Counsel
for the first respondent and counsel for the second and third respondents
raised preliminary issues on the validity of the applicant's certificate of
urgency, and absence of urgency.
They
submitted that the certificate of urgency was not the product of the deponent's
independent opinion based on her personal and honest opinion on the urgency of
the application. They forcefully argued that Tecla Mapota, who prepared the
certificate of urgency, simply copied most of the paragraphs in her certificate
of urgency from the certificate of urgency which had been previously prepared
by Sarudzai Njelele for the applicant's earlier application which was dismissed
by MAKONI J.
Counsel
for the fourth respondent agreed with them.
A
certificate of urgency must be prepared by a legal practitioner, after personally
carefully assessing the urgency of the application. It should be based on his
or her honour. It should not be an uninformed endorsement of another legal
practitioner's previous opinion.
Counsel
for the first respondent, in his submissions, closely analysed Tecla Mapota's
certificate of urgency against that previously prepared for the applicant's
previous application by Sarudzai Njelele. The similarities in most paragraphs
were not disputed by counsel for the applicants. In some paragraphs there is no
difference between Tecla Mapota and Sarudzai Njelele's certificates. There are
identical paragraphs tending to show that Tecla Mapota simply copied them from Sarudzai
Njelele's certificate. Counsel for the first respondent demonstrated that in
some paragraphs the wording of sentences and punctuations are identical.
Counsel
for the applicants's response was that this was due to there being a standard
way of doing things among legal practitioners.
Counsel
for the first respondent, however, argued that it is demonstrably clear that Tecla
Mapota did not apply her mind to the facts of the case before she certified
that the application was urgent. The deficiencies are extensively dealt with
from pages 2 to 5 of the second respondent's opposing affidavit. In para 3.1(a)
of the second respondent's opposing affidavit, it is pointed out that the loan
should have been repaid by 10 March 2011, after which the shares which had been
tendered together with signed share transfer forms in negotiable form could
have been transferred to the first respondent or a third party. This means the
shares had been exposed to disposal by the first respondent from that date, yet
no action was taken to stop the possible sale of the shares till 20 October 2011. It was
pointed out that Tecla Mapota did not deal with or explain that delay in her
certificate of urgency proving that she did not apply her mind to the facts of
this application before certifying the application as meriting the urgent
attention of this court. I accept that this should have been explained and that
failure to do so shows a failure by Tecla Mapota to apply her mind to the facts
of this application.
In
paragraphs 3.1(b) and (c), the second respondent questions the applicant's
failure to institute litigation when the two notices of sale of the shares were
given by the first respondent. Again, Miss Tecla Mapota did not deal with that
issue in her certificate of urgency, again demonstrating her failure to deal
with the facts of the application before certifying it as urgent.
In
paragraphs 3.1(e) and (g), the second respondent questions why the applicants
did not communicate with the second respondent on realising that it was buying
the shares. The second respondent was only engaged through these proceedings -
eighteen days after the applicants became aware of the sale of the shares to
it. Again, Tecla Mapota did not deal with this issue in her certificate of
urgency. She should have explained why the applicants did not engage the
purchaser of the shares if they were treating this matter as one of urgency.
She also did not explain the delay between the application which was dismissed
by MAKONI J and this application, in spite of it being common cause that the
applicant's attempt to amend that application on 25 October 2011, to deal with the issues now
being dealt with in this application, was dismissed. This means, from that date,
the applicants where aware of the need to make this application but did not do
so until 8 November 2011.
Tecla
Mapota should, if she was applying her mind to the urgency of this matter, have
explained this delay.
The
above demonstrates Tecla Mapota's lack of attention to the facts of this case
before certifying this application as one requiring the urgent attention of
this court. The need to explain delays was dealt with by CHATIKOBO J in the
case of Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (HC)…, where
he said:
“The
certificate of urgency does not explain why no action was taken until the very
last working day before the election began. No explanation was given about the
delay. What constitutes urgency is not only the imminent arrival of the day of
reckoning; a matter is urgent, if, at the time the need to act arises, the
matter cannot wait. Urgency which stems from a deliberate or careless
abstention from action until the deadline draws near is not the type of urgency
contemplated by the Rules. It necessarily follows that the certificate of
urgency, or the supporting affidavit, must always contain an explanation of the
non-timeous action if there has been any delay.”
As
already said, Tecla Mapota did not apply her mind to the facts of this case
before certifying it as urgent. That affects the validity of the certificate of
urgency.
A
certificate of urgency can only be valid, and of assistance to the court, if it
is the legal practitioner's honest opinion of the urgency of the case derived
from an analysis of the facts of the case.
In
the case of General Transport & Engineering (Pvt) Ltd & Ors v Zimbabwe
Banking Corporation Ltd 1998 (2) ZLR
301…, GILESPIE J, commenting on this issue, said:
“Where
the rule relating to a certificate of urgency requires a legal practitioner to
state his own belief in the urgency of the matter that invitation must not be
abused. He is not permitted to make, as his certificate of urgency, a
submission in which he is unable, conscientiously, to concur. He has to apply
his own mind and judgment to the circumstances and reach a personal view that he can honestly pass on to
a judge and which he can support, not only by the strength of his arguments but
on his own honour and name. The reason behind this is that the court is only
prepared to act urgently on a matter, where a legal practitioner is involved,
if a legal practitioner is prepared to give his assurance that such treatment
is required.
It
is, therefore, an abuse for a lawyer to put his name to a certificate of
urgency where he does not genuinely hold the situation to be urgent. Moreover,
as in any situation where the genuineness of a belief is postulated, that good
faith can be tested by the reasonableness or otherwise of the purported view.
Thus, where a lawyer could not reasonably entertain the belief that he
professes in the urgency of a matter he runs the risk of a judge concluding
that he acted wrongfully, if not dishonestly, in giving his certificate of
urgency.”
In
this case, it is clear that the legal practitioner did not apply her mind to
the facts of the case as demonstrated by her not dealing with issues which
could have confirmed the urgency, or lack of it, in this case. This is further
demonstrated by the apparent reliance on Sarudzai Njelele's certificate, which
she seems to have copied without seriously applying her own mind to the facts
of this case and its having progressed further after the dismissal of the
applicant's application, for which Sarudzai Njelele had given her certificate….,.
Rule
244 of the High Court rules provides for the certificate of urgency as follows;
“Where
a chamber application is accompanied by a certificate from a legal practitioner
in terms of para (b) of subr
(2) of Rule 242 to the effect that the matter is urgent, giving reasons for its
urgency, the Registrar shall immediately submit it to a judge, who shall
consider the papers forthwith.”
In
terms of Rule 244, it is only when such an application is accompanied by a
“certificate in terms of Rule 242(2)b) to the effect that the matter is urgent,
giving reasons for its urgency”, that “the Registrar shall immediately submit
it to a judge, who shall consider the papers forthwith.”
In
the absence of a certificate of urgency, the Registrar is not obliged to submit
to a judge an application in which the applicant is legally represented. A
judge is also not expected to consider an application where the applicant is
legally represented, if the application is not accompanied by a certificate of
urgency or a valid certificate of urgency. A judge can, in considering the
validity of a certificate of urgency, consider the reasons given in the
certificate of urgency to determine whether or not the legal practitioner has
applied his or her mind in preparing the certificate.
Having
found that Tecla Mapota's certificate of urgency is a product of copying and
pasting and is not one in which she applied her mind, I cannot act on it.
The
applicant's application is therefore dismissed with costs.