On 13 February 2014, the applicants
filed an application with this court. The application was filed under case
number HC1188/14. On 14 February 2014, the applicants filed the present
application with the court on an urgent basis. The application was filed
under case number HC1248/14. I will, for purposes of clarity, refer to the
application ...
On 13 February 2014, the applicants
filed an application with this court. The application was filed under case
number HC1188/14. On 14 February 2014, the applicants filed the present
application with the court on an urgent basis. The application was filed
under case number HC1248/14. I will, for purposes of clarity, refer to the
application which falls under case number HC1188/14 as an application in the
main case or the main application. Whichever term is employed, it is meant
to be understood as such so that it remains distinguished from the present
urgent chamber application.
The applicants urged the court which
is dealing with this application to make an order which is to the effect that
the main application be heard on an urgent basis. They are, in a
paraphrased manner, praying the court to compel itself to hear the application
in the main case as a matter of urgency. The applicants advanced two
reasons for their prayer which they couched in the form of a final, as opposed
to an interim, order.
1. Their first reason was, or is,
that the first applicant's application for rescission of judgment in the South
African court has been set down for hearing on 3 March 2014. The judgement
which is the subject of the rescission application arose from the claim which
the Minister, who in this country administers the Reconstruction of
State-Indebted Insolvent Companies Act [Chapter 24:27], through the third
respondent, instituted against the first applicant. They question the
legal status of the third respondent who instituted the claim which resulted in
a default judgement being entered against the first applicant.
2. The
applicants' second reason for filing the present application centres on
what they described as harmful consequences which they say will visit the first
applicant if the main application is not heard on an urgent basis. They
submitted that, following the default judgment which the court in South Africa
entered against the first applicant on 11 October 2012, a warrant of execution
was issued against the property of the first applicant who may, as a result
thereof, lose property which is worth R18 million. That, in their view,
constitutes irreparable harm of a very serious magnitude.
The respondents filed their opposing
papers and they argued that the application which the applicants placed before
the court was, or is, not urgent. They raised six preliminary matters in
their opposition of the application. The matters in question were, or are,
that:
(i) The applicants' certificate
of urgency was/is fatally defective;
(ii) The application was/is not
urgent;
(iii) The applicants, the first
applicant in particular, will not suffer irreparable harm;
(iv) The applicants do not have locus standi;
(v) There is, in the application,
the issues of non-joinder and misjoinder; and
(vi) The applicants did not pay into
court security for costs.
Two principles guide the courts in
their determination of applications of the present nature. The principles
in question do, more often than not, tend to gravitate along the following
matters:
(a) Whether, or not, the application
which has been placed before the court is urgent;- and, if it is,
(b) Whether, or not, the
applicant(s) treated the application with the urgency which it deserves.
It requires little, if any, emphasis
to observe and state that the application in the main case and the present
application are, in some way or other, interlinked to the first applicant's
rescission of judgement application which the court in South Africa set down
for hearing on 3 March 2014. It goes without saying, therefore, that in
determining the urgency or otherwise of this application, the court will not be
oblivious to the first applicant's attitude to, as well as the manner in which
he handled, the case which was instituted against him in the courts of South
Africa. The court, in other words, cannot pay a blind eye to the apparent
conclusion which is that the determination of the main case in favour of the
first applicant does have, in many respects, a favourable trigger effect to the
determination by the court in South Africa of the first applicant's application
for rescission of judgement.
As is the generally accepted
practice in applications of this nature, the court will proceed to examine and
analyse the preliminary matters which the respondents raised and compare those
with the submissions of the applicants with a view to ascertaining if the
application remains holding. The court would examine those six in limine matters, each in turn, and,
after a comparative analysis of the case of the applicants and that of the
respondents in respect of each matter, it will arrive at a clear determination
of the application which has been placed before it.
In so far as the first issue - that
which relates to the certificate of urgency- is concerned, the respondents
argued that the certificate in question was totally defective for the reasons
that one Benjamin Chikowero
who is a legal practitioner practising law under Gutu & Chikowero legal
practitioners:
(a) Drafted and signed the
certificate of urgency when -
(b) He is the legal practitioner for
the applicants in both the main case and
(c) The present application.
