Verbal missiles had been flying in all directions in correspondence between the parties' legal practitioners and some pleadings filed of record. Clearly, emotions were in the driving seat. Reason was at the back. Allegations of fraud and dishonourable conduct had been bandied about. The nadir, in my view, was when one of the parties described the others as “…, mercenaries armed to the teeth;…, bandits seeking to reap where they did not sow.” There were insinuations that the court, myself in particular, had been complicit.
Here are the details.
On 30 July 2014 I granted an order in HC5926/14 in favour of the applicants in a chamber application. The record in the matter had been one of several that had been placed on my desk in the ordinary course of events some few days earlier. On perusing the record, I noted that the applicants sought, in the main, confirmation of a certain tribute agreement in respect of some mining concerns, and the right to occupy and operate the mines in question. I was satisfied that the papers were in order. Among other things, there was a cause of action established. The application had been served on the respondents. A return of service was on record. I granted the order sought in terms of the draft.
That seemed to have sparked it all.
I later learnt that the dispute between the parties had been raging on for some time and that several judges of this court had, at one time or other, sat in judgment over one aspect or other of the same matter. Thus, what my order seems to have done was to stoke the fires.
On 26 September 2014, a letter with a sticker marked “urgent” was placed on my desk. It was from Mawere & Sibanda, the respondent's legal practitioners. It was dated 14 August 2014, that is, more than a month before. It was addressed to Messrs F. M. Katsande, the applicant's legal practitioners and copied to, among others, the police and the Registrar of this court. It read:
“We refer to the above matter and to our letters to you dated the 16th and 21st July 2014. We express our concern at what we perceive to be fraudulent attainment of a court order under HC5926/14. You will recall that you served your client's application on our clients on the 17th July 2014. The requisite dies was to expire on the 31st July 2014, on which date we duly filed our applicant's notice of opposition. We were shocked to learn that by the time that we filed our opposition, an order had already been sought by your office and granted. We have inspected the court record and could not find therein any proof of service which leaves us wondering how you managed to get a Judge of the High Court to grant the patently defective order sought. Without getting into the substance of how your client obtained the order, we reiterate that the said document is wholly inoperative against Mabwe Minerals (Private) Limited as it was not a party to the proceedings. You will also note that the wording of the order requires the Respondents and all those claiming occupation through them to allow access to the mine. You will note that Mabwe Minerals (Private) Limited does not claim occupation through any of the Respondents. You are aware, as a Director of Chiroswa Minerals (Private) Limited, the 2nd Respondent in this matter, that Mabwe Minerals (Private) Limited actually derives its right of occupation from its registration with the Ministry of Mines and not through any of the respondents. We advise that our client has just learnt of this unorthodox manner of obtaining relief and is in the process of applying for setting aside of the order. Client, if necessary, will also be applying for stay of execution given that yours seems intent on seeing this illegality through to the end. We certainly have no need to advise that costs de bonis propriis shall be sought in such applications should you choose to oppose same for any reason. We accordingly advise.”
Also placed on my desk at the same time was another letter dated 15 August 2014 from Mawere & Sibanda for my attention. It read as follows:
“We refer to the above matter wherein we represent the Respondents. We confirm that our clients were served with the Application on the 17th July 2014 and filed and served their opposition on the 30th July 2014 being nine days after being served. We advise that clients were recently served with an order dated the 30th July 2014 in this matter being the same date when the opposition was filed, and also falling within the dies induciae. It is not immediately clear to us whether the Honourable Judge had sight of our client's opposition or not before granting the application as the order does not indicate whether the judgment was granted in default or not. This is an issue which we may also seek guidance on. We advise that our clients have instructed that we consider grounds for an appeal in this matter. In the circumstances, we request that the Honourable Judge furnish us with reasons for the order granted in this matter to allow us to proceed with the matter. We therefore request that you place the file, together with this note, before the Honourable Judge for his consideration. We wait to hear from you.”
