GOWORA
JA:
BACKGROUND
FACTS
[1]
The first appellant, Firinne Trust, is a trust incorporated as such
by Deed of Trust under the laws of Zimbabwe and registered with the
Registrar of Deeds. It trades as Veritas, which is the second
appellant herein. The first respondent, is the Zimbabwe Electoral
Commission, (ZEC), established in terms of section 238 of the
Constitution. Although it is established under the Constitution it
carries out its mandate in terms of the Electoral Act [Chapter
2:13],
the (“Act”). The second respondent, the (“Minister”) is the
Government official assigned the administration of the Act. The third
respondent, (“the Attorney-General”), is the legal adviser to the
Government.
[2]
On 19 December 2017, under Case No HC11749/17, Veritas filed an
application with the High Court in which it sought a declaratur and
ancillary relief pertaining to sections of the Act. The premise of
the application was that the specified sections of the Act imposed
restrictions on conducting voter education by persons other than ZEC
and political parties.
[3]
In this application, Veritas, on its own behalf and on behalf of the
public in general sought an order declaring sections 40C(1)(g),
40C(1)(h), 40C(2) and 40F of the Act as being ultra
vires sections
56, 61 and 67 of the Constitution, the allegation being that the
impugned sections infringe the right of the public in general, and
that of Veritas in particular, to equality and non-discrimination,
freedom of expression and their political rights including the right
to a free and fair election and to make political choices freely.
[4]
ZEC opposed the application raising several points in
limine
relating to the citation of the applicant in the matter and the form
of the application which it contended was not in accordance with the
requirements of the rules of court.
[5]
In response, and under Case No. HC4391/18, Firinne Trust filed an
application for leave to amend the citation of Veritas as applicant.
It sought that the record be amended to reflect the applicant as
“Firinne Trust also known as Veritas”. This application was also
opposed by ZEC. The Minister and the Attorney-General filed their
opposing papers out of time. Their failure to adhere to the rules was
condoned at the hearing of the applications and they were given leave
to participate in the proceedings.
[6]
The matters were subsequently consolidated by consent and set down
for hearing before the same judge. The learned judge in the court a
quo
was persuaded to find that the application was fatally defective in
that it had been filed by a non-existent party. As a consequence, he
refused the request for leave to amend the citation of the applicant,
(Veritas) for the reason that there was no applicant before him. He
also found that the form used by Veritas in the court application
rendered the application itself fatally defective. Consequent
thereto, he upheld the points in
limine and
dismissed both applications with costs. This appeal is against the
dismissal of the applications.
THE
APPEAL
[7]
Although the learned judge did not delve into the merits of the
dispute the notice of appeal filed sought to touch on the merits of
the dispute. The court is grateful to counsel for accepting that the
merits of the dispute are not in contention in this appeal. The
appeal before us is as a result confined to the determination by the
court of the points in
limine.
[8]
The grounds of appeal upon which the judgment is attacked are the
following:
1.
The court a
quo
erred in law in failing to hold that Rule 8C of the High Court Rules,
1971 permits a trust to sue and be sued in its trade name as if it
were its proper name.
2.
The court a
quo
erred in law in failing to hold that the use of a name or trade name
of a trust in litigation in place of the names of the trustees is for
convenience and does not deprive the appellant of locus
standi
under sections 45(3) and 85 of the Constitution.
3.
The court a
quo
erred in law and misdirected itself by refusing the amendment of the
citation of the appellant in circumstances where a trade name had
been properly used and the amendment was merely cosmetic.
4.
The court a
quo
erred in law and misdirected itself by failing to hold that the use
of Form 29B, with such alterations as circumstances require, is
permitted under Rule 229C as read with Rule 4(2)C of the High Court
Rules and in any event any departure from the rules should have been
condoned under Rule 4C.
5.
The court a
quo
erred in law in upholding preliminary points lacking substance raised
by a party abiding in circumstances where the appellant, second
respondent and third respondent wanted the merits determined.
6.
