Opposed
Applications
TAGU
J:
The two matters were consolidated to avoid conflicting judgments as
the two matters involving the same parties and same issues were ready
for arguments at almost the same time before different judges.
At
the hearing of the two matters counsels for the parties did not make
oral submissions but agreed that the two matters be decided on papers
filed of record.
The
following is the background to the two matters.
Upenyu
and Blessing Mashangwa (the Mashangwas) are husband and wife
respectively. They are members of the United Family International
Church (UFIC).
Emmanuel
and Ruth Makandiwa (the Makandiwas) are also husband and wife
respectively. The Makandiwas are leaders (prophet and prophetess
respectively) of United Family International Church (UFIC).
In
case HC7214/18 the Mashangwas filed summons in this Honourable Court
containing six claims against the Makandiwas and the United Family
International Church for a total sum of US$6,535,000.00 to be paid
jointly and severally, the one paying the other to be absolved.
In
their declaration the Mashangwas claimed that:
(1)
In the year 2012 at Harare, and in church the Makandiwas fraudulently
and misrepresented to the Mashangwas that anyone with a bank debt or
loan was to be cancelled as it was the season of miraculous
cancellation of debts after the Makandiwas were informed privately
that the Mashangwas had an existing ZB Bank loan to the tune of
US$500,000.00.
As
a result of the misrepresentation the Mashangwas were induced not to
pay ZB Bank the loan and in the result the Bank executed on the
Mashangwas property being 14 Edinburgh Road Harare for $500,000.00
thereby losing their house valued at $700,000.00.
(2)
In the same year the Makandiwas misrepresented in Church that one
Tichaona Mawere was a great lawyer who would not lose a case when in
fact Mr Tichaona Mawere was an unregistered legal practitioner.
Acting
on the misrepresentation the Mashangwas handed over their McDowell
file to the said Tichaona Mawere for a claim of US$1,698,000.00 and
expended in fees an amount of US$37,000.00. Tichaona Mawere then
produced fake court orders and the Mashangwas lost a total sum of
US$1,735,000.00.
(3)
In the years ranging from 2014 to 2016 the Mashangwas were called on
stage in church by the Makandiwas and were announced as a successful
example in their Ministry (UFIC).
Acting
on this misrepresentation the Mashangwas made various direct
contributions to the Makandiwas and the church money amounting to
US$1,100,000.00.
(4)
The Mashangwas were also paraded in Church on the stage by the
Makandiwas as the chosen people by God to have succeeded in business.
As
a result of the misrepresentation the Mashangwas marketed the
Makandiwas prophecies to the tune of US$2,000,000.00.
In
claims (5) and (6), they alleged that the Makandiwas defamed them
thereby destroying their reputation and causing monetary loss to the
tune of USD500,000.00.
Having
been served with the summons the Makandiwas entered appearance to
defend the claims.
They
proceeded to address a letter in terms of Rule 140 of the High Court
Rules, 1971 to the Mashangwas pointing out that the claims were vague
and embarrassing and that they did not disclose a cause of action,
and asked whether they were suing in contract or delict, and as
regards claim (5) and (6) asked whether the claims were in defamation
or injuria.
The
Mashangwas did not respond to the letter causing the Makandiwas to
file an exception on the 30th
of August 2017 to the Mashangwas pleadings in terms of Order 21 Rule
137(1)(b) in case HC7214/18.
The
exception was heard on the 6th
November 2017 by MANGOTA J in respect of all the six claims but was
dismissed on the 12th
January 2018 and the Mashangwas were ordered to amend their
declaration in respect of claims (5) and (6), and the Makandiwas to
plead, and thereafter, the matter was to proceed in terms of the High
Court Rules, 1971.
However,
after the dismissal of their exception the Makandiwas filed another
court application on the 23rd
February 2018 for the dismissal of the Mashangwas claims in terms of
Order 11 Rule 75(1) of the High Court Rules, 1971 in HC1774/18.
The
Mashangwas having felt that the Makandiwas had neglected or failed to
timeously prosecute the court application which they instituted under
case HC1774/18 filed a chamber application for dismissal on 8th
May 2018 under HC4197/18.
Both
applications were ready for hearing at almost the same time before
different judges hence the consolidation of the two applications.
ISSUES
FOR DETERMINATION
This
court is therefore being asked to decide two issues simultaneously:
(i)
The first issue is whether the Makandiwas application should be
dismissed for want of prosecution as prayed for by the Mashangwas in
HC4197/18.
