Robert Njanji v Additional Sheriff N.O. and People's Own Savings Bank

### Preamble
1
HB 231/20
HC 299/17
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ROBERT NJANJI

Versus

ADDITIONAL SHERIFF N.O.

And

PEOPLE’S OWN SAVINGS BANK

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 30 September 2020 and 22 October 2020

Opposed application

Mr. M Ndlovu for the applicant

Mr Mugove, for the 2nd respondent

DUBE-BANDA J:	This is an application in terms of Order 49 rule 449(1) (a) of the High Court Rules, 1971 (Rules). This rule provides that 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 affected party, correct, rescind, or vary any judgment or order that was erroneously sought or erroneously granted in the absence of any party affected thereby. Applicants seeks an order drawn in the following terms:

The default judgment granted on the 9th June 2016, be and is hereby set-aside.

The notice of opposition filed by the applicant under HC 1095/16 be and is hereby deemed to be part of the record under HC 1095/16 and the matter shall proceed as opposed.

2nd respondent to pay costs of suit.

The 1st respondent, i.e. the Additional Sheriff neither filed opposing papers nor participated in this proceedings. It has taken a position that it will abide by the decision of court. The application is opposed by the 2nd respondent. For ease of reference, and where the context permits, applicant shall be referred to as Robert Njanji or applicant, and 2nd respondent shall be referred to as POSB or 2nd respondent.

Background

On the 27 January 2016, the Sheriff in execution of a court order declared and confirmed the sale of applicant’s property, being stand 437 Marvel Township 2 Marvel A (property). On the 2nd February 2016, applicant launched a court application, i.e. case No. HC 249/16, challenging the sale of his property. On the 12 May 2016, this court granted the order sought in case No. HC 249/16.

In the meantime, on the 29 April 2016, POSB filed a chamber application in case No. HC 1095/16 for the dismissal for want of prosecution of case No. HC 249/16. On the 13 May 2016, Robert Njanji filed a notice of opposition and opposing affidavit to case No. HC 1095/16. This application was granted on the 9th June 2016. The court ordered that:

The first respondent’s (Robert Njanji) court application filed in case number HC 249/16 be and is hereby dismissed for want of prosecution.

The 1st respondent shall pay the applicant’s wasted costs in case number HC 249/16 and the costs of this application on the higher scale of attorney and client.

This application seeks to rescind the order in HC 1095/16, in terms of rule 449 (1) (a) of the Rules. The basis for the application is that when the order for the dismissal in HC 1095/16 was granted, HC 249/16 had been prosecuted to finality and an order granted on the 12 May 2016.  It is argued that if this court was aware when it dealt with HC 1095/16, that HC 249/16 had been finalised on the 12 May 2016, it could not have granted such an order. The contention is, this court ordered a dismissal for want of prosecution of an application that had been prosecuted to finality.

Supplementary heads of argument

At the commencement of the hearing of this application, POSB argued that applicant’s supplementary heads filed on the 25 September 2020, be expunged from the court record. I heard brief argument on the issue, and declined to expunge the heads from the record. I indicated at that stage that the reasons for my decision will be in the main judgment. These are the reasons.

Applicant filed its first set of heads of argument on the 18 August 2020. 2nd respondent filed its heads of argument on the 31st August 2020. Applicant then filed supplementary heads of argument on the 25 September 2020. 2nd respondent argued that the supplementary heads raised new issues which were not covered in the first set of heads of argument. It turned out that the issues referred to by Ms Mugove, 2nd respondent’s counsel, are issues of law. Mr Ndlovu, for the applicant made the point that he assumed agency for the applicant after the first set of heads had been filed, and noted that such heads did not cover much depth on matters of law.  He then made a decision to file supplementary heads. It was argued that the supplementary heads of argument merely highlighted issues of law, which were not dealt with in the first set of heads of argument.

In terms of the rules of court, the purpose of heads of argument is to clearly outline the submissions a litigant intends to rely on and setting out the authorities, if any, which he intends to cite. There is no rule that deals with supplementary heads of argument. However, the rules provide that a legal practitioner shall not be precluded from making a submission or citing an authority that was not outlined or set out in heads of argument filed unless the court or judge hearing the matter considers that the submission or authority was omitted from the heads of argument with the intention of misleading the other party; or to permit the legal practitioner to make the submission or cite the authority would prejudice the other party in a manner which could not be remedied adequately by a postponement or an appropriate order of costs. I take the view that the submissions and authorities cited in the supplementary heads were not omitted in the first set of heads for the purposes of misleading. Again, the supplementary heads of argument deal with issues of law, which applicant could still submit from the bar. Further, I did not see any prejudice caused to the 2nd respondent by allowing the supplementary heads. Finally, heads of argument are for the assistance of the court. It is for these reasons that I allowed applicant’s supplementary heads of argument.

