Automatic Bar re: Approach, Notice to Plead, Notice of Intention to Bar, Upliftment of Bar and the Dies Induciae

HH185-14 : THE WATTLE COMPANY LTD vs JOHN GADZIKWA and THE DEPUTY SHERIFF
Ruled By: TAGU J

The facts and historical background to this application is that the first respondent got a default judgment against the applicant on 27 February 2014 in case HC7394 /13. The applicant's legal practitioner was present. The applicant's legal practitioner was, on that day, alerted to the fact that a bar was operational against his client by ...

HB152-11 : DERICK MASEKO vs MPIKELELO NGANEZWE KHUMALO and THE DEPUTY SHERIFF
Ruled By: KAMOCHA J

In any event, the legal practitioner had not even filed the respondent's heads of argument as required by Rule 238(2a) the Rules of Court and is accordingly barred in terms of Rule 238(2b) of the Rules of Court which provides that: “(2b) Where heads of argument that are required to be filed in terms of ...

HH272-14 : TREVIGLO SERVICES trading as TADA TEAK AND IRON vs EMMERSON GWATIDZO
Ruled By: CHIGUMBA J

The respondent raised a preliminary point that the applicant was barred in terms of the Rules of this Court because it failed to file its opposing affidavit to the application for registration of the arbitral award within ten days of the date of service of the application on it, resulting in an automatic bar ...

HH285-14 : M vs M
Ruled By: CHITAKUNYE J

On the date of the hearing, a point in limine, to the effect that the respondent was barred for not filing heads of arguments in time, was raised by the applicant's counsel after which I granted the application and indicated that my written reasons will follow. These are the reasons. The applicant and the respondent ...

These are the reasons.

The applicant and the respondent are former husband and wife. They were granted a decree of divorce by this court on 26 January 2012 in case number HH51-12. The court order provided for, inter alia, a division of assets of the spouses. Clause 3 in that regard provided that:-

“3. The immovable property registered in the plaintiff's name, known as 999G, is hereby distributed by awarding 60% share to the plaintiff and 40% share to the defendant.

3.1. The property shall be valued by a registered estate agent nominated by both parties within 30 days of this order.

3.2. In the event that the parties fail to agree on an estate agent, the Registrar shall appoint an estate agent from his list to conduct an evaluation of the property upon request by either party.

3.3. The estate agent shall submit his or her report to the parties within 15 days of his or her appointment.

3.4. The cost of evaluation shall be shared between the parties with the plaintiff paying 60% and the defendant 40%.

3.5. The plaintiff is hereby granted the right to buy out the defendant's 40% share within 90 days of the date of evaluation of the property.

3.6. In the event that the plaintiff fails to buy out the defendant in terms of paragraph 3.5 above, the property shall be sold at the best advantage by the Deputy Sheriff and the net proceeds shared between the parties, with the plaintiff awarded 60%share and the defendant 40% share as per para (3) above…,.”

The applicant appealed against one of the aspects of the judgement. The appeal was later withdrawn.

In the meantime, the parties engaged in some arrangement pertaining to the enforcement of the judgement.

On 27 May 2013, the applicant launched this application seeking an order to the effect that he has fully complied with the provisions of paragraph 3.5 of Case No. HH51-12 and so the respondent should vacate Stand 999G, Harare.

The respondent opposed the application.

The applicant then filed his heads of argument on 18 July 2013. The heads of arguments were served on the respondent's legal practitioners on the same date. In terms of Rule 238(2a) of the High Court Rules, the respondent's heads of arguments were supposed to be filed within 10 days from 18 July 2013. The respondent purported to file his heads of argument on 19 September 2013.On the date of hearing, the applicant's counsel raised a point in limine arising from the late filing of the respondent's heads of arguments. The respondent's counsel had no plausible explanation for the obvious delay and failure to apply for the upliftment of the bar before the issue had been raised by the applicant's counsel. It was then that the respondent's legal practitioner sought to apply for a postponement of the hearing to enable the respondent to file an application for condonation. That application was opposed.

After hearing both counsel, I dismissed the application for postponement. I was of the view that whenever a party seeks a postponement, a party must advance reasonable grounds for the application.

In casu, the respondent's counsel seemed oblivious of the fact that his heads of argument were filed out of time. When that fact was brought to his attention, he attempted to say the heads were not filed out of time in view of the vacation. However, a careful analysis of the matter shows that the applicant's heads, having been served on the respondent on 18 July 2013, the respondent ought to have filed his heads of arguments by 2 August 2013, which was within the same term. Instead, the respondent's heads were only filed on 19 September 2013. This was weeks after the third term had opened. The impression created is that the respondent's legal practitioner, for a reason best known to himself, had deliberately not applied his mind to the timelines for filing heads of arguments and just thought that anytime would do. The Rules are very clear on this. In that regard, Ruler 238(2) states that:-

“Where an application…, has been set down for hearing in terms of sub rule(2) of Rule 223, and any respondent is to be represented at the hearing by a legal practitioner, the legal practitioner shall file with the Registrar, in accordance with sub rule (2a), heads of argument clearly outlining the submissions relied upon by him…,.”

Subrule (2a) referred to therein states that: -

“Heads of argument referred to in sub rule (2) shall be filed by the respondent's legal practitioner not more than ten days after heads of argument of the applicant…, were delivered to the respondent in terms of sub rule(1)…,.”

Where the heads of argument are not filed in time, the respondent is barred. To this effect, subrule (2b) of the same Rule states that:-

“Where heads of argument that are required to be filed in terms of subrule (2) are not filed within the period specified in subrule (2a), the respondent concerned shall be barred and the court or judge may deal with the matter on the merits or direct that it be set down for hearing on the unopposed roll.”

Where a party is barred, the normal route to take is to apply for the upliftment of the bar. In such an application, a party must advance reasonable explanation for failure to abide by the Rules. The explanation must be bona fide.

In casu, the respondent's legal practitioner had no such explanation, and, instead, opted to apply for a postponement. As already alluded to above, the respondent's counsel seemed not alive to the breach hence could not advance any good reasons for the failure to comply with the Rules yet the failure to comply was so blatant. The applicant's heads of argument were served on the respondent's legal practitioners on 18 July 2013 and the respondent purported to file his heads of argument on 19 September 2013. Those heads of argument ought to have been filed, at the latest, by 2 August 2013 which was still during the second term of the High Court Calender. Having failed to do so within the ten days, it took the respondent about two weeks after the opening of the third term to file his heads of argument. Even then, the respondent's legal practitioner came ill-prepared to address the issue of late filing of the heads of argument. In the circumstances, I dismissed the application for postponement and I proceeded to consider the matter and grant the applicant's application as the respondent was barred.

Accordingly, I granted an order that:-

1. The applicant has fully complied with the provisions of paragraph 3.5 of Case No. HC51/2012.

2. The respondent vacate the premises known as Stand 999G Harare within seven days of the granting of this order.

3. In the event that the respondent does not vacate the said premises as provided for in paragrpah 2 of this order that she be responsible for all owner's charges in respect of the property set out in paragraph 2 here above until she vacates the said premises.

4. That the respondent services the mortgage loan with CABS for as long as she remains on the premises.

5. …,.

6. That the respondent pays the costs of this application on an attorney and client scale.

HH304-14 : IRENE NDAMBA vs HU ZHANG
Ruled By: ZHOU J

The applicant contests the procedure by which she was barred on the ground that the notice of intention to bar was not endorsed as is required by Rule 81. The applicant's contention in that respect is not properly founded. The copy of the notice of intention to bar, attached to the respondent's opposing affidavit, as annexure ...

HB21-14 : JONA NDALAMA vs COMMISSIONER GENERAL OF POLICE and CHIEF SUPERINTENDENT SIGAUKE and CO-MINISTER OF HOME AFFAIRS
Ruled By: MOYO J

The respondents could not be heard in court, although present, as no heads of argument had been filed by the respondents.

Appealed
SC30-16 : STAND FIVE FOUR NOUGHT (PRIVATE) LIMITED vs SALZMAN ET CIE SA
Ruled By: ZIYAMBI JA, GOWORA JA and UCHENA JA

WHETHER OR NOT THE RESPONDENT WAS BARRED Counsel for the appellant submitted that the respondent filed its notice of opposition when it had already been barred for failing to file it by 30 September 2014. In terms of the short form annexed to the court Order published through the Government Gazette and the Herald, any notice ...

WHETHER OR NOT THE RESPONDENT WAS BARRED

Counsel for the appellant submitted that the respondent filed its notice of opposition when it had already been barred for failing to file it by 30 September 2014.

In terms of the short form annexed to the court Order published through the Government Gazette and the Herald, any notice of opposition should have been filed by 30 September 2014. Paragraph 3 of the provisional judicial management order reads as follows:-

“This order shall be published once in the Zimbabwe Government Gazette and once in the Herald newspaper. Publication shall be in the short form annexed to this order.”…,.

Counsel for the respondent submitted that the provisional order granted by the Court a quo was not in Form 29D as provided by Rule 247(3) of the High Court Rules 1971, and therefore the respondent was not barred as the dies induciae in terms of paragraph 1 of the provisional judicial management order was 26 November 2014. Paragraph 1 of the provisional judicial management order reads as follows:-

“Any interested party shall show cause to this Court sitting in Harare on the 26^th day of November 2014, why an order should not be made in the following terms…,. “…,.

A correct reading of the provisional judicial management order indicates 26 November 2014 as the date of hearing and 30 September 2014 as the date by which opposing papers should have been filed.

There seems to be a misconception that 30 September 2014 appears in the appellant's shortened form of the provisional order and not in the court's order. I say it is a misconception because the court, in paragraph 3, specifically said;

“Publication shall be in the short form annexed to this Order.”

This means the annexure became part of the court's Order.

The Court, therefore, irrespective of whether or not Rule 247(3) was complied with, ordered that any opposing papers should be filled by 30 September 2014. The respondent filed its opposing papers on 20 November 2014, when it had already been barred. The respondent's papers were therefore not properly before the court a quo.

Its submissions through them should not have been relied upon by the court a quo.

View Appeal
HH767-15 : IN RE: STAND FIVE FOUR NOUGHT (PVT) LTD (Under Provisional Judicial Management) FOR AN ORDER FOR FINAL JUDICIAL MANAGEMENT vs x
Ruled By: MATHONSI J

The applicant also objected to the opposing papers on the basis that they were filed out of time. This is because the provisional order for judicial management was published in the Government Gazette and the Herald on 16 October 2014 and when the notice of opposition was filed, on 20 November 2014, it was out ...

The applicant also objected to the opposing papers on the basis that they were filed out of time.

This is because the provisional order for judicial management was published in the Government Gazette and the Herald on 16 October 2014 and when the notice of opposition was filed, on 20 November 2014, it was out of time. Counsel for the applicant also submitted, without evidence to support that submission and virtually leading evidence from the bar, that the provisional order was also attached to a letter dated 16 September 2014 addressed to Mtetwa and Nyambirai, then representing the creditor. He said that correspondence can be produced at the hearing should the need arise. For that reason, the 10 days during which to file opposition expired on 30 September 2014 meaning that, the creditor is barred as the papers were filed 50 days out of time.

Appearing to contradict himself, he also submitted that the opposing papers should have been filed by 30 October 2014 but were filed 20 days out of time.

I agree with counsel for the creditor that the issue of service of the provisional order for judicial management is governed by Rule 247(3)(c) of the High Court of Zimbabwe Rules, 1971 which provides:

“Where a provisional order relates to the sequestration of an estate, the winding up of a company or any other matter in which interested parties generally are to be given an opportunity to oppose the granting of a final order, the provisional order shall specify the manner in which the provisional order is to be published, and, where appropriate, the persons on whom copies of the provisional order, together with all supporting documents are to be served.”

Unfortunately, the provisional judicial management order, whose confirmation is being contested, is not in the usual Form 29D of the Rules of Court. So, in determining whether the creditor is barred, it is to that Order that one must find the answer. The relevant provisions of that Order are the first sentence of paragraph 1 and paragraphs 3 and 4, which I reproduce hereunder verbatim:

IT IS ORDERED THAT:

Any interested party shall show cause to this court sitting in Harare on this 26^th day of November 2014, on why an order should not be made in the following terms…,.

2…,.

3. This order shall be published once in the Zimbabwe Government Gazette and once in the Herald newspaper. Publication shall be in the short form annexed to this order.

4. Any person intending to oppose or support the application on the return day of this order shall:-

(a) Give due notice to the applicant at care of its legal practitioners, Messrs G. N. Mlotshwa & Company of Titan Law Chambers, 8^th Floor Gold Bridge, Eastgate, Harare.

(b) Serve on the applicant a copy of any affidavit which he files with the Registrar of the High Court.”

That is all that the order directs a person desirous of opposing the confirmation of the order to do, to show cause why the final order should not be made on the return date, to give notice to the applicant through its legal practitioners at the given address and to serve a copy of any opposing affidavit filed on the applicant.

Nowhere in that Order is a dies inducae created.

Such is only referred to in the publication that was published in the Herald and Government Gazette which called upon interested parties to file opposition by 30 October 2014 and serve it upon the applicant's legal practitioners. The proof of publication is only attached to the answering affidavit.

Counsel for the applicant conceded that there is nothing on the papers to suggest that the publication's parentage can be found in the court order….,.

I therefore come to the inevitable conclusion that there was no dies inducae imposed by the provisional order which would result in the creditor being barred as it was only imposed by a notice of publication which was prepared in complete disregard of Rule 247(3)(c) requiring that the creditor be specified and served with both the order and the application. The Order itself may be said to have been incomplete by reason of failure to direct service upon a known sole creditor mentioned in the application.

Even if I am wrong in that finding, I would still not uphold the point in limine for another reason, namely, that it is trite that a creditor is entitled to appear on the return day of a provisional order for a winding up or judicial management and show cause why the order should not be confirmed. That is the spirit of Rule 247(3)(a) of which requires the provisional order to be in Form 29D (it was not) while Rule 247(3)(b) requires it to specify the date and place at which the court will hear argument on confirmation.

I therefore dismiss that point in limine as well.

SC46-17 : ANDREW MAGARASADZA and 34 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LTD t/a FREDA REBECCA GOLD MINE and ASSOCIATED MINE WORKERS UNION OF ZIMBABWE
Ruled By: MAVANGIRA JA

In chambers in terms of Rule 5 of the Rules of the Supreme Court, 1964.For the sake of completeness, the following observation is noted:Despite being served with all the relevant papers, the second respondent did not file any papers in response to this application. It was therefore barred. It also ...

HH480-15 : SENELANE NDLOVU vs CHAPMAN ANOPA MUFUDZI MARUFU
Ruled By: MWAYERA J

Upon hearing the opposed application, the plaintiff sought for the upliftment of bar to file heads of arguments which were not timeously filed. The defendant opposed the application. It emerged in that preliminary hearing that the plaintiff inadvently omitted to file heads for the present case. It was agreed by both counsel for the ...

Appealed
HH357-16 : ROBSON MAKONI vs CBZ BANK LIMITED
Ruled By: CHITAKUNYE J

It is pertinent to note that a Notice to Plead and Intention to Bar is clear on the timeframe for the defendant to act failure of which a bar will be entered.

HHH32-15 : PREDOM INVESTMENTS (PVT) LIMITED and CHARLES KATEWERA and PARTSON JUNGWE vs THE STATE
Ruled By: BHUNU J and TAGU J

At the hearing of the appeal, counsel for the appellants applied that the respondent be barred from making submissions on the basis that the respondent had failed to file his heads of argument timeously. The respondent's heads were filed out of time and not in compliance with the Rules of this Honourable Court. ...

HH57-16 : MOSES PIKAI SHONIWA vs NYUKWA SHONIWA (NEE MAZENGEZA)
Ruled By: CHITAPI J

When the defendant was served with summons, she did not enter appearance to defend. The plaintiff followed up on the non-appearance to defend by filing and serving the defendant with a “Notice to Plead and Intention to Bar.” I do not know why the plaintiff refers to the notice as 'Notice to Plead and Intention to Bar' because, in ...

HH546-15 : ANNIE MADZARA vs STANBIC BANK ZIMBABWE LTD and CLEVER MADZARA and THE SHERIFF OF ZIMBABWE and THE REGISTRAR OF DEEDS and THE ATTORNEY GENERAL OF ZIMBABWE
Ruled By: TSANGA J

The second to fifth respondents did not submit any papers and will be bound by the decision of this court.

HH95-15 : LINDA MUDAWADZURI vs KINGDOM BANK AFRICA LTD and REAL DISTRIBUTORS (PVT) LTD and KUNYETU LAMBERT FAMILY TRUST and DEPUTY SHERIFF
Ruled By: CHATUKUTA J

The second and the fourth respondents were in default.

SC68-17 : JUDICIAL SERVICE COMMISSION vs ROMEO TAOMBERA ZIBANI and OTHERS
Ruled By: HLATSHWAYO JA, PATEL JA and ZIYAMBI AJA

The first respondent has declined to file his heads of argument in the matter….,. Following his failure to do so timeously, he was clearly barred in these proceedings and remained barred until such time as he sought, and obtained, the upliftment of that bar. Undaunted by the obvious absence of any right of audience, the first respondent's counsel had ...

CC07-18 : LIBERAL DEMOCRATS and REVOLUTIONARY FREEDOM FIGHTERS and VUSUMUZI SIBANDA and LINDA MASARIRA and BONGANI NYATHI vs PRESIDENT OF THE REPUBLIC OF ZIMBABWE, E.D. MNANGAGWA N.O. and OTHERS
Ruled By: MALABA CJ

On the day of the hearing of the matter, all the applicants were in default. There was also no appearance for the first, second, third and fifth respondents.

CC42-18 : NELSON CHAMISA vs EMMERSON DAMBUDZO MNANGAGWA and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC, UCHENA JCC and MAKONI JCC

In terms of section 336(2) of the Constitution of Zimbabwe: “Subject to this Constitution, whenever the time for doing anything in terms of this Constitution ends or falls on a Saturday, Sunday or public holiday, the time extends to and the thing may be done on the next day that is not a Saturday, Sunday or public ...