In
the event of this court granting the relief asked by the Mashangwas,
this would be the end of the matters and this court will not deal
with the Makandiwas application.
(ii)
However, in the event that this court dismisses the Mashangwas
application for dismissal, the court will proceed to deal with the
second issue pertaining to the Makandiwas application for dismissal
of the Mashangwas claims in the main case under HC7214/17.
SHOULD
THE APPLICATION FOR DISMISSAL FOR WANT OF PROSECUTION BE GRANTED?
This
application is being made by the Mashangwas in terms of Order 32 Rule
236(3)(b) of the High Court Rules, 1971. The Rule provides that:
“Where
the respondent has filed a notice of opposition and an opposing
affidavit and, within one month thereafter, the applicant has neither
filed an answering affidavit nor set the matter down for hearing, the
respondent, on notice to the applicant, may either -
(a)
set the matter down for hearing in terms of Rule 223; or
(b)
make a chamber application to dismiss the matter for want of
prosecution, and the judge may order the matter to be dismissed with
costs or make such other order on such terms as he thinks fit.”
In
this case the respondents filed a court application on the 23rd
of February 2018 in terms of Rule 75(1) of the High Court Rules, 1971
under case number HC1774/18 and it was served on the applicants on
the same day.
On
the 9th
of
March
2018 the applicants filed opposing papers and they were served upon
respondents on the 13th
of March 2018.
The
respondents were supposed to file an answering affidavit within a
month, that is, by 14th
of April 2018 or set down the matter for hearing. The respondents
only filed their answering affidavit on the 22nd
May 2018 more than a month later.
The
respondents opposed the application for dismissal for want of
prosecution.
However,
the respondents conceded that they did not file their answering
affidavit and heads of argument within 30 days prescribed in Rule
238.
Their
argument being that their counsel was served with the Notice of
Opposition on the 14th
of March 2018 towards the end of term and was heavily committed
during that period. They further submitted that the period for filing
answering affidavit and heads of argument coincided with the Easter
break, and this court was on vacation.
However,
they argued that Rule 236(3)(b) does not create a bar and that they
have since filed their answering affidavit, heads of argument and a
Notice of Set Down a clear sign that they intended to prosecute their
case.
Be
that as it may they argued that dismissal for want of prosecution is
discretionary matter hence they were not barred. They said this is
founded on the public policy of requirement for finality to
litigation. The court is therefore not obligated to dismiss the
principal case simply because Rule 236(3)(b) has been invoked. The
applicant must plead facts that show where the interests of justice
lie. The applicant must demonstrable proof that the respondents
intended to abandon the principal application. In the face of
evidence that the respondents intend to prosecute the matter and have
indeed prosecuted the matter by filling their answering affidavit,
filed heads of argument, applied for set down and the record has been
paginated, the application must be dismissed. Then the court is
enjoined to make any other order it deems fit in the interest of
justice which is to allow the principal application to be heard on
the merits.
The
test applicable in a matter of this nature is well established.
In
African
Star Diamonds (Pvt) Ltd v Muchanja & Ors
HH313-17 it was held:
“Rule
236 is one of the remedies available to a litigant who wishes to
overcome an abuse of court process by an uninterested applicant. The
position of the law is settled. In Scotfin
v Mtetwa
2001 (1) ZLR 249 at 250D-E CHINHENGO J stated as follows -
'Rule
236, as amended by section 7 of the High Court (Amendment) Rules 2000
(No.35), was intended to ensure the expeditious prosecution of
matters in the High Court. The Rule was deliberately designed to
ensure that the court may dismiss an application if the principal
litigant does not prosecute the case with due expedition. The Rule
gives the judge a discretion either to dismiss the matter or to make
such other order as he may consider to be appropriate in the
circumstances.
I
think however the overriding consideration for the judge is to
exercise his or her discretion in such a manner as would give effect
to the intention of the law maker. The primary intention of the law
maker, as I have stated to be, is to ensure that matters brought to
the court are dealt with, with due expedition.
The
order in which the judge may issue, if it is one of dismissal, is in
effect a default judgment.
But
in considering the application the judge can only make an order other
than a dismissal if the respondent has opposed the application and
shown good cause why the application should not be dismissed.'
See
also Munyikwa
v Jiri
HH 338/15; Moon
v Moon
HB94-05; and Ndlovu
v Chigaazira
HB104-05.”
Further
in Melgund
Trading (Private) Limited v Chinyama & Partners
HH703-16 it was held as follows;
“An
application for dismissal of prosecution brought in terms of Rule
236(3)(b) assists in putting to an end to proceedings that are
instituted and not attentively followed up.
