GOWORA JA: In
February 2011, the first respondent, (hereinafter referred to as “the
respondent”) filed a court application against the appellant, the second
respondent and the third respondent wherein an order for specific performance
was sought against the appellant. The application was opposed by the appellant
and the third respondent. The second respondent did not respond.
The third respondent filed opposing
papers in which it denied averments made against it. The third respondent
however, did not comment on the merits or otherwise of the application and
filed no further documents in relation to the application.
The
appellant filed opposing papers on 24 February 2011 and the respondent
filed an answering affidavit. On 11 May 2011 the respondent filed its
heads of argument. On 17 May 2011 the appellant filed a chamber application for
leave to file a supplementary opposing affidavit. It was opposed by the
respondent. Ultimately, the application was dismissed by the High Court.
The appellant was dissatisfied with the judgment and has noted an appeal to
this Court.
In dismissing the application, the
court a quo concluded that the appellant had made admissions in its
opposing affidavit which it was seeking to withdraw through the averments
contained in the supplementary affidavit that it was proposing to file.
The court found in addition that the appellant had not advanced a full
and satisfactory explanation for its failure to include the information in its
opposing affidavit. It concluded that the application to file the
supplementary opposing affidavit was not bona fide.
When considering an application by a
party for leave to file a supplementary affidavit, the court is called upon to
exercise a judicial discretion. In the exercise of this discretion, it is
a fundamental consideration that the dispute between the parties be adjudicated
upon all the relevant facts pertaining to the dispute. The court is
therefore permitted a certain amount of flexibility in order to balance the
interests of the parties to achieve fairness and justice. In this
exercise the court has to take into account the following factors:
- A proper and satisfactory explanation as to why the information
had not been placed before the court at an earlier stage;
- The absence of mala fides in relation to the
application itself;
- That the filing of the supplementary affidavit will not
cause prejudice which cannot be remedied by an order of costs.
The appellant has submitted that at
the end of the day in its enquiry the court must endeavour to achieve fairness
to all parties. The explanation for the failure to place the facts sought
to be adduced through the supplementary affidavit is blamed on the appellant's
erstwhile legal practitioner.
As the court
had to consider, on the one hand, the explanation for the failure to include
the information and determine therefrom the lack of mala fides on the
part of the applicant and the attendant prejudice to the respondent on the
other, the absence of an affidavit from the legal practitioner concerned meant
that the failure had not been explained. The court a quo
found that where a party seeks to redress or explain a procedural omission,
irregularity or wrongful conduct attributed to his legal practitioner, it was
imperative that the legal practitioner concerned be requested to depose to an
affidavit to outline his or her role in the conduct of the matter. The
court a quo found that the appellant had failed to file a supporting
affidavit from the maligned legal practitioner and that this was fatal to its
case as he was the only person who could explain the chronology of the events
and his reasons for refusing to include the defence proposed in the initial
opposing affidavit. The court found that there was no comprehensive
inclusive explanation for the omission of the crucial information from the
opposing affidavit.
The view of this Court is that the
finding was correct. In Diocesan Trustees, Diocese of Harare v
Church of the Province of Central Africa 2010 (1) ZLR 267 MALABA DCJ
stated:
“Although in argument Mr Zhou
suggested that the failure to comply with the relevant rules was wholly
attributable to the respondent's legal practitioners, there was no admission of
negligence by the legal practitioner who deposed to the opposing affidavit on
behalf of the respondent on 29 September. One cannot consider absolving the
respondent from the consequences of lack of diligence committed by its legal
practitioners when there is no suggestion in its papers that the “oversight”
was that of the legal practitioner. It would have been after the responsible
legal practitioner had filed an affidavit admitting fault and explaining in
some detail what happened, that the judge would be in a position to decide
whether the respondent should not be visited with the sins of its legal
practitioners. Where no factual basis for making such a distinction of
culpability has been provided, the judge would have no right to draw it. It
must follow that without an affidavit from the person responsible for the
“oversight” admitting fault and explaining the circumstances under which he or
she overlooked the rules, one is at a loss for the reason why it found necessary
to state in the opposing affidavit that an “oversight” on the part of the
respondent was the cause of the non-compliance.”[1]
As contended by Mr Mpofu, the
court a quo was correct in its consideration of the facts and in its
application of the principles to the facts. This Court finds no
misdirection as on the record there is no explanation as to why the facts were
not included in the opposing affidavit when it was prepared. It is not as
if the appellant was unaware of the contents of the affidavit in question at
the time it was filed. The affidavit was sworn to by the deponent to all the
affidavits filed in connection with the dispute. He describes himself in
all of them as a director of the appellant. A letter from the appellant to the
respondent dated 25 January bears his name and signature. Quite clearly,
when he signed the affidavit on 24 February 2011 he would have been alive
to the fact that it contained erroneous information. He however proceeded
to sign the affidavit and allowed it to be filed.