Appealed
HB114-16 : J.C. CONOLLY AND SONS (PVT) LTD vs R. C. NDHLUKULA and THE MINISTER OF LANDS AND RURAL RESETTLEMENT
Ruled By: MUSAKWA J

At the commencement of the hearing, counsel for the applicant pointed out that the second respondent was not properly before the court. This is because, following the granting of the provisional order, no opposing papers were filed on behalf of the second respondent. Counsel for the second respondent initially claimed that the notice of set-down they received ...

HH115-15 : MEGALINK INVESTMENTS vs OWEN MURIMBI and THERESA MUSINA and AFRICAN CENTURY LIMITED and SHERIFF, HIGH COURT OF ZIMBABWE
Ruled By: TSANGA J

This is an urgent application for stay of execution by the Sherriff of certain lease equipment that the applicants are leasing from the respondents and for which they are said to have defaulted payment. The execution is on the strength of a default judgment obtained by the respondents on 10 September 2014 in terms of which ...

The execution is on the strength of a default judgment obtained by the respondents on 10 September 2014 in terms of which they were to be paid a sum of US$88,225=14, plus interest thereon at 25 percent per annum as well as payment of costs of suit on a legal practitioner client scale. The judgment also declared specified equipment as executable. The first applicant is a company whilst the second applicant and third applicants are its Directors….,.

In establishing a case for stay of execution, the applicants emphasised that the default judgment was improperly obtained since they had, in fact, filed their plea at the time when it was obtained - albeit out of time.

The applicants do not dispute that a Notice to Plead and Intention to Bar was served on them on 22 July and served on their practitioners on 23 July. It is their contention that on 28 July they had attended at their lawyer's office and a copy of the plea had been given to a clerk in the employ of their legal practitioner to file and serve on the Registrar and thereafter the parties. However, for reasons which they state they are unaware of, this was not done and the plea was only finally served on 20 August. It is from that date onwards that they argue there was an awareness of their plea. An affidavit said to be Annexure H stating what happened was however not among the attachments in the application filed and placed before me.

The applicants' position is that it is wrong for the other party to proceed to snatch a judgement where an intention to defend has been signalled. They averred, in their affidavit, that it was the duty of the respondents to ask them to regularise their plea with a view to having the matter proceed to trial rather than to go on to snatch a judgment as they did on 10 September 2014….,.

The respondents, on the other hand, strongly oppose the application as lacking in both urgency and merit….,.

More importantly, the respondents argued that the filing of the plea was a non-event since the applicants were already barred and the pleading could not have been accepted whilst the bar was operational. As such it is their standpoint that the default judgement was properly obtained….,.Their prayer is that the application should be dismissed in its entirety.

Disposition

Since this urgent application emanates from a default judgment, the issue, in my view, in deciding whether the order sought to provisionally stay execution should be granted, rests fundamentally on whether the applicants have a prima facie case that it was improperly obtained.

It is not in dispute that they were served with a Notice to Plead and Intention to Bar in accordance with Rule 84 of the High Court Rules, 1971. A defendant who fails to deliver his plea within five (5) days of the delivery of the Notice to Plead and Intention to Bar will be barred. The cross-referenced file to this matter, HC4370/14, shows that the Registrar confirmed, on 31 July, that the applicants were duly barred as required by the Rules. See Chichi Clothing Mfrs (Pvt) Ltd v CBZ & Ors 2006 (2) ZLR 80. Therefore, once the applicants were barred it was perfectly within the rights of the respondents to apply for a default judgment. This is what they proceeded to do.

The argument by the applicants that once they had filed their plea, albeit out of time, for reasons which had nothing to do with them, it was the duty of the respondents to ask them to regularise their faulty plea, cannot, in my view, stand. Rule 84(1) is clear on the procedure for the upliftment of a bar. It states that:

“Rule 84

(1) A party who has been barred may -

(a) Make a chamber application to remove the bar.

(b) Make an oral application at the hearing, if any, of the action or suit concerned and the judge or court may allow the application on such terms as to costs and otherwise as he or it, as the case may be thinks fit.”

At the time that the plea was filed, the applicants' legal practitioners were fully aware that they were out of time and had been barred. It was also irregular for the Registrar to accept, for filing, any pleading from the barred party since the bar was in operation. See Rule 82(a).

The procedure that was open to the applicants' practitioners, in light of this knowledge, was not to file a plea in the hope that business would continue as usual, but to make a chamber application for the upliftment of the bar, or, alternatively, to make an oral application at the hearing. Since the lawyers had no knowledge that the matter had been set down for hearing as a default judgment, the most sensible root at the time they sought to file their plea would have been to make a chamber application first for the upliftment of the bar which they were fully aware of. The court's preference, in any event, leans towards written chamber applications as opposed to oral submissions. See GMB v Muchero 2008 ZLR 216 S).

The onus was on them to apply for the removal of the bar.

The respondents, as plaintiffs, were entitled to apply for a default judgement even if there were indications the defendant intended to defend the matter See HPP Studios v Associated Newspapers of Zimbabwe (Pvt) Ltd 2000 (1) ZLR 318 (H).

The applicants' position is founded on an inexcusable disregard of the Rules on the part of their practitioners. It would make a mockery of the rules of procedure, for both barring and upliftment of the bar, if the courts are simply to discount the rules on the basis that a plea was subsequently filed and that rules of courtesy should thereafter kick in. The important point is that procedures do exist for the upliftment of a bar which would have opened the doorway for them to file a late plea. This was not utilised in this case. There is nothing in the Rules that suggests that it was the duty of the respondents to take responsibility to get the applicants, once they had been barred, to put their house in order for the matter to go on trial….,.

The applicants argument that they have a prima facie defence with high prospects of success in their application for rescission is not supported by the evidence placed before me for this urgent hearing.

In light of all the above arguments, I am unable to find any compelling grounds for granting the applicants a stay of execution….,.

Accordingly, the application lacks merit and is accordingly dismissed with costs.

View Appeal
HH768-15 : NAVAL PHASE FARMING PL and BEACH FARMS PL and TAWANDA NYAMBIRAI vs MINISTER OF LANDS AND RURAL RESETTLEMENT and BERNARD MAKOKOVE and STEPHEN CHIURAYI and MALVERN DZVAIRO
Ruled By: CHIGUMBA J

The court condoned the late filing of the Notice of Opposition by the first respondent and uplifted the bar operating against it, and deemed the Notice of Opposition duly filed in terms of the Rules.

View Appeal
HH373-15 : CARE INTERNATIONAL IN ZIMBABWE vs ZIMBABWE REVENUE AUTHORITY and DESMOND MANINIMINI and SURVIVAL HARDWARE (PRIVATE) LIMITED
Ruled By: MTSHIYA J

The second respondent, who did not attend the hearing, also raised a number of points in limine. However, he being in default at the hearing and therefore barred, detailing his points in limine will not serve any purpose.

HH92-15 : CAPRI (PVT) LTD vs HOWARD MAPONGA
Ruled By: MATHONSI J

I mention here for completeness only that I could not hear the respondent because he was out of court. He failed to file proper opposing papers.

HH138-11 : DAVID MUYAMBO vs JOHN NGOMAIKARIRA and RICHARD MASHAMBA and RAY MAVHEYA and ROGER WHITTAL and COMMISSIONER-GENERAL OF POLICE and MINISTER OF HOME AFFAIRS
Ruled By: PATEL J

The third and fourth defendants did not enter any appearance to defend and were consequently barred.

HH78-14 : HUGHBER PETROLEUM (PVT) LTD and HUBERT NYAMBUYA vs BRENT OIL AFRICA (PTY) LTD
Ruled By: MATHONSI J

I must…, point out that even the defective application was filed out of time, the heads of argument were also filed out of time, meaning that the applicants' counsel was barred. As the second applicant appeared in person, the issue of the bar relating to the untimely heads of argument fell off.

HH102-15 : ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (PVT) LTD vs BINDURA RURAL DISTRICT COUNCIL and FIFTY NINE OTHERS
Ruled By: DUBE J

The councils that did not oppose this application are deemed to have admitted the applicant's claim.

HH107-15 : FRANCIS KATSANDE vs JONATHAN SAMUKANGE and WELT HUINGER HILFE and THE SHERIFF OF ZIMBABWE
Ruled By: MAKONI J

At the hearing of the matter, Mr Katsande, in limine, submitted that the respondents were barred in terms of Rule 238(2b) for failure to file heads of arguments. In response, Mr Samukange submitted that he was a self-actor and is not obliged to file heads of argument. Mr Katsande conceded the point. If the point had been argued, Mr Samukange would have ...

HH134-15 : SHEM CHIVHUMBA MLAMBO vs ISAAC MUTAMBI PHIRI CHIKATA
Ruled By: ZHOU J

The summons and declaration were served upon the defendant on 26 April 2014. The defendant did not enter an appearance to defend and was accordingly barred. Following the automatic barring of the defendant the plaintiff made a chamber application for default judgment.

HB74-12 : SETSAIL EQUIPMENT (PVT) LTD vs JAVINGTON INVESTMENTS (PVT) LTD and DEPUTY SHERIFF FOR BULAWAYO
Ruled By: NDOU J

What is apparent from the papers is that the summons were served on the applicant on 2 November 2011. The applicant entered an appearance to defend on 5 December 2011. The applicant did not file the plea. Consequently, on 20 January 2012, the first respondent filed a notice of intention to bar and served it ...

HH278-15 : AUGAR INVESTMENTS OU vs MINISTER OF WATER AND CLIMATE and ENVIROMENTAL MANAGEMENT AUTHORITY
Ruled By: CHIGUMBA J

At the hearing of the matter, the court pointed out that the first respondent was barred in terms of Rule 238(2b) of the Rules of the High Court, 1971 for failing to file its heads of argument on time. Counsel for the applicant advised the court that he had instructions from his client to consent to condonation of the ...

HH147-15 : TENDAI MANGWIRO vs CO-MINISTERS OF HOME AFFAIRS and COMMISSIONER-GENRAL OF POLICE and OFFICER IN CHARGE CID SUSPECTS HARARE CENTRAL POLICE and DETECTIVE INSPECTOR MUKAMBI
Ruled By: MUSAKWA J

In this application for default judgment, the plaintiff seeks an order to the effect that -“1. The respondents, jointly and severally, pay the applicant the sum of US$78,900.2. The respondents, jointly and severally, pay the applicant the sum of US$1,537,833=33 being the United States Dollar equivalent of ZW$46,135,000,000.3. Interest at ...

HB242-16 : M O B CAPITAL (PVT) LTD vs TERERAI CHABATA and LYNETTE CHABATA and THE SHERIFF OF ZIMBABWE
Ruled By: MAKONESE J

Rule 84 of the High Court Rules, 1971 provides as follows: “(1) A party who has been barred may – (a) Make a chamber application to remove the bar; (b) Make an oral application at the hearing, if any, of the action or suit concerned; and the judge or court may allow the application on such terms as to costs and ...

CC21-19 : NELSON CHAMISA vs EMMERSON DAMBUDZO MNANGAGWA and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC, UCHENA JCC and MAKONI JCC

In terms of section 336(2) of the Constitution: “Subject to this Constitution, whenever the time for doing anything in terms of this Constitution ends or falls on a Saturday, Sunday or public holiday, the time extends to and the thing may be done on the next day that is not a Saturday, Sunday or public holiday.”…,. There was ...

Appealed
SC04-19 : LESLEY FAYE MARSH (PVT) LTD T/A PREMIER DIAMONDS and OTHERS vs AFRICAN BANKING CORPORATION OF ZIMBABWE (PVT) LTD and ABC HOLDINGS (PVT) LTD
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA

This is an appeal against the whole judgment of the High Court handed down on 31 March 2015, in which the court a quo dismissed the appellants' application for rescission of judgment for want of prosecution. The Facts The respondents issued summons against the appellants out of the High Court, claiming the sum of US$4,634,547=72 together with interest thereon at the ...

The Facts

The respondents issued summons against the appellants out of the High Court, claiming the sum of US$4,634,547=72 together with interest thereon at the rate of 3 percent per annum from the date of summons to date of payment in full. The claim was not only defended but was also met with a counterclaim for US$2,1 million.

When the appellants and their legal practitioners failed to attend a pre-trial conference scheduled for the matter, the respondents successfully applied for the appellants' defence to be struck off and a default judgment was entered in their favour. By design or by omission, the counter-claim was left extant.

No issue turns on this development.

The determination of the counterclaim has proceeded independently and was at the pre-trial conference stage at the time of the hearing of this appeal. I merely highlight the development in passing as it is one of the instances in which the determination of the dispute between the parties has been fragmented. I will highlight the other instance in due course as I frown at the piecemeal fashion in which this dispute has been presented and is proceeding.

A day following the granting of the default judgment, the appellants filed an application seeking to reverse the default judgment that had been granted against them. In view of the fact that the respondents subsequently filed another application to dismiss this application and which I refer to below, I shall refer to this application as “the application for rescission” for convenience and clarity.

The respondents opposed the application for rescission. The appellants did not file any other papers in the matter for a period in excess of one month. Thereafter, the respondents filed a chamber application to have the application dismissed for want of prosecution. I shall refer to this second application as “the application for dismissal”.

Immediately after the filing of the application for dismissal, the appellants filed answering affidavits and heads of arguments in the application for rescission. The respondents also filed their heads of argument in the matter. The exact dates on which each party filed its papers are fully captured in the judgment a quo.

It is recorded in the judgment a quo that before the set down of the application for dismissal, the appellants wrote to the Registrar of the High Court requesting that both applications be heard on the same date. The letter is not on record. It is however not clear from the judgment a quo whether the request to the Registrar, and which was forwarded to the judge, was given any consideration by the court. It is also not clear whether the appellants followed this request with a formal application before the court for the consolidation of the hearing of the two applications. What emerges from the judgment a quo is that no hearing of either matter took place on the first set down date as counsel for the respondents successfully applied for the matters to be postponed to enable him to take instructions on whether or not to argue the application for rescission.

When the court a quo resumed its sitting, only the chamber application for dismissal was argued and determined. On the turn, the court granted the application sought by the respondents, effectively dismissing the application for rescission of judgment.

Whilst the issue of consolidation of the hearing of the two applications does not arise in this appeal, I raise the issue because had that practical course been taken, this appeal would not have arisen and again the piecemeal fashion in which this dispute has proceeded would have been minimised or avoided. This is yet another incident in which the determination of the dispute between the parties was fragmented. It is undesirable that disputes, especially commercial disputes such as the one between the parties in casu, be dealt with in a piecemeal fashion as this tends to unnecessarily protract the resolution of the dispute.

Ratio decidendi of the judgment a quo

At the hearing of the matter in the court a quo, the respondents took a point in limine. They contended, and correctly so, that the appellants were barred, having filed their heads of argument out of time. After dismissing the application to lift the bar, the court a quo held that as a consequence of the appellants remaining barred, the application for dismissal was unopposed. It treated the application as such and granted the order prayed for by the respondents. In its words, the court a quo held:

“It is clear that once a party is barred and remains barred, the matter is treated as un-opposed.”

I form the above view on the ratio of the judgment a quo notwithstanding that the court made some reference to the poor prospects of success of both applications on the merits. Having listed the many transgressions of the appellant and its legal practitioners, the court a quo opined:

“Given the non-compliance with the rules, I am of the view that the respondents do not have any prospects of success in the event of this application being determined on the merits. Any prejudice to be suffered by the respondents is of their own making…,.”

Having expressed itself thus, the court however proceeded to conclude as follows:

“The trajectory of all three matters was necessary as the manner in which the respondents conducted themselves in the matter had a bearing on the determination of the application for the upliftment of bar and postponement. The conduct clearly reflects the respondents' and their legal practitioners' dilatoriness. The analysis of the conduct should therefore not be seen as an attempt to determine the merits of the present application or the application under case no HC2754/14.”…,.

On the basis of the above, it appears clearly to me that whilst expressing a view on the prospects of success of both applications, the court a quo did not determine the application for dismissal on its merits.

The Appeal

Aggrieved by the decision, the appellants noted this appeal, raising three grounds of appeal. The essence of the appeal is to attack the court's failure to consider the application on its merits, and, in particular, to make reference to the defence that the appellants had raised in the application for rescission of judgment.

The Issue

The issue that falls for determination in this appeal, therefore, is whether or not the court a quo was correct in treating the application for dismissal as unopposed and to proceed to grant the order prayed for without making any reference to the defence proffered by the appellants.

The determination of this issue entails interpreting the rules of procedure regulating the powers of a court when a respondent defaults in filing heads of argument on time.

The Law

The law governing the powers of the court in circumstances where a respondent files heads of argument out of time is clearly spelt out in Rule 238(2)(b). The Rule provides:

“(2b) Where heads of argument that are required to be filed in terms of subrule (2) are not filed within the period specified in subrule (2a), the respondent concerned shall be barred and the court or judge may deal with the matter on the merits or direct that it be set down for hearing on the unopposed roll.”

Rule 238(2)(b) is self-contained and deals exclusively with instances where the respondent has filed heads of argument out of time. In the self-contained provision, it is expressly provided that a respondent who defaults in filing heads of argument out of time is barred for that reason. The Rule then proceeds to regulate how the matter in which the respondent has defaulted is to be disposed of. This is to be contrasted with the provisions of Rule 239 which also governs the hearing of applications generally, and, in the proviso to the rule, the hearing of applications where a party is barred.

Rule 239 provides that:

“At the hearing of an application -

(a) Unless the court otherwise orders, the applicant shall be heard in argument in support of the application, and, thereafter, the respondent's argument against the application shall be heard and the applicant shall be heard in reply.

(b) The court may allow oral evidence.

Provided that if one of the parties has been barred, the court shall deal with the application as though it were un-opposed, unless the bar is lifted.”

Clearly, it is only when the court is proceeding under Rule 239 that it shall treat the application as un-opposed if the respondent is barred. This is the point that GARWE JA made in GMB v Muchero SC59-07. In useful orbiter in that matter, the learned judge drew the distinction between the effect of a bar in proceedings under Rule 238(2)(b) and in proceedings under Rule 239 as read with Rule 233.

A clear reading of the rules, and of the decision in GMB v Muchero SC59-07, makes it clear that the effect of the bar arising from the late filing of heads of argument and a bar arising from any other default in terms of the rules are different.

It presents itself quite clearly to me that where the respondent is barred for failing to file his or her heads of argument on time, the application cannot be treated as un-opposed. The provisions of Rule 238(2)(b), which I have cited in full above, are clear on that point. The provisions of the rule direct the court hearing such an application, where heads have been filed out of time, to either hear the matter on the merits or to refer it to the unopposed roll. The rule does not deem the application un-opposed.

