Procedural Law-viz dismissal of a matter for want of prosecution re application for reinstatement.
Law of Property-viz judicial caveat re res litigiosa.
Procedural Law-viz principle of finality to litigation re dismissal of a matter for want of prosecution.
Procedural Law-viz default judgment.
Procedural Law-viz founding affidavit re deponent to founding affidavit iro legal practitioner.
Procedural Law-viz default judgment re misrepresentation of facts iro bona fides.
Procedural Law-viz condonation re bona fides.
Legal Practitioners-viz right of appearance re assumption of agency iro legal practitioners of record.
Legal Practitioners-viz right of appearance re renunciation of agency.
Legal Practitioners-viz renunciation of agency re legal practitioners of record iro Rule 6.
Procedural Law-viz rules of court re High Court Rules iro Rule 6.
Procedural Law-viz High Court Rules re Rule 6 iro renunciation of agency.
Procedural Law-viz rules of court re High Court Rules iro Rule 5.
Procedural Law-viz High Court Rules re Rule 5 iro assumption of agency.
Legal Practitioners-viz assumption of agency re legal practitioners of record iro Rule 5.
Procedural Law-viz rules of court re High Court Rules iro Rule 5.
Procedural Law-viz citation re party acting in an official capacity.
On
the 25th January 2006, the applicants made the present court application under
case number HC153/06 for the re-instatement of case number HC933/05.
On the 3rd February 2006, the second respondent
filed a notice of opposition and on the 14th of February 2006, the applicants
filed their answering affidavit. Under case number HC933/05, the applicants had
sued the respondents for, inter alia, an interdict, interdicting them from
transferring Stand Number 988 Mahatshula Township, Bulawayo until the estate of
the late Sindiso Songo is properly wound up under DRB977/04. This interdict was
granted in favour of the applicants on the 30th May 2005. The application
reached heads of argument stage. The first respondent pressed for finality.
There was a delay by the applicants in filing their heads of argument. There
was correspondence between the parties' legal practitioners on this delay until
the first respondent lost patience, and, under case HC1884/05, filed an
application for dismissal of the applicants' application [under HC933/05]. The
application under HC1884/05 was filed on the 11th October 2005 and was served
on applicants' legal practitioners on the 12th October 2005 at 1120 hours. No
notice of opposition was filed by the current applicants resulting in a judgment
being granted by default on the 19th October 2005. The applicants only filed
their notice of opposition about fifteen days after the default judgment was
granted i.e. on the 3rd November 2005.
It
is misleading by the applicants to state in their founding affidavit, deposed
to by their legal practitioner that the default judgment was granted when the
matter was opposed.
This
is not a candid and comprehensible explanation for the flagrant breach of the
rules – Songare v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S)….,; Khumalo
v Mafurirano HB11-04 and Nyathi v Nyathi HB31-08….,.
It
is also misleading by the applicants to give the impression that the heads of
argument in case number HC933/05 were filed before the chamber application in
case number HC1884/05 was filed and disposed of.
In fact, those heads of argument were filed well
after the default judgment under HC1884/05 was granted. In the face of such misrepresentation the
applicants have to be condemned for their delay and subsequent inadequate
explanation for the same.
Litigants must bear in mind
that a litigant who admits that he or she was negligent in his or her tardiness
may, nonetheless, be found to merit the court's indulgence if he or she shows
bona fides – see also Ndebele v Ncube 1992 (1) ZLR 288 (S).
The
only issue left for determination is one of assumption of agency.
The
application under HC933/05 was filed by Messrs Marondedze, Nyathi and Partners.
At the time of the hearing of this application, they had not renounced agency. Messrs
Marondedze and Partners only assumed agency in relation to case HC1884/05 and
then purported to have mandate to apply for the dismissal of the application
under HC933/05.
It
is argued that they are not legal practitioners of record in that matter.
Can
they simply dismiss a matter they are not party to?
The
founding affidavit under case number 1884/05 was deposed to by the first
respondent, duly represented by the latter legal practitioner, who filed an
assumption of agency. The only issue raised by the applicants is that there was
no renunciation of agency preceding the assumption. It is clear that at the
time Marondedze and Partners assumed agency [the assumption of agency makes
reference to case number HC1884/05 but properly cross-referenced case number HC933/05]
the law firm Marondedze, Nyathi and Partners had ceased to exist. In reality,
it was more of a change of name. As Marondedze, Nyathi and Partners had ceased
to exist, it would be difficult, if not impossible, to get a renunciation. Order
2 Rule 6, High Court Rules, 1971 is only applicable when the legal practitioner
of record is still available. In the circumstances the first respondent's legal
practitioners acted correctly by merely assuming agency in terms of Rule 5.
In
any event, this court has the power to condone failure to comply with the
provisions of Rule 5 or Rule 6 at the time of institution of the proceedings
where there is ratification and there is no prejudice to the other party – Afglow
Land and Cattle Co. (Pvt) Ltd v Napier 1971(1) SA 430 (RA) and City of
Salisbury v Peche 1979 RLR 65 (G). There is no prejudice suffered by the
applicants as they served all process on the latter legal practitioners.
In
the circumstances, the application for re-instatement cannot succeed. In any
event, the applicants are within their rights to lodge the claim against the
estate.
Accordingly, the application for re-instatement
is dismissed with costs.
