This
rescission of judgment application embodies everything that legal
practitioners should not do in the practice of law and typifies
egregious departures from proper behaviour which is taking root in
the legal profession and should be discouraged at all costs. In fact,
the matter should present a perfect case study for an ethics class.
The
respondent sued the two (2) applicants herein in HC1292/12 for a sum
of US$67,736,600= in respect of diesel fuel they had allegedly
appropriated. The summons was served on the applicants on 6 February
2012 but they did not enter appearance until the dies inducae
expired.
The
expiration of the dies did not stop the applicants, through their
then legal practitioners, Musarira Law Chambers, from purporting to
enter appearance on 21 February 2012 out of time. Interestingly, the
document purports that appearance was entered on 8 February 2012 when
it is dated 21 February 2012. They were represented by Anesu Vhusani
Bangidza who later deposed to an affidavit in support of the
application for rescission of judgment.
Notwithstanding
the applicants' belated, and, indeed, ill-conceived effort, given
the automatic bar firmly gripping them, judgment was entered against
them in default on 1 May 2012. In pursuance of that judgment, a writ
of execution was issued and the applicants' property attached in
execution on 11 June 2012 meaning that the applicants then became
aware of the default judgment. Despite such knowledge, the applicants
did not file an application for rescission until 29 August 2012 when
they purported to file one clearly outside the one month period
provided for in Rule 63(1) of the High Court of Zimbabwe Rules, 1971.
When they did so, they had not sought condonation for the late filing
of the application.
As
if the late filing of the application was not bad enough as it meant
that the application was improperly before the court, the so-called
application was not in Form 29 as required by Rule 230 of the Court's
Rules which provides:-
“The
court application shall be in Form No.29 and shall be supported by
one or more affidavits setting out the facts upon which the applicant
relies.
Provided
that where a court application is not to be served on any person it
shall be in Form 29B with appropriate modifications.”
This
particular court application had to be served on the respondent as
required by the Rules. It had to be in Form 29 which gives notice to
the respondent and the requisite dies inducae for filing opposition.
The applicants invented their own form of the application in
violation of the Rules and no amount of protestation given in writing
by the respondent's counsel could move them. That non-compliance
remains to this day; Zimbabwe Open University v Mazombwe 2009 (1) ZLR
101 (H).
More
importantly, although Rule 230 as read with Rule 227(4) requires a
court application to be supported by affidavit, this application is
supported by an 'affidavit' commissioned by the applicants'
then legal practitioner, Anesu Vhusani Bangidza, who had purported to
enter appearance on behalf of the applicant. The ubiquitous Bangidza
also deposed to a supporting affidavit expressing surprise at how
default judgment was entered when he had entered the appearance in
the Appearance Book. Never mind that it was out of time and that
although he did so and even signed the appearance on 21 February
2012, he dishonestly entered the date on the body of the appearance
as 8 February 2012.
So
much for professional etiquette and ethical conduct.
As
to how a legal practitioner could administer an oath of a client is
an unfathomable mystery. Section 8 of the Justices of the Peace and
Commissioners of Oath Act [Chapter 7:09] provides:
“A
justice of the peace or commissioner of oaths, may, within the area
for which he has been appointed, administer an oath to any person.
Provided
that he shall not administer an oath in respect of any matter in
relation to which he is, in terms of any regulation made under s11,
prohibited from administering an oath.”
Section
11 of the Justices of the Peace and Commissioners of Oath Act
[Chapter 7:09] empowers the Minister to make regulations prescribing
the circumstances under which such prohibition applies, which
regulations are the Justices of the Peace and Commissioners of Oath
(General) Regulations S.I.183 of 1993; section 2(1) of which
provides:-
“No
justice of the peace or commissioner of oath shall attest any
affidavit relating to a matter in which he has any interest.”
That
a legal practitioner has an interest in a matter involving a client
is pretty obvious. I associate myself fully with the pronouncement
made in Manyika v Manyika 1983 (2) ZLR 198 (H) that:-
“The
'interest' that excludes a Commissioner of Oaths from attesting
an affidavit is some participation in those proceedings as to
advantage or responsibility. A legal practitioner, even if acting pro
amico or pro deo, has an interest in any matter in which he is
professionally involved. The reason for the rule is, historically,
that it is the duty of a Commissioner of Oaths, before he administers
the oath, to satisfy himself that the witness thoroughly understands
what he is about to swear to and this duty is not likely to be
effectively discharged by the person who prepared the affidavit who
may well explain it in the sense he himself attached to it.”
See
also Chafanza v Edgars Stores Limited & Anor 2005 (1) ZLR 299
(H).
