Urgent
Chamber Application
MAFUSIRE
J:
This was an urgent chamber application. At the end of the hearing I
dismissed it with costs on a legal practitioner-and-client scale. I
deprecated the conduct of the applicant's legal practitioners.
The
purported urgent chamber application was not only bad in many
respects, it was incurably bad.
What
I was particularly concerned with were the patent falsehoods in the
applicant's papers.
Furthermore,
there was an apparent disconnection between the order sought, the
facts laid out in support thereof and the allegations in the
certificate of urgency.
Here
are the details.
(a)
Application Defective
In
the case of Marick Trading (Private) Limited v Old Mutual Life
Assurance Company of Zimbabwe (Private) Limited & Anor1
I prefaced my judgment with the following remarks:
“Legal
practitioners should keep abreast with, and heed pronouncements from
the courts. It is a duty. The determination of cases on the merits
should not be impeded or stalled unnecessarily for failure to follow
the rules. This was the case in this matter.”
It
was also the case in the instant matter.
In
Marick Trading I went on to say2:
“The
point in limine by the respondent was that there was nothing before
me to determine because the applicant's application was neither in
Form No.29 nor Form 29B as required by Rule 241(1) of the Rules of
this Court.
Rule
241 reads:
'(1)
A chamber application shall be made by means of an entry in the
chamber book and shall be accompanied by Form 29B duly completed and,
except as is provided in subrule (2), shall be supported by one or
more affidavits setting out the facts upon which the applicant
relies: Provided that, where a chamber application is to be served on
an interested party, it shall be in Form No.29 with appropriate
modifications.' (my emphasis)
In
casu, the applicant's urgent chamber application was one to be
served. Indeed it was served.
So
it had to be in Form No. 29. But it was not. It was also not in Form
No. 29[B] either. It read like this:
'TAKE
NOTICE that the Applicant hereby makes an Urgent Chamber Application
for an order in terms of the draft order annexed to this application
and the accompanying affidavits and documents will be used in support
of the application.'
I
observe in passing that the format of the application used by the
applicant seems so popular among legal practitioners in this
jurisdiction. I do not know where it comes from. But all that is
required of litigants is simply to copy and paste either Form 29B or
Form 29, the latter with appropriate modifications if the application
is a chamber application that needs to be served on interested
parties.”
It
was exactly the same situation obtaining in the instant matter.
The
applicant's urgent chamber application read like this:
“BE
PLEASED TO TAKE NOTICE THAT an Application is hereby made on an
urgent basis and the accompanying affidavits and documents will be
used in support thereof.”
Ms
Wood, for the applicant, tried to save the situation, firstly by
arguing that the format used by the applicant was the “…
appropriate modification …” contemplated by the proviso to Rule
241(1).
But
it could not possibly be.
Before
you modify the forms prescribed by the Rules you got to adopt them
first. That is what the Rules command.
As
with many other similar applications that have been rejected by the
courts before, the applicant in casu adopted neither of the forms.
At
p3 of my cyclostyled judgment in Marick Trading, I re-stated what I
believe is trite:
“Form
29 is for use in ordinary court applications, or those chamber
applications that require to be served.
One
of its most important features is that it sets out a plethora of
procedural rights. It alerts the respondent to those rights. For
example, in notifying the respondent of the court application, the
form also notifies the respondent of his right to oppose the
application and warns him of the consequences of failure to file
opposing papers timeously.
On
the other hand, Form 29B, for simple chamber applications, requires
that the substantive grounds for the application be stated, in
summary fashion, on the face of that form.
Nothing
can be more elementary.
The
courts, both in this jurisdiction and elsewhere, have repeatedly
drawn attention to the need to follow the rules on this. It is not a
'sterile' argument about forms3.