There
is a huge backlog of applications in the court. The situation is
compounded by litigants who file applications and neglect to pursue
them. Rule 236 is a suitable mechanism to assist in case management.
A
litigant who has failed to pursue his application is required to
explain his failure to prosecute his application timeously.
The
approach of the court in applications for dismissal for want of
prosecution was stated in Karengwa
v Mpofu
HB628-15 as follows:
'The
court usually looks at the reasons for failing to act timeously.
Where failure to act is the result of an utter disregard of the rules
of the court and prescribed time limits, the courts are extremely
reluctant to give any further indulgence to the defaulting party.'
See
also Sibongile
Ndlovu v Guardforce Investments (Pvt) Ltd
HB03-14.
An
applicant bringing an application for dismissal for want of
prosecution is required to show that there has been a failure to take
necessary steps to bring a claim to finality in terms of the rules
and secondly that the delay is inexcusable or that there is no
honest, satisfactory and reasonable explanation for the delay. The
burden on the respondent is simply to explain the delay. The conduct
of the respondent is also paramount. The court is required to
consider all relevant and surrounding circumstances of the case. The
court must explore the period of the delay complained against the
reasons and explanation for it, and consider the prejudice if any
caused to the other party.”
In
casu,
and in my view, after considering the circumstances of this matter,
particularly that the respondents have since filed their answering
affidavit, heads of argument and applied for set down which caused
both applications to be set down at almost the same time before
different judges, it is clear that the respondents intended to
prosecute their case.
The
respondents merely delayed to file their answering affidavit and
heads of argument. There was no utter disregard of the rules of
court. The reasons for the delay is reasonable. This is not a case
where the respondents did nothing at all until the application for
dismissal was made.
While
the court accepts that indeed the time limits were not met, Rule 236
is not mandatory. It gives the court a discretion which must be
exercised in the interest of justice and finality to litigation.
Rule
236(3)(b) says, and I repeat:
“Where
the respondent has filed a notice of opposition and an opposing
affidavit and, within one month thereafter, the applicant has neither
filed an answering affidavit nor set the matter down for hearing, the
respondent, on notice to the applicant, may either -
(a)
set
the matter down for hearing in terms of rule 223;
or
(b)
make a chamber application to dismiss the matter for want of
prosecution, and
the judge may order the matter to be dismissed with costs or make
other order on such terms as he thinks fit.” (the
underlining is mine)
The
applicants in this application had two options, either to set the
matter down themselves for hearing in terms of Rule 223 or to apply
for discharge. They decided to apply for discharge.
On
the other hand the judge is given a discretion to either order a
discharge or make other order on such terms as he thinks fit.
This
court therefore, after considering the circumstances of the case, the
reasons for the delay, and the fact that both applications are ready
for argument at almost the same time, decided to order that the
application for dismissal for want of prosecution be dismissed and
that the main matter be heard on the merits.
SHOULD
MAIN MATTER BE DISMISSED IN TERMS OF ORDER 11 RULE 75(1) OF THE
RULES?
After
the dismissal of their exception in HC7214/17 the Makandiwas pleaded
to the main case and filed this application for summary dismissal of
the principal case as being frivolous and vexatious in terms of Order
11 Rule 75(1) of the High Court Rules, 1971 (the rules).
The
principal case contained the six claims brought against them by the
Mashangwas as outline above. I shall endeavor to deal with each of
the claims where possible.
Suffice
to state at this stage that s 75 of the rules provide that:
“75
Application for dismissal of action
(1)
Where a defendant has filed his plea, he may make a court application
for the dismissal of the action on the ground that it is frivolous or
vexatious.
(2)
A court application in terms of subrule (1) shall be supported by
affidavit made by the defendant or a person who can swear positively
to the facts or averments set out therein, stating that in his belief
the action is frivolous or vexatious and setting out the grounds for
his belief.
(3)
A deponent may attach to his affidavit filed in terms of subrule (2)
documents which verify his belief that the action is frivolous or
vexatious.”
In
their supporting affidavits the Makandiwas prayed that the principal
case must accordingly be summarily dismissed pursuant to Rule 75(1),
and contended among other things that the action in the principal
case is not only both frivolous and vexatious, but also a
self–evident gross and contemptuous abuse of the process of this
court on the bases that -
“1.
The plaintiffs have deliberately pleaded and founded their purported
causes of action on deliberate and easily demonstrable falsehoods;
2.