There
can be no doubt that the founding affidavit of the second applicant
is invalid as it was not properly attested by a Commissioner of
Oaths.
This,
coupled with the fact that the application itself is not in the form
prescribed by the Rules, means that there is no application at all.
I
have not been asked to condone any departure from the Rules. Even if
I was inclined to do so, in the exercise of my discretion, I would
find it hard to do so given that such discretion should be exercised
judiciously.
The
application is incurably defective.
I
must however point out that even the defective application was filed
out of time, the heads of argument were also filed out of time,
meaning that the applicants' counsel was barred.
As
the second applicant appeared in person, the issue of the bar
relating to the untimely heads of argument fell off. I however cannot
overlook it as it illustrates the unbelievable tardiness, the
dilatoriness, the disdain and indeed the contemptuous manner in which
all the legal practitioners who have cared to represent the
applicants have approached this matter.
I
have already stated that the appearance to defend was filed out of
time and no attempt was made to give an explanation for the delay.
Instead, the legal practitioner involved, with no trace of regret,
doggedly maintained that there was nothing wrong. In addition,
although the applicants were aware of the default judgement on 12
June 2012, and even rendered a payment plan, this application was
only filed on 29 August 2012, well outside the one month period
prescribed by the Rules. No application for condonation was made
meaning that right up to the date of hearing the applicants expected
to be heard on the merits of an application filed out of time without
seeking condonation.
It
has been repeatedly stated that an applicant who intends to bring a
rescission of judgement application out of time must first seek
condonation for the delay. Without an application for condonation, no
indulgence can be extended to such an applicant:
Viking
Wodwork (Pvt) Ltd v Blue Bells Enterprises Ltd 1998 (2) ZLR 249 (S);
Sai Enterprises (Pvt) Ltd v Girdle Enterprises (Pvt) Ltd 2009 (1) ZLR
352 (H); Ncube v CBZ Bank Ltd & Ors HB99-11…,.
At
the hearing of this matter, the applicants' counsel did not bother
to attend court. Instead, he sent the second respondent, and an
inappropriately dressed representative of the first respondent, with
a letter dated the same date addressed to the respondent's legal
practitioners and copied to my clerk which reads in relevant part
thus:
“RE:
HUGHBER PETROLEUM (PVT) LTD & ANOR V
BRENT OIL: CASE NO. HC1292/12
Reference
is to the above subject.
Kindly
be advised that our Mr Chekai, who is handling the matter, is
attending to a family emergency in his rural home in Chibi, which
emergency was occasioned by flooding of the Tokwe Mukosi River. We
kindly request that the matter be postponed to the 6th
March or any day thereafter to enable him to attend.
We
thank you in advance.”
Now,
this can be nothing but holding the court in contempt. Kantor &
Immerman are not the court and certainly do not postpone matters.
It
is the court that does.
The
law firm of M.C. Mukome did not have the courtesy or indeed the
integrity to send a legal practitioner to attend court and seek a
postponement if indeed there was a valid reason for that. Instead,
they sent their client to do that with a letter suggesting that a
postponement was always there for the taking not even the asking.
Even the story about a legal practitioner attending to floods in
rural Chibi sounds as fictitious as it is dishonest.
Counsel
for the respondent submitted that he had been handed the letter by
the applicants' in court. In addition to that, this matter was
postponed on a previous date, 12 September 2013, to enable the
applicants counsel to file an application for condonation of the late
filing of heads of argument. Such application was not filed.
These
courts will never accept legal practitioners who elect to conduct
their practices tardily and in a chaotic manner to extend such
tardiness and chaos to the doorsteps of the court. Courts of law have
a duty, not only to conduct their affairs in a dignified and
transparent manner in dispensing justice, but also to protect their
integrity against the machinations of the bad elements in the
profession. Legal practitioners who take the court for granted in
this manner run the risk of having costs granted against them de
bonis propiis in order to discourage egregious departures from proper
standards of professional behaviour.
The
law firm of M.C. Mukome is fortunate that counsel for the respondent
did not press for such costs electing to seek punitive costs only
against the applicants. I do not see the reason why such costs should
not be granted….,.
Over
and above that, as demonstrated above, the application suffered a
still birth. The second applicant did make submissions on the merits
- which did not help the applicants' case at all.
In
the light of the foregoing, and the fact that the respondent has been
subjected to footling court proceedings brought on spurious grounds
in order to stave off the day of reckoning, costs will be awarded on
a punitive scale.
In
the result, the application is hereby dismissed with costs on the
legal practitioner and client scale.
