MAFUSIRE
J:
As
far as I am concerned, it was either a failure or refusal to apply
one's mind properly to the relevant documents, or plain obstinacy,
that resulted in this matter having to be determined in court. I am
reminded of complaints by two judges of this court against the
conduct of some legal practitioners. In Commercial
Bank of Zimbabwe Limited v MM Builders and Suppliers (Private)
Limited & Ors
GILLESPIE J said:
“There
may exist those silver-tongued orators who prove that black is
white(!), but I am unable to hold that the argument advanced on this
point is valid.”
In
Vengesai
and Others v Zimbabwe Glass Industries Ltd
the same learned judge said:
“I
have to say that argument on the law, with appropriate citation of
all relevant cases, including adverse decisions, is as rare amongst
legal practitioners as are hens' teeth. Yet it is to counsel that a
judge must look for appropriate research and argument if he is to be
able to give judgments efficiently and correctly. It is that duty of
him, who would undertake the responsibility of an advocate, a duty
owed both to the client and the court, to do all relevant research
and to present that research to the court. A judge cannot be expected
to undertake himself all the original research in every case.”
In
Ndlovu
v Murandu
SIBANDA J delivered the following scorcher:
“When
the applicant sought legal advice, it must be assumed that he was
keen to be advised as to the legality of his conduct in seeking
termination of the contract… I have no doubt in my mind that his
legal practitioner knew at all material times that the agreement he
sought to terminate was valid and legally binding…Thus these
proceedings amount to an unacceptable abuse of the court process….
It was … the duty of the legal practitioner to advise his client
properly as to the legal status of the contract. It was his duty to
advise his client that the agreement … was perfectly valid and
legally binding. Instead he chose to act as a catalyst in the
applicant's attempt to frustrate and defeat the intention of the
parties. He must be made to pay the price of his indiscretions …”
It
shall soon become apparent why I preface my judgment with the above
complaints.
On
27 October 2014 I delivered my ruling ex
tempore.
I said written reasons would be provided upon request. I heard
nothing further until about four months later. In early February 2015
a letter from the Registrar of this court was brought to my attention
indicating that an appeal had been noted against my ruling and that
the written reasons were now required. The record was brought to me.
The appeal had been noted by the second respondent. Tucked inside was
a letter dated 31 October 2014 from the first respondent's legal
practitioners asking for the written reasons. The letter had not been
brought to my attention.
The
actual order that I granted ex
tempore
but which appears not to have been captured properly was this:
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:
3.1
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.
3.2
the first respondent is interdicted from subdividing, developing,
disposing of any portion of or dealing in any manner, with the
property.
3.3
the second respondent is interdicted from allocating or authorising
the allocation of the property to anyone.
3.4
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.
3.5
that the first and second respondents shall pay the costs of the
application on the legal practitioner and client scale.
The
central dispute in this case was who owned the property known as the
Remainder of Lot A of Chikurubi that was held under Deed of Grant
13832 of 1953. The property was 131, 3710 hectares in extent.
Henceforth I shall refer to it as “the
Remainder of Lot A of Chikurubi”
or, depending on the context, “the
bigger property”
or “the
bigger piece.”
The applicant said it was the owner. The first and second respondents
disputed that. They claimed the Government, through the second
respondent, was the owner.
Connected
to the dispute or argument around the Remainder of Lot A of Chikurubi
was a smaller piece of land called Stand 2 Cleveland Township of Lot
A of Chikurubi, measuring 4, 9521 hectares and held under Certificate
of Registered Title 4089/75. I shall refer to this property as “Lot
2 of Cleveland Township”,
or, again depending on the context, “the
smaller property”
or “the
smaller piece”.
The applicant disowned this property and claimed it was what the
Government owned. The second respondent, supported by the first
respondent, equally disowned it and equally claimed that it was what
the applicant owned.
The
applicant produced documents to back up its claims. The first and
second respondents relied on the same documents but read something
different. In the end it was a matter of interpretation. None of the
facts germane to the point was in dispute.
