MAVANGIRA
J: This urgent chamber application was referred to me on 10 May 2010. On the
same date after perusing the papers I endorsed on it that the matter was not
urgent. On 11 May 2010 the applicant's legal practitioners wrote to the Registrar
seeking an opportunity to argue the urgency of the matter before the judge.
Their letter was received by the Registrar on 12 May and brought to my
attention on 13 May. I therefore directed that the matter be set down for 17 May
at 10.00am.
On
17 May 2010 the matter was postponed to 20 May at the instance of the
applicant's legal practitioners who had been served with the opposing papers
just before the time set for the hearing. They indicated that they had only
managed to have a cursory perusal of the papers and were of the view that they
needed to file an answering affidavit.
On
20 May the respondent's legal practitioners raised preliminary points the first
of which was that this court is functus
officio and cannot hear the matter as it had already made a final
determination that the matter is not urgent and the determination had been
communicated to the parties. Reference was made to Chirambasukwa v Minister of Justice, Legal and Parliamentary Affairs
1998 (2) ZLR 567 (SC) in support of this proposition. It was submitted that as
the applicant had failed to establish urgency on the papers filed it could not
now seek to establish urgency outside what is contained in its papers.
The
applicant's legal practitioners on the other hand urged the court to find that it,
the court, is not functus officio on
the issue of urgency as the determination referred to is only a procedural
directory as to how the matter should proceed and is not an order of court. It
was submitted that the determination is analogous to a referral to trial of a
matter brought to court by way of application procedure. It was also submitted
that even if the determination was to be taken as an order of court it is an
interlocutory order which relates to a procedural matter and the court can thus
not be functus officio. Reliance was
placed on Stumbles and Rowe v Mattinson;
Mattinson v Stevens and Others 1989 (1) ZLR 172 (HC) in support of this
submission. It was held in that case that while normally a court does not have
jurisdiction to tamper or interfere with its own judgments because, in relation
thereto, it is functus officio, it
does have such jurisdiction over orders made in interlocutory and procedural
matters.
I
dismissed this preliminary point at the hearing for the following reasons. The
endorsement that the matter is not urgent was made on a consideration of the
papers without hearing any oral arguments by the parties. It was the court's prima facie view of the matter as
regards the issue of urgency. The parties were not heard by the court on the
merits of the issue of urgency. It is my considered view that this court cannot
be functus officio in such
circumstances. Had the parties been heard orally and a determination made
thereafter, such determination would be consequent upon full ventilation by the
parties on the pertinent issue. In my view the court would then become functus officio.
After
my ruling on this preliminary point the respondent's legal practitioner raised
three other preliminary points. But before I lay these out it would be
appropriate for the court to give a brief background to the filing of this
urgent chamber application.
In
Case Nos HC 4327/08 and 2792/09 the respondent herein filed a court application
and an urgent chamber application respectively. The two matters were
consolidated and heard together culminating in judgment HH 166/09. The
applicant herein noted an appeal against the judgment in the Supreme Court in
case SC 180/09. The respondent herein then filed in the Supreme Court an application
in terms of r 36(1) of the Supreme Court Rules for the dismissal of the appeal.
The ground on which the dismissal was sought is recorded in judgment SC 9/10
as:
“that
the respondent (applicant herein) failed to enter into good and sufficient
security for the applicant's (respondent herein) costs of appeal failing
agreement to have the amount or nature of the security to be provided,
determined by the registrar as required by subrule (2) of r 46 and furnish such
security within a period of one month from the date of the filing of the notice
of appeal as required by subrule (5) of the same rule.”
In that judgment,
SC 9/10 dated 3 May 2010, the Supreme Court ordered as follows:
“It is ordered
that the appeal noted in case SC 180/09 be and is hereby dismissed in terms of
r 36 (3) of the Supreme Court Rules with costs on a legal practitioner and
client scale.”
On 7 May 2010
the applicant filed in the Supreme Court a court application in which it seeks
relief in the following terms:
“1. The applicant's failure
to comply with the provisions of R 46(5) of the Rules of this Honourable Court
in respect of Case Number SC 180/09 be and is hereby condoned.
2. The appeal in Case Number SC 180/09 be
and is hereby reinstated.
3. The applicant shall
provide security for costs as required by R 46 of the Rules of this Honourable
Court within five days after the date of this order.”
As already
stated above the instant urgent chamber application was referred to me on 10
May 2010. The applicant seeks before this court relief in the following terms:
“A
TERMS OF FINAL ORDER SOUGHT.
That you show
cause to this Honourable Court why a final order should not be made in the
following terms:
1.
