Urgent
Chamber
Application
CHITAPI
J:
In
this urgent application for a provisional order the applicant prays
for relief as set out as follows;
FINAL
ORDER SOUGHT
1.
That the stay of execution is hereby granted.
2.
Respondents shall pay costs of suit on an attorney-client scale.
INTERIM
RELIEF GRANTED
1.
The respondents are interdicted to conduct the attachment of the
applicant's property until finalization of the applicant's appeal
under case no. SC 550/18.
I
reserved judgment in this matter after argument.
It
is seldom that a judge finds himself having to contend with listening
to academic presentations on law made for no other purpose than
perhaps to simply satisfy the ego of the presenter. A judge
unfortunately does not engage in debate with the parties or their
legal practitioners. The judge can only listen to submissions made,
seek clarifications and if merited require any of the parties or any
other person to give further information which may assist in the
determination of the urgent application as provided for under Rule
246(1) of the High Court Civil Rules, 1971.
This
application on the papers appeared to be a very simple one. l had
thus scheduled to deal with on the turn after hearing the parties. It
ended up being unexpectedly very prolonged on account of the rather
unmerited opposition which was mounted by the respondents through
their counsel Mr Mutevedzi.
The
background to this application is as follows:
(a)
The applicant, which is a Namibian registered company operates an
airline which makes scheduled flights into and from Zimbabwe.
(b)
The respondents are Zimbabwean nationals who made a chamber
application in terms of s15 of the High Court Act, [Chapter 7:06]
under case no. HC2355/18. The said application was made against the
applicant herein as respondent. Its purport was to seek an order for
attachment of the applicant's property to found and confirm
jurisdiction in a case for dilectual damages in the sum of US$1
million dollars which the respondents intended to institute against
the applicant.
(c)
On 27 June, 2018 I granted the said application in case no.
HC2355/18. I granted the order made ex parte following submissions by
the respondents that the matter be dealt with as such in terms of
Order 32 Rule 242(1)(b) – (2) of the High Court Rules, 1971. I was
satisfied that the giving of notice to the applicant would have had
the effect of forewarning the applicant of the proposed attachment
with the result that the applicant could defeat the attachment if
forewarned.
(d)
For reasons which will become apparent later in this judgment, I will
set out the content of the order which l granted. It reads as
follows:
IT
IS ORDERED THAT:
1.
The Sheriff of the High Court or his lawful deputy be and is hereby
authorised and directed to attach any of the respondents' movable
property at its official address at Shop Number 202, Joina City,
Harare and to impound any of the respondents airplanes situate in
Zimbabwe in order to confirm and/or found the jurisdiction of the
High Court of Zimbabwe, and this order shall be his warrant to do so.
2.
The Sheriff of the High Court or his lawful Deputy be and is hereby
ordered to keep the property attached pursuant to this order so
attached until the action which the applicants intend to institute is
finalized.
3.
Respondent shall be liable for the Sheriff of High Court or his
lawful Deputy's costs of storage of the property attached by the
Sheriff's office pursuant to this order as well as any other costs
arising from the said attachment.
4.
Respondent to pay costs.
(e)
It goes without saying that because the application was made ex-parte
and the relief similarly given ex-parte, the applicant herein was not
aware of the making of the order.
(f)
For reasons not apparent in regard to how the applicant became aware
of the application made under case no. HC2355/18, since it had not
been served on the applicant, the applicant's legal practitioners
filed a chamber application under case no. HC5808/18 on 22 June,
2018. In the said application, the applicant sought the dismissal of
application no. HC2355/18 for want of prosecution purportedly in
terms of Order 32 Rule 236(3). The applicant alleged that it filed a
notice of opposition in case no. HC2355/18 on 21 March, 2018
following service of the said application which had been filed on 14
March, 2018.
I
have indicated that it is not apparent as to how the applicant became
aware of the application no. HC2355/18 because, the respondent in
making their application aforesaid indicated that they had not served
it.
I
also granted it on the understanding that it had not for reasons
which l agreed with been served.
Further,
the notice of opposition purportedly filed by the applicant was not
brought to my attention and is not filed in case no. HC2355/18. There
is no proof of service of the notice of opposition filed in case no.
HC2355/18.
I
am also not persuaded that the application case no. HC5808/18 was a
proper or competent application for the simple reason that because
application HC2355/18 was a chamber application, its disposal was not
party driven but judge driven.