However,
if the first and second respondents, particularly their legal
advisers, had cared to read the documents, including the small print,
and if they had cared to listen to the third respondent, i.e. the
Registrar of Deeds, perhaps this case would not have come to court.
How
the matter came to court was this. Sometime in the early 2000s the
second respondent, then headed by one Dr Ignatius Chombo as Minister,
allocated a portion of the bigger property to the first respondent,
fronted by one Charles Chombo, as Managing Director. It was to be
converted into a low density residential area. Appropriate
subdivisions permits and developmental plans were drawn up and
approved by the local authority. The first respondent embarked on the
project and, among other things, started selling subdivision units,
or residential stands, to members of the public.
When
the applicant learnt about this development, it implored its line
ministry, Transport and Communications, to intervene and stop it on
the basis that the land was its own property and that it had
different plans for it. The applicant's basic position was that
originally the property had been part of an original bigger piece of
State land then known as Lot A of Chikurubi. Hereafter I shall refer
to that original piece of land as “the
original mother property”.
Sometime in 1953 the then Government of Southern Rhodesia had granted
this original mother property to the then Posts and
Telecommunications Corporation (“the
PTC”),
then a Government agency, under a Deed of Grant. The land would be
used for communication purposes only.
The
applicant said that sometime in 1975 Lot 2 of Cleveland Township had
been excised or deducted from the original mother property. A titled
deed had been created in favour of the Government. The ownership of
the Remainder of Lot A of Chikurubi had remained vested with the PTC.
Eventually the PTC had unbundled into several successor companies.
One of them was the applicant. It had inherited the Remainder of Lot
A of Chikurubi. It planned to construct a sophisticated multi-billion
dollar telecommunications centre. Such a development was incompatible
with a housing project.
There
was communication between the parties at both ministerial and
executive levels. The housing project was halted. The second
respondent explored the prospects of an amicable settlement. He
enquired whether the applicant could consider utilising only that
portion of the bigger property as was adequate for its developmental
plans and allow the housing project to proceed on the excess land.
However, the applicant was emphatic that such an arrangement was not
possible. The first and second respondents changed tack. They charged
that the applicant's claim of ownership of the Remainder of Lot A
of Chikurubi was misplaced. The property was in fact owned by the
Government. All that the applicant owned was the smaller property.
The first respondent's erstwhile legal practitioners entered the
fray. They dispatched a snotty letter to the applicant, among other
things, stressing that the bigger property was owned by the
Government and that all that the applicant owned was the smaller
piece. The letter gave immediate notice of the first respondent's
plans to resume the housing project and warned that they would brook
no interference. That seemed to have been the spark that ignited the
legal confrontation.
The
applicant responded by filing an application, in the main seeking a
declaratory order that it was the owner of the Remainder of Lot A of
Chikurubi. Ancillary relief sought was in the form of an interdict to
restrain the first respondent from proceeding with the housing
project. The first and second respondents opposed the application.
All the pleadings were filed timeously except the first and second
respondents' heads of argument.
When
the matter came up for determination, argument was predominantly on
the preliminary points. Mr Machiridza,
the legal practitioner that appeared for the first respondent,
applied for a postponement on the basis that the legal practitioner
of record for the first respondent had gone out of the country on an
emergency. He himself professed to have no substantial knowledge of
the case. He said the absent legal practitioner had become the fundi
on land matters and that the interests of justice would be served by
postponing the matter so that the first respondent would be
represented by counsel of its choice.
Mr
Mbengegwi,
for the second respondent, applied for condonation or the upliftment
of the automatic bar operating against the second respondent for
having filed the heads of argument some months out of time. A formal
court application to this effect had been filed on 15 August 214. But
it seems no further steps had been taken by any of the parties. The
reason proffered for the delay was that the copy of the applicant's
heads of argument that had been served at the offices of the Civil
Division of the Attorney General, the second respondent's legal
practitioners of record, had been misfiled. The relevant averment in
Mr Mbengegwi's
affidavit read as follows:
“4.
