Pre-trial
Conference
MAFUSIRE
J:
But
for the letter from the Registrar of this court asking for the
reasons for my “judgment” because an appeal had been noted, I did
not intend to write any judgment in this matter.
I
find it quite strange that an appeal has in fact been noted.
I
was the presiding judge over the pre-trial conference that stretched
over five sittings. The parties, with me as umpire, finally reached
agreement on the substantive issues, save that of costs. The last
sitting was on 4 November 2014. On that day I issued the following
order:
1.
Judgment in the sum of US$70,000-00 (seventy thousand dollars) plus
interest at the legal rate from the 10th
of September 2013, be and is hereby granted in favour of the
plaintiff.
2.
By consent of the parties, the Judge dealing with the defendant's
application for review against the decision of the Taxing Master of
the 12th
September 2014 shall:-
(a)
If upon the upholding of the Taxing Master's decision, grant
judgment in favour of the plaintiff which judgment shall take into
account legitimate disbursements made by the defendant that include
payment of capital gains tax and payment for the rates clearance
certificate.
(b)
If upon setting aside the Taxing Master's ruling, the matter shall
be referred to the Taxing Master for taxation of the defendant's
bill of costs. Pursuant to taxation, the plaintiff shall make a
chamber application for judgment in terms of Rule 55 of the High
Court Rules in respect of any amount still due to him if any.
3.
The defendant shall pay costs of suit calculated on a scale as
between attorney and client.
The
background to that order or directive is a sad commentary on the
legal profession. It is this;
At
all relevant times the defendant was a registered and practising
legal practitioner and therefore an officer of the court. The
plaintiff was his client.
On
23 April 2014 the plaintiff issued out a summons against the
defendant claiming a capital amount in the sum of US$116,000. The
money was the balance of the proceeds of the sale of a property the
transfer of which had been handled by the defendant. The plaintiff
alleged that the defendant had converted the money to his own use. In
the alternative the plaintiff claimed a capital amount of US$70,000
and prayed for an order that the defendant's bill of costs, which
purported to account for the balance of the sale proceeds, be
referred for taxation.
The
details of the plaintiff's claim were quite straightforward. Much
of the facts seemed common cause.
Through
an estate agent the plaintiff had sold an immovable property. It had
been part of the estate of his deceased parents. The total sale
proceeds had amounted to US$266,000. The defendant had been
instructed to attend to the transfer. The purchase price had been
transferred to his trust account. Inexplicably, the transfer had
taken a year to be registered. Afterwards the defendant had only
remitted US$150,000. The sum of $116,000 had remained outstanding.
The
plaintiff pressed for it.
In
late September 2013 or early October 2013 the defendant rendered
three bills of costs. The first, dated 19 March 2013 was in the sum
for $25,179-25. The second, dated 27 September 2013 was for
$10,847-38. The last, with no discernible date on it, but with an
amount of $47,028-83 was said to be the summary of all the legal work
done by the defendant and to comprise the total amount due by the
plaintiff.
The
plaintiff maintained that the defendant had repeatedly acknowledged
owing him the sum of $70,000 which he claimed he had invested in an
interest bearing account with a Bank but was now being evasive about
remitting it. So the plaintiff's position was that the full amount
due by the defendant was $116,000 but that if the defendant thought
that he was entitled to a fee of +$47,000 odd, then he had to tax his
bills. However, the plaintiff insisted on immediate payment of the
$70,000 over which there was no contest.
In
his plea, the defendant denied being indebted to the plaintiff in the
sum of $116,000. He claimed that $47,000.83 was due to him by way of
fees for professional services rendered. On the sum of $70,000 the
defendant stated that on the plaintiff's authority, he had invested
the amount. The investor had undertaken to settle the money upon the
sale of his diamonds through the Minerals Marketing Authority of
Zimbabwe. However, the sales had been stalled owing to the depressed
world diamond market.
In
his replication, the plaintiff denied that he had given the defendant
any instructions other than simply to attend to the transfer of the
property. He challenged the defendant's attorney-client bills which
he said were only submitted belatedly as he pressed for his money. He
also maintained that the defendant could not saddle him with
conveyancing costs when they would have been paid by the purchaser.
He argued that even if the plaintiff was due an attorney and client
fee, the amount that he had claimed and withheld was grossly
excessive and completely unreasonable.
On
the amount of $70,000 the plaintiff denied that he had instructed the
defendant to invest it in the manner alleged, or at all, and that
even if he would have given such instructions it would have been on
the basis that the investment would be restricted to normal banking
channels, not in diamond deals.