The Rule appears to me to be sound and based on the fact that once a notice of opposition and opposing papers have been validly filed, the late filing of heads of argument cannot automatically have the effect of negating or nullifying such filing. The rule re-asserts the common-sense position that the pleadings, having been validly filed, remain extant until struck off the record by a competent court order. A referral of the matter to the unopposed roll is one such competent court order that will have the effect of nullifying or striking off the record, the otherwise validly filed pleadings. A specific order striking off the notice of opposition and opposing affidavits is yet another competent order that can be made in the circumstances.

For reasons of expediency, it may be argued that a court hearing such an application, where heads have been filed out of time, may convert itself into “the Unopposed Court” envisaged by the Rule and dispose of the matter by granting the order sought.

I express no views on this procedure.

The point to make is that there must be a referral of the matter after holding that the respondent is barred. The referral has the same effect as striking off the respondent's defence. Whether a court can then thereafter refer the matter to itself or not is not a matter that arises in this appeal.

In casu, the court a quo fell into the error of holding that once a party has been barred under Rule 238(2)(b), and “remains barred” the matter is treated as unopposed.

As I have shown above, the application does not automatically become un-opposed. The court or judge may, using their discretion, proceed to determine the matter on the merits or negate and nullify the respondent's defence by referring the matter to the unopposed roll. In other words, the court has to either dispose of the matter on the merits or declare it to be now un-opposed by reason of the default.

Disposition and Costs

The court a quo fell into error by treating the application as un-opposed in disregard of Rule 238(2)(b) of the High Court Rules. Its decision cannot therefore stand as it is not in accordance with the law. Accordingly, the appeal must succeed and succeed with costs. The matter must be remitted for it to be dealt with in terms of the Rule.

In view of the fact that the court had expressed its views on the merits of the matter, the matter must be remitted to a different judge.

In the result, I make the following order:

1. The appeal is allowed with costs.

2. The matter is remitted to the High Court for it to proceed in terms of Rule 238(2)(b) of the High Court Rules, 1971.

3. The Registrar of the High Court is directed to place the matter before a different judge.

View Appeal
HH425-16 : AFRICAN BANKING CORPORATION OF ZIMBABWE and ABC HOLDINGS LTD vs LESLEY FAYE MARSH (PVT) LTD T/A PREMIER DIAMONDS and OTHERS
Ruled By: CHATUKUTA J

After hearing counsel, I granted an order in favour of the applicants herein. I am advised that an appeal against my decision has since been noted and a request for reasons for the judgment has been communicated to the Registrar. These are my reasons. This is an application for the dismissal of the respondents' application in case ...

This is an application for the dismissal of the respondents' application in case number HC2754/2014 for rescission of a default judgment granted in case number HC8991/2014. The background to the applications is as follows:

The applicants issued summons in case number HC8991/13 against the respondents claiming the sum of US$4,634,547=72 with interest thereon at the rate of 38% per annum. The applicants also claimed that three properties be declared specially executable. The claim was defended. After closure of pleadings, the matter was set down for a pre-trial conference on 25 March 2014 at 9:30am. Counsel for the applicants and his client were in attendance. Mr McGown, a legal practitioner with Venturus and Samukange, attended for the respondents. None of the respondents were in attendance, either personally or through their representatives, in the case of the respondents who are companies. It appears Mr McGowan was appearing on behalf of Mr Samukange with instructions to apply for the amendment of the defendants' counterclaim and further to agree on the issues to be referred to trial. The application was opposed by the applicants. Mr McGown was not conversant with the facts of the matter. It was agreed that the pre-trial conference be postponed to 1 April 2014, to allow Mr Samukange, who was conversant with the facts, to attend the pre-trial conference.

On 1 April 2014, counsel for the applicants was in attendance in the judge's chambers. Neither the respondents nor their counsel were in attendance. Counsel for the applicants telephoned the offices of Venturus and Samukange and spoke with Mr Everson Samukange, a legal practitioner at the firm, from whom he inquired the whereabouts of Mr Samukange. No one appeared for the respondents soon thereafter and the pre-trial conference proceeded without the respondents. The respondents' defence was struck off. Default judgment was granted in favour of the applicants.

On 2 April 2014, the respondents filed an application in case number HC2754/14 seeking rescission of the default judgment granted on 1 April 2014 in case number HC8991/13. The applicants opposed the application on 17 April 2014. The notice of opposition and opposing affidavit were served on the respondents on the same date. The respondents did not file an answering affidavit or take any other step to prosecute the application for rescission of judgment within 30 days of the date of service of the applicants' opposing papers.

The applicants filed the present application, in case number 2754/14, on 30 June 2014, seeking the dismissal of the respondents' application for rescission of judgment. Soon thereafter, the respondents filed their answering affidavit in case number HC2754/14 on 10 July 2014, heads of argument on 18 July 2014 and the notice of set down on 23 July 2014. The applicants filed their heads of argument on 1 August 2014.

The circumstances of the present application are that, after the applicants filed the application on 30 June 2014 they served the application on the respondents on 8 July 2014. The respondents filed their opposing papers on 14 July 2014. The applicants filed both their answering affidavit and heads of argument on 29 July 2014. The heads of argument were served on the respondents on 29 August 2014. The respondents filed their heads of argument on 19 February 2015 - almost six months after the applicants filed their heads. The applicants contended that the basis for the application was that they filed their opposing papers in case number HC2754/14 and served the same on the respondents on 17 April 2014. The respondents did not file their answering affidavit as is required in terms of Rule 236(3)(b) of the High Court Rules neither did they prosecute their case necessitating the filing of the present application on 30 June 2014. The respondents only filed the answering affidavit on 10 July 2014, a delay of forty one days and after the present application had been filed and only two days after the service of the application on them.

The respondents opposed the application on the basis that this court did not have jurisdiction to determine the application because one of the respondents (not identified by name out of the nine respondents) was not a Zimbabwean resident. It was contended that the respondents were not compelled, under Rule 234(1), to file an answering affidavit. It was further contended that the applicants did not want the claim in case number HC8991/13, which involved substantial amounts of money, resolved on the merits. The respondents prayed for the application to be dismissed.

The matter was set down for hearing on 20 February 2015. The notice of set down of the hearing was served on the respondents' legal practitioners by the Sheriff on 9 February 2015. On 19 February 2015, the respondents filed their heads of argument. On the same date, and by letter addressed to the Registrar of the High Court, they requested that the present application and the application for rescission in case number HC2754/14 be determined on the same date on 20 February 2015.

At the commencement of the hearing on 20 February 2015, it became clear that counsel for the applicants did not have instructions to deal with the application for rescission. The parties agreed to a postponement to enable counsel for the applicants to take full instructions on whether or not the applicants would consider arguing the application for rescission in light of the present application for dismissal. The parties agreed to the postponement subject to their legal practitioners approaching the Registrar for a suitable date.

On 13 March 2015, counsel for the applicants attended court to argue the present application on the understanding that the parties had agreed to that date. Mr Samukange was not present. Instead, Mr Hungwe, a legal practitioner with Venturus and Samukange, later attended court and intimated that Mr Samukange was not aware of the date of hearing and would not attend. The matter was postponed to a specific date, 31 March 2015. The application was ultimately argued and determined on that date.

At the commencement of the hearing on 31 March 2015, the applicants indicated that they were proceeding with the application for dismissal of the application for rescission of judgment. They proceeded to raise a point in limine. Counsel for the applicants submitted that the respondents were barred in terms of Rule 238(2a) for failure to file their heads of argument timeously. He further submitted that the respondent's heads of argument were therefore improperly before the court as the applicant had not sought the upliftment of the bar before filing the heads. It was argued that the applicants had ample time to have filed a chamber application for the upliftment of the bar and failed to do so. There being no such application before the court, he moved for default judgment.

Mr Samukange initially submitted that he was not aware that the respondents' heads of argument were filed out of time and therefore there was no need for the respondents to have made an application for upliftment of the bar. He changed his argument upon it bring brought to his attention that the respondents had admitted, in their heads of argument, that the heads had not been filed timeously. An application for the upliftment of the bar had been intimated in the heads. Mr Samukange thereafter argued that the applicants had been placed on notice, in the heads, that the respondents intended to apply for upliftment of the bar. He contended that, as result, the applicants were not going to suffer any prejudice if the application was granted. He further submitted that he believed that the application was not going to be opposed. He explained that the respondents had failed to file heads timeously because of mis-filing of the applicants' heads of argument in the legal practitioner's office. The misfiling was attributed to the number of cases that Mr Samukange was seized with relating to the present parties. Mr Samukange further submitted that the respondents were desirous of having the matter resolved on the merits as evidenced by the application for rescission in case number HC2754/14. The respondents argued that they were permitted, under Rule 84(b), to seek upliftment of a bar either orally at the hearing of the application or through a chamber application before the hearing. They opted to apply orally at the hearing.

I shall first proceed to determine whether or not the respondents ought to have filed a chamber application for the upliftment of the bar.

It is not in issue that the respondents' heads were filed out of time. The respondents were required, in terms of Rule 238(2)(a), to file their heads of argument within ten days of the service of the applicants' heads on them. They were served with the applicants' heads as far on 29 August 2014. They were therefore required to file their heads of argument by no later than 12 September 2014. See Vera v Imperial Asset Management Co 2006 (1) 436; Beverly Building Society v Rwafa 2005 ZLR (1) 109 (S). They only filed their heads on 19 February 2015 - five months later. They were therefore automatically barred and could only be heard by the court after successfully applying for the upliftment of the bar.

Upliftment of the bar is provided for in Rule 84. Rule 84(1) provides that:

“(1) A party who has been barred may -

(a) Make a chamber application to remove the bar; or

(b) Make an oral application at the hearing, if any, of the action or suit concerned; and the judge or court may allow the application on such terms as to costs and otherwise as he or it, as the case may be, thinks fit.”

Rule 84(1)(b) indeed permits a party to make an oral application for the upliftment of the bar as argued by the respondents. I am, however, in agreement with the applicants that the history of this matter was such that it was necessary for the respondents to have filed a chamber application for upliftment of bar. As would be apparent in the pleadings in case number HC2754/14, there were counter statements as to what transpired after 25 March and on 1 April 2014 giving rise to the default judgment in case number HC8991/14. The delay of five months in filing the heads was considerable. Any prudent legal practitioner would have been aware that it was not sufficient for the legal practitioner to make averments from the bar. See GMB v Muchero 2008 (1) ZLR 216…,.

Midstream the addresses by the parties on the point in limine, the respondents made a turn around and applied for a postponement to enable them to file a chamber application for the upliftment of the bar. The application was vigorously resisted. The applicants argued that the application for postponement ought to have been made before the application for upliftment of the bar and argument on the application.

A court has a discretion whether or not to grant a postponement to enable a party to prepare an application for the upliftment of bar. The discretion must however be exercised in a judicious manner. A postponement must be granted where justice demands that a party should be afforded further time for the purpose of presenting its case so as to avoid occasioning prejudice to the party.

I was sensitive to the observations by GARWE JA in GMB v Muchero 2008 (1) ZLR 216 that a party who is barred and wishes to apply for the upliftment of the bar, should be granted, in a proper case, a postponement to do so. GARWE JA at 221A-C cited with approval the observations by HATHRON JA…, in Abramacos v Roman Gardens (Pvt) Ltd 1960 R & N 1 (SR)…, that:

“…, a defendant ought not to be deprived of having an application for condonation disposed of before default judgement is given against him where, as here, there appears to be an adequate explanation why that application is not before the court…,.”

The learned judge continued…,:

“…, in those cases in which the defendant's counsel has asked for a postponement in order to enable a proper application for removal of the bar to be made and has given a satisfactory explanation why such an application was not then before the court, I have treated the appearance as the first step in an application for the removal of the bar, and granted the postponement…,.”

See also Galante v Galante 2002 (1) 521 where the requirements for an application for a postponement are summarised in the headnote to that case…,.

I do not believe that this is a proper case to indulge the respondents.

The explanation by the respondents for not having filed a written application was simply that they were entitled to make an oral application at the commencement of the hearing. Such an explanation cannot be said to be satisfactory given the history of the matter which is riddled with the respondents' non-compliance with the Rules. The notice that the respondents gave of their intention to apply for the upliftment of the bar was totally inadequate. The notice was a day's notice. The respondents had five months within which to make their application. They did not file the application. They were served with the notice of set down of the hearing of this application on 9 February 2015. They therefore had ten days before the hearing, on 20 February 2015, to file their chamber application. The matter was further postponed on two separate occasions to 13 March 2015 (giving them an additional 20 days) and then to 31 March 2015, giving them a further 18 days within which to file an application for the upliftment of the bar. The respondents still did not consider it prudent to make a written application. After the hearing on 20 February 2015 they sat back and waited only to make an oral application on 31 March 2015. They may have been forgiven on the first occasion but certainly not on the second and third occasions.

Further, unlike in GMB v Muchero 2008 (1) ZLR 216 where an application for postponement appears to have been made at the commencement of the hearing, the application in the present matter was made after the respondents had not only applied for the upliftment of the bar but both the applicants and the respondents had presented their arguments on the application. It appears the respondents had apparently realised the limitations of their submissions, and, consequently, the need for a written application which they should have filed in the first place. The turn-around by the respondents was ample evidence that this is a case that begged for a chamber application. To allow a postponement under such circumstances would, in my view, be tantamount to assisting the respondents to correct the inadequacies in their arguments at the expense of the applicants.

It is trite that civil proceedings are party driven and the court should not be seen to be assisting one party to build its case the detriment of the other party.

Turning to the question whether or not the bar should be lifted; these courts have, time and again, pronounced that the upliftment of a bar is not automatic upon the mere asking. See Mutizhe v Ganda & Ors 2009 (1) 241 (S) and Chimonyo v Route Toute BV & Ors No. SC20-10.

A party seeking the upliftment of a bar must satisfy the requirements for such an application. These are:

(a) The extent of the delay;

(b) The reasonableness of the explanation for the delay;

(d) The prospects of success should the application be granted;

(e) The possible prejudice to the respondent should the application be granted.

Kombayi v Berkout 1988 (1) RLR 53 (S) and Jensen v Acavalos 1993 (1) RLR 216 (S).

The respondents did not, in my view, satisfy the requirements. The respondents' heads of argument were only filed on 19 February, on the eve of the hearing on 20 February 2015 - five months late. The filing of the heads was obviously not in compliance with the Rules as no order for the upliftment of the bar had been granted. The explanation by the respondents for the delay of five months was unacceptable.

Mr Samukange sought to persuade the court that there was mis-filing of the applicants' heads at the legal practitioner's offices. There was nothing before the court other than Mr Samukange's say so, to prove that there had been such misfiling of documents. In fact, Mr Samukange's submissions disclosed a high degree of insincerity. The heads of argument appear to have been prepared by Mr Samukange himself. They bear the same date that they were issued by the Registrar, that is, 19 February 2014. The preamble to the heads state as follows:

“The present Heads of Argument are filed out of time, and, at the hearing of the matter, an oral application for the removal of the bar for failure to file Heads of Argument timeously will be made.”

It is therefore apparent that the respondents' legal practitioner was aware, as of 19 February 2015, that the heads had been filed out of time. This matter was heard on 31 March 2015. Mr Samukange cannot genuinely have expected the court to believe that he had forgotten, within a period of 40 days, what was contained in the heads of argument. Assuming he had forgotten, this is reflective of a lackadaisical attitude. It would mean that he had not prepared for the hearing. Had he done so, it would have been at the fore of his mind that he was required to apply for the upliftment of the bar first. He, however, had to wait for the applicants to raise the issue. This lackadaisical attitude is further compounded by Mr Samukange's own submissions that he believed that the applicants were not going to oppose the application for the upliftment of the bar. A prudent legal practitioner would have engaged the applicants prior to the hearing on whether or not the application was going to be opposed. Assuming that the application was not going to be opposed, the respondents were still required to apply for removal of the bar and advise the court that the application was not opposed. It is apparent that the respondents were too presumptuous, turning a blind eye on all their previous transgressions. The transgressions were indicative of the respondents' disdain of the Rules.

The following are the respondents' transgressions which are a clear reflection of their dilatory approach to the entire litigation between the parties:

1. On 25 March 2014, Mr Samukange, who was familiar with the matter in case number HC8991/13 did not attend the pre-trial conference. Mr McGowan, who was not familiar with the matter, attended with instruction to make an application on a matter he was not familiar with necessitating the postponement to 1 April 2014 in order for Mr Samukange to attend the pre-trial conference.

2. Mr Samukange did not attend the pre-trial conference on 1 April 2014. An explanation was given in the application for rescission for the non-attendance of the legal practitioner being that he was in Belgium attending the wedding of the daughter of the fifth respondent (Jamal Joseph Hamed). The legal practitioner opted to attend the wedding of the respondent's daughter ahead of court.

3. There was no prior communication to the court or to the applicants that Mr Samukange would be unavailable to attend the pretrial conference on 1 April 2014. The explanation for the lack of communication given in the application for rescission is that the legal practitioner gave instructions to his secretary to prepare a letter explaining his unavailability on the date of hearing and seeking the postponement of the matter. It appears the alleged letter never left the legal practitioners' offices. In any event, it is not proper to seek a postponement by letter and believe that the request would be granted without a formal application. The respondents clearly had the misconception that an application is granted on the mere asking.

4. None of the respondents attended the pre trial conferences on both 25 March and 1 April 2014. The respondents required the leave of the judge to absent themselves from the pre-trial conference and it appears they did not have the leave. Except for the explanation for the failure of the fifth respondent to attend on 1 April 2014, because he was at his daughter's wedding, there was no explanation why the other respondents did not attend both pre trial conferences. One would understand if at least one of them appeared on behalf of all of them.

5. After filing an application for rescission of the default judgment, the respondents neither filed an answering affidavit nor set the matter down for hearing within 30 days of service of the applicant's opposing papers on their legal practitioners as is expected in terms of the Rules.

6. An answering affidavit was filed out of time on 10 July 2014, and, apparently in response to the present application filed on 30 June 2014 and served on the respondents on 8 July 2014. In other words, the answering affidavit was filed two days after service of the application. This was obviously intended to defeat the purpose of the present application.