This is an application for condonation for late filing of Heads of
Argument. Applicants filed their Heads of Argument on 3 April 2014
and they were received by our office on the same day. I was not
personally aware that Heads for the Applicants were already filed as
there was some unfortunate incident of misfiling of documents by our
office Clerks. It only came to light that the heads of Argument by
the applicants were filed when I contacted 1st
Respondent enquiring whether they had received anything from the
Applicants.”
On
the merits, Mr Mbengegwi
stuck to the second respondent's version as set out in the notice
of opposition, namely that the applicant was mistaken as to which
property it owned.
Mr
Matinenga,
for the applicant vehemently opposed the applications. He accused Mr
Machiridza
for having been economic with the truth. The first respondent's
erstwhile legal practitioners had been Messrs Manase
& Manase.
Mr Matinenga
averred that it was Mr Machiridza
who had settled the first respondent's notice of opposition whilst
still at Manase
& Manase.
He had then moved over to Messrs Antonio
& Dzvetero,
the first respondent's new legal practitioners of record. Mr
Machiridza
was still the same legal practitioner dealing with the case on behalf
of the first respondent.
Mr
Matinenga
also pointed out that the first respondent's heads of argument had
been filed way out of time. As such the first respondent had been
automatically barred. Therefore, Mr Machiridza
had no right of audience on any aspect of the matter other than an
application for the upliftment of the automatic bar. But no such
application had been made.
With
regards the second respondent, Mr Matinenga
argued that no cogent reasons for the default had been given. No
dates as to when, for example, Mr Mbengegwi
had become aware of the fact that the applicant's heads of argument
had been filed, had been mentioned. Without them the court could not
possibly assess the extent or reasonableness of the delay.
Furthermore, the argument continued, no affidavit by the filing clerk
had been produced to explain what actually had happened.
Mr
Matinenga
concluded that the merits of the case were overwhelmingly in support
of the applicant's cause. Respondents' opposition had no merit.
There were no prospects of success.
In
reply, Mr Machiridza
averred that although he had settled the first respondent's notice
of opposition whilst still at Manase
& Manase,
he had done so on behalf of the senior partner who was then handling
the matter. He denied the insinuation that when he had moved across
to the new law firm, which was now the first respondent's legal
practitioners of record, the first respondent had followed him there.
He said the first respondent had been attracted to the new law firm
because one of the partners there had made a name for himself in land
cases.
That
was the case before me. As said previously, I dismissed the
application for postponement and the one for the upliftment of the
bar. I granted the orders sought by the applicant. These were my
reasons.
In
terms of Order 32 Rule 238 of the Rules of this Court, a respondent
who is to be represented by a legal practitioner at the hearing of,
inter
alia,
an application, is required to file heads of argument not more than
ten days after the applicant's heads of argument are delivered to
him. The failure to file such heads of argument results in the
respondent being barred. The court can then deal with the matter on
the merits, or direct that it be set down for hearing on the
unopposed roll.
In
terms of Order 12 Rule 84, a party that has been barred can make a
chamber application or an oral application at the hearing, for the
removal of the bar. The judge or court may allow the application on
such terms as to costs and otherwise as he or it may think fit.
Just
as in an application for rescission of judgment in terms of Order 9
Rule 63, a party seeking the removal of a bar must show “good
and sufficient”
cause for the bar to be removed. The court or judge hearing the
application undoubtedly has an unfettered discretion. The discretion
is of course exercised judiciously and not capriciously or
whimsically. Not only must there be a reasonable explanation for the
default but also the applicant must show his defence on the merits.
Dealing with Rule 84 GARWE JA stated as follows in Grain
Marketing Board v Martin Muchero2008
(1) ZLR 216 (S), at p 220D - F:
“It
is clear from the above provisions that, once a party is barred, the
matter is treated as unopposed unless the party so barred makes an
application before the court for the upliftment of the bar. It is
also clear that, in making the application to uplift the bar, the
party that has been barred can either file a chamber (not court)
application to uplift the bar or, where that has not been done, the
party can make an oral application at the hearing. The practice in
the High Court, so far as I am aware, is that only in very few
instances have oral applications to uplift the bar been entertained
by the court. This is because, in such a case, the
applicant must explain the reason for the delay, and thereafter
convince the court that he has a bona
fide
defence on the merits”
(emphasis added).
