Urgent
Chamber Application
CHITAKUNYE
J:
The
applicants and first to fourth respondents are children of the late
Keresia Jack who died intestate on 15 March, 1997. The late Keresia
Jack's estate comprises an immovable property namely house number
1935 Highfields Township, Harare.
The
estate was initially registered under DRH1942/04 and Lloyd Cypran
Mushipe was appointed executor. He however died before winding up the
estate. His wife Georgina Chidhakwa was then appointed executor on 16
May 2006 at the Magistrate Court.
That
registration and administration excluded the applicants.
Upon
discovery of the administration that excluded them, the applicants
alleged they approached court and that registration and appointment
of Georgina Chidhakwa as executor was nullified and in its place a
new registration under DRH1602/06. Under DRH1602/06 Lloyd Takudzwa
Mushipe and David Jack Mapurisa were appointed joint executors.
As
a result of the new joint executorship the property in question was
awarded to all the children comprising applicants and first to fourth
respondents in equal shares. They each were allowed to rent out a
room and enjoy rentals therefrom. They alleged that that was the
position till recently when respondents moved out of the house and
indicated that applicants should move out as the house had been sold.
Applicants further stated that they were never advised of the sale
nor of the name of the buyer.
It
is this occurrence that spurred them to file this application on 20
February 2015.
The
applicants filed the application as self actors. Upon perusal of the
papers I opined that the matters raised therein needed urgent
attention. I thus had the matter set down for hearing.
On
the date of the first hearing the applicants appeared in person as
self actors. The respondents' legal practitioner requested for a
postponement of the hearing as he had just been served with the
application on that day and so he was not ready to argue his clients'
case. There was also no proof of service of the application on fifth
respondent.
As
a result of the above the matter was postponed to 27 February 2015. I
also advised the applicants to seek legal representation so that
their case may be well presented and argued.
On
27 February 2015 the applicants came represented by Mr Mataka.
Mr
Mugiya
for
the respondents raised three points
in limine.
These were that:
Firstly,
that the application is incurably defective and so technically there
was no application before me. He argued that the application was not
in compliance with Rule 241(1) of the High Court Rules 1971. That
Rule states that an urgent chamber application shall be in Form 29B
and state the grounds for the application.
Secondly,
Rule 244 requires that the urgent chamber application should have a
certificate of urgency prepared by a legal practitioner. The
application before court has an affidavit of urgency by first
applicant.
The
third point in
limine
was to the effect that as the dispute pertains to a deceased estate
the Master should have been cited as a party. Failure to cite the
Master and the executor of the estate is a fatal defect.
Mr
Mugiya
argued
that because of the above grounds the application must be dismissed.
Mr
Mataka
for the applicants contended that the application should not be
dismissed on the points in
limine
but should be determined on the merits. He contended that there is an
application before court that is why court set it down for hearing.
Since applicants were self actors one could not be strict on the
requirement for the application to be in a certain format. Court has
to look at the papers before it and decide whether to hear the
parties or not. In this case court decided to hear the parties. In
any case the defect is not fatal.
On
the second point
in limine,
Mr Mataka
contended that Rule 244 does not make it mandatory for self actors to
file certificate of urgency by legal practitioner. The certificate is
required were a party is to be represented by a legal practitioner.
In this case applicants were self actors at the time of preparing and
filing the application. They were still self actors on the date of
first hearing.
On
the last point Mr Mataka
contended that the Master as custodian of deceased estates could have
been cited but failure to cite the Master was because no relief was
being sought against the Master. The official cited is the Registrar
of Deeds as relief was being sought against him.
In
deciding on the points raised I will start with the last point.
Whilst
accepting that in cases involving deceased estates it is important to
cite the Master as the official entrusted with overseeing the
administration of deceased estate, I am however of the view that the
non-citation of the Master is not fatal to this case. This court can
still make a determination as between the parties cited.
In
this regard Rule 87(1) states that:-
“No
cause or matter shall be defeated by reason of the misjoinder or non
joinder of any party and the court may in any cause or matter
determine the issues or questions in dispute so far as they affect
the rights and interests of the persons who are parties to the cause
or matter.”
See
Moyo
v Ncube
&
Others
2008 (2) ZLR 333 (H).
From
the foregoing it must thus be clear that the non joinder of the
Master is not fatal to the application.
It
may also be noted that in terms of Rule 248, the Master may still be
asked to file his report on the estate even if he has not been cited
as a party. That Rule states that:-
“(1)
In the case of any application in connection with-
(a)
the estate of a deceased person; or
(b)….