7. The respondents did not file their heads of argument timeously in the present application. The applicants filed their heads of argument on 29 July 2014 and served the same on the respondents on 29 August 2014. The respondents only filed their heads of argument on 19 February 2015 - almost six months after service of the applicants' heads on them.

8. The respondents were served with the notice of hearing on 9 February 2015. The respondents' legal practitioner only wrote to applicants' legal practitioners on 19 February 2015, 10 days after service of notice of set down and a day before the hearing, seeking a consolidation of cases number HC2754/14 and HC5356/14. This was the second occasion to file papers out of time, the first having been failure to file the respondents' answering affidavit in case number HC2754/14.

9. Despite being aware that their heads of argument were out of time, the applicants did not file a chamber application seeking the upliftment of the bar.

10. Despite the matter having been postponed on two occasions, giving the respondents 48 days after the date of service of the notice of set down of the hearing within which to file an application, they still failed to do so.

11. On the date of hearing of the application on 31 March 2015, the respondents did not immediately make an application for upliftment of the bar at the commencement of the hearing only doing so upon the issue being raised by the applicants.

Given the extent of non-compliance with the rules, I am of the view that the respondents do not have any prospects of success in the event of this application being determined on the merits. Any prejudice to be suffered by the respondents is of their own making. The blame for the respondents' predicament cannot be placed on anyone other than the respondents themselves and their legal practitioner. In fact, it is the applicants who have suffered prejudice by failing to realize the benefits of an order granted in their favour because of the respondents' ineptitude. The trajectory of all the three matters was necessary as the manner in which the respondents conducted themselves in the matters had a bearing on the determination of the applications for upliftment of bar and postponement. The conduct clearly reflects the respondents' and their legal practitioner's dilatoriness. The analysis of the conduct should therefore not be seen as an attempt to determine the merits of the present application or the application in case number HC2754/14. The respondents have exhibited a casual approach to all the matters between the parties. The interests of justice do not justify the upliftment of the bar or that they be given further time to file a written application for the upliftment of the bar. There must be finality to litigation and the respondents cannot be over-indulged for their ineptitude to the detriment of the applicants.

It is clear that once a party is barred and remains barred, the matter is treated as unopposed. It was accordingly ordered that:

1. The application by the respondents for postponement to enable the respondents to file a chamber application for upliftment of the bar be and is hereby dismissed.

2. The application by the respondents, for the upliftment of bar for failure to file heads of argument, be and is hereby dismissed.

3. The application for dismissal of case number HC2754/14 be and is hereby granted with costs.

View Appeal
HH214-15 : NETONE CELLULAR (PVT) LTD vs BACNET TRADING (PVT) LTD and MINISTER OF LOCAL GOVERNMEMT, PUBLIC WORKS & NATIONAL HOUSING and REGISTRAR OF DEEDS
Ruled By: MAFUSIRE J

Counsel for the second respondent applied for condonation or the upliftment of the automatic bar operating against the second respondent for having filed the heads of argument some months out of time. A formal court application to this effect had been filed on 15 August 2014. But it seems no further steps had been taken ...

A formal court application to this effect had been filed on 15 August 2014. But it seems no further steps had been taken by any of the parties. The reason proffered for the delay was that the copy of the applicant's heads of argument that had been served at the offices of the Civil Division of the Attorney General, the second respondent's legal practitioners of record, had been mis-filed. The relevant averment in counsel for the second respondent's affidavit read as follows:

“4. This is an application for condonation for late filing of Heads of Argument. Applicants filed their Heads of Argument on 3 April 2014 and they were received by our office on the same day. I was not personally aware that Heads for the Applicants were already filed as there was some unfortunate incident of misfiling of documents by our office Clerks. It only came to light that the heads of Argument by the applicants were filed when I contacted 1^st Respondent enquiring whether they had received anything from the Applicants.”…,.

Mr Machiridza, the legal practitioner that appeared for the first respondent, applied for a postponement on the basis that the legal practitioner of record for the first respondent had gone out of the country on an emergency. He himself professed to have no substantial knowledge of the case. He said the absent legal practitioner had become the fundi on land matters and that the interests of justice would be served by postponing the matter so that the first respondent would be represented by counsel of its choice….,.

Counsel for the applicant also pointed out that the first respondent's heads of argument had been filed way out of time. As such, the first respondent had been automatically barred. Therefore, Mr Machiridza had no right of audience on any aspect of the matter other than an application for the upliftment of the automatic bar. But no such application had been made….,.

With regards the second respondent, counsel for the applicant argued that no cogent reasons for the default had been given. No dates as to when, for example, counsel for the second respondent had become aware of the fact that the applicant's heads of argument had been filed, had been mentioned. Without them, the court could not possibly assess the extent or reasonableness of the delay. Furthermore, the argument continued, no affidavit by the filing clerk had been produced to explain what actually had happened.

Counsel for the applicant concluded that the merits of the case were overwhelmingly in support of the applicant's cause. The respondents' opposition had no merit. There were no prospects of success….,.

I dismissed the application for postponement and the one for the upliftment of the bar. I granted the orders sought by the applicant. These were my reasons.

In terms of Order 32 Rule 238 of the Rules of this Court, a respondent who is to be represented by a legal practitioner at the hearing of, inter alia, an application, is required to file heads of argument not more than ten days after the applicant's heads of argument are delivered to him. The failure to file such heads of argument results in the respondent being barred. The court can then deal with the matter on the merits or direct that it be set down for hearing on the unopposed roll.

In terms of Order 12 Rule 84, a party that has been barred can make a chamber application or an oral application at the hearing, for the removal of the bar. The judge or court may allow the application on such terms as to costs and otherwise as he or it may think fit.

Just as in an application for rescission of judgment in terms of Order 9 Rule 63, a party seeking the removal of a bar must show “good and sufficient” cause for the bar to be removed. The court or judge hearing the application undoubtedly has an unfettered discretion. The discretion is, of course, exercised judiciously and not capriciously or whimsically. Not only must there be a reasonable explanation for the default but also the applicant must show his defence on the merits.

Dealing with Rule 84, GARWE JA stated as follows in Grain Marketing Board v Martin Muchero2008 (1) ZLR 216 (S)…,:

“It is clear from the above provisions that, once a party is barred, the matter is treated as unopposed unless the party so barred makes an application before the court for the upliftment of the bar. It is also clear that, in making the application to uplift the bar, the party that has been barred can either file a chamber (not court) application to uplift the bar, or, where that has not been done, the party can make an oral application at the hearing. The practice in the High Court, so far as I am aware, is that only in very few instances have oral applications to uplift the bar been entertained by the court. This is because, in such a case, the applicant must explain the reason for the delay, and, thereafter, convince the court that he has a bona fide defence on the merits.”…,.

What constitutes wilful default and a bona fide defence depend on the merits of each case.

In Zimbabwe Banking Corp Ltd v Masendeke1995 (2) ZLR 400 (SC) McNALLY JA, held that wilful default occurred when a party freely takes a decision to refrain from appearing with full knowledge of the service or set down of the matter. See also Deweras Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corp 1997 (2) ZLR 47 (HC).

In my view, in bar situations, wilful default amounts to a deliberate failure or neglect to file process timeously or to refrain from doing so altogether. Thus, “good and sufficient” cause is the sum total of all the facts explaining the default and merits of the defence. These facts are considered cumulatively. No single aspect is decisive. In Deweras Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corp 1997 (2) ZLR 47 (HC), even though the court found that the explanation for the default was acceptable, it was far outweighed by the unreasonableness of the defence proffered on the merits….,.

I…, found no merit in their explanations for the delay in filing the heads of argument timeously….,.

With regards the second respondent, the explanation for the default was deficient. In the absence of the relevant dates there was no telling the extent of the default. Furthermore, how the alleged mis-filing of the applicant's heads of argument had occurred was not properly explained, particularly in the absence of an affidavit or affidavits from the filing clerks.

In this case, the defence proffered by the first and second respondents was palpably bogus. That is what largely influenced my decision to reject their applications and to grant the relief sought by the applicant. But, even the explanations for the delays were deficient….,.

It was for those reasons that I granted the orders that I did.

SC67-19 : DANIEL CHINTENGO vs TREDCOR ZIMBABWE (PRIVATE) LIMITED t/a TRENTYRE ZIMBABWE
Ruled By: MALABA CJ, GUVAVA JA and BERE JA

The requirement for a litigant who is represented to file heads of argument is captured in Rule 26(1) of the Labour Court Rules, 2006 which states as follows: “(1) Where an applicant or appellant is to be represented by a legal practitioner or representative at the hearing of the application, appeal or review, the legal practitioner or ...

HH74-12 : MIKE BELINSKY vs TONDERAI CHIPERE
Ruled By: HUNGWE J

The defendant filed a special plea on 20 October 2008. The following facts constitute the basis of the special plea. 1. The respondent (plaintiff in the main matter, hereinafter called “plaintiff”) issued summons under case number HC190/08 claiming damages arising from a road traffic accident on 14 January 2008. 2. Pleadings were exchanged between the parties leading to ...

The defendant filed a special plea on 20 October 2008. The following facts constitute the basis of the special plea.

1. The respondent (plaintiff in the main matter, hereinafter called “plaintiff”) issued summons under case number HC190/08 claiming damages arising from a road traffic accident on 14 January 2008.

2. Pleadings were exchanged between the parties leading to a convening of the pre-trial conference before the judge in chambers in terms of Rule 182 of the High Court Rules, 1971 (“the Rules”).

3. The pre-trial conference was set down for 22 April 2008 for the parties to attend with a view to either settle the matter or defining issues to be referred for trial.

4. The plaintiff's legal practitioners or his representatives failed to turn up.

5. The defendant made an oral application for the dismissal of the plaintiff's claim to the judge in chambers and obtained an order dismissing the claim with costs on the same day.

6. Thereafter, the plaintiff issued fresh summons based on the same cause of action claiming the same relief from the same party under case number HC3349/08. This is the present action.

7. The matter has been set down for trial.

The defendant took exception to a fresh process issued by the plaintiff. He argues that the plaintiff ought to have applied for rescission of the default judgment in terms of either Rule 63 or Rule 449 of the Rules. Without having obtained rescission of the judgment, so the defendant contends, the plaintiff's claim stands dismissed with costs. He contends that the plaintiff is barred from instituting fresh action.

As I understood it, counsel for the defendant is this; since the claim was dismissed in terms of Rule 182(11) the plaintiff cannot, without first obtaining rescission of that judgment, issue fresh process as the dismissal still stands. The only course of action open to a party eager to pursue an action so dismissed is to first to seek rescission in terms of Rule 63 of the Rules.

The plaintiff disputes this contention.

Counsel for the plaintiff figured that Rule 63 was permissive. It gave the plaintiff against whom default judgment was entered two options. The first option was to seek rescission of that default judgment, and, after obtaining it, proceed on the same papers. The second option was to literally abandon those papers and issue fresh ones. So long as the order for costs has been discharged, according to this argument, it is open to the plaintiff to commence fresh action since the dismissal of the action at pre-trial conference stage is akin to absolution from the instance. This interpretation, argued counsel for the plaintiff, accords with the tenor of Rules 59, 59A, 60, 61, 62 and 63.

It seems to me that the defendant's argument should meet with failure for two reasons.

(a) First, the defendant expressly abandoned the special plea of res judicata notwithstanding the fact that the defendant had expressly couched that special plea which he had filed with this court on 20 October 2008 as the basis of the special plea. If this was meant to be just a preliminary objection (which it sounds more like), then the defendant ought to have sought the dismissal of the plaintiff's case as he did, but a stay of proceedings till the plaintiff had paid the costs in terms of the order in HC190/08. See Western Cape Housing Development Board & Another v Parker & Another 2005 (1) SA 462.

(b) Second, the Rules grant the power to the court to enter judgment or make such order as it may think fit depending on the circumstances without hearing evidence. Rules 58, 59, 59A, 60, 61 and 62. It is said in a judgment obtained in this manner amounts to a default judgment.

When the plaintiff had failed to appear in person, or through counsel, for trial or in obedience to the directive, generally an order for dismissal of his claim is entered. Such an order dismissing the plaintiff's claim is, at law, not the judgment for the defendant.

In Munemo v Muswera 1987 (1) ZLR 20 (SC)…, McNALLY JA put the matter this way;

“…,. The judgment relied upon was not the judgment for the plaintiff, nor was it a judgment for the defendant…,. However, the judgment in 1979 was a judgment which read:

'The plaintiff's claim for ejectment is dismissed with costs.'

It is well established that such a judgment is in effect one of absolution from the instance. See Hassan v Billiat SC132-86 (not reported); Bulford v Bob White Service Station (Pvt) Ltd 1972 (2) RLR 224 (AD); Makayiseni v Musarurgwa 1947 SR 160 at 162.

The matter is succinctly put by Hoffman & Zeffertt op cit at p263 in the following words;

'The decree of absolution from the instance (or an order dismissing the plaintiff's claim) is specifically intended to the man the plaintiff to bring another action if he can find a better evidence to support his claim. Absolution can never found a cause for action estoppels.”

The dismissal of the plaintiff's claim, where it is obtained by default, is not as drastic an order as it may sound. In my view, this accords with the rationale of the Rules which is to achieve justice only after each party has had his or her day in court. To hold otherwise would, in my view, subject the procedure to mere technicality without achieving the desired end, which is to do justice between the parties.

It is instructive that in terms of Rule 61 the defendant may obtain an order dismissing the plaintiffs' claims where the plaintiff has been barred from declaring or making a claim. In terms of Rule 62, the defendant may also obtain an order absolving him where the plaintiff makes default of appearance. Both rules use the permissive “may” not the peremptory “shall” to make provision for the options open to the party who has complied with the rules. Similarly, Rule 63 also uses the permissive “may” to confer discretionary power to the court before which the matter is placed. The court is not obliged to give judgment for either party hence in practice the matter is generally dismissed or postponed depending on the force of the application made by the party appearing before it.

Thus, where an order such as the one granted on 22 April 2008, is in issue, it can hardly be said that such an order determined the matter finally. In my view, the plaintiff correctly opted to issue fresh summons, as it was entitled to do, rather than seek rescission of the judgment granted in default.

In the premises, the preliminary issue raised by the defendant is dismissed.

HB48-09 : KUNDAYI KWARAMBA vs TITUS NDLOVU and NTANDOYENKOSI NDLOVU (NEE SIBANDA) and REGISTRAR OF DEEDS, N.O. and DEPUTY SHERIFF, BULAWAYO
Ruled By: CHEDA J

This is a court application for a transfer of property whose relief is couched as follows: “It is ordered that:- The Respondent be and is hereby ordered, directed, authorized and compelled to proceed with the transfer of Stand No.7204, Nketa 9 Township, Bulawayo from 1st Respondent to Applicant's names notwithstanding any pending cases under HC113/03, HC1549/03, HC131/03 and HC176/07 and ...

Appealed
HH307-16 : ASSWELL GURUPIRA and JEAN GURUPIRA vs EARTHMOVING & CONSTRUCTION COMPANY PL and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF and JOHN LEGGATTE
Ruled By: MAKONI J

The present application was filed on 7 March 2008 and has raged on with various twists and turns, culminating in the hearing before me. The background facts are that, on 25 May 2007, the applicants (the Gurupiras) and the second respondent (Muir) entered into an agreement whereby Muir sold to the Gurupiras two (2) issued shares ...

The present application was filed on 7 March 2008 and has raged on with various twists and turns, culminating in the hearing before me.

The background facts are that, on 25 May 2007, the applicants (the Gurupiras) and the second respondent (Muir) entered into an agreement whereby Muir sold to the Gurupiras two (2) issued shares in the first respondent (the company). The company is the registered owner of a certain piece of land situate in the District of Salisbury Town measuring 3,066 square metres commonly known as 98 Churchill Ave, Gunhill, Harare held under Deed of Transfer Number 39/76 (the property). The shares entitled the holder to an exclusive right of occupation and use of the property.

The applicants aver that they paid the purchase price in instalments. They then encountered problems when they intended to make the final payment as Muir became evasive. The Gurupiras then filed a court application, in HC6660/07, seeking to compel Muir to furnish them with her banking details to enable them to make payment of the balance of the purchase price. They finally paid the balance on 13 February 2008 by cheque.

On 11 December 2007 Muir and the sixth respondent (Leggatte) signed a Shareholders Agreement in terms of which 98 shares in the company were issued and allotted to Leggatte. The Gurupiras got wind of the agreement and they instituted the present proceedings on 7 March 2008 against the company and Muir seeking the following relief;

“Whereupon, after reading documents filed of record and hearing counsel it is hereby ordered that:-

IT IS ORDERED THAT:-

1. The 3^rd respondent is hereby interdicted from transferring the property known as No. 98 Churchill Avenue, Gunhill, Harare also known as a certain piece of land situate in District of Salisbury Town Lands measuring 3,066 square metres under Deed of Transfer dated 7 January 1976 (Registration Number 39/76).

2. The sale of the property to any unknown third party be and is hereby set aside.

3. The property in paragraph 1 above be transferred to Asswell Africa Gurupira and Jean Jane Gurupira and the 2^nd respondent is directed to sign all the necessary documents to transfer.

4. Should the 2^nd respondent fail or refuse to sign the necessary documents to effect transfer the 4^th of 5^th respondent is hereby directed to sign all the necessary documents to effect the transfer by 3^rd respondent to 1^st and 2^nd applicants.

5. The 1^st and 2^nd respondents shall bear all the costs of this application on an attorney client scale.”

The application was served by the Deputy Sheriff on both respondents by placing in a letter box. None of the respondents responded, and, on 21 May 2008, the Gurupiras obtained default judgement. On 16 June 2008, the Gurupiras took transfer of the property into their names. On 23 July 2008, they made an ex parte application, in the Magistrates' Court, for the eviction of the company and Muir and it was granted. On 24 July 2008 the company and Muir and all those claiming occupation through her were evicted.