The court a
quo
erred in law and misdirected itself in awarding costs on a legal
practitioner and client scale against the appellant in a
constitutional matter of huge public interest and importance without
making any finding in law warranting the exercise of the learned
judge's discretion in this regard.
DETERMINATION
OF THE POINTS IN LIMINE BY THE COURT A QUO
[9]
In deciding on the points in
limine
the court a
quo
made remarks to the following effect:
“In
casu,
the applicant is cited herein in case HC11749/17 as Veritas. It is
thereafter described in the founding affidavit deposed to on its
behalf by Valerie Anne Ingham-Thorpe, (paragraph 1 thereof), as a
trust incorporated in Zimbabwe by a deed of trust and registered with
the Deeds Registry as Firinne Trust but trading as Veritas.
In
my view, the applicant having realized the folly of using the name
Veritas alone (a Trust) as the applicant in case HC11749/17 and
having been jolted by points in
limine
raised by the first respondent, must have realized that its
application was potentially fatally defective and to avoid the
application being declared as such at the hearing of the matter
sought to bring the second application in case HC4391/18 seeking
leave to amend the citation of the applicant in the matter HC11749/17
by inserting the words FIRINNE TRUST also known as in front of the
current citation of the applicant in the main matter such that the
full citation of the applicant shall read as follows: FIRINNE TRUST
also known as Veritas to ensure that both the registered name as well
as the operating name of the Trust in whose name the application has
been brought appears on all pleadings.
…………………………………
Procedurally
I agree with the counsel for the first respondent's observation
because having noted that its application was potentially fatally
defective the applicant need not have resorted to filing a new
application dealing with points in
limine
raised in another application. I say so because in paragraph 10 the
applicant said in her founding affidavit in case HC4391/18 that -
'However,
in its Opposing Affidavit, the First respondent raised a number of
points in
limine
including one that the application could not be brought in the name
of the Trust. The First Respondent subsequently altered this point in
its heads of argument to say that the application should have been
brought in the name of the registered trust rather than the trust's
operating name.'”
ISSUES
ON APPEAL
[10]
The above remarks were made in relation to the application to amend
the citation of Veritas, to replace the named applicant in the court
a
quo
with a totally different party to the one appearing on the pleadings.
It seems to me that the application was not one for amendment of the
citation of the applicant but its substitution. I believe that the
substance of the appeal addresses this particular finding of the
court a
quo
and the first three grounds of appeal are pertinent in this regard.
Can it be said that the court a
quo
erred in refusing the application to amend the citation of the
appellant?
[11]
The issues to decide are firstly, whether or not Veritas is a person.
If it is not a person, can the citation be amended as prayed for by
the appellants or does its status as a non-legal person render the
proceedings instituted under Case No HC11749/17 in its name a
nullity. Although not dispositive of the appeal in the instant case,
the form in which the main application was brought to court was a
contentious issue. It will also be considered as an issue in the
appeal. The issue on costs is conceded.
ARGUMENTS
ON APPEAL
[12]
Mr Mafukidze
made reference to Rule 8 of the Rules of the High Court 1971, and
submitted that in terms of that Rule a person carrying on business
may sue or be sued in that name. He argued that an association
includes a trust, and that as a consequence, a trust being an
association is capable of mounting suit in its trade name. Having
said this, he accepted that a trust was not a person in that it was
not separate from its trustees. He conceded that the trust had no
separate existence and that it was set up in terms of a constitution
whether as a corporate entity or incorporated one. He suggested
however, that our Rules permit the amendment sought in the lower
court.
[13]
On the use of the appropriate form, his argument was that the form
used was 29B as provided in the Rules. He accepted the defect on the
form used but submitted that the Rules permit the court the
discretion to condone a departure from such compliance.
[14]
The court a
quo
dismissed both the application for an amendment and the main
application with costs at a punitive scale. The appellant contends
that there is a principle within this jurisdiction that in order not
to unnecessarily discourage litigants from seeking to enforce their
rights through the Constitution it is only in the extreme cases that
courts should order costs against any litigant raising violation of a
constitutional right. He argued that the court a
quo
therefore misdirected itself when it ordered the appellants to pay
the costs.