What
constitutes wilful default and a bona
fide
defence depend on the merits of each case.
In
Zimbabwe
Banking Corp Ltd v Masendeke
McNally JA, held that wilful default occurred when a party freely
takes a decision to refrain from appearing with full knowledge of the
service or set down of the matter.
In
my view, in bar situations, wilful default amounts to a deliberate
failure or neglect to file process timeously, or to refrain from
doing so altogether. Thus “good
and sufficient”
cause is the sum total of all the facts explaining the default and
merits of the defence. These facts are considered cumulatively. No
single aspect is decisive. In Deweras
Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corp,
even though the court found that the explanation for the default was
acceptable, it was far outweighed by the unreasonableness of the
defence proffered on the merits.
In
this case the defence proffered by the first and second respondents
was palpably bogus. That is what largely influenced my decision to
reject their applications and to grant the relief sought by the
applicant. But even the explanations for the delays were deficient.
However, much energy was spent on the merits of the defence. I prefer
to deal with them first.
Frankly,
it has been difficult to appreciate what the respondents were saying
by way of a defence. The documents proving ownership were
unequivocal. So were the explanations by the various people connected
to the properties. The situation was this. By Deed of Grant No. 13832
issued on 10 September 1953 by the then Governor of the Colony of
Southern Rhodesia on behalf of Queen Elizabeth II of Britain, the
original mother property was transferred to the Government of the
Colony of Southern Rhodesia, its successors or assigns. The land was
159.1596 morgen in extent. According to my research “morgen” was
an imperial unit of measurement which has fallen into disuse. One
morgen was equal to 8 565m2.
It appears from the documents that the 159.1596 morgen translated to
136,3231 hectares.
The
Deed of Grant aforesaid had two conditions, namely; (1) that the land
would be used for communication purposes only, and (2) that should it
not be used for that purpose then the municipality would have the
right of first refusal to purchase it at five pounds.
The
next development was in 1975. Out of the original mother property was
deducted or carved out Stand 2 Cleveland Township. This was at the
instance of the then Minister of Local Government and Housing,
through the Assistant Secretary in the ministry who furnished a power
of attorney to the Registrar of Deeds to make the deduction and the
transfer. The recitals on that power of attorney were quite
insightful. Among other things, it stated that whereas the Government
of the Colony of Southern Rhodesia was the registered owner of a
certain piece of land situate in the district of Salisbury, being Lot
A of Chikurubi, measuring 136,3231 hectares, held by virtue of Deed
of Grant dated 10th
September, 1953 (registered No.13832)…. This, of course was the
original mother property.
The
power of attorney went on to recite that whereas it was desired that
Stand 2 Cleveland Township of Lot A of Chikurubi, measuring 4,9521
hectares, be held by the President of Rhodesia under Certificate of
Registered Title….. The power of attorney then recorded that the
Assistant Secretary, on behalf of the President of Rhodesia in terms
of the powers granted by a Government Notice of 1967, was applying in
terms of the Deeds Registries Act for the issuance by the Registrar
of Deeds of the Certificate of Registered Title. The power of
attorney was dated 2 October 1975.
The
next development was the issuance of the Certificate of Registered
Title No.4089/75 by the Registrar of Deeds on 6 October 1975 in
respect of Stand 2 Cleveland Township.
Again,
the recitals on that Certificate of Registered Title were insightful.
They recounted the history of the land. It stated that the President
of Rhodesia had applied for the issue to him of a Certificate of
Registered Title in respect of the land registered in the name of the
Government of the Colony of Southern Rhodesia, and that the
Government of the Colony of Southern Rhodesia was the registered
owner of Lot A of Chikurubi, measuring 136,3231 hectares and held by
it under Deed of Grant No.13832 registered on 10 September 1953 (i.e.
the original mother property). The Certificate of Registered Title
then went on, in the vesting clause, to record the fact that the
Registrar of Deeds was certifying that the President of Rhodesia, his
successors in office or assigns, was the registered owner of Stand 2
Cleveland Township, measuring 4,9521 hectares, as would appear more
fully on the Deed of Grant No. 13832 of 10 September 1953. The two
conditions that the property would be used for communication purposes
only and that the Municipality would have the right of first refusal
were carried forward and incorporated.