Each of the six (6) claims suffers from predictable failure and so
groundless that no reasonable person could ever hope to obtain relief
therefrom;
3.
The principle case has not been brought with the bona fide intention
of obtaining relief;
4.
The proceedings have been brought with the sole and mala fide
intention of annoying and harassing us. It as such amounts to the
unmitigated abuse and contempt of this court and the process thereof;
and
5.
The principal case is inconsistent with reason and common sense and
as such unworthy of serious consideration.”
The
respondents (the Mashangwas) opposed the application. They took seven
points in
limine.
The points were that:
(1)
Matter passed in rem
judicatam;
(2)
Estopel;
(3)
Disputes of fact;
(4)
Unlawful reversal of order of proceedings;
(5)
Attempt to avoid the consequences of a valid acknowledgement;
(6)
Mala fides and abuse of court process; and
(7)
Provisions of rules not available to applicants.
On
the merits they contended among other things that Mr Makandiwa is a
common fraudster, a false prophet who has no relationship with God,
is a liar who lied about a lawyer called Tichaoma Mawere and many
other ills.
The
court will briefly look at the points in
limine
raised by the respondents.
(a)
MATTER PASSED IN REM JUDICATAM
The
contention by the respondents is that another court (MANGOTA J) has
already made a determination on the issue and the applicants have not
appealed against that determination. The applicants are effectively
asking a judge of this court to review a judgment issued by a judge
of parallel jurisdiction. They said this matter has passed in rem
judicatam
and the exercise of function by this court has already ceased.
What
the respondents are failing to understand is that MANGOTA J dealt
with an exception in terms of Order 21 Rule 137(1)(b) of the rules of
this Honourable Court wherein the complaint was that there was no
cause of action or that the particulars of claim were vague and
embarrassing and needed correction.
MANGOTA
J's
judgment did not relate to the facts. The judgment called the
respondents to plead to the merits.
In
City
of Harare v D & P Investments (Pvt) Ltd & Anor
1992 ZLR 254 (SC) the court said:
“An
exception is plainly an 'answer to the plaintiff's claim' or,
for that matter, to the defence raised. Its main purpose is to obtain
a speedy decision upon a point of law apparent on the face of the
pleading attacked and so settle the dispute in the most economical
manner by having the faulty pleading set aside.”
An
exception does not investigate the facts.
The
veracity of the facts was not before MANGOTA J.
The
current application is an application for summary dismissal of the
claim in terms of Order 11 Rule 75(1) of the rules of this Honourable
Court on the basis that the claims were frivolous and vexatious.
The
application does not raise the same issues as were before MANGOTA J.
Issues
before MANGOTA J were technical and preliminary legal objections
without going into the merits.
In
my view the requirements of both applications are totally different
though they involve the same parties.
It
does not mean a decision made under either of the Rules automatically
affects the other.
The
law makers in enacting the two Rules and in their wisdom were
cognizant of the different reliefs to be granted under each Rule. For
example the respondents were being asked to put values of the
prejudice in claims (5) and (6).
If
the respondents had complied and responded to the letter of complaint
written by the applicants in terms of Rule 140 of the rules this
matter probably could not have gone this far.
In
the current application the relief being sought is a summary
dismissal of the claims.
For
that reason it cannot be said this matter has passed in rem
judicatam
and the exercise of function by this court has already ceased.
While
the applicants may have appealed against the decision of MANGOTA J,
they were not barred from invoking Rule 75(1).
I
therefore dismiss this point in
limine.
(b)
ESTOPPEL
Likewise
I do not agree with the respondents submission that there is
something in the nature of an estoppel which precludes applicants
from seeking this kind of relief in light of the observations made by
MANGOTA J in his judgment.
The
basis of issue estoppel is an admission of facts or a failure to deny
the facts alleged in pleadings that deals with facts such as a plea
on the merits.
This
was not before MANGOTA J.
Any
remarks he may have made on the facts would be obiter dicta and of no
binding effect. It cannot therefore, be said that it is incompetent
for this application to be brought.
I
have already explained in full the differences in the plea of res
judicata raised above and I need not say more because these
objections are just but one thing: See Willowvale
Mazda Motor Industries (Pvt) Ltd v Sunshine Rent–A-Car (Pvt) Ltd
1996 (1) ZLR 415 (SC) and Galante
v Galante
(1) 2002 (1) 144 at 151A-G.