Chamber
applications are referred to a judge by the Registrar for disposal
and do not require that a party should set down a chamber application
for hearing. It is up to the judge to dispose of the application in
terms of either Rule 245 which deals with non-urgent applications or
Rule 246 which deals with urgent applications.
Rule
236(3) which allows for a respondent to apply for the dismissal of an
application where the applicant has not set it down for hearing
within one month after the filing of a notice of opposition does not
apply to chamber applications.
Be
that as it may, application HC5808/18 became academic and was
overtaken by events because the main application HC2355/18 was
determined before the said application was referred to the judge for
determination.
For
purposes of good order, the applicant having noted that its
application had been overtaken by events should have filed a notice
of withdrawal of the same.
For
the record, having perused the said application HC5808/18, I noticed
that the certificate of service was filed on 29 June, 2018. The
filing of the certificate of urgency would have been required to be
filed before the application was referred to a judge. By 29 June,
2018, case no HC2355/18 whose dismissal was sought had already been
determined on 27 June, 2018.
I
will separately endorse that the record HC5808/18 application is
incompetent and was overtaken by events so that the matter can be
recorded as finalized by the court and filed away.
(g)
On 14 July, 2018, the applicant filed this urgent chamber application
for a provisional order on the terms indicated at the beginning of
this judgment.
I
set down the application for hearing on 18 July, 2018.
The
chamber application is defective in that it does not comply with Form
29B as read with Rule 241.
It
is not expected that a senior legal practitioner of Mr Musimwa's
experience still fails to comply with the rules despite a plethora of
case law to this effect and the importance of complying with rules
when bringing cases to court.
One
shudders to think what sort of grounding the junior practitioners who
get employed or are attached to the senior practitioners who fail to
comply with basic rules get taught.
To
put it beyond conjecture as to the basis for my criticism, the
applicant's notice of application should have set out the grounds
of the application ex facie. The application instead states that:
“Take
notice that an urgent chamber application is hereby made to this
Honourable Court on the grounds stated herein. The accompany
affidavit and Annexures shall be used in support of this
application.”
The
heading of the application itself reads as follows:
“URGENT
CHAMBER APPLICATION FOR STAY OF EXECUTION PENDING APPEAL”
To
compound my criticism of Mr Musimwa, the provisional order sought and
the final order are substantially the same except in regard to the
prayer for costs. For whatever it is worth and for the benefit of Mr
Musimwa, it is entirely competent to seek an order which is final in
nature by way of urgent application.
There
is this myth or mis-appreciation of procedure by legal practitioners
in believing that every urgent application must be for a provisional
order and that it is returnable to court.
Rule
244 read with the proviso thereof is clear that the judge can grant
any competent order in an urgent application.
An
urgent application is one which is certified as urgent by a legal
practitioner. It can be for an order which is final or for a
provisional order in terms of Rule 246(2), (3) as read with Rule 247.
Albeit
the pronouncements of the courts falling on deaf ears with respect to
some legal practitioners, for posterity I will for the umpteenth
time, in the interests of justice once again hit the drum loud and
clear and repeat that rules and procedure are there to be followed.
Following rules constitutes part of law practice.
That
said, it appears to me that going forward, whilst the court has a
discretion to either condone non-compliance with the rules in the
interests of justice in terms of Rule 4C or to dismiss the
application, the better route to adopt where circumstances permit and
to avoid an injustice is for the court to condone the rule breach
especially if it is one relating to form but to express its
displeasure by ordering that the errant legal practitioner who is an
officer of this court should be deprived of his fees.
Such
an order would reign in errant legal practitioners and should be made
where merited after affording them an opportunity to explain their
errors.
Where
the explanations are not convincing and the legal practitioner's
failures are adjudged to be gross, the attention of the Law Society
should be drawn to the fact for it to monitor that the legal
practitioner undergoes continuous legal training in the relevant
areas of failure.
I
will out of benevolence and in the hope that errant practitioners
take heed quote a few judgments of this court on the need to comply
with rules of court be it in ordinary, chamber, or urgent chamber
applications; see David Jack & Ors v Lloyd Mushipe & Ors
HH318/15; Marick Trading (Pvt) Ltd v Old Mutual Life Assurance
Company (Pvt) Ltd & Anor HH667/15; Joshua Nyamhuka & Anor v
Abigail Mapingure & Ors HH29/17; Zimbabwe Open University v
Mazombwe 2009 (1) ZLR 101 (H); Salt Lakes Holdings (Pvt) Ltd &
Anor v CBZ Bank & Anor HH636/15; Grandwell Holdings v ZCDC &
2 Ors HH125/17; Brain Andrew Cawood v Elasto Madzingura & Anor
MSVH12/17; Ignatius Masamba v Secretary Judicial Service Commission &
Anor HH283/17 and several others which can be found on reference to
decided cases on the need to comply with the rules.