That is when the company, as represented by Leggatte, became aware of the default judgment, and, on 22 August 2008, it applied for rescission of the default judgement in Case No. 4211/08. The matter was referred to trial after material disputes of fact became apparent. The trial was held before MAFUSIRE J, and, on 19 March, judgment was handed down. The court made the following order;

“DISPOSITION

In the circumstances, this matter is disposed of as follows:

1. The default judgment granted by this court on 21 May 2008, in HC1393/08, is hereby set aside.

2. The Registrar of Deeds is hereby ordered and directed to cancel Deed of Transfer No. 4778/08 over certain piece of land situate in the district of Salisbury, called Stand 12896 Salisbury Township of Salisbury Township Lands, measuring 3,066square metres, dated 16 June 2008 in the name of Asswell Africa Gurupira and Jean Jane Rudo Gurupira and to restore the prior Deed of Transfer No. 39/76.

3. The following residual issues shall be determined in the main application in HC1393/08:

3.1 Whether or not the agreement of sale between the first and second defendants, namely, Asswell Africa Gurupira, of the one part, and the third defendant, namely, Sandra Maureen Muir, of the other part, was duly performed.

3.2. Whether or not the first and second defendants should vacate the premises situate on the property more fully described in paragraph 2 above and which is also known as 98 Churchill Avenue, Gunhill, Harare.

3.3 Whether or not the transfer of shares in the plaintiff company, namely, Earthmoving & Construction Company (Private) Limited, by the third defendant to one John Leggatte, should be set aside.

4. The plaintiff shall file its notice of opposition or other such papers in HC1393/08 within ten (10) days of the date of this order, and, thereafter, the filing of any further documents shall be in accordance with the Rules.

5. The costs of the application and of the trial in HC4211/08, and the costs of the application in HC6660/07 shall all be borne by the first and second defendants jointly and severally, the one paying the other to be absolved.”

The company, in terms of paragraph 4 above, then filed its opposing papers to the present proceedings on 2 April 2014. It took the point in limine, that, the order sought by the Gurupiras was incompetent in that they sought transfer of the property and yet they only bought shares in the company. On the same date, the company filed a counter application for the eviction of the Gurupiras. Again, on the same date, Mr Stevenson filed a Notice of Opposition for Muir. The parties filed further papers up to Heads of Argument.

On 22 January 2015, the Gurupiras filed an application for joinder of Leggatte which he opposed. On 25 February 2016 an order granting joinder of Leggatte was granted. Further pleadings were filed pursuant to the order of joinder. Leggatte also adopted the point as raised by the company. The Gurupiras filed a supplementary affidavit wherein, inter alia, they sought an amendment to the draft order.

The matter was set down for hearing on 21 May 2015. A day before the hearing Mr Stevenson filed a document titled “Take notice that the 2^nd respondent hereby files of record a mandate given to her legal practitioners of record.”

A supporting affidavit by Mr Moyo, Leggatte's legal practitioner, is attached. To the affidavit, Mr Moyo attached a letter allegedly written by Muir and delivered to him by Leggatte who had allegedly received it from Muir's son.

On the day of hearing, Mr Mpofu moved for the amendment of the Draft Order. Both Mr De Bourbon and Mr Stevenson did not oppose the amendment. It was therefore granted. The amended Draft Order seeks the following relief;

“WHEREUPON, after reading the documents filed of record and hearing counsel:

IT IS ORDERED THAT:

1. An order declaring the 1^st and 2^nd applicant to be the lawful shareholders of the entire shares in the 1^st respondent (the company) and that any purported transfer or appointment of directors by the 1^st respondent to the 6^th respondent be deemed null and void.

2. An order declaring the 1^st and 2^nd applicants to be the lawful owners of the 1^st respondent (the company's) sole immovable property being Stand 12896 Salisbury Township situate in the district of Salisbury measuring 3,066 square metres known as No.98 Churchill Avenue, Gunhill, Harare and that the above property be transferred in favour of 1^st and 2^nd applicants.

3. An order that the 2^nd respondent be directed to sign all necessary documents to effect transfer of both the shares and the property.

4. Should the 2^nd respondent fail to sign the necessary documents to effect transfer of the shares and the property, the 4^th respondent is hereby directed to sign all necessary documents for 3^rd respondent to effect the transfer to 1^st and 2^nd applicants.

5. The 1^st, 2^nd and 6^th respondents shall bear all the costs of this application on an attorney and client scale jointly and severally each causing another to be absolved.”

The granting of the application to amend the Draft Order disposed of the point taken by the company and Leggatte regarding the competency of the order sought by the Gurupiras.

Mr Mpofu took the point, in limine, that the second respondent was not properly before the court. He submitted that the default judgment was taken against all respondents. The company applied for rescission of the judgment. In the order by MAFUSIRE J, only the company was given leave to defend the matter. Muir was in default and never applied for condonation.

He further submitted that Mr Stevenson deposed to the affidavit opposing the matter. He avers that after the granting of the default judgement he renounced agency after being instructed to hand over Muir's files to another legal practitioner. He was then prevailed upon by interested parties to act on behalf of Muir. Since the company was directed to file its opposing papers within 10 days of the order, he felt compelled to do the same for Muir.

Mr Mpofu further contended that Mr Stevenson did not have instructions to deal with this matter.

He tells some falsehoods on page 136 paragraph 12 when he said Muir's husband signed the agreement with Legatte on 27 May 2008 and yet, by then, Mr Muir had transferred his one share to his wife and had passed on.

The supplementary affidavit by Mr Moyo, in paragraph 2, is at variance with what appears in Mr Stevenson's affidavit in paragraphs 4 and 5. The position put forward by Mr Moyo is a false position.

In response, Mr De Bourbon submitted that the entire judgment was set aside for both the second and sixth respondents. The judgment dealt with the issue of service of the application on Muir and the company. All the issues that the court opined might be determined in the matter, in paragraph 3.2 of the order also involve Muir. She was therefore properly before the court.

Mr Stevenson submitted that at the time default judgment was taken the issue was transfer of the property and not of shares. He contended that in an emergency one acts to protect his or her neighbour. If the Gurupiras had been successful, it would reflect on his client as she is the one who sold the shares. He submitted that a legal practitioner is allowed to give evidence. He had sought authority from his client's relative and the letters had just been found by Mr Moyo. The fact that he had handed over file HC66660/08 to another legal practitioner did not prevent him to act in an emergency on behalf of his client. He was the one best placed to know the position.

In reply, Mr Mpofu submitted that the fact MAFUSIRE J opined that the issue of service might need determination does not make Muir a party. In any event, service was effected on the domicilium citandi in terms of the agreement. If Muir is not happy then she is the one who must attack it. A Notice of Opposition is filed by the respondent. The legal practitioner can file a supporting affidavit as witness. Mr Stevenson purports to act as an agent when he has no authority. When notice is given that the issue will be taken up, an attempt is made to validate the authority. Mr Stevenson does not do the affidavit himself. Instead, Mr Moyo, the sixth respondent's legal practitioners, deposes to the affidavit. Mr Stevenson filed an affidavit in his own name without purporting to represent Muir.

The issue for determination is whether the second respondent, Muir, is properly before me. I will examine the issue from two angles;

(i) Firstly, whether the judgment by MAFUSIRE J gave Muir leave to defend the matter....,.

In dealing with the first point, it is important to determine whether Muir was served with the court application. There is a Return of Service which was rendered by the Deputy Sheriff which reflects that the court application was served at No. 98 Churchill Avenue, Gunhill, Harare. It was served by placing in a letter-box. The service was on behalf of the first respondent, the company and the second respondent - Muir. In terms of clause 9 of the agreement between Muir and the Gurupiras, Muir chose that address as her domicilium citandi.

It is trite that the return of service of an officer of the court, whether he be the Sheriff, the Deputy Sheriff or the Messenger, has to be accepted as prima facie proof of what was stated therein, capable of being rebutted by clear and satisfactory evidence. See Gundani v Kanyemba 1988 (10) ZLR 226 (SC).

In casu, Muir has not placed any facts before this court, either in the application for rescission on in the present matter, that she was not served with the application. None of the witnesses, in the application for rescission, could testify on her behalf on that aspect. All that Mr Stevenson could say was that he wondered why the application was not served on his law firm. The answer is to be found in clause 9 of the agreement. Service of the process other than as stipulated in the agreement would have fallen foul of that clause.

Having been served, and after the expiry of 10 days, Muir was therefore barred. This is provided for in Rule 233(2) of the High Court Rules, 1971. She did not approach the court to seek upliftment of the bar.

The fact that the company successfully sought rescission of the judgment does not assist her.

MAFUSIRE J was clear in his order. He gave the company leave to file its opposing papers. He did not relate to the position of Muir as she had not made an application for the order to be set aside. She cannot therefore cling to the judgment made in favour of the company and allege that it paved the way for her to file her papers in opposition.

MAFUSIRE J could not grant what had not been prayed for.

View Appeal
HH269-13 : NATIONAL SOCIAL SECURITY AUTHORITY vs N. SVOVA and ORS and R. MAKASI and ORS and P. MUDYIWA and ORS and W. MUGOBOGOBO and ORS
Ruled By: MATHONSI J

When these matters first came before me, on 18 July 2013, Mr Mpofu, for the respondents, sought a postponement to enable the respondents to attend to a host of house-keeping issues which were then outstanding. In particular, the respondents desired to submit bonds of security in terms of Rule 66(1) of the High Court of ...

Although the application was strongly opposed by Mr Mazonde, counsel for the applicant, I granted the application as it was apparent that counsel for the respondents was not ready to argue the matter and the issue of security would have disposed of the applications. I postponed the matter to 25 July 2013 for that purpose.

On that date, Mr Mpofu then made another application for a postponement this time to enable the respondents to prosecute a chamber application for consolidation of these four (4) matters with yet another related matter, HC673/09.

The application had been brought to my attention, albeit without the court record, and not by the Registrar of this court but by the respondent's counsel instructing Mr Mpofu, late on 24 July 2013. I must say that the application in question has nothing to do with these matters which stand alone and could not detain me in dealing with those matters that had already been placed before me.

Mr Mpofu also sought to have the matter deferred to allow the respondents to lodge an application for the upliftment of the bar operating against the respondents by reasons of failure to file heads of argument in all the four (4) matters. He submitted that the application would be filed later that day.

It became apparent that that the respondents were buying time as it should have been apparent to them that there was a bar requiring upliftment which should have been attended to. The applicant cannot be prejudiced because of the dilatoriness of the respondents. I refused to postpone the matters, and, in terms of Rule 238(2b), proceeded to deal with the applications on the merits.

HH209-15 : NATIONAL FOODS OPERATIONS vs PERFECT BAKERY (PVT) LTD and GIFT MABVUNZA
Ruled By: BHUNU J

This is an application for summary judgment initially brought against both respondents. The first respondent is a company duly registered in terms of the laws of this country whereas the second respondent is its Managing Director.

On 2 June 2014, the applicant issued summons against both accused claiming payment of US$16,817=30 plus 15% interest per annum from 13 January 2014 to date of payment in full with costs at the higher scale. The plaintiff's claim against the respondents was joint and several one paying and the other to be absolved.

The respondents duly entered appearance to defend on 5 June 2014 whereupon the applicant filed this application for summary judgment on 3 December 2014. The matter was then set down for hearing before me on 3 February 2015.

At that hearing, counsel for the applicant withdrew his client's claim against the first respondent on account that they had received written communication that the first respondent had been placed under judicial management. He however persisted with his claim against the second respondent.

Counsel for the second respondent, however, objected to the applicant proceeding against her client on his own. She strenuously argued that the claim being withdrawn cannot proceed against the second respondent alone because when the first respondent was placed under judicial management all claims were stayed. She then applied that the parties be given time to file heads of argument.

Counsel for the applicant countered that the operation of law against the first respondent has no bearing on the second respondent's liability as the applicant's claim was joint and severally one paying and the other to be absolved.

Despite the withdrawal against the first respondent both respondents were already barred for want of compliance with Rule 238(2a) and (2b) upon failure to file heads of argument within the prescribed 10 day period after receipt of the applicant's heads of argument.

The Rule provides as follows:

“(2a) Heads of argument referred to in subrule (2) shall be filed by the respondent's legal practitioner not more than ten days after heads of argument of the applicant or excipients, as the case may be, were delivered to the respondent in terms of subrule (1):

Provided that —

(i) No period during which the court is on vacation shall be counted as part of the ten-day period;

(ii) The respondent's heads of argument shall be filed at least five days before the hearing.
[subrule substituted by S.I.192 of 1997]

(2b) Where heads of argument that are required to be filed in terms of subrule (2) are not filed within the period specified in subrule (2a), the respondent concerned shall be barred and the court or judge may deal with the matter on the merits or direct that it be set down for hearing on the unopposed roll.”

Rule 83 prohibits a litigant who has been barred from being heard for any other purpose other than for the upliftment of the bar. It reads:

“83. Effect of bar

While a bar is in operation —

(a) The Registrar shall not accept for filing any pleading or other document from the party barred; and

(b) The party barred shall not be permitted to appear personally or by legal practitioner in any subsequent proceedings in the action or suit; except for the purpose of applying for the removal of the bar:”

What this means is that counsel for the second respondent's objection against the applicant proceeding against her client in the absence of the first respondent cannot be entertained as long as the bar is operating against her client. She however appears not to have appreciated the effect of a bar as appears from her response in this respect in which she had this to say:

“Ms Mazhandu: The heads of argument do not take into account the issue of withdrawal. Second respondent should be given a chance to respond to the amended draft order otherwise he shall not have been accorded a fair hearing.

Court: You have not addressed me on the question of the bar operating against your client.

Ms Mazhandu: The 2nd respondent we were no longer representing him I can't for sure say what transpired. I can't dispute there was a bar but the bar was against both respondents. Things have since changed. This is now a different matter.

Court: Does that lift the bar?

Ms Mazhandu: It does not. If the court can allow me to apply for upliftment of the bar.

Mr Stewart: The applicant stands prejudiced. There are no triable issues. The defendants' plea merely indicates that they have been experiencing difficulties in paying the plaintiff. That is no defence. In subsequent correspondence they admit owing the applicant. Heads of argument were filed at the 11th hour. They now seek to uplift the bar.

Ms Mazhandu: I am not privy to any of the correspondence. This matter cannot be finalised on summary judgment. There are so many issues raised. I refer to the notice of opposition; the respondent has a bona fide defence and all the agreements referred to are not part of the record. They are also not part of the applicant's case. I therefore do not see the prejudice if the bar is uplifted.”

The above exchanges make it clear that the application for upliftment of the bar was made as an afterthought without careful consideration of the legal requirements for such an application to succeed.

Where a litigant has been barred, the other party gains an advantage that cannot be easily swept away. Rule 84 provides for the required procedure for upliftment or removal of a bar as follows:

“84. Removal of bar and effect

(1) A party who has been barred may —

(a) Make a chamber application to remove the bar; or

(b) Make an oral application at the hearing, if any, of the action or suit concerned;

And the judge or court may allow the application on such terms as to costs and otherwise as he or it, as the case may be, thinks fit.

(2) The withdrawal or removal of a bar shall not preclude a subsequent bar for subsequent default.”
[Rule substituted by S.I.33 of 1996]

Thus, before the bar can be lifted, the barred party has an onerous duty to justify the upliftment of the bar. Unless the other party consents to the upliftment of the bar, the barred party must apply for the upliftment of the bar, either in writing or orally at the hearing. The application should be supported by an affidavit or some other facts which must:

(a) Give good and sufficient reasons or excuse for the delay.

(b) Sufficiently address the applicant's prospects of success on the merits.

In Markides and Hessam v Levendale 1954 SR 77 BEADLE J…, emphasised the need to satisfy both requirements. In that case, the learned judge rejected as inadequate an averment in an affidavit simply stating that “the defendant's plea disclosed a valid and bona fide defence to the plaintiff's plea.”

Thereafter, he proceeded to remark that in matters of this sort the defendant should set out in his affidavit, briefly, what his defence is, what the facts are on which he relies for his defence, so that the court can form some opinion on the merits of his defence.

It is needless to say that the applicant's application falls far too short of the legal requirements in all material respects insofar as it does not state the reasons for delay and fails to articulate the applicant's prospects of success on the merits. His application amounts to no more than simply stating that he must be accorded his right to be heard otherwise the court would have denied him his Constitutional right to a fair trial.

This argument is untenable in circumstances where he has failed to articulate the basis of his defence. In particular, he dismally failed to deal with and rebut the allegation that his plea raises no triable issue as he admitted liability as alleged.

There is no substance in that complaint because the applicant was accorded the right to be heard and he wasted that chance and has not proffered any reasonable excuse as to why he failed to act within the stipulated time frame.

As previously stated in the original draft, the applicant sought an order against both respondents but has since withdrawn its claim against the first respondent. Consistent with that withdrawal the applicant has now amended its claim to reflect the withdrawal by dropping the first respondent's name from the proceedings. I can perceive no prejudice to the second respondent arising from the withdrawal because he was always liable to pay the full amount claimed as the plaintiff's claim was, right from the onset, joint and severally one paying and the other to be absolved.

The claim being for a debt or liquidated demand, it is competent to award summary judgment in terms of Rule 64. The application can therefore only succeed in terms of the amended draft. It is accordingly ordered:

1. That the application for removal of the bar against the second respondent be and is hereby dismissed.

HH399-18 : AMON MAPIYE vs INNOCENT MUDYIWA
Ruled By: NDEWERE J

The background of the case is that the plaintiff, Amon Mapiye, got into a customary union with his wife, Nomsa Faith Mapiye (nee Mwazha), in 1999. Their union was initially blessed with two children, in May 2001 and 15 October 2005.

On 24 April 2007, the plaintiff and his wife solemnised their marriage in terms of the Marriage Act [Chapter 5:11]. On 3 September 2008, they were blessed with a third male child.

By all standards, the marriage was stable and happy up to 2008, as evidenced by the solemnisation of the customary union on 24 April 2007, followed by the birth of a son on 3 September 2008. Then came a third party, in the name of Innocent Mudyiwa, the defendant, to intrude upon this marriage sometime in 2008.

The plaintiff was alerted, in 2009, by some suggestive text messages which were being exchanged between Innocent, the defendant, and his wife, which he saw on his wife's mobile phone. The plaintiff confronted both the defendant and his wife about the text messages. In particular, he alerted the defendant to the fact that Nomsa Faith Mapiye was married to him in a monogamous union. Both the defendant and the plaintiff's wife denied having an adulterous relationship. The plaintiff accepted the denial and let the matter rest.

About four years later, on 23 February 2013, the plaintiff's wife delivered a fourth male child.

