MATHONSI
J:
One
can only sympathise with Ms
Dube
who appeared for the four defendants instructed by Joel
Pincus Konson and Wolhuter
legal practitioners of Bulawayo who appeared at the scene rather late
with a brief which may not have disclosed that the case for the
defendants had been so messed up not only through the tardiness of
those tasked with the responsibility of representing the defendants
but also through their arrogance as they concentrated on preventing
the commencement of the trial at all costs as opposed to pleading the
case for the defendants to the best of their ability, itself an
arguable case indeed.
There
was a discernible commitment to throw all the spanners into the
works, including the jack, in an effort to avoid the trial. In the
process of doing that those assigned the task of presenting a case
for the defendants abdicated their duty to put together a sound case,
failed to plead the defendants' case and concentrated on all the
wrong things leaving the defendants' case in tatters. With the
legendary humpty dumpty having fallen off the wall and broken into
several pieces it was then left for Ms
Dube
to try and put humpty dumpty together again when humpty dumpty could
no longer be put together. Distraught and devoid of any sense of
solution in the end, she did the only honourable thing left, to
withdraw opposition to the plaintiff's claim and consent to the
grant of relief in favour of the plaintiff, albeit with costs on an
ordinary scale, itself a contentious issue as Mr
Nkomo
who appeared for the plaintiff would settle for nothing less than an
award of costs on the scale of legal practitioner and client.
The
plaintiff is a purveyor of explosives whose daily business is to buy
and sell explosives and its clientele is the generality of companies
and individuals engaged in mining operations. In the course of its
business it supplied the four defendants separately with an
assortment of explosive products for varying sums of money. When
payment was not forthcoming the plaintiff sued.
In
HC1575/14 the plaintiff sued Falcon Gold Zimbabwe Limited t/a Golden
Quarry for payment of the sum of $18,140-00 together with interest
and costs of suit in respect of goods sold and delivered to that
defendant on 5 and 13 December 2013. In HC1576/14 the plaintiff sued
Falcon Gold Zimbabwe Limited t/a Dalny Mine for payment of
$18,600-00. In HC1577/14 the plaintiff claimed $40,450-00 against
Casmyn Mining Zimbabwe (Pvt) Ltd which apparently trades as Turk Mine
while in HC1578/14 the plaintiff claimed $25,056-82 from Olympus Gold
Zimbabwe Limited trading as Old Nic Mine.
It
so happens that the four defendants are sister companies although
nothing of the sort is pleaded and they are all represented by the
law firm of Joel
Pincus Konson
& Wolhuter
who entered appearance on their behalf in respect of all the matters.
They also filed a standard plea in all the matters at some stage
complete with a standard error of citing the defendant as “Falcon
Gold Zimbabwe Limited t/a Golden Quarry Mine” even in those matters
where the defendant was something else. They later filed amendments
to correct that.
The
standard plea filed in respect of all the four matters reads:
“1.
Defendant admits purchasing explosives and associated accessories
from plaintiff for the amount stated.
2.
Defendant however denies any liability to pay the amount claimed or
any part thereof on the basis that during the period extending
between 30th
of January 2012 to the 10th
of April 2013 plaintiff unlawfully, received from defendants'
employee, one Richman Zvabvirepi 133 boxes of explosives stolen by
the latter from defendant's stores, with a total value of between
US$95,000-00 knowing such goods to have been stolen from defendant by
Mr Zvabvirepi, which stolen goods plaintiff convicted to its own use
as a dealer in explosives. Defendant reported the matter to the
police who have since arrested and preferred charges against Jackson
Saungweme director of plaintiff.
3.
In the circumstances defendant has separately filed a counterclaim in
these proceedings for the full value of the explosives unlawfully
received by plaintiff and converted by the latter to its own use.
4.
Wherefore praying for consolidation of the respective claims filed by
plaintiff under case numbers HC1575/14, HC1576/14, HC1577/14 and
HC1578/14 referring to its counterclaim filed of record under case
number HC1575/14, which defendant incorporates herein by reference
and tendering the sum of US$7,506,82 being the difference due to
plaintiff's aggregate of US$102,506,82 under case numbers
HC1575/14, HC1576/14, HC1577/14 and HC1578/14 defendant prays that
plaintiff's aggregate claims under HC1575/14, HC 1576/14, HC1577/14
and HC1578/14 may be dismissed with costs on the legal practitioners
and client scale.”
