In May 2004, the applicant and the first respondent entered into a software licensing agreement. Following a dispute that arose between the parties in January 2006, the matter was referred to an arbitrator (the second respondent) for arbitration.

On the 23rd of June 2008, the applicant challenged the impartiality of the arbitrator in terms of Article 13(2) of the First Schedule to the Arbitration Act [Chapter 7:15] (the Model Law).

On the 28th of June 2008, the arbitrator rejected this challenge and his decision was communicated to the applicant on the 3rd of July 2008.

The challenge was then referred to this Court for determination on the 1st of August 2008 in terms of Article 13(3) of the Model Law.

The Issues

The issues for determination in this matter are as follows:

(1) The nature of the challenge before this Court....,.

Nature of Challenge before the Court

Counsel for the applicant submits that the arbitrator in casu decided the challenge before him without any substantive submissions having been made by the first respondent. He therefore contends that the latter is now estopped from making fresh submissions though its opposing papers before this Court. In other words, this Court must determine the challenge in the same form as was presented to the arbitrator, viz. without the benefit of any submissions from the first respondent.

Article 13(3) of the Model Law, First Schedule to the Arbitration Act [Chapter 7:15] enjoins the Court “to decide on the challenge” referred to it by the challenging party without elaborating the procedure to be followed.

Be that as it may, I have no doubt that the Court is confined to determining the challenge on the grounds of challenge presented to the arbitrator and cannot entertain any fresh ground of challenge. However, I am not persuaded that Article 13(3) of the Model Law narrows the scrutiny of the Court, when examining and ventilating the issues before it, to the same submissions that were presented to the arbitrator.

I am not so persuaded for several reasons:

(i) Firstly, although the challenge before this Court may be likened to an appeal, it is not described as such and cannot therefore be regarded as an appeal stricto sensu. Even if it were to be so treated, it does not invariably follow that a party to an appeal cannot make fresh submissions on the grounds of appeal or the issues that constitute the subject-matter of the appeal.

(ii) Secondly, Article 13(3) of the Model Law does not define or fetter the powers of the Court as to the procedure to be followed.

In practice, the procedure that is adopted in the referral of arbitral matters to the Court is by way of ordinary application, and there is nothing in the Rules of Court to preclude the filing of submissions by any party to the arbitration proceedings in question.

(iii) Last but not least, to construe Article 13(3) of the Model Law, First Schedule to the Arbitration Act [Chapter 7:15] in a restrictive manner would operate to constrict and offend the common law right to be heard which vests in every interested party, as embodied in the audi alteram partem rule, as well as the constitutional right to a fair hearing guaranteed by section 18(2) of the Constitution.

For all of these reasons, I am satisfied that the procedure for challenge before this Court cannot be curtailed in the manner propounded by counsel for the applicant.

The applicant seeks an order setting aside the registration of an arbitral award granted in favour of the respondent. The award was submitted for registration at the High Court in terms of the provisions of the Labour Act [Chapter 28:01] and was duly registered on 25 February 2008.

The applicant submits that the registration of the award was defective in that it was done by way of a chamber application, without notice to the applicant, instead of a court application, which would have required notice to be served on the applicant.

In response, the respondent maintains not only that it proceeded lawfully, but that the applicant, in its own application for the rescission of the registration of the award failed to comply with the Rules of Court in a manner fatal to its application for rescission.

I shall examine, first, the issue of the regularity or otherwise of the application before this court, i.e., the application for rescission of judgment. If the application is properly before this court, then the other issues will follow. If not, then cadit quaestio.

Rule 230 of the High Court of Zimbabwe Rules, RGN 1047/1971, as amended, prescribes, in mandatory terms, that a court application shall be made in Form No. 29, or, where it is ex parte, in Form No.29B, which latter form is generally used for chamber applications.

It is common cause that the form used by the applicant for the rescission of judgment is neither of the above stated forms, that is, it is in neither the court application form nor the chamber application form nor the hybrid ex parte court application form.

Now, Rule 4C gives the court or judge discretion to condone departures from the rules, while Rule 229C deals with a specific form of departure, viz., proceeding by way of court instead of chamber application and vice versa.

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 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.

In his submissions on behalf of the applicant, counsel for the applicant sought to rely on Rule 229C arguing that the respondent had neither alleged nor demonstrated any prejudice. 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, and, therefore, falls directly under Rule 4C and not Rule 229C. (Ironically, it is the respondent's alleged breach of the rules – proceeding by way of chamber instead of court application in the registration of the arbitral award – which falls squarely under Rule 229C.)

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.

By contrast, the unique format used by the applicant consists of a heading:

“Application for Rescission of Judgment” and the following terse statement: “Take notice that the Applicant, Zimbabwe Open University, hereby applies for Rescission of Judgment. The annexed affidavit is used in support thereof.”

Now, the format adopted by the applicant does not contain the plethora of procedural rights that the respondent is alerted to in Form 29 nor the summary of the grounds of the application required in Form 29B. Can this substantial departure from the rules be condoned under Rule 4C?

Rule 4C states as follows:

“The court or 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 appear to it or him, as the case may be, to be just and expedient.”

In the cases of 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, the applicants, in three applications for compulsory sequestration, had used the notice of motion prescribed in Form 2 of the South African Uniform Rules of Court, which was a form appropriate to ex parte applications. The applicant in the first application had not served the notice on the respondent but the applicants in the other two applications had so served the notices on the respondents. It was held that in the first application the use of the Form 2 was perfectly in order as the application was brought ex parte. However, as to the other two applications, it was held that as they were not brought ex parte, the notices of motion used in these applications (i.e., the Form 2 notice) were nullities and their use could not be condoned and the applications had to be struck off the roll:

“…,. This applicant also relies on a nulla bona return, but, it chose not only to address the Form 2 notice of motion to the respondent, but also to serve it on him. Hence, it is not brought ex parte and Rule 6(5) applies. It was suggested in some of the other applications which were eventually struck off the roll that this non-compliance might be condoned under Rule 27(3). I have considered that possibility in this case, but, apart from the fact that no cause at all is shown why there should be condonation, the 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.”