Pending determination of the Supreme Court application
made by the applicant for the reinstatement of its appeal in Case Number SC 180/09,
the operation of the orders granted in Cases Number HC 4327/08 and HC 2792/09
be and is hereby suspended.
2.
This order shall remain in operation notwithstanding
the noting of an appeal against it.
3.
In the event that the application is opposed, the
respondent shall pay the costs of suit.
B
INTERIM RELIEF GRANTED.
Pending the confirmation or discharge of this provisional order, the
following relief is granted:
1.
The applicant and all the persons who worship under it
are entitled to access all the assets and facilities, including church
buildings and to which they had access immediately prior to the handing down by
the Supreme Court of the judgment in Case Number SC 180/09 (judgment Number SC 9/10).(sic)
2. The
status quo as at the time of and prior to the handing down of the Supreme Court
in Case Number SC 180/09 shall prevail.”
The
first of the next three preliminary points raised after my ruling on the first
point was that the deponent to the applicant's founding affidavit has no locus standi to depose to the affidavit
as the deponent was not appointed to the position of Diocesan Registrar by the
Bishop of the Diocese of Harare. Furthermore, that even if he was the Diocesan
Registrar, as such he would still not have the locus standi to bring to court an issue that concerns the Diocese
as it is only the trustees who have the power to institute legal action for and
on behalf of the diocese. Furthermore, and in any event, even if the deponent was
acting properly acting in the capacity of Registrar, the proceedings should be
in the name of the Diocesan Trustees. The issues raised in the application
relate to the diocese and the Registrar has no competence to depose to an
affidavit or purport to act on behalf of a party on such issues because in
terms of Act 8.6 of the respondent's governing Act, only the Registrar's advice
is sought. He is not conferred with the competence to do what he has purported
to do in casu. It was submitted that
the urgent chamber application was thus not properly before the court.
It was also submitted that as
presently there is no appeal pending in the Supreme Court against HLATSHWAYO J's
judgment, the said judgment stands. Furthermore, that it is only the parties
that were before HLATSHWAYO J who may appeal against it. It was also submitted
that the applicant cannot seek an interdict before this court when the alleged
right to the interdict is premised on a contingent right and dependent on an
uncertainty. There is no certainty that the application for condonation and for
reinstatement of the applicant's appeal in the Supreme Court will be granted.
The case of Airfield Investment (Private)
Limited v Minister of Lands and Others 2004 (1) ZLR 520 was cited in
support of the submission that one cannot seek relief in the form of an
interdict if it is dependent on a decision which may or may not be granted.
The next preliminary point raised was
that the matter before the court is res
judicata because it is predicated on an issue which has already been
determined by the Supreme Court in the judgment of May 3 2010 in SC 9/10 in
which the applicant's appeal was dismissed. It was submitted that the dismissal
of the applicant's appeal was a dismissal on the merits and that the applicant
thus has no basis to seek to appeal to the same court which will certainly not
change its views about contingent rights not being the proper basis for the
granting of relief in the form of an interdict. It was submitted that it is not
competent to approach an inferior court to seek relief predicated on issues
that may happen in the Supreme Court.
The final preliminary point raised
was that the matter is not urgent as it is made very clear in the judgment SC 9/10
that the applicant was put on notice several times from 24 July 2009 on the
need to furnish security for costs. After failing to timeously furnish security
for costs, the applicant was also advised of the need to seek condonation for
such failure and for leave to furnish the security out of time. As the
applicant made a deliberate decision not to seek condonation until after its
appeal was dismissed, the present application cannot be viewed in isolation
from the application before the Supreme Court. The inordinate delay by the
applicant in making an application for condonation must therefore be imputed
upon the urgency of the present application. There can therefore be no urgency
on the facts and in the circumstances of this matter. The case of Kuvarega v Registrar-General and Anor
1998 (1) ZLR 188 (HC) was cited in support of such a finding being made by this
court. It was submitted that an issue that has been going on since July 2009
cannot now assume urgency.
In response to the issue of locus standi it was submitted that if
any issue as to locus standi should
arise it should be in relation to the parties and not to witnesses. The
deponent to the applicant's founding affidavit being merely a witness the point
raised is untenable. The proceedings were instituted in the name of and by The
Church of the Province of Central Africa, not by the Diocesan Trustees for the
Diocese of Harare. In any event, in terms of r 227 (4)(a) of the Rules of this
court, a person who has knowledge of the facts can depose to an affidavit.
Furthermore, as the proceedings are brought in the name of The Church of the
Province of Central Africa, reference to the Diocesan Acts is of no
application.