In the first week of October 2014, the plaintiff issued summons for divorce from his wife in HC8879/14. He said their marriage had irretrievably broken down. The particulars of the breakdown which he gave were:

(a) That the defendant no longer loved him and was falsely accusing him of adultery.

(b) That the defendant had moved out of the matrimonial bedroom for the past one year and eight months, thereby denying him conjugal rights.

(c) That the defendant had abandoned the family business, donated her 5% shares to her last child, obtained an exit package, and was now working at her father's surgery.

(d) That the defendant had sent her aunt to collect a divorce token from the plaintiff's father as confirmation that she was no longer interested in the marriage.

If the defendant had been out of the matrimonial bedroom for one year and eight months on 2 October 2014, when the plaintiff signed the divorce summons, it means she moved out twenty months before 2 October. Therefore, she moved out of the matrimonial bedroom in 2013, shortly after delivering the last child because twenty months from 2 October 2014 takes us back to March 2013.

The plaintiff's wife continued to stay at the matrimonial house, but, she was effectively on separation from her husband since March 2013, when she moved out of the matrimonial bedroom, resigned from the family business, and donated her shares to the last child.

Her message was clear - she no longer wanted anything to do with the plaintiff or his business. Hence, the plaintiff responded by issuing summons for divorce.

While the divorce matter was still in progress, in February 2017, the plaintiff overheard a telephone conversation between his wife and the defendant, and, from what he heard, it appeared there was an argument between the defendant and his wife over her last child. The defendant was claiming the last born child from the plaintiff's wife, Nomsa Faith Mapiye, saying the child was his child.

The plaintiff confronted his wife, Nomsa Faith Mapiye, who confessed about the adultery with the defendant since 2008 and stated that her last child was a product of that adulterous relationship with the defendant.

After his wife's confession, the two agreed to go for DNA tests to check the paternity of the child. They went for the tests on 13 February 2017. The results were that there was a 0% chance of the plaintiff being the father of the last born child.

An uncontested Divorce Order was finally granted on 12 October 2017 by this court. In the Divorce Order, the plaintiff was absolved from maintenance and access obligations towards the last child.

Following his wife's confession of adultery with the defendant, the plaintiff issued summons against the defendant for adultery damages on 22 February 2017, which is the case I am seized with.

The defendant filed an appearance to defend on 28 February 2017. The defendant did not file any plea and, on 4 April 2017, the plaintiff filed a notice to plead and intention to bar and gave the defendant five days to deliver his plea or get barred. No plea was filed, and, on 4 May 2017, the defendant was barred.

The plaintiff applied for default judgment, and, this being a damages claim, the matter was referred to the unopposed roll.

The plaintiff filed Heads of Argument in support of his claim. He also filed an affidavit of evidence.

The matter was initially set down for 6 September 2017. On 31 August 2017, the plaintiff's lawyers wrote to the Registrar of the High Court indicating that the parties were making efforts to settle the matter out of court. No settlement ensued thereafter so the matter was eventually set down as unopposed for 10 January 2018....,.

As correctly pointed out by TREDGOLD CJ in Doyle v Salgo 1957 R & N 840 (FSC)…, or 1958 (1) SA 36 (FSC)…, in an undefended case involving a claim for adultery damages which was quoted with approval by ROBINSON J on p257 of Katsumbe v Buyanga 1991 (2) ZLR 256 “the fact that an action for damages is undefended does not relieve the judge from the obligation of scrutinising the evidence closely.”

SSC36-20 : TONIC MANGOMA vs THE STATE
Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

This is an automatic appeal against both conviction and sentence. The appellant was convicted of murder with actual intent by the High Court sitting on circuit at Gweru on 22 September 2014.

Upon conviction, the penalty of death was imposed.

After hearing argument from counsel, this Court made the following order:

“It is ordered that:

1. The appeal against conviction is dismissed.

2. The appeal against sentence is allowed.

3. The sentence of death imposed by the court a quo is set aside.

4. The matter is remitted to the court a quo for consideration and imposition of an appropriate sentence.”

The court stated that the full reasons for the order would follow. These are the reasons.

NON-INVOLVEMENT OF THE STATE

This appeal was initially set down on 11 September 2018. The appeal could not be heard on that date because the respondent had not filed heads of argument and needed time to do so. Counsel for the respondent requested a postponement to enable her to file heads of argument. The court acceded to that request and issued the following order:

“It is ordered that:-

The appeal is postponed sine die to allow the respondent to file heads of argument following the late filing of the notice of appeal.”

I must add that the Notice of Appeal had been filed only on 7 September 2018 giving the respondent little time to file heads of argument.

When the appeal was again set down for hearing, the respondent still had not filed heads of argument. Counsel for the respondent, again, appeared and sought a further postponement of the appeal. She admitted having been served with the Notice of Appeal in September 2018 and being timeously served with the Notice of Set Down. She however submitted that the matter had been allocated to someone else at the office of the National Prosecuting Authority who did not file heads of argument.

As to why that officer had not appeared before the court to explain her failure to act and why she was not making the application for a postponement herself, counsel did not give a satisfactory explanation.

It is clear that the office of the National Prosecuting Authority has been tardy in its handling of the matter and has not given it the attention that it deserves.

In terms of Rule 52(3) of the Supreme Court Rules, 2018, where the respondent is to be represented by a legal practitioner at the hearing of the appeal, that legal practitioner shall file a document setting out the heads of his or her argument together with a list of authorities cited in support, within ten days of receipt of the appellant's heads of argument.

Subrule (5) of Rule 52 provides for an automatic bar against a failure to file heads of argument timeously.

The appellant's heads of argument were filed and served on the respondent on 30 May 2018 but the respondent, even though represented by counsel, did not file its own heads of argument up to the date of the initial set down on 11 September 2018 on the pretext that the Notice of Appeal had not been filed and served on time. This Court gave the respondent an indulgence and postponed the matter sine die to allow enough time for the settling of the heads of argument.

The indulgence was spurned.

It is the view of this Court that the respondent could not possibly expect a further indulgence of another postponement. In fact, there was nothing suggesting that the respondent was treating this Court with the respect that it deserves.

While it is the right of the prosecution, in any criminal appeal, to defend the conviction, and, indeed, the sentence of convicted persons, that right should be exercised within the confines of the law and the four corners of the Rules of Court.

The court has always leaned in favour of according the National Prosecuting Authority the opportunity to present its cases and to be heard. In that regard, they have always been indulged in the discretion of the court. Unfortunately, the leniency extended to that office has been completely misunderstood. It is certainly not a licence for treating the Rules of Court with disdain.

Indeed, there are no special rules governing the National Prosecuting Authority. It is a party to proceedings just like any other litigant and is required to abide by the Rules.

Where there has been a failure to comply or there has been a delay, a reasonable and satisfactory explanation for failure to comply or to act timeously must be rendered.

No meaningful explanation for the failure to file heads of argument was given - even after an indulgence had been extended to the respondent on a previous occasion.

This is a case in which the appellant was convicted and sentenced to death on 22 September 2014. A capital sentence has been hovering over his head for almost six years. It is completely unacceptable, in the circumstances, for the respondent to behave as if it is business as usual.

It is for these reasons that this Court refused the application for a further postponement and proceeded to hear the appeal as unopposed.

SC37-20 : ROSEMARY BASTIN vs KUFA MADZIMA (IN HIS CAPACITY AS THE EXECUTOR OF THE ESTATE LATE MARIMO MADZIMA)
Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

This is an appeal against the whole judgment of the High Court handed down on 20 February 2019 which granted summary judgment in favour of the respondent for the eviction of the appellant, and all those claiming occupation through her, from Stand No.3437 Highfield Township, Harare (“the property”) after dismissing the appellant's application for condonation of the late filing of heads of arguments in opposition to the summary judgment application.

The facts of the matter are these;

The respondent's father, Marimo Masawi Madzima, died at Marondera in 1985. He was the registered owner of the property. Following his death, the respondent was appointed heir to, as well as executor of, the estate. In 2001 the respondent engaged the law firm of Karuwa and Associates with instructions to dispose of the property. In due course, and entirely without the authority and consent of the respondent, that law firm sold the property to the appellant.

The appellant took transfer of the property and held title by Deed of Transfer No.1948/2007.

The respondent was aggrieved. He instituted an action in the court a quo against the appellant and others under case number HC2120/07, inter alia, for the cancellation of the sale and the return of the property to its rightful owner.

Although the action was contested, the respondent was successful.

By judgment delivered on 23 May 2012, being HH221-12, the court a quo found that the transfer to the appellant had been fraudulent and that the owner of the property was entitled to vindicate his title against any other person in possession of the property. The order which was issued included an award of costs on the legal practitioner and client scale against the law practice of Karuwa and Associates.

As the appellant remained in occupation of the property notwithstanding the judgment of the court a quo referred to above, which was only appealed against by Karuwa and Associates in respect of the award of costs, the respondent instituted action proceedings for eviction under case number HC1025/18.

The action was opposed by the appellant whose only discernible defence was that the judgment of the court a quo, in terms of which her claim was dismissed, had been taken on appeal to this Court under case number SC211/18.

As it turned out, that was an appeal lodged by Karuwa and Associates against only a part of the judgment “that granted costs” against the law firm and nothing else.

The respondent was understandably un-impressed, and, believing that the appellant did not have a bona fide defence, and that appearance to defend had been entered for dilatory purposes only, made an application for summary judgment.

Although the appellant still opposed to the application, maintaining that no relief could be afforded the respondent by summary judgment, her legal practitioners failed to file heads of argument within the time allowed by the Rules of Court. She was therefore automatically barred in terms of Rule 238(2b) of the High Court Rules, 1971.

The appellant did not file a formal application for the upliftment of the bar.

Instead, counsel for the appellant still proceeded to file heads of argument out of time in which she sought to lead evidence from the Bar on the reasons for failure to timeously file the heads of argument.

At the hearing before the court a quo, an application for condonation of the late filing of the heads of argument was then made on behalf of the appellant - from the Bar.

The application was dismissed and the court a quo proceeded to determine the summary judgment application on the merits unopposed.

It granted the application.

The appellant was not happy with that turn of events. She has noted an appeal...,.

View Appeal
SC47-20 : ROBSON MAKONI vs CBZ LIMITED
Ruled By: GWAUNZA DCJ, GUVAVA JA and MAKONI JA

This is an appeal against the whole judgment of the High Court sitting at Harare in which the court dismissed an application for rescission of a default judgment entered against the appellant on 23 July 2015.

BACKGROUND FACTS

On 19 March 2015, the respondent issued summons against the appellant in the High Court under Case No. HC2525/15, wherein it claimed the sum of US$521,083=41 being the capital claim of US$258,019=29, interest adjusted by the in duplum rule in the sum of US$258,019=29 and bank charges in the sum of US$5,044=83. The respondent further claimed interest on the amounts at the rate of 28 percent per annum from the date of demand, being 24 February 2015, to the date of full and final payment.

The summons were served on the appellant on 30 April 2015. He filed a Notice of Appearance to Defend (the Notice) on 12 May 2015 through his legal practitioners, Messrs Nyikadzino, Simango & Associates. The Notice was duly served on the respondent's legal practitioners on 20 May 2015.

The Notice, so filed and served, had no reference of the legal practitioner handling the matter on behalf of the appellant.

Pursuant to this Notice, the respondent filed a Notice to Plead and Intention to Bar on 27 May 2015. It was served on Messrs Nyikadzino, Simango & Associates on 1 June 2015 with no reference of the legal practitioner handling the matter on behalf of the appellant, as it had not been provided on the Notice.

On receipt of the Notice to Plead, the appellant did not file any plea or other response. As a result, a bar was effected on 23 June 2015. A copy of that bar was served on Messrs Nyikadzino, Simango & Associates on 25 June 2015.

On 10 July 2015, the respondent filed a chamber application for default judgment. The default judgment was duly granted on 23 July 2015.

On 24 July 2015, a day after judgment had been granted against him, the appellant filed a chamber application for the upliftment of the bar in terms of Rule 84 of the High Court Rules, 1971 (the Rules).

Subsequently, he filed the application for rescission of the judgment on 12 August 2015.

Appealed
SC56-20 : MOVEMENT FOR DEMOCRATIC CHANGE and NELSON CHAMISA and MORGAN KOMICHI vs ELIAS MASHAVIRA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA
Ruled By: GARWE JA, PATEL JA and GUVAVA JA

This is an appeal against the entire judgment of the High Court, sitting at Harare, handed down on 8 May 2019, in which the following order was granted:

1. The appointment of the 2nd and 3rd respondents as Deputy Presidents of the Movement for Democratic Change party were unconstitutional therefore null and void.

2. The appointments of the 2nd respondent, as Acting President and President of the Movement for Democratic Change party, were unconstitutional and therefore null and void.

3. All appointments and/or re-assignments and actions of the 2nd respondent, in his purported capacities as Deputy/Acting or incumbent President, were unconstitutional and therefore null and void.

4. The 1st respondent be and is hereby ordered to hold an Extra-Ordinary Congress after the lapse of at least one month after the date of this Order.

5. The respondents are ordered to pay the applicant's costs of suit, jointly and severally, the one paying the others to be absolved.

The Background

The first appellant is the Movement for Democratic Change, a political party which has capacity to sue and be sued in its own name (“the Party”).

The remaining protagonists are members of the Party who were cited as follows in the court a quo;

The second appellant is the President of the Party, while the third appellant is its National Chairman.

The first respondent, who was the applicant a quo, is the Organising Secretary for the Gokwe Sesame District. The second respondent is the Deputy President, the third respondent is the Acting President and the fourth respondent is the Secretary General of the Party.

The facts relating to this matter are as follows;

On 15 July 2016, the second appellant and the second respondent were appointed Deputy Presidents of the Party by the founding President, the late Dr Morgan Richard Tsvangirai. At the time these appointments were made, the post of Deputy President was occupied by the third respondent, having been elected as such at the Party's Congress held in October 2014.

Following the death of Dr Tsvangirai, on 14 February 2018, a special National Council meeting was convened, on 15 February 2018, whereat the second appellant was confirmed as the Acting President of the Party.

On 24 September 2018, the first respondent launched an application in the High Court challenging the validity of the President's appointment of the second appellant and second respondent as Deputy Presidents of the Party. He averred that such appointments were made ultra vires the Party's constitution as they were not done via an election by Congress. The first respondent argued that the meeting of 15 February 2018 was a non-event as the National Council did not have powers to ordain an Acting President or a President of the Party. He further emphasised that Article 9.21.1 of the Party's constitution was clear that, upon the death of the President, the Deputy President assumed the role of Acting President. As such, he argued that the third respondent, as the duly elected Deputy President of the Party, became Acting President upon the death of Dr Tsvangirai, and was obliged to call for an Extraordinary Congress within a year.

The third appellant opposed the application and deposed to an affidavit on behalf of the first and second appellants as well as the second and fourth respondents. He took four preliminary objections to the application;

(i) Firstly, he contended that the first respondent did not have locus standi to represent the first appellant as he had not produced a solemn declaration reflecting proof of acceptance of his membership of the Party.

(ii) Secondly, he stated that the first respondent's delay in raising his complaints was inordinate and would cause prejudice as many developments had occurred since the appointments under challenge. Further, he claimed that the first respondent had waived his rights to challenge the appointments.

(iii) Thirdly, he argued that the first respondent ought to have exhausted internal remedies provided in the Party's constitution by noting an appeal to its Appeal's Tribunal.

(iv) Lastly, the third appellant contended that the order directing the first appellant to hold an Extra-Ordinary Congress was incompetent relief in an application for a declaratur.

Regarding the merits of the application, the third appellant disputed the validity of the Constitution relied on by the first respondent. He submitted that the “true Constitution” was attached to the late President's opposing affidavit in the case of Patson Murimoga & Anor v Morgan Richard Tsvangirai & Ors HC7453/16.

The third appellant also argued that the appointments by the late President were made in terms of Article 9 of the Constitution which gave the President power to appoint deputies to “officers of Congress” on the instructions of the National Executive and the National Council. It was submitted that the appointments were made on the instructions of the National Council and ratified by the same in terms of Article 18 of the Party's constitution.

The third appellant further submitted that the subsequent occupation, by the second appellant, of the office of Acting President, was valid as it was the result of unanimous assent and was based on the second appellant's valid election as Deputy President.

In his replying affidavit, the first respondent challenged the validity of the third appellant's opposing affidavit. He stated that, in the absence of a mandate from the other parties, the third appellant could not depose to solemn facts on their behalf.

Further, he contended that the third appellant had not shown that he was authorised to represent the Party.

Lastly, the first respondent took the position that the first appellant, together with the second, third, and fourth respondents, were barred for having failed to file their opposition to the application.

Determination of the Court A Quo

On the preliminary objections raised by the parties, the court a quo made the following rulings;

It held that the first appellant was barred for having failed to file an opposing affidavit, as the third appellant, who purported to act on its behalf had failed to show proof of his authority. The court also held that the second and fourth respondents were barred for having failed to file their own opposing papers, while the third respondent was barred for having failed to oppose the application.

In relation to the first respondent's locus standi to institute the proceedings, the court held that his membership card was sufficient proof of his membership of the Party.

Regarding the issue of exhaustion of internal remedies, the court a quo reflected that the relief sought by the first respondent would not be competently granted by the Party's appeals tribunal. The court reasoned that it was more probable that the appeal would not be heard in an impartial manner due to the composition of the Appeals Tribunal.

On the issue of waiver of the first respondent's right to challenge the appointments, the court found that the first respondent had timeously approached the court after he became aware of his rights through a legal opinion furnished to the Party.

On the merits of the application, the court held that the appointments of the second appellant and second respondent, as Deputy Presidents of the Party, having by-passed the electoral process, were ultra vires the Party's constitution.