Other
than the reference to the counter claim in paragraph 4 of all the
pleas filed, no counter claim was filed in three of the matters. It
was only filed in HC1575/14 the case against Falcon Gold Zimbabwe
Limited t/a Golden Quarry.
In
the counterclaim the defendant in HC1575/14 averred that 133 boxes of
explosives and associated accessories valued at $95,000-00 were
stolen from it by its employee Richman Zvabvirepi acting in criminal
connivance with the plaintiff. It further averred that the plaintiff
purchased and took delivery of the goods knowing them to have been
stolen from its stores. It therefore pleaded set off.
At
a pretrial conference of the parties held before a judge on 29
September 2015 the parties must have agreed to the consolidation of
the four matters for purposes of trial because the following order
was issued by MAKONESE
J:
“IT
IS ORDERED THAT:
1.
The matter be and is hereby referred to trial.
2.
The parties' joint pre-trial conference memorandum of issues is
hereby adopted for trial.
3.
The matter(s) under case number HC 1575/14, HC 1576/14, HC 1577/14
and HC 1578/14 be and are consolidated for purposes of trial.”
Counsel
did not address me on the implications and effects of that
consolidation.
I
mention that because of what later transpired at the trial where the
defendants took the view that they could not prosecute their
counterclaim owing to the fact that it had been filed by the wrong
defendant in HC1575/14 instead of by Casmyn Mining Zimbabwe (Pvt) Ltd
t/a Turk Mine, the defendant which suffered the loss at the hand of
its employee Richman Zvabvirepi. Whatever the case, all the matters
were placed before me for trial in terms of the court order issued at
the pre-trial conference and this judgment disposes of all the four
matters.
The
matters were originally set down for trial before me on 8 March 2016
with the defendants being served with the notice of set down for that
date almost a month earlier on 12 February 2016. A day before the
date of trial the defendants' legal practitioners wrote a letter
dated 7 March 2016 to the Registrar seeking a postponement of the
matter for all the wrong reasons. They said;
“RE:
WILTSHIRE EXPLOSIVES (PVT) LTD V OLYMPUS GOLD ZIMBABWE (PVT) LTD t/a
GOLDEN QUARRY MINE AND 3 OTHERS: CASE NO HC 1575/14, HC 1576/14, HC
1577/14 AND HC 1578/14
The
above matter refers.
This
matter has been set down before the Honourable Mathonsi J for the 8th
and 9th
March 2016, however, the defendants are still finalizing the internal
audit report which shows that the explosives that were stolen exceed
the initial US$95 000-00. The audit will be finalized within two (2)
months. Furthermore defendants will also need to join other parties
for purposes of their counterclaim. We are therefore kindly
requesting that the matter be removed from the roll pending the
finalization of the internal report.”
Here
is a litigant that had filed opposition to claims on the basis that
it had suffered prejudice arising from pilfering. It had anchored its
counterclaim on those allegations and yet an audit to prove that
claim had not been commissioned or undertaken. To compound matters,
it had gone to a pretrial conference just to fulfill a fixture and
consented to the matter being referred to trial when it was yet to
gather evidence. So what was being referred to trial when the
defendants were still to put together their case?
It
has always been said that litigants should go to a pretrial
conference ready for trial. In other words all the evidence must be
in place with statements of witnesses having been recorded and trial
documents discovered. If pretrial conferences are to serve the
purpose for which they were invented which is the curtailment of
proceedings, litigants must start taking them seriously and
participate in them fully as provided for in the rules.
In
terms of Rule 181(2) of the High Court of Zimbabwe Rules, 1971 at the
pretrial conference the parties “shall” attempt to reach
agreement on possible ways of expediting or curtailing the duration
of the trial on a number of issues including obtaining admissions of
fact and of documents, holding any inspection or examination, the
exchange of reports of experts, giving further particulars,
preparation of a bundle of documents for trial and so on.
Of
late litigants just treat a pretrial conference as an inconvenience
that has to be undertaken and do not bother to make it what it is
meant to be. Otherwise how does one explain the participation in a
pre-trial conference by a party that has not even put together its
case. A party that is yet to conduct a crucial audit whose report is
to be used at the trial. Yet a plea would have been filed for that
party under very false pretences and merely to ward off the
plaintiff's claim. It is dishonest and if ever there is any reason
why this court finds itself increasing with an insurmountable back
log of cases, that is the reason. In most of the causes awaiting
trial, not only is there no real dispute, there is also a complete
lack of goodwill. Most parties do not even intend to go to trial
making the pleading a monumental fraud.