The
next development was on 3 December 1975. The Registrar of Deeds
placed the following endorsement on the face of the Deed of Grant
(i.e. for the original mother property):
“The
within land vests in the Posts and Telecommunications Corporation in
terms of Section 28(2) of the Posts and Telecommunications Act No.…
subject to conditions I and II contained in the under-mentioned
consent.”
On
3 June 2008 there was another consent endorsed by the Registrar of
Deeds on the same Deed of Grant in respect of the same “… within
land
…”. However, this time the vesting was in the name of Netone
Cellular (Private) Limited, the applicant herein. Among the
applicant's exhibits was a letter from the Registrar of Deeds dated
23 January 2014 which the respondents did not put in issue. It
explained the concept of vesting of ownership of land by means of
consents endorsed on the title deed where there is no change of
beneficial interest. The material portion of the letter read as
follows:
“The
remainder of Lot A Chikurubi is registered in the name of Netone
Cellular (Private) Limited under Deed of Grant 13832. The property
was originally owned by the Government of Zimbabwe who later
transferred it by endorsement of PTC who also later transferred it to
Netone Cellular (Private) Limited by the same method. It is a method
we use where there is no change of beneficial interest. The words
'The within Land” on the endorsement simply refer to the land in
the deed, the remainder of Lot A Chikurubi. The endorsement has the
same effect like a transfer stamp. The piece of land held under
Certificate of Registered Title 4089/75 that is Stand 2 Cleveland
Township is owned by the Government of Zimbabwe.”
Despite
that clear explanation by the Registrar of Deeds the respondents
still maintained that the applicant did not own the bigger property,
but that the Government did. They argued that the reference to “[t]he
within land …”
was a reference to the smaller property. They resorted to the
dictionary for interpretation of the word “within”.
Paragraph 6 of the second respondent's heads of argument read:
“6.
The issue of concern in this matter seems to be the interpretation of
the word within land as mentioned on the endorsement. If at all the
endorsement is valid, according to Black's Law Dictionary, at page
1437, the word within means, 'inner
or interior part of something
…' If this interpretation is to be taken, the within land which
was referred to by the endorsement would only logically mean whatever
that was given to PTC was the inner or interior part of something. In
this case, the within land was Stand 2 Cleveland township which was
the interior part of the Remainder of Lot a Chikurubi measuring
131,3710 hectares.”
From
the premise that it did not own the bigger property, the respondents
went on to argue that the applicant had no locus
standi
to bring the proceedings. A whole gamut of cases on locus
standi
was cited.
With
all due respect, the respondents' argument was plainly ludicrous.
GILLESPIE
J's complaint in MM
Builders and Suppliers, supra,
about “silver-tongued
orators who prove that black is white”
could not have been more apposite.
The
basic position that the respondents seemed unable to grasp, or simply
refused to accept, was that when the Registrar of Deeds, on 3
December 1975, endorsed the Deed of Grant of the original mother
property, thereby passing ownership of that property to the PTC, the
smaller piece of property measuring 4,9521 hectares had already been
deducted or excised from or carved out of the original mother
property. By the Certificate of Registered Title, that smaller
property had been transferred to the Government on 6 October 1975. It
had ceased being part of the original mother property. So in no way
would the endorsement refer to a property that was no longer part of
the whole. The reference to “[t]he
within land …”
on the endorsements was plainly a reference to the land referred to
in the Deed of Grant, namely the original mother property, less the
smaller property. It was now called the Remainder of Lot A of
Chikurubi. A new title deed would need to be created. That was done
in the form of the endorsement.
