HLATSWAYO JA: This is an appeal against the whole judgment
of the High Court of Zimbabwe. The
order sought to be impugned reads as follows:
“I am not satisfied that the matter is urgent. This application fails.
It will not be necessary to decide all the other issues raised. In the result,
the application is dismissed with costs on an Attorney and Client scale.”
The chronicle of events are common cause and
succinctly set out in the judgment a quo.
A joint venture and shareholders' agreement was
entered into on 14 August 2009 between Marange Resources (Pty) Ltd
(the appellant), the Zimbabwe Mining development Corporation (ZMDC) and Core Mining
and Mineral Resources (Pty) Ltd. A
dispute then arose between the parties over the participation of the first respondent
(Core Mining and Mineral Resources (Pty) Ltd) in the affairs of the joint
venture company. The appellant's position was that the agreement between the
parties was void ab initio. The first
respondent, on the other hand, arguing for the upholding of the compact, filed
an application under HC 8410/10 seeking an order declaring the agreement valid.
On 10 February 2012 the first respondent
was placed under winding up by an order of a South African Court and joint
liquidators were duly appointed. At the instance of the liquidators, the first respondent's
legal practitioners addressed a letter to the appellant with a request for negotiations
within a 30 day period. Having heard nothing from the appellant or its legal
practitioner within the 30 day period, the first respondent wrote a letter
dated 27 November 2013 to the Commercial Arbitration Centre requesting three
names of arbitrators so that they could choose one. Negotiations to appoint an
arbitrator failed resulting in the first respondent's legal practitioners
writing a letter to the third respondent (President of the Law Society of
Zimbabwe) who then appointed the retired Judge, Moses Chinhengo, the second
respondent, as arbitrator.
On 12 April 2013 a pre-arbitration meeting was
convened which the appellant boycotted. The meeting, however, proceeded and
preliminary issues were identified and an order was made directing parties to
file submissions. On the 23 April 2013 appellant filed an urgent application in
the court a quo seeking to interdict
the arbitration proceedings. The court a
quo held that the matter was not urgent and in any event the appellant had
other available remedies under the Arbitration Act [Chapter 7:15]. Subsequently,
the appellant requested to be heard on an urgent basis which request was
granted.
At the hearing the appellant raised a preliminary
issue of whether first respondent was properly before the court given the mis-citation
of first respondent. The matter is
outlined in the judgment as follows:
“The first respondent's first preliminary
point relates to the citations of the respondent. Mrs
Mtetwa submitted as follows. The
first respondent has been cited as Core Mining and Minerals (Pvt) Ltd (In
Liquidation). The final winding order
from the Gauteng High Court refers to a company cited as Core Mining and
Mineral Resources (Pty) Ltd …. This
application was served at Messrs Mtetwa
and Nyambirai ostensibly as representatives of the first respondent. She (Mrs
Mtetwa) submitted that Core Mining and Minerals (Pvt) Ltd (In Liquidation)
is not a party to these proceedings and is not represented by the said law
firm. The first respondent is a South
African registered company and it has been (wrongly) cited as Core Mining and
Minerals (Pvt) Ltd (In Liquidation) instead of Core Mining and Mineral
Resources (Pty) Ltd. Although it is
apparent from communication regarding the arbitration proceedings that the
company involved is Core Mining and Mineral Resources (Pty) Ltd, the applicant
cited the company as a (Pvt) company.
The first respondent conceded that the citation of Core Mining as a
(Pvt) company by the applicant was in error and that this was a common error as
even the arbitrator made the same error in the pre-hearing meeting minutes …. The respondent has no objection in having the
error corrected. The applicant has
declined the offer to rectify its papers and amend the citation. The first respondent submitted that the
applicant has adopted the illogical position that its own self-created error in
the citation of first responded entitles it to the relief on the basis that
there is no opposition before the court.
The first respondent maintained that the application is a nullity on the
basis that first respondent is a non-existent company and their intervention is
to protect their client's interests and is permissible under the rules of
court.” at page 4
Upon the appellant's refusal and failure to amend its
papers and on the strength of the decision in Mudzengi & Ors v Hungwe & Anor 2001 (2) ZLR 1275 at 182-D-E,
the court held that the appellant could not benefit from its wrong doing as it
failed to amend its papers despite an invitation by the first respondent to do
so. The court went on to state that even
if it was wrong on the preliminary point, the matter was still not urgent hence
its dismissal of the matter was inevitable. Aggrieved by the decision a quo, the appellant approached this
court on the following grounds:
1.
Having found as she did, albeit wrongly, that the
matter is not urgent, the leaned judge erred in dismissing the whole cause and
not striking it off the roll.
2.
The learned judge erred and misdirected
herself in dismissing the Urgent Chamber Application on the ground that it was
not urgent when she had already delved into the merits of the matter and ought
to have made a decision on the merits.
3.
The court a
quo erred and fell into error at law by making a finding that the application
was properly opposed in the absence of the authority required at law for a peregrinus company in final liquidation
to institute or defend proceedings.
