CHAMBER APPLICATION
MAFUSIRE J: This was not a
chamber application per se. But there was indeed a hearing in my
chambers, at my instance. Verbal missiles had been flying in all
directions in correspondence between the parties' legal
practitioners and some pleadings filed of record. Clearly, emotions
were in the driving seat. Reason was at the back. Allegations of
fraud and dishonourable conduct had been bandied about. The nadir, in
my view, was when one of the parties described the others as “…
mercenaries armed to the teeth; ….bandits seeking to reap where
they did not sow.” There were insinuations that the court, myself
in particular, had been complicit.
Here are the details.
On 30 July 2014 I granted an
order in HC5926/14 in favour of the applicants in a chamber
application. The record in the matter had been one of several that
had been placed on my desk in the ordinary course of events some few
days earlier. On perusing the record, I noted that the applicants
sought, in the main, confirmation of a certain tribute agreement in
respect of some mining concerns, and the right to occupy and operate
the mines in question. I was satisfied that the papers were in order.
Among other things, there was a cause of action established. The
application had been served on the respondents. A return of service
was on record. I granted the order sought in terms of the draft.
That seemed to have sparked it
all.
I later learnt that the dispute
between the parties had been raging on for some time and that several
judges of this court had at one time or other sat in judgment over
one aspect or other of the same matter. Thus what my order seems to
have done was to stoke the fires.
On 26 September 2014 a letter
with a sticker marked “urgent” was placed on my desk. It was from
Mawere & Sibanda, the respondent's legal practitioners. It was
dated 14 August 2014, that is, more than a month before. It was
addressed to Messrs F. M. Katsande, the applicant's legal
practitioners and copied to, among others, the police and the
registrar of this court. It read:
“We refer to the above matter
and to our letters to you dated the 16th and 21st July 2014. We
express our concern at what we perceive to be fraudulent attainment
of a court order under HC5926/14. You will recall that you served
your client's application on our clients on the 17th July 2014. The
requisite dies was to expire on the 31st July 2014, on which date we
duly filed our applicant's notice of opposition. We were shocked to
learn that by the time that we filed our opposition, an order had
already been sought by your office and granted. We have inspected the
court record and could not find therein any proof of service which
leaves us wondering how you managed to get a Judge of the High Court
to grant the patently defective order sought. Without getting into
the substance of how your client obtained the order, we reiterate
that the said document is wholly inoperative against Mabwe Minerals
(Private) Limited as it was not a party to the proceedings. You will
also note that the wording of the order requires the Respondents and
all those claiming occupation through them to allow access to the
mine. You will note that Mabwe Minerals (Private) Limited does not
claim occupation through any of the Respondents. You are aware as a
Director of Chiroswa Minerals (Private) Limited, the 2nd Respondent
in this matter, that Mabwe Minerals (Private) Limited actually
derives its right of occupation from its registration with the
Ministry of Mines and not through any of the respondents. We advise
that our client has just learnt of this unorthodox manner of
obtaining relief and is in the process of applying for setting aside
of the order. Client if necessary will also be applying for stay of
execution given that yours seems intent on seeing this illegality
through to the end. We certainly have no need to advise that costs de
bonis propriis shall be sought in such applications should you choose
to oppose same for any reason. We accordingly advise.”
Also placed on my desk at the
same time was another letter dated 15 August 2014 from Mawere &
Sibanda for my attention. It read as follows:
“We refer to the above matter
wherein we represent the Respondents. We confirm that our clients
were served with the Application on the 17th July 2014 and filed and
served their opposition on the 30th July 2014 being nine days after
being served. We advise that clients were recently served with an
order dated the 30th July 2014 in this matter being the same date
when the opposition was filed, and also falling within the dies
induciae. It is not immediately clear to us whether the Honourable
Judge had sight of our client's opposition or not before granting
the application as the order does not indicate whether the judgment
was granted in default or not. This is an issue which we may also
seek guidance on. We advise that our clients have instructed that we
consider grounds for an appeal in this matter. In the circumstances,
we request that the Honourable Judge furnish us with reasons for the
order granted in this matter to allow us to proceed with the matter.
We therefore request that you place the file together with this note
before the Honourable Judge for his consideration. We wait to hear
from you.”
