KARWI
J; First Applicant and the respondents are engaged in a bitter battle for the
control of second respondent. As often happens in such issues, the disputes
unfortunately spill into our courts. Parties have been engaged in litigation of
all sorts since 2005.
The
background to this application is that on 11 April 2006 the respondents
unlawfully disposed people who were manning the Church of the keys to that
Church and barred everyone else out. Following this action, and on 12 April
2006 Applicants made an application for a spoliation order against respondents
in the Magistrates Court
(Case NO. 5450/06). The matter was heard on the same day and a rule nisi issued in favour of applicants. The
return date was 3 May 2006. Applicants' legal practitioner failed to attend
court on the return date resulting in the discharge of the rule nisi. On 5 May 2006 the first respondent
issued a default judgment, which judgment applicants are now seeking to be
reviewed. Applicants filed their application for review on 18 August 2006, some
two months out of time. Applicants are also seeking condonation of their late
application for review. The application is strongly opposed by the respondents.
They are also seeking condonation of their delay in filing heads of argument in
this matter.
In
his founding affidavit, Mr Tendai Biti,
the legal practitioner representing applicants states that two applications
were filed on behalf of applicants in this matter. One was an urgent chamber
application and the second was an application for condonation. Both matters
were referred to the same judge. The urgent chamber application was not set
down on an urgent basis but was set down in the ordinary course of events. Mr Biti further said that when he was
served with the respondents Heads of argument on 4 January 2007 he assumed that
same had been filed in respect of the chamber application, and because there
was no obligation to file heads in respect of the urgent chamber application he
elected not to file heads of argument. He then filed Heads of Argument on 14
June 2007. Mr Biti further said that
the failure to file Heads of Argument was a result of a genuine error which was
bona fide. He submitted that Applicants had a good case on the merits and that
therefore the late filing of Heads of Argument be condoned and that the time
within which to file Heads of Argument be extended to 14 June 2007 which is the
date Heads of Argument were finally filed and that the automatic bar operating
against Applicants be uplifted.
In
his opposing affidavit, Onius Gumbo stated that the application for review was
out of time as it was filed outside the eight weeks provided for by Order 33
Rule 259 of the High Court Rules. Judgment sought to be reviewed was delivered
on 4 May 2006. Review proceedings ought to have been brought at the latest by
29 June 2006.The application was only filed on 18 August 2006, a period of almost
two months after the expiration of the period within which applicants ought to
have acted. It is peremptory that the applicants ought to have sought this
court's condonation of the delay. No good cause has been shown why Applicants
should be indulged by this court.
Mr
Gumbo further said that the first applicant had no locus standi to represent the second applicant. Mr Todd Phiri
besides not being an elder in the second applicant does not have the locus standi to represent second applicant
and the first applicant. The first applicant brought these proceedings as
Reverend R.S. Sibanda, in his official capacity as Overseer of the Apostolic Faith Church.
However the power of attorney upon which Todd Phiri purports to act upon only
empowers him to act on behalf of R. J .Sibanda in his personal and private
capacity. Todd Phiri cannot therefore claim to have the mandate to represent the
second applicant through the said power of attorney.
Mr
Gumbo went further to state that whilst the second respondent was a corporate
body the first applicant was not the duly appointed Overseer. He was dismissed
by the Apostolic Faith Mission of Oregon, the second respondent's parent
church. He had been appointed to the same position by the parent church and in
tandem with the provisional ruling by NDOU J in case No. HB48/05 he had
formally been dismissed due to his actions consequent to that ruling. Mr Gumbo
added that Todd Phiri was not acting in terms of a special resolution of the
board of the second respondent and none was attached to his papers. He was
certain of this as he is the interim chairman of the second respondent's board.
It
was Mr Gumbo's further point that none of the respondents in this matter had
been dismissed and are still members of the second respondent. Any purported
dismissal of the respondents was a nullity.
More
importantly, the spoliation order was never necessary as applicant was never in
peaceful and undisturbed possession of the church premises concerned. Rev.
Sibanda stays in Bulawayo and cannot under any
circumstances be in possession of the premises in Harare. Furthermore, none of the respondents
had been fighting for the control of the Highfield church.
As
to the events surrounding the default judgment, assuming that the applicants
erstwhile legal practitioners forgot to or were not aware of the return date, how
could the first applicant also forget the date. First applicant applied for and
obtained a rule nisi, and was made
aware of the return date. Applicants were clearly in default and they had to
explain their default.
