Opposed
Application for Review
MUZENDA
J:
On
18 September 2018 the applicant filed a court application for review
seeking the following relief spelt out in the draft order:
“1.
The decision of the first respondent in which she made an order for
the rescission of default judgment in court case number 127/18 in
favour of second respondent be and is set aside.
2.
The application of second respondent for rescission of default
judgment be remitted for rehearing before a different magistrate.”
On
28 September 2018 the second respondent filed its opposing papers.
BACKGROUND
On
5 February the applicant initiated summons at the Magistrates Court
claiming US$651-00 from the second respondent, Zimbabwe National
Roads Administration.
The
applicant, on 21 May 2013 attempted to receive an exemption over a
number of his motor vehicles from Zimbabwe National Roads
Administration for the period extending 1 June 2013 to 31 May 2014.
Zimbabwe
National Roads Administration officials demanded a letter from a
commercial garage certifying such automobiles inoperative for a
specified period.
From
2013 to 2018 a number of correspondences took place between applicant
and second respondent.
In
January 2018 the applicant was told by Zimbabwe National Roads
Administration to pay a total of $696-00 licencing penalty and
penalty fees up to 30 April 2018.
Applicant
admitted to pay $45-00 but resolved to claim $651-00 being the
difference between $699-00 and $45-00 which amount he argued was
excessive and unjustified in his view.
On
25 February 2018 a default judgment was granted in favour of the
applicant.
On
12 March 2018 Zimbabwe National Roads Administration filed an
application for rescission of judgment.
Second
respondent also filed on the same date an exparte
application for stay of execution. On 26 March 2018 the applicant
filed his opposing papers for the rescission of judgment as well as
stay of execution.
On
13 July 2018 the magistrate, first respondent in this application
heard the application for rescission and stay and deferred her ruling
to 27 July 2018.
It
is common cause that both applications for rescission and stay of
execution were granted. The second respondent was given leave by the
magistrate to file a notice of appearance to defend. It filed it and
then proceeded to file an exception to the current applicant's
summons. Meanwhile the applicant embarked on a vitriolic attack of
the judicial officer, the magistrate through writing of letters up to
the Chief Justice.
When
the second respondent caused the exception to be set down for
argument, the trial magistrate, recused herself, patently because of
the attack by the applicant.
The
exception was set down for 11 September 2018 and postponed to 20
September 2018 so that a different magistrate would deal with the
matter.
Before
the matter could be heard, as already indicated, the applicant filed
a court application for review.
Meanwhile
the hearing of exception was deferred indefinitely until the
finalisation of the review application.
On
24 June 2019 I gave the following order indicating that I would give
reasons for that order:
“IT
IS ORDERED THAT:
1.
Points in
limine
raised by the 2nd
Respondent is upheld.
2.
Application for review is dismissed with costs on attorney client
scale.”
On
the very date, 24 June 2018, the applicant submitted a letter
addressed to the Registrar which he wanted to be placed before me
raising my attention “on matters which he might have overlooked in
an attempt to deal expeditiously with the proceedings before him”
to use applicant's own words.
As
a matter of comment I read the letter but at that stage the court was
functus
officio.
I could not revisit the proceedings.
I
opted not reply the letter, serve to mention that the very points
raised by the applicant had been extensively covered by the applicant
in a document he produced in court.
I
had read the document and in principle covered the chronicle of what
has built up in the matter before the application.
I
wonder why the applicant assumed that I had not appreciated what he
had submitted but presumably because I had dismissed his application,
he thought that I had missed the point.
I
had not and the following are my reasons for upholding the second
respondent's preliminary points.
The
second respondent submitted that the application for review is
fatally defective for want of compliance with Order 33 Rule 257 of
the High Court Rules of Zimbabwe.
Rule
257 provides:
“The
Court application shall state shortly and clearly the grounds upon
the applicant seeks to have the proceedings set aside or corrected
and the exact relief prayed for.”
The
applicant did not outline these reasons on the application.
