This
is an application made in terms of Rule 94(2) of the High Court of
Zimbabwe Rules 1971 for the leave of the court to make an application
for an order joining the first respondent, the second respondent and
the third respondent as parties in an action instituted by the fourth
respondent against the applicant in HC10452/11 out of time.
The
applicant would like to be given an indulgence to lodge that
application within 14 days of the grant of the order and that the
costs of the application be reserved for the main cause.
Surprisingly,
the application has attracted a volley of opposing papers from
virtually all the respondents including the fourth respondent which
is already a party in the main proceedings, which proceedings have
gone past the pre-trial conference stage and await set down for
trial.
In
HC10452/11, the fourth respondent sued the applicant by summons
action alleging that it is the owner of a certain property known as
Stand 1732 Prospect Township of Lot 359 of Prospect Harare which it
held by Deed of Transfer No. 953/2008. It averred that Tawanda
Mavhunga, who is the third respondent herein and a brother in law to
its Managing
Director,
unlawfully and without the authority of its directors sold and
transferred the property, a vacant Stand, to the present applicant
who took transfer by Deed of Transfer No. 4339/2010. The fourth
respondent craved for cancellation of that Deed of Transfer and the
reinstatement of its own Deed, namely, 953/2008. The applicant
contested the action and in his plea he denied that the fourth
respondent's title deed was ever lost insisting that he had
lawfully acquired the property through the medium of Tawanda Mavhunga
who had the authority of the fourth respondent to alienate it. Having
so acquired the property he had proceeded to construct a factory on
it. He vehemently denied that the sale was fraudulent maintaining
that all the fourth respondent wanted to do was to resell the
property.
The
pretrial conference in that matter was held before a Judge on 23 July
2013 but not before the presiding judge had directed the parties to
hold a round table conference of their own to try and narrow the
issues and possibly settle the matter.
The
applicant says it was during the course of that conference that the
fourth respondent produced, through its counsel, an affidavit signed
by a Commissioner of Oaths in blank and pointed out that it had been
uncovered at the house of the fourth respondent's directors where
Tawanda Mavhunga used to live. He had left it behind. It was also
revealed to him that the directors had not been in South Africa at
the material time as alleged by the first respondent who executed the
transfer ostensibly on the instructions of Tawanda Mavhunga duly
authorised thereto by the fourth respondent. Realising that he was
standing on sinking sand, the applicant saw the wisdom of joining the
first, the second and the third respondents as parties to the action
he is facing especially as he discovered then that the three of them
have been jointly charged with conspiracy to fraudulently transfer
the property to him.
When
the fourth respondent's counsel forwarded the transcript of the
Criminal Court proceedings in question to his legal practitioners,
the applicant discovered that, according to the evidence, the second
and the third respondents had confessed that the property had been
transferred without authority and that a portion of the purchase
price was paid into the account of the third respondent - hence the
decision to include him as well.
It
is for those reasons that he seeks an extension of the time during
which to make an application for joinder.
The
reason the application could not be made within the time allowed for
the filing of a plea is that he only became aware of the facts
requiring the joinder of the respondents during pre trial conference
proceedings. The basis for their joinder being that if the second
respondent was not authorized to pass transfer then he is entitled to
be indemnified by the first respondent on the basis of the assurances
he gave the applicant that the second respondent was duly authorized;
he claimed that he had spoken to the fourth respondent's directors
and confirmed not only that they were in South Africa at the time but
also that they had given authority to the second respondent to pass
transfer. The second and the third respondents are liable on the
basis of their fraudulent activities.
In
his opposing affidavit, the first respondent made a meal out of the
fact that this application was filed out of time. In his view, it
must fail on the basis that there has been no condonation of the late
filing of the application for joinder.
I
agree with counsel for the applicant that the first respondent has
misconstrued the application as if it is the main application for
joinder. It is not. It is merely an application for leave to file an
application for joinder out of time as provided for in the Rules.
The
first respondent confirms that the documents used to effect transfer
have been challenged as being fraudulent. He however denies the
allegations that he told the applicant that the fourth respondent's
directors were known to him. To him, he was also a victim of the
deceipt. He helpfully confirms that he is jointly charged in the
Criminal Court with the second and the third respondents and that the
matter is yet to be concluded, although maintaining that no basis has
been laid for a claim for indemnity against him.
The
second and the third respondents have also opposed the application.
In
his opposing affidavit, the second respondent insists that he was
authorized to transfer the property. He confirms having given the
conveyancer the documents to effect transfer which have been
challenged. He gratuitously adds that the fourth respondent's
directors are now plotting against him in order to regain the
property which has been developed by the applicant and is now worth
millions of dollars. He would not want to be joined as a party
because he acted lawfully and the third respondent should not be
joined either because he did not participate.