Besides
failing to attend court on the return date, applicants' legal practitioners
further bungled when on receipt of respondents' Heads of Argument, they assumed
that the same was in respect of another different application, and elected not
to do anything, apparently because there was no obligation to act in that
different matter. As a result the applicants became barred. Unfortunately for the
applicant the bungling by their legal practitioners went on. The legal
practitioner filed what he himself described as “uncharacteristically
unstructured Heads of Argument” on 14 June 2007 for which he apologized in his
supplementary Heads of Argument which he later filed well out of time on 1
September 2007. The Heads of Argument in question had actually not addressed
the critical issues of the upliftment of the bar which had been occasioned by
the late filing of Heads of Argument.
In
terms of Order 33 Rule 259 of the High Court Rules, 1971 any proceedings by way
of review shall be instituted within eight weeks of the termination of the
suit, action or proceedings in which the irregularity or illegality complained
of is alleged to have occurred. The judgment which is subject of this matter
was handed down on 4 May 2006. The application for review should have been
filed by 29 June 2006. The application in
casu was only filed on 18 June 2006, some two months later. Papers show
that there was no application made at all for condonation of the late
application for review at the time that application was filed. Indeed there was
no such an application in this application either. Such an application was only
made ex abundanti cautela much later
in supplementary Heads of Argument filed on 1 September 2006.
Accordingly,
I find that the matter is not properly before this court as the applicant is
barred. The application is fatally defective for non compliance with the Rules
of this court. See Forestry Commission v
Moyo 1997 [1] ZLR 254[S].
As
far as the application for review is concerned, case authorities show that for
a decision to attract review on the basis of gross unreasonableness it must be
shown to be 'So outrageous in its defiance of logic or of any acceptable moral
standards that no sensible person who had applied his mind to the question to
be decided could have arrived at it ….Lord SCARMAN spoke of a decision having
to be so absurd that the decision maker “must have taken leave of his senses”
See Dube v Mandioma NO & Anor SC
173 , Gondo v Minister of Public Service,
Labour & Social Welfare & Anor
SC95-98, and Charumbia v Commissioner of
Taxes & 7 Ors SC88-98.
In
the case of Secretary of State v Tameside
Metropolitan Borough Council 1976[3]. All ER 665 CA AT PAGE 671 Lord DENNING
stated;
“no one can
properly be labeled as being unreasonable unless he is not only wrong but
unreasonably wrong, so wrong that no reasonable person could sensibly take that
view”.
The
allegations of gross unreasonableness and gross irregularity were made by the applicants
and are based on the fact that the first respondent made reference to the lack
of merit in the applicant's case. In my considered view the averments made in
the affidavit filed in support of the relief sought come nowhere near
satisfying the test articulated in the cases cited above. The giving of reasons
in a judgment in which one is in default does not constitute unreasonableness.
The giving of reasons for a default judgment where the applicant is in default
does not constitute an irregularity. The first respondent had the applicants'
papers as well as those filed on behalf of the respondents before him. He
applied his mind to the facts and wrote his judgment. I agree with submissions
made by respondents' counsel that this application is an attempt to circumvent
the prescribed process and procedure for seeking rescission of a default
judgment in circumstances where the applicants knew that they were out of time.
The arguments made in this application, could still be made in an application
for rescission of the default judgment.
I
observed that throughout the applicants' papers, the second applicant is
improperly joined as an applicant in these proceedings. I agree with the respondents'
counsel that neither the first nor the deponent to the so- called founding
affidavit (Todd Phiri) is authorized to represent the church in these
proceedings. The power of attorney upon which he purports to act is given by
the first applicant and not by the church. The Church has a Board which is the
appropriate authority to make a resolution for the proceedings to be instituted
and for the appointment of a person to represent it in these proceedings. Furthermore,
the authority of Todd Phiri to represent the first applicant is also not
established. In the first place the Power of Attorney attached to the papers
shows that the first applicant appointed Moses Makayi, and not Todd Phiri, to
be his agent. Secondly, it is noted that the first applicant instituted
proceedings “in his official capacity as Overseer of the Apostolic Faith
Church”, yet the power of
attorney relied upon by Todd Phiri given by the first applicant is in his
personal capacity. This is why even the authority by Todd Phiri to represent
the first applicant has not been shown.
In
the result, both the application for condonation and the application for review
are hereby dismissed with costs.
Honey & Blanckenberg, applicants' legal practitioners
Musunga &
Associates, respondents' legal practitioners
