to the facts and the circumstances surrounding the dispute.”
In the present case, the certificate of urgency was furnished by legal practitioner Augustine Runesu Chizikani (“Chizikani”).
He certified a number of allegations as facts upon which he said his belief that the matter was urgent had been based.
He said the applicant and its entire membership would be irreparably harmed if the status quo ante was not restored on an urgent basis. He then listed those harmful events as follows:
(a) The fraudulent termination of the applicant's rights of possession of the property in question;
(b) The eviction of the applicant and its members from the property notwithstanding their right of occupation;
(c) The “[l]egitimisation through the back door of the 2nd Respondent's breach…,” of agreement with the applicant;
(d) Rendering homeless more than 7,600 owners of residential properties;
(e) Continuous harassment of the applicant and its membership through the print media by flighting malicious advertisements and through false and malicious police reports.
Chizikani's certificate also referred to the potential loss by the applicant and its membership of some US$10 million which, allegedly, had been invested in developing the property.
The rest of the certificate was largely legal argument on what the second respondent had allegedly done; what the result of a failure to restore the status quo ante could be; the absence of an alternative remedy; and the miscarriage of justice that would ensue if the matter was not heard on an urgent basis.
Plainly, none of what Chizikani stated in his certificate informed anyone how the matter was urgent.
Counsel for the applicant was in obvious difficulty on this.
The certificate said nothing about when those harmful acts, allegedly by the respondents, had occurred. It said nothing about how it would be justified that the matter be treated as urgent, moreso given that it was said that there was pending, before this court, an ordinary application to determine the substantive rights of the parties vis-a-vis the property at the centre of the dispute.
It is doubtful that Chizikani read the application, especially the draft order.
One remarkable thing about the application was the apparent dissonance between the founding affidavit, the certificate of urgency, and the draft order.
I deal with this aspect more fully below when I deal with the nature of the relief sought.
In Chizikani's certificate of urgency, probably only the reference to the alleged continuous harassment of the applicant and its members spoke to the nature of the relief sought. The rest of the averments, and of most of those in the founding affidavit, seemed a dress rehearsal of the arguments to be proffered in the main case.
A certificate of urgency, by a legal practitioner, is a sine quo non for an application being heard on an urgent basis where the applicant is to be represented.
Where that certificate is incurably defective, it is just as good as if there is no application.
That was another reason why, in this case, I declined to entertain the application on the merits.
(c) The Relief Sought
The applicant's draft order was couched thus:
“TERMS OF FINAL ORDER SOUGHT
That you show cause to this Honourable Court why a final order should not be made in the following terms:
1. That, the 1st and 2nd Respondents be and are hereby interdicted from interfering with Applicant's operations on the Remainder of the Farm Ordar situate in the district of Salisbury pending determination of an application seeking the setting aside of title transfer under Deed No.2807/2015;
2. That, the 1st Respondent and 2nd Respondents (sic) shall bear the costs of this application on a legal practitioner and client scale.
INTERIM RELIEF GRANTED
Pending determination of this matter, the Applicant is granted the following relief:
1. That, the 1st Respondent be and is hereby interdicted from harassing Applicant's members and/or beneficiaries in any way whatsoever in respect of the Remainder of the Farm Odar immediately upon service of this order.”
The background to this case, in summary, and in my own words, as I understood it, and avoiding much of the contentious stuff, was that the applicant was a consortium or joint venture of some 56 members, comprising, among many others, companies, and State enterprises.
The first respondent was a private company fronted by one Phillip Chiyangwa (“Chiyangwa”).
The second respondent represented the Government.
It was said, in 2006, the Government, in terms of two written agreements, allocated to the applicant some 605,8092 hectares of a property known as Ordar Farm (“the property”).
The allocation was so that the consortium could develop, at its own cost, housing units for its members.
One important feature of the joint venture agreement was that the consortium would, through the Government, pay compensation to the former owner of the land at levels pegged by Government.
This former owner was identified in the agreements as the Zimbabwe Tobacco Association (“ZTA”).
Another feature of the agreements was that the parties to the joint venture would establish a partnership whose members contributions to the capital costs and whose entitlement to the individual land units would be in the proportions as set out.
The day to day management of the partnership would be entrusted to a committee of twelve persons appointed by the partners.
In due course, the Government would pass title to the owners of the individual units of land.
The applicant's case before me, again in my own words, and largely staying clear of the hotly contested facts, was that it had kept its side of the agreement.
Among other things, the relevant developmental permits had been put in place. The property had substantially been developed.
Yet, the Government had blatantly reneged on virtually every other undertaking that it had made to the applicant.
Among other things, the Government had surreptitiously surrendered the property to Phillip Chiyangwa, through his company, the first respondent herein.
A week before the application, the Government had, nicodemously, executed a Deed of Grant over the property in favour of Phillip Chiyangwa's company.
The applicant's members were now at Phillip Chiyangwa's mercy.
They were facing constant harassment from him as he relentlessly pursued compensation from them in return for individual title to the individual units occupied by them in terms of the agreements with the Government.
He was busy flighting malicious adverts in the media and making malicious reports to the police against the applicant's Management Committee.