Our own Supreme Court has agreed with the above approach to non-compliance with mandatory rules of court.

In the case of Jensen v Acavalos 1993 (1) ZLR 216 the superior court dealt with the non-compliance with provisions of Rule 29 of the Rules of the Supreme Court, RGN 380/1964 and said the following at p.220 A-D:

“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 of appeal to be filed, the appeal must be struck off the roll with costs: De Jager v Diner & Anor 1957 (3) SA 567 (A) at 576 C-D.

In Hattingh v Pienaar 1977 (2) SA 182 (O) at p.183 KLOPPER JP held that a fatally defective compliance with the rules regarding the filing of appeals cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant rule. With this view I most respectfully agree; for if the notice of appeal is incurably bad, then, to borrow the words of LORD DENNING, in McFoy v United Africa Co Ltd [1961] 3 All ER 1169 at 1172, 'every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it stay there. It will collapse.'”

As if the non-compliance with the mandatory rules noted above was not bad enough, the applicant has not bothered to apply for condonation of its failure to comply with the rules in spite of such non-compliance having been drawn to its attention as early as when the notice of opposition was served on it.

In my considered view, where the errant party has not applied for condonation in spite of its awareness of its non-compliance, it suffices for the objecting party merely to point out the non-compliance for the application to be struck off. Furthermore, the applicant's failure to even recognize the need to apply for condonation shows a cavalier approach to compliance with rules of court, which must be discouraged by an exemplary order of costs.

Accordingly, this application is struck off the roll with costs on the legal practitioner and client scale.

In my view, the purpose of an answering affidavit is akin to that of a replication in an action. It is filed not merely for the form but to specifically meet and traverse all the averments made in the opposing affidavit that have the effect of defeating the applicant's claim.

Like in any pleading filed with the court, all issues that are not specifically denied and traversed in the answering affidavit are to be taken as if they have been admitted.

It is my further view, that, answering affidavits, like all other affidavits, must be drafted with precision and must meet the sting of the defence being raised in the opposing affidavit.

The plaintiff in this matter seeks an order requiring the defendant to vacate Stands 322 and 324 in Beitbridge Township and pay holding over damages from the 1^st of April 2006 to the date of vacation.

The defendant avers that it is the lawful purchaser of both houses in terms of written agreements of sale and counterclaims for the transfer of the Stands.

The plaintiff disputes the validity of the agreements of sale and pleads, in any event, that the defendant's claim in reconvention has prescribed.

At the trial of this case, the first witness (Peter Lewis Bailey) was called by the defendant. At the conclusion of this witness's testimony, it was agreed by both counsel that there were no material disputes of fact and that no further evidence would be adduced by either party.

The first applicant, the Movement for Democratic Change, is a political party, commonly known as the (“MDC”). It will be referred to as the first applicant. The second applicant, Mr Morgan Tsvangirai, is its President. He was the first applicant's Presidential candidate in the just ended harmonized elections held on 29 March 2008. He will be referred to as the second applicant.

The first respondent is the Chairman of the Zimbabwe Electoral Commission, a Commission established in terms of section 61(1) of the Constitution of Zimbabwe. He was appointed in terms of section 61(1)(a) of the Constitution. He will be referred to as the first respondent. The Zimbabwe Electoral Commission is commonly known as (“ZEC”), in reference to the abbreviation of its name. It will be referred to as ZEC in this judgment.

The second respondent is the Zimbabwe Electoral Commission's (ZEC) Chief Elections Officer appointed in terms of section 11 of the Zimbabwe Electoral Commission Act [Chapter 2:12], hereinafter called the Zimbabwe Electoral Commission Act. He will be referred to as the second respondent.

The Facts

The first respondent, through the Zimbabwe Electoral Commission (ZEC), conducted harmonised elections which were held on 29 March 2008. The elections were contested by candidates aspiring for the following positions, Councilors of local authorities, Members of the House of Assembly and the Senate, and President of the Republic of Zimbabwe.

It is common cause that the contestants of the first three positions now know the results of their elections. The results were announced at the Ward Constituency, House of Assembly and Senatorial constituency levels. The winners were declared by the respective Ward and Constituency Elections Officers. House of Assembly and Senatorial results have also been announced by the National Collation Centre presided over by the second respondent.

It is conceded, by the respondents, that this was merely for the benefit of the general public as the legal requirements had been satisfied at constituency level.

The applicants, who have an interest in Presidential election results, filed an urgent application seeking this court's provisional order, compelling the respondents to announce the results.

The respondents, while conceding that Presidential results have not yet been announced, contented that they will announce them when they are ready....,.

Procedural Issues

In response to counsel for the applicants submissions on the merits, counsel for the respondents raised several procedural issues which he should have raised as preliminary issues.

He, in his first procedural issue, contented that the applicants application was not made in the correct form. He submitted that it should have been in Form 29 with appropriate modifications.

Counsel for the applicants, in reply, submitted that the applicants' application was made in the correct form and that even if it was not in the correct form, Rule 229C provides that such failure shall not, in itself, be a ground for dismissing the application.

The court can, however, dismiss such an application if it has caused prejudice to the other party which cannot be cured by directions for service of the application on the other party with or without an order of costs.

An examination of the applicants application reveals that it is in Form 29B when it should be in Form 29 with relevant modifications as provided by the proviso to Rule 241(2).

The applicants have, however, not suffered any prejudice.

They were served with the application and they took no issue until during their counsel's response on the merits.

Even though the issue was raised no prejudice was alleged.

I am satisfied that nothing turns on this as either Rule 229C or Rule 4C could be resorted to, to condone the application's failure to strictly comply with the proviso to Rule 241(2).

The applicant herein is the Minister of State responsible for Presidential Affairs. He was formerly the Minister responsible for Land Reform and Resettlement. The applicant originally sought an order, inter alia, staying and eventually setting aside the execution of a warrant of arrest issued against him on the 6th of October 2009.

