MUSAKWA
J: This is an application for a spoliation order pursuant to applicants'
conviction for contravening the Gazetted
Land (Consequential
Provisions) Act [Chapter 20:28].
Having been convicted and sentenced on 26th January 2010, they were
also ordered to vacate the land not later than 5.00 p.m on 27th
January 2010. The basis of the present application is that the applicants were
forcibly dispossessed of the land by first to sixth respondents.
It
is common cause that following their conviction by the Magistrates Court applicants sought a
stay of execution of the order of eviction pending the determination of the
appeal noted with the Supreme Court. The certificate of urgency in the present
application was prepared by Mr Drury.
Mr Drury also deposed to the founding
affidavit. In my view this is undesirable. Mr Drury states that he was authorized by the applicants. He may have
agreed to this arrangement as he had represented applicants in the criminal
trial. In addition there would be nothing wrong for a legal practitioner to
depose to an affidavit on behalf of a client as long as he positively swears to
the facts. However, it is apparent from Mr Drury's
affidavit that a lot of the facts are largely hearsay as he attributes them to
his clients. On the other hand some of the averments in the supporting
affidavits do not confirm what is in the founding affidavit.
It
is also apparent that the present application seems to have been hurriedly
prepared at the expense of conforming to the requirements of spoliation. It is
claimed that a mob armed with sticks, iron bars and other weapons summarily
invaded Stillfontein farm. In paragraph 40 of the founding affidavit Mr Drury states that-
“Stilfontein
has been summarily invaded by youths, probably under the direction of E.
Porusingazi the 2nd Respondent.”
There
is nowhere else in the founding affidavit that the acts of spoliation are
specifically linked to any of the respondents. The supporting affidavits are
hardly helpful. The supporting affidavit by Mivhael Charles Jahme only alleges
the invasion of Silverton Estates by third respondent on the strength of an
offer letter. However, there is no similar averment by Mr Drury. The rest of the affidavit either contains hearsay or deals
with other matters that do not specifically put the respondents in the picture.
The
same applies to the supporting affidavit of Algernon Tracy Taffs. The affidavit
only makes reference to fifth respondent and does not detail the acts done by
the other respondents. Even then, like the preceding affidavit it does not
confirm what was witnessed by Mr Drury.
It
is quite clear that an element of spoliation has not been met. Although it is
stated that unlawful deprivation of possession has occurred, there is no proof
of the identity of the perpetrators. Such evidence if any is based on
generalizations and hearsay.
There
is the added handicap in respect of the citation of the second respondent. Mr Drury cited the second respondent by his
name, national registration number as well as postal address. It is common
cause that these particulars relate to Enos Porusingazi, the beneficiary of an
offer letter relating to a portion of Stillfontein farm.
It
is also not in dispute that the application and notice of set down was served
at Stillfontein estates. As it turned out the party who attended court as
second respondent contends that he has not despoiled the applicants. Although
he is the holder of an offer letter, this second respondent contends that he is
waiting for due process to take its course before he moves onto the portion of
land allocated to him. Mr Uriri for
applicants sought to explain that according to his instructions the person who
exhibited the offer letter to applicants is the father of Enos Porusingazi and
not the party who attended court.
There
is no doubt then that the second respondent was not properly cited. Mr Uriri submitted that there would be no
prejudice if the application is granted notwithstanding this anomaly. The
question that immediately arises is which second respondent will have to comply
with the order. Court orders are meant to be obeyed and there are consequences
that follow non-compliance. I am satisfied that second respondent is not before
the court by reason of poor citation.
Although
the third to sixth respondents were in default I was not moved to grant the
application against them. Suffice to note that the case against them is plagued
with the same material inadequacies as that against second respondent. It
therefore means that the application fails. Mr Ndudzo for second respondent sought costs de bonis propiis against Mr Drury
on account of his objectionable conduct. He submitted that he even wrote a
letter to Mr Drury in which he
pointed out the deficiencies in the application. In the letter he even suggested
that the application against his client be withdrawn failing which he would
seek costs de bonis propiis against Mr Drury. This went unheeded.
