CHITAKUNYE
AJA:
This
is an application for joinder wherein the applicant seeks to be
joined in two appeals pending before this Court, that is, SC304/20
and SC326/20.
The
facts leading to this application may be summarised as follows:
The
applicant was a holder of an offer letter in respect of Plot 4 of
Glebe Farm, Goromonzi. The second, third and fourth respondents were
also holders of offer letters in respect of separate plots on the
same farm. The fifth respondent is the authority which issued the
offer letters to the applicant and the second, third and fourth
respondents.
The
first respondent on the other hand claimed title to the farm in
question.
Sometime
in 2015 the first respondent approached the High Court at Harare in
HC7006/15 seeking the setting aside of the applicant's offer letter
and declaring such offer letter null and void. It also sought that
the fifth respondent issue an offer letter in favour of the first
respondent. The applicant was cited together with fifth respondent as
respondents.
On
25 October 2016 the High Court granted an order setting aside and
declaring null and void the offer letter issued to the applicant by
the fifth respondent. The fifth respondent was ordered to issue an
offer letter to the first respondent in respect of the said piece of
land.
It
is pertinent to note that whilst it was alleged that the order was
granted in default of the fifth respondent, it was apparent that the
applicant was represented by a legal practitioner in those
proceedings.
After
the issuance of the order on 25 October 2016, in the presence of
applicant's legal practitioner, no challenge was raised against
that order till February 2018 when the fifth respondent belatedly
applied for rescission of the default judgment granted against it.
Upon
realising that it was out of time the fifth respondent sought the
court's indulgence through an application for condonation for late
filing of an application for rescission which application was granted
on 16 October 2019.
The
fifth respondent's application for rescission was thereafter set
down for 14 November 2019. On that date the matter was apparently
postponed to 28 November 2019. On 28 November the matter was removed
from the roll.
The
applicant alleged that the removal from the roll was to await the
determination of a matter at Masvingo High Court, HC380/18, involving
the first respondent on the one hand and the second,
third,
fourth and fifth respondents on the other hand which pertained to
the second to fourth respondents' offer letters for Plots at Glebe
Farm.
To
buttress this point the applicant tendered a notice of set down for
14 November 2019 and a letter from the registrar of the High Court.
The
two documents did not, however, state the reason for the removal from
the roll. In fact the registrar's letter was simply a reminder to
the Civil Division of the Attorney General's Office, as fifth
respondent's legal practitioners, that failure to set down the
matter removed from the roll within 3 months would lead to the matter
being deemed abandoned in terms of paragraph 10 of Practice Direction
3/13.
As
fate would have it the application at Masvingo High Court did not go
in second to fifth respondents' favour.
The
second to fourth respondents noted an appeal to this Court in
SC304/20. The fifth respondent also noted an appeal in SC326/20.
The
two appeals are in respect of the same judgment.
In
September 2020 the registrar wrote to the appellants inviting them to
file their heads of arguments within 15 days.
It
was only after the above invitation to the appellants to file their
heads of arguments that on 25 September 2020 the applicant filed
this application seeking to be joined in the two appeals as third
respondent in SC304/20 and as fifth respondent in SC326/20 and that
he be allowed to file his heads of arguments within 10 days of such
order.
In
this application the applicant alleged that he has a direct and
substantial interest in the matter as he is a holder of an offer
letter for a plot at Glebe Farm. He averred that if he is not joined
he may be prejudiced as he would not have been heard yet his rights
and interest will be affected by the decision of this Court.
The
first respondent opposed the application.
It
contended that the application is improper as the applicant no longer
has any such interests to protect. The decision in HC380/18 against
which the second to fifth respondents have appealed does not relate
to the subdivision or Plot that the applicant had been offered as
that was determined on 25 October 2016 in HC7006/15 and the
applicant has not challenged that determination to date.
The
first respondent further contended that from the applicant's own
averment he has always been aware about the Masvingo HC380/18 matter
but had not sought to be joined in that matter only to seek such
joinder at the appeal stage.
Counsel
for second to fourth respondents indicated that they were willing to
comply with any order granted by the court.
The
fifth respondent, in its response, indicated that it had no
objections to the joinder.
As
the applicant had not indicated the Rule under which the application
was being made on the date of hearing Mr Chipeta,
for the applicant, submitted that the application was in fact being
brought in terms of r54 of The Supreme Court Rules 2018.
He
also argued that the application was also premised on the common law
principle of natural justice.
In
this regard he argued that as the applicant will be affected by the
determination of the appeals he ought to be heard. It was his
contention that the applicant has an interest in the subject of the
appeal.
Rule
54 upon which Mr Chipeta
said the application was premised states that:
“(1)
If prior to the hearing of an appeal it
appears to a judge, or at the hearing it
appears to the court,
that a person who is not a party to the appeal may be so affected by
an order made in it that he or she must be heard, notice may be given
to that person to enable him to apply to intervene in the appeal if
he or she so wishes.