I called for the record. The
return of service by the Sheriff was still on file. However, also on
file was now a notice of opposition by the respondents. It showed it
had been filed with the Registrar on 30 July 2014. Service of the
chamber application on the respondents had been on 17 July 2014. I
then realised that when I had granted the order on 30 July 2014 only
nine days had lapsed from the date of service. Given that in terms of
Order 32 Rule 241 as read with Rule 242 a chamber application has to
be served on any interested party and has to be in Form No. 29, with
appropriate modifications, unless it is one of those listed in
paragraphs (a) to (e) of Rule 242(1) which do not need to be served
and which should be in Form No. 29B, I considered that I had granted
the order of 30 July 2014 prematurely. I felt I had granted it in
error. So I considered it was one of those that a court or a judge,
either mero motu, or upon the application by any party affected
thereby, could, inter alia, rescind. With that frame of mind I caused
to be dispatched to the parties' legal practitioners the following
letter:
“A default judgment was granted
in chambers on 30 July 2014. This was on the basis of inter alia a
return of service that had inter alia the 17 July 2014 as the date
when service had been effected. At that time there was no notice of
opposition on file. Now it is on record. It indicates it was issued
on 30 July 2014. On reflection, since on 30 July 14 the dies induciae
had not yet expired, it follows that the default order was granted in
error. Accordingly, it is intended to set it aside in terms of Order
40 Rule 449. This letter is therefore the requisite notice to the
applicant in terms of Rule 449(2).”
Meanwhile, the applicants, in
pursuance of my order aforesaid, had issued a writ of ejectment to
evict from the mining concerns in question the respondents and all
those claiming occupation through them. The respondents had countered
with an urgent chamber application for the eviction of the applicants
themselves on the basis that their right to occupation had been
obtained illegally. TSANGA J had dismissed the urgent chamber
application for lack of urgency. None of this was known to me when I
gave the parties the notice of my intention to rescind my order.
In response to my notice
aforesaid the applicants filed letters and formal submissions
protesting vigorously against my intention to set aside the order.
They argued, among other things, that I was now functus officio; that
I had made no error as the respondents had not been entitled to any
dies induciae since this was a chamber application, not a court
application. It was stressed that in terms of the rules, once a
chamber application has been filed, it is incumbent upon the
registrar to bring it to a judge in chambers without undue delay. The
judge seized with the application has to determine it, also without
undue delay. There was no basis, the argument concluded, for
importing the ten day dies induciae for court applications into a
chamber application procedure.
For the issue to be more fully
canvassed and ventilated I called the parties into chambers and full
argument was presented on 8 October 2014.
Mr Katsande, for the applicants,
took two points in limine. The first was that the respondents had
“dirty hands” and were therefore not entitled to be heard at all.
It was said by brute force the respondents had resisted eviction by
the Deputy Sheriff.
It is trite that a party should
not, by self-help, resist an order of court or refuse to comply with
a law which they may not like: Deputy Sheriff Harare v Mahleza &
Ors 1997 (2) ZLR 425 and Beverley Building Society v Minister of
Labour 2002 (2) ZLR 241. You first comply with the order or the law
and then do something about it afterwards. Otherwise the courts will
withdraw their jurisdiction over your case.
Mr Mushoriwa, for the
respondents, denied that the respondents did, or could have disobeyed
the court order. He said it was common cause that the respondents had
long since vacated the mines after they had been sold to a third
party, Base Minerals (Private) Limited (hereafter referred to as
“Base Minerals”). Base Minerals did not derive their occupation
of those mines through the respondents, but from their own
independent ownership and registration government. They had not been
a party to the matter of the court order in question.
I feel I do not have sufficient
information on the respondents' alleged “dirty hands”. At any
rate, the hearing in my chambers was at my instance, not them. By
calling them in, it meant I was prepared to grant them audience.
Therefore, I decline to invoke the “dirty hands” principle
against them.
The applicants' second point in
limine was that whether or not I had granted the order in question in
error was now issue estoppel or res judicata. It was argued that even
though the written judgment by TSANGA J did not touch on the point,
she necessarily must have considered it for her to have determined
that the matter before her was not urgent.
In my view, the applicants'
second point in limine lacks merit.
The Honourable TSANGA J clearly
articulated her reason why she felt the matter had not been urgent.
It was this. In February 2014 Mabwe Minerals had successfully
obtained from this court an order of spoliation against the
applicants. The applicants had appealed to the Supreme Court. The
appeal had been dismissed. But when TSANGA J had determined the
urgent chamber application the reasons for the dismissal of that
appeal had been unavailable. The learned judge then said in the
absence of those reasons, and in the absence of the reasons for my
order, she could not find that urgency had been established.