They submitted that Mr Chikowero's involvement with the
applicants in the above-mentioned three situations does have the effect of
clouding the legal practitioner's vision of looking at the matters which he has
brought before the court with an objective and dispassionate mind.
Counsel for the respondents argued, in extensor, and said the fact that
Mr Chikowero prepared the
document which is entitled URGENT CHAMBER APPLICATION in addition to the three
documents which have already been made mention of makes his ability to
assess the urgency, or otherwise, of the application in a dispassionate
way very difficult. He, in support of his submission on this matter,
referred the court to the case of Chifanza
v Edgars Stores Limited and the Deputy
Sheriff, Chinhoyi HB27-05, wherein CHEDA J…, regarded such conduct as Mr
Chikowore exhibited in the
main, and the current, applications as being improper.
Counsel for the applicants made
every effort to explain the distinction which he said does exist between the
Bulawayo court's approach to the matter and the Harare court's attitude to the
same. He stated that there was a difference between the Harare and the
Bulawayo practice on the law which relates to the preparation of certificates
of urgency. He submitted that the principles which the court in Harare adopted
on the matter were more in accordance with the generally accepted practice than
the principles which the court in Bulawayo adopted on the same. In arguing
as he was doing, counsel for the applicants was no doubt distinguishing the Chafanza v Edgars Stores Limited and the Deputy Sheriff, Chinhoyi HB27-05
case, which the court in Bulawayo decided, from such cases as:
(i) General Transport &
Engineering P/L & Ors v Zimbank Corp P/L 1998 (1) ZLR 301, 303; and
(ii) Tripple C. Piggs & Anor v Commissioner-General, ZRA 2007 (1) ZLR 27;
wherein the court in Harare
pronounced on the point which is under consideration.
A common thread which runs through
the cases which counsel for the applicants referred the court to is that a
legal practitioner who drafts and signs a certificate of urgency for his client
must retain to himself the attribute of being objective when he states, in
the certificate, that his client's case is an urgent one. GILLESPIE J…,
stated in the General Transport & Engineering P/L & Ors v Zimbank Corp
P/L 1998 (1) ZLR 301, 303 case that:
“The preferential treatment of
allowing a matter to be dealt with urgently is only extended if good cause is
shown for treating the litigant in question different from most litigants.
Where a party brings a chamber application for urgent relief, it is a
procedural requirement that the application be supported by a certificate by a
legal practitioner setting out, with reasons, the legal practitioner's
belief that the matter is urgent. The reason behind such certificate is
that the court is only prepared to act urgently in a matter where a legal
practitioner is involved, if the legal practitioner is prepared to give his
assurance that such treatment is required. Before putting his name to such
a certificate the legal practitioner must apply his mind and judgement to the
circumstances and reach a personal view that the matter is urgent. He must
support his judgement with reasons. It is an abuse of a lawyer to put his
name to such a certificate where he does not genuinely hold the situation to be
urgent. The genuineness of his belief can be tested by the reasonableness
of the purported view. Where a legal practitioner could not reasonably
entertain the belief that he professes he runs the risk of a judge concluding
that he acted wrongfully, of not dishonestly, in giving his certificate of
urgency.”
In the second case, that of Tripple C. Piggs & Anor v Commissioner-General, ZRA 2007 (1)
ZLR 27, GOWORA J…, took the matter further and said:
“When a court is considering
whether, or not, a matter is urgent, each case is judged according to the
circumstances surrounding the matter. The test of urgency is, however, not
subjective.”
She quoted, with approval, the
remarks of MAKARAU JP…, who, in Document
Support Centre (Pvt) Ltd v Mapuvire
2006 (2) ZLR 240, said:
“The test of urgency is not subjective
but objective.”