Counsel
for the second and the third respondent's submitted that joining
the two would be prejudicial to them because the proceedings in the
main action are almost complete.
With
respect, I can conceive of no earthly basis of such prejudice, other
than the human sense of self-preservation and fear of litigation.
The
grounds upon which a defendant may apply to join a third party to an
action are provided for in Rule 93 of the High Court of Zimbabwe
Rules, 1971. It provides:
“Where,
in any action, a defendant who has entered appearance claims as
against any person not already a party to the action (in this order
called the third party)…,;
(a)
That he is entitled to contribution or indemnity;
(b)
That he is entitled to any relief or remedy relating to or connected
with the original subject matter of the action and substantially the
same as some relief or remedy claimed by the plaintiff; or
(c)
That any question or issue relating to or connected with the said
subject matter is substantially the same as some question or issue
arising between the plaintiff and the defendant, and should properly
be determined, not only as between the plaintiff and the defendant,
but as between the plaintiff and the defendant and the third party,
or between any or either of them;
The
defendant may make a court application to join that person as a third
party in the action.”
I
am aware that I am not being called upon to determine an application
for third party joinder. My brief is merely to consider granting
leave for the filing of such application out of time. It is an
inquiry that involves the exercise of the wide discretion reposed in
the court whether to grant an indulgence to a party that has failed
to comply with the Rules. Such discretion must, however, always be
exercised judiciously.
The
application before me itself is made in terms of Rule 94(2) which
provides:
“The
application (for joinder) shall, unless otherwise ordered by a judge,
be served within the time limited for filing the plea, or, where the
application is served by a defendant to a claim in reconvention, the
plea thereto, and with it there shall be served upon the third party
a copy of the summons and of any pleadings filed in the action.”…,.
The
applicant did not file the application for joinder within the time
limited for the filing of a plea. In fact, in his plea, he strongly
defended the first and the second respondents as having acted with
probity in all they did resulting in him taking transfer - a clear
indication that he was unaware of the facts that he now seeks to rely
upon to make a claim against the three respondents. He only became
aware of the facts forming the basis of his claim for indemnity at
the pre-trial conference. This is the explanation given for the
failure to act timeously, and, in my view, it is satisfactory.
At
some point, this court will have to sit to resolve the dispute
between the parties. It is a dispute in which the fourth respondent
wants the court to reverse the gains made by the applicant in taking
transfer of the property following payment of a substantial sum of
US$150,000 and then proceeding to construct on the property a factory
“worth millions of dollars” as the second respondent helpfully
tells us. Clearly, a lot of legal issues arise from the situation the
parties find themselves in but what should not escape the courts
consideration is that they are issues substantially connected to the
claim being made by the fourth respondent and they involve the first
respondent who is said to have given some assurances which turned out
to be baseless, the second respondent who was the main actor, and the
third respondent, who is said to have benefited percuniarily from the
transaction.
The
function of the court, in resolving disputes, is to do justice
between the parties. WESSELS J was emphatic on that point in
Whittaker v Ross & Anor 1911 TPD 1092…, that:
“It
is not a game we are playing, in which, if some mistake is made, the
forfeit is claimed. We are here for the purpose of seeing that we
have a true account of what actually took place and we are not going
to give a decision upon what we know to be wrong facts.”
Perhaps
one should add that the court will not, and indeed should not, give a
decision upon the wrong parties or where other important players are
missing.
In
my view, considerations which should exercise the mind of the court
in deciding whether to grant the indulgence requested by the
applicant are the same as those for deciding whether to grant leave
to amend a pleading. In our law, although the granting or refusal of
such indulgence is discretionary in nature, a court will generally
grant it where doing so would be necessary for the purpose of
determining the real controversy between the parties; Copper Trading
Co. (Pvt) Ltd v City of Bulawayo 1997 (1) ZLR 134 (S)…,.
I
am satisfied that the applicant has given a good explanation for his
failure to act timeously and that the application for joinder which
he intends to make has good prospects of success in the circumstances
in respect of the three respondents targeted for joinder. I am
mindful of the fact that the object of the procedure is to avoid a
multiplicity of actions dealing with substantially the same subject
matter and involving the same evidence: Building Electrical &
Mechanical Corp (Salisbury) Ltd v Johnson 1950 SR 142.
In
the result, I make the following order, that:
1.
The applicant be and is hereby granted leave to make an application
to this Honourable Court for an order joining the first, the second
and the third respondents as third parties in the action instituted
by the fourth respondent against the applicant in HC10452/11 out of
time.
2.
The court application shall be filed within fourteen (14) days from
the date of the granting of this order.
3.
The costs of this application are reserved for determination in the
main cause.