In the circumstances, it is
inappropriate for me in this matter to find that TSANGA J had
considered and determined the question of whether or not my order had
been granted in error. Issue estoppel does not apply.
Furthermore, and at any rate,
before TSANGA J, the respondents in this matter were not parties. The
parties were Mabwe Minerals as the applicant, and the present
applicants as the respondents. The applicants' second point in
limine is also dismissed.
The crux of the matter is whether
I granted the order of 30 July 2014 in error.
Mr Katsande submitted that I made
no error. He argued that the chamber application had been served on
17 July 2014. The respondents had done nothing until towards the end.
The law protects the vigilant and not the sluggard. The respondents
must have known that after the application had been filed the next
thing would have been for the applicant to seek a default judgment.
When the Registrar had received the application for a default
judgment he had acted with expedition by bringing it to a judge in
chambers. When the matter had been placed on my desk I too had acted
with expedition by determining and granting the order. That is what
is contemplated by Rule 245, Mr Katsande submitted. Rule 245 reads:
“Where a chamber application is
not accompanied by a certificate referred to in Rule 244, the
registrar shall in the normal course of events, but without undue
delay, submit it to a judge who shall consider the papers without
undue delay.”
It was further submitted that
there was no scope for reading the ten day dies induciae of court
applications into chamber application proceedings. To do so, the
argument persisted, would render Rule 245, which specifically deals
with chamber applications, redundant.
It is necessary to look at these
rules more closely.
Rule 230, on court applications,
reads:
“A court application shall be
in Form No. 29 and shall be supported by one or more affidavits
setting out the facts upon which the applicant relies.
Provided that, where a court
application is not to be served on any person, it shall be in Form
No. 29B with appropriate modifications.”
Rule 241, on chamber
applications, 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.” (emphasis added)
Rule 242(1) goes on to provide
that a chamber application “shall” be served on all interested
parties unless it is one of those listed in paragraphs (a) to (e) of
subrule (2).
One major difference between Form
29, for an ordinary or regular court application, and Form 29B, for a
chamber application, is that with Form 29 there is a blank space to
fill in the dies induciae for the filing of any opposing papers by an
interested party, whereas with Form 29B no such provision is made.
The other major difference between the forms is that with Form 29,
unless it is an application for review in terms of Order 33, the
reasons for the application need not be stated on the face of the
application, but with Form 29B this has to be done, albeit in summary
fashion.
In the case of Zimbabwe Open
University v Mazombwe 2009 (1) ZLR 101 (H) HLATSHWAYO J, as he then
was, held that Form No. 29, for court applications, contains a
plethora of procedural rights that the respondent is alerted to,
while Form No. 29B, for chamber applications, sets out a summary of
the grounds of the application.
In that case the applicant had
used neither of the two forms and had refrained from seeking
condonation for its failure to do so. The application was held to be
fatally defective and was dismissed with a special order of costs.
In my view, it is the general
rule that all chamber applications have to be served on interested
parties. Because of the use of the word “…unless…” in Rule
242(2) it means those chamber applications listed in paragraphs (a)
to (e) are the exceptions. Therefore, the ordinary chamber
application has to be served. Because it must be served, it has to be
in Form No. 29. But since this form is blank on the space for the
dies induciae one has to go to Rule 232 to complete it.
In terms of that rule the dies is
a minimum of ten days, exclusive of the day of service. This is for
those respondents within a radius of 200 kilometres of the court
where the application is filed. An extra day is added for every
additional 200 kilometres away from the court. The ten day minimum
period in Rule 232 is for court applications. In my view Rule 232 is
intrinsic to, or an integral part of, Form 29. It is what a scale is
to a map or a key to a graph. For one to read a map or graph sensibly
one checks the scale or the key. Rule 232 is the key to the missing
information in Form 29.
By the repeated use of “shall”
Rule 241 commands the use of Form 29 for those chamber applications
that have to be served. Rule 232 being an integral part of that Form,
it means the minimum ten day period has to be read into the proviso
to Rule 241(1). Thus the applicant in a chamber application has to
give a minimum of ten days for interested parties to file any
responses. The failure by an applicant to use Form 29 in a chamber
application that has to be served is fatal. Such a chamber
application is incurably bad.
