UCHENA J: The applicant is the former owner of
Stilfontein of Umzila of Chipinge. Its farm was acquired by the State, but it
did not vacate the farm as provided by s 3 (2) of the-Gazetted Land
(Consequential Privisions) Act [Cap 20:28], hereinafter called
“theAct”. It was prosecuted, convicted and sentenced for contravening s 3 (3),
of the Act by a Magistrate sitting at Chipinge Magistrate's court. The
magistrate evicted the applicant from Stilfontein in terms of s 3 (5) of the
Act. It vacated the farm, in spite of its having applied for and obtained from
KUDYA J, an order directing the magistrate, to order the Zimbabwe Republic
Police, to stay its eviction pending the finalization of its application for a
declarator. It did not enforce the stay by ensuring that the second respondent
(magistrate) did what he had been ordered by this court to do.
The
first respondent is the father of a beneficiary to whom the third respondent
offered Stilfontein farm. He moved onto the farm soon after the applicant was
convicted, sentenced and evicted. He is alleged to be using the applicant's
equipment, interfering with the applicant's cattle and crops and stealing the
applicant's maize.
The
second respondent is the magistrate who convicted, sentenced and evicted the
applicant
The
third respondent is the minister responsible for the acquisition of land and is
the one who offered the farm from which the applicant was evicted to the first
respondent's son.
The
fourth to sixth respondents are officials of the Zimbabwe Republic Police being
cited in their official capacities. The applicant alleges that officers under
them did not assist it when it made reports about the alleged illegalities
taking place at Stilfontein.
The
seventh respondent the Attorney General is the prosecuting authority whose
officers prosecuted the applicant for refusing to vacate Stilfontein farm.
The
applicant seeks an interim order on the following terms:
“It is hereby
ordered that, pending the determination by this honourable court of the issues
referred to herein above.
1.
That it be and is hereby ordered that the applicant,
its representatives, employees and invitees forthwith be permitted unrestricted
access to Stilfontein during working hours for the purpose of:
(a)
picking and processing the applicant's macadamia crop,
and
(b)
attending to the applicant's pedigree Brahman stud …;
(c)
attending to the applicant's avocado plantation;
(d)
harvesting and preserving the applicant's maize crop;
and
(e)
… etc.”
The
applicant therefore seeks orders permitting it to reenter and conduct farming
operations on Stilfontein. It seeks these orders on the understanding that its
eviction was stayed by KUDYA J.
The
applicant stands convicted for refusing to vacate Stilfontein farm. It also
stands evicted there from by an order of the second respondent. The applicant
appealed against that order. The appeal is pending. The applicant and two
others who had also been convicted and evicted by the second respondent made an
urgent exparte application to this
court for the stay of their evictions. The application was heard by KUDYA J who
granted them the following interim order.:
“Pending the
confirmation or discharge of the final order the following interim relief is
granted and accordingly it is ordered;
(a)
That the second respondent be and is hereby directed to
forthwith order the Zimbabwe Republic Police to stay the ejectment of the
applicants forthwith pending the finalization of the application for a
declarator.”
The
applicant according to the concessions made by Mr Uriri during the applicant's submissions, did not ensure that the
order granted by KUDYA J was implemented. He made the concession when the court
asked him whether the magistrate made the order he was ordered to make by KUDYA
J. The question was intended to establish whether KUDYA J's order had been
complied with. He said the magistrate did not order the police to stay the
eviction. He conceded that the magistrate's failure to comply should have been
followed by an application to compel the second respondent to obey this court's
order. He conceded that the stay of ejectment was to be triggered by the second
respondent's order to the police.
