MAKONI
J:
Mr
Katsande
approached this court seeking the following order;
1.
The writ of execution in case HC8046/12 dated 18 February be and is
hereby set aside.
2.
The first and second respondents jointly and severally the one paying
the other to be absolved shall bear the costs of the
application on an attorney client scale.
The
background to the matter is that Mr Katsande,
in case No. HC8046/12, unsuccessfully sued the second respondent for
non-payment of his fees. The judgment was handed down on 31 October
2013. On 18 November 2013, Mr Katsande
filed an appeal in the Supreme Court and served it on Messers
Venturas & Samukange. On 18 February 2014, the second respondent
obtained a writ of Execution from this court. On 26 February 2014,
the Mr Katsande,
through Messrs Katsande wrote to Messrs Venturas & Samukange
advising them that they had noted an appeal against the judgment in
HC8046/12. They challenged Messrs Venturas & Samukange to provide
the legal basis upon they had obtained a writ when there was an
appeal pending. The letter concluded by advising that if there was no
compliance with their request then they would have no option but to
have recourse at law. There was no response to that letter. On 28
February 2014, Mr Katsande
filed the present proceedings.
The
basis for seeking the relief is that, in terms of the law, noting an
appeal suspends the operation of the judgment appealed against. The
writ is grossly irregular and must have been compiled by the first
respondent with malicious intent.
The
first respondent in opposing the application took issue, in
limine,
as to why he had been cited in his personal capacity. On the merits,
both respondents oppose the application on the basis that the appeal
is defective as Mr Katsande
did not follow the laid down rules of the court. The second
respondent gave instructions to Mr Samukange
to apply to have the appeal struck out for failure to comply with the
rules. The respondents further aver that at the time the application
was noted the writ had already been issued and noting of an appeal
did not suspend the writ.
At
the hearing of the matter Mr Katsande,
in
limine,
submitted that the respondents were barred in terms of rule 238(2b)
for failure to file heads of arguments.
In
response, Mr Samukange
submitted that he was a self-actor and is not obliged to file heads
of argument. The Mr Katsande
conceded the point. If the point had been argued, Mr Samukange
would have had difficulties in sustaining his argument as his
opposing papers were filed by Messrs Venturas & Samukange. They
did not file a notice of renunciation of agency. Mr Samukange
was,
on record, still being represented by Messrs Venturas &
Samukange. Since the point was conceded and civil litigation is party
driven, I am not required to make a determination.
In
respect of the second respondent, Mr Samukange,
on behalf of the second respondent, did not seek to make an
application for upliftment of the bar as provided for in the terms of
rules. He instead wanted to justify why it was not necessary for the
second respondent to file heads of argument which he could not do as
the second respondent was barred.
As
a result I made a finding that the second respondent was barred.
In
respect of Mr Samukange's
point in
limine,
he submitted that the applicant had cited him in his personal
capacity without giving an explanation. He further submitted that he
works for Messrs Venturas & Samukange. That is the firm that
issued the writ under the instructions of the second respondent as a
party to the proceedings. After it had been brought to their
attention that an appeal had been noted, the second respondent
stopped the execution. He wondered why Messrs Venturas &
Samukange were not cited. He further submitted that in any event the
order being sought by the applicant has been over taken by events as
the appeal had lapsed. He produced the notice to Messrs F.M. Katsande
& Partners dated 19 December 2014, to that effect, from the
Registrar of the Supreme Court.
In
response Mr Katsande
submitted, from the
bar,
that there was an administrative error on the part of the Registrar
to deem the appeal lapsed. He had made representations to the
Registrar of the Supreme Court and the issue was still being
considered.
He
further submitted that having filed the appeal Mr Samukange
instructed
the Deputy Sheriff to execute. He did file for leave to execute
pending appeal. The Deputy Sheriff indicated that he was under
instruction from Mr Samukange.
It was therefore necessary for Mr Samukange
to
explain the legal basis upon which he instructed the Deputy Sheriff
to execute. He further submitted that Mr Samukange
was “the miscreant and master mind” of the whole issue.
As
was correctly submitted by Mr Samukange,
the appeal was deemed lapsed by the Registrar of the Supreme Court.
The order that the applicant sought has therefore been over taken by
events. The representations that the applicant made to the Registrar
will not assist him unless and until the appeal has been re-instated.
Mr Samukange
was correct to submit that the process being complained of was issued
by his law firm on the instructions of the second respondent. Mr
Katsande
had to go a step further than just submitting that the writ was
issued on the instructions of Mr Samukange.
He must establish a basis to impute malice on the part of Mr
Samukange.
He branded Mr Samukange
a miscreant and master mind without laying down a basis for saying
so. The use of such language was uncalled for considering that at,
the outset, I had advised both parties not to act for themselves but
instruct counsel or some other legal practitioner. It is not the
first time that the courts have complained about Mr Katsande's
use of intemperate language. In Global
Electrical MFRS
v Nex
Bak Investments (Pvt) Ltd & Ors 2006
(1) ZLR 205 (S) at 210 D-F GARWE JA had cause to censure Mr Katsande
on the use of intemperate language. Although in that case he had used
inappropriate language against a judge, my view is that the censure
applies to the circumstances of this case. Mr Samukange
is an officer of the court and a senior member of the profession in
the same manner that Mr Katsande
is.
GARWE JA at p 201 F concluded by saying:
“The
need for legal practitioners to moderate their use of language
becomes even more pronounced in a case, such as the present where the
attack is found to be completely without foundation”.
I
associate myself with these sentiments considering the outcome in
this matter.
In
view of the above, I will uphold the applicant's points in
limine.
Mr
Samukange
prayed to be awarded costs of a higher scale. I see no reason of
denying him that prayer. Mr Katsande
failed to advance argument as why the first respondent was cited in
his personal capacity when all he was doing was representing the
interests of the second respondent as a legal practitioner. There is
need to censure Mr Katsande
for the use of inappropriate language.
Accordingly
I will make the following order:-
1.
The application is dismissed.
2.
The applicant to pay first respondent's costs on a legal
practitioner client scale.
F.M.
Katsande & Partners,
applicant's legal practitioners
Venturas
& Samukange, 1st
& 2nd
respondents' legal practitioners