The
plaintiff filed a detailed summary of evidence.
He
disclosed the protracted efforts he had made to recover his money.
One significant aspect was that at one stage, the defendant implied
that he had invested the $70,000 with a certain commercial bank.
However, subsequent correspondence revealed that he had handed over
the money to some diamond dealer. The correspondence also revealed
how the parties' relationship had soured badly and had subsequently
degenerated into crude threats. The plaintiff had reported the
defendant to the Law Society of Zimbabwe. The defendant had on
several occasions threatened the plaintiff with legal action. One of
the several letters by the defendant which the plaintiff quoted read
like this:
“I
have taken action against you. Your rights are not more important
than mine, your money is not more important than my name which you
are dragging through the mud as you please. You have been abusing me
continuously circulating false and defamatory statements that I have
acted unprofessionally to various persons without restraint, and
despite numerous warnings. If you do not withdraw these malicious and
reckless statements I am suing you and we will see who will be
embarrassed in the end. I will sue you to your last penny. Withdraw
your reckless statements now. I will not be intimidated by your
threats of action against me.”
In
his own summary of evidence, the defendant said he would testify that
when he had received the purchase price from the estate agent he had
released a significant portion of it to the plaintiff without
the consent of the purchaser
who he said had insisted
that the funds be released only upon the registration of transfer.
I
found this rather disturbing. Legal practitioners should not behave
like that.
The
defendant also said in his summary that the plaintiff had given him
authority to invest the funds for best return as he himself would
deem necessary; that when the transfer had been completed the
investor still had diamonds to sell; that the diamonds had initially
been sold in Harare, but that, because of poor prices, had later been
sold in Dubai, and that all the relevant documentation had been
provided to the plaintiff's legal practitioners.
The
first of the pre-trial conference sittings was on 1 September 2014.
The defendant represented himself. At my specific enquiry, the
defendant maintained that the plaintiff had signed an investment
agreement with him. Of course the plaintiff disputed that. Although
he had filed his draft issues and synopsis of evidence the defendant
had not yet discovered. So the document appeared nowhere amongst his
papers. Needless to say it was not on the plaintiff's discovery
affidavit.
There
was no dispute on the question of the defendant's liability on the
sum of $70,000. All that he had pleaded for was time to pay. He said
the diamonds had since been sold. The disbursement of the funds was
imminent.
The
plaintiff expressed extreme bitterness over the defendant's
conduct. Among other things, there had been numerous but broken
promises to remit this particular amount. In the end, and following
the defendant's undertaking, I issued the following directive by
consent:
1.
That the defendant undertakes to pay the plaintiff immediately
US$70,000-00 together with interest thereon at the prescribed rate
from 10 September 2013 to the date of payment.
2.
That the defendant shall submit for taxation immediately his bills of
costs copies of which are attached to the plaintiff's summons.
3.
That the parties may file a Deed of Settlement to deal with both the
main and ancillary issues, including the issue of costs of suit and
the scale thereof.
4.
That in the event that any issue remains outstanding the P.T.C. would
resume on 18 September 2014 at 9.30 am.
There
were several off-the-cuff exchanges over a number of issues. One such
was my advice to the defendant to seek legal representation.
The
second sitting of the pre-trial conference was on 18 September 2014.
The defendant was now represented by Mr
Uriri.
Mr
Biti,
for the plaintiff, informed the hearing that the defendant had
defaulted on the payment of the sum of $70,000. He advised that the
parties had attended the taxation of the defendant's bills of costs
on 12 September 2014. The taxing officer had ruled that the
attendances reflected on those bills were classically conveyancing
attendances that were regulated by statute. As such the taxing
officer had declined to tax them and had ruled that the defendant
could recover his fees in terms of the relevant statute. In light of
that Mr Biti
pressed for judgment to be entered for the plaintiff in the full
amount of the summons.
In
response, Mr Uriri
said that he had been unaware that the taxing officer had already
issued his ruling since he had been advised that such ruling had been
reserved. Consequently he had no instructions on that point.
On
the sum of $70,000 the defendant offered a payment plan. He would pay
$30,000 on or before 30 September 2014 and the balance of $40,000 on
or before 31 October 2014. Given that the disbursement of the
proceeds of the sale of the diamonds was imminent the payment plan
was just something out of caution.
Very
reluctantly the plaintiff accepted it.
The
matter was stood down to the afternoon at 16:00 hours to enable the
parties to prepare a Deed of Settlement.
At
16:00 hours the parties came back. There was no Deed of Settlement
yet. But an arrangement had been reached between the parties through
their counsel.