[15]
On behalf of ZEC, Mr Kanengoni
made the following submissions. He contended that ZEC wished to
interrogate whether the jurisdiction of the High Court had been
properly invoked by the appellants. To this end, any determination on
the merits would have to be grounded on proper invocation. He argued
that such invocation is premised on properly issued process. It was
the considered view of ZEC that the manner in which the matter was
brought before the court was in disregard of the Rules. He added that
it was within the discretion of the appellants to have withdrawn the
application. Instead they chose to pursue it with the faults that
everyone accepts bedevil the main application.
[16]
As regards the form of the main application, he submitted that he did
not accept the appellants' contention that the application had been
brought in the correct form. He argued that the form used excluded
fundamental elements upon which the application is founded and that
those elements are material in that the respondent is not informed on
what to do to show opposition to the application. The form did not
give notice to the respondent, it did not provide the dies
induciae
in which opposition should be mounted and more particularly, it did
not inform the respondents of their rights. He said that the rights
and obligations of the respondents arise from these points. He said
that the form in which the application was in rendered it a nullity
and a discretion to condone cannot be exercised in the circumstances.
[17]
As regards the citation of the applicant in the lower court he
disagreed with counsel for the appellants that Rule 8C was applicable
in this instance. He contended that a trust was not a person as
envisaged in the Rule and therefore the appellants could not have
recourse to the Rule and have the trust sue in the name of VERITAS.
He suggested that there was of necessity a separation between Rule 8
and Rule 8C. He argued that Rule 8 incorporated the ability of the
trustees to sue in the name of the Trust. In this case the name of
the Trust is Firinne Trust. He contended that a trust cannot rely on
Rule 8C to sue in a trade name.
[18]
On the question of costs, his attitude was that the court a
quo
had confined itself to the preliminary issues. There was as a
consequence, no determination on the substance. Given this scenario,
he would not insist that the award of punitive costs remain.
Mr
Chimiti
on behalf of the Minister and the Attorney-General indicated that he
would abide by the decision of the court.
THE
NATURE OF A TRUST
[19]
A very pertinent passage on trusts is found in the book Herbstein &
Van Winsen, Civil Practice of the High Courts of South Africa by the
learned authors Cilliers, Loots & Nel to the following effect:
“A
trust is not a legal persona,
but a legal institution sui
generis.
Therefore, it must be sued in the name of the trustee or trustees.
However, when the trust itself has been cited, the courts have
allowed the correction of the citation. Unless one of the trustees is
authorized to act by the remaining trustee or trustees, all the
trustees must be joined in suing, and all must be joined when an
action is instituted against a trust. The trustee should be cited in
their representative capacities.”
Within
this jurisdiction the issue of whether or not a trust is a person has
received attention and there is a plethora of authority on the
subject. In Crundall
Bros (Pvt) Ltd v Lazarus NO & Anor 1990
(1) ZLR (H), at 298E the court stated:
“I
can see no reason why a trust should be regarded as a 'person'
for the purposes of the Regulations, when it is not regarded as a
'person' for other purposes.”
[20]
This principle was confirmed by SMITH J in WILSA
& Ors v Mandaza & Ors 2003
(1) ZLR (H), at 505-6 wherein is stated the following:
“Mr
Nherere
took the point, in
limine,
that WLSA, being a trust is not a corporate body and therefore cannot
appear as a party. That contention is legally sound. In Commissioner
for Inland
Revenue v MacNeillie's Estate
1961 (3) SA 833 (A) at 840F-H, Steyn CJ said:
'Like
a deceased estate, a trust, if it is to be clothed with juristic
personality, would be a persona or legal entity consisting of an
aggregate of assets and liabilities. Neither our authorities nor our
courts have recognized it as such a persona
or entity. The Estate Duty Act, like the Income Tax Act, 31 of 1941,
does not define 'person'. The Statutory definition in sec. 2(x)
of the Interpretation Act, 33 of 1957, does not mention a trust or
any category of persons which would include a trust.
It
is trite law that the assets and liabilities in a trust vest in the
trustee.