Regarding the res judicata issue it was submitted that the respondent had to show
that the same parties had appeared before a competent court and that the court
dealt with that cause of action. In casu,
the Supreme Court did not deal with the application which is before this
court. What was before the Supreme Court was an application at the instance of
the respondent for the dismissal of the appeal noted by the applicant against HLATSHWAYO
J's judgment on the basis that it had not tendered security in accordance with
the Rules. That is not the matter now before this court. The requirements for
the application before this court to succeed are different in every respect
from the requirements which applied before the Supreme Court. It was submitted
that if any res judicata is to be
raised it can only be in relation to the matter now before this court. However,
to the extent that res judicata was
meant to apply to the application before the Supreme Court, the application for
condonation that is pending before the Supreme Court differs in its
requirements from the application for dismissal that was instituted by the
respondents. It thus cannot be said that the application for condonation raises
matters which are res judicata. In
any event those are matters which would be better dealt with by the Supreme
Court when it deals with the application. It was submitted that this court
cannot, as sought by the respondent, make a pronouncement on an application
which is pending before a different court and the preliminary point must
therefore be dismissed.
It was further submitted that the
respondent's stance had been based on an incorrect premise that the application
before this court is for an interdict. It was submitted that the order that is
being sought is an order to stop the operation of an order which in effect is
an application to stay execution. The court thus has no need to examine whether
the requirements for the granting of an interdict have been met as these are
irrelevant.
Regarding the issue of urgency the
response was that this application would not have been necessary if there was
now a valid appeal before the Supreme Court. The appeal would have suspended
the orders made by HLATSHWAYO J. This application is necessitated by the fact
that the appeal that was noted in the Supreme Court was dismissed. It was also
submitted that the applicant has, as it is entitled to, made an application in
the Supreme Court for condonation of its non-compliance with the Rules and for
the reinstatement of its appeal. In the meantime the respondent has already
moved to give effect or to enforce HLATSHWAYO J's orders. Thus if the order
sought herein is not granted and the application in the Supreme Court
ultimately succeeds, there would have been irreparable damage caused. It was
also submitted that the remarks in the Kuvarega
case are of no application in casu as
the delay that the respondent's legal practitioner was referring to is delay
that arose consequent upon the respondent filing an application for the
dismissal of the appeal in the Supreme Court. Once that application was filed
by the respondent the applicant was placed in a position in which all it could
do was defend that application and in the course of that defence invite the
court to exercise its discretion as given it by the Rules to make an order
other than an order for dismissal. The applicant could not in the face of the
application for dismissal insist on tendering costs as that would have bordered
on contempt of the court before which the application was. However, the Supreme
Court did not then deal with an application for condonation. That is the
application now pending before it.
It was further submitted that the
newspaper article placed by Dr. Kunonga and referred to by respondent's legal
practitioner goes to show that the respondent is seeking to give effect to HLATSHWAYO
J's orders, the first of which is a declaratory order while part of the order
in HC 4327/08 in the third paragraph is in fact an interdict. He also submitted
that the respondent's suggestion that the applicant should have applied for the
urgent hearing of its application now pending before the Supreme Court does not
take the matter any further as that would not have provided the applicant with
the protection that it now seeks before this court. He submitted that all the
preliminary points must therefore fail.
It is not in dispute that the
applicant has filed an application in the Supreme Court seeking condonation of
its failure to comply with the Rules regarding payment of security and for the
reinstatement of its appeal. The application is still pending before that court.
The relief sought by the applicant is in effect to allow the applicant access
to assets and facilities to which it had access immediately prior to the
handing down by the Supreme Court of the judgment SC 9/10 pending the
determination of the Supreme Court application for condonation and the
reinstatement of its appeal.
Whilst generally a legal point can
be raised at any point in legal proceedings, I found it striking that the
respondent decided to raise the issue of locus
standi at this stage in their saga. These same parties have been litigating
for quite some time now and have litigated up to the Supreme Court often under
the very same citations by which they now appear before this court. The
application pending before the Supreme Court involves the very same parties and
the application also arises from litigation between those same parties in the
High Court. As regards the res judicata issue,
it is my view that a determination by this court on these issues may entail
this Court making findings that purport to impact on the application now
pending before the Supreme Court. It appears to me that it is only proper for
this Court to defer to the higher court and not to purport to pre-empt the
higher court's determination of the matter before it. In any event the relief
sought by the applicant in casu is for
the interim only while the parties await the Supreme Court's determination of
the applicant's application for condonation and for the reinstatement of its
appeal.
It is for the above reasons that I
granted the amended Provisional order on 31 May 2010.
Gill, Godlonton & Gerrans, applicant's legal practitioners
Chikumbirike &
Associates, respondent's legal practitioners
