Chamber
Application
MAWADZE
J:
This
is a chamber application in which the first applicant seeks an order
in the following terms:
“IT
IS ORDERED THAT:
1.
Case Number HC5867/10 be and is hereby dismissed for want of
prosecution; and
2.
The plaintiff be and is hereby ordered to pay costs of suit.”
There
is need to set out the brief facts of the matter which give rise to
this chamber application.
Background
facts
The
first, second, third and fourth applicants herein are the first,
second, third and fourth defendants respectively in the main action
in which the respondent herein is the plaintiff. This chamber
application is made by the first applicant Elias Kaseke only and the
second to fourth applicants have not made any application. I shall
revert to that aspect later.
In
the main action the respondent (plaintiff in the main action) issued
summons out of this court on 25 August 2010 claiming the following
relief against the first to fourth applicants (the first to fourth
defendants in the main action):
“Wherefore
the plaintiff claims against the defendants;
(a)
An order declaring the sale and transfer of 1458 shares in Kennedine
Investments (Pvt) Limited together with attendant rights in property
known as Number 22 Kennedine Court, corner 7th
and Central Avenue, Harare, from the third defendant to the second
defendant and subsequent sale and transfer of same shares and rights
from the second defendant to the first defendant held under share
certificate number 98 to be null and void, and of no force or effect.
(b)
An order setting aside the sale and transfer of 1458 shares in
Kennedine Investments (Pvt) Limited under share certificate number
98, together with attendant rights in property known as Number 22
Kennedine Court, corner 7th
street and Central Avenue, Harare, from the third to second
defendant, and the subsequent sale and transfer of the same shares
and rights from the second defendant to the first defendant held
under share certificate number 98.
(c)
An order for eviction forthwith, of the first defendant and any
persons claiming occupation through him from certain premises known
as stand number 22 Kennedine court, corner 7th
Street and Central Avenue, Harare.
(d)
Costs of suit.”
The
basis of the claim in the main action is that the respondent (the
plaintiff in the main action) was appointed the Executrix dative of
the Estate of the Late Jessie Zengeya who died on 22 September 1992
as per Letters of Administration Number 2597/92.
In
casu
the
first
applicant (the first defendant in main action) resides at Number 25
Armadale Road, Borrowdale, Harare. The second applicant (the second
defendant in the main action) is a male adult residing at Number 5
Plymouth Road, Chadcombe Hatfield, Harare. The third applicant (the
third defendant in the main action) is a female adult residing at
Number 34 Longford Road, Queensdale, Harare and the fourth applicant
(the fourth defendant in the main action) is the Master of the High
Court cited in his official capacity.
The
dispute in this matter involves certain immovable property known as
Number 22 Kennedine Court situated at corner 7th
Street and Central Avenue, Harare. It is a unit within a block of
flats which block is registered in the name of Kennedine Investments
(Pvt) Ltd and is fully known as a certain piece of land situate in
the District of Salisbury called No. 1137 Salisbury Township
measuring 892 square metres and ownership therein being evidenced by
the issue of a share certificate in the aforementioned company
corresponding to a particular unit in the block.
The
property in dispute belonged to the late Jessie Zengeya who during
her lifetime did not dispose of this property according to the
respondent (the plaintiff in the main action) who was later appointed
the Executrix dative of the same Estate and also did not dispose of
the property (hereinafter known as No.22 Kennedine Court).
On
26 September 2006 the third applicant (the third defendant in the
main action) claiming to be the rightful owner of shares and rights
pertaining to No. 22 Kennedine Court purported to sell the share and
rights in question to the second applicant (the second defendant in
the main action) as per an agreement of sale Annexture D to the
respondent's (the plaintiff in the main action) declaration.
The
respondent (the plaintiff in the main action) contends that the third
applicant (the third defendant in the main action) did not have
authority of the Executrix dative (the respondent) of the Estate of
the late Jessie Zengeya to dispose of the property hence her
purported sale of the shares and rights of the property pertaining to
No.22 Kennedine Court was not only unlawful but fraudulent.
Further,
the respondent contends (the plaintiff in the main action) that the
relevant consent from the fourth applicant (the fourth defendant in
the main action) the Master of the High Court was not obtained for
the disposal of the shares and rights in the property in issue.
The
point made by the respondent in the main action is that the third
applicant (the third defendant in the main action) had no title in
the shares and therefore could not pass title to the second applicant
(the second defendant in the main action).