The
applicant's counsel's concessions have the following effect. The stay was to be
ordered by the second respondent. The second respondent has not complied with
KUDYA J's order. There is therefore no stay on the strength of which the order
now sought by the applicant can be granted. This means the applicant is
prohibited by the magistrate's eviction order from entering Stilfontein. The
magistrate's order could have been over taken by his subsequent order staying
the eviction, if he had complied with KUDYA J's order. The second respondent's
failure to comply with KUDYA J's order means the order now sought would go
against the applicant's eviction from the farm. It would go against the
principle that a court's order remains lawful and must be obeyed until it is
lawfully set aside, or stayed. Mr Uriri
conceded that as things stand his client must enforce the order granted by
KUDYA J to its logical conclusion, as seeking orders allowing the applicant
access to Stilfontein before the stay of his eviction is finalized, has the
effect of allowing a lawfully evicted person back on the farm when the eviction
order is still operative. Once the applicant is back on the farm in terms of
the order granted by KUDYA J he will then be able to do all the things he wants
this court's order to enable him to do.
In
spite of the above concessions Mr Uriri
did not withdraw the application because he did not have his client's instructions
to withdraw it. I commend him for displaying a high level of professionalism.
He admirably complied with his ethical duty to concede a point of law raised by
the court. He did not conceal the applicant's failure to enforce the order
granted by KUDYA J. A legal practitioner as an officer of the court has a duty
to assist it in arriving at a correct decision. A legal practitioner should not
give the court incorrect information or advice which is to his knowledge
contrary to the law. He must not conceal material facts from the court, or
deliberately mislead the court. See pp 14-15 and 16-17 of Crozier's book on Legal Ethics (A Handbook for Zimbabwean
Lawyers).
Mr
Uriri correctly balanced his duty to
the court with his duty to his client by not withdrawing the application even
though its one that should have been withdrawn if his client had instructed him
to. He advised the court that he did not have instructions to withdraw the
application. On p 32 of his book on “Legal
Ethics” Crozier says:
“Even though he
may have general authority to do so, therefore, a legal practitioner would be
most unwise to settle a case without the client's specific consent”
In
such a situation all a legal practitioner can do is to balance his duty to the
court and his client, by conceding points of law, and giving the court correct
information. The failure to settle will in those circumstances not prejudice
the court or the other party as the other party will after the concession have
no reason to fight on. It can simply pray for an order in its favour. The court
on its party will benefit from the conceding legal practitioner's professional
competence, as it will have been placed in a position to easily determine the
case before it.
Mr
Ndudzo for the first respondent
submitted that the concessions made by Mr Uriri
are in essence a withdrawal and should have been made with an offer of the
first respondent's costs. Mr Uriri
submitted that he had not withdrawn the application but merely made concessions
which enables the court to dismiss the application. To this Mr Ndudzo's response was the costs must
follow the result. This is what should happen in general, but in this case Mr Uriri submitted that the case turned on
a legal point raised by the court, therefore each party must bear its own
costs. He referred to the case of Masudi
v Jera HH 67-2007, where MAKARAU JP
at p 5 of the cyclostyled judgment said:
“Regarding costs
of this appeal, it is our view that since the appeal succeeds on a legal point
that was not raised by the appellant in his notice of appeal or in his heads,
we see no basis for ma king an order of costs in his favour.”
Mr
Ndudzo for the first respondent
submitted that this case must be distinguished from the Masudi case supra,
because in the Masudi case the point
of law raised by the court had not been raised by the appellant in the lower
court, in his notice of appeal and in his heads of arguments prepared for the
appeal. In my view there is merit in Mr Ndudzo's
submission. The denial of costs to a successful party on the ground that his
counsel, had not raised a point of law, and only succeeded because of the
court's intervention, must be arrived at when it is abundantly clear that but
for the court's intervention the successful part would not have raised the point
of law. In this case the issue of compliance with KUDYA J's order was raised by
the court when the applicant's counsel was making his submissions. The
respondent's counsel had not had an opportunity to respond. One can not in
these circumstances say he would not have raised it in the first respondent's
response. I am therefore satisfied that this case is distinguishable from the Masudi case supra. The first respondent incurred expenses in defending an
application which the applicant should have known would not succeed because of
its failure to enforce the order granted to it by KUDYA J. The costs must
therefore follow the result.
In
the result the applicant's application is dismissed.
The applicant
shall pay the first respondent's costs.
Gollop & Blank, applicant's legal practitioners
Mutamangira &
Associates, 1st respondent's legal
practitioners.