I
sample some of the pronouncements by the courts …”
I
then went on to cite, and quote pertinent remarks in, the cases of
Simross Vintners (Pty) Ltd v Vermeulen; VRG Africa (Pty) Ltd v
Walters t/a Trend Litho; Consolidated Credit Corporation (Pty) Ltd v
Van Der Westhuizen4;
Jensen v Acavalos5;
Zimbabwe Open University v Mazombwe6;
Richard Itayi Jambo v Church of the Province of Central Africa &
Ors7;
Minister of Higher & Tertiary Education v BMA Fasteners (Private)
Limited & Ors8;
Base Minerals Zimbabwe (Private) Limited & Anor v Chiroswa
Minerals (Private) Limited & Ors9.
So
Ms Wood could not save the application on the basis that the
applicant's format was the appropriate modification contemplated by
the Rules.
She
changed tack and applied for condonation.
But
if the application was a nullity ab initio there was nothing to
condone.
At
any rate, no good and sufficient cause was proffered why the
applicant had in the first place refrained from simply “copying and
pasting” the prescribed forms.
As
the Supreme Court said in Jensen, supra, albeit in relation to a
defective notice appeal10:
“The
reason is that a notice of appeal which does not comply with the
rules is fatally defective and invalid. That is to say, it is a
nullity. It is not only bad but incurably bad, and, unless the court
is prepared to grant an application for condonation of the defect and
to allow a proper notice to be filed, the appeal must be struck off
the roll with costs …”
In
casu, I was not prepared to grant condonation.
The
application was dogged by numerous other defects.
(b)
Certificate of Urgency Defective
Where
a litigant has determined that his matter is so urgent that it cannot
wait for determination in the normal course, the Rules of Court
permit and facilitate the jumping of the queue.
This
is done through an urgent chamber application.
In
such a situation the Rules require that if the applicant is to be
represented by a legal practitioner, his urgent chamber application
should be accompanied by a certificate from a legal practitioner
certifying that the matter is urgent, and giving reasons for such
belief.
Once
that is done, the Registrar of this court is obliged to immediately
submit such application to a judge in chambers.
On
his part, the judge is implored to consider the matter forthwith,
although retaining the discretion to call for oral submissions from
interested parties as he or she may direct.
The
duties of a legal practitioner in relation to certificates of urgency
have been expounded in a number of cases.
In
General Transport & Engineering (Pvt) Ltd & Ors v Zimbabwe
Banking Corporation (Pvt) Ltd11
GILLESPIE J said12:
“Where
the rule relating to a certificate of urgency requires a legal
practitioner to state his own belief in the urgency of the matter
that invitation must not be abused.
He
is not permitted to make as his certificate of urgency a submission
in which he is unable to conscientiously concur. He has to apply his
own mind and judgment to the circumstances and reach a personal view
that he can honestly pass on to a judge and which he can support not
only by the strength of his arguments but on his own honour and name.
The
reason behind this is that the court is only prepared to act urgently
on a matter where a legal practitioner is involved if a legal
practitioner is prepared to give his assurance that such treatment is
required.
It
is, therefore, an abuse for a lawyer to put his name to a certificate
of urgency where he does not genuinely believe the matter to be
urgent.”
In
Oliver Mandishona Chidawu & Ors v Jayesh Shah & Ors13 the
Supreme Court (GOWORA JA) stated14:
“In
certifying the matter as urgent, the legal practitioner is required
to apply his or her own mind to the circumstances of the case and
reach an independent judgment as to the urgency of the matter.
He
or she is not supposed to take verbatim what his or her client says
regarding perceived urgency and put it in the certificate of urgency.
I
accept the contention by the first respondent that it is a condition
precedent to the validity of a certificate of urgency that a legal
practitioner applies his mind to the facts.”
After
making reference to the Zimbank case, the learned judge of appeal
continued as follows15:
“In
order for a certificate of urgency to pass the test of validity it
must be clear ex facie the certificate itself that the legal
practitioner who signed it actually applied his or her mind to the
facts and the circumstances surrounding the dispute.”
In
the present case, the certificate of urgency was furnished by legal
practitioner Augustine Runesu Chizikani (“Chizikani”).
He
certified a number of allegations as facts upon which he said his
belief that the matter was urgent had been based.