I called for the record.
The return of service by the Sheriff was still on file. However, also on file was now a notice of opposition by the respondents. It showed it had been filed with the Registrar on 30 July 2014. Service of the chamber application on the respondents had been on 17 July 2014. I then realised that when I had granted the order, on 30 July 2014, only nine days had lapsed from the date of service. Given that in terms of Order 32 Rule 241 as read with Rule 242 a chamber application has to be served on any interested party and has to be in Form No.29, with appropriate modifications, unless it is one of those listed in paragraphs (a) to (e) of Rule 242(1) which do not need to be served and which should be in Form No.29B, I considered that I had granted the order of 30 July 2014 prematurely. I felt I had granted it in error. So I considered it was one of those that a court or a judge, either mero motu, or upon the application by any party affected thereby, could, inter alia, rescind. With that frame of mind I caused to be dispatched to the parties' legal practitioners the following letter:
“A default judgment was granted in chambers on 30 July 2014. This was on the basis of, inter alia, a return of service that had, inter alia, the 17 July 2014 as the date when service had been effected. At that time there was no notice of opposition on file. Now it is on record. It indicates it was issued on 30 July 2014. On reflection, since on 30 July 14 the dies induciae had not yet expired, it follows that the default order was granted in error. Accordingly, it is intended to set it aside in terms of Order 40 Rule 449. This letter is therefore the requisite notice to the applicant in terms of Rule 449(2).”
Meanwhile, the applicants, in pursuance of my order aforesaid, had issued a writ of ejectment to evict from the mining concerns in question the respondents and all those claiming occupation through them. The respondents had countered with an urgent chamber application for the eviction of the applicants themselves on the basis that their right to occupation had been obtained illegally. TSANGA J had dismissed the urgent chamber application for lack of urgency. None of this was known to me when I gave the parties the notice of my intention to rescind my order.
In response to my notice aforesaid the applicants filed letters and formal submissions protesting vigorously against my intention to set aside the order. They argued, among other things, that I was now functus officio; that I had made no error as the respondents had not been entitled to any dies induciae since this was a chamber application, not a court application. It was stressed that in terms of the rules, once a chamber application has been filed, it is incumbent upon the Registrar to bring it to a judge in chambers without undue delay. The judge seized with the application has to determine it, also without undue delay. There was no basis, the argument concluded, for importing the ten day dies induciae for court applications into a chamber application procedure.
For the issue to be more fully canvassed and ventilated I called the parties into chambers and full argument was presented on 8 October 2014….,.
The crux of the matter is whether I granted the order of 30 July 2014 in error.
Counsel for the applicants submitted that I made no error. He argued that the chamber application had been served on 17 July 2014. The respondents had done nothing until towards the end. The law protects the vigilant and not the sluggard. The respondents must have known that after the application had been filed the next thing would have been for the applicant to seek a default judgment. When the Registrar had received the application for a default judgment he had acted with expedition by bringing it to a judge in chambers. When the matter had been placed on my desk I too had acted with expedition by determining and granting the order. That is what is contemplated by Rule 245, counsel for the applicants submitted.
Rule 245 reads:
“Where a chamber application is not accompanied by a certificate referred to in Rule 244, the Registrar shall, in the normal course of events, but without undue delay, submit it to a judge who shall consider the papers without undue delay.”
It was further submitted that there was no scope for reading the ten day dies induciae of court applications into chamber application proceedings. To do so, the argument persisted, would render Rule 245, which specifically deals with chamber applications, redundant.
It is necessary to look at these rules more closely.
Rule 230, on court applications, reads:
“A court application shall be in Form No.29 and shall be supported by one or more affidavits setting out the facts upon which the applicant relies. Provided that, where a court application is not to be served on any person, it shall be in Form No.29B with appropriate modifications.”