However,
Mr Uriri
advised that the defendant was contesting the decision of the taxing
officer as he felt that the attendances on his bills had nothing to
do with conveyancing. The pre-trial conference was adjourned to 25
September 2014.
On
25 September 2014 the parties still had no Deed of Settlement. Mr
Uriri
advised that the Deed would now be on the sum of $70,000 only. In
five days' time the defendant would be filing an application for
the review of the taxing officers' decision.
It
was finally agreed before me that the Deed of Settlement would be
filed by not later than close of business on 3 November 2014, failing
which the pre-trial conference would be reconvened for the conclusion
of the matter.
The
fifth and last sitting of the pre-trial conference was on 4 November
2014. There had been very little progress. No Deed of Settlement had
been signed. Of the $70,000 the defendant had received only $10,000.
Mr Uriri
advised that the time frames could not be met.
The
defendant himself advised that the payment that he had promised had
depended on him getting the diamond proceeds. They had not been
disbursed yet. He had now issued a writ against the diamond dealer.
He had also made interim measures to meet his commitments to the
plaintiff. Mr Uriri
said if he failed to pay by 30 November 2014 the defendant would be
prepared to consent to judgment in terms of Order 8 of the Rules of
this Court.
On
the bills of costs, Mr Uriri
advised that the application for review had since been filed but that
the plaintiff was opposing it. The parties were now waiting for the
determination of that application.
Perhaps
not unexpectedly, the plaintiff's attitude had stiffened.
Mr
Biti
recalled the defendant's previous string of broken promises, some
of them in front of me. He said there was no need to subject the
plaintiff to any further pain. He pointed out that I had issued
several directives, all of them on the basis of the defendant's own
promises.
He
submitted that it was a proper matter for me to enter judgment in
terms of Order 26 Rule 182(11) for the full amount of $116,000 as
claimed by the plaintiff in the summons. Mr Biti's
argument was that the application for review did not suspend the
order of the taxing officer. Therefore, apart from the $70,000 over
which there was no contest, I could also enter judgment for the rest
of the claim because the defendant's bills had been dishonoured by
the taxing officer. He then asked for costs on the attorney and
client scale.
After
several exchanges the parties resolved that they would await the
determination of the review application in respect of the defendant's
bills. They also undertook to agree that the judge who would deal
with the application for review could straightaway enter judgment in
favour of the plaintiff in the sum of $48,000, less any legitimate
disbursements, in the event that he or she upheld the decision of the
taxing officer. In the event that the judge set aside the decision of
the taxing officer, then the defendant's bills would go back for
taxation. The plaintiff would then apply through the chamber book for
judgment on any amount due to him, if any.
In
the end I considered that there was nothing for me to refer to trial.
The plaintiff was merely playing for more time. It was completely
unacceptable that he wished to continue that play before me. I had
previously issued several directives at his instance. He had failed
to comply.
Rule
182(11) reads:
“(11)
A judge may dismiss a party's claim or strike out his defence or
make an order as may be appropriate if -
(a)
the party fails to comply with directions given by a judge in terms
of subrule (4), (6), (8) or (10) or with a notice given in terms of
subrule (4); and
(b)
any other party applies orally for such an order at the pre-trial
conference or makes a chamber application for such an order.”
Thus
a judge conducting a pre-trial conference in terms of Order 26 has
powers, inter
alia,
to strike out a party's defence. There are three pre-conditions.
(a)
The first is that the judge must have given directions in terms of
any of the four preceding subrules specified.
(b)
The second pre-condition is that a party must have failed to comply
with any of those directions.
(c)
Pre-condition three is that the other party has to make an
application for the striking out of the defence, either orally at the
pre-trial conference or through the chamber book.
I
was satisfied that all the three pre-conditions had been met.
In
the end I entered judgment for the plaintiff in the amount of $70,000
which was never in dispute right from onset.
As
to costs, even if I were to disregard the plaintiff's conduct as
depicted by the pleadings, including the synopses of evidence, what
he exhibited in front of me was practically the same thing that the
plaintiff had complained about in those pleadings. The defendant was
just stringing everyone along. He seemed completely oblivious of his
position as a legal practitioner and an officer of the court.
Therefore I saw no reason why the plaintiff had to remain out of
pocket as far as costs were concerned. That is how the order of 4
November 2014 came about.
5
March 2015
Tendai
Biti Law,
plaintiff's
legal
practitioners
P.
Chiutsi Legal Practitioners,
defendant's legal practitioners
