MAVANGIRA AJA: This is an appeal
against the whole judgment of the High Court handed down on 4 September 2013. In terms of this decision summary judgment was
entered in favour of the respondent for the eviction of the appellants from its
premises, St Tropez Apartment Block, Samora Machel Avenue East, Eastlea,
Harare.
APPLICATION TO
ADDUCE FURTHER EVIDENCE
At the onset of
proceedings Mr Girach, for the
appellants, moved for the determination of the application, filed on 30 January
2014 in SC 27/14 on behalf of the appellants, to lead further evidence on
appeal. In essence, the further evidence
sought to be adduced on appeal was the evidence, as deposed to in an affidavit
by counsel who appeared for the appellants in the court a quo.
The criteria to be met in
such applications are spelt out in Warren-Codrington
v Forsyth Trust (Pvt) Ltd 2000 (2) ZLR 377 (SC) at 380-381. These are briefly:–
1.
could the evidence not, with reasonable
diligence, have been obtained in time for the trial?
2.
is the evidence apparently credible?
3.
would it probably have an important
influence on the result of the case, although it need not be decisive?
4.
have conditions changed since the trial so
that the fresh evidence will prejudice the opposite party?
In
casu the said evidence in effect relates
to an earlier understanding or agreement allegedly reached by and between the respective
counsel for the two sides. The agreement
is said to have been in regard to how the matter, the subject of this appeal,
was to be proceeded with in the court a
quo. This was in view of other similar matters that were also pending in
the same court, between the respondent and various other parties who were in similar
circumstances as the appellants'. The allegation is that the respondents'
counsel in the court a quo had
reneged on an earlier agreement that had been entered into by and between the
appellants' counsel and the respondents' erstwhile or previous counsel, to the
detriment of the appellants. On the
strength of the alleged agreement, the respondents' counsel had applied in the
court a quo for the hearing of the
matter to be postponed in order to afford the respondents' counsel an
opportunity to attend to the pleadings and comply with r 66 of the High Court
Rules, 1971. The opposition mounted by
the respondents' counsel to the application was thus unexpected and ran
contrary to their earlier agreement.
When
the court sought Mr Girach's
submission as to whether the application met the criteria set out above, he
submitted that the application must be seen and dealt with as an application to
supplement the record. He conceded that
by this submission, he was changing the nature of the application that was
before this court; he however did not have any further useful submissions to
make.
Mr
Girach's dilemma is understandable in
view of the fact that the evidence which the appellants sought to have placed
before this Court, relates, as stated in the appellants' written submissions,
to the alleged understanding or agreement between the parties as to how they
intended the matter of their dispute to progress before the court a quo.
Such understanding or agreement as alleged is not evidence at all, let
alone evidence on the issue that was before the court a quo for determination. The
purported alteration of the application to an application to supplement the
record is not only unprecedented but also unsupported by any relevant
documentation. It may properly be viewed
as a non-event on which no determination could seriously be expected from this Court.
Accordingly, the application for leave to adduce further evidence must
therefore be, as it is hereby, dismissed.
GROUNDS
OF APPEAL
The appellants raised
four grounds of appeal.
The
first ground is that the court a quo
seriously misdirected itself, such misdirection amounting to an error in law in
refusing the application for a postponement to allow for the filing of a
chamber application for the upliftment of a bar. This was under circumstances
where it was clear that the appellants had been misled by the respondent's
legal practitioners into believing that the parties were agreed on the issue of
security.
The
application for leave to adduce further evidence on appeal having been
dismissed as indicated above, this ground of appeal loses relevance. The application for postponement that was
made before the court a quo was based
on two grounds. The first was that the
postponement would enable the appellants herein to prosecute a chamber
application for consolidation of the four matters then pending before the court
a quo, with yet another matter. The second was, it would allow the appellants
herein to lodge an application for the upliftment of the bar that was operating
against them all by reason of their failure to file heads of argument in all
the four matters. The court a quo was advised that the said
application would be filed later on the day of the hearing.
