The first applicant was a duly registered co-operative society. The parties to this matter were two factions of its membership.The one faction comprised applicants 2 to 6 (Never Kowo, Keri Mhute, Andrew Marauka, Charles Matapo and Jotamu Nkala).The other was respondents 1 to 5 (Simba Moyo, Enesia Gutu, Elizabeth Gutu, ...
The first applicant was a duly registered co-operative society. The parties to this matter were two factions of its membership.
The one faction comprised applicants 2 to 6 (Never Kowo, Keri Mhute, Andrew Marauka, Charles Matapo and Jotamu Nkala).
The other was respondents 1 to 5 (Simba Moyo, Enesia Gutu, Elizabeth Gutu, Lloyd Hamamuti and Austin Hove).
Both sides were fighting for the control of the first applicant (Nehanda Housing Co-operative Society).
Both claimed to be the legitimate management committee of the first applicant. Both claimed to have been duly installed in office following due process.
For applicants 2 to 6, their claim to office was an alleged election allegedly won by them in September 2014. For the respondents, their claim to office was an alleged vote of no confidence against applicants 2 to 6 allegedly passed by the majority of the first applicant's members in April 2015.
The case before me was the return date of a provisional order issued by this court [per TAGU J] on 27 June 2015. It read [words in parenthesis added to somewhat straighten it out]:
“TERMS OF [FINAL] ORDER SOUGHT
That you show cause to this Honourable Court why a final order should not be made on the following terms:
1. That 1st to 5th respondents be and are hereby interdicted, restrained, and barred from conducting themselves as the managing committee of the 1st applicant pending the finalization of the Supreme [Court] Case No. SC267/15.
2. The 1st to 5th respondents jointly and severally with [the] one paying [and] the other[s] to be absolved be and are hereby ordered to pay [the] cost[s] of this application [on an] attorney and client scale.
INTERIM RELIEF GRANTED
1. Pending the finalization of this provisional order, the 1st to 5th respondents be and are hereby interdicted, barred, and restrained from holding any meetings for the purposes of running or deliberating on the management/or affairs of the applicants.”
During argument, it was apparent to me, that, the fight had nothing to do with the interests of the first applicant per se. It had everything to do with the protection of individual interests and the preservation of egos.
The interests of the first applicant seemed to have been consigned to the periphery.
Even though both sides purported to canvass the requirements for an interdict, namely, a prima facie or clear right; a well-grounded apprehension of an irreparable harm; an absence of an alternative remedy; and the balance of convenience should the interdict be granted or refused [see Setlogelo v Setlogelo 1914 AD 221…,.; Tribac (Pvt) Ltd v Tobacco Marketing Board 1996 [1] ZLR 289 [SC]…,; and Universal Merchant Bank Zimbabwe Ltd v The Zimbabwe Independent & Anor 2000 [1] ZLR 234 [H]…,.] it was clear to me, that, this was a mere perfunctory exercise.
I wondered how, if the focus of the legal contest was really the first applicant, either of the parties could legitimately claim a right that could be harmed irreparably, with no other alternative remedy and how the balance of convenience could be said to favour either of them were I to confirm or discharge the provisional order.
It was just not adding up.
But, the protagonists having come to court, the outcome would have to be either win or lose, for one or other of them.
However, before reaching that point of finality, I suggested an alternative course of action, which, if acceptable and followed through, could produce an outcome that should be acceptable or binding to all.
It was this.
Could both sides consider going back and hold a fresh election within a reasonable period of time, say ten days from the date of any directive that I might give, and the winners of such an election be accepted as the legitimate management committee of the first applicant?
The modalities of running such an election could always be worked out later on if the suggestion was acceptable in principle.
At first, my suggestion was, through counsel, enthusiastically accepted by both sides. So, the matter was adjourned to another day to allow for further consultations and the crafting of an order by consent.
On resumption, a further postponement was sought and granted for the purposes of putting final touches to the Deed of Settlement and the draft consent order.
However, as a precautionary measure, I insisted on a deadline for the filing of the draft order by consent failing which I would hand down my decision on the merits.
I told the parties that I had come to a decision on the merits but that I would much rather defer it to their Deed of Settlement.
It is always preferable for litigants to settle their disputes amicably rather than through a court order which neither party might find palatable.
Thus, it was agreed, that, unless the Deed of Settlement was filed by 4 December 2015, I would proceed to hand down my judgment.