But
then I digress.
The
plaintiff's legal practitioners were strongly opposed to a
postponement. Perhaps because the defendant had no desire whatsoever
to commence the trial the parties appeared in my chambers on 8 May
2016 with the defendants represented by Mrs
Moyo
instructed by Joel
Pincus Konson & Wolhuter. Mrs Moyo
advised me that a postponement was sought, not because there was an
audit being undertaken, but because the parties were discussing a
settlement which was disputed by Mr
Chamunorwa
for the plaintiff whose view was that the defendants had adopted a
cavalier approach to the matter. Any reason would do as long as the
defendants secured a postponement.
I
however acceded to the request for a postponement and directed, inter
alia,
that the matter be set down as the first one for this term. It was
then set down for 31 May and 1 June 2016 with the defendants being
served with the notice of set down on 12 May 2016, although they were
aware that the matter would be for first one for this term from March
2016.
The
inconvenience of that knowledge and the set down could not deter the
defendants from taking another shot. By letter of 24 May 2016 written
to the plaintiff's legal practitioners and copied to the Registrar,
Joel
Pincus Konson & Wolhuter
sought another postponement. They wrote:
“RE:
WILTSHIRE EXPLOSIVES (PVT) LTD VS FALCON GOLD ZIMBABWE: CASE NO. HC
1575/14.
The
above matter refers.
Please
be advised that Advocate Hilda Makusha-Moyo who has been instructed
to deal with this matter is currently out of the country and will
only be returning on the 15th
July 2016 and as such the trial dates will not be suitable for the
defendant. We kindly request that the matter be postponed to any
available date after her return. Your assistance in this matter is
greatly appreciated.”
There
appears to be a misconception among legal practitioners that they can
accept or reject a set down date. In our jurisdiction, matters are
set down by the Registrar of the court in liaison with the Judge
assigned to deal with the matter. That is done in a manner that
accords the parties sufficient time to prepare and to avail
themselves at the trial or hearing date. It is therefore not the
province of a legal practitioner to decide when a matter should be
set down although the court will ordinarily accede to a genuine
application for a postponement where acceptable reasons for lack of
preparedness have been fully explained and the inability to proceed
is not due to delaying tactics. However such an application must not
only be made timeously as soon as the circumstances justifying it
become known, it must also be bona
fide
and not as a result of lack of diligence. See Myburgh
Transport v Botha t/a SA Truck Bodies
1991 (3) SA 310 (NSC) 315C –D; Hughber
Petroleum (Pvt) Ltd v Brent Oil Africa (Pty) Ltd
2014 (1) ZLR 200(H) 205 G, 206A.
One
should also add that the factor of prejudice on the other party is of
primary consideration and would ordinarily constitute the dominant
component of the total structure in terms of which the court will
exercise its discretion in favour of the grant of a postponement, for
a discretion it is when the court allows a matter that has been
properly set down on notice to all concerned, to be postponed. Where
the application for a postponement lacks bona
fides,
it would not be a judicious exercise of discretion to grant the
postponement: Warwick
v Jonga
HH 747/15; Mudzingwa
v Mapanzure and Another
HB 109/16.
When
the letter from the defendants' legal practitioners was brought to
my attention and considering that they still had ample time to
instruct someone else to represent them at the trial, I directed the
Registrar to notify them to proceed to do so. They did that as Ms
Dube
was then briefed and did appear on the defendants' behalf when the
trial commenced on 31 May 2016, surprisingly not for the conduct of
the trial but to launch a formal application for a postponement, talk
of a display of a never-say- die attitude.
Ms
Dube
submitted that an application was sought for a postponement in
respect of the defendants' counterclaim. She stated that the
defendants had instituted summons action against one Richman
Zvabvirepi and one Jackson Saungweme in HC951/16 and had, that very
morning, filed a chamber application seeking an order consolidating
HC951/16 with these four matters. Accordingly they sought a
postponement sine
die
to enable them to attend to that.
In
fact HC951/16 is an action instituted on 14 April 2016 by Casmyn
Mining (Pvt) Ltd against those two only and only appearance to defend
has been filed by both.
