GWAUNZA
DCJ
[1] This
is an appeal against the whole judgment of the High Court handed down
on 14 March 2019, in which the court a quo
dismissed
the appellant's application for interim relief. The
appeal was heard together with that in SC09/20 which involved the
same parties, centered around the same dispute and effectively sought
the same relief that the appellant seeks in
casu.
However, separate judgments for the two appeals have been issued.
The
sixth respondent, having applied for the de-registration of the first
respondent as a legal practitioner, indicated it would abide by the
decision of the court.
FACTUAL
BACKGROUND
[2] In
2012 the appellant in this matter sold his house at No.30 Arundel
School Road, with the conveyancing was done by the first respondent
(a legal practitioner). From a series of actions and applications
brought before the courts, it was accepted that the first respondent
misappropriated some of the proceeds from the sale of the immovable
property. Consequently, the appellant successfully instituted legal
proceedings against the first respondent and obtained a judgment
against him in 2015. Despite a multiplicity of legal proceedings at
the instance of the first respondent, the appellant managed to place
a caveat
on the latter's immovable property, being a certain piece of land
situate in the district of Salisbury called the remainder of
subdivision C of Lot 6 of Lot 190, 191, 192, 193, 194 and 195
Highlands estate of Welmoed measuring 4377 square metres, under Deed
of Transfer No. 8421/2000.
[3] Pursuant
to this, the Sheriff successfully sold the first respondent's
property in execution, to the fifth respondent. The first respondent
in a number of applications challenged the sale in execution which
the Sheriff, nevertheless, eventually confirmed. The High Court as
well as this Court further upheld the confirmation of the sale.
Despite these numerous judgments and the caveat
placed upon his property, the first respondent managed to transfer
the same property to the second respondent on 8 February 2019. The
appellant in his founding affidavit a
quo
averred that such transfer could only have been made possible through
some fraudulent conduct on the part of the first respondent in
connivance with the Registrar of Deeds.
[4] Subsequently,
the appellant filed an urgent application before the court a
quo
seeking a provisional order in the following terms:
“Terms
of final order sought
It
is ordered that:
1.
Puwayi Chiutsi be and is hereby struck off from the roll of legal
practitioners.
2.
Puwayi Chiutsi and the Sheriff of Zimbabwe each paying the other to
be absolved, pays costs of suit on a scale as between attorney and
client.
3.
The applicant's legal practitioners be and is hereby given leave to
serve the copy of this order to the Registrar of Deeds.
Terms
of Interim Order Sought
Pending
the final determination of this matter, at the return date, the
applicant is granted the following relief;
1.
That Deed of Transfer No. 708/19, issued in the name of Tendai
Mashamhanda in respect of a piece of land in the district of
Salisbury called the remainder of subdivision C of Lot 6 of Lot 190,
191, 192, 193, 194 and 195 Highlands estate of Welmoed measuring 4377
square metres be and is hereby cancelled.
2.
That forthwith the Law Society of Zimbabwe, must place the law firm
of Puwayi Chiutsi under curatorship in terms of the Legal
Practitioner's Act.
3.
Puwayi Chiutsi be and is hereby suspended from the practise of the
legal profession.”
[5] On
28 February 2019 the court a
quo
found that the application was not urgent in as far as it related to
the relief sought to compel the Law Society of Zimbabwe to place the
first respondent's law firm under curatorship and, also, his
suspension from practice as a legal practitioner. On 1 March 2019,
the court a
quo
proceeded to hear the rest of the application on the merits.
[6] The
court a
quo
found that the interim relief sought by the appellant in respect of
the cancellation of Deed of Transfer No.708/19 would in fact be a
final order. The court brought this issue to the attention of the
parties. It was submitted on behalf of the second respondent that he
was ready to accept an interim interdict to stop any transfer of the
property pending determination on the return date. However, the
appellant did not move for any relief in the alternative and chose to
stand or fall on the final relief being sought.