The
court a quo was of the view that the
appellants (respondents in court a quo)
were buying time as it should have been apparent to them that there was a bar
requiring upliftment which should have been attended to earlier. The court a quo declined to postpone the matter on
the grounds that the respondent could not be prejudiced because of the appellants'
dilatoriness. The court a quo thus proceeded in terms of r 238 (2b)
to deal with the application on the merits. The rule allows the High Court or a judge of
the High Court, to deal with a matter on the merits or direct that it be set
down for hearing on the unopposed roll, where heads of argument which are
required to be filed in terms of subrule 2 of 238 are not filed within the
specified period.
The
court a quo's reasons for refusing
the application have not been refuted, save for the averment that the court
seriously misdirected itself. The alleged misdirection is then related to the
court's refusal having been made in the face of clear circumstances that the “appellants had been misled by the
respondent's legal practitioners into believing that the parties were agreed on
the issue of security”. It appears
that these are the “circumstances” that the appellants have unsuccessfully sought
to adduce as further evidence on appeal before this Court. It does not make sense for the court a quo to be now “accused” of having not
paid heed to “circumstances” that were not before it. No misdirection has thus
been established on the part of the court a
quo.
The
second ground of appeal is that the court a
quo erred in dealing with the matter on the merits under circumstances in
which the Registrar had not declined the bonds of security placed before him
which it was his duty to determine on the date of the hearing of the matter.
In terms of r 66 of the
High Court rules, upon the hearing of an application for (summary) judgment
under r 64, the defendant has two options. He may:-
a.
give security to the satisfaction of the
registrar to satisfy any judgment which may be given against him in the action;
or
b.
satisfy the court by affidavit or with the
leave of the court by oral evidence of himself or any other person who can
swear positively to the facts, that he has a good prima facie defence to the action.
Rule
68 further provides that if the defendant does not find security or satisfy the
court, as provided in r 66, that he has a good prima facie defence to the action, the court may enter summary
judgment for the plaintiff, and thereupon, the plaintiff may sue out of the
office of the Registrar, a writ or process of execution in terms of any rule of
court.
In
terms of r 69, if the defendant finds security or satisfies the court as
provided in r 66, the court shall give leave to defend, and the action shall
proceed as if no application had been made.
In
casu, no evidence was placed before
the court that the appellants had given security to the satisfaction of the Registrar
to satisfy any judgment which may be given against them in the action.
At p 2 of the High Court's judgment the following is
stated:
“I must point out
for completeness that the respondents have failed to find security to the
satisfaction of the registrar in terms of r 66(1) as notified and Mr Mpofu
conceded that fact….Clearly therefore the security bonds filed by the
respondents did not satisfy the requirements of r66(1). This is simply because
the satisfaction of the registrar was not secured. For that reason the
respondents could not be given leave to defend in terms of r69. I therefore
proceeded on the merits of the matter to determine whether the respondents have
shown a good prima facie defence to
the action.” (emphasis added)
Against
the lack of evidence or proof that security was given as notified to the court a quo, and the concession by the appellants'
counsel in the court a quo, that
security had not been paid, this ground of appeal only serves to expose
self-contradiction on the part of the appellants. As no security had been given in compliance
with r 66 (1) (a), the court a quo
had to proceed, as it did, in terms of r 66 (1) (b), and enquire into the bona fides of the appellants' defence.
In
the circumstances, the appellants have failed to show misdirection by the court
a quo in the manner alleged.
The appellants' attempt
to purport to indicate that they had a good and bona fide defence was unsuccessful, the learned judge stating at
p 3 of his judgment:
“… Despite the
respondents' bizarre averment in their pleas that they paid $24 million
(Zimbabwe Currency), as the purchase price for the block of flats, it is common
cause now that they did not pay a single penny towards the purchase price and
they have belatedly offered to pay the applicant a sum of $650 000-00 as
purchase price, which offer the applicant has rejected insisting that the flats
are no longer for sale.”