Significantly,
neither Zvabvirepi nor Saungweme are parties in any of the four
matters before me. As to how and indeed why the defendants would have
wanted a matter completely divorced from the current proceedings to
be consolidated with them is difficult to fathom. Ms
Dube
could only say that it is convenient to them as the evidence they
would lead in that new matter, which had just been issued and had not
even progressed to pretrial conference stage, is the same evidence
they proposed to lead in the present matters.
An
action is frivolous or vexatious in a legal sense when it is
obviously unsustainable, manifestly groundless or utterly hopeless
and without foundation; Rogers
v Rogers
SC 7/08.
That
is exactly what the application for the second consolidation, if at
all it has been made because Ms
Dube
did not refer to any case number for that doomsday application, is.
Clearly the defendants are intent on tying the plaintiff down to
footling court proceedings brought on spurious grounds in order to
stave off the day of reckoning, even when they have long admitted
taking delivery of goods worth $102,246-82 from the plaintiff, a
typical Zimbabwean way of doing business.
It
is for the foregoing reasons that, in the exercise of my discretion,
I dismissed the application for a postponement and directed that the
trial commences.
The
plaintiff then led evidence from Jackson Saungweme, its managing
director merely confirming the four claims which were admitted by the
defendants. He was cross examined by counsel for the defendants who
was only putting forward the basis of the counterclaim. Thereafter
the plaintiff closed its case.
It
was after the plaintiff had closed its case that Ms
Dube
for the defendants moved an application for an amendment of their
pleadings. She submitted that they proposed to lead evidence to the
effect that the defendants are subsidiaries of a holding company
knowing as New Dawn Mining (Pvt) Ltd, itself not cited in any of the
proceedings. Their approach was that whatever was owed to one was
owed to all of them. There was therefore a mistake in pleading their
case which they wished to correct by effecting an amendment. The
mistake was in submitting a counterclaim in HC1575/14, a case
involving the plaintiff and Falcon Gold Zimbabwe Limited t/a Golden
Quarry. The latter company did not employ Richman Zvabvirepi who, at
all times was employed by Casmyn Mining (Pvt) Ltd t/a Turk Mine. The
alleged theft by that individual is the source of the counterclaim
but through in-attention, the counterclaim is sitting in a matter
which does not involve Casmyn. The effect of the amendment would be
to uplift the counterclaim from where it is and plant it in
HC1577/14.
Ms
Dube
urged me to exercise my discretion in favour of the defendants and
grant the amendment. What the court has regards to in deciding
whether to allow an amendment or not was succinctly set out in UDC
v Shamva Flora (Pvt) Ltd
2000 (2) ZLR 210 (H) 217 C-F as:
1.
Whether to grant or refuse an amendment is discretionary upon the
court;
2.
An amendment cannot be granted for the mere asking but some
explanation must be offered therefore;
3.
The applicant must show that prima
facie
the amendment has something deserving of consideration, a triable
issue;
4.
The modern tendency is that the court will generally grant an
amendment if it facilitates the proper ventilation of the dispute
between the parties;
5.
The party seeking it must not be mala
fide;
6.
It must not cause an injustice to the other party which cannot be
compensated by costs;
7.
The amendment should not be refused simply as punishment to the
applicant for neglect;
8.
A mere loss of time is no reason in itself to refuse the application;
and
9.
If the amendment is not sought timeously some reason should be given.
See
also Commercial
Union Assurance Co. Ltd
v Waymark
N.O
1995 (2) SA 73 at 77 F – I; Whittaker
v Roos
and Another
1911 TPD 1092 at 1102-3; Kingdom
Merchant Bank Ltd
v Shah
and Another
HH159/13; Nuvert
Trading (Pvt) Ltd t/a Triple Tee Footwear
v Hwange
Colliery Company
HH791/15.
In
exercising my discretion whether or not to grant the amendment I
considered the above guidelines. I was mindful of the fact that
although there is a discretion reposed upon me, such must be
exercised judiciously. In my view, although the court will
ordinarily lean in favour of granting an amendment an amendment
should not result in prejudice to the other party which cannot be
rectified by an order of costs.
It
occurs to me that when an amendment is sought after the closure of
the plaintiff's case and the plaintiff does not have an opportunity
to address the amendment in evidence, no doubt the plaintiff will
suffer prejudice. It would be remembered that the purpose of pleading
is to inform the parties of the case they have to meet at the trial
and also to identify the branch of law under which the claim has been
brought: Chifamba
v Mutasa & others
HH 16/08.