In
fact the first and final administration and distribution account was
filed by the respondent (the plaintiff in the main action) in
DR5597/92 on 23 September 1994 indicating that the property No. 22
Kennedine Court was still the property of Estate late Jessie Zengeya.
On
15 July 2007 the second applicant (the second defendant in the main
action) purported to sell the rights, title and interests in the
property No. 22 Kennedine Court to the first applicant (the first
defendant in the main action) for Zimbabwe dollars $450,000-00 as per
an agreement of sale marked Annexture D to the respondent's (the
plaintiff in the main action) declaration.
As
a result a share certificate (Annexture B) was produced in favour of
the first applicant (the first defendant in the main action)
purportedly showing that the first applicant had purchased 1458
shares in Kennedine Investments (Pvt) Ltd which shares correspond to
the use and enjoyment of No. 22 Kennedine Court.
As
already stated the respondent (the plaintiff in the main action)
contends these shares belong to the Estate of Late Jessie Zengeya and
the third applicant (the third defendant in the main action) could
not pass title to the second applicant (the second defendant in the
main action) who also consequently could not pass title to the first
applicant (the first defendant in the main action).
The
respondent (the plaintiff in the main action) stated that she only
became aware of these illegal transactions involving the first,
second and third applicants (the first, second and third defendants
in the main action) sometime in July 2010 upon attempting to serve a
notice of eviction on the current occupant of the property. This
compelled the respondent (the plaintiff in the main action) to issue
summons out of this court against all the applicants (the defendants
in the main action) on 25 August 2010.
It
is common cause as per the record that the second, third and fourth
applicants (all the defendants in the main action) did not enter an
appearance to defend in terms of the rules and the presumption
therefore is that they are all barred.
It
is only the first applicant (the first defendant in the main action)
who entered an appearance to defend on 17 September 2010 after being
served with summons on 30 August 2010.
It
would appear from the record the respondent (the plaintiff in the
main action) did not seek any order against the second and third
applicants (the defendants in the main action) after then failure to
enter any appearance to defend.
The
first applicant filed his plea in terms of the rules which was served
on the respondent (the plaintiff in the main action) on 27 September
2010. The respondent (the plaintiff in the main action) in turn filed
her replication on 11 October 2010. No further action was taken in
the main matter/action.
This
means that from 11 October 2010 until 25 October 2011 a period of
about 12 months nothing was done on the main action.
This
then prompted the first applicant to file this chamber application on
25 October 2011 seeking the dismissal of the respondent's (the
plaintiff in the main action) claim in the main action for want of
prosecution and costs of suit.
I
was allocated the chamber application on 21 November 2011 and I
directed the first applicant to file proof of service of the
application and to cite the relevant rule/rules of this court upon
which the application is premised.
The
counsel for the first applicant only responded to the issues raised
on 20 January 2012 and attached the relevant proof of service. In
relation to the issue of the rules of the court relied upon the
response filed is as follows:
“We
refer to your letter dated 5 December 2011 wherein the honourable
Justice MAWADZE wanted clarification and confirmation of two issues
viz:
(a)
Cite the rule or rules relied upon; and
(b)
Proof of service of this application.
In
terms of Order 32 r226 all applications for whatever purpose in terms
of the High Court rules shall be made;
226(a)…
(b)
As chamber application, that, is to say, in writing to a judge.
226(2) An
application shall be not be made as a chamber application unless;
(a)…
(b)
These rules or other enactment so provide; or
(c)
The relief sought if procedural………….. (omissions mine).
The
relief that is being sought is procedural.
The
plaintiff issued summons out of this honourable court and were served
on the applicant on 30 August 2010. The applicant filed a notice of
appearance to defend on 17 September 2010. The application was
subsequently filed on 24 September 2010. The plaintiff to date only
filed a replication and no other pleadings in order to advance
action.
In
terms of Order
9 r61,
the defendant is given a right to make a chamber application to
dismiss the action for want of prosecution.
We
respectfully submit that this matter falls within the provision of
the rules cited above and we pray for an order dismissing the court
action for want of prosecution. The plaintiff won't suffer any
prejudice as it can relauch the court action when it feels like.”
(underlining is mine)
I
received the above quoted response on 25 January 2012 and in view of
the ambiguity with which the counsel for the first applicant had
responded to the query raised I directed the first applicant's
counsel to approach me in chambers and make further submissions.
The
counsel for the first applicant was only able to do so on 30 January
2012.