[7] Consequently,
the court a
quo
held that it was improper to seek final relief on the basis of
submissions supporting the grant of an interim order. The court
noted, correctly, that such a circumstance would leave nothing for
the court to confirm or discharge on the return date. It also
expressed the view that the appellant's interests could have been
secured by a temporary interdict prohibiting any transfer of property
by the second respondent pending the return date. However, the court
took the view that it could not grant such an order as it had not
been prayed for, and accordingly, dismissed the application.
Aggrieved
by this decision, the appellant noted the present appeal on the
following grounds:
1.
The court a
quo
grossly erred, holding that there was no urgency in the application
in so far as it related to the suspension of Puwayi
Chiutsi
the first respondent from practicing as a legal practitioner.
2.
The court a
quo
grossly erred in not understanding and holding that the court, as
well as the appellant, had the duty to ensure the protection of the
public and indeed the legal protection against errant lawyer (sic)
whose damage to the public and to the legal profession was immense.
3.
The court a
quo
grossly erred, in failing to grant the provisional order sought in
terms of the chamber application filed by the appellant.
4.
Further as a question of law, the court a
quo
erred in not finding that in the circumstances of this case, the
appellant had shown the legal basis for the granting of the order
that was sought whether or not it could be classified as final.
In
addition to an order that the appeal be allowed with costs, the
appellant seeks an order that the judgment of the High Court be set
aside and substituted with an order granting the relief that he
originally sought a
quo.
This is notwithstanding the fact that he had amended his draft order
to leave out the parts of the relief that the court had ruled not to
be urgent.
ISSUE
FOR DETERMINATION
[8] Notwithstanding
the fact that the appellant has four grounds of appeal as outlined,
the only issue that arises for determination in this matter is
contained in the appellant's third and fourth grounds of appeal,
that is, whether or not the court a
quo
erred in dismissing the application for what was in fact a final
order disguised as provisional order. The court finds the other two
grounds of appeal to be both misplaced and without merit.
[9] As
already indicated, the court a
quo
ruled not to be urgent, two aspects of the appellant's
application.
These pertained to the order seeking to compel the Law Society of
Zimbabwe to place the law firm of Puwayi
Chiutsi
under curatorship, and the order seeking the suspension of Puwayi
Chiutsi
from
practising as a legal practitioner. The court then proceeded to hear
the rest of the application on the merits, as outlined thus in its
judgment:
“I
proceeded to hear the merits of the application on 1 March 2019. The
first respondent was in default. Before commencement of submissions,
I drew Mr
Biti's
attention to the fact that the interim relief sought was in fact a
final order i.e. the prayer for cancellation of Deed of Transfer No.
708/19 issued in the name of the second respondent. Mr
Biti
said he was aware of that and was going to seek the order in that
form. He
applied for the amendment of the Provisional Order by removal of that
part of the prayer for which the court had ruled could (sic)
not proceed on urgency. He
also sought the removal of all such similar relief from the final
order sought and that the final order sought should only contain the
issue of costs.
This was so, I believe, because the interim relief sought a final
order.” (my emphasis)
[10] The
import of these remarks is that the appellant abandoned, for purposes
of the proceedings a
quo,
paras 1 and 3 of the final relief sought, leaving only para 2, which
pertained to the prayer for costs against the first and fourth
respondents. Further, that in so far as the 'Interim Relief'
sought was concerned, the appellant abandoned the last two
paragraphs. That left only the first paragraph, pertaining to the
cancellation of the Deed of Transfer No. 708/19, issued in the name
of Tendai
Mashamhanda,
the second respondent. Thus, the appellant's amended draft order a
quo
would have read something like this:
Terms
of the Final Order Sought
It
is ordered that:
Puwayi
Chiutsi and the Sheriff of Zimbabwe each paying the other to be
absolved, pays costs of suit on a scale as between attorney and
client.
Terms
of Interim Order Sought
Pending
the final determination of this matter, at the return date, the
applicant is granted the following relief;
That
Deed of Transfer No.708/19, issued in the name of Tendai Mashamhanda
in respect of a piece of land in the district of Salisbury called the
remainder of subdivision C of Lot 6 of Lot 190, 191, 192, 193, 194
and 195 Highlands estate of Welmoed measuring 4377 square metres be
and is hereby cancelled.