The warrant of arrest was then cancelled on the 9th of October, on the very day that this application was filed, and is no longer of any concern.

Nevertheless, the applicant still seeks an interim order barring the first respondent, who was the presiding magistrate in a criminal matter before the Chinhoyi Magistrates Court, from compelling him to testify in that matter. He also seeks a final order setting aside the subpoena issued on the 2nd of October 2009 for him to attend and testify in the criminal matter.

The latter involves the prosecution of the fourth respondent under the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] and has been set down to resume on the 4th of November 2009....,.

Basis of Application

The present application is by way of criminal review in terms of section 29 of the High Court Act [Chapter 7:06].

It was raised, in the course of argument, by counsel, that, the application is formally defective in that it has not been brought as a court application pursuant to Rule 256 of the High Court Rules, 1971...,.

As regards the first point, I take the view that Rule 256 is confined to civil matters and proceedings and does not apply to criminal reviews. In any event, it seems unnecessary for me to decide the point for present purposes, as I am inclined to entertain this matter on the robust approach adopted in State v Strowitzki 1995 (2) SA 525…, to wit:

“It is not the form of the procedure used which matters so much as the nature and substance of the application itself.”

The applicant approached this court on an urgent Chamber Application. The first respondent opposed the application.

However, before the parties could go into the merits of the case, counsel for the first respondent raised a point in limine to the effect that the purported application is, in fact, not an application in terms of the Rules. To this effect, he referred to the provisions of Rule 241 of the High Court Rules.

The purported application is not in the requisite form.

Counsel for the applicant indicated that the court should not dismiss the application just because it is not in the format provided by the Rules.

In terms of Rule 241(1)(a), a Chamber Application “shall be accompanied by Form 29B duly completed, and serve as is provided in subrule (2), shall be supported by one, or more, affidavits setting out the facts upon which the applicant relies.”

The proviso to that Rule states that where a Chamber Application is to be served on an interested party, it shall be in Form 29, with appropriate modifications.

The purported application by the applicant did not comply with the required format.

Counsel for the applicant, other than seeking that such non-compliance not be taken seriously, had no explanation for the non-compliance.

Where it is argued that because of failure to comply with the Rules there is therefore no application before the court, it is for the applicant to show that the failure to comply should not have such fatal effects, as what is before the court can still be considered as an application.

In the circumstances of this case, I found no good reasons advanced by the applicant's counsel to condone the non-compliance.

Rule 227(4)(a) and (b) provides as follows:

“(4) An affidavit filed with a written application –

(a) Shall be made by the applicant or respondent, as the case may be, or by a person who can swear to the facts or averments set out therein; and

The applicant has correctly conceded that a wrong procedure was followed in seeking the relief...,.

Counsel for the applicant has, as a consequence, urged the court that, in the use of its discretion, it should not dismiss the application but refer the matter to trial on the basis of the papers already filed.

As already indicated, the respondent has called for the dismissal of the application on the ground that it was quite obvious that disputes of fact would arise, and that the applicant should have foreseen that eventuality, and, therefore, the need to change course.

I agree with the respondent's admission.

In agreeing with the respondent, I fully associate myself with the authorities, cited in the heads of argument, dealing with this issue. I cannot do any better but to reproduce here below the relevant passages in the respondent's written submissions. The submissions state, in part –

In the case of Jamarillo (Pty) Ltd v BN Aitken (Pty) Ltd 1982 (1 )SA 398 (AD)..., MILLER JC/CJ said the following –

“A litigant is entitled to seek relief by way of Notice of Motion. If he has reason to believe that facts essential to the success of his claim will probably be disputed, he chooses that procedural form at his peril, for the court, in the exercise of its discretion, might decide neither to refer the matter for trial nor to direct that oral evidence on the disputed facts be placed before it, but dismiss the application.”

Similarly, CENTLIVRES CJ said the following in the case of Adbro Investments Company Limited v Minister of the Interior 1956 (3) SA (AD)..., -

“Where the facts are in dispute, the court has a discretion as to the future course of the proceedings. It may dismiss the application with costs, or order the parties to go to trial, or order oral evidence in terms of any rule of court. The first course may be adopted when the applicant should have realized, when landing his application, that a serious dispute of fact was bound to develop.”

The above case authorities, in my view, endorse the sentiments of MAKARAU J..., in Ex-Combatants Security Company v Midlands State University HH80-06.

In casu, it was clear from the onset that serious disputes of fact would arise.

In my view, therefore, the facts of this case dictate that the correct use of my discretion should be to dismiss the application with costs.

It is clear to me that the applicant, who enjoyed legal representation from the time of filing the application, should have foreseen that disputes of facts would arise. This was not only upon receipt of the opposing affidavit, but upon preparation of his own founding affidavit. He knew he was relying on an oral agreement signed between himself and the deceased person. That alone, in my view, was enough to indicate to the applicant that there were potential disputes of fact. The argument that the potential disputes were not foreseen does not accord with common sense at all.

Accordingly, I order as follows:

I must confess that, given the manner in which the application was made, the respondent would have been confused as to the exact nature of the relief being sought by the applicant.

There still remains the submission made that my role in the settlement effort pertaining to an application may be equated with participation in a pre-trial conference, which..., constitutes a bar to presiding over the actual trial in terms of a time-honoured tradition of this court.

My view is that this comparison ignores important differences between application and trial procedures.

In application procedures, the judge makes decisions based on affidavits, and legal arguments, filed of record, and presented in court by counsel. Rarely do application proceedings entail the calling, and examining of witnesses, with the consequent need for the judge to assess the credibility of such witnesses.

Therein lies the nub of the distinction, in my view.

I do not think the question of affidavits arises at this stage.

The applicant was aware that his only recourse against the respondent was to sue for damages (compensation).

The applicant is aware that such a claim has to be instituted by way of action (summons) proceedings, as evinced by his action under HC1034/09.

