Urgent
Chamber Application
FOROMA
J:
It
is apparent from the number of reference cases in the official
heading of this matter that the parties have been at each other in
the courts on a number of occasions. Their battles appear to be far
from over and their legal advisers do not seem to have made it any
easier to see an end to the succession dispute arising from the
demise of the founder of the second applicant. It would appear that
the dispute may drag on longer as long as correct legal advice is not
given on how to apply rules of this court correctly and to best
advantage.
The
current case is a third urgent approach to the court for relief
involving the members engaged in the succession dispute. Ninth and
tenth respondents have been dragged into this seemingly endless
dispute.
The
applicants approached the court for urgent relief which is summarised
in the Provisional Order as follows:
“Terms
of Interim Relief
(1)
The 1st
to 8th
respondents and all their functionaries and followers be and are
hereby temporarily barred and interdicted from entering or coming
within twenty (20) metres of Stand 8679 Mangwende Drive Canaan
Highfield Harare or from interfering, interrupting, disturbing or
hindering the SPIRITUAL activities of the applicants or their
followers and functionaries pending the return date.
(2)
The 9th
and 10th
respondents are directed to enforce the provisions of paragraph 1
herein above pending the return date.
(3)
The 1st
to 8th
respondents show cause if any why they should not pay costs of suit
on the higher scale.”
At
the hearing of the application the Mr Mushonga
represented
the applicants and first to eighth respondents were represented by Mr
Zhuwarara
instructed
by Mr Muchandiona
and ninth and tenth respondents were represented by Mr Chimiti.
It
is important to note that the applicants on 23 December 2016 when the
applicants filed their application they also filed on the same date a
certificate of service
which
purported to be proof of service on the first to eight respondents.
The application could have been set down for hearing before the court
took the Christmas break but for the invalid certificate of service
in terms of which the appellant's legal practitioners purported to
have served the application on one Rene Mutumbura at the first
respondent's residential address who allegedly accepted service for
and on behalf of the first to eight respondents. I directed that
service be made afresh. Then no service appeared to have been
effected on the ninth and tenth respondents. Proper service of the
application had been done by 3 January 2017 and the matter was then
set down for hearing on 4 January 2017.
At
the commencement of the hearing Advocate Zhuwarara
took points in
limine
namely that there was no urgent application before the court as there
had been a failure to comply with the rules regarding the format of
the application and (ii) that the certificate of urgency was
defective and thus there was no urgent application before the court.
Mr.
Chimiti
also took a point in
limine
namely that the relief sought was legally incompetent as police have
no lawful authority to enforce High Court Orders as the power to
enforce such court order reposes in the Sheriff, his deputy and
assistants.
Advocate
Zhuwarara
citing the judgments of David
Jack and Others v
Lloyd
Mushipe and Others HH318/15
a judgment of Chitakunye
J
and Marick
Trading P/L v
Old
Mutual Life Assurance Company P/L and the Sheriff for Zimbabwe
HH667/15 argued that applicant's failure to use Form 29 with
appropriate modification is fatal to its application as that is a
failure to comply with Rule 241 of the High Court Rules.
Order
32 Rule 241(1) provides as follows:
“(1)
A chamber application shall be made by means of an entry in the
chamber book and should be accompanied by Form 29(b) duly completed
and except as is provided in sub rule (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 intended
party, it shall be in Form No.29 with appropriate modifications. This
proviso was inserted by Statutory Instrument 251/93.”
In
casu,
it is common cause that the chamber application is one which had to
be served on the respondents as evidenced by the initial albeit
invalid attempt by the applicants to serve the respondents. That
therefore the chamber application had to be in Form No.29 with
appropriate modifications in terms of the proviso to Rule 241(1)
cannot be open to any debate.
The
applicant's counsel's response to this point in
limine was
therefore
startling.
Mr
Mushonga
quite
surprisingly insisted and persisted that the applicant had more than
adequately complied with Rule 241(1) as he considered that he was
required to use Form 29B and not Form 29. He went so far as to argue
that Form 29 was relevant only in court applications and that the
applicants' was not a court application but a chamber application.
With
respect counsel's reading of the Rule 241(1) was erroneous. His
set of rules was probably not amended in Rule 241(1) otherwise the
only other explanation for the reading of Rule 241(1) urged upon by
him betrays that he was not aware of the judgments of Chitakunye
and
Mafusire
JJ
referred to him by advocate Zhuwarara.
One
can well appreciate Mafusire
J's opening
remarks in the Marick
Trading P/L's case
when he said legal practitioners should keep abreast with the
pronouncements from the courts. It is a duty.
While
it is correct as contented by Mr Mushonga
that Form 29 is for use in ordinary court applications it is also for
use in those chamber applications that require to be served on
interested parties.
Both
Chitakunye
and Mafusire
JJ
make a pertinent observation namely that one of its (Form 29) most
important features is that it sets out a plethora of procedural
rights. mafusire
j
additionally observes that it alerts the respondent of those rights
and warns the respondent of the consequences of failure to observe
those procedural rights.
I
dare add that whilst the procedure for barring does not apply in
urgent applications in making the necessary adjustments to form 29
the other procedural rights will need to be provided for as
appropriate.
As
observed above in the absence of condonation of the failure to comply
with Rule 241(1) as aforesaid the application is fatally defective.
Had
the applicant not been adamant that they had complied with the rules
the applicant would have been advised to seek condonation.
Regrettably
the applicant's counsel was dismissive of the objection taken by
the respondent's counsel.
What
triggers the exercise of the court or judge's discretion to grant
condonation is the application for condonation. The court or a judge
does not consider condonation mero
motu.
A party has to move it for such relief.
The
applicants' attitude has not really been helpful to its cause as it
has persisted with a position untenable. It has made its bed of roses
and must therefore lie on it. There being no application before me
the application must simply be struck off the roll with the
applicants paying the wasted costs.
In
light of the conclusion I have reached on this point in
limine
there will be no need to determine the other points in
limine
taken. In the circumstances it is ordered that:
1.
the application be and is hereby struck off the roll.
2.
the applicants bear the respondents' costs jointly and severally
the one paying the other to be absolved.
Mushonga
Mutsvairo & Associates, applicants'
legal practitioners
Danziger
& Partners, 1st
to 8th
respondents' legal practitioners
Civil
Division of Attorney General's Office,
9th
& 10th
respondent's legal practitioners
