Unopposed
Application
CHIGUMBA
J:
The
matter came before me on the unopposed roll on 1 September 2016. I
dismissed it on the basis that:
(a)
There is no cause of action therefore the relief sought is
incompetent.
(b)
The papers are defective in that they do not comply with Order 32 of
the rules of this court.
After
having been subjected to a barrage of letters by the applicant, the
contents of which are self explanatory and which form part of the
record of proceedings, this is a formal setting out of the reasons
for the dismissal of the application.
The
court application filed of record on 8 July 2016 made reference to
five other applications filed before this court: HC11009-12,
HC9428-14, HC2826-16, HC1511-16, HC2622-16.
The
draft order which appears at record p56 is a prayer for an order that
the applicant be granted his wish to be allowed to pay lobola at his
own convenience on a date to pay that he will request from the in
laws, only if the respondent is a virgin.
The
court was asked further to order the respondent to stop her part in
the “beaming”.
The
court was unable to determine, from the founding affidavit what the
cause of action was.
The
court was unable to accede to an order that the respondent accept the
applicant as a prospective husband, an order that the parents allow
the applicant to pay lobola for her hand in marriage at his
convenience, an order that she demonstrates that she is still a
virgin, or an order that the respondent stops her part of the
beaming.
A
cause of action is defined as “the facts that entitle a person to
sue.”1
The
cause of action may be a wrongful act, such as trespass, or the harm
resulting from a wrongful act as in negligence.
A
reading of the founding affidavit suggests that the applicant's
cause of action purports to be founded in delict.
A
'delict' is a civil wrong.2
In
a delictual claim, the plaintiff normally seeks damages as
compensation from the defendant for infringement of his or her
rights.
There
is nothing in the applicant's founding affidavit which shows what
civil wrong the respondent committed.
There
is nothing in the founding affidavit to justify the relief sought by
the applicant, in delict or in any other recognisable cause of
action.
The
court was not furnished with sufficient information or averments to
understand what 'beaming' is.
To
order the respondent to stop her part in the 'beaming' without
sufficient foundation as to what this 'wrong' is would be
incompetent.
It
would be incompetent to order 'that the respondent' furnish the
applicant with evidence of her virginity or that she agree to be
'lobolaed' by him.
The
second aspect of the court's dismissal of the application was that
the papers are in shambles and do not comply with the Order 32
procedure.
Order
32 Rule 227 of the High Court Rules 1921 sets out the nature and form
of all written applications.
No
documents were attached to verify the numerous, jumbled, garbled and
insensible averments made by the applicant. The court could not make
head or tail of the averments. No useful purpose could be served by
repeating the averments as they form part of the record but a few
examples will demonstrate and highlight the embarrassing nature of
the averments:
Record
p6 - clauses 2.3:
“2.
I am …. To ask Mary Gorongoza if I remember well her surname, to
clarify about two things: in delict.
3.
Mercy must come out clearly officially in court whether or not
certain persons have abused her or not. I am mentally suffering or in
psychological pain or still in emotional shock or further still
mental distress due to her failure to conclusively clarify.”
Paragraph
4 alludes to applicant's sister, his son, and his Excellency the
President of the Republic of Zimbabwe.
Paragraph
6 alludes to political problems, an independent public enquiry and
'beaming'.
The
founding affidavit contains thirty four pages of these garbled
averments.
Clearly,
the application is not properly before the court in terms of the
rules of this court. The application is fatally defective and ought
to be dismissed. The application stands on nothing. It is a nullity.
It has no legal or factual basis. The relief sought is
incomprehensible. No cause of action was established in the founding
affidavit. The application is an attempt to stand the law on its
head. It cannot succeed.
For
these reasons, even though the application was unopposed, it is
dismissed.
1.
Oxford
Dictionary of Law, 8th ed Southern Law p92
2.
Principles of Delict, Jonathan Burchell p1
