The point in limine by the respondent was that there was
nothing before me to determine because the applicant's application was neither
in Form No. 29 nor Form 29B as required by Rule 241(1) of the Rules of this
Court. Rule 241 reads:
“(1) A chamber application shall be made by means of an
entry ...
The point in limine by the respondent was that there was
nothing before me to determine because the applicant's application was neither
in Form No. 29 nor Form 29B as required by Rule 241(1) of the Rules of this
Court. Rule 241 reads:
“(1) A chamber application shall be made by means of an
entry in the chamber book and shall
be accompanied by Form 29B duly completed, and, except as is provided in
subrule (2), shall be supported by one or more affidavits setting out the facts
upon which the applicant relies:
Provided that, where a chamber application is to be served
on an interested party, it shall
be in Form No.29 with appropriate modifications.”….,.
In casu, the applicant's urgent chamber application was one
to be served. Indeed, it was served. So it had to be in Form No.29. But it was
not. It was also not in Form No. 29B either. It read like this:
“TAKE NOTICE that the Applicant hereby makes an Urgent
Chamber Application for an order in terms of the draft order annexed to this
application and the accompanying affidavits and documents will be used in
support of the application.”
I observe, in passing, that the format of the application
used by the applicant seems so popular among legal practitioners in this
jurisdiction. I do not know where it comes from. But all that is required of
litigants is simply to copy and paste either Form 29B or Form 29, the latter
with appropriate modifications if the application is a chamber application that
needs to be served on interested parties.
Form 29 is for use in ordinary court applications, or those
chamber applications that require to be served. One of its most important
features is that it sets out a plethora of procedural rights. It alerts the
respondent to those rights. For example, in notifying the respondent of the
court application, the form also notifies the respondent of his right to oppose
the application and warns him of the consequences of failure to file opposing
papers timeously.
On the other hand, Form 29B, for simple chamber
applications, requires that the substantive grounds for the application be
stated, in summary fashion, on the face of that form.
Nothing can be more elementary.
The courts, both in this jurisdiction and elsewhere, have
repeatedly drawn attention to the need to follow the Rules on this. It is not a
“sterile” argument about forms (per
HLATSHWAYO J in Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H)…,.).
I sample some of the pronouncements by the courts:
(1) In Simross Vintners (Pty) Ltd v Vermeulen VRG Africa
(Pty) Ltd v Walters t/a Trend Litho Consolidated Credit Corporation (Pty) Ltd v
Van Der Westhuizen 1978 (1) SA 779 (T) COETZEE J
said…,:
“…,. [T]he more fundamental difficulty arises that the
document which purports to be a notice of motion is, as I have indicated above,
a nullity, and I have grave doubt whether the court has power under this Rule
to repair a nullity, a concept in law which carries within itself all the
elements of irreparability….,. In addition, it must be emphasized that Form 2(a)
contains a description of the procedural rights of the respondent after service
of the notice of motion. These rights are considerable and substantial. How
could a Court, even if it were not a nullity, put a blue pencil through all
these rights in the absence of the person in whom they reside and without
notice to him that such an order which abrogates his rights might be made?
This application is struck off the roll.”
(2) In Jensen v Acavalos 1993 (1) ZLR 216 (S), KORSAH JA,
stating the same principle, albeit in respect of a notice appeal, said…,.:
“The reason is that a notice of appeal which does not
comply with the Rules is fatally defective and invalid. That is to say, it is a
nullity. It is not only bad but incurably bad, and, unless the court is
prepared to grant an application for condonation of the defect and to allow a
proper notice to be filed, the appeal must be struck off the roll with costs…,.”
(3) In Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H), HLATSHWAYO J…,
said…,.:
“In terms of Rule 229C, the use of one form instead of
another, of Form 29 instead of Form 29B, does not in itself constitute
sufficient ground for dismissing the application, it being necessary for a
court or a judge to conclude that some interested party has thereby suffered
prejudice which cannot be remedied by directions for service on the injured
party, with or without an order of costs….,. However, the applicant's error in this instance was not one of using
one form instead of another, but of using a completely different format from
the authorized ones…,.”…,.
(4) In Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H), there is this
seminal statement, at p 103C – E:
“Lest an impression be formed that this is a sterile
dispute about forms, I have deemed it necessary to outline in a summary way
what each of the two forms contains, on the one hand, and the unique features
of the format used by the applicant, on the other.
