Urgent
Chamber Application
TAKUVA
J: Applicant
filed what he termed an “Ex-Parte Chamber Application” on 24 June
2016 praying for a spoliation order on the basis that respondent has
unlawfully occupied plot number 14 and erected a fence on the
boundary of the said plot.
The
facts are that the applicant was offered subdivision 13 of Richardson
Farm in Umguza District of Matebeleland North province by the
Minister of State for National Security, Lands, Land Reform and
Resettlement in the President's Office on 12 January 2009. The farm
is approximately 300 hectares in extent. Respondent meanwhile was
offered by the same authority subdivision 14 of Richardson A in
Umguza District of Matebeleland North Province for agricultural
purposes. The farm is approximately 100 hectares in extent.
However,
applicant in his founding affidavit states that he was allocated a
plot in the year 2000 at Richardson Farm. He claims he obtained an
offer letter which he marked “A” but in actual fact he did not
attach any Annexure A. He further claimed that the same plot was
increased from “100 hectares to 300 hectares” in 2005 and that
this plot is known as “plot number 14 on paper but 9 on the
ground.” According to him, respondent “voluntarily moved out of
his plot 14 on paper but number 9 on the ground.”
Applicant
alleged that respondent came to the farm on an unspecified date and
dumped old tyres on applicant's yard. Later, it is alleged
applicant erected a fence around “a portion of the farm”,
effectively cordoning off this area.
Finally
applicant contended that he firstly was in peaceful and undisturbed
possession of the property and secondly that the respondent
dispossessed him forcibly or wrongfully of the property.
Respondent
on the other hand opposed the application on the following grounds:
(a)
The matter is not urgent in that applicant does not state in his
founding affidavit when he was allegedly despoiled of possession of
Plot 14. The certificate of urgency it was contended has been
affected by the same malady.
(b)
On the merits it was argued that firstly, applicant was never in
peacefully and undisturbed possession of the farm and secondly, that
logically flowing from the first point, respondent did not deprive
applicant of the possession forcibly on wrongfully in that respondent
has always been in occupation of his farm, despite applicant's
incessant and unjustified claims of ownership of subdivision 14.
There
are two issues for consideration. The first is whether this
application is urgent. The second is whether applicant has satisfied
the requirements of a spoliation order.
As
regards the first issue the starting point is Rule 244 of the High
Court Rules 1971. It states;
“Where
a chamber application is accompanied by a certificate from a legal
practitioner in terms of paragraph (b) of subrule (2) of rule 242 to
the effect that the matter is urgent, giving
reasons for its urgency,
the registrar shall immediately submit it to a judge, who shall
consider the papers forthwith.
Provided
that, before granting or refusing the order sought, the judge may
direct that any interested person be invited to make representations,
in such manner and within such time as the judge may direct, as to
whether the application should be treated as urgent.” (my emphasis)
In
Kuvarega
v Registrar-General
and Another
1998 (1) ZLR 188 (H) CHATIKOBO
J
remarked;
“Applications
are frequently made for urgent relief. What constitutes urgency is
not only the imminent arrival of the day of reckoning; a
matter is also urgent if at the time the need to act arises, the
matter cannot wait.
Urgency which stems from a deliberate or careless abstention from
action until the deadline draws near is not the type of urgency
contemplated by the rules. If there has been any delay, the
certificate of urgency or supporting affidavit must contain an
explanation of the non-timeous action.” (my emphasis)
The
matter was recently succinctly put by MALABA
DCJ while
dealing with what should be set out in a founding affidavit and
certificate of urgency in Mayor
Logistics (Pvt) Ltd
v ZRA
2014
(2) ZLR 78 (C) as follows;
“A
party seeking to be accorded such preferential treatment must set out
in the founding affidavit facts which distinguish the case from
others to justify the granting of the order for an urgent hearing
without breach of the principle that similarly situated litigants are
entitled to be treated alike.”
It
is trite that generally an application for spoliation order should be
dealt with on urgent basis – Gifford
v Muzire
and Others
2007 (2) 131 (H). It is also accepted that where a situation has
existed for a significant time before an application is mounted such
an application will be deemed not urgent. See Gwarada
v Johnson
and Others
2009 (2) ZLR 159 (H) where the court remarked thus;
“Urgency
arises when an event occurs which requires contemporaneous resolution
the absence of which would cause extreme prejudice to the applicant.
The applicant must exhibit urgency in the manner in which he has
reacted to the event or threat.”
In
an urgent application the applicant must act with the utmost good
faith and lay all relevant facts before the court – Bulawayo
Dialogue Institute
v Matyatya
NO and Others
2003 (2) ZLR 79 (H), Grasprak
Investments (Pvt) Ltd
v Delta
OPS (Pvt) Ltd and Another
2001 (2) ZLR 551 (H). Further, urgency need not only be established,
but the applicant himself must have treated the matter as urgent
Madzivanzira
and Others
v Dexpoint
Investments (Pvt) Ltd and Another
2002 (2) ZLR 316 (H).
Applying
these principles to the facts in casu,
I find it extremely difficult to conclude for a number of reasons,
that this application is urgent.
Firstly,
applicant does not, in his founding affidavit state when he was
despoiled. The certificate of urgency signed by a legal practitioner
is also silent on this crucial point. I say this is a crucial issue
because of the chequered history of the parties. It is common cause
that the parties are embroiled in a running legal battle that started
in 2015 under cover of case number HC920/15. It spilt into 2016 under
cover of case number HC1457/16. Both cases are pending determination.
Case number HC920/15 was referred to trial on 31 May 2016.
Consequently, it becomes totally meaningless in my view, for
applicant to simply file an urgent application on 24 June 2016 for a
spoliation order without specifically stating when the conduct he is
complaining about occured.