[11] Since
the urgency referred to in the appellant's first ground of appeal
relates to relief that the appellant abandoned, that ground is left
with no leg to stand on, as it were. Ground number two suffers the
same fate, since it relates to a part of the application that the
court declined to hear for lack of urgency.
The
second respondent submits that once the court a
quo
found that part of the relief sought could not be granted on an
urgent basis, the appellant, if dissatisfied, should have requested
the reasons for the order, sought leave, and then appealed against
it.
Not
having done so, the appellant cannot now seek to smuggle the issues
that the court a
quo
did not deal with, into his grounds of appeal for consideration by
this Court. It is trite that an appeal court, by nature, sits to
consider and assess the correctness or otherwise of the decision of a
lower court on a particular issue. (See
Dynamos Football Club (Pvt) Ltd & Another v Zifa & Others
2006
(1) ZLR 346 (S) at 355).
Grounds
of appeal 1 and 2 are accordingly discussed.
Whether
or not the court a
quo
erred in not granting the provisional order sought
[12] It
is evident from the appellant's fourth ground of appeal that he
accepted that the relief that he sought could very well be determined
to be final in nature. That notwithstanding, his attitude is that the
court a
quo
still erred in not granting the relief that he sought. It is argued
in his heads of argument that the cancellation of the Title Deed in
question was part of the 'interim interdict' that he sought a
quo
and that, in any case, there was 'small
difference between the granting of an interim interdict and the
granting of a final interdict.'
[13] The
appellant argues further, that there is nothing in the High Court Act
or the Rules, that says that a final interdict or final order cannot
be granted
in
chambers. This is because, so the argument goes, a final order can be
granted provided there is evidence and facts to support its granting.
The appellant's lengthy heads of argument chronicle at length and
with harsh condemnation, instances of the first respondent's
alleged unprofessional conduct in this whole dispute. On that basis
and relying on a number of authorities, the appellant surprisingly
shifts from the interim relief argument, to submit that the matter a
quo
was argued on the basis of final relief. That being the case, he
contends, the court a
quo
should have granted the final relief sought.
[14] The
first and second respondents both sought the dismissal of the appeal
with costs. It was argued for the first respondent that the relief
sought in the form of an order cancelling a Deed of Transfer was
final in both effect and nature, since it constituted an extinction
of all rights vesting by circumstance of the Deed in question.
Further, that such relief could not 'properly
be sought or procured on an urgent basis or at any rate, on the
strength of a prima facie case.'
Echoing the same sentiments, the second respondent submits that in
an urgent application, a party comes to court with a prima
facie
case
and
is granted relief that is temporary in nature and meant to preserve
the rights of the parties pending final resolution of the dispute on
the return date.
[15] There
is merit in the submissions of the first and second respondents in
this respect. The court a
quo
correctly found that the interim relief sought to cancel Deed of
Transfer No. 708/19 issued in the name of the second respondent, was
final in its form and effect. Contrary to the appellants'
contention that there is very little difference between a provisional
and a final order, the definition and purpose of the former is
markedly different from that of a final order. This distinction is
stressed and underlined in a plethora
of authorities both within and without our jurisdiction. C.
B Prest
in his book, The
Law and Practice of Interdicts
defines
and explains the purpose of a provisional order as follows:
“A
provisional order is a remedy by way of an interdict which is
intended to prohibit all prima
facie
illegitimate activities. By its very nature it is both temporary and
provisional, providing (interim)
relief which serves to guard the applicant against irreparable harm
which may befall him, her or it, should a full trial of the alleged
grievance be carried out.
As the name suggests, it is provisional in nature, as the parties
anticipate certain relief to be made final on a certain future date
upon
which the applicant has to fully disclose his, her or its entitlement
to a final order that the interim relief sought was ancillary to.”
(my
emphasis)
[16] In
the South African case of Development
Bank of Southern Africa (Ltd) v Van Rensburg NO and Ors
[2002]
3 All SA 669 (SCA)
the
court stressed that the purpose of a provisional order is to preserve
the status quo
pending the return day. (See also the Australian case In Re
Brian Charles Gluestein; Exparte Anthony
[2014]
WASC 381, and the English case in
Attorney
General v Punch Limited and Anor
[2002]
UKHL 50) where the same principles were emphasised.