However, well before that date, I received communication to the effect, that, there was no chance of an out of court settlement as the parties were wide apart from each other, and that, therefore, they would be most happy to receive my judgment on the merits.
So, this here is my judgment on the merits.
I found the conduct of the applicants unacceptable. I am referring to the applicants 2 to 5 (Never Kowo, Keri Mhute, Andrew Marauka and Charles Matapo).
The first applicant, the soul for which both sides were fighting to control, had nothing to do with this wrangle.
The applicants conduct, that I found unacceptable, was that they were guilty of forum shopping and material non-disclosure.
The provisional order by TAGU J, on 27 June 2015, the confirmation for which was before me, was the second in a space of twenty-two or so days.
On 4 May 2015, this court, per MATANDA-MOYO J, had dismissed the same application.
The applicants did not disclose this in their founding papers. So, the learned TAGU J must obviously have been unaware of this information when he granted the provisional order.
I was told, that, the respondents were by then not represented. They had filed no opposing papers. They only did so afterwards when they were opposing the confirmation.
In my view, a party that conceals material information must be unworthy of the protection or assistance of the court. If you seek relief, you must take the court into your confidence, laying bare all the relevant facts on the matter - even those that you may perceive to be adverse to the relief that you seek.
As long ago as 1849, an English judge, WIGRAM VC, put it this way in a case, Castelli v Cook (1849) 7 Hare 89, 94, that was cited with approval in the English case of Rex v Kensington Income Tax Commissioners: Ex Parte Princes Edmond de Polignac (1917) 1 KB 486…,:
“A plaintiff applying ex parte comes…, under a contract with the Court that he will state the whole case fully and fairly to the Court. If he fails to do that, and the Court finds, when the other party applies to dissolve the injunction, that any material fact has been suppressed or not properly brought forward, the plaintiff is told that the Court will not decide on the merits, and that, as he has broken faith with the Court, the injunction must go.”
In Ex Parte Princes Edmond de Polignac (1917) 1 KB 486, the applicant, a wealthy American lady who had been twice married to French subjects and was domiciled in France, had obtained an injunction against the collectors of revenue in Kensington, one of the parishes in England. The basis of the injunction had been that she was neither domiciled nor ordinarily resident in England, but Paris, France; and that the house, in a certain locality in that parish, which she frequently visited as her brother's guest for very short periods of time, allegedly not exceeding six months per any one visit, and upon which the local collectors of revenue had based her liability for income tax, was, in fact, owned by her brother. However, a former employee of her solicitors who had been disgruntled for having lost his job, hit back by supplying the collectors of revenue with information and documents showing that the house was practically owned by the lady and that the brother was no more than a mere front.
The information that subsequently came to light, and which the lady was subsequently forced to admit, was that, among other things, she had been the one that had provided the purchase price for the house; she had been the one that had bought the furniture in it; she had been the one that had paid all the rates and taxes for the property; she had been the one that maintained it on a regular basis; and that she had been the one that received the rentals from it.
On the return date, the King's Bench Division refused to hear the matter on the merits and discharged the rule nisi on the basis that the lady had concealed material facts when she had obtained the injunction ex parte.
VISCOUNT READING CJ, delivering the judgment of the court, said…,.:
“Where an ex parte application has been made to this Court for a rule nisi or other process, if the court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but, stated them in such a way as to mislead the Court as to the facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits.
This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived.
Before coming to this conclusion, a careful examination will be made of the facts as they are and as they have been stated in the applicant's affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts.
But, if the result of this examination and hearing is to leave no doubt that the Court has been deceived, then, it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit.”
The applicant appealed. But she lost. The decision of the King's Bench Division was confirmed.
It was stressed by the Court of Appeal, that, it was incumbent, in an ex parte application, that, the applicant should make the fullest possible disclosure of all relevant facts, failing which he cannot obtain any advantage from the proceedings and that he will be deprived of any advantage he may have already obtained.
The court further said, that, an application for a special injunction is governed by the same principles which govern insurances. Both are matters that require the utmost degree of good faith or uberrima fides.
In the case of insurance, if the insured should conceal anything that may influence the rate of premium, whether or not he is conscious of it, the policy is entirely vitiated.
The same applies to applications for injunctions made ex parte. Failure to disclose material facts disentitles the applicant to the relief which he seeks, or dis-entitles him to keep the one he had already obtained. The court will not go into the merits.
