MOYO
J: The
applicant in this matter was granted an interdict couched in the
following manner:
“(1)
The Sheriff, with the assistance of the ZRP Magwegwe Police Station,
eject respondent and all those who claim through him from 3528
Magwegwe North in Bulawayo forthwith.
(2)
That if respondent defies the ejectment process or reinstates
himself, the ZRP are ordered to arrest him so that he is prosecuted
in a court law.”
The
terms of the final order sought were as follows:
“1.
The respondent be and is hereby declared to be in contempt of the
Magistrates' Court order issued on 24 February 2014 under case
number 4414/10 arising out of his actions on 27 April 2015 wherein he
unlawfully reinstated himself into the property known as 3528
Magwegwe North Bulawayo.
2.
The respondent is ordered to pay the sum of $5,000-00 as a fine in
default of which the respondent is to be convicted to gaol for a
period of 90 days at Bulawayo prison.
3.
The respondent shall not be heard until when he has purged his
contempt for this court.
4.
The eviction of the respondent from the property known as 3528
Magwegwe North be and is hereby confirmed.
5.
The actions of the respondent be and are hereby declared to be an act
of spoliation.
6.
The respondent pays the costs of suit at an attorney and client
scale.”
I
confirmed the provisional order with an amendment on the fine in the
sum of $5,000-00 altered to $500-00 and advised the parties that my
detailed reasons for the confirmation were to follow:
Here
are they:
The
facts of the matter are that respondent was ordered to be ejected by
the Magistrates Court from 3528 Magwegwe. He was duly evicted after a
writ had been issued. Upon his eviction applicant took control of the
property.
Respondent
then forcefully reinstated himself into the property.
The
respondent was ejected on 5 May 2014, but immediately reinstated
himself, he then filed an appeal against the eviction on 15 May 2014
and served it on the applicant on 20 June 2014. At the time applicant
appealed, he had already been ejected from the property and in fact
he had already defied the court order as he occupied the property
soon after ejectment. On 28 October 2014, respondent's appeal was
dismissed by the High Court, and despite that fact, respondent
remained in occupation of the property. Respondent became aware that
his appeal was dismissed as on 4 December 2014 he filed a chamber
application seeking condonation for reinstatement of the appeal.
Upon
the dismissal of the appeal, the Messenger of Court was instructed to
re-evict the respondent. The respondent resisted eviction and was
violent. This was captured by the Messenger of Court in his return of
service filed in the court record.
The
respondent filed opposing papers.
In
paragraph 6 of the opposing affidavit, respondent confirmed that he
reinstated himself into the house after sleeping in the open for a
few days as he was left at the mercy of the weather elements. As
against the allegations that he resisted eviction by the Messenger of
Court on 27 April 2015, he responded by stating in paragraph 8 of his
affidavit that that was admitted in part and went on to say that the
balance of equities would therefore lean in favour of the parties'
son, Talent Maseko as well as the respondent (himself) being housed
pending the determination of the motion.
The
respondent was clearly in contempt of the Magistrates Court order,
not only before his appeal was thrown out on 4 December 2014, but
also as at 27 April 2015, when he resisted eviction by the Messenger
of Court who even captured in his return of service that respondent
was even violent. Respondent's conduct is contemptuous, and
deplorable and he clearly showed a blatant disregard for court
processes right until the end.
It
is for these reasons that I confirmed the provisional order.
I
also admonished respondent's legal practitioner for advancing lame
arguments on behalf of the respondent as well as not being fully
prepared for the hearing which was given at least three weeks'
notice.
Mr
Muzvuzvu,
who had advised the court that he was renouncing agency had turned up
in court at the last minute seeking to represent the respondent. He
was however ill prepared and misrepresented facts in his submissions,
so much so that Mr
Chamunorwa
(counsel for the applicant) had to object to some of the factual
submissions as presented by Mr
Muzvuzvu.
I
thus warned Mr
Muzvuzvu
that his conduct was not befitting of a legal practitioner who is an
officer of the court.
Legal
practitioners have a duty to diligently, honestly and truthfully
represent their clients. They owe that duty not only to the client
but to the court as well as their fellow legal practitioners. It is
deplorable for a legal practitioner to seek to misrepresent facts so
as to defeat the ends of justice. Legal ethics demands that the core
values of the profession, that is diligence (being fully prepared to
argue a case), honesty (making submissions in accordance with the
true facts of the matter), be observed by all in the practice of law,
for if that is not the case, the ends of justice will not be
achieved. An ill prepared or dishonest legal practitioner, deceives
the court and this will result in justice being robbed.
Applicant
thus from the facts as stated herein did make a case for the relief
sought, with respondent's opposing affidavit also proving the facts
as alleged by applicant.
I
accordingly confirmed the provisional order as amended.
Calderwood,
Bryce Hendrie and Partners,
applicant's legal practitioners
Muzvuzvu
Law Chambers,
respondent's legal practitioners