The
counsel first applicant Ms Mageza
had no meaningful submissions to make except to insist that her
response as filed of record was in order. She conceded that she was
only representing the first applicant and was unable to explain why
she had cited the second to fourth applicants as the applicants.
Let
me now deal with the merits of the chamber application.
This
chamber application has been filed by the first applicant only and
therefore it is improper and irregular for the counsel for the first
applicant to proceed to cite the second to fourth defendants in the
main action as the applicants in this matter.
The
second to fourth defendants in this main action has not filed any
application before the court nor any supportive affidavits.
As
already said the second and third defendants in the main action may
for an intents and purposes be barred for failure to enter an
appearance to defend. See Order 7 r50.
It
would therefore be incompetent in my view to cite the second to
fourth defendants in the main action as applicants in this chamber
application which is only made by the first defendant in the main
action.
The
first applicant cannot stampede the second to fourth applicants to be
part to the proceedings to which they have not expressed any
interest.
I
now turn to the response filed by the first applicant's counsel.
It
is disheartening to note that in many chamber applications filed with
the court legal practitioners do not seem to appreciate the need to
cite the relevant rules of the court upon which such an application
is premised.
Such
an approach in my view would ensure that the legal practitioner from
the onset is conversant with the rules of the court applicable. This
would in turn save a lot of time wasted when queries are raised by
the court on such mundane issues.
In
casu,
the
first applicant's response is that this application is made in
terms of Order 9 r61 which provides as follows:
“Where
the plaintiff has been duly barred from declaring or making a claim
the defendant may, without notice to the plaintiff, make a chamber
application to dismiss the action for want of prosecution, and the
judge may order the action to be dismissed with costs or make such
other order on such terms as he thinks fit.”
I
totally disagree with the first applicant.
The
plaintiff in the main action has not been barred hence Order 9 r61 is
inapplicable in the circumstances of the case.
The
first applicant also makes vague reference to Order 32 r226.
It
is common cause that Order 32 of the rules relates to application
procedure. The question which arises therefore is whether it is
proper in the circumstances of this case for the first applicant to
file a chamber application of this nature. Put differently can a
defendant in a matter commenced by way of summons seek to have the
plaintiff's case dismissed for want of prosecution after closure of
pleadings.
I
am of the firm view that there is no direct provision in the High
Court rules which provides for the dismissal of the plaintiff's
case for want of prosecutions where pleadings are closed and the
plaintiff has not been barred.
Indeed
the applicant has not been able to cite the relevant rule.
In
the case of Anchor
Ranching (Pvt)
Ltd v
Beneficial Enterprises (Pvt)
Ltd & Anor
2008 (2) ZLR 246 H BERE J had to deal with a similar question and had
this to say at pp248H–249A:
“Does
r236(3)(b) apply to actions commenced by way of summons?
It
will be noted that Order 32 is headed 'Application Procedure'. A
simple reading of the whole of that order shows, in very clear terms
that it is exclusively devoted to the manner and form which
applications must take. Order 236(3) deals specifically with aspects
of filing of a notice of opposition, opposing affidavit and answering
affidavit. There is no reference to filing of pleadings in this rule.
In my view, the legislature was clear in what was intended and it
would be stretching it too far to argue that the same provision
should cover pleadings. The legislature would have been clear if it
so desired. The words used are clear and they require no further
stretched interpretation.”
It
is clear from the facts of this case that the respondent (the
plaintiff in the main action) joined issue with the first applicant
(the first defendant in the main action) after filing the replication
in terms of Order 19 of the rules. This in essence would mean that
the pleadings are closed in terms of Order 16 r107(b).
It
is common cause that the respondent (the plaintiff in the main case)
took no action after closure of pleadings.
The
first applicant in my view should have resorted to the various
options available to him in terms of the rules where pleadings are
closed. These include the option to seek directions in terms of Order
23 or to compel discovery in terms of Order 24 r160 or to trigger the
curtailment of proceedings in terms of Order 26 by seeking a
pre-trial conference.
It
is competent for the first applicant (the first defendant in the main
action) to initiate any of these procedures in order to bring to
finality the litigation commenced by the respondent (the plaintiff in
the main action) by way of summons).
I
am therefore satisfied that the procedure adopted by the first
applicant is wrong and that the order sought by way of a chamber
application in the circumstances is incompetent.
The
application is dismissed with no order as to costs.
J
Mambara & Partners,
1st
applicant legal practitioners