[17] Thus,
unlike a provisional order, a final order is conclusive and
dispositive of the dispute. It finally settles the issues in dispute
and has no return date. Once a final order is given the court issuing
the order becomes functus
officio
and
cannot
revisit the same issues at a later date. In Chiwenga
v Mubaiwa
SC86/20
this
Court made the following remarks:
“It
is settled law that the standard of proof for a provisional order is
different from that of a final order. A provisional order is
established on a prima
facie
basis
because
it is merely a caretaker
temporary
order pending the final determination of the dispute on the return
date.
The
parties have an opportunity to argue the matter again on the return
date. On
the other hand, a final order is obtained on the higher test of a
clear right because it is final and definitive as it has no return
date.”
[18]
Interestingly, both the appellant and the first respondent cite the
same passage from Kuvarega
v Registrar General and Anor 1998 (1) ZLR 188 (HC)
in support of their opposing views on the propriety of the order
sought by the appellant a
quo,
as
follows:
“There
was nothing interim about the provisional relief sought. It would
have provided the applicant with the relief she sought on the day of
the election. The
practice of seeking interim relief, which is exactly the same as the
substantive relief sued for and which has the same effect, defeats
the whole object of interim protection.
In effect, a litigant who seeks relief in this manner obtains final
relief without proving his case. That
is so because interim relief is normally granted on the mere showing
of a prima
facie
case.
If the interim relief sought is identical to the main relief and has
the same substantive effect, it
means that the applicant is granted the main relief on proof merely
of a prima
facie
case. This,
to my mind, is undesirable especially where, as here, the applicant
will have no interest in the outcome of the case on the return day.
The
point I am making will become clearer if I put it in another way.
If,
by way of interim relief the applicant has asked for a postponement
of the election pending the discharge of confirmation of the
provisional order she would not in that event gain an advantage over
the respondents, because the point she wanted decided would have been
resolved before the election was held. But if the interim relief were
granted in the form in which it is presently couched, she would get
effective protection before she proves her case and the election
would be conducted on the basis that it is unlawful to wear t-shirts
emblazoned with party symbols and slogans.
Therefore,
it would be fruitless for the respondent to establish their
entitlement to wear such t-shirts.
Care
must be taken in framing the interim relief sought as well as the
final relief so as to obviate such incongruities.
(my
emphasis)”
The
first respondent relies on this passage to buttress his argument that
the final order sought by the appellant could not be granted on the
basis of a prima
facie
case.
Per
contra,
the appellant argues that the same passage:
“Supports
the position that where the matter is argued on the basis of a final
relief, and there are facts that show that a final relief should be
granted then the court should grant a final relief.”
[19] While
it is not clear just what part of the passage cited supports the
appellant's assertions in this respect, it is evident from the
record that the appellant a
quo
and in this Court, argued for and effectively sought either
provisional relief or final relief, based on the same set of evidence
and facts. That this was the appellant's somewhat unusual if not
questionable approach in the court a
quo
is explained in the following remarks in the court's judgment:
“The
applicant in his papers seeks a provisional order with an interim
order which is in fact a final order. Urgent applications are brought
to seek provisional orders as a measure to secure someone's
interests pending a return day for confirmation or discharge. The
draft order by the applicant under the interim order sought says
'pending
the final determination of this matter, at the return date, the
applicant is granted the following relief.'
(my
underlining).
It is then a self-defeating argument to say one should get a final
order at this stage.
What
should then happen on the return date.
In
fact, the return day will no longer be necessary for the applicant.
I
disagree with Mr
Biti
for
the argument he advanced to secure a final order. He relied on the
inherent jurisdiction of this Court, that the High Court Act does not
prohibit such order being granted and also referred to some case law
which I did not find helpful to resolve this issue.
There
are a number of issues which ought to be fully argued on the return
day, e.g., the effect of the payment by Chiutsi,
whether applicant has the locus
standi
to bring this application, issues of an innocent purchaser, existence
of caveat
or
otherwise etc.