Where
a party has already met the opposing case in evidence and an
amendment is then sought after that such amendment is clearly an
ambush designed to deprive the opponent an opportunity to properly
meet the case and ventilate. It has the effect of completely
incapacitating the other party. The application for such an amendment
cannot possibly pass the test. This is particularly so when the
applicant for an amendment has always known the case that is being
relied upon and it should have been apparent much much earlier that
something was amiss with the pleading.
I
am unwilling to exercise my discretion in a way that will prejudice
the other party. For those reasons I refused the belated application
for an amendment.
After
that ruling Ms
Dube
made a further application. This time she sought that the matters be
stood down to the following day to enable her to take further
instructions and to prepare for the presentation of the defendant's
evidence from two witnesses which had been lined up. Surprising
though such request was, given that the defendants were, even at that
late stage, unprepared to present their case, I granted them the
indulgence.
Further
surprises surfaced when the trial resumed the following day. Instead
of presenting the case for the defendant, counsel demanded that I
rule on the status of the counter claim given that their application
for an amendment had been refused. Not a shred of authority for that
novel application was cited and it was not disclosed how the court
could be in a position to rule on a pleading standing on its own and
not supported by evidence in the middle of a trial. Clearly I was
unable to determine whether the counterclaim was meritable without
the benefit of evidence and I was unwilling to take the bait.
In
my view, and I ruled accordingly, whether the counterclaim was
sustainable or not was dependent upon the evidence that the
defendants were going to lead. I advised the parties that I was
unwilling to nail my colours on the mast before assessing all the
evidence. I concluded that the counterclaim would remain as pleaded
and that it was up to the defendants to lead evidence to sustain it.
Ms
Dube
promptly withdrew the counterclaim and indicated that all the
defendants were consenting to judgment in the main claims. So ended
the sordid affair which is regrettable indeed.
The
manner in which the defendants conducted themselves in this matter
should not be repeated at all in this court, so is the manner in
which Joel
Pincus Konson & Wolhuter
presented the case for the defendants which was shockingly tardy and
left litigants, who may have had a case, unable to prosecute it
through a comedy of errors that would have left the mediaval court
jesters green with envy. They pleaded an unqualified admission of
liability and failed to properly counterclaim.
In
terms of s36 of the Civil Evidence Act [Chapter 8:01] it was not even
necessary to lead evidence to prove what had already been admitted.
See Wamambo
v Municipality
of Chegutu
2012 (1) ZLR 452 (H) 458E.
There
is no doubt in my mind that the conduct of the defendants require the
sanction of admonitory costs. They took the court down the garden
path and spent a lot of time throwing obstacles in the attainment of
justice only to capitulate and accept liability. There is nothing to
suggest that there was any desire to defend the action. They wallowed
under the misapprehension that they could continue preventing the
commencement of the trial. When that failed they were left with
nothing to say.
That
happens when legal representation is explained in mystical terms and
the legal practitioner presents himself or herself to a client as
being one imbued with magical qualities to determine whether a trial
takes off or not beyond the ken of mortals. When that magic, whether
real or imagined fades, it does so inexplicably and leaves the client
very wide open for a sucker punch. I have tossed with the idea of
costs de
bonis propriis
but I have decided not to award them because the belated arrival at
the scene of Ms
Dube,
was able to bestow a semblance of respectability in the defendants
camp which was in disarray. To her credit when she realized the
defendants could not be saved, she capitulated. However the
defendants still have to meet the costs on a punitive scale.
In
the result, it is ordered that
1.
In HC 1575/14 the defendant shall pay to the plaintiff the sum of
$18140-00 together with interest at the prescribed rate from 9 July
2014 to date of payment in full.
2.
In HC 1576/14 the defendant shall pay to the plaintiff the sum of
$18600-00 together with interest at the prescribed rate from 9 July
2014 to date of payment in full.
3.
In HC 1577/14 the defendant shall pay to the plaintiff the sum of
$40450-00 together with interest at the prescribed rate from 9 July
2014 to date of payment in full.
4.
In HC 1578/14 the defendant shall pay to the plaintiff the sum of
$250566-82 together with interest at the prescribed rate from 9 July
2014 to date of payment in full.
5.
The costs of suit shall be borne by the four defendants jointly and
severally the one paying the others to be absolved on the scale of
legal practitioners and client.
Joel
Pincus, Konson & Wolhuter, defendants'
legal practitioners
Calderwood,
Bryce Hendrie & Partners,
plaintiff's legal practitioners