The next argument raised by counsel for the second respondent was that an order for spoliation cannot be granted on a prima facie basis. There must be proof on a balance of probabilities.

According to him, the applicants have not discharged such and the matter should be referred to trial. He referred to the case of Blue Rangers Estates (Private) Limited v Jamaya Muduviri and The Minister of Lands and Rural Resettlement SC29-09.

The applicant is standing trial in the Magistrates Court on charges he has not specified in his founding affidavit. The nature of the charges that the applicant is facing is however immaterial to the determination of this application.

What is material is that on the 15th of February 2010 the applicant made an application for discharge at the close of the State case. The application did not find favour with the trial magistrate who has now been cited as the second respondent. The trial magistrate having found no merit in the application dismissed the application and ordered that the trial must proceed at 2:15pm on the 4th of March 2010. That date was subsequently extended to today the 12th of March 2010 at 12noon.

I have further extended the time to 3pm this afternoon.

In dismissing the application for discharge at the close of the State case, the trial magistrate did not give his reasons for his determination. Aggrieved by the trial magistrate's interim determination, the applicant's lawyers wrote to the Clerk of Court on the 22nd February 2010 in the following vain:

“We refer to the above matter in an application for discharge of the Accused at the close of the State Case which was dismissed on the 15th March 2010.

We confirm that our Miss Maphosa requested for reasons for judgment for the purpose of an appeal to the High Court against the decision of his worship, Magistrate Jarabini, on the same day.

Kindly place this letter before his worship as a reminder.”

In paragraph 5(c) of his founding affidavit, the applicant had this to say:

“(c) My legal practitioner indicated that the said reasons were required for an appeal the defence intended to file with the High Court on my behalf.”

(d) The 2nd Respondent advised that the said reasons would be furnished and directed my legal practitioner to check with the court before the end of the following week.

(e) On the 22nd February 2010, the beginning of the following week, Miss Maphosa wrote a letter to the Clerk of Court which was received on 24th February 2010 as a reminder to the 2nd Respondent's commitment…,.

(f)…,.

(g)…,.

(h)…,.

(i) The 2nd respondent stated that he had not seen the letters but that he had written on the record, that, despite the request by the defence, he would only give his reasons in the main judgment.”

Aggrieved by the trial magistrate's refusal or failure to give reasons for his interim determination the applicant lodged this urgent application to this Court seeking a provisional order staying the criminal proceedings pending receipt of the trial magistrate's reasons for dismissing the application for discharge at the close of the State case.

Finally, the applicant seeks an order compelling the second respondent to furnish him with the reasons for the interim determination.

During the course of argument, counsel for the applicant made the valid concession that it would be premature and incompetent to appeal against the trial magistrate's interim determination at this stage as intimated in her letter and confirmed in the applicant's founding affidavit.

The defence having realized the folly of its written word, counsel has now made an about turn and has submitted that the defence in fact meant that it intended to seek a review of the of the trial magistrate's interim determination.

That may very well be so, but, applications are determined on the record with affidavits constituting the evidence.

While counsel may seek to amend her own letter, it is virtually impossible to amend her client's affidavit.

While the use of a wrong form of application to approach the court for relief is not in general fatal to the application, in this instance it is my view that it is.  

To bring proceedings by way of application or by way of summons is an issue that must be uppermost in the mind of each and every legal practitioner who is given instructions to approach the court for relief.

While application procedure is the more expedient manner of resolving disputes, it is not always suitable. Rules and practices of this court have been set up to guide legal practitioners on when application procedure is not suitable. Numerous judgments of this and the Supreme Court have explained these rules and practices in detail and have, in some instances, gone to great lengths to explain the rationale behind the rules and the practices. Such authorities appear to have gone unheeded in the above matter.

Being aware of the nature of the dispute between the parties, and that it would necessarily call for the leading of evidence to prove the correct nature of the transaction that unfolded between the parties, it was, in my view, an abuse of process on the part of the applicant to choose to approach the court by way of application procedure. The choice of application procedure was clearly inappropriate in view of the story that the applicant herself was relying on for relief. It was clear, at the filing of the application that the applicant was not in a position to prove, by document made contemporaneously with the transaction, the loan agreement, as she did not keep a copy of that agreement, and efforts to obtain a copy from the first respondent were fruitless – to use her own words. In such a case, it was apparent that it would be the applicant's word against that of the first respondent on the existence or otherwise of the loan agreement as there was no other evidence of the transaction.

The second point raised by counsel for the respondent was that the application does not conform to Rule 241 of the High Court Rules. His submission was that Rule 241 is clear on what form a chamber application should assume. Whereas the Rule requires that in a chamber application there must be a summary of the facts; what is before this court is merely the founding affidavit. Counsel for the respondent cited the cases of Ndebele v Ncube 1992 (1) ZLR 288 (S) and Beitbridge Rural District Council v Russell Construction (Pvt) Ltd 1998 (2) ZLR 190 (SC) as authorities on non-compliance with the Rules of Court.

On the defective form of the application, counsel for the applicant submitted that there is no strict requirement that there be a summary of the facts. In essence, he submitted that forms used are not rigid requirements and therefore non-compliance is not fatal to the application. The thrust of counsel for the applicant's submission on this issue is that if there is such an omission then it should be condoned by the court.

Concerning the form of the present application, it is quite clear that the applicant fell foul of Order 32 Rule 241 (1) which provides that -

“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.”

Form 29B requires the applicant to set out, in summary, the basis of the application. It is a mandatory requirement by virtue of the wording of Rule 241(1). I am further fortified, in my view, by Order 1 Rule 4 which provides that -

“The forms in the First Schedule shall be used where applicable and any reference in these rules to a form by number is a reference to the form in that schedule bearing that number.

This application was filed on 23 March 2010 as an urgent application. The papers before me show that, as at that date the applicant was already aware of both respondents' positions regarding the facts in dispute. This is confirmed in the correspondence exchanged between the parties' legal practitioners. Issues relating to ownership of property and removal of property were discussed in the correspondence. It, therefore, has to be ascertained, through viva voce evidence, whether or not the first respondent and the applicant were, indeed, together, preparing for the second respondent's quiet possession of the premises.