It is also the law in South Africa, that, the utmost good faith must be observed by litigants making ex parte applications by placing before the court material facts that might affect the granting of the provisional order: see HERBSTEIN & VAN WINSEN, The Civil Practice of the High Courts of South Africa 5th ed. Vol 1…,.; De Jager v Heilbron & Ors 1947 [2] SA 415; Schlesinger v Schlesinger 1979 [4] 342…,.; and MV Rizcun Trader [4] MV Rizcun Trader v Manley Appledore Shipping Ltd 2000 [3] SA 776 [C].
In casu, the applicants do not seem to have learnt a lesson.
MATANDA-MOYO J dismissed their first urgent chamber application for non-disclosure of material facts. They had concealed the fact, that, the respondents claim to office was on the basis of the vote of no confidence of April 2015. At p3 of the cyclostyled judgment, Her Ladyship said this:
“The applicants have not been candid with this court in the present application. They distorted the facts. The applicants were aware that an emergency meeting was called for, on 24 April 2015, where a vote of no confidence was passed on the second to the sixth applicants, but, decided to mislead this court by submitting that the first to fifth respondents 'unlawfully declared themselves the new management committee for the first applicant.' Such facts were not correct. In the hearing, it also became apparent, that, the second to the sixth applicants were advised of the meeting but decided not to attend.”
It seems the learned judge found nothing wrong with the vote of no confidence. Among other things, she found, that, the meeting that passed it had been properly convened and properly constituted in terms of the Co-operative Societies Act [Chapter 24: 05]. She then concluded as follows:
“The withholding of such information, by the applicants, was a ploy to mislead this court and to keep this court in the dark and trying to make this court believe that the first to the fifth respondents simply woke up and declared themselves the new management committee of the first applicant through a newspaper article of 29 April 2015. It is settled law, that, a person who approaches the court for relief ought to be candid with the court. Such an applicant ought to disclose all the material or important facts and refrain from suppressing facts within his knowledge. Once found out, such an applicant ought to be denied the relief sought.”
The learned judge then cited the case of Rex v Kensington Income Tax Commissioners: Ex Parte Princes Edmond de Polignac (1917) 1 KB 486 as authority for her decision to dispense with the merits of the dispute.
However, with all due respect to my learned sister judge, the principle laid down in Rex v Kensington Income Tax Commissioners: Ex Parte Princes Edmond de Polignac (1917) 1 KB 486, the English authority…, related to ex parte applications, not ordinary court applications or chamber applications on notice of motion.
An ex parte application is one made in the absence of the party who will be affected by the order that the court is asked to grant. It is in respect of such applications that the uberrima fides rule was said to apply.
In Schlesinger v Schlesinger 1979 [4] 342, it was said…, there are three principles of the uberrima fides rule as they apply to ex parte applications, namely:
[1] That all the material facts which might influence the court in coming to a decision must be disclosed;
[2] That non-disclosure, or suppression of such facts need not be wilful or mala fide to incur the penalty of rescission of the order obtained ex parte; and
[3] That the court, on being apprised of the true facts, has a discretion to confirm or discharge the provisional order.
In Trakman NO v Livshitz 1995 [1] SA 282 [A] the South African Appellate Division refused to extend the uberrima fides rule of ex parte applications to ordinary opposed motion proceedings on the basis there was no authority for such an extension and that there was no sound reason for doing so. The court said opposed motion proceedings could not be dismissed solely on the ground that the applicant had failed to disclose fully or fairly all material facts.
Delivering the judgment of the five judges of the Appellate Division, SMALLBERGER JA said…,.:
“It is trite law that in ex parte applications the utmost good faith must be observed by an applicant. A failure to disclose fully and fairly all material facts known to him (or her) may lead, in the exercise of the Court's discretion, to the dismissal of the application on that ground alone: see, for example, Estate Logie v Priest 1926 AD 312; Schlesinger v Schlesinger 1979 [4] SA 342 [W] at 348E–350B].
I know of no authority, and Mr Pincus was unable to refer us to any, which extends that principle to motion proceedings and would justify the dismissal of an opposed application [irrespective of the merits thereof] for the reasons given by the Judge a quo.