The
lease agreements in terms of which the appellants occupied the flats lapsed in
2000 after which they were given an option to purchase them. The respondents
exercised the option but failed to pay the purchase price within the stipulated
period. For that reason their action for specific performance, through their
residents association in HC 4633/05 was dismissed. Their appeal to this Court
in SC 19/10 was equally unsuccessful, the Court holding that the respondent had
not waived its right to cancel the agreement when they failed to pay the
purchase price by the set date, 31 July 2000.
In
the court a quo the submission was
made that the appellants had made a counterclaim in which they seek an order
directing the respondent to transfer the flats to them on the basis that they
purchased them for $24 million (Zimbabwean currency) and as such they are
entitled to take transfer. The learned judge aptly commented:
“Just how the
respondents hope to sustain the counter claim they have made is an unfathomable
mystery. These are the same respondents who are offering to pay the applicant
$650 000-00 as purchase price for the flats because it is common cause that
they did not pay anything towards the purchase price. They then have the
temerity, in the same breath to submit a counter claim alleging having paid $24
million as purchase price. This trifling with the court must simply stop. It is
the kind of kindergarten behaviour which should find no place in our courts and
must be suppressed with an order for punitive costs as a seal of the court's
disapproval of such abuse of court process.”
On
these very cogent reasons the court a quo
found that the appellants, having no sale agreement to enforce and no lease agreement
in terms of which they could remain in occupation, could only do so by the
grace of the respondent. The respondent had withdrawn that grace and was
instead seeking their ejectment. On the basis of the clearly stated reasons,
the court a quo, correctly in my
view, found the respondent's claim for the appellants' ejectment to be
unassailable.
The
third ground of appeal raised by the appellants is to the effect that the court
a quo erred in failing to find that
the option that was granted to the appellants by the respondent had remained
open and been exercised and that the resultant agreement between the parties had
not been cancelled.
In raising this ground of appeal the
appellants totally ignored the findings made by the Supreme Court in St Tropez Residents Association v National
Social Security Authority & Anor SC 19/10. The appellants herein were parties in that
matter as members of the St. Tropez Residents Association. The cited case is
one of several in the chain of litigation involving these parties over the same
property. At p 9, 10 and 11 the following was said by SANDURA JA:
“The main issue in
this appeal is whether the NSSA waived the right to cancel the agreement in
terms of clause 4 of the MOA (Memorandum of Agreement) when the Association
failed to pay the purchase price by July 31, 2000. In my view, the answer to
that question is in the negative.
As
already stated, clause 1 of the MOA provided that the purchase price was to be
paid by July 31, 2000, and clause 4 provided that if the Association failed to
comply with any of the terms and conditions of the MOA the NSSA had the right
to cancel the agreement.
There is,
therefore, no doubt that when the Association failed to pay the purchase price
by July 31, 2000 the NSSA had the right to cancel the agreement. However it
was submitted on behalf of the Association that in view of the correspondence
between the parties after July 31, 2000, which I have already set out in this judgment,
the NSSA waived its right to cancel the agreement. I disagree with that submission.
In this regard, clause 6 of the MOA is pertinent. Although this clause was
set out at the beginning of this judgment, for the sake of convenience I will
again set it out.
It reads as
follows:
'It
is recorded that no agreement at variance with the terms and conditions of this
agreement shall be binding unless confirmed in writing by the parties, and any
indulgence which the authority may grant to the Purchaser shall not in any way
prejudice its rights to be construed as a waiver of the same by the Authority
(emphasis added)'
SANDURA JA proceeded -
In my view,
bearing in mind the provisions of clause 6 of the MOA, it is quite clear that
the NSSA did not waive its right to cancel the agreement in terms of clause 4
on the ground that the Association had failed to pay the purchase price by July
31, 2000.
However,
as the agreement was not cancelled it is necessary to consider whether the
remedy of specific performance sought by the Association ought to be granted.
