This
was an urgent chamber application for a stay of execution. I never
got to determine it on the merits. That makes the facts of the
dispute largely irrelevant. This judgment is primarily to explain the
trajectory of the matter after it was filed.
The
application was filed on 22 May 2018. I caused it to be set down for
hearing on 24 May 2018. On that day, the parties agreed to postpone
the matter to 5 June 2018. The postponement was at the instance of Mr
Mureri,
for the respondents, to accommodate the respondents' counsel of
choice, Mr Chinamora,
who was said to be engaged elsewhere.
On
5 June 2018, just before the hearing, it was advised that the parties
were engaged in discussions for an out of court settlement. They
wanted more time. I obliged. They agreed on, and proposed a new date,
13 June 2018. I further obliged.
On
13 June 2018 the parties, at the applicant's instance, agreed on a
further 2-hour adjournment to enable them to thrash out the
settlement. I obliged.
When
the hearing resumed, the parties advised that they had reached a
settlement. All that remained was for them to type it out and sign.
Each side opted to read out to me their respective understanding of
the terms and conditions of the settlement. I was taking down notes.
At their request I read out my notes back to them. Both agreed and
confirmed I had captured the essence of what each party had
understood the terms and conditions of the settlement to be. There
was nothing complicated really.
From
the applicant, the terms of settlement were:
(i)
That an agreement had been reached in principle.
(ii)
That the matter would be removed from the roll…,..
(iii)
That the respondents would not proceed with execution but on
condition the applicant made a down payment of a lump sum in an
agreed amount towards satisfying the outstanding judgment. The
balance of the judgment amount would be settled by way of monthly
instalments.
(iv)
That the lump sum amount and rate of instalments would be shortly
finalised.
(v)
That the applicants would pay the respondents' costs on the
ordinary scale.
From
the respondents, the terms of settlement were:
(i)
That a potential agreement had been reached.
(ii)
That the proposed down payment would be made within 30 days.
(iii)
That if the lump sum was not paid within the 30 days then execution
would proceed.
(iv)
That the matter would be removed from the roll….,.
(v)
That the costs payable by the applicant to the respondents had been
agreed at $2,000= [two thousand dollars].
Counsel
for the applicants confirmed that the costs payable by the applicant
to the respondents had been agreed at $2,000=.
Among
other things, I proceeded to pronounce, for the record, that the
parties had reached a settlement in principle; that the matter was
being withdrawn from the roll, but that I would keep the record for
the next day to receive the Deed of Settlement. I went on to commend
the parties for finding each other thereby saving valuable time.
In
all the sittings, the applicant's representatives, Mr Kingdom
Chiororo (Operations Director) and Mrs Spiwe Chiororo nee
Sithole (Director) were in attendance.
The
parties left my Chambers to go and type out their agreement. They
undertook to file it by not later than the close of business the
following day, Thursday 14 June 2018. They never did. Instead, come
Thursday 14 June, I was advised the parties wanted further audience
with me to apprise of certain developments that had occurred after
leaving my Chambers the previous day. Being tied up with prior
commitments at the time, I advised that whatever it was they wanted
to tell me should be put in writing for record purposes.
Later
that day the record was brought back to me. Inside was a notice of
renunciation of agency by Messrs Chakabuda Foroma Law Chambers, and
two letters: one from that law firm to the Registrar, and the other
from Mr Chiororo to the law firm. All the documents bore the same
date - 14 June 2018.
The
material portion of Mr Chiororo's letter to the law firm read:
“RE;
RENOUNCIATION [sic]
OF AGENCY; NYAMUZARA ENTERPRISES VS LOVEMORE CHAPWANYA AND OTHERS
We
wish to inform you that directors of Nyamuzara Enterprises have
resolved that you renounce your agency in the matter above.
In
the process of handling the above matter, the Applicant was deprived
by you of access to the file and was not consulted on any action or
process that you embarked upon. Despite asking for the, [sic]
your Mr. Foroma was clearly evasive and belittled the client's
representatives.
It
is our belief that our interests cannot be properly guaranteed where
[sic]
you to proceed with any action you deem fit without the input of the
Directors of the client.
We
request therefore that you renounce your agency and stop acting on
our behalf forthwith.
Inform
other parties that they can still contact Nyamuzara Enterprises
through the address stated above. We also request that you return all
documents referred to you by Mr. Mutendi together with the file you
used in the High Court proceedings to the undersigned through your
reception by 10am on the instant date.”
The
material portion of the law firm's letter to the Registrar read:
“RE:
NYAMUZARA ENTERPRISES P/L v L. CHAPWANYA & 4 ORS – CASE No.
HC215/18
1.
You may be aware that we appeared before His Lordship, Mafusire J,
yesterday in chambers.
2.
We have since filed a renunciation of agency in the matter pursuant
to client's request in terms of a letter a copy of which is
attached hereto for ease of reference.
3.
We have no problems on the renunciation aspect but we take issue with
factual allegations being levelled against our Mr Chakabuda and set
the record straight as follows;
3.1
The application was filed pursuant to client's instructions through
Mr. Kingdom Chiororo and Spiwe Sithole who duly signed affidavits
filed of record.
3.2
We appeared before his Lordship on two occasions and both deponents
to the applicant's affidavits were in attendance.
3.3
At the hearing held yesterday, before his Lordship, the two persons
were also in attendance and in agreement with all resolutions made.
They had full appreciation of the proceedings and did not raise any
objections. In fact, they confirmed their agreement to settlement of
the matter out of court.
3.4
We therefore acted in terms of our mandate and no further.
4.
In the circumstances, and by reason of Applicant's letter, we are
unable to enter into a Deed of Settlement with Counsel for the
Respondents for filing today as agreed before his Lordship.
5.
We attended court this afternoon with Counsel for the Respondents
together with Applicant's three representatives but were not able
to see his Lordship for purposes of appraising him of the turn of
events.
By
copy of this minute, we kindly seek your indulgence in placing same
before his Lordship for his attention.”
I
caused the matter to be re-set down for 20 June 2018. On that day Mr
Hazangwi
appeared. He explained the letters. He said their mandate had been
withdrawn but that he had appeared out of courtesy to the court.
Mr
Mureri,
appearing without Mr Chinamora,
objected to any possible re-opening of the matter on the merits given
that the parties had reached a settlement in principle. He stressed
that at the previous sitting both parties had expressly agreed that
the matter should be withdrawn from the roll and that this had been
duly done.
I
enquired from Mr Chiororo and Ms Sithole in what capacity they were
appearing. They said as Directors of the applicant. I explained to
them the difficulty of them trying to represent a juristic person,
such as the applicant, when they were not registered legal
practitioners. Nonetheless, I would hear them out on this occasion.
Both explained that they needed time to engage another legal
practitioner. They said the one legal practitioner that they had
initially engaged had eventually not taken up the case. The other,
Professor Madhuku, had expressed a willingness to do so.
I
explained that at the previous sitting the matter had expressly been
removed from the roll and that it would stay removed. The applicant
was free to engage any other legal practitioner of its choice who
would render legal advice.
Thus,
the matter was concluded on the basis that the matter had been
withdrawn from the roll with costs in the sum of $2,000= [two
thousand dollars] payable by the applicant to the respondents.