It is correct, as argued by Mr
Mpofu, that the statements in that letter, which are consistent with the
opposing affidavit, negate the averments made in the supplementary
affidavit.
In addition to the lack of an
explanation, the court a quo found that the application lacked bona
fides. This was mainly in view of the fact that the parties had been
corresponding on the issue since 2006 when the written agreements were executed
and signed. The record does not indicate when exactly the dispute arose,
but it is clear that by January 2011 the appellant was threatening to cancel
the agreement of sale. The learned judge in the court a quo found
that the appellant had taken long to assert its rights and that in making an
application to file the supplementary affidavit and raise the issues therein
the appellant was acting in bad faith.
It seems
that the learned judge misdirected herself in that finding. The bad faith
is in relation to the explanation and not to an apparent failure to assert a
right. Once the court found that there was no explanation it was open to
the court to find that the lack of a full and satisfactory explanation was
sufficient for the court to find that there was mala fides in the
application. This Court however, does not consider that the misdirection
in this respect would warrant interference by the court.
Most
pertinent to the application was the finding by the court that the appellant
sought, through the supplementary affidavit, to withdraw admissions that had been
made in the opposing affidavit. The court stated the following:
“…. The applicant seeks to
introduce evidence by way of a supplementary affidavit to the effect that this
arrangement was never a sale. The supplementary affidavit supposedly
paints a completely different picture of the transaction. The applicant
has not followed the correct procedure outlined in rule 189 which provides for
the withdrawal of the admissions it made. No formal application for the
withdrawal of admissions was made. There is no doubt in my mind that once
the supplementary affidavit is admitted, the applicant will effectively be
saying, yes we made admissions but that, that is not a correct reflection of
the transaction as it was a loan agreement. The admissions made earlier
are therefore being challenged and will fall away on the filing of the further
affidavit. The applicant has not laid a basis for the filing of a further
affidavit that has the effect of withdrawing admissions earlier
made.”
I have not been convinced by the
contention on behalf of the appellant that the supplementary affidavit, rather
than withdrawing admissions, sought instead to place before the court the
antecedent agreement concluded between the parties. The opposing
affidavit filed by the appellant on 24 February 2011 is rather terse and to the
point. In para 5 of the same the deponent averred:
“The letter in question does not
suggest that first respondent has actually cancelled the sale, but rather
asserts that first respondent will proceed to do so unless the transaction can
be reviewed on an amicable basis and invites settlement
overtures.”
Given the averments in para 11 of
the founding affidavit to which the response was addressed the court could only
conclude that the appellant in fact admitted certain facts. In a later
paragraph, specifically para 9 the respondent discusses its inability to pay
capital gains tax necessary to facilitate transfer to the respondent.
Mention is also made in the same paragraph of negotiations of a sale of
the property back to the appellant. To then suggest in a supplementary
affidavit that in fact the real transaction between the parties was a loan and
that the agreement of sale was merely to serve as security for the said loan
would be to change the whole tenor of the relationship between the parties.
It would introduce new facts which were not placed before the court in
the papers filed before it. The court a quo came to the correct
conclusion. The effect of allowing the supplementary affidavit would be
to sanction the withdrawal of an admission under circumstances where no good
cause had been shown. To admit the supplementary affidavit would also result in
the admissions being withdrawn in the absence of a formal application.
The appellant has criticised the
High Court for what it suggested was the court's defence of the respondent's
claim in respect of the finding by the court a quo that the admission of
the supplementary affidavit would have the effect of defeating the respondent's
claim against the appellant. This is what the court said:
“There is no doubt that the
respondent will suffer an injustice if this affidavit is admitted at this
stage. The court is of the view that the admission or filing of the affidavit
would clearly prejudice the applicant which relied on these admissions in the
main matter as it will not be able to maintain its position on the merits.