Legal
practitioners must therefore take heed that they risk being put to
shame by the court for inefficiency and being deprived of their
costs. It is high time that the profession focuses on efficiency and
to shun tardiness in case presentations, preparation of pleadings and
all other facets of legal practice that has to do with justice
administration.
The
profession must justify its description of a learned profession and
its members learned officers of the court.
Back
to the background facts.
The
applicant filed an appeal No. SC550/18 against my order given in case
No. HC2355/18 on 13 July, 2018 with the Supreme Court.
On
the following day, this urgent application was filed.
I
have already indicated that the application was set down for 18 July,
2018 following its referral to me in terms of Rule 244.
(h)
On 18 July, 2018, Mr Hashiti who appeared instructed by Mr Musimwa
applied for a postponement of the hearing. He indicated that he had
instructions that he needed to verify through documentation still to
be availed to him to the effect that the applicant was in fact an
incola.
In
his submissions which I found meritorious, he stated that should
applicant be an incola, then the issue of arrests or attachments of
the applicant's property to found and confirm jurisdiction would
fall away.
Mr
Mutevedzi first opposed the postponement arguing that the request was
frivolous.
I
was utterly surprised by his attitude because the reasons for the
request had merit and would enable him to file his clients (the
respondents) claims expeditiously without putting the respondents to
the costs of ancillary matters of jurisdiction.
Having
found the opposition to the application to be without merit I
dismissed the opposition and postponed the hearing to 20 July, 2018.
(i)
On 20 July, 2018, Mr Hashiti now had in attendance representatives of
the applicant being, its Senior Legal Manager Mr Jerhome Tjizo and
the Senior General Manager, Ground Operations Mr Moses Shihepo. They
had flown from Namibia for the hearing. I was advised by Mr Hashiti
that the legal practitioners and the parties were in consultation but
appeared not to be in agreement.
(j)
For their part, the respondents had on 18 July, 2018 filed a notice
of apposition. They contended that the application was not urgent
because the order sought to be stayed had been appealed against. It
was also contended that since the respondents had not taken any steps
to enforce the order no urgency had arisen.
It
is of course correct that an appeal was noted to the Supreme Court.
The appeal suspended the execution of the judgment appealed against.
The law in this regard was aptly set out by CORBETT JA in South Cape
Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd
1977 (3) SA 534 (A1) at 544-545 A, a case cited by GARWE JA in
Longman Zimbabwe (Pvt) Ltd v Midzi & Ors SC54/07 thus:
“Whatever
the true position may have been in the Dutch Courts, and more
particularly the court of Holland … it is today the accepted common
law rule of practice in our courts that generally the execution of a
judgment is automatically suspended upon the noting of an appeal with
the result that, pending the appeal, the judgment cannot be carried
and no effect can be given thereto except with the leave of the court
which granted the judgment.”
After
extensive discussion on the correctness of the above proposition and
consideration of various decided cases, GARWE JA with the concurrence
of the other members of the court stated thus:
“The
position may now be accepted as settled that unless empowered by law
to do so, an inferior court or other authority has no power to order
the suspension of its own orders or judgment and further that the
noting of an appeal against the judgment or order of such court or
tribunal or other authority in the absence of a statutory provision
to that effect; does not have the effect of suspending the operation
of the judgment or order that is sought to be appealed against.”
The
legal position following on the above settled position is that my
order having been appealed against and it being an order of a
superior court cannot be executed upon until the appeal is disposed
of or unless the respondents in the appeal apply to execute the order
pending appeal.
Accordingly,
there is no legal basis for the applicant to seek a protection order
or interdict to stay execution pending appeal.
The
interdict or protection if one may use the expressions loosely is
given in law and already in place. If l were to grant the order, I
would simply be restating or endorsing a settled position. It is not
the function of a court to do that in the absence of a dispute on the
interpretation of the legal position.
(k)
I would have thought that a properly advised legal practitioner would
have argued the matter and sought the dismissal of the application on
the basis that there was no proper or legally competent application
before me.