Rule 241, on chamber applications, reads:
“(1) A chamber application shall be made by means of an entry in the chamber book and shall be accompanied by Form 29B duly completed, and, except as is provided in subrule (2), shall be supported by one or more affidavits setting out the facts upon which the applicant relies:
Provided that, where a chamber application is to be served on an interested party, it shall be in Form No.29 with appropriate modifications.”…,.
Rule 242(1) goes on to provide that a chamber application “shall” be served on all interested parties unless it is one of those listed in paragraphs (a) to (e) of subrule (2).
One major difference between Form 29, for an ordinary or regular court application, and Form 29B, for a chamber application, is that with Form 29 there is a blank space to fill in the dies induciae for the filing of any opposing papers by an interested party, whereas with Form 29B no such provision is made. The other major difference between the forms is that with Form 29, unless it is an application for review in terms of Order 33, the reasons for the application need not be stated on the face of the application, but with Form 29B this has to be done - albeit in summary fashion.
In the case of Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H) HLATSHWAYO J…, held that Form No.29, for court applications, contains a plethora of procedural rights that the respondent is alerted to, while Form No.29B, for chamber applications, sets out a summary of the grounds of the application.
In that case, the applicant had used neither of the two forms and had refrained from seeking condonation for its failure to do so. The application was held to be fatally defective and was dismissed with a special order of costs.
In my view, it is the general rule that all chamber applications have to be served on interested parties. Because of the use of the word “…, unless…,” in Rule 242(2) it means those chamber applications listed in paragraphs (a) to (e) are the exceptions. Therefore, the ordinary chamber application has to be served. Because it must be served, it has to be in Form No.29. But, since this form is blank on the space for the dies induciae, one has to go to Rule 232 to complete it.
In terms of that Rule, the dies is a minimum of ten days, exclusive of the day of service. This is for those respondents within a radius of 200 kilometres of the court where the application is filed. An extra day is added for every additional 200 kilometres away from the court. The ten day minimum period in Rule 232 is for court applications. In my view, Rule 232 is intrinsic to, or an integral part of, Form 29. It is what a scale is to a map or a key to a graph. For one to read a map or graph sensibly one checks the scale or the key. Rule 232 is the key to the missing information in Form 29.
By the repeated use of “shall”, Rule 241 commands the use of Form 29 for those chamber applications that have to be served. Rule 232, being an integral part of that Form, it means the minimum ten-day period has to be read into the proviso to Rule 241(1). Thus, the applicant in a chamber application has to give a minimum of ten days for interested parties to file any responses. The failure by an applicant to use Form 29 in a chamber application that has to be served is fatal. Such a chamber application is incurably bad.
In the case of Minister of Higher & Tertiary Education v BMA Fasteners (Private) Limited & Ors HB42-14 MAKONESE J held as follows:
“It is trite law that a Chamber Application must comply with the rules governing Chamber Applications. Chamber Applications are provided for by Order 32 Rule 241. Rule 241(2) states that where a Chamber Application is to be served on an interested party it should be in Form No.29 with appropriate modifications. In terms of Rule 232, a Respondent shall be entitled to not less than 10 days to file opposing affidavits. In urgent matters, the court may specify a shorter period than 10 days.
Mr Dube-Banda, for the Applicant, contends that the proviso in Rule 241(2), that the urgent application, '…, shall be in Form No.29 with appropriate modifications,' meant that the Applicant could vary the period of 10 days to 5 days.
With respect, there is no order of this court granting leave to the applicants leave (sic) to give the Respondents 5 days within which to respond. Mr Dube-Banda was constrained to accept that once a matter is not treated as an Urgent Chamber Application, then the normal rules regarding time limits given to Respondents ought to have applied. The Applicant's attempt to vary the period to five days was clearly wrong and fatal to the application. The provisions of Rule 232 apply in that this matter once it is accepted that this is not an Urgent Chamber Application and a Respondent shall be entitled to not less than 10 days to file opposing affidavits (sic). The applicant cannot abridge the time limits within which the Respondent is entitled to file the opposing papers without the leave of the court.”
