Chamber Application
MAKONESE J:
This will be the fourth judgment in a series of applications that have been
filed by the parties to this dispute. The Chamber Application before the
court has been styled as a Chamber Application or leave to “litigate” and
“institute” action against 1st Respondent, a company under judicial
management. Whilst on the merits the application may have succeeded, the
Respondents have raised a number of procedural matters which require
consideration by the court before going into the merits of the application.
The Applicant prays for an order couched in the following terms:-
“(i) That Applicant be granted leave to
execute against 1st Respondent's attached 800 harrows.
(ii)
That the Applicant be granted leave to institute legal proceedings against 1st
Respondent for any further outstanding levies due in terms of section 3 of the
Manpower Planning and Development (Levy) Notice, Statutory Instrument 74/99 and
any such surcharge imposed from the period starting from August 2011 to the
date of this order.
(iii)
That 1st Respondent and 2nd Respondent Mr. Christopher
Masani pay costs of this application jointly and severally each paying the
other to be absolved on an attorney and client scale.”
In case number HC 3078/11 the Applicant sued and obtained judgment against BMA
fasteners for US$9350-13.
The judgment was obtained on the 12th January 2012 and a Writ of
Execution
was issued out of this court on 14th March 2012. The Deputy
Sheriff subsequently
placed under
judicial attachment harrows belonging to BMA Fasteners. Efforts to execute
the
Writ were
fruitless as the Respondents made various applications to stay the sale in
execution.
1st
Respondent has now obtained an order of this court placing it under judicial
management.
Paragraph (c) of the order provides as follows:
“All actions and applications and executions of all writs, summons and
other process against the respondent company shall be stayed and not proceeded
without the leave of the Honourable Court.”
The application before the court is for leave of this court to execute the Writ
issued by
this court and
to institute further proceedings to recover all due and outstanding
levies. The
Applicant contends that the provisional
judicial manager is abusing the due process of the court to frustrate execution
of the writs.
The Respondents have raised the following points in limine:
The Form of the Application
It is trite law that a Chamber Application
must comply with the rules governing Chamber applications. Chamber
Applications are provided for by Order 32, Rule 241. Rule 241 (2) states
that where a Chamber Application is to be served on an interested party it
should be in Form No. 29 with appropriate modificiations. In terms of
Rule 232 a Respondent shall be entitled to not less than 10 days to file
opposing affidavits. In urgent matters the court may specify a shorter
period than 10 days.
Mr Dube-Banda for the Applicant contends that the proviso in
rule 241(2), that the urgent application, “--- shall be in Form No. 29 with
appropriate modifications”, meant that the Applicant could vary the period of
10 days to 5 days. With respect, there is no order of this court granting
leave to the applicants leave to give the Respondents 5 days within which to
respond. Mr Dube-Banda was constrained to accept that once a
matter is not treated as an Urgent Chamber Application, then the normal rules
regarding time limits given to Respondents ought to have applied. The
Applicant's attempt to vary the period to 5 days was clearly wrong and fatal to
the application. The provisions of Rule 232 apply in that this matter
once it is accepted that this is not an Urgent Chamber Application and a
Respondent shall be entitled to not less than 10 days to file opposing
affidavits. The Applicant cannot abridge the time limits within which the
Respondent is entitled to file the opposing papers without the leave of the
court.
See the case of Zimbabwe Open University v Mazambwe 2009 (1) ZLR 101.
The Applicant has not adopted the proper form of the application and
consequently the court cannot condone departure from the Rules. In any
event the Applicant has not made an application to depart from the rules.
The application is therefore defective in that regard and is fatally so.
Authority to institute
proceedings
The Founding Affidavit was deposed to by one Nyasha Njowa, who is a Regional
Manager employed by the Zimbabwe Manpower Development Fund. The deponent
claims to derive his authority from a letter dated 23 July 2002. The
letter is signed by Dr Washington Mbizvo, the Permanent Secretary in the
Ministry of Higher and Tertiary Education. The said letter purports to
confirm that the deponent is authorised to represent the Minister in any
litigation for the recovery of outstanding training levies. The letter is
not written by the Minister, who in terms of the Act is authorised to act on
behalf of the Ministry. No proof was placed before the court to establish
that the said Nyasha Njowa was authorised by the Minister to institute legal
proceedings. There was equally no proof to show that the Permanent
Secretary in the Ministry was authorised by the Minister to act in the manner
he did. It seems to me to be quite clear that the Founding Affidavit was
improperly secured in that there was no legal basis upon which Nyasha Njowa
could purport to represent the Minister in these proceedings. The maxim, delegatus
non potest delegare, would apply to the circumstances of the matter before
the court. In other words, the Permanent Secretary could not delegate
authority to sue even if it were proved that he was himself properly
authorised.
See Mhanyami Fishing and TSPT Co-op Soc Ltd v Director General, Parks and
Wildlife Management Authority and Others 2011 (1) ZLR 555.
The Applicant failed to prove that Nyasha Njowa was properly authorised to
depose to the Founding Affidavit and for that reason the application cannot
survive this second preliminary point.
The Respondent also raised a third preliminary issue, arguing that the interim
relief sought was not competent. It shall not be necessary for me to
consider this issue as the matters raised seek to deal with the merits of the
application.
In the result, I accordingly, uphold the points in limine, and dismiss
the application with costs on the ordinary scale.
Messrs Majoko & Majoko, 1st & 2nd respondents' legal
practitioners
Messrs
Dube-Banda, Nzarayapenga & partners,
applicant's legal practitioners