The learned judge then
concluded as follows –
In Zimbabwe Express Services (Pvt) Ltd v
Nuanetsi Ranch (Pvt) Ltd SC21/09
this Court, in the exercise of its direction, declined to order the delivery of
two hundred and eighty cattle to the appellant in the case because, due to
hyperinflation, the appellant would have got the two hundred and eighty cattle
for nothing, which would have been unjust.
In
my view, the reasoning of that case applies to the facts of the present case
with equal force. As Mr Mafusire
submitted, “to order specific performance as demanded by the appellant would
mean the appellant getting almost an entire township for absolutely nothing”.
Undoubtedly, that would be an unjust result which would operate unduly harshly
on the NSSA. Accordingly, the order sought by the Association cannot be
granted.”
It
is clear that SANDURA JA considered the issue and came to the conclusion that
even though the agreement had, as at that time, not been cancelled, the NSSA
(respondent herein) had not waived its right to cancel the agreement for
breach. The court also found an order of specific performance could not be granted
as that would produce an unfair result and operate unduly harshly on the NSSA,
the purchase price not having been paid.
Thus, when the court a quo in HH 269/13 (the judgment the
subject matter of this appeal) determined that the Supreme Court had, in SC
19/10, determined all rights of the parties, this was a finding based on and
supported by a reading of the said judgment SC 19/10. The learned judge in the
court a quo said, inter alia:
“The respondents
have also sought to argue that the Supreme Court did not determine the rights
of the parties and that they are still with a chance to take another crack at
goal (sic) as it were. I do not agree. What the Supreme Court did was settle
the dispute once and for all. It made it clear that the respondents have no
right over the properties arising out of their option to purchase because they
did not effect payment of the purchase price by 31 July, 2000. What this means
is that the respondents are left with nothing. They do not have a sale
agreement in terms of which they can remain in occupation. They can only remain
in occupation by the grace of the applicant, which grace the applicant has
withheld and is instead seeking their ejectment. I am satisfied that the
applicant's claim for ejectment is unassailable.”
It
is a basic tenet of our jurisprudence that there must be finality to
litigation. In this case, since the merits of the dispute between the parties
had already been pronounced upon by the Supreme Court, the court a quo was justified in taking note of
the same and proceeding to deal with NSSA's application in the manner in which
it did. Accordingly, the court a quo
correctly held that the appellants had no bona
fide defence to the claim for their ejectment. On this ground alone the
appeal ought to be dismissed.
The
fourth ground of appeal is that the court a
quo misdirected itself in proceeding as if the matter before GOWORA J (as
she then was) had not been finalised when judgment had in actual fact been
granted dismissing the exception taken by the respondent.
In the court a quo the appellants argued that summary
judgment should not be granted on the basis of lis alibi pendens, in view of an application that had been made by
the respondent for the striking out of their pleas as being bad in law. They
stated that judgment in that application which had been argued before GOWORA J
was still pending. This ground of appeal
appears to be of no moment in this matter. This is, firstly, because GOWORA J's judgment
in HC2330/09 was delivered some two years before the judgment of the court a quo.
The court a quo was thus
mistaken or ill-informed when it accepted as a fact and stated that the
judgment in GOWORA J's matter had not been handed down. More importantly, however, the matter before
GOWORA J is described in the first paragraph of her judgment HC2330/09 as:
“In this
application the plaintiff (NSSA) seeks summary judgment against the respondent
J Mapanga and sixty four others.”
No other pleadings relating to the matter
that was argued before GOWORA J appear to have been placed before the court a quo and none was placed before this
Court.
At
p 2 of her judgment GOWORA J stated that the plaintiff only cited one defendant
who was not before the court by virtue of being deceased. She further stated that all the defendants had
been sued under seven separate case numbers and the respondent had, without
leave of the court, joined all the defendants to an application for summary
judgment. She found that the papers before her were not in order due to these
irregularities. She thus withheld jurisdiction
and ordered the respondent to pay costs of the application.
The essence of the matter
that was heard by GOWORA J was thus not accurately captured in the proceedings
and in the judgment of the court a quo.