The
same position is arrived at even if one were to go by the hectarage
or measurements of the properties. The original mother property had
been 136,3231 hectares in extent. Out of it 4, 9521 hectares were
deducted or excised to create Lot 2 of Cleveland. The balance was
131, 371 hectares, exactly the extent of the Remainder of Lot A of
Chikurubi claimed by the applicant.
When
the PTC unbundled, the applicant, as one of the successor companies,
“inherited” Lot A of Chikurubi. Ordinarily, a new deed of
transfer would be required to signify the transfer of the property
from the defunct PTC to the applicant. But again, by the endorsement
of 3 June 2008, the Registrar of Deeds transferred the ownership to
the applicant.
It
is significant that the two conditions on the original Deed of Grant
relating to the use of the land for communication purposes only, and
the granting of the right of first refusal to the Municipality, were
carried forward to the two newly created properties. Therefore, apart
from anything else, the second respondent could not just have
allocated Lot A of Chikurubi for a housing project. That would be
contrary to law.
At
the hearing the second respondent shifted emphasis to argue that the
Registrar of Deeds could make the endorsements only on the direction
of the Minister in terms of the then Posts and Telecommunications Act
No.9 of 1970. Reference was made to section 28 of that Act which
transferred the assets and rights, liabilities and obligations of the
Government in respect of the services carried out by the Ministry of
Posts, to the PTC. Section 28(2) provided that the Registrar of
Deeds:
“… shall,
where
so directed by the Minister,
make such endorsement on the appropriate title deeds and in his
registers as may be required by reason of the transfer to the
Corporation of the assets, rights, liabilities and obligations
referred to in subsection (1) and all transfers shall be exempt from
stamp duty, fees of office and other such charges.” (underlining
for emphasis by second respondent's counsel)
Mr
Mbengegwi
argued that the applicant had not produced the directive by the
Minister to the Registrar of Deeds authorising the endorsement and
that therefore the endorsements on the title deeds remained just
endorsements and not proof of ownership!
With
respect, nothing could be more preposterous. It must have been the
same kind of argument that had driven GILLESPIE J to complain the way
he did in the MM
Builders and Suppliers
case. At that rate, Mr Mbengegwi
could as well have demanded the proof of the directive from Queen
Elizabeth II to the Governor of the Colony of Southern Rhodesia
granting the original mother property to the then Government of
Rhodesia. The Deeds Office is a public office. There was nothing
stopping the second respondent from examining the documents therein.
Unless it had proof to the contrary there was nothing to upset
endorsements that seemed regular on the face of it.
Thus,
I found no merit in the respondents' defence. I also found no merit
in their explanations for the delay in filing the heads of argument
timeously.
I
was wholly satisfied with Mr Matinenga's
arguments. In particular, it was quite apparent that Mr Machiridza
had not been truthful. Among other things, the first respondent's
notice of opposition had been signed by him. It was referenced “TPM”.
Those were his initials. In all probabilities the first respondent
had followed him when he had crossed over from Manase
& Manase
to Antonio
& Dzvetero.
The application for a postponement was, in my view, a gimmick to buy
time.
With
regards the second respondent, the explanation for the default was
deficient. In the absence of the relevant dates there was no telling
the extent of the default. Furthermore, how the alleged misfiling of
the applicant's heads of argument had occurred was not properly
explained, particularly in the absence of an affidavit or affidavits
from the filing clerks.
It
was for those reasons that I granted the orders that I did.
2
March 2015
Mhishi
Legal Practice,
applicant's legal practitioners
Antonio
& Dzvetero,
first respondent's legal practitioners
Civil
Division of the Attorney-General's Office,
second respondent's legal practitioners
1.
1996 (2) ZLR 420
2.
At p 442E
3.
1998
(2) ZLR 593 (H)
4.
At p 596D – E
5.
1999 (2) ZLR 341 (H)
6.
At pp 350C -351A
7.
2008 (1) ZLR 216 (S), at p 220D -F
8.
1995 (2) ZLR 400 (SC)
9.
See also Deweras
Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corp
1997 (2) ZLR 47 (HC)
10.
1997 (2) ZLR 47 (HC)