In the case of Minister of Higher
& Tertiary Education v BMA Fasteners (Private) Limited & Ors
HB42/14 MAKONESE J held as follows:
“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 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.
Mr Dube -Banda 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. With respect, there is no order
of this court granting leave to the applicants leave (sic) to give
the Respondents 5 days within which to respond. Mr Dube-Banda 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 Respondents ought to have applied. The Applicant's attempt
to vary the period to five 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 (sic). The applicant cannot abridge the time
limits within which the Respondent is entitled to file the opposing
papers without the leave of the court.”
With respect, I find myself in
agreement with the learned judge.
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, Mr Mushoriwa submitted
that reading the ten day period into Rule 242(1) does not render Rule
245 redundant.
I agree.
In my view, a judge seized with a
non-urgent chamber application that is none of those contemplated by
paragraphs (a) to (e) of Rule 242(1), will have to allow the dies
induciae the respondent is entitled for filing any opposing papers to
lapse. If the judge so waits he is still acting within the confines
of the rules. The requirement in Rule 245 that the judge “… shall
consider the papers without undue delay”, does not mean, in my
view, that he should abridge the requirements of the law. Rule 245
cannot be read in isolation. It has to be read subject to, or
together with, the other rules relevant on the point.
In the premises, and with respect
to myself, I find that I granted the order of 30 July 2014 in error.
The error was not only that the dies induciae that the respondents
were entitled to for filing any opposing papers had not yet lapsed by
that date, but also that I granted the order on a patently defective
application. It was not on Form No. 29.
In the alternative, Mr Katsande
advanced what I considered to be a last-ditch argument. He submitted
that the respondents' application was non-contentious as it was a
straightforward one merely meant to give effect to a previous order
of this court.
In terms of paragraph (a) of Rule
242(1), a matter that is uncontentious in that no person other than
the applicant can reasonably be expected to be affected by the order
sought or to object to it, needs not be served. However, in this
matter, given that the parties had been, and still were, involved in
mortal combat regarding both the ownership and the physical control
of the mines in question; given that earlier in the year the
respondents had been expelled from the mines following an order of
spoliation against them, and given that following my order aforesaid
the respondents themselves said they had been repelled by “…
brute force …” from occupying the mines, it is remarkably absurd
to suggest that the matter was uncontentious; or that the respondents
would reasonably be expected not to object to it; or that they would
not be affected by the order. At any rate, if the respondents had
felt that their application had been uncontentious, they would, no
doubt, have refrained from serving it.
Order 49 Rule 449 reads:
“449.
Correction, variation and rescission of judgments and orders
(1) The court or a judge may, in
addition to any other power it or he may have, mero motu or upon the
application of any party affected, correct, rescind or vary any
judgment or order –
(a) that was erroneously sought
or erroneously granted in the absence of any party affected thereby;
or
(b)
………………………………………………………………………….;
or
(c)
…………………………………………………………………………..
(2) The court or a judge shall
not make any order correcting, rescinding or varying a judgment or
order unless satisfied that all parties whose interests may be
affected have had notice of the order proposed.”
Mr Katsande submitted that since
the respondents had made no formal application but had merely written
to me, conduct which he condemned as impudence, it meant that I could
not tamper with the order.
However, the rule clearly states
that a judgement or order may be set aside, not only upon the
application of the affected party, but also mero motu by the court or
judge. Ex mero motu means “of, or from one's own free will or
accord”1,
“of one's own motion or own accord, voluntarily without prompting
or request”2.
I may not have discovered the
error of my own accord. Discovery was prompted by the respondents
through the letters from their legal practitioners. Nonetheless, the
motion and the notice to rescind the order were of my own volition.
In my view, that should still make the rescission mero motu.
In the premises the order of this
court granted by myself on 30 July 2014 in HC5926/14 in the case Base
Minerals Zimbabwe (Private) Limited & Anor v Chiroswa Minerals
(Private) Limited & Ors is hereby set aside with no order as to
costs.
13 October 2014
F. M. Katsande & Partners, applicants' legal practitioners
Mawere & Sibanda, respondents' legal practitioners
1. Dictionary of Legal Words and Phrases, Vol. 2 at 37 compiled by
C. J. CLAASSEN, Durban Butterworths, 1976
2. The Law Dictionary at thelawdictionary.crylex [CHECK]