As already indicated, I believe that, in casu, the applicant was aware that serious disputes of fact would arise or had already arisen. He should therefore have avoided the application route. In Masukusa v National Foods Ltd & Anor ZLR 1983 (1) 232 McNALLY J..., said -

“Where the facts are in dispute, the court has a discretion as to whether to dismiss the application or allow the matter to go to evidence. The first course is appropriate where an applicant should, when launching his application, have realized that a serious dispute of fact was inevitable.”

(See also Tamarillo (Pty) Ltd v BN Aitken (Pty) Ltd (1) SA 398 (AD) and Adbro Investments Company Limited v Minister of the Interior 1956 (3) SA 350 (AD).

My finding in casu, therefore, is that the potential disputes were not only foreseen, but were already known, by the time this application was launched. I would, accordingly, in the use of my discretion, dismiss this application. I believe the finding that a wrong procedure has been used can, in certain circumstances, be so fatal as to mean that a matter is not properly before the court. Accordingly, in such a case, the court is disabled from proceeding to consider the merits of the case. That can only be done after a resolution of the disputes of facts. There is, therefore, merit in the submission that this matter should have been brought by way of action....,.

The application is dismissed with costs.

The format of a chamber application, be it ordinary or urgent, is provided for in terms of Order 32 Rule 241(i) of the High Court Rules, 1971.

On 29 July 2008, the plaintiff issued summons against the defendant for the following relief:-

“(a) Payment of the sum of US$750,000.

(b) Interest a tempore morae at the London Interbank rate for United States dollars, 3.5% per annum, from 1 September 2005 to date of payment.

(c) Costs of suit.”

The background to the relief sought can briefly be narrated as follows:-

The plaintiff is a manufacturer and supplier of exclusive range of cables for the transmission and distribution of energy and communications involving entities like the Zimbabwe Electricity Supply Authority, the Rural Electrification Agency, and Tel-One.

The plaintiff's business caters for both domestic and export markets. As at end of 2003, 50% of its sales volumes were largely in exports.

In October 2004, the plaintiff approached the defendant for assistance. The defendant was then operating a foreign currency auction system. Through that system, the defendant made available, each week, from 25% of export proceeds, an amount of foreign currency for which commercial banks would submit bids for their customers. On the basis of those bids, allocations would then be made to the highest bidder(s).

In line with the auction system, on 24 October 2004, the defendant, through its Governor, informed the plaintiff, that, if it (plaintiff) submitted bids to the auction, the defendant would ensure that it (plaintiff) succeeded to the extent of US$150,000 per week to enable it to pay for essential inputs in its operations.

That process was indeed put into place on a weekly basis as from 14 January 2005 up to June 2005.

This was a special arrangement where the plaintiff would, instead of placing a bid, it would merely be advised, through a telephone call, each week, from the defendant's officials, that, the said allocation of US$150,000 was ready. All the plaintiff was required to do, in turn, was to pay the Zimbabwe dollar equivalent within 24 hours. The plaintiff would then, in turn, transfer, through a Commercial Bank, the requisite Zimbabwean dollar amount and details of the foreign suppliers to be paid in foreign currency (i.e from the US$150,000 allocated to the plaintiff).

The allocation of US$150,000, was, with effect from 16 June 2005, increased to US$250,000.

Weekly allocations, at that new level, were made to the plaintiff until the end of July 2005.

The allocation system was continued in August 2005 resulting in the plaintiff making three transfers of undisputed payments in Zimbabwe dollars for the equivalent of the amount of US$750,000 - now being claimed by the plaintiff.

The payments were, in each case, accompanied by details of external creditors to be paid by the defendant.

Notwithstanding the payment of the equivalent amount in Zimbabwe dollars by the plaintiff, the defendant has, to date, not forwarded the foreign currency to the plaintiff's external creditors or refunded the plaintiff with the said amount of US$750,000. In fact, the plaintiff has already, through other sources, paid its suppliers.

The above, in brief, explains why the plaintiff has resorted to this court action claiming the said amount of US$750,000.

With both the plaintiff and the defendant having amended their pleadings at the pretrial conference, it was agreed that the issues for trial were:-

“(a) Whether defendant is contractually obliged to pay plaintiff the sum of US$750,000;

(b) Whether defendant is estopped from denying its obligation to pay plaintiff the sum of US$750,000;

(c) Whether defendant's tender to repay the sums of Zimbabwean currency paid to it by plaintiff is a proper tender which plaintiff is obliged to accept.”

At the commencement of the trial, I indicated to both parties that, given the fact that both parties were generally agreed on what transpired, my view was that the matter could be determined through merely hearing arguments from both sides.

The plaintiff was, however, opposed to that approach and preferred to lead evidence. The defendant then also adopted the same stance.

I therefore had no option but to allow the parties to lead viva voce evidence.

The second point in limine raised by counsel for the first respondent is that the applicant has not complied with the mandatory requirement of Rule 241(1), and, on that basis alone, this application should fail. Rule 241(1) provided as follows -

“241 Form of chamber applications

(1) A chamber application shall be made by means of an entry in the chamber book and shall be accompanied by Form 29B duly competed, and, except as provided in subrule (2), shall be supported by one or more affidavits setting out the facts upon which the applicant relies."

Form 29B provides that the grounds upon which the application is based must be set out in that form.

I understand counsel for the first respondent's argument in its regard to be two fold. Firstly, in that this application is not accompanied by Form 29B and, secondly, that the facts or grounds upon which this application is based are not set out in the format provided for under Rule 241(1). It is correct that this application is not accompanied by Form 29B and that on p1 of the application, which should be in the format of Form 29B, the grounds upon which the application is based are not set out.

Counsel for the applicant countered that the applicant complied with the requirements of Rule 241(1) as the applicant has proceeded to set out the grounds upon which the application is based in the founding and supporting affidavits.