The applicant did not recognise Phillip Chiyangwa or his alleged rights or title to the property.
In separate proceedings before this court, the applicant said it was challenging Government's actions. In particular, the applicant wanted the title to Phillip Chiyangwa's company reversed.
So. the applicant's case before me was that pending determination of the main case, it wanted a temporary interdict.
It was the nature of that temporary interdict that was the bone of contention.
Prima facie, the applicant had made out a case of double-dealing by the Government.
The Government's conduct was put into serious question.
It had acquired the property; it had allocated it to the applicant; the applicant had expended vast sums of money in line with the agreements; the applicant's members anticipated getting title to the individual units of land over which they had taken occupation, or were in the process of doing so; the level of compensation was, or had to be assessed by the Government.
Then, Phillip Chiyangwa zooms from nowhere, brandishing a title deed issued by the same Government - over the same property.
And the same Government was now tossing the applicant's members to Phillip Chiyangwa to whom payment of the compensation had to be made.
Thus, the Government was in the dock. It owed an explanation.
It was its secret execution of the title deed in favour of Phillip Chiyangwa's company that had prompted the applicant to approach the court on an urgent basis.
That, basically, was the applicant's case.
Unfortunately, it was not the one before me.
It was the case pending before this court for determination at another time and by another judge.
The case before me, as summarised in the interim relief sought, was that I should interdict Phillip Chiyangwa's company from “…, harassing Applicant's members and/or beneficiaries in any way whatsoever….,.”
But, there was a problem with that.
From the papers, it was not Phillip Chiyangwa's company that was doing the harm complained of - it was him personally.
But, he was not a party to the application.
Secondly, and more importantly, what really was being sought was an interdict to stop Phillip Chiyangwa from making police reports against the applicant's Management Committee.
There was attached to the founding affidavit, a document headlined “WANTED BY POLICE”.
Below were pictures of six named individuals and six other names without pictures to them. The six pictures included that of the deponent to the founding affidavit, one Benny Tangai Matenga (“Matenga”).
According to the applicant, the pictured and named individuals were the applicant's Management Committee.
The document offered a reward to anyone who reported them to the police.
However, before me, there was no telling whether the document had been from Phillip Chiyangwa himself or the police.
Also attached to the applicant's papers was another document headlined “PUBLIC NOTICE - WARNING MBAVHA KU SOUTHLEA PARK.”
“Mbavha” is Shona for thief or thieves.
In essence, the document informed the public, that, it had come to the attention of the first respondent that the named individuals, and other “unscrupulous” elements, were illegally selling residential Stands to unsuspecting members of the public.
The document said a report had been made to the police and that only the company could legitimately issue title deeds over the property.
In his affidavit, Phillip Chiyangwa said those individuals were the so-called land barons who had illegally sold off pieces of land from his company's property and whom he had reported to the police.
The point is: it is everyone's right to report what they may perceive to be criminal conduct.
The interim order sought was manifestly incompetent.
In substance, it was sought to gag someone from exercising his right or freedom.
Although not really conceding the point, counsel for the applicant seemed to appreciate the difficulty.
She sought to amend the draft order so that the interdict would read something like this:
“…, to restrain the first respondent from interfering with the applicant's operations at the property; or disposing of any Stands thereon and from harassing the applicant's members and from publishing any false statements pending the determination of the main case….,.”
The first respondent opposed the proposed amendment.
Among other things, counsel for the first respondent pointed out, that, it was the applicant, not the respondents, that was selling off units of land.
In my view, the proposed amendment still amounted to the same thing.
The applicant's real case was that it was for Government to answer why it was ditching its members.
But, no relief was being sought against the Government.
Furthermore, other than the two documents aforesaid, and the single allegation in the founding affidavit to the effect, that, such documents had been flighted in the media by the first respondent, there was nothing else said or shown that amounted to harassment.
There was simply a disconnection between what the application said or highlighted in its application, and the relief sought in the draft order.
Such defect was incurable.
That was yet another reason why I refused to deal with the application.
(d) Falsehoods or material facts concealed
The applicant blatantly neglected to take the court into its confidence. Material facts were omitted from the founding papers.
This was fully exposed and exploited by the first respondent - with fatal consequences.
One example stuck out prominently.
As summarised above, the applicant condemned the Government for, as it were “selling” out to Phillip Chiyangwa.
The applicant did not recognise Phillip Chiyangwa or his company.
The applicant's position was that its members would pay compensation to no one else other than the Government.
The applicant's case, particularly that for urgency, was that it was only after the Government had surreptitiously issued title to Phillip Chiyangwa's company, on 8 July 2015, that it had finally become aware of the Government's sinister dealings.
That was what had triggered the urgent chamber application a week later.
To expose the falsehoods, the first respondent produced several correspondence and documents.
These showed, that, as far back as December 2014, the Government had written to the first respondent, inter alia, confirming its resolution to hand over the property back to it and advising that the first respondent would now receive its compensation directly from the applicant.
The first respondent, had, in turn, copied that letter to the applicant some five days later.
In answer to that, the applicant claimed not to have received the correspondence.
