MAFUSIRE
J:
In
this application one Knowledge Hofisi (“Hofisi”)
was the final judicial manager of the applicant company, David
Whitehead Textiles Limited, which was under final judicial
management. The application was for an order that the applicant be
joined as the second defendant in an action under the case reference
number HC8549/13.
In
that action the first respondent herein (“Kala”)
was the plaintiff therein. She sought an order that the sale to her
of a certain immovable property in Kadoma (“the
property”)
be declared “legal
and valid”.
She claimed she bought the property through an estate agent and
subsequently obtained transfer.
In
the action, she also sought an eviction order against the second
respondent. The second respondent counter-claimed that he was an
employee of the applicant and the sitting tenant in occupation of the
property on the applicant's rent-to-buy scheme with its employees.
The applicant was not a party to that action.
In
the present application Hofisi said the applicant was the original
owner of the property. He said through a series of fraudulent
transactions involving representatives of the purported majority
shareholder and the sham management in place at the time, the
property, together with several other assets of the applicant, had
unlawfully been disposed of.
Nothing
had come to the applicant's coffers.
After
his appointment as the final judicial manager he set about
investigating the affairs of the applicant. He unearthed a massive
scam by the fake majority shareholder and its sham executive
management. Hofisi said he wanted to reverse all the illicit
transactions pertaining to the applicant's affairs. The sale and
transfer of the property to Kala was one of them. Therefore, Hofisi
said, the applicant had real and substantial interest in Kala's
action.
Hofisi's
application was made in terms of Order 13 Rule 87 of the Rules of
this court. The relevant portions of that Rule read:
“87
Misjoinder or nonjoinder of parties
(1)…………………………………………………………….
(2)
At any stage of the proceedings in any cause or matter the court may
on such terms as it thinks just and either of its own motion or on
application —
(a)….………………………………………………..;
(b)
order any person who ought to have been joined as a party or whose
presence before the court is necessary to ensure that all matters in
dispute in the cause or matter may be effectually and completely
determined and adjudicated upon, to be added as a party;
……………………………………………………………..
(3)
A court application by any person for an order under subrule (2)
adding him as a defendant shall, except with the leave of the court,
be supported by an affidavit showing his interest in the matters in
dispute in the cause.”
Kala
opposed the application.
Her
argument was that she had innocently bought the property on the
market. She had not been aware of the illicit dealings alleged in the
application. She said Hofisi had not demonstrated such cogent
interest in her action as would warrant the applicant's joinder.
Therefore, she wanted the application dismissed with costs.
The
second respondent did not oppose the application. Mr Machokoto
who appeared for him at the hearing said his was just a watching
brief.
But
none of the parties said who the second respondent was, or what his
interest in the matter was, or whether he was one of the parties in
Kala's action. The record for that action was not before me. I had
to obtain on my own copies of the pleadings in the action to get
these details.
Be
that as it may, and given the manner the matter eventually panned
out, this aspect, and many others, became unnecessary.
The
matter panned out like this.
It
turned out that Kala's heads of argument had been filed out of
time. Therefore she had automatically been barred in terms of Order
32 Rule 238, particularly sub-rule (2b) thereof. The relevant
portions of that Rule read:
“(2)
Where an application, exception or application to strike out has been
set down for hearing in terms of subrule (2) of Rule 223 and any
respondent is to be represented at the hearing by a legal
practitioner, the legal practitioner shall file with the Registrar,
in accordance with subrule (2a), heads of argument clearly outlining
the submissions relied upon by him and setting out the authorities,
if any, which he intends to cite, and immediately thereafter he shall
deliver a copy of the heads of argument to every other party.
(2a)
Heads of Argument referred to in subrule (2) shall be filed by the
respondent's legal practitioner not more than ten days after heads
of argument of the applicant or excipients, as the case may be, were
delivered to the respondent in terms of subrule (1):
Provided
that —
(i)
no period during which the court is on vacation shall be counted as
part of the ten-day period;
(ii)
the respondent's heads of argument shall be filed at least five
days before the hearing.
(2b)
Where heads of argument that are required to be filed in terms of
subrule (2) are not filed within the period specified in subrule
(2a), the respondent concerned shall be barred and the court or judge
may deal with the matter on the merits or direct that it be set down
for hearing on the unopposed roll.”
The
applicant's heads of argument having been filed and served during
vacation, there was a dispute over the number of days by which Kala's
heads had been filed out of time.