Points in limine

Other than resisting the relief sought by the applicant on the merits, the 2ndrespondent also raised two preliminary points which were also the subject of intense argument in this matter. A point in limine is a point of law which whenever successfully raised has the effect of disposing of the dispute or the proceedings before even the merits of the dispute can be adjudicated upon.

In this case, I adopted a holistic approach. What this approach entails is that for the sake of making savings on the time of the court by avoiding piece-meal treatment of the matter, the point in limine had to be argued together with the merits, but when the court retires to consider the matter it may dispose of the matter solely on the point in limine despite that it was argued together with the merits. But if the the point in limine is not upheld, it then proceeds to deal with the merits. Perhaps at the risk of being repetitious the main consideration here is to make savings on the court’s most precious resource - time - by avoiding unnecessary proliferation when the matter should have been argued all at once.

The 2nd respondent raised two points in limine. The first is that the applicant and his legal practitioner have grubby hands. They fraudulently created a fictitious matter under HC 249/16, by deliberately removing the 2nd respondent from the citation of the matter. They then set-down the matter in the unopposed motion court. They hoodwinked the court into believing that the application was unopposed and obtained a default judgment. It is argued that as a result of the conduct and behaviour of the applicant and his legal practitioner, the applicant in this matter is approaching this court dirty hands. It is contended that he should be denied audience. It is argued that the entire premise of this application is a court order that was fraudulently and fictitiously obtained. It is said nothing legally can flow from a fraud.

The second point in limine is that this court must have regard to the judgment in HB 273/17. On the 17 July 2017, in HB 273/17 this court granted the following order:

That the court order granted in favour of the 1st respondent by this Honourable Court in case number HC 249/16 on the 12th May 2016 be and is hereby set-aside.

The 1st respondent shall pay costs of this application on the legal practitioner and client scale.

It is argued that this court must have regard of judgment HB 273/17 which has a bearing on this matter and to avoid the court issuing contradictory orders. This is a judgment in which this court criticised applicant’s conduct in HC 249/16. This court in setting aside the order in case No. HC 249/16 noted that the order was erroneously, irregular and clandestinely sought and obtained. I take the view that, in the context of this case, this is not a stand-alone point in limine, it speaks to the notion of dirty hands principle raised as the first point in limine.

The dirty hands principle

The principle of dirty hands inter alia governs a situation where a party is under a direct obligation imposed by law to act in a specific manner which obligation the party deliberately refuses to perform.  It is a time honoured principle based on the need for litigants who approach a court of law seeking relief to do so with the required degree of truthfulness, and honesty. The right to be heard by a court in proceedings that have been properly instituted is a fundamental right that should not be lightly denied to a party.  See CFI Retail (Private) Limited v Eric Masese Manyika SC-8-16.

People are not allowed to come to court seeking the court's assistance if they are guilty of a lack of probity or honesty in respect of the circumstances which cause them to seek relief from the court. It is called, in time-honoured legal parlance, the need to have clean hands. It is a basic principle that litigants should come to court without dirty hands. If a litigant with unclean hands is allowed to seek a court's assistance, then the court risks compromising its integrity and becoming a party to underhand transactions. As stated by DAVIDSON J in Underhay v Underhay 1977 (4) SA 23 (W) at 24E -F:  "It is fundamental to court procedures in this country and in all civilised countries that standards of truthfulness and honesty be observed by parties who seek relief."	See (1) The Principal Chief Immigration Officer and The Assistant Regional Immigration Officer Versus Precious ChinyereOkeke (2) Precious ChinyereOkeke Versus The Principal Chief Immigration Officer and The Assistant Regional Immigration Officer HH 36/13.

