Urgent
Chamber Application
MATANDA-MOYO
J:
Legal
practitioners should keep up to date with and give cognizance to
rules of the courts. They should not waste the court's time by
bringing ludicrous applications before the court. The determination
of cases should not be slowed or deferred unessentially because a
legal practitioner has failed to assimilate the rules.
This
was the case in this matter.
This
was an application brought before the court on an urgent basis, but
before the court could hear the matter on merits, the respondents
took a technical objection in points in
limine.
I reserved judgement and so here is my judgement.
The
first point in
limine
raised by the respondent was that there was no application before me,
based on the fact that the application did not comply with Rule 241.
Rule
241 states:
“(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 application
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.”
However
the form in which this application was brought was neither in form 29
nor 29B; I have no idea which form was used, nor do I know where the
legal practitioner for the applicant got it from.
However
the lawyer for the applicant still managed to waste the court's
time by referring the court to Rule 241 and Form 29B as read with
Rule 244.
I
do not have time to start teaching legal practitioners how to
interpret statutes.
Rule
241 states that a chamber application should be in form 29B, but if
it needs to be served should be in form 29.
Rule
244 is of no importance in answering a point in
limine
raised by the respondent. See Marick
Trading (Pvt) Ltd v Old Mutual Life Assuarance Company of Zimbabwe
Ltd and Another
2015 (2) ZLR 343.
When
such a chamber application is brought before the court it should be
in form 29 as it would need to be served on all interested parties.
This
was an application that was truly defective.
Fortunately
the law is very lenient with legal practitioners and allows such
lawyers to correct their mistakes by making an application for
condonation to rectify any faulty applications. However the
applicant's lawyer denied that the application was defective.
The
applicant thus never made any application, instead he submitted that
the application is not fatal and stated that so long as he is able to
show that there is compliance with the rules, the application should
be heard.
In
National
Social Security Authority v D Chipunza
SC 116/04 the court had this to say on rules of court:
“……….
Rules of court are enacted for purpose of regulating the conduct of
matters brought before the court and that condonation of failure to
observe them is not automatic or there for the asking. An applicant
must make out a good case for condonation of its non-compliance with
the rules. Failure to do so is fatal to his application.”
The
applicant herein was alerted of its failure to comply with the rules
but decided not to apply for condonation.
Without
an application before me I cannot mero
motu
grant condonation.
As
soon as a party realises it has not complied with any of the rules,
that party should file an application for condonation: see De
Beer En'N Aner v Westen Bank Ltd
1981 (4) SA 255.
In
addition as I have stated above condonation for non-observance of
rules of court is by no means a mere formality. It is for the
applicant to satisfy the court, that there is sufficient cause for
excusing the non-compliance. See Meinfjres
v H–D Combrinck (EDMS) BPK
1961 (1) SA 262 (AD) at 264.
In
this instance although it became clear to Mr Mugiya
that he had not complied with Rule 241(1) but he insisted he had
breached no rules.
It
was clear that the application by the applicant was one which
required to be served on the other party. It had to be in form 29B.
Mr
Mugiya
argued that the applicant was allowed in terms of the proviso to Rule
241(1) to use the procedure with modification. He argued that what he
did was to simply modify the procedure.
The
proviso to Rule 241(1) reads;
“Provided
that, where a chamber application is to be served on an interested
party, it
shall be in form 29 with appropriate modification.”
(my own underlining)
Modification
has been defined as an act or process of changing parts of something.
It is a change or alteration that makes something work better.
Modification must leave some resemblance to the original form.
The
original form 29 informs the respondent that if he intends to oppose
application he should file a Notice of Opposition in form 29A,
together with opposing affidavits. It also states that such
opposition must be served on the applicant.
The
applicant's application reads;
“TAKE
NOTICE THAT an application is hereby made for an order in terms of
the provisional order annexed to this application on the grounds
that;
1………………………..
2……………………..
3……………………..
FURTHER
TAKE NOTICE THAT THE accompanying affidavit and documents shall be
used in support thereof.
Dated
at Harare this 3rd
of February 2017.”
Obviously
such format is very different from form 29.
The
format used does not inform the respondents of what they must do upon
receiving the application.
As
I said above modification must be done in a manner which leave the
form 29 as provided better. One cannot reduce the requirements in
form 29 and call such modification. I am of the view that the
applicant has failed to comply with Rule 241(1) of this court's
rules.