He
said the applicant and its entire membership would be irreparably
harmed if the status quo ante was not restored on an urgent basis. He
then listed those harmful events as follows:
(a)
The fraudulent termination of applicant's rights of possession of
the property in question;
(b)
The eviction of the applicant and its members from the property
notwithstanding their right of occupation;
(c)
The “[l]egitimisation through the back door of the 2nd Respondent's
breach …” of agreement with the applicant;
(d)
Rendering homeless more than 7,600 owners of residential properties;
(e)
Continuous harassment of the applicant and its membership through the
print media by flighting malicious advertisements and through false
and malicious police reports.
Chizikani's
certificate also referred to the potential loss by the applicant and
its membership of some US$10 million which, allegedly, had been
invested in developing the property.
The
rest of the certificate was largely legal argument on what the second
respondent had allegedly done; what the result of a failure to
restore the status quo ante could be; the absence of an alternative
remedy; and the miscarriage of justice that would ensue if the matter
was not heard on an urgent basis.
Plainly,
none of what Chizikani stated in his certificate informed anyone how
the matter was urgent.
Ms
Wood was in obvious difficulty on this.
The
certificate said nothing about when those harmful acts allegedly by
the respondents had occurred. It said nothing about how it would be
justified that the matter be treated as urgent, more so given that it
was said that there was pending before this court an ordinary
application to determine the substantive rights of the parties
vis-a-vis the property at the centre of the dispute.
It
is doubtful that Chizikani read the application, especially the draft
order.
One
remarkable thing about the application was the apparent dissonance
between the founding affidavit, the certificate of urgency and the
draft order.
I
deal with this aspect more fully below when I deal with the nature of
the relief sought.
In
Chizikani's certificate of urgency, probably only the reference to
the alleged continuous harassment of the applicant and its members
spoke to the nature of the relief sought. The rest of the averments,
and of most of those in the founding affidavit, seemed a dress
rehearsal of the arguments to be proffered in the main case.
A
certificate of urgency by a legal practitioner is a sine quo non for
an application being heard on an urgent basis where the applicant is
to be represented.
Where
that certificate is incurably defective, it is just as good as if
there is no application.
That
was another reason why in this case I declined to entertain the
application on the merits.
(c)
The Relief Sought
The
applicant's draft order was couched thus:
“TERMS
OF FINAL ORDER SOUGHT
That
you show cause to this Honourable Court why a final order should not
be made in the following terms:
1.
That the 1st and 2nd Respondents be and are hereby interdicted from
interfering with Applicant's operations on the Remainder of the
Farm Ordar situate in the district of Salisbury pending determination
of an application seeking the setting aside of title transfer under
Deed No.2807/2015;
2.
That the 1st Respondent and 2nd Respondents (sic) shall bear the
costs of this application on a legal practitioner and client scale.
INTERIM
RELIEF GRANTED
Pending
determination of this matter, the Applicant is granted the following
relief:
1.
That the 1st Respondent be and is hereby interdicted from harassing
Applicant's members and/or beneficiaries in any way whatsoever in
respect of the Remainder of the Farm Odar immediately upon service of
this order.”
The
background to this case, in summary, and in my own words as I
understood it, and avoiding much of the contentious stuff, was that
the applicant was a consortium or joint venture of some 56 members,
comprising, among many others, companies and state enterprises.
The
first respondent was a private company fronted by one Phillip
Chiyangwa (“Chiyangwa”).
The
second respondent represented the government.
It
was said in 2006 the government, in terms of two written agreements,
allocated to the applicant some 605,8092 hectares of a property known
as Ordar Farm (“the property”).
The
allocation was so that the consortium could develop, at its own cost,
housing units for its members.
One
important feature of the joint venture agreement was that the
consortium would, through the government, pay compensation to the
former owner of the land at levels pegged by government.
This
former owner was identified in the agreements as the Zimbabwe Tobacco
Association (“ZTA”).
Another
feature of the agreements was that the parties to the joint venture
would establish a partnership whose members contributions to the
capital costs and whose entitlement to the individual land units
would be in the proportions as set out.