Mr
Ruzengwe,
for the applicant, said Kala's heads were twenty four days out of
time. Mr Zhuwarara,
for Kala, argued that the number of days was fourteen only. The
difference was significant to Mr Zhuwarara's
two-pronged argument.
In
his first line of argument Mr Zhuwarara
maintained that Kala had in fact not been barred. He relied on the
proviso to sub-rule (2a) that says that a respondent's heads of
argument shall be filed at least five days before the hearing.
In
Kala's case the heads had been filed on 16 February 2015. The
hearing of this matter had initially been scheduled for 31 March
2015. However all the matters set down for that date had subsequently
been rescheduled to 7 April 2015 owing to a sudden and unforeseen
commitment on my part. So the argument was that since Kala's heads
of argument were filed well outside the five day period to the date
of hearing, she was not barred.
It
was evident the above argument was raised tongue in cheek.
The
main sub-rules (2), (2a) and (2b) of Rule 238 direct unequivocally
that a respondent who is to be represented by a legal practitioner at
the hearing of, inter
alia,
an application, is to file heads of argument; that such heads are to
be filed within ten days after the applicant's heads have been
filed and served on him; and that where such heads have not been
filed as such (or at all) the respondent “shall”
be barred. It is a command. It is peremptory.
Mr
Zhuwarara
was undoubtedly reading proviso (ii) to sub-rule (2a) out of context.
Courts
need sufficient time to prepare for the hearing. They can only
prepare adequately after all the relevant documents have been filed.
In my view, the five day period is designed to give the court that
much time to prepare. It is not to grant a respondent an extension of
time beyond the designated ten days.
In
my view, the significance of the five day rule in the proviso becomes
apparent where, for example, the period between the date the
respondent receives the applicant's heads of argument and the date
the matter is scheduled to be heard is ten days or less, for the
reason that, for example, the court was on vacation when the
applicant's heads were served. The respondent cannot insist on ten
days to file his own heads. If he does, he will run foul of the
proviso. He has to ensure that his heads are filed at least five days
before the hearing.
Furthermore,
and at any rate, the barring of a respondent is mentioned in sub-rule
(2b). The sub-rule refers to barring for failure to file heads of
argument in accordance with the time stipulated in sub-rule (2). That
time is ten days.
Therefore,
in this case, whether Kala's heads of argument were filed twenty
four days out of time or only fourteen days, was immaterial. When the
ten days were up she became barred.
In
practice the above problem is largely moot. A matter will not be set
down for hearing unless the applicant has filed and served his heads
of argument in accordance with sub-rules (1) and (1a) of Rule 238.
These sub-rules provide as follows:
“238.
Heads of Argument
(1)
If, at the hearing of an application, exception or application to
strike out, the applicant or excipient, as the case may be, is to be
represented by a legal practitioner —
(a)
before the matter is set down for hearing,
the legal practitioner shall file with the registrar heads of
argument clearly outlining the submissions he intends to rely on and
setting out the authorities, if any, which he intends to cite; and
(b)
immediately afterwards, he shall deliver a copy of the heads of
argument to every other party and file with the registrar proof of
such delivery.
(1a)
An
application,
exception or application to strike out to which subrule (1) applies
shall
not be set down for hearing
at the instance of the applicant or excipients, as the case may be,
unless —
(b)
his legal practitioner has filed with the registrar in accordance
with subrule (1) —
(i)
heads of argument;
and
(ii)
proof that a copy of the heads of argument has been delivered to
every other party; and
(c)
in the case of an application, the pages have been numbered in
accordance with paragraph (c)
of subrule (1) of Rule 227.” (my
emphasis)
Thus,
in practice, it is often more than ten days between the time the
applicant's heads of argument are filed and the date the matter is
set down for argument. So the respondent has ample time to comply
with the ten day rule.
For
these reasons I dismissed Mr Zhuwarara's
argument.
Mr
Zhuwarara
changed tack.
He
sought condonation for the late filing of the heads. He urged me to
exercise my discretion in favour of hearing the matter on the merits
rather than deciding it on a mere technicality. He invoked the
provisions of Order 1 Rule 4C. They read:
“4C
Departures from rules and directions as to procedure
The
court or a judge may, in relation to any particular case before it or
him, as the case may be —
(a)
direct, authorize or condone a departure from any provision of these
rules, including an extension of any period specified therein, where
it or he, as the case may be, is satisfied that the departure is
required in the interests of justice;
(b)
give such directions as to procedure in respect of any matter not
expressly provided for in these rules as appear to it or him, as the
case may be, to be just and expedient.”