(c)
DISPUTES OF FACTS
The
general position is that the court must not decide cases on motion if
doing so would raise material disputes of fact incapable of
resolution on affidavits. Even where there is conflict the rule is
not absolute. See Zimbabwe
Bonded Fibreglass (Pvt) Ltd v Peech
1987
(2) ZLR 338 (SC) where GUBBAY JA (as he then was) said:
“It
is, I think, well established that in motion proceedings a court
should endeavor to resolve the dispute raised in affidavits without
the hearing of evidence. It must take a robust and common sense
approach and not an over fastidious one; always provided that it is
convinced that there is no real possibility of any resolution doing
an injustice to the other party concerned….”
In
casu
I think it is far-fetched that the court has no power to determine
with certainty whether or not, even on a balance of probabilities,
the kind of influence, psychological or demonic the applicants wield
on their followers with the result that those followers follow the
applicants teachings hook, line and sinker even if those teachings do
not derive from the Holy Book, the Bible which the applicants profess
to be led by or whether the applicants rely on the occult and
n'angas.
In
Jeremiah 14 verse 14 “The Gideons International” version it was
said -
“And
the Lord said to me: 'The prophets are prophesying lies in my name.
I did not send them, nor did I command them or speak to them. They
are prophesying to you a lying vision, worthless divination, and the
deceit of their own minds.'”
It
is therefore possible that some false prophesies may be made by fake
prophets. This the court may detect even from affidavits.
But
in an application of this nature what the applicants are expected to
do is to simply allege in affidavit forms and attach documents if any
to show why they believe that the claims are frivolous and vexatious.
In
short the applicants said that the facts as pleaded by the
respondents are false. The applicants attached evidence that the
facts are false.
The
respondents cannot allege a dispute of fact without pleading a
contrary position that is without saying that their facts are true
and that they indeed suffered loss and giving full particulars of
their position.
For
example, its factual that prophesies were made, it is factual that
the respondent owed ZB Bank and were owed monies, and it is factual
that the respondents acted on prophesies and representations, and
spent their monies and that they believed on these prophesies to be
genuine.
No
material disputes appear. I find no merit in this point in
limine
and I dismiss it.
(d)
UNLAWFUL REVERSAL OF ORDER OF PROCEEDINGS
The
rules of this court are clear. They provide that a defendant who has
pleaded to the plaintiff's claim may thereafter pray for the
dismissal of that claim as frivolous and vexatious.
In
my view there is no unlawful reversal of the order of proceedings.
The
defendant must simply swear in an affidavit positively to the grounds
of alleging that the claim is frivolous and vexatious and verifying
the facts. This is precisely what the respondents have done. As I
said this does not amount to a reversal of order of proceedings.
The
point in
limine
is accordingly dismissed.
(e)
ATTEMPT TO AVOID CONSEQUENCES OF VALID ACKNOWLEDGMENT
(f)
MALA FIDES AND ABUSE OF COURT PROCESS
(g)
PROVISIONS OF RULES NOT AVAILABLE TO APPLICANTS
I
will deal with these preliminary points at once.
The
respondents alleged that in a bid to arrest the matter after they
demanded the money they had given to Mr Makandiwa, Mr Makandiwa
undertook in writing that he was going to pay all sums as would have
been proved to have been offered in a letter marked “B”.
The
court was unable to see the veracity of such allegations because the
said letter was never attached to the opposing affidavit.
On
the mala
fide
and abuse of court process the respondents submitted that there are
sinister agendas which the applicants hope to pursue.
None
have been elaborated as a basis for bringing this application under
Rule 75(1) serve to say same would be exposed during cross
examination.
Lastly,
on the unavailability of provisions of the Rules to the applicants
the respondents relied again on the judgment of MANGOTA J which I
dealt with extensively above.
I
found no merit in such submissions and the points in
limine
are dismissed.
AD
MERITS
The
Makandiwas filed this application in terms of Rule 75(1) of the High
Court Rules 1971 for the summary dismissal of frivolous and vexatious
action proceedings instituted by the Mashangwas in an action pending
before this court under case number HC7214/17.
The
respondents made six claims.
Their
cause of action in claims 1-4 is said to fall into the delict of
fraud. The fifth claim is said to relate to the delict of injurious
falsehoods. The sixth claim has been held to fall under the delict of
injuria.
A
common thread runs through these claims.
They
plead that they were members of the third applicant, a Christian
Church founded by the first and second applicants. They further
allege that they either received prophesies or representations in
church or that certain injurious publications were made of and
concerning them or their business. Hence they claimed various sums
all aggregating to a staggering six and a half million United States
Dollars.
The
applicants pleaded to each of the six claims. They denied the
allegations.
Their
pleas were filed in contemplation of the present application for
dismissal.