A
copy of the application shall be served on the Master not less than
ten days before the date of set down for his consideration, and for
report by him if he considers it necessary or the court requires such
a report.”
The
avenue for the Master to provide his input is thus available even if
he has not been cited. Failure to cite the Master is thus not fatal
especially where, as in this case, no relief is being sought against
him.
On
the second point in
limine,
Counsel for the applicant aptly responded to this. Rule 244 states
that:-
“Where
a chamber application is accompanied by a certificate from a legal
practitioner in terms of paragraph (b) of sub rule (2) of Rule 242 to
the effect that the matter is urgent, giving reasons for its urgency,
the Registrar shall immediately submit it to a judge, who shall
consider the papers forthwith.”
Paragraph
(b) of the above mentioned sub rule (2) of Rule 242 states that:-
“unless
the applicant is not legally represented,
the application shall be accompanied by a certificate from a legal
practitioner setting out, with reasons, his belief that the matter is
uncontentious, likely to attract perverse conduct or urgent for one
or more of the reasons set out in paragraph(a),(b),(c),(d) or (e)of
sub rule (1).” (emphasis is mine)
I
am of the view that where an applicant is a self actor a judge seized
with such an application must assess whether despite the absence of a
certificate of urgency the matter is urgent. To decline to take such
a step just because a legal practitioner has not so certified would
do injustice to indigent applicants who cannot afford a legal
practitioner.
I
do not understand the Rule to imply that such a legal practitioner
will provide such a service for free. By this I am not in any way
oblivious of the danger of an influx of such applications hence the
judge once seized with the application must do a careful assessment
and based on that decide on the urgency or otherwise of the
application. I am aware of several self actors who have been
entertained by this court on urgent basis based on their own papers
alleging urgency and the judge assessing that the matter is really
urgent.
In
casu,
the affidavit of urgency clearly shows the circumstances that make
the application deserving of this court's urgent attention had it
been properly before me.
In
his first point
in limine
Mr Mugiya
pointed
to the requirements of Rule 241(1) of which the papers before me were
not in compliance with. He argued that the defect is such that there
is no application before court. As for the fact that applicants were
self actors and so could not be expected to assiduously adhere to the
requirements of the Rule, Counsel argued that whilst that may have
been so, when Mr Mataka
assumed agency he should have attended to the anomalies rather than
seek to proceed as if the application was proper.
Mr
Mataka
on
his part seemed not to appreciate the defective nature of the
application. He contended that since the application is titled
'urgent chamber application for a provisional interdict order in
terms of Order 32 Rule 244 of the High Court Rules' that should
suffice especially as court set it down for hearing.
The
fallacy with this argument is that Counsel missed the point that as a
legal practitioner he was engaged to assist the applicants to put
their case in its proper perspective and ensure their rights and
interests are protected. He ought to have addressed his mind to the
anomalies pointed out and decided on how best to correct the
anomalies. He could easily have applied for condonation for the
failure to comply with the rules as applicants were lay persons and
self actors and sought leave to attend to the anomalies so that the
matter is decided on the merits.
Rule
241(1) states that:-
“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.”
In
Form 29B an application is made for an order in terms of an annexed
draft on grounds that are briefly set out as the basis of the
application and affidavits are tendered in support of the
application.
In
Form 29 which is to be used with modifications as appropriate, the
applicant gives notice to the respondents of his application for an
order in terms of the draft and that the accompanying affidavits and
documents shall be used in support of the application. The format
further informs respondent of the procedural steps to be taken.
An
analysis of the application before me shows that the format adopted
by the applicants does not comply with either Form 29B or 29.
It
does not contain the plethora of procedural rights that the
respondents are alerted to in Form 29, or the summary of the grounds
of the application required in Form 29B. This is a substantial
departure from the Rules which is fatal. See Zimbabwe
Open University
v Mazombwe
2009
(1) ZLR 101 (H).
As
already alluded to above Counsel for the applicants opted to proceed
with the defective application without applying for condonation of
the failure to comply with the rules. Ample opportunity was given for
counsel to have addressed his mind to the issues at hand in the form
of postponements of the hearing but, alas, he was adamant in
proceeding with the papers as filed by self actors. I am of the view
that the application cannot stand. The application will be struck off
the roll for non compliance with the rules with applicants to pay
costs on the ordinary scale.
Accordingly
the application is hereby struck off the roll with applicants to pay
costs on the ordinary scale.
Chambati
Mataka & Makonese,
applicants' legal practitioners
Mugiya
& Macharaga law Chambers,
1st
to 4th
respondents' legal practitioners