The court reasoned that the Constitution clearly provided that a Deputy President could only hold office by virtue of an election by Congress. This position was fortified by the court's interpretation of several provisions of the Party's constitution. The court considered the provisions of Article 6.4.4, which relate to the composition of the National Standing Committee. In particular, Article 6.4.4.1 was clear that a member could only occupy the office of Deputy President pursuant to an election at Congress. The late President had acted contrary to this provision by “picking” the second appellant and the second respondent as Deputy Presidents. The court also had regard to Article 9 of the Constitution which provides for the functions of various office bearers, including Deputy Presidents. In particular, Article 9.14 stipulates that all office bearers hold office by virtue of winning an election in Congress in terms of Article 6.4.4. The court highlighted that the President's powers of appointment, in terms of Article 9.1.4, had to be exercised “where such is provided for in the Constitution.” Thus, the President could only appoint the Secretary for Elections in terms of Article 6.4.4(k). The court further indicated that Article 9 listed office bearers and the Deputy President in the singular. In light of this, the court reasoned that the mention of Deputy Presidents in the plural was a typographical error.

The court further considered the powers of the National Council, in terms of Article 18 of the Constitution, to cure an oversight or omission in the appointment of office bearers. The court held that the contention that the National Council had delegated to the late President the power to make the contested appointments was not supported by the evidence. The oversight or omission sought to be cured was not identified in the papers pertaining to the deliberations of the National Council in 2016. Accordingly, Article 18 could not aid the appellants' case. Neither the President nor the National Council could bypass the requirement of holding an election at a Congress to fill those offices that were already provided for under the Constitution.

Additionally, the court took the view that the Party was founded on constitutionalism and social democracy, as per Article 3.1. Thus, the imposition of Deputy Presidents, by the late President, and the imposition of the second appellant as Acting President, acting in concert with the National Council, at its meeting on 15 February 2018, was contrary to those founding values.

In light of these considerations, the court a quo held that the contested appointments were unconstitutional and granted the order aforementioned.

Consequently, the court applied the provisions of Article 9.2.1(b) of the Constitution, in terms of which the Deputy President becomes the Acting President, where the President is unable, for any reason, to perform his or her powers, functions, or administrative duties. The court accordingly concluded that at the time of the late Dr Tsvangirai's death, the third respondent was the Deputy President and ought to have assumed presidential duties, pending the holding of an Extra Ordinary Congress to elect a new President, in terms of Article 9.21.1 of the Constitution.

Grounds of Appeal

There are numerous grounds of appeal herein, some of which are repetitive or should have been conjoined. They are reproduced verbatim as follows:

1. The court a quo erred in coming to the conclusion that first appellant was barred for failing to file an opposing affidavit and so erred in treating a valid affidavit deposed to by the third appellant as pro non scripto, and, in proceeding to determine the matter without hearing the first appellant.

2. A fortiori, the court a quo erred in proceeding in a manner which is in violation of the first appellant's constitutionally-protected right to be heard before an independent and impartial court as envisaged by section 69(2) of the Constitution of Zimbabwe, 2013.

3. Having found that the Constitution relied upon by the appellants at least contemplated the appointment of Deputy Presidents, the court a quo misdirected itself in concluding, without hearing evidence on this material issue, that the reference to Deputy Presidents in that Constitution was a typographical error.

4. A fortiori, the court a quo erred in writing a Constitution for the first appellant and in irregularly bringing it under the authority of such a document.

5. The court a quo erred in not concluding that the appointment of Deputy Presidents in the first appellant was in accordance with the Constitution of that party, had been mandated by congress and the highest decision making organ outside congress, and was, for all purposes, valid as a unanimous decision of a voluntary association.

6. Having been addressed on the law governing voluntary organisations and its effect on the subject before it, the court a quo misdirected itself in not pronouncing itself on that issue and in not deciding a question which was material to the decision required of it.

7. The question of the proper Constitution for the first appellant having been previously resolved in terms of an extant judgment in a matter which involved the same parties and/or at least their privies, the court a quo erred in allowing that issue to be re-opened and in founding its judgment on a Constitution which is foreign to the first appellant.

8. The court a quo erred in treating, without a valid legal or factual basis, the domestic remedies set out under the first appellant's Constitution as ineffectual and in not requiring, in accordance with superior court authority, the exhaustion of those remedies ante the bringing of the matter to court.

9. The court a quo misdirected itself, such misdirection amounting to an error in law, in not finding that the first respondent's participation in the activities of the first appellant, under the leadership of the second appellant, and duration of same, estopped him from contending against the validity of his appointment to the prejudice of the first appellant.

10. The ordinary congress for the first appellant having become due, the court a quo erred in finagling upon that party an extra ordinary congress and so erred in creating a totally untenable position which is at variance with the first appellant's Constitution and is totally unworkable either in fact and/or in law.

11. The court a quo erred in intervening, without a valid legal or factual basis, in the workings of a voluntary association and in subordinating its statutes and unanimous assent to the whims of a dishonestly disgruntled individual....,.

Issues for Determination

Before commencing his submissions, Mr Mpofu indicated that he was abandoning the tenth ground of appeal which avers that the court a quo had “finagled” upon the Party an Extra-Ordinary Congress which was at variance with the Party's constitution.

In my view, he should also have been forthright in abandoning the related seventh ground of appeal which impugns the court a quo for having founded its judgment on a Constitution which was “foreign” to the first appellant. Clearly, this latter ground simply cannot be sustained given the position eventually accepted, and confirmed, by his co-counsel that the document availed by the Court, which was identical to that contained in the appeal record as well as that attached to Dr Tsvangirai's opposing affidavit in Case No. HC7453/16, is the only true and authentic Constitution of the Party for present purposes.

It is that very document which was also relied upon by the court a quo in formulating its judgment.

It follows that the seventh ground of appeal must also be jettisoned. It is accordingly ordered that both the seventh and the tenth grounds of appeal be struck out.

I now turn to the remaining nine grounds of appeal.

As I have already intimated, some of the grounds of appeal ought to be combined so as to rationalise their disposition. On that basis, I consider the following to be the salient issues for determination in casu:

(a) Whether the first appellant was correctly barred a quo, and, consequently, denied the right to be heard.

(b) Whether the first respondent should have exhausted the domestic remedies afforded by the Party constitution before instituting the application a quo.

(c) Whether the first respondent was estopped from challenging the validity of the second respondent's appointment as the leader of the Party.

(d) Whether the reference to Deputy Presidents (in the plural) in the Party constitution was a mere typographical error.

(e) Whether the appointment of the second appellant and the second respondent, as Deputy Presidents of the Party, and the subsequent appointment of the second appellant as its Acting President, were valid as being in accordance with the Party constitution.

(f) Whether there was any valid legal or factual basis for the court a quo to intervene in the workings of the Party as a voluntary organisation.

Status of First Appellant A Quo

In his opposing affidavit a quo the third appellant (Mr Komichi) declares that he is “the National Chairman of the [first appellant] by whom I am duly authorised to depose to this affidavit in my capacity as National Chairman.”

The court a quo found that the first appellant was barred for having failed to file its own opposing affidavit and that the third appellant, who purported to act on its behalf, had failed to demonstrate his authority to do so.

Mr Mpofu submits that Mr Komichi's affidavit clearly speaks to the status and locus standi of the Party and that there was no need for him to have been authorised for that purpose. The judgment a quo materially affected the rights and interests of the Party to its prejudice and it should therefore have been afforded the right to be heard. In any event, the first respondent could not drag the Party to court and then claim that it had no locus standi. Furthermore, even if the Party were to be held to be in default a quo, it is entitled to appeal against the judgment a quo given that it was final and definitive in its effect vis a vis the Party.

Mr Mutungura counters that no person claiming to act on behalf of another can do so without authority. A body corporate, being an artificial person, cannot act by itself and any person claiming to act on its behalf must be clothed with authority to do so. In the instant case, Article 6.6.1(j) of the Party constitution allows its National Executive Committee to institute and defend legal proceedings against the Party. It was therefore necessary for that Committee to appoint Mr Komichi to act on behalf of the Party.

Mr Madhuku supports this position and further submits that the holding of executive office did not entitle Mr Komichi to depose on behalf of the Party. In any event, the Party was fully heard a quo through the third appellant's (Mr Komichi) averments and submissions.

I note, first and foremost, that the cases relied upon by counsel for the respondents, i.e. Crown & Anor v Energy Resources Africa Construction SC03-17 and Madzivire & Ors v Zvirivadza & Anor 2006 (1) ZLR 514 (S), were both concerned with corporate bodies as opposed to voluntary organizations.

In the latter instance, particularly where a political party bedevilled by a leadership wrangle is involved, it may be necessary to adopt a less rigid approach to questions of locus standi and authority to depose. The principal mischief that is to be guarded against is to avoid the situation where the organisation in question is litigated for by an un-authorised person without its specific sanction.

As is reasoned by HERBSTEIN and Van WINSEN: The Civil Practice of the Superior Courts in South Africa (3rd ed.)…,:

“Any person who can swear positively to the facts will be sufficient and no special authority to him or her by the Plaintiff is necessary for the affidavit to be effective.”

The difficulty in casu, however, is that Mr Komichi's opposing affidavit is somewhat laconic and lacking in particularity as to the specific mechanism by which he was authorised by the Party to depose to his affidavit.

It is not evident whether this was by resolution of the National Executive Committee or by some other committee or functionary within the Party. Nor does Mr Komichi affirm that he can swear positively to the facts deposed to in his affidavit. Be that as it may, I do not think that it is necessary, for present purposes, to determine this particular aspect of the appeal. As is conceded by Mr Mpofu, the second and third appellants were represented and heard through the same counsel that represented the first appellant. Given this context, his belated prayer that the matter be remitted to the court a quo to hear the first appellant would entail nothing less than an exercise in judicial futility.

I agree with Mr Madhuku that the first appellant was adequately represented in the proceedings a quo, and, despite having been non-suited, was afforded the right to be heard.

Insofar as concerns the present appeal, there can be no doubt that the first appellant has had more than ample opportunity to be very ably represented and fully heard in the proceedings before us. All in all, I take the view that the first ground of appeal is entirely otiose and need not detain this Court any further.

View Appeal
HH302-19 : ELIAS MASHAVIRA vs MOVEMENT FOR DEMOCRATIC CHANGE (MDC) and NELSON CHAMISA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA and MORGAN KOMICHI
Ruled By: MUSHORE J

The applicant is a member of the Movement for Democratic Change [hereinafter “MDC” or 'the party”) having joined the party in 2000. He is also currently the Organising Secretary for the Gokwe Sesame District of the party.

The respondents were cited by the applicant as follows;

(i) The first respondent is the Movement for Democratic Change Party.

(ii) The second respondent is Nelson Chamisa, who is cited in his capacity as the President of the party.

(iii) The third respondent is Elias Mudzuri, who is cited in his capacity as Deputy President of the party.

(iv) The fourth respondent is Thokozani Khupe, who is cited in her capacity as the Acting President of the party.

(v) The fifth respondent is Douglas Togaraseyi Mwonzora who is cited in his capacity as the Secretary General of the party.

(vi) The sixth respondent is Morgan Komichi, who is cited in his capacity as the Acting Chairman of the MDC.

This is an application for declaratory relief declaring;

(a) The second and third respondents appointments as Deputy Presidents of the MDC unconstitutional and thus null and void; and

(b) Declaring that the second respondent is not the Acting President/President of the party; and

(c) Declaring all appointments, re-assignments and actions done by the second respondent as the Acting President/President of the party null and void.

The applicant is also desirous of obtaining an order compelling the party to hold an Extra–Ordinary Congress.

It is a common cause that the late President of the party, Dr Morgan Richard Tsvangirai appointed the second and third respondents as Deputy Presidents in 2016. It is also common cause that Dr Morgan Richard Tsvangirai passed away on 14 February 2018. It is not in dispute that thereafter, on 15 February 2018, a day after the late President's passing, at a meeting of the Executive Committee and the National Council, the second respondent (who described himself in the minutes as being the Acting President), was, by a resolution of the meeting, appointed as the President of the party. It is also common cause that the fourth respondent was elected Deputy President at a National Congress which was held in 2014.

However, it is the manner by which the second respondent ascended to his position of President that has driven the applicant to make the present application challenging that present status quo of the leadership within the party, combined with a challenge to the manner by which the second and third respondents rose to their Deputy Presidential posts, sometime in 2016, without being elected into office.

The applicant has described his concerns as follows in his founding papers;

According to him, the late President, Dr Tsvangirai, did not have any powers conferred to him in terms of the MDC Constitution to appoint two Deputy Presidents as he did in 2016. He alleges that the late President acted ultra vires the Constitution. Thus, according to the applicant, any such appointments, by choice, were unconstitutional, and thus void for unconstitutionality. He produced the booklet version of the Constitution of the Party with his papers and referred to various provisions in the Party's Constitution in support of his contentions.

Insofar as the fourth respondent is concerned, it is the applicant's case that according to the Party's Constitution, she is the only person who is eligible to be the Acting President by virtue of her being elected Deputy President at a Congress in 2014; and by virtue of her has continued to hold that position up until the date of Dr Tsvangirai's demise.

Regarding the second respondent becoming President of the party, the applicant is alleging that the assumption, by the second respondent, to the position of President of the Party, was in defiance of the provisions of the Constitution of the Party. He alleges that that rise to the position of President, by the second respondent, is void for unconstitutionality.

Using the applicant's own words he describes the events leading to the second respondent assuming the Presidency of the Party as being a “well–choreographed move to usurp the throne.”

The applicant casts doubt on what he describes as being “second respondent's ascendancy to the title of President of the party” which he states was done in breach of the Constitution.

The applicant alleges that on 15 February 2018, the second respondent purported to call a meeting of the National Executive Committee and the National Council at which resolutions were made 'to ordain' the second respondent as President of the party. He attached minutes of the meeting convened by the second respondent at which he states that neither House made such a resolution and that both Houses, and I quote, “pretended to accept the second respondent as the President of the party.”

The applicant also stated that prior to launching the present application he took legal advice after reading a legal opinion on the issue of the legality of the Presidency. The legal advice he received encouraged him to file the present application. He also stated that he learned, from such legal advice, that the meeting which took place on 15 February 2018, a day after the death of Dr Tsvangirai, did not have constitutional powers to ordain either an acting or substantive President.

The applicant also complained that he had not been invited to the meeting of 15 February 2018 in circumstances where he should have been invited in his capacity of a delegate to that Congress. The applicant also pointed out that the meeting of 15 February 2018 was just an Ordinary Congress and that it is a meeting of an ExtraOrdinary Congress in which such party business pertaining to leadership should be discussed and not just an Ordinary Congress as was the case in the present matter.

The applicant stated that the hastily convened meeting, by the second respondent, of the party's Standing Committee; the National Executive Committee and the National Council, on 15 February 2018, was void for unconstitutionality because the second respondent had no such powers to convene such a meeting.

The application is opposed....,.

The sixth respondent stated that the booklet Constitution which the applicant had produced as evidence, did not accurately reflect what the sixth respondent calls 'the true Constitution”. However, the sixth respondent did not attach the version of the “true Constitution” which he was making reference to; save by referring the court to examine another court record in the case of Patson Murimoga and Anor v Morgan Richard Tsvangirai & Ors HC7453/16.

I noted that even though the sixth respondent paid homage to another version of the Constitution, the sixth respondent still relied on the booklet Constitution which was the applicant's version of the Constitution when he made his legal submissions. It seems he then forgot to point out the differences between the applicant's version and his version of the Constitution for the remainder of his submissions.

The sixth respondent submitted that the late President had powers conferred on him by virtue of Article 9 to appoint the Deputy Presidents (as he did in 2016) and that, as such, Article 9 validated the legitimacy of the appointments of the second and third respondents as Deputy Presidents by Dr Tsvangirai. The sixth respondent then went on to state that the late President's actions, in appointing the second and third respondents as Deputy Presidents, were as a result of the National Council has delegated its authority to the late Dr Tsvangirai to appoint those deputies with its approval, in terms of Article 18 of the MDC Constitution. The sixth respondent pointed to the mention of Deputy President(s) in the plural in Article 6.4.4.1(a) as being “evidence that the Constitution allowed for more than one Deputy President to the party.”

With respect to the appointment of the second respondent as President of the party, the sixth respondent justified the appointment of the second respondent by stating that the second respondent was “the preferred choice” of all three Deputy Presidents and that the appointment was unanimous.

He also added that the applicant accepted that appointment by the applicant having continued to be an active member of the party.

In reply to the Notice of opposition, apart from challenging the averments made by the sixth respondent, the applicant raised two points in limine pertaining to the automatic bar which he submitted was in place against all of the respondents and which he alleged prevented all of the respondents from proceeding to present their respective arguments on the merits....,.

(i) Whether the first, third, fourth and fifth respondents were barred for failing to file opposing affidavits

The first, third, fourth and fifth respondents did not file individual opposing affidavits at all. The first, second, third, and fifth respondents' names, however, appeared on the sixth respondent's affidavit which was entitled:

“1st, 2nd, 3rd, 5th and 6th Respondents' Notice of Opposition.”

It is trite that a party cannot make averments under oath on behalf of a party for facts which he cannot swear positively to; and for which he has not been granted the authority to make such representations.

The sixth respondent presented his affidavit in an improper form.

The Rules do not allow a party to act in a representative capacity to other respondents without the veracity of the authority to make averments on behalf of those respondents being shown and approved to be in order by the Court. At the very least, there must be an averment in the affidavit as to how the respondent purports to act in such representative capacity.

Order 32 Rule 233 of the High Court Rules, 1971…, reads as follows:

“233. Notice of opposition and opposing affidavits

(1) The respondent shall be entitled, within the time given in the court application in accordance with Rule 232, to file a notice of opposition in Form No. 29A, together with one or more opposing affidavits.

(2) As soon as possible after filing a notice of opposition and opposing affidavit in terms of subrule (1), the respondent shall serve copies of them upon the applicant, and, as soon as possible thereafter, shall file with the Registrar proof of such service in accordance with Rule 42B.

(3) A respondent who has failed to file a notice of opposition and opposing affidavit in terms of sub-rule (1) shall be barred.”

When looking in the body of the sixth respondent's opposing affidavit and its substance, it becomes clear that in his submissions he does not introduce himself as purporting to represent the second, third and fifth respondents although the heading of the affidavit represents the sixth respondent to be deposing evidence on behalf of the second, third and fifth respondents.

It is trite that hearsay evidence is not permitted in affidavits.

In the present matter, it was necessary for the third and fifth respondents' to file their own affidavits wherein they could depose to statements of fact which are within their knowledge.

The fact that the third and fifth respondents did not file opposing affidavits means that they are barred for their failure to comply with Order 32 Rule 233 referred to above.

The third and fifth respondents are therefore not before the court.