It
was not to be with Mr Mutevedzi for the respondents.
He
went on at length to argue that the application was not urgent.
It
is common cause and a matter of law, logic and common sense that an
invalid application is just that. Nothing sits on nothing. It is as
good as it is not there. Urgency does not come into it because if for
example the application was adjudged not urgent, it would have to be
referred to the ordinary roll. A nullity is not referred for
determination. It is declared to be so and that's the end of the
matter.
Mr
Mutevedzi was not done.
He
argued that the application was incurably defective as it was not
accompanied by Form 29B. He further argued that the appeal notice was
defective because it did not bear a High Court stamp.
I
cannot of course determine the validity of a notice of appeal agreed
to be pending in the Supreme Court. It is for that court to make the
determination.
The
argument raised by Mr Mutevedzi in this regard contradicted his
earlier submissions and the deposition of the respondents that they
accepted that the order sought to be stayed had been appealed
against.
Mr
Mutevedzi was not done.
He
then attacked the authority of the deponent to the founding affidavit
to represent the applicant.
For
his part the applicant's counsel did not adopt a grandstanding
approach.
Mr
Hashiti sought to depart from the thrust of the application and
submitted that the applicant's concern was that it risked having
its business adversely affected by an attachment of its aircraft or
other property. He tendered the applicant's resolution to provide a
bank guarantee in the sum of US$25,000-00 as security for its due
submission to jurisdiction of the court.
The
offer was refused by the respondents' counsel who argued for the
dismissal of the application.
When
I asked Mr Mutevedzi whether he did not consider that the interests
of the respondents would be better served by a consensus between the
parties on the submission to jurisdiction by consent secured a bank
guarantee or other security, he was adamant that the application
should just be dismissed.
Mr
Hashiti's position was that a mutual agreement on the issue would
have dispensed with the appeal thus opening doors for the respondents
to immediately institute action.
Although
these submissions were being made in the course of the hearing, the
issue was not before me and I could not make any determination
thereon and will not do so in view of my finding that the application
before me is incompetent at law in the circumstances of the existence
of a pending validity noted appeal.
I
should express my disquiet at the poor standard of understanding of
basic law principles by the applicants' instructing legal
practitioner and by Mr Mutevedzi.
It
is not expected that any astute legal practitioner would not
appreciate that the noted appeal unless set aside or the appeal
determined was a bar to execution of my order.
Sustained
arguments by Mr Mutevedzi on issues which did not contribute to the
determination of a simple legal issue, namely whether there was a
valid application before the court in the face of the appeal was an
indictment on his ability to grasp the issue at play.
A
legal practitioner should identify the issue or issues for
determination and focus on them.
Grand
standing before a court or judge hardly impresses nor does it make a
good legal practitioner.
I
seriously considered depriving the legal practitioners of their costs
as a mark of the courts displeasure at the legal practitioners'
basic lack of diligent execution of their mandates.
Mr
Musimwa's failure to appreciate that the application was a nullity
and Mr Mutevedzi's lack of appreciation of issues and arguing ad
infinitum on matters arising from an invalid application presented a
serious indictment on the sinking levels of competence of some legal
practitioners.
I
could not properly determine whether or not to deprive the legal
practitioners of their costs as I did not hear them on the matter.
It
was a thought which played on my mind as l prepared these reasons for
judgment.
I
must in dismissing this application determine the question of costs.
The
general rule is that costs follow the result. This notwithstanding,
costs are awarded in the discretion of the court and as with any
other discretion, it is exercised judiciously. The principles which
the court considers include, the conduct of the parties before and
during the hearing, whether a party has been wholly or partially
successful, whether a party has offered to settle the matter and any
other pertinent circumstances. See Manica Zimbabwe Ltd v Grindsberg
Inv. (Pvt) Ltd & Ors HH95/16.
In
casu, considering all the matters over which I have expressed the
court's disquiet informed by what is clearly ineptitude by its
officers, Mr Hashiti excluded, an order that each party bears its own
costs would have been appropriate.
In
view however of the fact that the applicant's application is not
supported in law, the filing of the ill-advised application is the
one which set into motion all that followed it culminating in the
court's time being wasted as well. The appropriate order under the
circumstances is that the application be and is hereby dismissed with
costs.
Musimwa
& Associates, applicants' legal practitioners
Mutamangira
& Associates, respondents' legal practitioners