I am not persuaded by counsel for the applicant's argument. Rule 241(1) clearly provides for two requirements, which are –

(1) That the application shall be supported by one or more affidavits; and secondly

(2) Be accompanied by Form 29B.

The grounds upon which the application is based should be stated both in the supporting affidavits and in Form 29B. This would imply that the setting out of the grounds upon which the application is based in the supporting affidavit would not obviate the need to attach Form 29B duly completed (which entails setting out the facts upon which the application is based).  Indeed, this may sound redundant and unnecessary but the requirements set out in Rule 241(1) are clear.

Counsel for the first respondent referred to the case Inyanga Downs Orchards v Edward Buwu HH108-10 in which MUSAKWA J, in dealing with the effect of non-compliance with the requirements of the Rules, inclusive of Rule 241(1) extensively referred to the case of Forestry Commission v Moyo 1997 (1) ZLR 254 (S) (and an earlier decision by MALABA J..., in the same case).

I do not share the view that in Inyanga Downs Orchards v Edward Buwu HH108-10 MUSAKWA J dismissed the urgent chamber application solely on the basis of  non-compliance with Rule 241(1) specifically failure to attach Form 29B. In that case, MUSAKWA J considered a number of points in limine raised by the respondent and arrived at the following decision..., -

“From a consideration of the points in limine I come to the conclusion that the application cannot be entertained. Therefore, the application is dismissed with costs.”

In casu, the applicant has partially complied with the mandatory requirements of Rule 241(1) by setting out the grounds upon which the application is based in the supporting affidavits…,. However…, I am not persuaded that, despite such partial compliance, I should still dismiss the application on the basis that it is fatally defective. In my view, proper and relevant arguments need to be made in that regard before this court can pronounce itself with finality on that issue.

My view is that counsel for the applicant should have sought condonation for the failure to fully comply with Rule 241(1). The remarks by GUBBAY CJ…, in Forestry Commission v Moyo 1997 (1) ZLR 254 (S) are pertinent -

“I entertain no doubt that, absent an application, it was erroneous of the learned judge to condone what was, on the face of it, a grave non compliance with Rule 259. For it is making of the application that triggers the discretion to extend time. In Matsambire v Gweru City Council SC183-95 (unreported) this court held that where proceedings by way of review were not instituted within the specified eight week period and condonation of the breach of Rule 259 was not sought, the matter was not properly before the court. I can conceive of no reason to depart form that ruling. One only has to have regard to broad factors which a court should take into account in deciding whether to condone such non-compliance, to appreciate the necessity for a substantive application to be made.”

The remarks by the learned CHIEF JUSTICE…, in my view, state the basic principle that where there is non-compliance with the mandatory requirements of the Rules, such an omission should, as a matter of principle, be cured by making a proper application for condonation.

I believe that generally the procedure for the amendment of pleadings is as stated by their Lordships in ZFC v Taylor 1999 (1) ZLR 308 and UDC v Shamva Flora (Pvt) Ltd 2000 (2) ZLR 210 (H).

It seems to me that the application is seriously flawed. The final order sought is a review of the decision by the Commissioner General of Police to transfer him to Murewa.

In terms of Order 33 Rule 256 of the High Court Rules, 1971, an application for review should be by way of court application and not chamber application.

The respondent in this matter issued summons out of the Magistrates Court of Bulawayo on the 14th August 2008. In that summons he claimed a “sharing of property” and “custody of children”.

At the same time, the respondent filed an affidavit, sworn to by himself, in which he alleged that he had been customarily married to the appellant in 1995 which union still subsisted and that there were three minor children born of the union, namely, Perfect Dube, born on 2nd April 1996, Prince Dube, born on 3 January 2000, and Priscilla Dube, born on 19 August 2004.

In that affidavit, the respondent persisted in his claim for custody of the children and a division of the property between himself and the appellant.

On the 6th May 2008, he filed an additional affidavit in which he sought to amend his papers by withdrawing House No.15913 Nkulumane 12, Bulawayo from the list of the property to be shared alleging that it belonged to his employer, Delta Beverages (Pvt) Ltd.

The appellant did not file any notice of appearance to defend, neither did she file a plea or notice of opposition.

The matter was set down for hearing on the 12th May 2008 on which date some kind of a trial commenced with the appellant in attendance.

The appellant verbally told the court that she was opposed to the claim made by the Respondent and both parties gave evidence before the Magistrate.

During the trial, the respondent told the Court that he was claiming the “matrimonial house” because he acquired it with the assistance of his employer who provided a loan for the construction of a two-roomed house. The house was completed in 1997 at which point he and the respondent moved in and although he produced Deed of Transfer No.629/02 with no mortgage bond registered on it, showing that the house is in his name, the respondent maintained that the house belonged to his employer.

The appellant also testified in Court to the effect that herself and the respondent acquired the house together after which they agreed that she should go and work in Botswana to raise money to improve the house as the respondent's income was too meagre for them to develop the house. With the extra income she got from Botswana, they managed to add six (6) more rooms to the house which now proudly stands as an eight (8) roomed house.

The appellant maintained that she wanted to remain in that house with the children and should be awarded custody of the said children.

The court allowed the two elder children to testify and both of them unequivocally told the court that they preferred staying with their mother. In fact, Perfect Dube said he preferred staying with his mother because his father “does not buy vegetables”; and, although Prince Dube insisted he wanted to live with his mother he did not give reasons for that.

In its judgment, the court a quo concluded that as the parties were living together as husband and wife both contributed to the extension of the house, and, for that reason, the appellant was entitled to a share of the house.

As there appeared to be no dispute on the sharing of the movable assets, the court a quo awarded the stove, two (2) blankets, colour television, double bed, and sofas to the respondent. The appellant was awarded another stove, kitchen utensils, three (3) blankets, mosquito net, display, radio, curtains, and a room divider.