Although he made no mention of his authority to represent the third and fifth respondents, the sixth respondent submitted that he is deposing evidence on behalf of himself and the first respondent (MDC). Thus, in essence, the only party whom the sixth respondent actually purports, by his own submissions, to represent, is the first respondent - that being the MDC.

This is what he said when he introduced himself in his opposing affidavit:

“I, Morgan Komichi, the National Chairman of the Movement for Democratic Change (MDC) the abovementioned first respondent by whom I am fully authorised to depose to this affidavit in my capacity as National Chairman do hereby make oath and state…,.”

He did not show proof of such authority having been given to him by the MDC. Even in the Party's Constitution itself, there is no such authority conferred to the National Chairperson at any time to enter into legal proceedings or defend legal proceedings on behalf of the first respondent. In fact, the sixth respondent did nothing to assure the court that he has instructions from anybody for that matter.

Thus, with no–one to speak on its behalf, the first respondent, which is a juristic personality, lacks representation. Accordingly, the first respondent is also barred for failure to file an opposing affidavit.

The fourth respondent has not opposed the application and also barred.

The second respondent filed a short affidavit in support of the sixth respondent's affidavit.

The only notices of opposition remaining are those of the second and sixth respondent's with the second having been filed in support of the sixth respondent's affidavit.

The court thus only recognises the second and the sixth respondents as being the litigating opposition to the present application.

(ii) Whether the second and sixth respondents are barred by their failure to file Heads of Argument timeously

When the parties appeared before me, the applicant's legal practitioner moved that the second and sixth respondents be barred from proceeding to argue the merits of the matter due to their failure to file their Heads of Argument within the dies induciae stated in the Rules of this Court as per Order 32 Rule 238(2)(b) which reads as follows:

“(2a) Heads of Argument referred to in subrule (2) shall be filed by the respondent's legal practitioner not more than ten days after heads of argument of the applicant or excipients, as the case may be, were delivered to the respondent in terms of sub rule (1):

Provided that;

(i) No period during which the court is on vacation shall be counted as part of the ten-day period;

(ii) The respondent's heads of argument shall be filed at least five days before the hearing.

(2b) Where heads of argument that are required to be filed in terms of sub-rule (2) are not filed within the period specified in subrule (2a), the respondent concerned shall be barred and the court or judge may deal with the matter on the merits or direct that it be set down for hearing on the unopposed roll.

(2c) A legal practitioner shall not be precluded from making a submission…,.”

The applicant filed his heads with the Court on 19 November 2018, and the respondents' heads were filed on 19 January 2019. The reckoning of days would have been interrupted by the High Court Christmas vacation. The third Court term ended on 3 December 2018, which is the date that the respondent's Heads were due. The first Court term in 2019 commenced on 14 of January 2019. The respondents filed their Heads during the Court vacation on 10 January 2019. Thus, effectively, and in terms of the proviso under Order 32 Rule 238(2)(i) the delay in filing the respondent's heads was one day.

Even though the delay was for but a day, the second and the sixth respondents were automatically barred from appearing to argue the matter.

At the commencement of the hearing in this matter, the second and the sixth respondent's legal practitioner made an oral application for condonation and for the upliftment of the automatic bar imposed on them for the late filing of Heads of Argument.

I was drawn to the comments which were made by MAKARAU J…, (when I was researching this opinion) in Chimpondah & Anor v Muvami 2007 (2) ZLR 326, which I found to be of immeasurable assistance to me. In her dicta, she outlined the factors which are taken into account when a court is dealing with such an application. At page 327G–H she said:

“An application for condonation, such as the one before me, is, therefore, an application for excusing the negligence of the offending party and the degree of such negligence of the offending party then becomes a factor together with other factors that will ensure that at the end of the day justice as between the parties prevailed.

The factors, generally, are taken into account by the court, when considering an application for condonation, are well established. Importantly, but not exclusively, the court takes into account such factors as;

(i) The length of the delay;

(ii) The merits of the application; and

(iii) Any prejudice to the interests of justice generally.”

At page 328E–F she continued;

“…,. I used the discretion vested in me to allow the late filing of the heads of argument because of the need for the parties to have a final judgment on the matter in view of the spate of litigation that they have already been involved in over the same matter. Further, in my view, the point raised by the respondent in his defence is an interesting and important legal point…,.

It is my further view that, when considering an application for condonation for the late observance of a rule of procedure before a default judgment is given in the matter, the court should lean towards granting rather than refusing such application. I am not, however, suggesting that prior to judgment, condonation should be granted for the mere asking. The applicant still has to satisfy the court that there is good cause to excuse the negligence and grant the indulgence.

Also, see Lewis Cox & Co (Pty) Ltd v Twentydales Service Station (Pty) Ltd 1956 R&N 338 (SR); Ehlers v Standard Chartered Bank Ltd 2000 (1) ZLR 136 (H).”

In the present matter, the Heads were but one day late.

I am persuaded that this is a case where the indulgence should be granted bearing in mind the issues which need to be ventilated and resolved in the interests of the public and in the interests of justice. It is, in my view, desirable that I apply my inherent jurisdiction in terms of Rule 4C of the High Court Rules, 1971 to grant the application for the upliftment of the bar, bearing in mind that the period of one day's delay brought to me assume that the delay was not an intentional disregard to defend; but was rather a lack of diligence by the legal practitioner representing the second and sixth respondents; for which I felt the respondents ought not to be penalised.

See Grain Marketing Board v Muchero SC59-07 and also Service Motor Supplies (1956) (Pty) Ltd v Fouche and Anor 1960 (3) SA…,.

Further, I find it necessary to allow the second and sixth respondents to defend their cases in order that there be a convenient determination of the issues in the matter.

See: Nicojeros v Clement 1947 (4) SA 301.

HH440-19 : INTRATREK ZIMBABWE (PVT) LTD vs ZIMBABWE POWER COMPANY (PVT) LTD
Ruled By: CHITAPI J

In the judgment HH91-19, in the case Blessing Mureyani v Maggie Gentie and Minister of Local Government and National Housing, I bemoaned the increased workload which judges of this court have to deal with and the immense pressure which is exerted on judges to cope with litigants and public expectations to have disputes before the court speedily determined.

I did give an insight to the public on how, internally, the Honourable Judge President has to juggle around by spreading opposed applications and other civil cases amongst all judges irrespective of the division to which judges are formally assigned. It therefore does not matter that a judge is in the Family, Appeal, Criminal or Civil division. All judges will get allocated civil matters which they must manage and infuse into their rolls using opportunities which may arise. It is not unusual for a judge to therefore deal with civil applications before or after a criminal trial on the same date.

I have repeated my earlier observations because the manner in which the respondent's counsel resolved not to complement the efforts of the court to dispose of this application left me thinking that, much as judges may try to determine cases at available opportunities, without counsels co-operation, the backlog will remain untamed.

Party driven litigation processes result in delays because the parties dictate the pace.

My disquiet arises from the following circumstances;

This application, and five (5) others, was referred to me on 24 April 2019 for set down of hearing. The court was on Easter vacation which commenced on 6 April 2019 to 12 May 2019.

Court vacations need to be understood in context.

They do not connote that judges go on leave to rest. If a judge is to be on leave, the judge must formally apply for leave. Court vacations simply give a break to the normal running of courts. Litigants continue to file their cases. Judges use the vacation to try and clear reserved judgment. More often than not judges with partly heard cases, which could not be completed during the times allocated for those cases, avail themselves to deal with those cases. Vacations are not, therefore, joyous breaks for judges. If anyone enjoys the court vacations it must be the litigants and their legal practitioners because there is a break in normal set down of cases.

Rule 221(4) of the High Court Civil Rules provides that:

“4. No contested matter shall be set down for hearing during vacation unless a legal practitioner certifies in writing that it is urgent; giving reason for its urgency, and the prior approval of a judge to the hearing of the matter has been obtained.”

There is therefore a vacation in set down of cases for litigants and legal practitioners as implied in the quoted Rule. They can only have their matters set down for special reasons justifying urgency.

For judges it will be work as usual with the Judge President not relenting on allocating cases to judges for further management.

No judge wants to accumulate cases and will make every effort to dispose of incoming work by looking for slots and setting down the cases as they are brought to the judge's chambers.

The set down of this matter was handled with the mind to slot it as with others on the next available slot. My schedule on opening of the second term was that I was assigned to Bail Court. I resolved to spread my allocated opposed applications to be set down at the two per day after Bail Court and in Bail Court. This is how this application got to be set down for 17 May 2019.

In relation to the filing of heads of argument, the applicants' heads of argument had been filed on 15 April 2019 and served on the respondents legal practitioners on the same date. Ordinarily, the respondent would have been required to file its heads of argument within 10 days of service of the applicant's heads of argument. When one discounts public holidays and weekends, the heads of argument would have been due for filing, at the latest, on 2 May 2019.

Rule 238(2a)(ii), however, provides, in proviso (i), that the period on which the court is on vacation shall not be counted as part of the 10 day period in which the respondent is required, in terms of Rule 238(2a), to file heads of argument from the date that the applicant's heads would have been delivered on the respondent's legal practitioner. Proviso (ii) provides that the respondents heads of argument should be filed at least five (5) days before the hearing. In terms of this latter proviso, where a date of set down has been fixed, the respondent, notwithstanding the periods allowed to such respondent to file heads of argument, should file the same at least five (5) days prior to the hearing.

In casu, the respondent's counsel decided to take advantage of proviso (i) and reckoned the time for filing the respondent's heads of argument in terms of that Rule. Since vacation was ending with the new term commencing on 13 May 2019, the respondent's counsel reckoned the period for filing heads of argument from the date. The last date for filing heads of argument would accordingly have been 24 May 2019; being 10 working days reckoned from 13 May 2019.

By letter addressed to the Registrar, dated 13 May 2019, the respondent's counsel protested the set down date of 17 May 2019. He submitted that the Notice of Set Down had been served on 13 May 2019, and that, as the Notice of Set Down had been issued on 10 May 2019, it only allowed the respondent four (4) days to 17 May 2019 since there was a weekend in between. He protested that the issued notice “…, falls foul of the provisions of the Rules” because Rule 233(2a) sic provided that “applications which are opposed shall be set down for hearing on a business day not less than six business days from the date of notice.”

The corrected Rules citation is of course Rule 223(3) not 233(2a).

Rule 223(3) provides that no opposed application shall be set down for hearing less than eight (not six) business days after the Notice of Opposition and opposing affidavit has been filed unless the respondent consents.

The respondent's counsel was, of course, wrong in the Rule citation and its application.

The Notice of Opposition and opposing affidavit were filed on 5 April 2019. The eight days referred to in Rule 223(3) matured on 25 April 2019. The Notice of Set Down did not fall foul of the Rules on the basis complained of by the respondent's counsel.

I would point out that there is no Rule 233(2a) in the High Court Civil Rules, 1971.

Counsel further protested that the date of issue of the notice and service of the same disabled the respondent filing heads of argument within the time contemplated in Rule 238(2a)(ii).

The respondent's counsel ended his letter by stating-:

“The situation can be served by your withdrawing the notice and allowing the respondent the required time to file its heads by issuing a notice that complies with Rule 223(2)(a). We kindly request you to do so.”

Counsel's suggestion to the Registrar to withdraw the Notice of Set Down falls outside the purview of the powers of the Registrar.

The court manages its roll and once a matter has been set down, the court or judge will hear and determine any representations by counsel in regard to the management of the set down matter.

It was on the basis that I did not agree with the lawfulness of the suggested procedure to withdraw the Notice of Set Down that I directed the Registrar to advise counsel that the application would remain listed on the roll to be dealt with on its turn. I however directed that counsel could attend in chambers to map the way forward prior to the hearing - and counsel did so.

Counsel for the respondent, in chambers, submitted that the respondent's heads had not been filed and were due by 24 May 2019. He also pointed out to the provisions of Rule 238(2a)(ii) and indicated that the five (5) days postulated in the Rule would be due on 20 May 2019 reckoned from 13 May 2019 when the Notice of Set Down was served. In his submission, 20th May 2019 would have been the last day to file heads of arguments in order to comply with the proviso (ii) to Rule 238(2a) which provides that the respondent's heads shall be filed not less than five (5) days from the date of hearing.

It is necessary to observe that the proviso (i) to Rule 238(2a) is directory.

The Rule is enacted for the convenience of the court and not for counsel to take advantage of and advance it as a reason for a case not to be heard. In other words, if it is not possible for the respondent's counsel to file heads of argument at least five (5) days prior to the set down date because the Notice of Set Down has not given sufficient times between its issue and the date of the set down, this does not invalidate the Notice of Set Down. The proviso must be read in conjunction with the principal Rule 238(2b) which carries the sanction of a bar against the respondent if the respondent fails to file heads of argument within 10 days after service of the applicants' heads of argument.

A failure to comply with the five (5) days for filing heads of argument prior to the date of hearing does not attract an automatic bar.

It will be up to the court to consider whether it has had sufficient time to consider the matter and hear it where heads have been filed within 10 days of service of the applicant's heads but less than five (5) days to the hearing date. If the court is comfortable to hear the matter where the respondent's heads of argument have been filed, even a day before or on the date of hearing, it will hear the matter. The court will, where it is not inconvenient to deal with the matter, allocate another date and postpone the hearing accordingly.

Counsel must acquaint themselves with Mafusire J's judgment in David Whitehead Textiles Limited v Jyotsanagen Kala and 2 Ors HH442-15 where the learned judge eloquently interrogated the import and purport of Rule 238(2a), (2b) and the proviso (ii) thereto which requires that the respondent's heads of argument are filed at least five (5) days before the hearing.

The learned judge observed that the five days period is for the court's convenience and not for the convenience of the respondent.

Counsel for the respondent was expected to have made effort to prepare and file heads of argument prior to the set down date or even to file them on the date of hearing than to procrastinate and seek to rely on the proviso (ii) on the five (5) days rule which is not intended to be used as an excuse by the respondent. Counsel for the respondent, in this respect, clearly adopted an attitude that was intended to frustrate and torpedo the hearing of the application much to the inconvenience of the court which had tried to manage the disposal of this application by allocating and others them a slot at the end of hearing of bail applications for 17 May 2019.

Going forward, counsel for the respondent was not about to be understanding of the court's desire to speedily dispose of the matter. When I suggested that counsel could file the heads of argument by 20 May 2019, with the hearing being slotted for after Bail Court on 24 May 2019, counsel for the respondent insisted that he would file the heads by 24 May 2019 because that date was the last date by which the respondent was required to have filed heads of argument.

Whilst it was true that the 10-day period for the respondent to file its heads of argument would expire on that date, I found counsel for the respondent's attitude to be unreasonable in that he was concerned with his own convenience only and not the court's convenience. The Rules of Court should not be used to frustrate the due administration of justice but to aid and accelerate orderly case disposal. Counsel, as court officers, should aid in the process by supporting court and judges efforts to expeditiously dispose of pending cases.

In this case, given counsel for the respondent's unyielding attitude, I could, in the interests of justice, have directed a departure from the Rules and ordered counsel to file heads of argument earlier than 24 May 2019 as I am entitled to in terms of Rule 4C of the court's Rules. I however decided against resorting to Rule 4C because of the importance of the application to the parties and that the application deals with a matter of public interest which is topical.

I resolved not to exert pressure on counsel and accepted the inconvenience which the court had to endure. I ordered that counsel for the respondent could file the respondent's heads of argument by 24 May 2019 as he desired.

I postponed the hearing to 28 May 2019....,.

Before I revert to the merits of this application, I wish to raise the issue of Rules being used for purposes of frustrating the disposal of cases as opposed to aiding the disposal.

From a jurisprudential perspective, Rules of Court relate to the practice of the court. Courts are created to dispense justice. Rules of court should yield to the demands of justice in any given case hence the existence of Rule 4C of the rules of this court. Rules of court must be seen as serving the purpose primarily of ensuring that the business of the court is carried out in an orderly manner.

It is trite, and specifically provided for in section 176 of the Constitution, that this court as well as the superior courts to it, being the Constitutional Court and the Supreme Court “have inherent power to protect and regulate their own process and to develop the common law, taking into account the interests of justice and the provisions of this Constitution.”

It follows from the above that Rules of Court are made to regulate the court process. The court is therefore not made for the Rules because it makes them.

That being common cause, it is difficult to appreciate the rationale behind the proviso (i) to Rule 238(2a).

For clarity, the proviso states that the vacation period should not be counted when computing days for filing heads of argument. The Rule does not apply to the filing of other pleadings like an appearance to defend in a summons matter and indeed the filing of all other pleadings be it a plea, opposing affidavits, and so on.

What is it about the respondent's heads of argument that merit their being protected by implicitly extending the period for filing heads of argument in not factoring in vacation periods?

The registry will be open for receiving new cases and filing of pleadings - including the respondent's heads of argument. The Rule does not say that the respondent's heads should not be filed during vacation. Its effect is to give the respondent a moratorium, holiday, or break from moving the case forward by favouring the respondent with vacation time to use to put the matter aside and only start panicking to timeously file heads after vacation. It does appear to me that the proviso does not serve the interests of justice to the extent that it delays the filing of necessary papers which lead to the next step, that of the hearing of the matter.

In this sense, proviso (i), in my view, does not aid the dispensation of justice speedily.

I raise this point of course because inasmuch as I have commented by giving a rather lengthy exposition on the duty of counsel to aid than torpedo the speedy resolution of justice, some Rules, like the proviso (i) aforesaid, are taken advantage of to frustrate the resolution of cases with reasonable promptitude. If the set down of a contested matter during vacation is subject to Rule 221(4), as discussed, there is no apparent reason to favour the respondent as discussed.

The proviso is redundant.

View Appeal
HH139-18 : MARIA SITHOLE vs MATHIAS SITHOLE and CECK ENTERPRISES PL and B.R.M HOVE and PETER DZIMBA and MANNERS JARAVAZA and PARDON CHAKANYUKA and REGISTRAR OF DEEDS
Ruled By: DUBE J

This case concerns a sale and transfer of property carried out contrary to a court order.It is trite law that a thing done contrary to the direct prohibition of a court order is void and is of no legal effect. Such a thing is regarded as never having been done. ...

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Automatic Bar re: Approach, Notice to Plead, Notice of Intention to Bar, Upliftment of Bar and the Dies Induciae

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