(2)
If notice is given in
terms of subrule (1)
the person to whom notice is given may apply to the judge or to the
court, as the case may be, for permission to enable him or her to
intervene in the appeal.
(3)
The judge or the court hearing an application in terms of subrule (2)
may refuse the application or grant it upon such terms and conditions
as may seem just.” (emphasis added)
It
is apparent that the Rule provides for the intervention by a third
party at the instance of a judge or court. It is that initiative that
enables a third party to apply to a judge or to the court to
intervene in order to protect his rights and interests that may be
affected by the judgment to be rendered.
In
casu,
the application was not initiated by a notice given by a judge or
court. It was at the applicant's own initiative to be joined as a
party to the appeal.
Equally
the applicant is not seeking to merely intervene as a third party but
to be joined as a party to the appeal proceedings.
It
was upon Mr Chipeta's
failure to address the requirements of r54 that he then resorted to
the right to be heard principle arguing that the applicant has an
interest that may be adversely affected by the determination of the
appeal.
It
is apposite to point out that the applicant, in his founding
affidavit, did not refer to r54 or to any of its requirements.
It
is trite that an application stands or falls on the averments made in
the founding affidavit. See Austerlands
P/L v Trade and Investment Bank & Others
SC92/05 and Muchini
v Adams & Others
SC 47/13.
The
founding affidavit should have stated in terms of which rule the
applicant was approaching the court to be joined on appeal and made
reference to the requirements of the procedure adopted.
It
is clear that reference to r54 was an ill-informed afterthought and
in any case that rule is inapplicable in the circumstances of this
case.
The
other argument by counsel for the applicant, premised on what he
referred to as the common law principle of natural justice, was
equally ill-informed.
This
argument was premised on paragraph 3.7 of the applicant's founding
affidavit in which he stated:
“My
interest in the matter is obvious. As exhibited by the offer letter
which I have attached as annexure A, I have a real and substantial
interest to the land, and any decision to be made affecting me
adversely has to be made in compliance with the laws of natural
justice, including the audi
alteram partem
rule. The order sought by the 1st
respondent is one such example. Clearly, the interests of justice,
fairness and equity demand that I be given audience before a decision
on the land is made, hence the need for my joinder as a party to the
proceedings.”
In
asserting the above the applicant chose to ignore the High Court's
extant order of 25 October 2016 which nullified the offer letter he
is making reference to.
He
also chose to ignore the fact that in HC7006/15 he was given audience
and despite his participation the court granted the order against
him.
His
greatest undoing in protecting what he deemed to be his rights and
interests was in his failure to challenge the order in HC 7006/15.
Whilst
it is true that a party with a direct and substantial interest may
seek joinder in terms of appropriate rules to court proceedings, such
joinder should relate to rights and interests that are subsisting and
are subject of the proceedings.
In
Marais
& Another v Pongola Sugar Milling Co. & Ors
1961 (2) SA 698 (N), a two tier approach was formulated in the
determination of a joinder as follows:
“(1)
that a party must have a direct and substantial interest in the
issues raised in the proceedings before the court; and
(2)
that his rights may be affected by the judgment of the court.”
In
casu,
the founding affidavit shows that the applicant premised his direct
and substantial interest on the offer letter for plot 4, Glebe farm.
In
that vanity he seeks to ignore the extant order of 25 October 2016
which declared that offer letter null and void.
It
is common cause that after that order was granted the applicant never
challenged it up to this date yet it is the order which affected his
rights and interests.
This
application, in my view, is a subtle plot to be heard by the appeal
court in a matter the applicant never appealed against.
The
applicant cannot certainly have interests in issues to do with the
plots of other offerees.
As
the extant order of 25 October 2016 was given with his participation
and presence, he cannot ignore its consequences which are that his
rights and interests deriving from his offer letter were nullified.
It
is erroneous to contend that if the appeals are heard without his
participation he would have been denied the opportunity to be heard.
Such opportunity was afforded him before the order against him was
issued. After that order he had the right to challenge that judgment
but he chose not to.
He
cannot seek to ride on his neighbours' appeal to pursue his own
case.
In
any event no relief was granted against him in HC380/18. He therefore
has no basis for attacking or challenging that judgment. His
grievance should be with the order in HC7006/15 which nullified his
offer letter.
Consequently,
the applicant has lamentably failed to make a case for joinder.
The
first respondent asked for costs. Upon considering the circumstances
of the matter and the lack of merit in the applicant's case I find
no reason why costs should not follow the cause.
Accordingly,
it is ordered that:
1.
The application be and is hereby dismissed with costs.
Antonio
& Dzvetero,
applicant's legal practitioners
Mlotshwa
& Maguwudze,
1st respondent's legal practitioners
Chizengeya
Maeresera & Chikumba,
2nd,
3rd
and 4th
respondents' legal practitioners
Civil
Division, The Attorney General's office,
5th
respondent's legal practitioners
