HUNGWE J: This case demonstrates what befalls a matter
between various parties if it is not pursued to finality expeditiously. It also shows what a change of legal
practitioners entails where subsequent practitioners have no inkling of the
previous processes.
The trial of this matter had commenced
before MAKARAU JP when it was stopped and the parties ordered to seek
directions. It was realized then that
the provisional order was still extant.
Such an application was filed on 6 November 2007 by the first respondent
on the same papers. This was another
error which compounded the confusion already reflected on the papers.
In her application the first
defendant correctly states that the applicant issued summons in HC 743/03
seeking an order of the second defendant in his capacity as the executor dative
in the estate of the late Caleb Arufandika for the cession of right and
interest in stand number 6357, 89th Crescent, Glen View 1, Harare,
in his favour. She does not mention that
she surreptitiously obtained an order against the executor as well as the
applicant in HC 8050/03 which the present applicant contends in the papers, was
never served on him as the occupier and bona
fide purchaser of the property. As a
result of the order which the first respondent obtained in HC 8050/03,
applicant filed the present papers and obtained a provisional order staying the
execution of the judgment in HC 8050/03 and seeking its rescission on the same
papers.
The applicant therefore on 23
December 2003 obtained an order staying his eviction from the said premises,
pending the determination of the application for rescission of the judgment in
HC 8050/03 dated 5 November 2003. He
also sought in that application for rescission, an order directing that cession
be effected in his favour in respect of stand 6357/89th Crescent,
Glen View, Harare. The terms of the provisional
order however are not as clear as I have set them out to be. As a result, there is no determination on the
application for rescission of the judgment in HC 8050/03 although this was the
main reason behind the grant of the order.
The applicant cited all the relevant parties in the present papers upon
which the determination of the issues could have been made on the return day.
However, and interestingly, the court
subsequently in HC 10752/03 (the present papers) referred the matter for trial
on 9 February 2005 (per CHITAKUNYE J).
On 2 March 2005 CHITAKUNYE J at
pre-trial conference identified issues for trial as being:
(1)
whether the applicant bought stand number 6357/89th
Crescent, Glen View 3, Harare from the second, third and fourth respondents'
late father.
(2)
whether the first respondent was a bona fide purchaser.
(3)
whether the second, third, and fourth respondents were
entitled to see the property to the first respondent; and
(4)
whether or not cession should be reversed.
Put
differently item four (4) is whether order HC 8050/03 should be rescinded. It
will be seen
that the application for directions by the first respondent is not bona fide since CHITAKUNYE J could not
have removed that matter from the roll on the basis that no pre-trail
conference had been conducted. The
Honourable judge conducted the pre-trial conference, he could not be presiding
over the trial.
The claim in the application before
MUSAKWA J that the application had not been referred to trial is patently
false. The papers reveal that the
present matter of the provisional order was referred to trial and in particular
the issues identified for trial will resolve the dispute between the parties as
set out in HC 743/03 and the rescission application in HC 8050/03. The only explanation as to why the matter was
referred for the present hearing as I said at the outset of this judgment must lie
in the confusion that arose out of the change of legal practitioners by the
parties and the failure to closely collate the various matters filed by the
different legal practitioners.
But the applicant's legal
practitioners should have had the presence of mind to advise her Ladyship of
the correct position in the proceedings before her were declared a nullity in
2006. It may well be that when he took
over the file from his principal,
Mr Nduna, the
applicant could not unpack the various stages each file had gone through.
There has been a consolidation of
all three cases. The only issue not
captured clearly is one of rescission of judgment HC 8050/03. It seems to me that since all the parties are
now before the court, and in the interest of finality to litigation
consolidation having been ordered by KARWI J on 22 November 2007, an
appropriate order is one which correctly direct the issues for trial.
I must restate an earlier order of
this court which is that the matter be and is hereby referred to trial on the
following issues identified before CHITAKUNYE J in the consolidated cases HC
743/03 and HC 8050/03 and the present papers HC 10752/03 as follows:
1.
whether the plaintiff is entitled to an order he seeks
against the second, third and fourth respondents in HC 743/03; and
2.
whether the order dated 5 November 2003 in HC 8050/03
should be rescinded?
The costs should
be costs on the cause.
Ngwenya & Associates, applicant's legal practitioners
Nduna & Partners, respondents' legal practitioners