The respondent will be placed in a worse off position if the affidavit is
admitted than he would have been had the pleading in its amended form, been
filed in the first instance, see DD Transport (Pvt) Ltd (supra) for the
proposition. Once this happens the matter will change its course.
The main matter will have a completely different outlook as the applicant
is raising a defence as opposed to admissions it made in the opposing
affidavit. The cause of action will fall away. If the further
affidavit is allowed, this signals the end of the matter. The new
averments sought to be admitted disposes of the respondent's claim to the
property. This prejudicial outcome cannot be cured or compensated by a
special award of costs.”
It was submitted by Mr Mpofu
that over and above dealing with the question of mala fides the court
had also addressed the question of prejudice and had found that an injustice
would be caused to the respondent if the court exercised its discretion in
favour of the appellant. It was contended further that the finding by the
court had to be considered in the context of the fact that the main application
and the application to file the supplementary affidavit had been
consolidated.
There can be no doubt that in the
circumstances of this case the adduction of new evidence would have caused
prejudice to the respondent which could not be cured by an order of costs no
matter how punitive such costs would have been. A court would not exercise its
discretion for the filing of a further affidavit where the affidavits sought to
be filed do not constitute a reply but raise wholly fresh issues, thus
entailing the filing of further affidavits by the applicant.
It would seem that the
appellant has misconstrued the reasoning of the learned judge in the passage
quoted above. The tenor of the ratio is focused on the issue of
prejudice and the guiding principles. Indeed, the learned judge mentioned
the destruction of the respondent's cause of action through the admission of
the supplementary affidavit being sought to be produced by the appellant.
The contention by the appellant that the court a quo had upheld
the respondent's weak cause of action to the disadvantage of the appellant is
not borne out by the record. The learned judge did not determine the
merits of the application. In commenting on the effect that the supplementary
affidavit was likely to have on the respondent's case the court a quo
was weighing the likelihood of prejudice that could be occasioned to the
respondent. The court did not make a definitive finding on the strength or
otherwise of the respondent's claim. I am unable to find any misdirection
in the manner in which the court dealt with the issue of prejudice flowing from
the admission of the supplementary affidavit.
The appellant did not, in its
opposing papers to the main application, plead a strong defence. It pleaded a
case which amounted to an admission. It then sought through the filing of the
supplementary affidavit to withdraw the admission and to proffer a defence.
The court did not deny the appellant the right to plead a defence.
The court in the exercise of its discretion was unable to find that the
appellant had established exceptional circumstances as would justify it
granting leave to the appellant to file a supplementary affidavit after the
respondent had filed an answering affidavit. In considering prejudice the
court has to weigh the respective positions of the parties to the dispute and
in any event, what the appellant sought was an indulgence, not a right and I am
not convinced that the court is guilty of gross misdirection in the exercise of
its discretion in this case.
The appellant is aggrieved by
the order of the court a quo that it pays costs on a punitive scale, and
submits that there was nothing exceptionally outrageous or frivolous and
vexatious about the application. The court found that the conduct of the
appellant had caused the respondent to incur unnecessary costs. The information
sought to be adduced through the supplementary affidavit was in the possession
of the appellant from the inception. There were no reasons advanced as to
why it had not been included in the opposing affidavit. The court said that the
manner in which the appellant had dealt with the application was sloppy.
I agree. Costs are ordered at the discretion of the court. Having
regard to the manner in which the application was dealt with, the detail in the
supplementary affidavit, the lack of an explanation as to why the application
became necessary I am unable to state that the court was wrong in the exercise
of its discretion. Costs on a punitive scale were clearly warranted in
the court a quo.
The appeal is without merit and it
is dismissed with costs.
ZIYAMBI JA:
I agree
GWAUNZA
JA:
I agree
Magwaliba & Kwirira, appellant's legal practitioners
Messrs Gill, Godlonton &
Gerrans, 1st respondent's legal
practitioners
The Chief Registrar of Deeds, 2nd respondent's legal practitioners
Joel Pincus, Konson & Wolhuter, 3rd respondent's legal practitioners
[1]
At p 277F-278B