This
matter is an urgent application.
If
granted, it must have a return day, giving an opportunity to all
parties to present their side of story not in an urgent atmosphere.
While
it is accepted that there are instances where the court may grant a
final order in an urgent application. However, that depends with the
uniqueness of the nature of relief sought.
In
casu,
it is not desirable because the applicant's interests can be
secured with a temporary interdict prohibiting any transfer of
property by the second respondent.
The
interim interdict has not been pushed for by the applicant as an
alternative. The court can therefore not grant that which has not
been asked for.
The
omnibus approach advocated by Mr
Biti
in his submission is undesirable, one cannot obtain a final order in
these circumstances. For these reasons this application is bound to
fail.”
[20]
We find it difficult to assail the reasoning of the court a
quo
as set out above. The appellant, through his counsel, sought to
secure what even he knew was a final order on the basis of a draft
order formulated as a provisional order. In other words, he sought to
be granted the main relief that he really craved, on an urgent basis,
on proof merely of a prima
facie
case, and in circumstances where other relief would easily have
secured his interests pending the return date. The court a
quo
properly applied the applicable law and gave cogent reasons for its
inability to grant the provisional order in the form that it was
presented by the appellant. In a similar vein, the court, while
accepting that in some rare instances a final order could be granted
in urgent circumstances, gave sound reasons as to why the case at
hand could not be given that special treatment. The appellant, in
short, failed to prove a case for either an interim, or a final
order.
[21] A
consideration of all the authorities cited above on the definition,
purpose and requirements of a provisional and a final order, and the
distinction between the two, lays bare the shortcomings of and
serious procedural faux
pas
attendant on, the manner in which the appellant chose to prosecute
this matter, both a
quo
and on appeal. His heads of argument before this Court persist with
the argument that the grant of either a provisional order or a final
one, had been proved through the evidence and facts argued before the
court. It is difficult to conceive how both a prima
facie
and a clear right, could have been proved on the basis of the same
facts and evidence.
[22] The
appellant in the view of this Court, exhibited some ambivalence as to
the exact nature of the relief that he is seeking in
casu.
This calls to mind the admonition by the court in the Kuvarega
case (supra)
to the effect that care needs to be taken in framing the relief
that a litigant seeks from the court, be it interim or final. One may
also add that the import and effect of the orders sought before the
court also need careful consideration to ensure compliance with the
relevant procedural and substantive law. Failure by a legal
practitioner to pay attention to these details is to do grave
injustice and disservice to the litigant concerned.
[23] For
its failure to meet the requirements of the law both procedurally and
on the merits, the application a
quo
was doomed to fail, and was accordingly properly dismissed.
When
all is considered, the appeal lacks merit and ought to be dismissed
with costs.
DISPOSITION
[24]
The judgment and reasoning of the court a
quo
in this matter cannot be faulted. On the facts of the matter and the
evidence placed before the court, the appellant failed to prove a
case for either interim relief, or the final relief that he
questionably sought.
It
is accordingly ordered as follows:
“The
appeal be and is hereby dismissed with costs.”
GUVAVA
JA: I
agree
BHUNU
JA: I
agree
Tendai
Biti Law,
appellant's
legal practitioners
Puwayi
Chiutsi,
Legal
Practitioners, 1st
respondent's legal practitioners
Mtetwa
& Nyambirayi,
2nd
respondent's legal practitioners
Gill,
Godlonton & Gerrans,
5th
respondent's legal practitioners
2.
The
propriety or otherwise of the splitting of the draft reliefs sought
by the appellant a
quo
was not raised by any of the parties, and has therefore not been
considered. Suffice to say that the appellant, according to the
learned judge a
quo,
accepted it and proceeded to amend his draft order accordingly. The
matter however becomes academic when regard is had to the fact that
the two issues adjudged not urgent have been overtaken by events.
This is because by the time this appeal was heard both the first
respondent and his legal practice had been de-registered by the Law
Society of Zimbabwe
3.
See the remarks in footnote 2, above
4.
9th
ed Juta & Co (Pty) Ltd p2