4.
The court a
quo erred and misdirected itself in failing to find that the matter was
urgent that the need to act arose on the 23 April being the date by which the
illegality which appellant complained of manifested.
5.
The learned judge erred in making a finding
that an arbitrator has the power to determine the validity or otherwise of an
agreement in terms of which he is appointed, which determination could only be
made by the court.
6.
The court a
quo grossly misdirected itself in countenancing the abuse of its process by
the arbitrator in that he proceeded with the hearing notwithstanding the pendency
of the matter before the High Court and so erred in failing to confirm the interim
order which it had previously granted on the 10 of May 2013.
7.
The court a
quo erred in failing to make a finding that applicant had properly cited
the first respondent as the party who had instituted the arbitration
proceedings which were subject to the Urgent Chamber Application.
8.
The learned judge seriously misdirected
herself in dismissing the application with a punitive order as to costs without
any justifiable basis for so doing.
The relief sought by the appellant is crafted as
follows:
Appellant seeks the following relief:
1.
That the instant appeal succeeds with costs.
2.
That the judgment of the court a quo be overturned to read as follows:
“Pending the final determination of Case No HC
8410/10 and criminal trial under Case No CRB/10, 1st, 2nd,
3rd and 4th Respondents be and are hereby interdicted
from instituting and proceeding with Arbitration Proceedings in terms of the
Joint Venture Agreement and Shareholders Agreement between the applicant and
the 1st Respondent dated the 14th of August 2009 that the
applicant is a party (to).”
It is critical to point out that the relief sought
above is not in line with the order of the court a quo impugned in the appeal. The operative part of the judgment a quo dismissed the application on the
basis that it was not urgent. In the relief sought in this appeal, the
appellant does not pray for the substitution of the decision a quo with an order reflecting that in
fact the matter was urgent as would have been expected. The relief sought has
no nexus with this ground of appeal.
In fact, the relief sought would, if granted, have the effect of interdicting
all respondents, which decision relates to the merits of the case and which
merits a court deciding on urgency alone must not make an order on. See Air Zimbabwe (Private) Limited (2) Air
Zimbabwe Holdings (Private) Limited v Stephen Nhuta & Others SC 65/14. If the
relief was based on the ground that the court a quo should have decided the matter on the merits, having delved
into the dispute, then this should have been made clear or such relief should have
been couched in the alternative.
The relief sought by the appellant also forcefully brings
to the fore the issue of mis-citation once more. Mr. Mpofu, for the appellant, devotes the first five pages of his 11-
page heads of argument to this point, twisting and turning the argument to urge
the conclusion that the matter must be disposed of as undefended.
However, the
undeniable fact is that the appellant seeks to have the terms of the joint
venture and shareholding agreement entered into by a party whose proper and
correct citation it assiduously refused to effect, affected by the order of
this court. That proper party is technically
not present in these proceedings except to the extent of protecting its
interests which it is entitled to do in terms of rules of court. It is common
cause that the appellant in the court a
quo cited the first respondent as CORE MINING AND MINERALS (PVT) LTD
instead of CORE MINING AND MINERAL RESOURCES (PTY) LTD. Called upon to
amend the mis-citation, the appellant flatly refused even when assured that
such an amendment would not be resisted. It is clear on the record that the party which
the appellant would not name, i.e., resists to properly cite, is the only party
on liquidation and its identity is stated in the liquidation order. The appellant has no qualms in using the fact
of a liquidation to silence the director of the first respondent on the basis
that he cannot represent a company in liquidation and yet refuses to
acknowledge the true identity of the very entity in liquidation! In my view, this kind of sophistry, which the
respondent, in the light of the parties' previous dealings characterises as
“convenient amnesia”, comes very close to what has been termed 'fraudulent
diligence in ignorance'.
The subsequent action of the appellant of
seeking to have the matter disposed of as unopposed on the basis of its own
failure to properly cite the first respondent is the kind of abuse of court
process which I had occasion to remark about in the case of Mudzengi & Others v Hungwe & Another
2001 (2) ZLR 179 (H) at 182 D-E, thus:
“I found this to be a rather startling and
unusual objection, coming as it did from a party that had cited the Respondents
in the first place as having the necessary locus
standi to defend the application. Surely, an applicant who cites a party
lacking in legal authority cannot rely on that incapacity to have the matter
resolved in his favour. Rather, if the applicant knowingly cites a party
lacking in locus standi, then the
matter will not be properly before the court and it must be dismissed with
costs on a higher scale. Ordinarily it would be the Respondents who would raise
their own lack of capacity, or indeed applicant's lack of capacity, as a
defence in limine.”