In Form 29, the applicant gives notice to the respondents
that he or she intends to apply to the High Court for an order in terms of an
annexed draft and that the accompanying affidavit/s and documents shall be used
in support of the application. It goes on to inform the respondent, if he or
she so wishes, to file papers in opposition in a specified manner and within a
specified time limit, failing which the respondent is warned that the
application would be dealt with as an unopposed application.
In Form 29B, an application is made for an order in terms
of an annexed draft on grounds that are set out in summary as the basis of the
application and affidavits and documents are tendered in support of the
application.”
(5) In Richard Itayi Jambo v Church of the Province of
Central Africa & Ors HH329-13, GUVAVA J…, said…,.:
“This court has stated in a number of judgments…, that
parties are obliged to comply with the Rules. Where there is a non-compliance,
the applicant must apply for condonation and give reasons for such failure to
comply with the Rules. (See also Jensen v Avacalos 1993 (1) ZLR 216 (SC).
In this case, the applicant's legal practitioner made no
effort to comply with this Rule despite the fact that the point was raised in
the respondent's opposing affidavit. The request to the court to condone the
non-compliance was made cursorily at the hearing as if the grant of such
condonation is always there for the asking.
It seems to me that legal practitioners must be reminded
that there is an obligation to comply with the Rules of this Court…,.
Clearly, where a party fails to comply with the Rules there
must be a plausible reason why there has been a failure to comply. In this case,
the attitude of the applicant was that such non-compliance must be granted by
the court even though no explanation has been proffered for such failure. The
applicant's counsel merely submitted that the defect was not material enough to
vitiate the application.
In my view, this is not sufficient and on this basis alone
I would dismiss the application.”
(6) In Minister of Higher & Tertiary Education v BMA
Fasteners (Private) Limited & Ors HB42-14, MAKONESE J said:
“It is trite law that a Chamber Application must comply
with the Rules governing Chamber Applications. Chamber Applications are
provided for by Order 32, Rule 241. Rule 241(2) (sic) states that where a
Chamber Application is to be served on an interested party it should be in Form
No.29 with appropriate modifications. In terms of Rule 232, a Respondent shall
be entitled to not less than 10 days to file opposing affidavits. In urgent
matters, the court may specify a shorter period than 10 days.”
(7) I have also had occasion to comment on this matter. In
Base Minerals Zimbabwe (Private) Limited & Anor v Chiroswa Minerals
(Private) Limited & Ors HH559-14, I said, in relation to non-urgent chamber
applications…,:
“The proviso to Rule 241(1) permits the modification of
Form 29 where the chamber application has to be served. What would constitute 'appropriate modifications' is not
stated. Why then does it become important that every time a chamber application
has to be served, the applicant should abandon Form 29B and switch over to Form
29? In my view, once the chamber application becomes one that must be served
then the respondent is entitled to a period within which to file opposing
papers.
The 'appropriate
modifications' would include, in my view, a fusion of the contents of Form
29 and those of Form 29B. In other words, it becomes a hybrid, containing both…,
the plethora of procedural rights…,
of Form No.29, including the dies induciae, and a summary of the grounds of
application of Form No.29B.”
In casu, there is really no aspect of the matter that has
not been dealt with, or commented upon before. In particular, the applicant
used a format that is foreign to our Rules. The respondent objected. The
objection was taken as far back as the notice of opposition. It was persisted
with in the heads of argument. Finally, it was pressed on with at the hearing.
But throughout all these stages, the applicant steadfastly refused to
acknowledge any wrongdoing. It has argued that its format substantially
complies with the Rules. It has consciously and deliberately, so it seems to
me, refrained from applying for condonation.
But with the weight of authorities against such a stance,
what has been the applicant's argument?
The applicant's argument before me was that this was the
return day of the provisional order. It argued that the respondent had
consented to the grant of the provisional order and that the provisional order
had been predicated on the very same application now sought to be impeached. Furthermore,
the argument went on, this court had also seen it fit to grant the provisional
order on the basis of the same application. Therefore, the argument concluded,
the respondent was now disbarred from raising the challenge.
In my view, the applicant's argument is illusory.