However, it admitted that it had received an agreement, dated 15 April 2015, between the Government and the first respondent.
That agreement was to the same effect as the correspondence.
In fact, it was more elaborate.
It explained the background to the devolution of the property from the Zimbabwe Tobacco Association (ZTA) to the first respondent. It explained how the first respondent would develop the property and receive compensation directly from the applicant, and how the Government would issue a Deed of Grant over the property in favour of the first respondent to facilitate the raising of capital for the developments intended, etc.
All that the applicant challenged, in the answering affidavit, was some inconsequential aspect of that agreement.
Its major argument was that the Government was dealing with the first respondent at its own risk because it had an agreement with the applicant over the property.
But, that was not the point.
The point was that such communication or documents had been concealed from me.
Furthermore, if the applicant had become aware of the Government's intention, inter alia, to issue a title deed over the property in favour of the first respondent as far back as, according to the applicant itself, mid-April 2015; how could the matter then suddenly become urgent only in mid-July 2015 when the applicant finally filed the urgent chamber application?
There was more.
The first respondent produced a sample of the correspondence signed by Benny Tangai Matenga, in February 2015, to members of the consortium.
The letters, referenced “PAYMENT OF COMPENSATION TO SENSENE INVESTMENTS (PVT) LTD” advised that the Government and the first respondent had settled the issue of ownership.
The applicant, itself, was confirming, that, indeed, the first respondent now owned Ordar Farm.
In the circumstances, the applicant's members were being directed to now pay compensation directly to the first respondent.
By all accounts, such correspondence damned the applicant's case.
So, anyone would naturally be curious what the applicant's answer to that could be.
Benny Tangai Matenga had an answer.
He claimed, in the answering affidavit, and in yet another affidavit attached to the answering affidavit, that, he had signed those letters, as it were, at gun point!
He said he had written them without consulting the applicant's Management Committee because a “representative” of the first respondent had stood over him demanding that he signed the letters!
The representative was not named.
Plainly, that was puerile.
At any rate, it was beside the point. The point was that such material correspondence and documents had not been disclosed.
Asked to explain, counsel for the applicant retorted what purpose disclosure would have served.
But, she could not possibly have been serious.
There was yet other more relevant and material letters that the applicant had concealed.
It turned out, that, the applicant had engaged more than one law firm over the issue of, inter alia, the level of compensation payable to Phillip Chiyangwa's company.
One of those law firms, Sawyer & Mkushi, had written to the Government on 28 April 2015.
On 30 April 2015, the Government had replied, advising the lawyers to deal directly with the first respondent to whom the property had been handed back.
The other law firm was Tamuka Moyo Attorneys.
On 6 July 2015, they had written directly to Phillip Chiyangwa, making substantial proposals on, inter alia, the level of compensation the applicant wished to pay him.
The letter clearly accepted, that, the first respondent was the owner of the property.
In the penultimate paragraph, the letter expressed gratitude to Phillip Chiyangwa for the good faith that he had demonstrated towards the applicant.
6 July 2015 was, of course, a mere one week before the urgent chamber application was launched.
Once again, the letters to or from the law firms aforesaid were quite damaging of the applicant's case.
So, again, one was curious what the applicant's answer would be.
It had an answer.
Of the Government's letter to Sawyer & Mkushi, Benny Tangai Matenga said the letter was “invalid” because the first respondent was not a party to the agreement between the applicant and the Government!
Of the letter from Tamuka Moyo Attorneys to Phillip Chiyangwa, Benny Tangai Matenga said the proposals on compensation therein were meant to put the issue of compensation to rest!
Demonstrably, the applicant was ill-advised.
As I dismissed the application, I mentioned that if costs de bonis propriis had been prayed for, I would have seriously considered the request.
(e) Authority to bring proceedings
The applicant's authority to bring the proceedings was seriously challenged by the second respondent in its notice of opposition.
One George Sipihlapi Mlilo, the second respondent's Permanent Secretary, said, in the opposing affidavit, that, the applicant had no locus standi to bring the application; that Benny Tangai Matenga had not shown the authority upon which he was acting, and that nothing had been presented to show that the applicant was legally constituted.
In the founding affidavit, Benny Tangai Matenga had attached some document purporting to be a resolution allegedly passed by the applicant's Management Committee authorising him to sign all court process in connection with the dispute.
The document was signed by the eleven persons, all of whom were the subject of Phillip Chiyangwa's police reports and press adverts.
In reply, Benny Tangai Matenga referred to the Joint Venture Agreement between the Government and the members of the consortium, and the purported resolution. He said that those were the proof of the applicant's locus standi; proof of his authority; and proof of the applicant's legal status.
That was not enough.
The consortium members, as listed on the Joint Venture Agreement, consisted of some 56 legal entities that comprised private companies, listed companies, some associations, State enterprises, co-operative societies, banks, etc. - virtually from the length and breadth of the country.
Certainly more was required of the applicant to prove its authority to bring these proceedings than a mere resolution, especially given that a frontal challenge had been taken.
All this, added to the fatal flaw in the application before me.
It was for the above reasons that I dismissed the application with costs on an attorney and client scale.