The
day to day management of the partnership would be entrusted to a
committee of twelve persons appointed by the partners.
In
due course the government would pass title to the owners of the
individual units of land.
The
applicant's case before me, again in my own words, and largely
staying clear of the hotly contested facts, was that it had kept its
side of the agreement.
Among
other things, the relevant developmental permits had been put in
place. The property had substantially been developed.
Yet,
the government had blatantly reneged on virtually every other
undertaking that it had made to the applicant.
Among
other things, the government had surreptitiously surrendered the
property to Chiyangwa through his company, the first respondent
herein.
A
week before the application, the government had, Nicodemusly,
executed a deed of grant over the property in favour of Chiyangwa's
company.
The
applicant's members were now at Chiyangwa's mercy.
They
were facing constant harassment from him as he relentlessly pursued
compensation from them in return for individual title to the
individual units occupied by them in terms of the agreements with
government.
He
was busy flighting malicious adverts in the media and making
malicious reports to the police against the applicant's management
committee.
The
applicant did not recognise Chiyangwa or his alleged rights or title
to the property.
In
separate proceedings before this court, the applicant said it was
challenging government's actions. In particular, the applicant
wanted the title to Chiyangwa's company reversed.
So
applicant's case before me was that pending determination of the
main case, it wanted a temporary interdict.
It
was the nature of that temporary interdict that was the bone of
contention.
Prima
facie, the applicant had made out a case of double-dealing by
government.
Government's
conduct was put into serious question.
It
had acquired the property. It had allocated it to the applicant. The
applicant had expended vast sums of money in line with the
agreements. The applicant's members anticipated getting title to
the individual units of land over which they had taken occupation, or
were in the process of doing so. The level of compensation was, or
had to be assessed by government.
Then
Chiyangwa zooms from nowhere, brandishing a title deed issued by the
same government, over the same property.
And
the same government was now tossing the applicant's members to
Chiyangwa to whom payment of the compensation had to be made.
Thus,
the government was in the dock. It owed an explanation.
It
was its secret execution of the title deed in favour of Chiyangwa's
company that had prompted the applicant to approach the court on an
urgent basis.
That,
basically, was applicant's case.
Unfortunately,
it was not the one before me.
It
was the case pending before this court for determination at another
time and by another judge.
The
case before me, as summarised in the interim relief sought, was that
I should interdict Chiyangwa's company from “… harassing
Applicant's members and/or beneficiaries in any way whatsoever …”
But
there was a problem with that.
From
the papers, it was not Chiyangwa's company that was doing the harm
complained of. It was him personally.
But
he was not a party to the application.
Secondly,
and more importantly, what really was being sought was an interdict
to stop Chiyangwa from making police reports against the applicant's
management committee.
There
was attached to the founding affidavit, a document headlined “WANTED
BY POLICE”.
Below
were pictures of six named individuals and six other names without
pictures to them. The six pictures included that of the deponent to
the founding affidavit, one Benny Tangai Matenga (“Matenga”).
According
to the applicant, the pictured and named individuals were the
applicant's management committee.
The
document offered a reward to anyone who reported them to the police.
However,
before me, there was no telling whether the document had been from
Chiyangwa himself or the police.
Also
attached to the applicant's papers was another document headlined
“PUBLIC NOTICE - WARNING MBAVHA KU SOUTHLEA PARK”.
“Mbavha”
is Shona for thief or thieves.
In
essence, the document informed the public that it had come to the
attention of the first respondent that the named individuals and
other “unscrupulous” elements were illegally selling residential
stands to unsuspecting members of the public.
The
document said a report had been made to the police and that only the
company could legitimately issue title deeds over the property.
In
his affidavit, Chiyangwa said those individuals were the so-called
land barons who had illegally sold off pieces of land from his
company's property and whom he had reported to the police.
The
point is: it is everyone's right to report what they may perceive
to be criminal conduct.
The
interim order sought was manifestly incompetent.
In
substance, it was sought to gag someone from exercising his right or
freedom.