In
terms of Order 12 Rule 84, a party that has been barred can make a
chamber application or an oral application at the hearing, for the
removal of the bar. The judge or court may allow the application on
such terms as to costs and otherwise as he or it may think fit.
In
my view, a party seeking the removal of a bar, or condonation in
terms of Rule 4C, must show “good
and sufficient cause”.
The
court or judge hearing the application has a discretion to grant or
reject the application. There must be a reasonable explanation for
the default. The applicant must also show his defence on the merits.
Dealing
with Rule 84 GARWE JA stated as follows in Grain
Marketing Board v
Muchero:
“It
is clear from the above provisions that, once a party is barred, the
matter is treated as unopposed unless the party so barred makes an
application before the court for the upliftment of the bar. It is
also clear that, in making the application to uplift the bar, the
party that has been barred can either file a chamber (not court)
application to uplift the bar or, where that has not been done, the
party can make an oral application at the hearing. The practice in
the High Court, so far as I am aware, is that only in very few
instances have oral applications to uplift the bar been entertained
by the court. This is because, in such a case, the
applicant must explain the reason for the delay, and thereafter
convince the court that he has a bona
fide
defence on the merits.”
(emphasis added).
What
constitutes wilful default and a bona
fide
defence depend on the merits of each case. In Netone
Cellular (Private) Limited v
Bacnet Trading (Private) Limited & Ors
I said:
“In
my view, in bar situations, wilful default amounts to a deliberate
failure or neglect to file process timeously, or to refrain from
doing so altogether. Thus “good
and sufficient”
cause is the sum total of all the facts explaining the default and
merits of the defence. These facts are considered cumulatively. No
single aspect is decisive.”
In
the present case, Mr Zhuwarara's
application for condonation was doomed. There was simply no
explanation for the delay in filing Kala's heads of argument. All
there was by way of an explanation was that the applicant's heads
of argument had been received by some “functionary”
at the offices of the legal practitioners acting for Kala. It was not
explained who this “functionary”
was; what he or she had done with the heads of argument; when had the
legal practitioner of record become aware of the heads; what action
he had taken, et
cetera.
As
for the merits of Kala's opposition to the application for joinder,
they were practically non-existent.
That
she was an innocent buyer of the property was not the point. Hofisi
gave cogent reasons why the applicant had to be joined to her action.
He said the applicant had been defrauded. The sale and transfer of
the property to her had been done following an illicit transaction.
Thus, prima
facie,
her title to the property was defective. Those were issue for trial.
If
she had excluded the applicant in her action in HC8549/13 then she
had fallen foul of Rule 87(2)(b). The applicant was a necessary party
to that action.
Therefore,
soon after argument, I dismissed Kala's application for condonation
and granted the order sought by the applicant. The order was as
follows:
“Whereupon
after reading documents filed of record, it is ordered that:-
1.
The applicant be and is hereby joined as ... 2nd
defendant in Case No. HC8549/13.
2.
The applicant shall file its plea within twelve days of this order.
3.
Costs shall be in the cause.”
Rule
238(2b) provides that where the respondent has been barred for
failure to file heads of argument within the stipulated time, the
court “may”
deal with the matter on the merits or direct that it be set down for
hearing on the unopposed roll. But Rule 239 provides that at the
hearing of an application, provided that if one of the parties has
been barred, the court “shall”
deal with the application as though it were unopposed, unless the bar
is lifted.
In
Muchero's
case the Supreme Court held inter
alia
that it was clear from Rules 83, 84, 233
and 239 that once a party is barred the matter is treated as
unopposed unless the respondent makes an application to lift the bar.
It
was on this basis that as I pronounced the granting of the order I
made it clear that it was being granted in default.
11
May 2015
F.G.
Gijima & Associates,
applicant's legal practitioners
C.
Nhemwa & Associates, first
respondent's legal practitioners
Machokoto
& Partners,
second respondent's legal practitioners
1.
2008 (1) ZLR 216 (S), at p 220D -F
2.
HH214-15
3.
At pp 7 – 8 of the cyclostyled judgment
4.
Sub-rule (3) of Rule 233 provides that a respondent who has failed to
file a notice of opposition and opposing affidavits within the time
prescribed (ten days) shall be barred.