In raising the preliminary point of its own mis-citation
of the first respondent and seeking to benefit from the same, the appellant,
the very party who had refused to correct the mis-citation, undoubtedly seeks
to benefit from its own wrong. This court has had occasion to reiterate on the
common law position that no one maintains an action arising out of his own
wrong. See Standard Chartered Bank
Zimabbwe Ltd v Matsika 1997 (2) ZLR 389 (SC). Thus, the court a quo was quite correct in holding that the
citation of the first respondent as a Private Limited (Pvt) company instead of a
Proprietary Limited (Pty) company was a material mis-description resulting in
an existing company being incorrectly cited or a wrong party being brought to
court. (Pvt) denotes a private company as envisaged under Zimbabwean law whilst
(Pty) denotes a proprietary company as described under South African Law.
The need for the proper citation of parties is
highlighted in, Cilliers, A.C. et al in Herbstein
& van Winsen's The Civil Practice of the High Courts of South Africa, 5th
ed, vol.1 page 143 as follows:
“Before one cites a party in a summons or in
application proceedings, it is important to consider whether the party has locus standi to sue or be sued (legitima persona standi in judicio) and
to asceratain what the correct citation of the party is.” (emphasis
added)
Expounding on the same theme, the writer, Peter van
Blerk, in Legal Drafting: Civil
Proceedings, Juta and Company Ltd, 2014, remarks:
“Generally speaking, it is the practitioner
representing the plaintiff who is required to take the initiative in identifying
parties to the action. This function must also receive the consideration of the
defendant's legal practitioner. It happens from time to time that, to use the
colloquial expression, the plaintiff has sued the 'wrong party' or even,
although less frequently, that the 'wrong plaintiff' has sued. A practitioner faced with one or the other of
these situations must identify precisely what has occurred. In the case of the
so-called 'wrong defendant', the first question to be asked is on whom the
summons was served. Is it the party
cited in the summons? If so, the second
question is whether the cause of action relied upon by the plaintiff is one
that lies against the defendant cited by the plaintiff. If the party served with the summons is
correctly described (ignoring spelling errors or minor immaterial mistakes),
then one should admit the allegations concerning the identity of the defendant
and deny the appropriate allegations regarding the cause of action. If the description of the defendant clearly
does not apply to the person on whom the summons is served, the person served
has, technically speaking, no duty to oppose the proceedings.” At page 13.
The present matter before the court is one where the
description of the respondent does not apply to the person on whom process was
served and therefore, technically speaking, on whom no duty to defend the
proceedings arises, but for the obvious compromise of the first respondent's
interests as already noted in the terms of the draft order sought and the consequent
entitlement to intervene.
As for the legal consequences of wrong citations, understandably
very few situations of 'wrong defendants/respondents' or 'wrong plaintiffs/applicants'
have had to be decided in our jurisdiction, as such errors, I believe, are
routinely rectified in consultation between the parties. See
also, for comparison, Paterson TJM,
Eckard's Principles of Civil Procedure, Juta and Company Ltd, 2005, 5th
ed(2012) p.184 where it is stated: “In the event of these pleas (non-joinder
and mis-joinder) being successful, the court will order a stay in the
proceedings so that the pleadings can be amended so as to bring the proper parties before the
court.”
The case of CT
Bolts (Pvt) Ltd v Workers Committee SC 16/12 involved a 'wrong respondent'
and it was held that a “workers committee” “not being a legal persona, is not properly before this court. The proceedings before the Labour Court and
prior to that, the arbitrator, were similarly void”.
Again a wrong party, this time an applicant, sued in Gweru Water Workers Committee v City Of
Gweru SC 25/15 and MALABA DCJ remarked as follows:
“The appellant claimed on behalf of the
employees. A worker's committee can only
represent the interests of the employees who appointed or elected it at the
workplace. It cannot substitute itself
for the employees and claim their rights in litigation. The right to sue accrues to the employees and
the employees in their individual capacities can enforce the rights. The employees would be claiming rights under
contracts of employment with their employer.
A universitas personarum would
not have a right to sue for those rights when it is not privy to any of the
contracts of employment. Representation
in terms of s 24(1) of the (Labour) Act does not mean that a person or body
would have the right to substitute itself in place of the employees as a party
to proceedings.”
Thus, the fate of an application where a wrong party
is cited is clear. The proceedings
cannot be sustained. In casu, the wrong citation was
compounded by the appellant's stubborn refusal to rectify the error even when
assured by the other side that such an application would not be opposed. This application should therefore suffer not
only the general fate consequent upon such errors, but also an exemplary order
of costs wrought by the appellant's unhelpful attitude. The other matters
raised in the appeal necessarily fall away in the light of this conclusion.
Accordingly, the appeal not being properly before this
court, it is hereby ordered as
follows:
- The appeal is struck off the Roll.
- The appellant shall pay to Core Mining and
Mineral Resources (Pty) Ltd (In Liquidation) as represented by Mtetwa and
Nyambirai Legal Practitioners the
costs of this appeal on the legal practitioner-client scale.
MALABA DCJ: I
agree
GUVAVA JA: I
agree
Chambati
& Matake Attorneys, appellant's legal practitioners
Mtetwa
& Nyambirai, respondent's legal practitioners