The
introduction of another persona consisting of those assets and
liabilities for the purposes of imposition and collection of a tax,
when there is a trustee ready to hand, would be an extraordinary
measure which would call for some adjustment, the nature of which is
by no means obvious, and of which there is no trace in the Act,
between the legal position of such a persona
and of the trustee.'”
That
statement of the law was confirmed in Crundall
Bros (Pvt) Ltd v Lazarus NO & Anor
1991 (2) ZLR 125 (S) where at 128F, it was said:
“A
trust is not a person. The trustee is the person to be considered for
the purposes of the Regulations.”
Herbstein
& Van Winsen also states:
“The
fact that one trustee has been authorized by the remaining trustees
to institute action on behalf of the trust does not necessarily
confer locus
standi
on that trustee. The trustees must act nomine
officii
and cannot act in their private capacities. Beneficiaries cannot act
independently of trustees against someone other than the trustee in
legal proceedings relating to trust property.”
[21]
The passage quoted above is in sync with our law. In Chiite
& 7 Others v Trustees, Leonard Cheshire Homes Zimbabwe Central
Trust
CCZ 10/17, MALABA CJ made the following observation regarding the
citation of trustees:
“A
proper reading of the provisions of Rule 8A of the High Court Rules
establishes that it is not a requirement for the names of the
trustees to be listed when they bring an action on behalf of the
Trust. The only place where the issue of the listing of the names of
the trustees when an action has been instituted on behalf of the
Trust is where a defendant to a suit by the Trustees has requested
from the Trust the names and addresses of the individual trustees.
This would be in line with Rule 8A of the High Court Rules, 1971.”
[22]
The contention by the appellants is that it is the trust that has
brought this suit. That is incorrect. The suit has been brought by
Veritas. The person who deposed to the founding affidavit is not a
trustee, she is an administrator in the employ of the trading arm of
the trust. Thus the party before the court is not the trust, it is an
entity associated with the trust. I am not convinced that the rule
that the appellants place reliance on is of any assistance to them.
DOES
RULE 8C APPLY IN THE INSTANT PERMITTING THE AMENDMENT SOUGHT
[23]
In order to bolster their argument that an amendment of the applicant
in this instance would be in order, the appellants have referred the
court to Luxavia
(Pty) Ltd v Gray Security Services (Pty) Ltd
2001 (4) SA 211. At p219, para 15-16, TIP AJ states:
“There
is also a category of cases in which substitution was refused because
the initial plaintiff was not a legal persona.
In Van
Heerden v Du Plessis
1969 (3) SA 298 (O) an action for patrimonial damages had been
instituted in the name of a person who was already deceased. An
application to substitute the executor of the estate was held to be
impermissible on the basis that the original summons was a nullity
(at 304A-G). In reaching that conclusion, Smuts J placed some
reliance on the approach taken in Van
Heerden v Braun & Summers,
to which I have referred above. Van
Heerden v Du Plessis
was applied in Friends
of the Sick Association v Commercial Properties (Pty) Ltd and Another
1996 (4) SA 154 (D), where the plaintiff had been described in the
summons as a voluntary association although it had ceased to be such
upon its incorporation as a company not for gain several decades
earlier. Refusing substitution, the Court held at 158A-B that the
summons was a nullity and there was no need to even consider whether
or not an amendment might cause prejudice.”
[24]
It seems to me that the above statement is not only apposite in this
instance but it applies with equal force. The principle that the
citation of a non-existent party results in a nullity was confirmed
in Gariya
Safaris (Pvt) Ltd v van Wyk 1996
(2) ZLR 246 (H). At 253C-254B, MALABA J (as he then was) said:
“In
this case, the person against whom the plaintiff thought it was
proceeding as a defendant was non-existent at the time summons was
issued. The proceedings and judgment that followed the summons were
null and void. To try an action in which there is only one party is
an exercise in futility. There were no two parties to give rise to
the existence of a cause of action between them. There was nothing to
be substituted by the respondent as a new judgment debtor. There was
no old judgment debtor.
This
proposition is not without authority.
