MATANDA-MOYO J: This is an urgent
chamber application for the following relief:
“INTERIM RELIEF
Pending the return, date, the applicant is granted the following relief:
“INTERIM RELIEF
Pending the return, date, the applicant is granted the following relief;
- The respondent or any persons
acting on their behalf or for the purpose of furthering their interests
shall be and are hereby ordered to immediately stop demolishing or
interfering with the applicant's properties mentioned in clause 3.3 and
3.4 of Annexure C (the Memorandum of Agreement)
TERMS OF THE FINAL ORDER SOUGHT
That you show cause why an Order in
the following terms should not be granted:
- That the respondent or any
person acting on its behalf shall be and is hereby interdicted from
demolishing applicant's properties alluded to in Clause 3.3 and 3.4 of the
Memorandum of Agreement of Sale or interfering with applicant's possession
or of its employees of the said properties and so refrain from any such
future in reference save as maybe authorized by a binding and operational
Order of a competent jurisdiction.
- -----------.”
The respondent raised several points
in limine. First the respondent took issue with the application
filed by the applicant. It is the respondent's submission that the
application does not comply with r 241 of the High Court Rules 1971. Rule
241 provides;
“241. Form of chamber applications
- 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.
- -------.”
The applicant conceded correctly
that the application is not accompanied by Form 29B but submitted that such omission
is not fatal, as I can always proceed in terms of rule 4C and condone non-
compliance with the rules. Section 4C provides;
“4C. Departures from rules and
directions as to procedure
The court or a Judge may---
- Direct, authorize or condone a
departure from any provisions of these rules,----where it is satisfied
that the departure is required in the interest of justice”
I do not agree with counsel for the
respondent. It is pertinent that a chamber application should be
accompanied by Form 29B. The applicant is still required by r 241 to
state the grounds upon which the application is based in Form 29B. In the
instant case the grounds are only stated in the certificate of urgency and in
the founding affidavit in violation of r 241. Whilst the applicant is
correct that I can in terms of r 4C condone any noncompliance with the rules by
a litigant, it is also true that I can only exercise that discretion upon
application. That is not a discretion which I can exercise mero motu.
The applicant has not made any such application for condonation and I cannot
condone that which has not been formally put before me. GUBBAY CJ's
remarks are pertinent where in the case Forestry Commission v Moyo
1997 (1)) ZLR254(S) said;
“I entertain no doubt that in the
absence of an application it was erroneous of the learned judge to condone what
was on the face of it, a grave noncompliance with R259. For it is making
of the application that triggers the discretion to extend time. In Matsambire
v Gweru City Council S-185-195 (unreported) this court held that where
proceedings by way of review were not instituted within the specified eight
week period and condonation of the breach of R259 was not sought, the matter
was not properly before the court. I can conceive of no reason to depart
from that ruling. One only had to have regard to both factors which a
court should take into account in deciding whether to condone such
noncompliance, to appreciate the necessity for a substantive application to be
made.”
In the matter in casu I
believe it could have sufficed for the applicant to even make an oral
application for condonation. The applicant has not made such application
and I cannot mero muto grant condonation for noncompliance with rules.
GUBBAY in the Forestry Commission
case supra proceeded to say;
“Insofar as the High court rules are
concerned, rule 4C (a) permits a departure from any provision of the Rules
where the court or judge is satisfied that the departure is required in the
interest of justice. The provisions of the rules are not strictly
peremptory; but as they are there to regulate the practice and procedure of the
High Court, in general strong grounds would have to be advanced to persuade the
court or judge to act outside them--.”
Strong grounds can only be advanced
during the application for condonation. In the present case no such
grounds have been put forward to persuade me to exercise such discretion.
I therefore refuse to exercise any discretion I may have in terms of r 4C.
The respondent also took issue with
the certificate of urgency which it submitted was defective. The
respondent is of the view that the certificate of urgency addressed legal
argument rather than explain the basis upon which the legal practitioners is of
the view that the matter is urgent. A look at the applicant's certificate
of urgency leaves one with no doubt that the lawyer therein was simply
regurgitating the applicant's founding affidavit. In terms of r 244 of
the High Court rules a legal practitioner certifying that a matter is urgent
must sate the reasons for its urgency. It is apparent from the wording of
the certificate of urgent that such legal practitioner did not address his mind
to the urgency of the matter.
GOWORA J in the case of Oliver Mandishona
Chidawu & Ors v Jayesh Sha & Ors SC12/13 on p 6 of the
cyclostyled judgment had this to say;
“In certifying the matter as urgent,
the legal practitioner is requires to apply his or her mind to the
circumstances of the case and reach an independent judgment as to the urgency of
the matter. He or she is not suppressed to take verbatim what his or her
client says regarding perceived urgency and put it in a certificate of
urgency.------.”
The certificate of urgency in this
matter failed to satisfy the validity test.
The applicant also purported to have
approached this court in terms of s 74 of the Constitution of Zimbabwe
Amendment (No.20) Act 2013. Section 74 provide;
“74. Freedom from arbitrary
eviction.
No person may evicted from their
home, or have their home demolished, without an order of court made after
considering all the relevant circumstances.”
The applicant has not joined the
persons residing in the homes being demolished s 85 of the Constitution lay
down the person who are entitled to approach the court, alleging that a
fundamental right or freedom enshrined in Chapter 4 of the Constitution has
been breached. The following persons are listed as having capacity to
approach the court.
“85
- ---------
- Any person acting in their own
interests
- Any person acting on behalf of
another person who cannot act for themselves'
- Any person acting as a member,
or in the interests of a group or class of persons;
- Any person acting in the
public interest and
- Any association acting in the
interests of its members.”
The applicants have failed to
satisfy me that they have a right to approach court claiming violation of s 74
of the Constitution without joining the persons whose home are being
demolished.
In any case the respondent are not
acting arbitrarily but are acting in accordance with the agreement entered into
between itself and the plaintiff and in terms of the arbitral award.
I am of the view that the matter
should fail on the basis of the points in limine raised.
Accordingly the application is
dismissed with costs.
Matipano
& Matimba,
applicant's legal practitioners
Dube, Manika & Hwacha, respondent's legal practitioners