With respect, I find myself in agreement with the learned judge.
The proviso to Rule 241(1) permits the modification of Form 29 where the chamber application has to be served. What would constitute “appropriate modifications” is not stated. Why then does it become important that every time a chamber application has to be served the applicant should abandon Form 29B and switch over to Form 29?
In my view, once the chamber application becomes one that must be served then the respondent is entitled to a period within which to file opposing papers. The “appropriate modifications” would include, in my view, a fusion of the contents of Form 29 and those of Form 29B. In other words, it becomes a hybrid, containing both “…, the plethora of procedural rights..,” of Form No.29, including the dies induciae, and a summary of the grounds of application of Form No.29B.
In casu, counsel for the respondents submitted that reading the ten day period into Rule 242(1) does not render Rule 245 redundant.
I agree.
In my view, a judge seized with a non-urgent chamber application that is none of those contemplated by paragraphs (a) to (e) of Rule 242(1), will have to allow the dies induciae the respondent is entitled for filing any opposing papers to lapse. If the judge so waits he is still acting within the confines of the rules. The requirement in Rule 245 that the judge “…, shall consider the papers without undue delay,” does not mean, in my view, that he should abridge the requirements of the law. Rule 245 cannot be read in isolation. It has to be read subject to, or together with, the other rules relevant on the point.
In the premises, and with respect to myself, I find that I granted the order of 30 July 2014 in error. The error was not only that the dies induciae that the respondents were entitled to for filing any opposing papers had not yet lapsed by that date, but also that I granted the order on a patently defective application. It was not on Form No.29.
In the alternative, counsel for the applicants advanced what I considered to be a last-ditch argument. He submitted that the respondents' application was non-contentious as it was a straightforward one merely meant to give effect to a previous order of this court.
In terms of paragraph (a) of Rule 242(1), a matter that is uncontentious, in that no person other than the applicant can reasonably be expected to be affected by the order sought or to object to it, needs not be served. However, in this matter, given that the parties had been, and still were, involved in mortal combat regarding both the ownership and the physical control of the mines in question; given that earlier in the year the respondents had been expelled from the mines following an order of spoliation against them, and given that following my order aforesaid the respondents themselves said they had been repelled by “…, brute force…,” from occupying the mines, it is remarkably absurd to suggest that the matter was un-contentious; or that the respondents would reasonably be expected not to object to it; or that they would not be affected by the order. At any rate, if the respondents had felt that their application had been uncontentious, they would, no doubt, have refrained from serving it.
Order 49 Rule 449 reads:
“449. Correction, variation and rescission of judgments and orders
(1) The court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind or vary any judgment or order –
(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or
(b)…,.; or
(c)…,.
(2) The court or a judge shall not make any order correcting, rescinding or varying a judgment or order unless satisfied that all parties whose interests may be affected have had notice of the order proposed.”
Counsel for the applicants submitted that since the respondents had made no formal application but had merely written to me, conduct which he condemned as impudence, it meant that I could not tamper with the order.
However, the rule clearly states that a judgement or order may be set aside, not only upon the application of the affected party, but also mero motu by the court or judge. Ex mero motu means “of, or from one's own free will or accord”, Dictionary of Legal Words and Phrases, Vol. 2…, compiled by C. J. CLAASSEN, Durban, Butterworths, 1976; “of one's own motion or own accord, voluntarily without prompting or request,” The Law Dictionary at thelawdictionary.crylex…,.
I may not have discovered the error of my own accord. Discovery was prompted by the respondents through the letters from their legal practitioners. Nonetheless, the motion and the notice to rescind the order were of my own volition. In my view, that should still make the rescission mero motu.
In the premises, the order of this court, granted by myself on 30 July 2014 in HC5926/14, in the case Base Minerals Zimbabwe (Private) Limited & Anor v Chiroswa Minerals (Private) Limited & Ors, is hereby set aside with no order as to costs.