In
van
Heerden v du Plessis
1969 (3) SA 298 (O) a summons was issued against a person who had
already died. Application was made for an order of substitution of
the executor testamentary for the deceased. The application, which
was opposed, was refused on the ground that the summons was wholly
invalid.
In
Devonia
Shipping Ltd v MV Luis (Yeoman Shipping Co Ltd Intervening) supra,
the learned judge mentioned that cases in which the summons has been
issued against a non-existent person are exceptions to the
application of the general rule on the approach courts should adopt
in deciding applications for orders of substitution. The learned
judge at 369J- 370A had this to say:
'The
correction of a mis-description of an applicant differs also from the
cases where the courts have regarded a summons or notice of motion as
ab
initio
invalid because the plaintiff or applicant was a non-existent
person.'
In
Fosa
v Commercial Properties (Pty) Ltd & Anor
[1996] 2 All SA 611 (D) the summons was issued in the name of a
non-existent plaintiff. An application for substitution was refused
by NILE-DUNER AJ on the ground that, the fact that the persona
described in the summons did not exist at the date of issue of the
summons, called into question the validity of the proceedings before
him. The learned acting judge concluded at p 614 by saying:
'There
is, in my opinion no difference in principle between the situation in
van
Heerden v du Plessis supra
and the present case. I accordingly take the view that the summons is
a nullity and that I cannot by the process of substitution revive it
to the date of its issue.'
See
also Dawson
(Bradford) Ltd & Ors v Dove & Anor
[1971]1 All ER 554 (QB) where it was held that substituting the
defendant for the deceased against whom summons had been issued after
his death was not an act of substitution but of creation.”
[25]
The suit in this appeal has not been brought by the trust. If it had
been brought by the trust, the remarks by the court in the case of
Chiite
& Ors v Trustees, Leonard Cheshire Homes (supra) would
have been apposite. The arguments made by Mr Mafukidze
might have been persuasive. In this instance his arguments are not
apposite. In
casu,
the appellants have not argued that Veritas is a trust. The applicant
as cited is a trade name. It is not a legal persona.
It is not suggested that Veritas is an entity, like an association or
a partnership. Veritas is a trade name which the trust makes use of
when trading.
[26]
Mr Mafukidze
concedes that Veritas is not a persona.
It is also not the trust. Despite these very fundamental legal
obstacles it is still contended that the court a
quo
should have exercised its discretion in favour of the appellants and
invoked Rule 8C and allowed the application to amend the citation.
Rule 8C reads:
“8C.
Proceedings by or against persons under their trade name
Subject
to this Order, a person carrying on business in a name or style other
than his own name may sue or be sued in that name or style as if it
were the name of an association, and Rules 8A and 8B shall apply,
mutatis
mutandis,
to any such proceedings.”
[27]
Rule 8C, which Mr Mafukidze
seeks reliance on makes reference to a person. Veritas is not a
person. The trust, Firinne Trust, is also not a person. In moving the
appeal Mr Mafukidze
sought reliance on the remarks by MATHONSI J, (as he then was) in
Nuvert
Trading (Pvt) Ltd t/a Triple Tee Footwear v Hwange Colliery Company
HH 791/15 to the following effect:
“Those
cases are clearly distinguishable from the present case and reliance
on them is completely misplaced. In both cases, there was no
defendant at all and the court correctly found that no amendment
could be made to a non-existent summons given that a summons is only
valid if it has a defendant to answer to. In the present case it
cannot be said by any stretch of the imagination that the defendant
does not exist because there is an entity answering to that name. The
only omission is the word “Limited” which is an expression
speaking to its limited liability status than anything. The amendment
sought relates to completeness of the name as opposed to introducing
a new persona to a summons originally without a defendant.”