That the respondent consented to the provisional order
being granted on the basis of a defective application, or that this court had
gone on to grant the provisional order, did not, in my view, disbar the
respondent from raising the objection on the return day. There are a number of
reasons for my saying this. The defective application gave notice of an
application for an order in terms of the draft. One goes to the draft order. It
was on the return day, the day when the final order was being sought, that the
actual application would be moved and the substantive relief sought. It was on
the return day that the respondent would be called upon to show cause why its
writ of execution should not be set aside. It was on the return day that the
respondent would show cause why its legal practitioner of record should not be
ordered to pay the costs of suit personally, or, in the alternative, why it
should not itself pay them at the higher scale.
In other words, the actual application would happen on the
return day.
Given the somewhat summary fashion with which issues are
inevitably dealt with in urgent applications, a respondent might consider it
futile to contest the fact that the applicant might have established some prima
facie right worthy of interim protection by the court. A respondent might
decide that an applicant's fear of an irreparable might be found to be
reasonable by the court. It might also decide that the balance of convenience
might be found to favour the applicant, and so on. So the respondent might decide
to reserve its rights to fight the real battle on the return day. Therefore, I
do not read anything into the respondent's consent to the granting of the
provisional order, or the fact that this court went on to actually grant it.
The respondent was entitled to raise the objection on the return day.
Nothing was decided by the provisional order.
An application, like a summons commencing action, is the
founding process by which a matter is brought to court for determination. If
the application is incurably defective, as it was in this case, then there
cannot be anything before the court to sit over in judgment. The purported
application is simply a nullity and must be struck off the roll….,.
In the circumstances, the applicant has made its bed of roses.
It must lie on it. There being no application properly before the court, the
application should simply be struck off the roll, with the applicant paying the
wasted costs.
However, having struck off the application from the roll,
it is not the end of the matter.
The merits were not argued because I took the view that the
point in limine went to the root of
the matter such that if upheld, as I have done, that would be the end of the
road for the applicant. But the law has been called all sorts of names, most of
them not very complementary. I had looked at the merits in advance of the
hearing.
They were well set out.
In my view, to just strike off the application from the
roll and stop there would make justice turn on its head.
In its papers, the applicant made the point that the
respondent is abusing the writ for rent, which has been paid, to recover
operating costs and interest, which are prescribed.
Prima facie, that is fraudulent.
On its part, the respondent has not taken the accusations
lying down. It has made the point that the applicant has been dishonest and
that it is the one bent on abusing, not only the relationship of landlord and
tenant that once existed between the parties, but also the legal system. Among
other things, the respondent says the applicant knew it had to pay the
operating costs; that the applicant knows it did not pay them; that it has
never disputed liability for them; and that it knows arrears on rent would
accrue interest at the rates agreed upon by the parties in terms of the lease.
Therefore, in my view, this is a matter crying out for
determination on the merits. Furthermore, although I have penalised the
applicant for its defective application and for not taking heed of the
respondent's objection, the fact remains that the matter is at such an advanced
stage within the adjudication system that it would not be, in my considered
view, in the interests of justice to just turn it away completely. In my view,
this is a proper case, in the interests of justice, to invoke the spirit of Rule
4C. That Rule reads as follows:
“4C. Departures from
rules and directions as to procedure
The court or a judge may, in relation to any particular
case before it or him, as the case may be -
(a) Direct, authorize or condone a departure from any
provision of these rules, including an extension of any period specified
therein, where it or he, as the case may be, is satisfied that the departure is
required in the interests of justice;
(b) Give such directions as to procedure in respect of any
matter not expressly provided for in these rules as appears to it or him, as
the case may be, to be just and expedient.”
I have considered it just and expedient to give the
applicant, if it so wishes, the opportunity to rectify its mistake, on notice
to the respondent, within a specified period, failing which the application
shall permanently remain struck off the roll. I have also considered it just
and expedient that the life of the provisional order be extended for the same
period granted the applicant in terms hereof.
DISPOSITION
In the final analysis, my order is as follows:
1. The application is hereby struck off the roll with
costs.
2. Notwithstanding paragraph 1 above, the applicant shall
be at liberty to file a proper application, on notice to the first respondent,
within seven (7) court days of the date of this order, failing which the
application shall be deemed permanently struck off.
3. The provisional order granted by this court on 19 December 2014 shall be extended for
the same period as referred to in paragraph 2 above.