The reasons which underlie the
practice of employing an objective, as opposed to a subjective, test in respect
of a legal practitioner who drafts and signs a certificate of urgency for his
client were made clear by JENNET JP, who, in S v Rolomane 197
(4) SA 100, said:
“No doubt, the courts require for
admissibility of affidavits tendered in evidence that they be attested by a
commissioner of oaths who is impartial, unbiased and independent in relation to
the subject matter of those affidavits.”
The cited case authorities do, in a
large measure, demonstrate the undesirability of the practice of a legal
practitioner who represents a client drafting and signing a certificate of
urgency for his client. It is the court's considered view that if the practice
was allowed to take root and flourish in the manner which counsel for the
applicants was at pains to persuade the court to do, courts would be inundated
with applications which, in substance, are not urgent but which, because of the
tendency in human nature to jump the que-ue whenever an opportunity to do so
offers itself to anyone, will be described as such by legal practitioners who
desire their clients' cases to enjoy preferential treatment at court over the
cases of other litigants. That will, no doubt, destroy the meaning and
efficiency of the whole concept of what matter is, or is not, urgent. The
result which comes out of such a situation is not difficult to see. Chaos will
be the order of the day at court and that chaos will not contribute positively
towards the country's justice delivery system. It is for the mentioned
reason, if for no other, that the courts insist on the objective, as opposed to
the subjective, test when they go about their onerous task of applying a value
and reasoned judgement towards ascertaining whether, or not, a matter which is
placed before them on an urgent basis is so urgent that everything else must
wait whilst they attend to that matter. In their assessment of the
urgency, or otherwise, of a case, or cases, which is, or are, placed before
them on an urgent basis, courts invariably do rely on certificates of urgency
which legal practitioners prepare and sign certifying that the matter is
urgent. The legal practitioner who drafts and signs such a certificate should
not, in the court's view, allow himself to be clouded with the dust of the
matter. He should be a lawyer who allows himself to maintain, as well as
retain, the attributes of being independent of the matter, impartial and
unbiased towards the cause of the litigant whose case he has objectively
assessed and concluded that, in his honest and unbiased view, the matter is
both urgent and cannot, therefore, be allowed to wait. In the Chafanza v Edgars Stores Limited and the Deputy Sheriff, Chinhoyi HB27-05
case, CHEDA J gave two reasons which he said do militate against the practice
of a legal practitioner who represents a client allowing a member of his law
firm to draft and sign a certificate of urgency for the client. He said it
was, in his view, improper for a legal practitioner who represents a client to
allow a member of his law practice to draft and sign a certificate of urgency
for the client as the legal practitioner in question does have an interest in
the matter. He continued and stated that the interest is grounded on two
factors which are that:
(a) He has a pecuniary interest in
the earning of fees from the said client; and
(b) He is interested in promoting
the goodwill of his company by bringing his client's affairs to a successful
conclusion.
It is CHEDA J's views, to which the
court subscribes, that certificates of urgency which relate to a legal
practitioner's client should not be drafted and signed by a member of the legal
practitioners' law firm, let alone by the legal practitioner himself but by
legal practitioners of law firms which are separate and distinct from the firm
of the legal practitioner. That arrangement assists in the assessment of the
genuineness and reasonableness of the drafted and signed certificate which a
court places great reliance upon in its effort to determine if a matter which
has been placed before it is urgent or not. Legal practitioners are
officers of the court whose first and foremost duty is, at all times, to remain
candid with the court on all matters which they bring before the court.
The present is a classic case where
a legal practitioner who was driven by the interest of money which he earns
from working for his clients and the desire on his part to make a good name for
his law firm as well as for himself lost the objectivity which is required in
the drafting and signing of certificates of urgency. The amount of work which
Mr Chikowore did for his
clients in both the main case and in the present application cannot possibly be
regarded as having left him with any any ability to objectively assess the
matter which he certified as having been an urgent one. The court will
demonstrate the view which it takes of the matter on this preliminary point in
some part of this judgment. He was simply not candid with the court when he
drafted and signed the certificate of urgency.
The court, in this regard, agrees with the
respondents who, in their submissions, argued that the certificate of urgency
which Mr Chikowero drafted and
signed was not only totally, but was incurably, defective.
