Urgent
Chamber Application
MANZUNZU
J:
This is an urgent application in which the applicant sought a
provisional order in the following terms:
“Terms
of Final Order Sought
It
is ordered that;
4.1
That Puwayi Chiutsi be and is hereby is struck off from the roll of
legal practitioners.
4.2.
That Puwayi Chiutsi, and the Sheriff of Zimbabwe each paying the
other, the other to be absolved pays costs of suit on a scale as
between attorney and client.
4.3.
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;
(i)
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
4,377 square metres be and is hereby cancelled.
(ii)
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.
(iii)
Puwayi Chiutsi be and is hereby suspended from the practise of the
legal profession.”
On
28 February 2019 I heard submissions on the issue of urgency.
The
first respondent argued that the matter was not urgent.
In
an ex-tempore ruling, I ruled that the matter was not urgent in so
far as it relates to the relief sought to compel the Law Society to
place the law firm of Puwayi Chiutsi under curatorship and in respect
to the suspension of Puwayi Chiutsi from practise as a legal
practitioner.
This
was in my view, a cause which can be pursued in an ordinary
application since no irreparable harm was shown to be suffered by the
applicant if the matter was not treated as urgent.
Furthermore,
that second part of the relief sought could by no means meet the
requirements of urgency as set out in case law; See Kuvarega v
Registrar General and Anor 1998 (1) ZLR 188.
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 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.
The
background to this matter is an ugly one.
The
applicant has put a very detailed narration of the background to this
matter in the founding affidavit. I will state hereunder a brief
summary:
It's
a simple matter which should not have protracted to this end had it
not been for the unruly behaviour by the first respondent.
The
first respondent is a legal practitioner practising under the style
Puwayi Chiutsi Legal Practitioner law firm (Chiutsi). In 2012
applicant sold his property and instructed Chiutsi to do the
conveyancing work. Chiutsi also received US$266,000 the purchase
price in his Trust Account as always is the norm before transfer.
Transfer was concluded a year later on 10 September 2013.
By
then Chiutsi had transferred US$150,000 to the applicant leaving a
balance of US$116,000 which he ought to have accounted upon transfer.
Chiutsi
raised some invoices in an effort to account for the retention of the
balance as he offered to pay applicant the balance of $70,000.
The
applicant sued Chiutsi for the recovery of his money which action
resulted in two judgments against Chiutsi for the amounts of $70,000
and $45,000 respectively.
The
enforcement of the two judgments lead to the attachment of Chiutsi's
immovable property.
Chiutsi
went berserk with litigation appealing against every decision of this
court and challenging the sale in execution of his property. For
every move he took, he lost with judgments describing his conduct as
deplorable, unethical and unprofessional.
Despite
the judicial attachment of Chiutsi's immovable property and in fact
with a sale having been confirmed by the Sheriff, against all odds,
Chiutsi sold the property and transferred ownership to the second
respondent.
The
applicant's interest in this application is for him to get his
money from Chiutsi.
The
sale of Chiutsi's immovable property to the fifth respondent by the
Sheriff had at least guaranteed him of his money. He fears the second
respondent may pass title to a third party complicating his chances
of recovering his money.
Chiutsi
said he has now paid $115,000 to the applicant through his lawyers
trust account.
The
payment has been acknowledged though there is a dispute as to whether
or not such payment is considered as payment towards the judgment
debt because, as Mr Biti argued, it goes towards costs.
As
I have already pointed out, the applicant's interest is to get his
money, otherwise he cannot be seen fighting a case for the fifth
respondent as to whether the sale between fifth respondent and
Sheriff should proceed.
He
has no mandate to do so.
The
question which the court must resolve is whether or not it is
appropriate for the applicant to obtain a final order under the
circumstances.
Mr
Biti said it was appropriate and Advocate Hashiti said it was not.
It
was submitted on behalf of the second respondent that the second
respondent was ready to accept an interim interdict to stop any
transfer of the property pending a determination on the return day
for confirmation or otherwise of the cancellation of the title deed.
This
was a suggestion by the second respondent as a way to secure the
interests of the applicant.
However,
applicant did not move for any remedy in the alternative. He opted to
stand or fall on the final relief being sought.
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 day?
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.
Accordingly:
IT IS ORDERED THAT:
1.
The application be and is hereby dismissed with costs.
Tendai
Biti Law, plaintiff's legal practitioners
Puwayi
Chiutsi Legal Practitioners, 1st respondent's legal practitioners
Mataka
Legal Practice, 2nd respondent's legal practitioners
Gill
Godlton & Gerrans Legal Practitioners, 5th respondent's legal
practitioners
Law
Society of Zimbabwe, 6th respondent's legal practitioners