The reasons given by the Judge a quo, ROUX J, were, at p286H–I of the Appellate Division's judgment:
'There is a further consideration which relates to both the facts of the review and costs. Since May 1986, the applicant [appellant] and his attorney, Kruger, have had intimate and, as far as the other litigants are concerned, exclusive knowledge of the cession. On his own, or on Kruger's advice, the applicant has misled this Court by his silence. This silence becomes all the more sinister when the delaying tactics of the applicant, as plaintiff, are taken into account. I need not list all the procrastinations. There is ample evidence before me to show sinister motives. The failure to disclose the cession for six years is inexcusable. This failure is only consistent with dishonesty. When dishonesty is harnessed to mislead the Court, to harass the other litigants, and to obtain undue advantage it will be met with the sternest disapproval. Because of his behaviour, I would also dismiss the application....,.'
Nor is there any sound reason for so extending the principle.
Material non-disclosure, mala fides, dishonesty, and the like, in relation to motion proceedings may, and in most instances, should be dealt with by making an adverse or punitive order as to costs but cannot, in my view, serve to deny a litigant relief to which he would otherwise have been entitled. No justification therefore existed for the dismissal of the application on the alternative basis.”
In that case, the court a quo had dismissed an application for review on the ground that the applicant lacked locus standi because he had already ceded his rights of action to someone else. His argument, that there had been a re-cession of the cause of action back to him, had been dismissed by the court as a lie.
The court had also dismissed, as shown above, the application, on the alternative basis of non-disclosure of material facts, namely, the cession of rights aforesaid.
With due respect, I have found the approach of the South African Appellate Division in Trakman NO v Livshitz 1995 [1] SA 282 [A] non-persuasive.
I am mindful that it was a decision of five judges of appeal.
But, with all due respect, I have found no cogent justification for restricting the uberrima fides rule strictly to ex parte applications only.
The Appellate Court said there was no sound reason to extend the principle to ordinary motion proceedings. But, I also find none for not extending it either.
In my view, the underlying reason why an applicant may be non-suited where he conceals material information from the court, as VISCOUNT READING CJ said in Ex Parte Princes Edmond de Polignac (1917) 1 KB 486, is to protect the court itself.
That is, in my view, to protect its integrity. It is to prevent an abuse of its process.
There are several instances when a litigant's infraction or misconduct is so gross as to warrant the court withdrawing its jurisdiction altogether, in spite of the inherent power reposed in it to punish such misconduct by a punitive order of costs: for example, a litigant coming to court with dirty hands has no right of audience; a litigant guilty of contempt of court may not be heard; a litigant that continuously overburdens the courts with endless frivolous or spurious suits may be silenced perpetually.
In my view, the court's decision, to refuse to entertain a matter on the merits because of some wrong done by the petitioning litigant, must, to a large extent, depend on the nature of the litigant's misconduct and the circumstances surrounding it.
In Trakman NO v Livshitz 1995 [1] SA 282 [A], it turned out that the issue of the cession, although not disclosed in the court a quo, had been common knowledge, not only to the litigants themselves, but also to virtually all the other interested parties. That the cession had not been disclosed had not been an issue for contest. It had not been fully debated. Only the aspect of locus standi had been an issue.
Thus, in my view, the non-disclosure of the cession had not been such a material aspect as would have forfeited the applicant's right to be heard on the merits.
In contrast, in the present matter, not only did the applicants conceal before TAGU J the question of the vote of no confidence against them, but also, and crucially, the fact that some twenty-two days before, this same court, per MATANDA-MOYO J, had dismissed the same application on the basis, it seems, of the same failure to disclose the aspect of the vote of no confidence.
Because of that non-disclosure, what the applicants had initially failed to get before MATANDA-MOYO J they had subsequently got before TAGU J.
This, to me, amounted to forum-shopping.
It was conduct that, in my view, was so culpably iniquitous as to forfeit the applicants right to be heard on the merits. It was conduct that gnawed right at the heart of the integrity of the court.
Furthermore, in an urgent chamber application under Order 32 of the Rules of this court, particularly one accompanied by a certificate of urgency as prescribed by Rule 242(2)(b), a judge may well decide the case solely on the basis of the applicant's papers if he is satisfied that the matter is indeed urgent and that a prima facie case for relief has been made out.
The respondent's right to be heard, in terms of the audi alteram partem rule of natural justice, may be deferred to the return date: but, immeasurable damage may be caused if the applicant's papers are misleading by reason of, for example, a material non-disclosure.
The almost inflexible rule of practice by the judges of this court, to invariably insist on service of the urgent chamber application on the respondent before the matter is heard, does not absolve the applicant from disclosing all the material facts surrounding the dispute.
Therefore, I would discharge the provisional order of this court, on 27 June 2015, on the basis of non-disclosure of material facts by the applicant and without going into the merits.