[28]
A reading of that statement makes it clear that there must be a party
to proceedings, viz, there must be a persona
in one form or another. In my view the authority does not assist the
position taken by the appellants. What it does is to reinforce the
argument adopted by ZEC, to the effect that if the applicant is not a
persona,
one cannot apply to have that applicant substituted. The citation of
a non-existent entity renders the proceedings a nullity. I am
fortified in these remarks by the dicta in J
D M Agro-consult (Pvt) Ltd v Editor, The Herald & Anor 2007
(2) ZLR 71 (H), at 75A-E to the following effect:
“What
is now before me is a point in limine
dealing with the question of the citation of the parties. It is a
legal issue, in that the defendants aver that the summons is bad at
law, in that no defendant has been brought before the court. They
allege that the proceedings are a nullity as a result, and no
application launched by the plaintiff to amend the summons or
substitute the defendants can cure the defect, as the summons is a
nullity.
It
is pertinent to state from the outset that the application to amend
the summons by altering the name of the second defendant, which was
granted at the pre-trial conference was without effect. The party
named as the second defendant did not exist at the time that the
summons was issued and served. The correct appellation for the
publisher and owner of the newspaper is Zimbabwe Newspapers (1980)
Limited. That is a registered company, duly incorporated under the
laws of this country. Its coming into being is due to the process by
which it was incorporated as such. It is then, after its
incorporation, that it becomes a juristic person, capable of suing
and being sued in its own right. Without that process it is
non-existent. The entity sued by the plaintiff as the second
defendant is The Herald Newspaper. It is not a registered company and
does not exist in any other form. Consequently, the plaintiff issued
summons against a non-existent being. The amendment to the second
defendant's name therefore was of no force and effect as the
summons itself was a nullity.
In
Gariya
Safaris (Pvt)
Ltd
v Van
Wyk,
this court stated:
'A
summons has legal force and effect when it is issued by the plaintiff
against an existing legal or natural person. If there is no legal or
natural person answering to the names in the summons as being those
of the defendant, the summons is null
and
void ab initio.'”
[29]
The appellants concede that Veritas is not a person. The rule that
they seek to rely on in having the citation amended speaks of “any
person”. Once it is conceded that Veritas is not a legal persona
no reliance can be sought in the Rule. The appellants are out of
court. There is as a consequence no applicant in the main
application.
[30]
ZEC has argued that the application is a nullity and that as a result
there is nothing to amend. I am constrained to accept that
contention. It is trite that proceedings which are a nullity cannot
be amended. This was confirmed in Jensen
v Acavalos
1993 (1) ZLR 216 (S), where KORSAH JA, stated at 220C-D:
“With
this view I most respectfully agree: for if the notice of appeal is
incurably bad, then, to borrow the words of LORD DENNING in McFoy
v United Africa Co Ltd
[1961] 3 All ER 1169 (PC) at 11721, 'every proceeding which is
founded on it is also bad and incurably bad. You cannot put something
on nothing and expect it to stay there. It will collapse'.”
[31]
Those remarks apply with equal force in this appeal. There was no
applicant before the court a
quo.
The citation of a non-existent party cannot be amended. The
proceedings themselves are a nullity. The application for amendment
must as a result fail. The court a
quo
was correct in this regard.
THE
FORM OF THE APPLICATION
[32]
I turn now to the form used in the main application before the court
a quo.
Veritas
mounted a court application in terms of Order 32. The Rule pertaining
to the form that such application should take is Rule 230, and it
provides as follows:
“C.
COURT APPLICATIONS
230.
Form of court application
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.”
The
court a
quo
found that, in addition to the lack of proper citation of the
applicant, the application was itself defective for want of the
proper form. To that end the court concluded that there was in fact
no application before it.
[33]
The appellants accept that the notice is not in the correct form.
They contend however, that the notice was in fact according to Form
29B and that this form was permissible in terms of Rule 230. There is
no doubt that the form used is not what is provided for in peremptory
terms by Rule 230. The Rule requires that a court application be in
Form 29. It is only when the application is not to served on any
other party that the Rule permits reliance on Form 29B. The
application in contention was served on three respondents. It
therefore did not fall within the genre of applications provided for
in the proviso to the Rule. A notice in an application serves many
purposes. The notice informs the respondent of the steps he is
required to take if he intends to oppose the application. It also
places upon a respondent the onus to file and serve his or her papers
within a given period and most importantly gives the address for
service of the applicant. The court and the Registrar are also
informed by the notice of the requirements placed upon the respondent
to such suit. This is why the Rule is peremptory.