Although
not really conceding the point, Ms Wood seemed to appreciate the
difficulty.
She
sought to amend the draft order so that the interdict would read
something like this:
“…
to
restrain the first respondent from interfering with the applicant's
operations at the property; or disposing of any stands thereon and
from harassing the applicant's members and from publishing any
false statements pending the determination of the main case …”.
The
first respondent opposed the proposed amendment.
Among
other things, Mr Mpofu pointed out that it was the applicant, not the
respondents, that was selling off units of land.
In
my view, the proposed amendment still amounted to the same thing.
Applicant's
real case was that it was for government to answer why it was
ditching its members.
But
no relief was being sought against the government.
Furthermore,
other than the two documents aforesaid, and the single allegation in
the founding affidavit to the effect that such documents had been
flighted in the media by the first respondent, there was nothing else
said or shown that amounted to harassment.
There
was simply a disconnection between what the application said or
highlighted in its application, and the relief sought in the draft
order.
Such
defect was incurable.
That
was yet another reason why I refused to deal with the application.
(d)
Falsehoods or material facts concealed
The
applicant blatantly neglected to take the court into its confidence.
Material facts were omitted from the founding papers.
This
was fully exposed and exploited by the first respondent, with fatal
consequences.
One
example stuck out prominently.
As
summarised above, the applicant condemned the government for, as it
were “selling” out to Chiyangwa.
The
applicant did not recognise Chiyangwa or his company.
Applicant's
position was that its members would pay compensation to no one else
other than government.
Applicant's
case, particularly that for urgency, was that it was only after
government had surreptitiously issued title to Chiyangwa's company
on 8 July 2015 that it had finally become aware of government's
sinister dealings.
That
was what had triggered the urgent chamber application a week later.
To
expose the falsehoods, the first respondent produced several
correspondence and documents.
These
showed that as far back as December 2014 the government had written
to the first respondent, inter alia, confirming its resolution to
hand over the property back to it and advising that the first
respondent would now receive its compensation directly from the
applicant.
The
first respondent had in turn copied that letter to the applicant some
five days later.
In
answer to that, the applicant claimed not to have received the
correspondence.
However,
it admitted that it had received an agreement dated 15 April 2015
between the government and the first respondent.
That
agreement was to the same effect as the correspondence.
In
fact, it was more elaborate.
It
explained the background to the devolution of the property from ZTA
to the first respondent. It explained how the first respondent would
develop the property and receive compensation directly from the
applicant, and how the government would issue a deed of grant over
the property in favour of the first respondent to facilitate the
raising of capital for the developments intended, etc.
All
that the applicant challenged in the answering affidavit was some
inconsequential aspect of that agreement.
Its
major argument was that the government was dealing with the first
respondent at its own risk because it had an agreement with the
applicant over the property.
But
that was not the point.
The
point was that such communication or documents had been concealed
from me.
Furthermore,
if the applicant had become aware of government's intention, inter
alia, to issue a title deed over the property in favour of the first
respondent as far back as, according to the applicant itself,
mid-April 2015, how could the matter then suddenly become urgent only
in mid-July 2015 when the applicant finally filed the urgent chamber
application?
There
was more.
The
first respondent produced a sample of the correspondence signed by
Matenga in February 2015, to members of the consortium.
The
letters, referenced “PAYMENT OF COMPENSATION TO SENSENE INVESTMENTS
(PVT) LTD” advised that government and the first respondent had
settled the issue of ownership.
The
applicant itself was confirming that indeed the first respondent now
owned Ordar Farm.
In
the circumstances, the applicant's members were being directed to
now pay compensation directly to the first respondent.
By
all accounts, such correspondence damned the applicant's case.
So
anyone would naturally be curious what the applicant's answer to
that could be.
Matenga
had an answer.
He
claimed, in the answering affidavit, and in yet another affidavit
attached to the answering affidavit, that he had signed those
letters, as it were, at gun point!
He
said he had written them without consulting the applicant's
management committee because a “representative” of the first
respondent had stood over him demanding that he signed the letters!