The
applicants placed before the court a detailed verifying affidavit
that traversed and attached incontrovertible evidence which they said
exposed the falsity of the facts pleaded by the plaintiffs in their
declaration.
The
applicants, thereafter, filed the present application for the
dismissal of the suit as frivolous and vexatious.
The
application is strongly opposed by the respondents.
THE
LAW
Rule
75 of the rules of this Honourable court allows a defendant who has
pleaded to apply for the summary dismissal of the actions on the
grounds that it is vexatious.
The
defendants must, on notice of motion, positively swear to the facts
and verify their belief that the action is vexatious and deserving of
summary dismissal.
The
purpose of this procedure is the same as that of the procedure for
summary judgment or provisional sentence.
The
court, if satisfied, has the inherent jurisdiction to disallow and
dismiss proceedings that are frivolous or vexatious. See Ushewokunze
Housing Corporative Society Limited v Crest Breeders International
(Private) Limited
HH529-16; Rogers
v Rogers & Another
2008 (1) ZLR 330 at 337; and S
v Coopers & Others
1977 (3) SA 475 at 476C-E.
The
test to be applied can be and explained in no better words than those
of MAKARAU JP (as she then was) in Stationery
Box (Pvt) Ltd v Natcon (Pvt) Ltd & Anor
HH64-10 as follows:
“The
test to be applied in summary judgment applications is clear and
settled. The onus resting on a defendant resisting summary judgment
has been described as amongst the lightest that the rules of
procedure cast on the litigants. He does not have to prove his
defence. He must merely allege facts which, if he can succeed in
establishing them at the trial, would entitle him to succeed in his
defence.
The
defence so set up must, however, be plausible and bona fide.
Obviously
implied in this test, but oft overlooked by legal practitioners, is
that the defendant must raise a defence. The facts alleged must lead
to and establish a defence that meets the claim squarely. If the
facts that he alleges, fascinating as they may be and which he may
very well be able to prove at the trial of the matter, do not amount
to a defence at law, the defendant would not have discharged the onus
on him and summary judgment must be granted.
To
defend a claim arising out of a contract of sale, the purchaser must
attack either the existence of the agreement itself or the fact that
the goods sold were not delivered to him. If other defences are
raised, they must be raised explicitly. It is not the function of the
court to put words into the defendant's mouth and thereby establish
a possible defence on his behalf when the defendant fails to do so in
his opposing affidavit.”
In
the present case the respondents ultimately denied any liability to
the plaintiffs.
This
application, therefore, turns on the law of summary dismissal of
cases on the basis that they are frivolous and vexatious.
Order
11 Rule 75(1) which provides for this procedure states that the
defendant may make an application for the summary dismissal of the
case after filing of his plea on the grounds that it is frivolous and
vexatious.
My
sole duty is to determine whether or not the claims are frivolous and
vexatious.
CLAIM
ONE
In
claim one the Mashangwas alleged that in the year 2012 and in church
the Makandiwas fraudulently and misrepresented that anyone with a
bank debt or loan was to be cancelled as it was a season of
miraculous cancellation of debts.
The
essence of this claim is that the applicants having been informed
privately that the respondents were indebted to ZB Bank Limited in
the sum of $USD500,000.00 made representations well knowing same to
be false.
The
respondents were induced to believe the applicants more than anyone
else in the church and defaulted on the payment of their loan
resulting in their house being executed.
This
misrepresentation has been denied on the basis that the said property
had been sold by the respondents as early as February 2012 for
USD800,000.00 to Nemanji Family Trust represented by one Steward
Nyamushaya. Hence the claim was based on falsehoods meant to annoy,
vex and harass the applicants and without any bona fide intention of
obtaining relief.
Even
if it is true that such a representation was made in church it is
inconsistent with common sense and reason that God would
unconditionally cancel all the debts of every nature and description
and that congregates should immediately stop paying any loans that
they had even before the same had been cancelled, that congregates
should accordingly not engage their creditors, and that congregates
should ignore demands, court processes, judgments, notices of and
attachment and advertisements of sales in execution and must not take
any steps to safeguard their positions.
The
respondents from the papers are business people of undoubted and
unparalleled acumen. They knew very well that the debts if any, they
had incurred, they had done so in terms of positive law and not
ecclesiastical law.
Even
in the Holy Bible, King James Version, in Genesis 3 v 19, God advised
Adam in the following words:
“In
the sweat of thy face shalt thou eat bread, till thou return unto the
ground; for out of it was thou taken….”