The house was shared at the ratio of 80% to the respondent and 20% to the appellant with the respondent being allowed to buy out the appellant in order to retain the house.

The respondent was awarded custody of two (2) of the children, namely, Perfect and Prince - despite their avowed preference to be with their mother; while the youngest child, a girl, was awarded to the appellant.

Unhappy with that decision, the appellant appealed to this Court on the grounds, inter alia, that the division of the assets was not equitable and that she is the better custodian parent.

At the hearing of the appeal, the appellant, who appeared in person, exhorted us to overturn the decision of the court a quo and award her a 50% share of the house and custody of all the children together with maintenance especially as the respondent has now remarried and is unable to look after the children properly in those circumstances.

This matter presents some difficulty.

The first problem arises from the fact that the matter appears to be a hybrid of trial action and application procedure. The respondent issued a summons commencing action which was supported by affidavit. This was an unacceptable mixture of procedure which was not picked by both the Clerk of Court and the trial magistrate.

Without following the Rules relating to the filing of pleadings and the holding of a pre-trial conference before a trial could be conducted, the magistrate proceeded to trial and heard viva voce evidence from the parties while also accepting affidavits filed by the respondent. As stated in Mandava v Chasweka HH42-08 (as yet unreported)…,;

“All Magistrates' Courts in this country are formal courts whose proceedings are governed by a set of rules and established procedures.

It is trite that the pre-setting of rules of procedure is, to date, the widely accepted manner of avoiding arbitrariness and ensuring fairness in the airing of disputes by litigants. Rules of Court are framed for a purpose and any procedure done outside the Rules is susceptible of being set aside as being unprocedural.”

It is clearly incompetent for the Magistrates' Court to invent a new procedure of dealing with disputes which procedure is not provided for in the Rules of the Court and is a mixture of summons action and application procedure.

That procedure simply does not exist.

The two procedures are mutually exclusive and cannot be employed at the same time to resolve the same dispute. See Mandava v Chasweka HH42-08.

It is trite law that where there is conflicting evidence the correct course to take is to proceed by way of action rather than motion proceedings. The consequences of choosing the wrong procedure are clear. See Masukusa v National Foods Ltd & Anor 1983 (1) ZLR 232 (HC) in which Mc NALLY J..., referred to the dictum of MILLER JA in Tamarillo (Pvt) Ltd v BN Aitken (Pvt) Ltd 1982 (1) SA 398 (D)....,. -

In case number 3891/12, the applicant filed a chamber application for a provisional order against the respondent. The provisional order was granted and served on the respondent. Thereafter, the respondent, having not opposed the confirmation of the provisional order, the applicant proceeded to file a notice of set down for the hearing and confirmation of the provisional draft order in court.

Instead of the applicant filing a proper court application, the application was set down for hearing still in the form of a chamber application. The Rules for setting down a case as a court application were not followed.

Order 32 and the Rules therein set out clearly how a court application is made to a court. A chamber application is made to a judge in chambers according to Rule 226(1)(b). A court application is made to a court in accordance with Rule 226(1)(a).

Rule 226(2) provides for a default judgment to be made as a chamber application. Rule 230 says a court application shall be made in Form Number 29.

Rule 241 directs that a chamber application shall be made on Form Number 29B.

It follows that a court application cannot be made to a court as a chamber application and vice versa. The correct format should be followed. 

For the sake of clarity, a judge may, at his discretion, direct that a court application be heard by him in chambers and a chamber application be heard in court if he sees fit. A matter that starts as a chamber application should wear its correct court application jacket when it goes to court as it will no longer be a chamber application.

Accordingly, it was not proper to simply take chamber applications to court and attempt to treat them as court applications while they are still presenting themselves as chamber applications, yet the orders sought are court orders to be made in open court. Default judgments on simple claims are also chamber application as stated earlier. There is no justification for a default judgment to be set down in court, although there are specific cases, such as matrimonial cases and certain claims for damages which are made as court applications.

Accordingly, where a party seeks an order from a judge in chambers, or a court order from the court, the correct format should be followed in terms of the above Rules.

The above example applies to the above cases that were removed from the roll and must now be set down in terms of the appropriate Rules and format.

I have discussed the above with the other judges and they concur with the above directive.

Similarly, the raising of the provisions of section 11(1)(b)(iii) of the Magistrates' Court Act is as a result of a misreading of the section. 

It is totally inapplicable. 

In any case, if the criticism's epicenter is that the court a quo should not have dealt with the matter as a court application, the magistrate's explanation that where there are no material disputes of fact in a matter involving eviction, a party may be allowed to proceed by way of a court application rather than by way of summons, is a sound explanation. In any case, even on this point, it has not been shown that the choice of which procedure to follow prejudiced the appellant in any form. It has not been argued that there are disputes of fact in this matter.

The appellant did not enter appearance to defend but somehow the parties appeared before the trial magistrate and a kind of trial was conducted….,.

The process filed and the manner in which the trial was conducted means that it is a hybrid of trial action and application procedure. A litigant cannot issue a summons commencing action which is supported by affidavit as this is an unacceptable mixture of procedure. There is nothing in the record to suggest that any of the Rules relating to the filing of pleadings and the holding of a pre-trial conference were complied with. The filing of an affidavit suggests that application procedure was being resorted to but then the trial court went on to take oral evidence….,.

In Kazuva v Dube HB119-10, I had occasion to comment…, as follows:

The Form of the Application

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) states that where a Chamber Application is to be served on an interested party it should be in Form No. 29 with appropriate modificiations. In terms of Rule 232a, the 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.

Counsel for the applicant contends that the proviso in Rule 241(2), that the urgent application “…., shall be in Form No. 29 with appropriate modifications,” meant that the applicant could vary the period of 10 days to 5 days.