The
representative was not named.
Plainly
that was puerile.
At
any rate, it was beside the point. The point was that such material
correspondence and documents had not been disclosed.
Asked
to explain, Ms Wood retorted what purpose disclosure would have
served.
But
she could not possibly have been serious.
There
was yet other more relevant and material letters that the applicant
had concealed.
It
turned out that the applicant had engaged more than one law firm over
the issue of, inter alia, the level of compensation payable to
Chiyangwa's company.
One
of those law firms, Sawyer & Mkushi, had written to government on
28 April 2015.
On
30 April 2015 government had replied, advising the lawyers to deal
directly with the first respondent to whom the property had been
handed back.
The
other law firm was Tamuka Moyo Attorneys.
On
6 July 2015 they had written directly to Chiyangwa, making
substantial proposals on, inter alia, the level of compensation the
applicant wished to pay him.
The
letter clearly accepted that the first respondent was the owner of
the property.
In
the penultimate paragraph, the letter expressed gratitude to
Chiyangwa for the good faith that he had demonstrated towards the
applicant.
6
July 2015 was of course, a mere one week before the urgent chamber
application was launched.
Once
again, the letters to or from the law firms aforesaid were quite
damaging of the applicant's case.
So
again, one was curious what the applicant's answer would be.
It
had an answer.
Of
the government's letter to Sawyer & Mkushi, Matenga said the
letter was “invalid” because the first respondent was not a party
to the agreement between the applicant and the government!
Of
the letter from Tamuka Moyo Attorneys to Chiyangwa, Matenga said the
proposals on compensation therein were meant to put the issue of
compensation to rest!
Demonstrably,
the applicant was ill-advised.
As
I dismissed the application, I mentioned that if costs de bonis
propriis had been prayed for, I would have seriously considered the
request.
(e)
Authority to bring proceedings
Applicant's
authority to bring the proceedings was seriously challenged by the
second respondent in its notice of opposition.
One
George Sipihlapi Mlilo, the second respondent's Permanent
Secretary, said in the opposing affidavit, that the applicant had no
locus standi to bring the application; that Matenga had not shown the
authority upon which he was acting and that nothing had been
presented to show that the applicant was legally constituted.
In
the founding affidavit Matenga had attached some document purporting
to be a resolution allegedly passed by the applicant's management
committee authorising him to sign all court process in connection
with the dispute.
The
document was signed by the eleven persons, all of whom were the
subject of Chiyangwa's police reports and press adverts.
In
reply, Matenga referred to the joint venture agreement between the
government and the members of the consortium, and the purported
resolution. He said that those were the proof of the applicant's
locus standi; proof of his authority and proof of applicant's legal
status.
That
was not enough.
The
consortium members, as listed on the joint venture agreement,
consisted of some 56 legal entities that comprised private companies,
listed companies, some associations, State enterprises, co-operative
societies, banks, etc. virtually from the length and breadth of the
country.
Certainly
more was required of the applicant to prove its authority to bring
these proceedings than a mere resolution, especially given that a
frontal challenge had been taken.
All
this added to the fatal flaw in the application before me.
It
was for the above reasons that I dismissed the application with costs
on an attorney and client scale.
21
August 2015
G.H.
Muzondo & Partners, applicant's legal practitioners
Kantor
& Immerman, first respondent's legal practitioners
Civil
Division of the Attorney-General's Office, second and third
respondents legal practitioners
1.
HH667-15
2.
At pp2–3 of the cyclostyled judgment
3.
Per HLATSHWAYO J in Zimbabwe Open University v Mazombwe 2009 (1) ZLR
101 (H), at p103C
4.
1978 (1) SA 779 (T)
5.
1993 (1) ZLR 216 (S)
6.
2009 (1) ZLR 101 (H)
7.
HH329-13
8.
HB42-14
9.
HH559-14
10.
KORSAH JA, at p220A-D
11.
1998 (2) ZLR 301 (H)
12.
At pp302-303
13.
SC12-13
14.
At p6 of the cyclostyled judgment
15.
At p7