“By
the sweat of your face you shall eat bread, till you return to the
ground, for out of it you were taken; for you are dust, and to dust
you shall return.”: The Gedeons International version supra.
In
vernacular language: 'uchadya
cheziya kusvikira murufu': this
is loosely translated to mean there is nothing for free and every man
shall work hard to achieve what he wanted until death and that God
would give them power and wisdom to achieve their goals and not just
expect miracles to happen on their own.
If
Makandiwa talked of season of miraculous cancellations of debts he
did not literally mean those with debts should go home and just sit
waiting for debts to be miraculously wiped without them doing
something about them.
The
law on misrepresentations in delict is settled. See Murray
v McLean
N.O. 1970 (1) SA 133 (R).
I
therefore find the first claim to be frivolous and vexatious and must
be summarily dismissed with the contempt it deserves in terms of
Order 11 Rule 75(1) of the Rules of this court.
CLAIM
TWO
The
allegations in claim two are that the applicants made representations
in church that a certain Tichaona Mawere was a great lawyer and that
he would not lose any case.
This
representation was denied by the applicants.
The
applicants alleged that the prophecy given concerned the Mawere's
exclusively to their family problems. It particularly related to
their legal skills at home in resolving their family disputes. The
applicant said so while counselling the Maweres not to do so. Never
was anyone told to engage Tichaona Mawere who was a great lawyer. The
applicants alleged they could not have said so given the fact that
the respondents had engaged one Tichaona Govere of Govere Law
Chambers to act for them on 20th
March 2013 on a contingent basis to prosecute the case against
McDowells in judgment number HH288-13 which was argued before TAKUVA
J on 23 July 2013 whose judgment was delivered on 2 September 2013.
If
at all something to that effect was said the respondents are not
saying they were directly told to engage Tichaona Mawere.
The
claim was contrived and perjured. In my view if indeed the applicants
said Tichaona Mawere was a great lawyer, or words to that effect they
did not specifically told the Mashangwas to hire him. They just
misconstrued the prophecy or sermon to their own prejudice.
It
is equally frivolous and vexatious that no relief could be obtained
from it. The claim deserves to be summarily dismissed.
CLAIM
THREE
Claim
Three is based on the fact that from year 2014 to 2016 the Mashangwas
were called on stage in church and were announced as successful
example in their Ministry (UFIC) and as a result they made direct
contributions to the church amounting to $1,100,000.00.
The
gravamen of this claim is that the respondents lost the sum of
USD$1,100,000.00 as a result of the representation made by the
applicant.
In
short they are saying if the applicant had not paraded them in church
as successful example in the Ministry they would not have made
contributions to the church.
Contributions
are generally known as tithes and offerings. Tithes and offerings are
biblical concepts recorded as early as the Book of Genesis. Tithes
and offerings are acts of worship that edifies the relationship
between the person who gives the offering and God. They are predicted
on the believer's faith and are not enforced. They are free will
offerings given in all the Christian Churches. Tithes and offerings
constitute 10% of the giver or offeror's income though in practice
not all believers give the exact 10%. Only in certain churches is the
10% enforced by forcing the followers to declare their incomes from
which the 10% is calculated.
If
the respondents allegation is true, which may be so given that they
are business people, then their income during the period in question
exceeded USD$11,000,000.00 and if they believed the representation
made by the applicants that they are a successful example in the
Ministry they willingly parted with an amount of USD1,100,000.00.
However,
what makes the claim frivolous and vexatious in my view, is the fact
that if ever the respondents parted with such kind of money inside
the third applicant, those were free will offerings not recoverable
from anyone unless the respondents wish to try the impossible and get
that from God the receiver of the offerings.
How
they hope to get a court to interpret scripture and say one reading
is preferable to another in the Holy Bible remains a mystery.
In
casu,
the respondents admitted in their pleadings that the tithes they gave
cannot be returned.
Having
made that admission in pleadings the admission thereof had fatal
consequences to their case. The admissions are conclusive proof of
the admitted fact and the respondents are at law precluded from
controverting it.
This
is our law. DD
Transport (Pvt) Ltd v Abbort
1988
(2) ZLR 92 (SC); Moresby–White
v Moresby White
1972 (3) SA 222 (RA).
This
claim like the others above is frivolous and vexatious and is
summarily dismissed.
CLAIM
FOUR
Claim
Four with the greatest of respect does not make sense, its vague and
embarrassing.
