People's Own Savings Bank v Robert Njanja and Additional Sheriff (N.O) and Kenn Bongani Sambo and the Registrar of Deeds (N.O)

### Preamble
1
HB 186.19
HC 533/19
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PEOPLE’S OWN SAVINGS BANK

Versus

ROBERT NJANJI

AND

ADDITIONAL SHERIFF (N.O)

AND

KENN BONGANI SAMBO

AND

THE REGISTRAR OF DEEDS (N.O)

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 27 SEPTEMBER AND 5 DECEMBER 2019

Opposed Matter

J Mugova, for the applicant

1st respondent, in person

MOYO  J:	This is an application made in terms of Rule 236, that is, an application for dismissal of another application (HC 426/17) for want of prosecution for reason of failure by 1st Respondent to prosecute same to finality within a reasonable period of time as envisaged in the High Court rules.  The basis of the application is that 1st Respondent filed an application on the 15th of February 2017 seeking an order for the stay of execution of an order wherein stand 473 Marvel Township of Marvel A, Killarney, Bulawayo had been attached.  The application is HC 426/17.  Applicant was served with such an application on 15 February 2017.  Applicant filed its notice of opposition and opposing affidavit on the 28th of February 2017 and served same on all respondents on the same date.  1st respondent then filed his answering affidavit on 7 April 2017 and served same on the applicant.  1st respondent then failed to set the matter down within a month as per Rule 236.

The 1st respondent has opposed this application on the following grounds:-

That applicant has made a similar application before.  1st respondent attaches an

application referenced as HC 2794/17 as the application that was made by applicant before.

A perusal of such application shows that it was in fact made by one Kenn Bongani Sambo and the current applicant filed a supporting affidavit.   Clearly, the assertion that the application was made by applicant is misleading as in fact applicant is the 2nd respondent in that matter.  That applicant filed an affidavit in support of Kenn Bongani Sambo’s case does not render the current applicant an applicant in that matter.  Even 1st respondent could not submit to the court where such a principle derives from as it is not supported by any rule or common law principle.  Applicant also avers that the matter is res judicata and again this submission is made on the misconception that applicant was the litigant in Kenn Bongani Sambo’s case which I have already found not to be a correct assertion, in fact it is misleading.

1st respondent also submits that applicant conceded material facts which facts I have not been favoured with as he summarises such a submission and refers to annexture A and B without an elaborate reference to same.  I am thus unable to discern such facts as in terms of                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          Rule 236 all an applicant has to show is that the respondent filed a matter that, they (applicant) then opposed with respondent failing to prosecute it in terms of the rules within a reasonable time as envisaged in the rules.  I have also failed to discern how the application becomes an abuse of court process when the allegations being made in the application meet the criteria for the making of such a case against the respondent

1st respondent also avers that this application is an attempt to evade justice.  Again, I have failed to understand how the envasion of justice ensues in that 1st respondent avers that this matter arose as a result of the corrupt transfer of his property and that the matter is currently under investigations by the CID and by ZACC.  He then avers that applicant is trying to use the court to evade justice.  I do not comprehend this ground at all.  If applicant has made a report to the police of some crime committed by the applicant or same other person, certainly this application cannot undo that, for the charges being handled by the police are criminal in nature and relate to some corrupt practices having been done.  Even if this application succeeds, in terms of the criteria laid down in the rules of this court, that does not block the police and ZACC from probing and investigating any corrupt activities and arresting the culprits.  Civil claims and criminal matters can run independently of each other, and while they can compliment each other, the finalization of one does not at all prejudice or hamper the progression of the other.  In this case before this court, the question is has the 1st respondent complied with the rules of this court in prosecuting his application in HC 426/17?   Yet in the corruption allegations that 1st respondent alludes to which are in itself criminal in nature, the police, ZACC, and the criminal court will have to answer the question has anyone acted in a corrupt manner in dealing with 1st respondent’s cases as he alleges?

I do not then see how justice in terms of this application will hamper justice in terms of the corruption allegations and vice versa.  The 2 sectors of our justice delivery system are able to function in parallel, and before the different courts with the jurisdiction to handle each case.  The 1st respondent further submits that the deponent to the affidavit on behalf of the applicant, Mr D Nyamushamba does not have a resolution to represent the applicant. In this case, the deponent to the founding affidavit is Daniel Nyamushanda who states that he is the credit controller of the applicant and that he is duly authorized to depose to the affidavit.  1st respondent does not allege that it is not true that the deponent is a Credit Controller for the applicant.  He is simply challenging the fact that there is no resolution by the board authorising him to swear to the affidavit.

In this regard the case of African Banking Corporation of Zimbabwe Ltd t/a BancABC v PWC Motas Pvt Ltd & 3 Others HH 123/13 comes to mind.  In that case MATHONSI J as he then was had this to say:-

I am aware that there is authority for demanding that a company official must produce proof of authority to represent the company in the form of a company resolution.  However, it occurs to me that proof is not necessary in every case as each case must be considered on its merits.  All the court is required to do is to satisfy itself that enough evidence has been placed before it to show that it is indeed the applicant which is litigating and not the unauthorized person.”

The learned judge further went on to state thus:-

“To my mind the attachment of a resolution has been blown out of proportion and taken to ridiculous levels where the deponent of an affidavit states that he has the authority of the company to represent it, there is no reason for the court to disbelieve him unless it is shown evidence to the contrary, (but) where no such contrary evidence is produced, the omission of a company resolution cannot be fatal to the application.”

The position by MATHONSI J was also stated in the Supreme Court case of Madzivire & Others v Zvarivadza & Others SC 10/06.

I am therefore satisfied that the assertion by the 1st respondent is not founded on any facts as envisaged in the aforestated case.  On the requirements of this application all an applicant has to show is that they opposed the application being the subject matter of the current application and that they were cited therein as a respondent as well as that they did serve their opposing papers on the respondent who later did not prosecute their application in terms of the rules.  That has been clearly alluded to by the applicant in the founding affidavit.  The 1st Respondent, in order to avoid a dismissal of his application for want of prosecution should in turn come up with a reasonable explanation for his delay to finalise it.  I have read the 1st Respondent’s opposing affidavit thoroughly and I have not found any explanation for his inaction warranting that his conduct be condoned and the application dismissed.  Accordingly, a clear case has been made by the applicant for the dismissal of HC 426/17 for want of prosecution.

Costs have been sought at a higher scale against the 1st Respondent per paragraphs 6-9 of the founding affidavit.  1st respondent does not deny in his opposing affidavit the averments stated therein (paragraphs 6-9 of the founding affidavit)  He only prays that the application be dismissed with costs.  Armed with absolutely no reason to have his delay condoned, 1st respondent should have withdrawn the matter in HC 426/17 or not opposed this application since there is no merit at all in the opposition.  The applicant’s averments that they have been unnecessarily put out of pocket by a respondent who seeks to oppose a matter clearly with no basis at all, justifies the costs they seek.at a higher scale.

It is for these reasons that I grant the application as sought in terms of the draft.

Mawere Sibanda c/o Calderwood, Bryce, Hendrie & Partners, applicant’s legal practitioners