This
appeal was heard on 31 March 2017. At the conclusion of submissions
by counsel this Court issued the following order:
“Having
considered submissions by counsel, we are of the unanimous view that
this is a proper case for remittal to the court a
quo.
Accordingly we order as follows:
1.
The appeal is allowed with costs.
2.
The judgment of the court a
quo
is set aside.
3.
The matter is remitted to the High Court for a determination of the
merits by a different judge.
4.
The reasons for this order will be made available on request by any
of the parties”…,.
None
of the parties requested for written reasons in terms of paragraph 4
of the order within a reasonable time thereby prompting the Registrar
to treat the matter as completed and closed. She, therefore, in
accordance with set down procedures, returned the appeal records to
the court a
quo
and closed her records.
Thereafter,
counsel for the second respondent belatedly wrote to the Registrar
about one and a half years later, on 10 October 2018, requesting for
reasons for the court's decision. The letter reads:
“Kindly
place this urgent letter before the Honourable Garwe
JA
for
his attention. The record will show that this matter was argued
before:
(i)
Garwe JA.
(ii)
Bhunu JA.
(iii)
Mavangira JA.
After
full argument, the matter was referred back to the High Court for
argument on the merits. The matter has been pending before the High
Court for a long time as the High Court judges want to have sight of
the Supreme Court judgment
before they hear the matter on the merits.
We,
by copy of this letter, request the reasons for the decision of the
court such that the matter can be finalised.”
It
is needless to say that the delay in rendering the reasons for
judgment in this case was self-created by the parties' failure to
timeously request for the reasons. The court order having been issued
on 31 March 2017 it took the second respondent more than one and half
years to request for reasons for the court's decision. The delay is
inordinate and inexcusable.
The
delay was compounded by the fact that the Registrar had great
difficulty in tracing the record of proceedings at the court a
quo.
Notwithstanding
the inordinate delay, I now turn to render the reasons for the
court's order in this matter.
The
epicentre of this appeal is ownership of a certain piece of immovable
property known as the Remainder of Lot A of Chikurubi measuring
131,3710 hectares in extent held under Deed of Grant 13832 of 1953
and Stand 2 Cleveland Township of Lot A of Chikurubi measuring 4,9521
hectares in extent.
The
genesis of this appeal is that sometime in 2000 the then Minister of
Local Government, Dr Ignatius Chombo, allocated the Remainder of Lot
A of Chikurubi to the appellant fronted by one Charles Chombo its
Managing
Director.
The first respondent disputed the entitlement of the appellant to
ownership claiming to have acquired the property through a Deed of
Grant issued by the Queen in 1953. In 1975, Lot 2 of Cleveland
Township was carved out of the original piece of land.
On
27 October 2014 the matter came up for hearing before MAFUSIRE J. At
that hearing, the appellant applied for postponement of the matter
without success. Both respondents applied for the upliftment of the
bar operating against them for failure to timeously file heads of
argument - also without success.
After
dismissing both interlocutory applications the learned judge
proceeded to issue a default order against both first and second
respondents. The court a
quo's
consolidated order reads as follows:
"1.
That the application for the upliftment of the bar (operating against
the first and second defendants for their failure to file heads of
argument timeously) is dismissed with costs.
2.
That the application for a postponement of the matter by the first
respondent is dismissed with costs.
3.
That a default judgment be entered in favour of the applicant as
follows:
(a)
The applicant is declared the rightful owner of the property known as
the Remainder of Lot A Chikurubi, measuring 131,3710 hectares and
held under Deed of Grant 13832.
(b)
The first respondent is interdicted from subdividing, developing,
disposing of any portion or dealing in any manner with the property.
(c)
The second respondent is interdicted from allocating or authorising
the allocation of the property to anyone.
(d)
The third respondent is interdicted from entertaining any transfer or
alienation of the rights in the property to anyone except in favour
of the applicant.
(e)
That the first and second respondents shall pay the costs of the
application on the legal practitioner and client scale.”
The
appellant has now approached this Court, on appeal, complaining that
the court a
quo
ought to have granted the application for postponement.
Mr
Machiridza submitted that he was only standing in for the appellant's
legal practitioner of choice who had travelled abroad on an
emergency. Counsel for the first respondent, however, strenuously
opposed the application on the basis that Mr Machiridza had
previously represented the appellant in previous proceedings in the
same matter. He therefore argued that Mr Machiridza was well versed
with the matter to be able to proceed with the hearing in the absence
of the appellant's legal practitioner of choice.
It
is, however, trite that a litigant is entitled to representation by a
legal practitioner of his own choice at every stage of the
proceedings. It is not for the court to usurp that right and choose a
legal practitioner for the litigant against his will. For that
reason, the fact that Mr Machiridza had previously represented the
appellant in the same matter was an irrelevant consideration. In the
absence of any evidence contradicting the appellant's undisputed
assertion that his legal practitioner was unavailable on account of
an emergency, there was merit in the appellant's application for
postponement.
Despite
the appellant's reasonable plea for an opportunity to be
represented by a legal practitioner of its choice, the court a
quo
erred by brushing aside the plea and proceeding to enter default
judgment against the appellant when it was not at fault in any way.
Considering
that the appellant's legal practitioner of choice was unavailable
on account of an emergency, it was only fair and in the best interest
of the due administration of justice that the matter be postponed to
enable the appellant to have its day in court.
The
general rule in our courts is that the applicant is entitled to
postponement in the absence of prejudice to the other party or
prejudice which can be addressed by an appropriate award of costs. In
this case, the question of irreparable prejudice which could not be
addressed by an appropriate award of costs did not arise. For that
reason the court erred and fell into error by refusing to grant the
application for postponement to facilitate the appellant's right to
representation by a legal practitioner of his choice.
Having
come to that conclusion, it follows that all the proceedings done in
the absence of the appellant's preferred legal practitioner were
tainted with fatal procedural irregularity.
It
is for these reasons that the court set aside the judgment of the
court a
quo
with costs and ordered remittal of the matter in the interest of
justice and fair play. The appeal against the court a
quo's
refusal to grant both the application for upliftment of the bar and
late filing of heads of argument necessarily falls away to be
determined by the court a
quo
afresh in terms of the remittal order of this Court.