The
gravamen of the claim is that the respondents were paraded on stage
in church and shown to the other congregates as the chosen people by
God to have succeeded in their business. As a result they then
marketed the first applicants prophecies for the advancement of the
applicants interests and prophesies when in truth and fact this was
sheer misrepresentation and they lost USD2,000,000.00.
What
the respondents are saying is that when they were paraded in church
as the chosen people by God in church in actual fact they were not
chosen people by God. That when they were said to be successful in
their own business, (remember they were in fact business people) they
were really not successful people. That because of the praise made by
the applicants they went on their own way to market the applicants
prophesies using their own funds without being ordered to do so by
the applicants. They did so because they genuinely believed that they
were the chosen people by God. They in my view decided to show off
and lost USD2,000,000.00.
At
law they did not plead any cognizable or known cause of action.
This
is bad in law, and is frivolous and vexatious to then claim the sum
of USD2,000,000.00 from the applicants. If at all, this may fall
under volenti
non fit injuria
(he
who voluntarily exercises his will suffers no injury).
The
claim is therefore frivolous and vexatious and must be summarily
dismissed.
CLAIM
FIVE AS AMENDED
The
crux of this claim is that the applicants allegedly published
defamatory material against the respondents company that sells
perfumes to the extent that the company was forced to close.
The
defamation if at all was made it was made against the company and not
the respondents.
However,
the claim was denied by the applicants.
The
law is trite and settled that a company is at law a separate persona
that can sue for the wrongs committed against it or be sued for the
wrongs it commits. This is principle and cannot be deviated from. The
principle is that the award made thereto is the company's assets
and benefits and not the shareholders or directors.
The
respondents are directors and/or shareholders of the company in
question.
In
Zimbabwe
Electricity Supply Authority v Modus Publications (Pvt) Ltd
1996 (2) ZLR 256 (HC) the court said:
“Dealing
with the first ground, it is settled law that a trading corporation,
being in law a person distinct from its members and having therefore
a reputation of its own to maintain, can sue for a defamatory
statement which affects it in its trade, business or property whether
or not actual damage is proved. See McKerron The
Law of Delict
7ed at p181. See also Boka
Enterprises (Pvt) Ltd v Manatse & Anor
1989 (2) ZLR 117 (H).”
In
this claim the fact that the respondents are the alter
ego cannot
take their matter any further.
It
is therefore frivolous and vexatious as well as abusive for the
people that run the company to sue for wrongs allegedly committed
against the company in their names without even joining the company
to the proceedings other than to harass and annoy the applicants.
The
claim is equally and summarily dismissed in terms of Rule 75(1) of
the Rules of this Honourable Court.
CLAIM
SIX AS AMENDED
Lastly,
the crux of this claim is an allegation by the respondents to the
effect that the applicants violated their privacy when they published
information communicated to them in private on their Facebook page
“The Truth About Makandiwa”.
The
respondents claim a staggering USD500,000.00.
What
has not been controverted by the respondents is the fact that the
Facebook page in question does not belong to the applicants nor does
it represent the applicants views.
In
fact the Facebook page contains some information that denigrates the
first applicant. This fact from the papers is deemed admitted by the
respondents. See Rule 104 of the High Court Rules 1971.
Further,
the date, nature and extent of the material given to the first
applicant in private and confidence has not been pleaded but is said
to be certain information of a private nature, which the respondents
said they would say at the trial, rendered such pleadings defective
and under any circumstances did not find any cause of action.
This
is in variance with the law as stated in the case of International
Tobacco Co. of SA Ltd v Wollheim
1953
(2) SA 603 (A) at 613H where the court said:
“It
appears to be clear that the plaintiff in his declaration must set
out the words alleged to have been used and may not content himself
with giving their effect. It is for the court to decide what their
effect is.”
The
sixth claim is on the pleadings so patently groundless that the
respondents cannot ever hope to succeed in obtaining relief on hence
should be summarily dismissed as being frivolous and vexatious.
In
the result I make the following orders:
IT
IS ORDERED THAT:
1.
The Court Application filed by the Applicants under Case No.
HC4197/18 be and is hereby dismissed and the parties to argue the
main application under HC1774/18.
2.
The Court Application filed by the Applicants in HC1774/18 be and is
hereby granted.
3.
Each of the respondents six (6) claims as the plaintiffs against the
respondents as defendants in case number HC7214/17 is declared
frivolous and vexatious.
4.
Each of the six (6) claims aforesaid be and is hereby summarily
dismissed with costs at the legal practitioner-client scale.
Manase
and Manase,
applicants legal practitioners
Venturas
and Samukange,
respondents legal practitioners
