Whether
or not a court can grant an order not sought by the parties?
Counsel
for the appellants, citing authorities which will be analysed below,
submitted that the court a
quo
erred and misdirected itself when it granted relief which had not
been sought by either party.
Counsel
for the first respondent and counsel for the fourth respondent
supported the ...
Whether
or not a court can grant an order not sought by the parties?
Counsel
for the appellants, citing authorities which will be analysed below,
submitted that the court a
quo
erred and misdirected itself when it granted relief which had not
been sought by either party.
Counsel
for the first respondent and counsel for the fourth respondent
supported the court a
quo's
decision without legally establishing the court
a
quo's
authority to grant orders not sought by the parties.
The
fact that the court a
quo
granted
orders not sought by the parties can be demonstrated by comparing the
orders sought by the parties and the orders granted by the court a
quo.
In
terms of their application and the subsequent notice of amendment the
appellants, who were the applicants in the court a
quo,
sought
the following relief:
1.
“Deed of Transfer No.3030/06, held in the name of Dzingai Kashumba,
be and is hereby cancelled and title in respect of the remainder of
Subdivision 'A' of Subdivision 'F' of Quinington of
Borrowdale Estate should revert back to the second, third, and fourth
Applicants.
2.
Deed of Transfer No.773/2011, in the name of Tafirenyika Kambarami,
be and is hereby cancelled and title in respect of Stand 553
Quinington Township of Subdivision A of Subdivision F of Quinington
of Borrowdale Estate reverts back to second, third, and fourth
Applicants.”
Through
her opposing affidavit, Cecilia Kashumba merely sought the dismissal
of the applicants' application.
The
fourth respondent, in his opposing affidavit, also merely sought that
the applicants' application be dismissed with costs.
In
the determination of the application before it the court a
quo
made the following orders:
“1.
It is hereby declared as follows:
1.1
That the Deed of Sale between the first applicant and the Late
Dzingai Kashumba (hereinafter referred to as “the deceased” on 11
and 12 May 1999 in respect of the property described as Stands 552
and 553 Quinington Township of Subdivision A of Subdivision F of
Borrowdale Estate, measuring 3,999 square metres and 4,002 square
metres respectively (hereinafter referred to as “the original
property”, was never cancelled.
1.2.
That the balance of the purchase price due and owing by the deceased
to the first applicant, as at 9 May 2001, in respect of the Deed of
Sale aforesaid, was never paid.
1.3.
That the transfer of 3 May 2006, in favour of the deceased, of the
two properties known as certain pieces of land situate in the
District of Salisbury, respectively called Stands 552 and 553,
Quinington Township of Subdivision A of Subdivision F of Quinington
of Borrowdale Estate, respectively on Deeds of Transfer Nos.3030/2006
and 3031/2006 (hereinafter referred to as “Stands 552 and 553
Quinington Township”) was unlawful and therefore invalid.
1.4
That the subsequent transfer of Stand 553 Quinington Township on Deed
of Transfer No.773/2011 on 17 February 2011 in favour of Tafirenyika
Kambarami, was unlawful and therefore invalid.
1.5
That the balance of the purchase price outstanding, due and owing by
the deceased to the first applicant as at 9 May 2001 in respect of
the sale and purchase of the original property was in the sum of
ZW$503,573=02, being the total of ZW$337,178=77, reflected on the
deceased's cheque subsequently rejected by the first applicant, and
ZW$166,394=25 subsequently found by the arbitrator to have been the
shortfall on the cheque amount aforesaid.
2.
Notwithstanding the declaration of invalidity of the transfers
referred to in paragraph 1 above, but subject to paragraphs 3, 4, 5
and 6 below, if the 1st
respondent pays, or causes to be paid, to the applicants, or one or
other of them, the one receiving payment, the others to be bound, the
equivalent of the balance of the purchase price referred to in
paragraph 1.5 above in the functional currency current at the time of
payment, together with interest thereon as envisaged herein, then the
title deeds in respect to which the transfers aforesaid have been
declared unlawful and invalid shall not be set aside, and the
declarations of invalidity herein shall automatically lapse.
3.
Unless the equivalent amount of the balance of the purchase price
referred to in paragraph 1.5 above is otherwise agreed to in writing
within thirty (30) calendar days of the date of this order, or such
other extended period not exceeding a further thirty (30) calendar
days as they may agree to in writing, the parties shall engage the
Commercial Arbitration Centre in Harare solely to determine the
equivalent amount of that balance, in any of the functional
currencies, and the decision of the arbitrator shall be final and
binding.