Although
in the course of hearing argument on this issue I had pointed out the propriety
of awarding costs against Mr Drury
without giving him an opportunity to be heard, on further reflection it is clear
that he had such opportunity but failed to exercise it. This is evidenced by
the letter addressed to him dated 11 February 2010.
Costs
de bonis propiis are granted against
a legal practitioner in exceptional circumstances. As was stated by EBRAHIM J.A
in the case of Matamisa v Mutare City
Council 1998 (2) ZLR 439 (SC), at 447-
“Costs
de bonis propriis will be awarded against a lawyer as an exceptional measure
and in order to penalise him for the conduct of the case where it has been
conducted in a manner involving neglect or impropriety by himself: Omarshah v
Karasa 1996 (1) ZLR 584 (H) at 591 per GILLESPIE J. Such costs E are
only awarded in reasonably grave circumstances. Generally speaking, dishonesty,
mala fides wilfulness or professional negligence of a high degree fall into
this category: Techniquip (Pvt) Ltd v Allan Cameron Engineering (Pvt) Ltd 1994
(1) ZLR 246 (S) at 248G per GUBBAY CJ.”
I
am further fortified in my decision by the case of Masama v Borehole Drilling (Pvt) Ltd. 1993 (1) ZLR 116 SC. In that case the appellant's legal
practitioner had failed to attend a pre-trial conference. This was despite the
fact that respondent's legal practitioner had informed him in writing and had
also attached a copy of the notice of set down. Default judgment was then
granted as a result. In seeking rescission of judgment appellant's legal had
filed a supporting affidavit in which he sought to explain circumstances
surrounding the default. On the issue of costs GUBBAY C.J had this to say at pp
120-121-
“With
regard to costs I take the view that although the appeal was brought in the
name of his client it is Mr Mutezo who, in reality, is seeking relief from this
court - in all probability to avoid the ire of the appellant and a prospective
claim for damages for professional negligence. As he is shown to have been
negligent in a serious degree in the handling of the appellant's litigation
there seems to me to be every justification to "crack the whip" and
order him to pay the costs of the appeal de bonis propriis. See Immelman v
Loubser & Anor, supra, at 825B-D; Machumela v Santam Insurance Co Ltd 1977
(1) SA 660 (A) at 664B; Waar v Louw 1977 (3) SA 297 (O) at 304C-E; Webb &
Ors v Botha 1980 (3) SA 666 (N) at 673B-F.
H
There
are, in addition, many precedents where a court has directed that a legal
practitioner should not be permitted to recover costs from his client. See,
Machumela v Santam Insurance Co Ltd supra at 664B-D; Coley Hall (Pvt) Ltd v
Sinclair Builders 1972 (2) RLR 101 (G) at 104E; Ruzvidzo v Kanhanga S-70-91
(unreported); and the further instances cited in Jacobs and Ehlers Law of
Attorneys Costs and Taxation Thereof at pp 48-49.”
This
is the same approach I have adopted with regard to the issue of costs. Accordingly
it is ordered that-
(a) The
application be and is hereby dismissed.
(b) The
costs of this application be borne on the legal practitioner and client scale
by Mr Drury of Gollop and Blank legal
practitioners de bonis propiis.
(c) Gollop
and Blank legal practitioners shall not recover from applicants in this matter
any costs and if any costs or disbursements have already been paid, they be
refunded to the applicants immediately.
(d) The
Registrar is directed to serve a copy of this judgment on the Secretary of the
Law Society.
Gollop & Blank, applicants' legal practitioners
Civil Division of Attorney-General's Office, first, sixth,
seventh, eighth, ninth and tenth respondents' legal practitioners
Mutamangira
& Associates,
second respondent's legal practitioners