Whilst
it is within my power to condone such non-compliance, it is trite I
must do so upon request. I have not been requested to condone such
derogation from the rules.
The
only remedy I have is to struck off the matter from the role. See
Forestry
Commission v Moyo
1997 (1) ZLR 254 (S).
The
respondent also submitted that the relief of spoliation is final in
nature and cannot be sought on an interim basis.
The
applicant has premised his application on a prima
facie
right as opposed to a clear right.
I
was referred to the case of Blue
Ranges Estates (Pvt) Ltd v Muduviri and Another
2009
(1) ZLR 368 (S) where the court at 369A said;
“A
spoliation order cannot be granted on evidence of a prima facie right
only. Once the order was made and fully executed it was discharged.”
At
p377D the court had this to say;
“The
finding of the fact in issue was a final and definitive determination
of the fact in question. There would have been no other final
determination of the issue of spoliation on the return day. A clear
right in the applicant to be restored to the possession of the
property would have been established. A spoliation order cannot be
granted on evidence of a prima
facie
right.”
Hebstein
and Van Wisen Civil
Practice of the Supreme Court of South Africa
4ed states at p1064 that:
“A
mandament
van spolie
is a final order although it is frequently followed by further
proceedings between the parties concerning their rights to the
property in question. The only issue in the spoliation application is
whether there has been a spoliation. The order that the property be
restored finally settles that issue as between the parties.”
Mr
Mugiya
conceded the above position.
Such
concession was properly made. Accordingly the application fails on
this ground alone.
Counsel
for the respondent took issue with the citation of a Trust.
It
is trite that a Trust is not a legal
pesona
but acts through its trustees nominee officii:
see
Monola and Others v Kenye–Eddie NO and Others
1995 (2) SA 728 (W) at 731C–F;
“a
trust is not a legal pesona but a legal institution, sui generis. The
assets and liabilities of a trust vest in the trustee or trustees.
The trustee is the owner of the trust property for purposes of the
administration and the trust, but qua trustee, he has no beneficial
interest therein. Unless one of the trustees is authorised by the
remaining trustee or trustees, all the trustees must be joined in
suing and all must be joined when action is instituted against a
trust in legal proceedings trustees must act nominee officii and
cannot act in their private capacities.”
If
it
is improperly cited there is need for an amendment. See Cross
& Others v Penz
[1996] ZASCA 78.
In
cases where the Trustees were known the courts have dismissed
objections to citation of “Trustees of …….”. Such opposition
was found to be smacked of unnecessary formalization. See also
Trustees for the time being Sparta
Family Trust v Royal Gourmet Indian Cape CC
(6993/2009) [2011] ZAWCHC 352. Nedbank
Ltd v Trustees for the time being of the OC Vermeulen Trust and
Others
[2011] ZAWCHC 383.
Rule
8A of the High Court Rules provides that it is not necessary to list
trustees by name when they sue on behalf of a trust.
The
Supreme Court ruled in the case of Trustees
of Leonard Cheshire Homes Zimbabwe Central Trust v Chiite and 7
Others
(SC 306) [2015 ZWSC 24] that;
“It
is only where a defendant to a suit, by the trustees on behalf of a
trust, has requested from the trust names and addresses of the
individual trustees that the listing of the names of the trustees is
required.”
See
also Zimcor
Trustees Ltd and Others v Rushesha and Others
(SC453/13) [2015] ZWSC 22; Zhou
and Others v Trustee of Tomorrow Today Yesterday Trust and Another
[HC3429/15]
[2015] ZWHHC 402; and Privatisation
Agency of Zimbabwe and Another v Ukubambana Kubatana Investments
(Pvt) Ltd and Financial Trust of Zimbabwe (13/02) (Pvt)
[2003] ZWSC 9.
In
my view, therefore, that following the above authorities the
applicant has been properly cited. I am also of the view that this
matter is fraught with material disputes of facts. The matter cannot
be resolved on papers. Viva
voce
evidence ought to be led to establish the facts.
I
am also of the view that his matter calls for costs on a higher
scale.
The
applicant was informed of the defects in the application but
stubbornly continued with the matter without attending to those
defects. Accordingly this application is dismissed with costs on a
higher scale.
Mugiya
& Macharaga Law Chambers,
applicants legal practitioners
Gill
Godlonton and Gerrans,
1st–8th
respondents legal practitioners