4.
The first respondent shall pay the equivalent amount of the balance
of the purchase price referred to above within thirty (30) days of
the date the amount is ascertained either by agreement between the
parties, or through determination by arbitration as contemplated by
paragraph 3 above, together with interest thereon at the prescribed
rate from the date of such agreement or determination, whatever the
case might be, to the date of payment.
5.
In the event that the first respondent fails or neglects to pay as
envisaged in this order, then the applicants, or one or other of
them, shall ipso
facto,
forthwith
have the right to declare, in writing, the immediate and automatic
cancellation of the Deed of Sale aforesaid and, without prejudice to
any other rights they might have at law,
shall be entitled to keep as rouwkoop all such monies as they might
have received as purchase price for the original property.
6.
Subject to any rights to compensation for improvements that they have
in the event that the title deeds mentioned herein have been
cancelled as aforesaid, the first and fourth respondents, and all
those claiming occupation through them, shall, within thirty (30)
calendar days of the date of such cancellation, vacate, the
respective properties occupied by them, failing which the Sheriff of
Zimbabwe, or his lawful deputy or assistant deputies, or such of his
agents as might be duly authorized by him, shall be empowered,
authorized and directed to evict the aforesaid respondents and all
those claiming occupation through them.
7.
Save and except for the fourth respondent, whose costs of suit shall
be borne by the first and second respondents, jointly and severally,
the one paying the other to be absolved, each party shall bear its
own costs”….,.
It
is clear from the court
a
quo's
orders
that some of the orders it granted had not been sought by either
party. It is also clear that the parties had not made submissions for
or against those orders. They were granted mero
motu
by
the court a
quo.
It did so without seeking the parties' views on those orders. There
is no doubt that the court a
quo
exceeded
its mandate which was to determine the issues placed before it by the
parties through pleadings and proved by the evidence led.
The
function of a court is to determine disputes placed before it by the
parties. It cannot go on a frolic of its own. Where a point of law or
a factual issue exercises the court's mind but has not been raised
by the parties or addressed by them either in their pleadings, in
evidence, or in submissions from the bar, the court is at liberty to
put the question to the parties and ask them to make submissions on
the matter.
In
Welkom
Municipality v Masureik and Herman T/A Lotus Corp
1997 (3) SA 363…, MARAIS JA commenting on what the court should
base its decision on said:
“I
should add that whether or not South Africa did or did not fail to do
so is a question of fact upon which there was no evidence before the
court a
quo,
and for reasons too obvious to require enumeration, the learned Judge
was
not entitled to enquire into this issue of fact after reserving
judgment and without any reference to the parties, and then to decide
it. Compare
Kauesa
v Minister of Home Affairs and Others
1996 (4) SA 965 (NmS) at 973H–974C.”…,.
In
the Namibian case of Kauesa
v Minister of Home Affairs and Others
1996 (4) 965 (NmS) DUMBUTSHENA AJA…, said:
“The
above matters are not crucial to the determination of this appeal.
They are, however, important because a frequent departure from
counsel's, more correctly, the litigant's case, may be wrongly
interpreted by those who seek justice in our courts of law. It
is the litigants who must be heard and not a judicial officer.
It
would be wrong for judicial officers to rely for their decisions on
matters not put before them by litigants either in evidence or in
oral or written submissions. Now and again a Judge comes across a
point not argued before him by counsel but which he thinks material
to the resolution of the case. It is his duty in such a circumstance
to inform counsel on both sides and invite them to submit arguments
either for or against the Judge's point. It is undesirable for a
court to deliver a judgment with a substantial portion containing
issues never canvassed or relied on by counsel.
To
produce a wide–ranging judgment dealing with matters not only
extraneous and unnecessary to the decision but which have not been
argued is an exercise full of potential pitfalls and the judgment of
the court a
quo
has placed this court in a difficult position.
Are
we to consider every opinion expressed in the judgment, however
unnecessary it was to the decision and say whether it accords with
our own? Or can we leave such matters well alone until such time as
they become necessary to decide and are fully argued?
In
our view, the latter course is the proper one to take and in doing so
we emphasize that it must not be thought that this Court in any way
approves or endorses the many obiter opinions expressed in the
judgment of the court a
quo.”
