BERE J: After perusing the papers filed of record
and hearing the respondent's counsel on 6 November 2008 I granted the following
order:
"IT IS ORDERED
1.
That
in terms of order 49 r 499 (1)(a) as read with order 1 r 4c (a) of the High
Court Rules, 1971, the provisional order granted ex parte by this court on 27 October 2008 be and is hereby
rescinded.
2.
That
the applicant be and is hereby given leave to set the matter afresh should he
so desire.
3.
That
there be no order as to costs".
I did indicate at the time of
granting this order that my reasons would follow. Here they are:
The Background
In order to fully understand the
issues in this case it is imperative that the background of this case be
clearly laid down and this background can be summarised as follows:
On 27 October 2008, the applicant
filed an urgent chamber application wherein he sought and was granted by me
interim relief couched in the following terms:
"Interim Relief Granted
Pending finalization of this matter,
the applicant is granted the following order:
(a)
The
respondent be and is hereby ordered not to dispose of or give possession of the
Ford Bantam motor vehicle belonging to the applicant to a third party.
(b)
The
respondent be and is hereby ordered to furnish the applicant with an evaluation
report prepared by a neutral valuer within forty eight hours thereof.
Service of Provisional Order
Service of this application or order
shall be effected by the applicant's legal practitioners".
The provisional order in question
was granted ex parte.
Subsequently and upon my attention
having been brought to the respondent's notice of opposition to the applicant's
application it then dawned on me that the order that I had granted ought not to
have been granted before affording the other party an opportunity to be heard.
Having carefully considered the
options available including allowing the provisional order granted to stand
until such time either the respondent had sought to have it discharged or the
applicant taking the formal initiative to have the same order confirmed. I
reasoned that given the injustice my order had created against the other party,
(who had not been heard before the order was granted) I correct the situation mero moto by invoking the provisions
order 49 r 449.
The rule in question is crafted as
follows:
449 (1) The
Court or a judge may in addition to any other power it or he may have, mero moto or upon application of any
party affected, correct or rescind, or vary any judgment or order -
a) that was erroneously sought or erroneously
granted in the absence of any party affected thereby;
b) .
c) .
2) The court or judge shall not make
any order correcting or rescinding or varying a judgment or order unless
satisfied that all parties whose interests may be affected have had notice of
the order proposed (my emphasis)
It was in the spirit of endeavouring
to fully comply with the above - cited rule that I directed my clerk to set
down the matter for hearing on 6 November 2008. It was on that date that I
wished to advise both litigants that I intended to have the order granted ex parte rescinded and hear both parties
afresh and on equal footing before making a determination.
On 6 November 2008 the applicant and
his counsel did not turn up for the hearing. Only the respondent's counsel and
his client were present. I enquired from the respondent's counsel if he had
taken steps to notify his learned colleague of the hearing date and his
response was in the affirmative.
He produced before me a certificate
of service confirming that indeed, the applicant's law firm had been served and
was aware of the hearing date. I wish to specifically refer to that certificate
of service. Part of that document read as follows:
I, the undersigned REASON NDIWENI, a
clerk in the employ of Messrs Mtombeni, Mukwesha, Muzawazi and Associates legal
practitioners of record for the respondent in the above matter, do hereby
certify that a true copy of the NOTICE OF SET DOWN, was attempted to be served
by handing a copy thereof to a receptionist within the employ of Messers
Madzivanzira and Partners, applicant's legal practitioners, who refused
service on behalf of the applicant on 6 November 2008 at 11.10 a.m. and explained the urgencies thereof ,,," (my
emphasis)
To further confirm that the
applicant through his counsel was determined to avoid the hearing of 6 November
2008, submissions were made to the effect that on the morning of the hearing
date a Mr Gama who was supposed to represent the applicant had been seen here
at the High Court attending to another matter and specifically advised the
instant case had been set down for hearing. Mr Gama was reported to have
indicated in clear terms that he would not attend "such a hearing".
It is most unusual that a legal
practitioner would advise his law firm to refuse to accept court process for
whatever reason. I think such an attitude represents a brutal act to the rules
of professional ethics as I perceive them. It is an act which is clearly
calculated to subvert court process and such conduct is certainly unacceptable.
It is clear that the applicant
through his counsel was determined to hold on to the provisional order which he
knew the other party would probably have succeeded in defending if she had been
given an opportunity to be heard before that provisional order was granted. If
I read the conduct of the applicant's counsel correctly (which I am certain I
did) such conduct is deplorable.
I am fully aware of the provisions
of Order 32 r 246 (2)
which allows an urgent chamber application to be determined on paper without
inviting either of the litigants for a hearing. That rule must be understood by
all and sundry to clearly violate the rules of natural justice which require a
party to be heard first before any order is made against him or her and because
of that resort to this rule must be sparingly made.
It is precisely because of this that
r 244
which is relevant to r 246 has a proviso to the effect 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".
Of equally relevant significance is
rule 246 (1)(b) which gives the court further discretion to "require either
party's legal practitioner to appear before him to present such further
argument as the judge may require".
In my view all these provisions were
slotted in to provide sufficient safeguards against litigants who might be
affected by ex parte applications as
in the instant case.
It must be accepted that judges are
not endowed with the gift of infallibility. They often make mistakes and once
such mistakes are noted, they must be addressed at the earliest possible
opportunity to avoid perpetuating a miscarriage of justice. Rule 449 (supra) is one such rule which a judge
can invoke in order to do justice between litigants.
It is unforgivable for a legal
practitioner to conspire to deflate court process by arrogantly instructing his
law firm to refuse to accept court process in the misplaced hope that his
client can hold dearly to a court order obtained ex parte.
I think legal practitioners who
behave in such a manner are as bad as those who snatch judgments and
notoriously cling on to them. It is both unethical and unprofessional. McNALLY
JA commented on such conduct in the case of Zimbabwe
Banking Corporation Limited v Masendeke
I completely associate myself with
his remarks.
It was for these reasons that I made
the order of 6 November 2008.
Mutombeni,Mukwesha,
Muzawazi & Associates,
respondent's legal practitioners