[34]
In Zimbabwe
Open University v Madzombwe
2009 (1) ZLR 101 (H), HLATSHWAYO J, (as he then was) held as follows:
“In
Form 29, the applicant gives notice to the respondents that he or she
intends to apply to the High Court for an order in terms of the
annexed draft and that the accompanying affidavit/s and documents
shall be used in support of the application. It goes on to inform the
respondent, if he so wishes, to file papers in opposition in a
specified manner and within a specified limit of time, failing which
the respondent is warned that the application would be dealt with as
an unopposed application. In Form 29B, an application is made for an
order in terms of an annexed draft on grounds that are set out in
summary on the basis of the application and affidavits and documents
are tendered in support of the application.
.…..
Now,
the format adopted by the applicant does not contain the plethora of
procedural rights that the respondent is alerted to in Form 29, nor
is the summary of the grounds of the application required in Form
29B.”
The
application was therefore held to be fatally defective.
[35]
The application in this appeal was brought before the court on the
basis of a form which reads as follows:
“Application
be and is hereby made for an order in terms of the draft annexed
hereto.
The
accompanying affidavit(s) and document will be used in support of the
application.”
This
application was served on the respondents.
It
is not an application provided for in Form 29B. Contrary to the
requirements of Form 29, which are peremptory, there was no attempt
to give notice to the respondents of what was required of them to
oppose the application. The form excludes those fundamental elements
upon which an application is founded, which are material for purposes
of giving notice to a respondent of his rights as regards the
application. It did not state the dies
induciae
operating against the respondent for purposes of mounting any
opposition. There was not even an attempt to include a summary of the
basis upon which the application was being mounted on the face of the
application.
In
this case, in the absence of a notice in the proper form the court
may be left in doubt as to whether or not a respondent has opposed
the application within the prescribed period and served the
application at the proper address. In this instance the appellants
have not stated why the application did not contain the proper form
by way of notice. I hold that the application is as a result fatally
defective.
THE
QUESTION OF COSTS
[36]
The court a
quo
ordered the appellants to pay punitive costs. The respondents have
conceded that there is no legal justification for such an award. I
must agree. The award of costs on the punitive scale cannot stand and
the appeal against the award of costs at that scale must succeed. The
appeal succeeds on that sole ground.
DISPOSITION
[37]
Once the lack of status of Veritas was raised the appellants should
have exercised caution and, as found by the learned judge, in the
court a
quo,
withdrawn the application. Instead there was a dogged insistence on
proceeding with the papers in the form that they were in. Wiser
counsel should have prevailed. I note in passing that the application
to amend the citation was properly done in terms of Form 29. As
argued by Mr Kanengoni,
the jurisdiction of the court must be invoked properly and lawfully.
It cannot be lawfully invoked at the instance of a non-existent
party. The court a
quo
was correct in exercising its discretion in favour of the respondents
and upholding the points in
limine.
The order of costs on the higher scale however, must be set aside.
Accordingly,
an order will issue as follows:
IT
IS ORDERED THAT:
1.
The appeal partially succeeds to the extent set out in paragraph 2
below.
2.
Paragraph 2 of the order of the court a
quo
is set aside and in its place is substituted the following:
“The
applicants shall pay the respondents' costs on the ordinary scale
of costs, viz
as between party and party.”
1.
For the avoidance of doubt the appeal against the points in
limine
is dismissed.
2.
The appellants are ordered to pay the costs of this appeal, jointly
and severally, the one paying, the other to be absolved.
GUVAVA
JA: I
agree
BHUNU
JA: I
agree
Mtetwa
& Nyambirai, appellant's
legal practitioners
Messrs
Nyika, Kanengoni & Partners, 1st
respondent's legal practitioners
Civil
Division of the Attorney General's Office, 2nd
& 3rd respondent's legal practitioners
At
p 182
At
p 183
Herbstein
& Van Winsen 5 ed pp182-183
1996
(2) ZLR 246 (H)