Before
leaving this aspect of the appeal I consider it appropriate to refer
to what was said by BHAGWATI J…, in
M.M. Pathak v Union
(1978) 3 SCR 334 in relation to the practice of the Supreme Court of
India:
“It
is the settled practice of this Court to decide no more than what is
absolutely necessary for the decision of a case.”…,.
In
Groenewald
NO and Anor v Swanepoel
2002 (6) SA 724…, PICKERING J, commenting on what a judicial
officer should do if he wants to take into consideration issues not
covered in pleadings, evidence and submissions of the parties said:
“It
was therefore the
duty of the learned Judge to have informed plaintiff's counsel of
the relevant point, more especially where that point was, in her
view, conclusive of the matter, and to have invited him to submit
argument to her. Had
she done so counsel would no doubt have been in a position to address
her concerns and the necessity for this appeal may well have been
obviated.
Secondly,
the
remark made by the learned Judge concerning the alleged arrest of the
defendants was not based on any averment made in either the pleadings
or the evidence adduced before her at the hearing or in the course of
argument by Mr Pretorius.
It would appear that she must have gleaned this information from some
outside source. It hardly needs stating that a judge may only have
regard to the evidence placed before him or her during the course of
the hearing and that a reliance on facts not averred in the pleadings
or raised in court constitutes a serious misdirection.”…,.
I
respectfully agree with the views expressed in the authorities
referred to above.
The
function of a court is to determine the dispute placed before it by
the parties through their pleadings, evidence, and submissions. The
pleadings include the prayers of the parties through which they seek
specified orders from the court.
This
position has become settled in our law.
Each
party places before the court a prayer he or she wants the court to
grant in its favour. The Rules of Court
require that such an order be specified in the prayer and the draft
order. These requirements of procedural law seek to ensure that the
court is merely determining issues placed before it by the parties
and not going on a frolic of its own. The court must always be seen
to be impartial and applying the law to facts presented to it by the
parties in determining the parties' issues. It is only when the
issues or the facts are not clear that the court can seek their
clarification to enable it to correctly apply the law to those facts
in determining the issues placed before it by the parties.
The
judgment of the court
a
quo
unfortunately
fell short of these guiding principles. In seeking to find middle
ground, the court a
quo
granted orders which had not been sought by either party. It granted
the first and fourth respondents a further grace period and a
referral to arbitration. The first and fourth respondents had not
sought such orders.
Such
orders cannot be sustained at law.
They
seem to have been motivated by equity and sentiments of justice
rather than the law and the facts, as demonstrated by the court a
quo's
narration of the exploits of the legendry “judge jackal” in
setting free a man who was about to be eaten by a leopard he had
rescued from a trap.
Where
a court is of the view that an order not sought by the parties may
meet the justice of the case, it must put that possible relief to the
parties and allow them an opportunity to address it on such an order.
In
Proton
Bakery (Pvt) Ltd v Takaendesa
2005 (1) ZLR 60 (S)…, GWAUNZA JA said:
“The
appellant argues, in the light of all this, that the action of the
court a
quo,
in reaching a material decision on its own, amounted to gross
irregularity justifying interference by this court on the principles
that have now become trite.
I
am, for the reasons outlined below, persuaded by this argument…,.
The
misdirection on the part of the court a
quo
is left in no doubt. It is my view, so serious as to leave this Court
with no option but to interfere with the determination of the lower
court.”
The
determination by the court a
quo,
of matters not placed before it, goes against a litigant's right to
be heard and this view is supported in the fourth edition of Judicial
Review of Administrative Action by J. M. EVANS…, where it was
highlighted that the principle that “no man is to be judged
unheard” is an age-old view adopted from the ancient Greeks. This
principle has been adopted in our system under the audi
alteram partem
rule.
Therefore,
the fact that the respondents are not taking issue with the court's
mero
motu
decision is neither here nor there. This irregularity militates
against the validity of parts of the judgment of the court a
quo.
The
“grace period” of thirty days granted to the first respondent by
the court a
quo
has no founding at law and cannot be legally justified. The initial
thirty days awarded by BARTLETT J were in terms of the Contractual
Penalties Act. The purchaser, having already been granted this
thirty-day period in terms of the law, cannot be granted a further
thirty-day period not provided for in terms of the law to the
prejudice of the seller on no legal basis.
Judicial
discretion should at all times remain guided by the dictates of the
law.
A
court is not entitled to determine a dispute placed before it, wholly
based on its own discretion, which is not supported by the issues and
facts of the case. It is required to apply the law to the facts and
issues placed before it by the parties.