They
appear in paragraph 70 of his founding affidavit and stretches from
paragraph 71 to paragraph 80.
Even
assuming that the grounds were stated by the applicant, they are not
short and precise and maybe the applicant followed Rule 256.
In
addition, the exact relief prayed for by the applicant does not
appear on the face of the application.
It
is peremptory that the provisions of Rule 257 must be complied with
as well spelt out by MAKONI J (as she then was) in the matter of
Fabiola
N. Gonye v Fadzai Mtombeni N.O. and Others.
“The
import of the above rule is that an applicant seeking a review must
approach this court by way of court application unless it is a
proceeding in terms of any other law other than Rule 256. It is
incumbent upon such application to state clearly in terms of which
law is proceeding under in filing the application for review right at
the outset. Where no such clear statement is made in the court
application it will be taken that the applicant is proceeding in
terms of Rule 256.”
Hence
failure to comply with this rule constitute a fatal flaw.
“As
regards the failure on the part of Chataura to comply with Rule 257
of the High Court Rules, it seems to me that non-compliance would
constitute good grounds for dismissing this application. Rule 257
requires that an application to bring proceedings under review shall
state shortly and clearly the grounds upon which the applicant seeks
to have the proceedings set aside or corrected and the exact relief
prayed for. In the Pen Transport, Mushaishi and Marumahoko cases
referred to earlier, the courts clearly stated that failure to comply
with Rule 257 constituted a fatal flaw. The time has surely come to
say enough is enough and to dismiss the defective applications
without considering the merits.”
In
the matter of Dandazi
v Wankie Colliery Co. Ltd
the rationale of compliance with Rule 257 was reiterated and the
court held:
“At
this stage, I wish to make an observation which is relevant to many
review applications that are brought to the High Court. In terms of
Order 33 Rule 257, it is a requirement that: The court application
shall state shortly and clearly the grounds upon which the applicant
seeks to have the proceedings set aside or corrected and the exact
relief prayed for. This is not an idle requirement. It was inserted
in the rules of the court so that an applicant for review may apply
his mind to the grounds upon which he seeks a review and be able to
state them clearly and in brief form. Often,
in review applications, all sorts of grounds are lumped together in
the body by the founding affidavit making it very difficult for the
presiding judicial officer to determine the grounds upon which the
matter is to be reviewed.”
(my own emphasis).
This
is exactly what the applicant did in this application.
He
vehemently argued that the grounds for review or relief sought, are
part of the affidavit.
I
conclude that in the light of the above cases cited, that is a gross
irregularity, such non-compliance with Rule 257 goes to the root of
the application, which only can be addressed by dismissing the
application.
Applicant's
grounds for review is that of bias and irrationality on the ruling of
the Magistrate. Such a ground must equally be stated in the court
application.
A
failure to do so is a gross irregularity which renders a matter
improperly before the court and that is where the court held that:
“If
as in the present case, the grounds are based on bias and gross
irregularity in the proceedings, then those grounds must be stated in
the application. A failure to do so, as was the case in this
application, is a failure to comply with Order 33 Rule 257. The
consequence of that failure is that the matter is not properly before
the court and the applicant must not be heard.” (my own emphasis).
I
allowed the applicant to make submissions relating to both the points
in
limine
and the merits.
However
having looked at the preliminary points capably addressed by the
second respondent, I am of the view that the applicant's papers are
not in order and the points in
limine
were accordingly upheld with an order of costs on a punitive scale.
Kadzere,
Hungwe & Mandevere,
second respondent's legal practitioners
1.
HH356/17
2.
Chataura v Zimbabwe Electricity Supply Authority 2001 (1) ZLR 30 (H)
per SMITH J
3.
2001 (2) ZLR 298 (H)
4.
See Dandazi case (supra)
5.
See also the matter of Minister of Labour & Others v Pen
Transport (Pvt) Ltd 1989 (1) ZLR 293 (S) per GUBBAY JA (as he then
was)