Counsel for the applicant was constrained to accept that once a matter is not treated as an Urgent Chamber Application, then the normal rules regarding time limits given to the respondents ought to have applied. The applicant's attempt to vary the period to 5 days was clearly wrong and fatal to the application. The provisions of Rule 232 apply in that this matter once it is accepted that this is not an Urgent Chamber Application and a respondent shall be entitled to not less than 10 days to file opposing affidavits. The applicant cannot abridge the time limits within which the respondent is entitled to file the opposing papers without the leave of the court.

See the case of Zimbabwe Open University v Mazambwe 2009 (1) ZLR 101.

The plaintiff contends that the representation of the first to fifth respondents in these proceedings is not clear in that when proceedings resumed on the 14^th October 2013, the defendants opened their case by calling a handwriting expert, Cecil Greenfield, to give evidence. Thereafter, on the 3^rd of June 2014, the defendants called two further witnesses, namely, another handwriting expert Mrs Louricka Buckley and an accountant, Mr Lunat, who both testified. After the evidence of these witnesses was recorded the defendants closed their case.

None of the cited defendants were called to give evidence to rebut the plaintiff's claims. The presence of the defendants in court was not formally registered.

The current position is that there is no executor, at present, in the estate of the late Dr. Manolakakis. The last executor was Evangelia Patrinos who died on the 9^th March 2008. After the death of Mrs Patrinos, the fifth defendant, Robert Malcom Bowes, attempted to have himself appointed as the executor in the estate of the late Dr. Manolakakis but was barred from such appointment by virtue of an order of this court, under case HC2236/08, which order effectively interdicted the Deputy Master from holding an edict meeting pending the resolution of the dispute in this matter.

During the course of the proceedings, no one appeared to represent the first defendant nor were any documents placed before the court to show any representation of the first defendant. The second defendant's executor ought to have at least given evidence, if only to formally place before the court his proof of authority in the form of Letters of Administration. The fifth defendant did not formally appear in court as a party to the proceedings. It must be noted that during the proceedings counsel for the defendants appeared to be receiving instructions from the fifth defendant who continuously followed the proceedings and handed notes to his legal counsel. It seemed quite evident that the fifth defendant has a deep rooted interest in the matter and the outcome of the proceedings and possibly is the only person who could have facilitated attendance of the expert witnesses, two of whom were from South Africa. What is disconcerting, and perhaps rather strange is that the fifth defendant was not formally referred to at any stage during the proceedings. There was no explanation as to the origin of all the documents introduced into the record on behalf of all the defendants. It seems probable that the fifth defendant was in the predicament that having attempted to have himself appointed as the executor of the first defendant, he could not be seen to be actively opposing the plaintiff's claims because there would be a conflict of interest. The defendants have chosen not to show their hand and in doing so they were actually in default. Even without dealing with the merits of the matter, it is clear that the plaintiff would be entitled to the relief sought by reason of the default of all the defendants. 

In the absence of any reasonable explanation, where a party fails to attend court, the plaintiff is ordinarily entitled to the relief sought. If the defendants were represented by virtue of a Power of Attorney, then the agent should have appeared in court on their behalf to produce proof of such representation and formally register their interest in the matter.

The questions to be asked are;

(i) Without any of the defendants' appearance, on whose behalf were the defence witnesses giving evidence? 

(ii) To whose benefit were the witnesses called? 

In what was a clear procedural irregularity, the respondent's legal practitioner called a witness to give evidence in support of the respondent's case before any of the respondents gave evidence. 

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.

The urgent chamber application was defective from the outset. It had not been in Form No.29 of the Rules of this court as required by the proviso to Rule 241(2):

See Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H); Minister of Higher & Tertiary Education v BMA Fasteners (Private) Limited & Ors HB42-14 and Base Minerals Zimbabwe (Private) Limited & Anor v Chirosva Minerals (Private) Limited HH559-14.

Rule 241 requires a chamber application to be accompanied by Form 29B “duly completed.” Form 29B provides as follows:-

“Application is hereby made for an order in terms of the order/draft order annexed to this application on the grounds that: (Set out in summary the basis of the application)

The accompanying affidavit/s and documents are tendered in support of the application.”

The applicant did not use Form 29B. He left out “…, on the grounds that”: and did not proceed to give a “summary of the basis of the application.”

The applicant's application is therefore defective. It did not comply with Rule 241. Yet Rule 241 is very instructive. The form includes the words '…, on the grounds that…,' to remind a litigant to put the grounds. The form then says 'summarise the basis for the application', again, to remind the litigant to inform the court and the other party the basis of the application. The Rule itself says the application 'shall be accompanied by Form 29B duly completed.' The use of the word “shall” shows that it is mandatory for a litigant to use Form 29B; but the Rule does not stop there, it proceeds further and says 'duly completed.' Again, a reminder that after adopting the Form, it must be completed eg where it says summarise the basis for the application.

It actually makes sense for a litigant to summarise the basis of the application - especially if the litigant wants the court to deal with the matter urgently. How can a judge deal with the matter urgently if he/she has to plough through the Founding Affidavit and supporting documents to find out the basis of the application? Precious time will be spent before the judge knows the grounds of the urgent application if litigants do not give a summary of the basis on the face of the application as provided by Rule 241 and Form 29B.

The case of New Vision Promotions v Ganya and Ors HB54-07 referred to by the first respondent's counsel is relevant to this case. In that case, the court said:-

“An urgent chamber application accompanied by a certificate of urgency should be accompanied by Form 29B as stipulated by Rule 241.”

The case of Mandlenkosi Nhliziyo v Greys Service and Ors HH194-10 is also a case in point. In that case, the applicant who had not used Form 29B argued that he had complied with the Rules because the applicant had set out the grounds upon which the application was based in the founding and supporting affidavits. The judge stated, on p 4 of the cyclostyled judgment:

“Rule 241(1) clearly provides for two requirements, which are that the application shall be supported by one or more affidavits, and, secondly, be accompanied by Form 29B. The grounds upon which the application is based should be stated both in the supporting affidavits and in Form 29B.”

The applicant, despite the repeated requirement for 'grounds' and 'basis' and a 'duly completed' form ignored the provisions of Rule 241. He did so at his own peril.