Of even more importance is the following apposite observation of the learned
judge in the court a quo when he was
commenting on the appellants' contention that summary judgment should not be
granted on the basis of lis alibi pendens:
“… that argument
cannot defeat a summary judgment application. … summary judgment is available
to a litigant whose claim is unanswerable and who should not be delayed by a
trial for that reason. The attack on the respondent's plea was in pursuance of
what the applicant perceived was an unassailable claim.”
It
seems to me therefore, that reference to GOWORA J's judgment is misplaced, both
in the court a quo and in the
appellants' grounds of appeal. This
ground of appeal is also predicated on erroneous facts and is of no relevance
to this matter.
The appeal noted by the appellants has no
merit. Mr Mazonde, for the respondent prayed for the dismissal of the appeal
with costs on the higher scale, de bonis
propriis against Kawonde and Company Legal Practitioners. He submitted that
the appeal was frivolous and vexatious and that Kawonde and Company Legal
Practitioners' persistence with this appeal when they were aware of the
futility of it in view of the judgment by SANDURA JA in SC19/10 called for such
sanction.
In his response Mr Girach submitted that the conduct of the NSSA post the year 2000 made
the appellants believe that it was accepted by the respondent that they were
the purchasers of the property. He submitted that in defending litigation
brought against it by the Zimbabwe Republic Police, (ZRP), in which the ZRP
sought an order for the same property to be transferred to it, the respondent
stated under oath that the order sought by the ZRP could not be granted as the
NSSA was in the process of transferring the same property to the appellants who
had purchased it. This submission was not disputed. In my view this conduct on the part of the
respondent is a significant factor to be taken into account in the
determination of whether or not the award that should be made in favour of the
respondents ought to be on the higher scale and in addition, de bonis propriis.
An award of costs is within the discretion
of the court. In the exercise of its discretion the court is guided by certain
principles and guidelines. One of the general principles is that the successful
party is entitled to costs. See Mudzimu v
Municipality of Chinhoyi & Anor 1986 1 ZLR 12 (HC) at 18C. In casu
the court will also be guided by the principle that an award of costs at the
legal practitioner and client scale is a drastic measure, and one which should
not be lightly resorted to except where the court is satisfied that there has
been an attempt to abuse the process of the court or for some other good
reason. See P. v C. 1978 ZLR 80 at 88A. There
have to be exceptional circumstances to justify such an order. See Gwinyayi
v Nyaguwa 1982 (1) ZLR 136 at 138F.
The respondent seeks not merely costs on
the higher scale, but has also urged this court to order that Messrs Kawonde
& Company Legal Practitioners bear such costs de bonis propriis. It is
settled that such costs are awarded against a legal practitioner as an
exceptional measure and in order to penalise him for the conduct of the case
where it has been conducted in a manner involving neglect or impropriety by
himself. Such costs are only awarded in reasonably
grave circumstances. Generally speaking,
dishonesty, mala fides, wilfulness or
professional negligence of a high degree fall into this category. See Matamisa
v Mutare City Council (A-G Intervening) 1998 (2) ZLR 439 (S) at 447E.
In view of the conduct of the respondent
(NSSA) referred to above, it appears to me that no justification has been
established for the nature and level of the award of costs that the respondent
seeks to attach to the dismissal of the appeal.
The respondent conducted itself in a manner that reasonably made the
appellants believe that their cause was not lost. Coupled with the interpretation, erroneous or
otherwise, that they placed on SANDURA JA's judgment to the effect that their
agreement had not been cancelled it appears to me that at the worst, the
conduct of their case might be viewed as being no more than borderline. It does not appear to be conduct of the
nature contemplated in the guidelines cited above. No such reprehensible
conduct appears to have been established on the part of Kawonde and Company Legal
Practitioners. An order of costs on the
ordinary level will thus be awarded in favour of the respondent.
It is accordingly ordered as follows:
'The
appeal is dismissed with costs.'
ZIYAMBI JA: I agree
GWAUNZA JA: I
agree
Kawonde & Company, appellants'
legal practitioners
Scanlen & Holderness, respondents' legal
practitioners