How
is a court expected to ascertain the urgency of such an application?
How is it possible to assess whether the applicant has acted
timeously or not in the absence of a precise and specific averment on
when he was dispossessed of the property?
Secondly,
applicant in my view, has not made a full disclosure of all material
facts in that he has dishonestly concealed material facts. For
example, he refers to Plot 14 as his plot when in actual fact it is
not his plot. Let me reproduce portions of his founding affidavit in
order to illustrate the points I am making. In Paragraph 5, he gives
the background as follows;
“5.
I was allocated a plot in the year 2000 at Richardson Farm. I annex
hereto and mark 'A' a copy of the offer letter.”
What
should be noted is that he does not indicate the plot number and the
so-called offer letter is not annexed at all.
“6.
In 2005, the plot was increased from 100 hectares to 300 hectares as
I was carrying on successful farming activities. The extension was
approved by all the relevant bodies. However, the Minister of Lands
and Rural Resettlements did not regularize the change in boundaries.
7.
I have been in occupation of my plot with shifted boundaries for the
past
15 years.
The
plot
number is 14 on paper but 9 on the ground.
8.
Meanwhile, the respondent voluntarily moved out of his plot 14 on
paper but number 9 on the ground. This has been obtaining for the 15
years and either party has been in occupation without any disturbance
or interference from the other.”
No
documentary proof whatsoever has been attached in support of the
averments in paragraph 6 in respect of “shifted boundaries.”
Also, the apparently confusing and meaningless phrase “plot 14 on
paper but 9 on the ground” has been left unexplained. Instead,
applicant claims that plot 14 is his. This in my view, is when the
element of dishonesty comes in because the undisputed facts are that
applicant was offered plot 13, while respondent was offered plot 14
of the same farm. For some reason, applicant has made overtures to
the relevant authorities for permission to own plot 14. This quest
has triggered numerous legal disputes between the parties.
In
paragraph 9 of his founding affidavit, applicant states:
“9.
On 10th
April 2015, the respondent caused to be issued undercover of case
number HC920/15, summons against myself wherein he claimed an order
declaring that he is the lawful owner of plot 14. I defended that
matter through my legal practitioners of record and the matter
reached pre-trial conference stage wherein the Hon. Mr Justice
MATHONSI referred the matter to trial.
10.
Pending
the determination of that matter, the respondent has in his wisdom
seen it fit to attend to
the farm I am occupying
and wreak all manner of havoc.
11.
Initially he came with old tyres and dumped them in my yard. Later,
he was to return and erect a fence around a portion of the farm and
resultantly condone off the area making it inaccessible to me.”
(my emphasis)
Quite
evidently, the applicant has not divulged when
respondent allegedly “attended to the farm” or erected the fence.
The use of words like “initially” and” later” are so vague
that they tempt the court to venture into speculative mode.
I
am aware that applicant has filed what he called an “answering
affidavit” in which he rather belatedly stated that he was
despoiled on 12 June 2016. In my view, the applicant's case must
stand or fall on the basis of the affidavits.
In
casu,
the founding affidavit and the certificate of urgency do not give the
dates nor the plot in issue. Allowing an answering affidavit in this
case would seriously prejudice the respondent in that it deprives the
respondent of an opportunity to deal with those issues.
An
answering affidavit is provided for in court applications in rule 234
of the rules and not in chamber applications. In terms of rule 235,
after an answering affidavit has been filed no further affidavits may
be filed without the leave of a court or a judge. I take the view
that a cause of action must be set out in the founding affidavit. It
is improper to raise new matters in an answering affidavit. See
Magwiza
v Ziumbe
No and Another
2000 (2) ZLR 489 (S).
Further,
applicant filed his answering affidavit after the respondent had
filed his heads of argument. The applicant did not seek leave of the
court to file the answering affidavit. This is undesirable and
irregular. See Magurenje
v Maphosa
and Others
2005 (2) ZLR 44 (H). The fact of urgency must appear from the
founding affidavit, and where no such averment is made in that
affidavit, there will be no legal basis for a legal practitioner to
issue a certificate of urgency as that certificate is in turn based
on the founding affidavit. Logically, if there is no valid
certificate of urgency then rule 244 has not been complied with.
In
Econet
Wireless (Pvt) Ltd
v Postal
and Telecommunications Regulatory Authority of Zimbabwe
2014 (2) ZLR 693 (H), DUBE
J
remarked that;
“A
certificate of urgency is required to be premised on a founding
affidavit.---- A legal practitioner cannot certify a matter as being
urgent where the applicant itself does not hold the view that the
matter is urgent. The founding affidavit must disclose urgency. The
deponent to the founding affidavit should therefore be alive to the
fact that he is bringing a matter to court on an urgent basis. It is
incumbent upon him to articulate fully in his affidavit, why he is
bringing the matter on an urgent basis and why he cannot wait and
enroll the matter on the ordinary roll. He cannot simply regurgitate
the history of the matter and expect that he may persuade the court
to find the matter urgent by merely outlining the irreparable harm
likely to ensue. He must make specific averments on the allegation
that the matter is urgent and cannot wait.--- Nor can the deponent to
the founding affidavit leave it to his counsel to address the issue
of urgency of the matter at the hearing either ---.”
In
casu,
both the founding affidavit and the certificate of urgency are
woefully inadequate. For these reasons, I come to the conclusion that
the applicant has failed to establish urgency in this matter.
Accordingly, it is ordered that;
1.
The application is not urgent.
2.
The applicant shall pay costs of this application.
Ncube
and Partners,
applicant's legal practitioners
James,
Moyo-Majwabu and Nyoni,
respondent's legal practitioners