The jurisprudence in this jurisdiction has been cut out clean, that people are not allowed to come to court seeking the court’s assistance if they are guilty of a lack of probity or honesty in respect of the circumstances which cause them to seek relief from the court. A court would withhold its audience and protection against a litigant who is in defiance of the law. A court of law cannot connive or condone the open defiance of the law. See Associated Newspapers of Zimbabwe (Pvt) Ltd vMinister of State for Information and Publicity &Ors; Martin C. Nhapata v (1) Christopher Maswi (2) MaideiMaswiSC 38/16. A court cannot come to the rescue of a litigant whose hands are dripping dirt. One cannot defy the court, try to cheat and undermine the systems of the court and still approach the same court for assistance and relief.

See the discussion in the South African cases Tullen Industries Ltd v A de Sousa Costa (Pty) Ltd 1976 (4) SA 218 (C) at 220 – 221 and Mgoqi v City of Cape Town &Another 2006 (4) SA 355 (C) at para 140, where the Court held that an applicant will be denied relief where qthere has been “fraud, dishonesty or mala fides” (At para 140).The kind of conduct which the court penalizes by withholding its protection is conduct involving moral obliquity.

On the 2nd February 2016, Robert Njani, represented by Dube-Tachiona & Tsvangirai Legal Practitioners sued out a court application in case No. HC 249/16. The respondents therein were two, Additional Sheriff and Peoples Own Saving Bank. He sought an order drawn in the flowing terms:

The decision of the Sheriff of Zimbabwe handed down on the 28 January 2016 under case number SSB 118/14 to confirm the sale in execution held on the 10th November 2015 in respects of the applicant’s immovable property be and is hereby set-aside.

The Sheriff of Zimbabwe is hereby ordered and directed to conduct another sale in execution in terms of the rules of this court in relation to applicant’s immovable property presently under judicial attachment.

The respondents to pay the costs of this application.

The Additional Sheriff did not oppose the application. On the 15 February 2016, People’s Own Savings Bank (POSB), filed a notice of opposition and opposing affidavit. On the 21st March 2016, Robert Njani filed an answering affidavit, this was followed by his heads of argument filed on the 6 May 2016. POSB filed heads of argument on the 23rd May 2016.

Thereafter the application was set down in the unopposed motion court. The notice of set-down was filed on the 6 May 2016, and the application was set-down for the 12 May 2016. The notice of set-down was not served on POSB. The papers bound and placed before court in support of the application, as appears in the Index are these:

Court application;

Founding affidavit;

Letter from 1st respondent’s legal practitioners

Letter to Sheriff

Ruling from the Sheriff

Certificate of Service on respondent

Applicant’s Heads of Arguments

Notice of set-down

Draft Order

The draft order has applicant as Robert Njanji and respondent as Additional Sheriff (N.O). The name of POSB was excluded in the draft order. The notice of opposition and heads of argument filed by POSB, and the answering affidavit filed by Robert Njanji were excluded in the bound papers placed before court in support of the order sought. On the 12 May 2020, Mr Tsvangirai appeared in court and motivated this court to grant Robert Njanji an order in terms of the draft order sought. The court granted the order sought.

Mr Ndlovu, who appeared for the applicant in this application, in not so many words conceded that the manner in which the court order was obtained in HC 249/16 was illegal. He argued though, that no matter how the order was obtained, the point is that there was an order of court, valid and extant at the time the order in HC 1095/16 was obtained.

Even at this eleventh hour, applicant does not appear to see anything irregular about how the order in HC 249/16 was sought. He calls the 2nd respondent a villain in this matter. He contends that the order was sought and granted procedurally and lawfully. He says the 2nd respondent is the one who should not be granted audience by this court. He does not lay a sound basis for this averment.

I take the view that applicant’s conduct in case No. HC 249/16 is reprehensible. A strategy was carefully formulated, and deployed to hoodwink this court. The court order in HC 249/16 was obtained by deception. This court was hoodwicked to belive that the application in HC 249/16 was not opposed. The opposing paper and the answering affidavit were carefully and strategically excluded from the papers before court. What happened preceding the obtaining of the order, has the effect of tainting applicant’s hands with legal dirt.

It is the order that was obtained by deception, cheating and undermining the system of this court that applicant anchors this application upon.  Applicant asks this court to rescind the order in HC 1095/ 16 on the grounds that when it was granted, he had already been granted an order in HC 249/16. If it was not for the cheating, the order in HC 249/16 could not have been granted on the 12 May 2016.

Mr Bruce Israel Masamvu, the legal practitioner who represented applicant in case No. HC 249/16 filed a supporting affidavit in this application. He avers that “I recall the 2nd respondent opposed the application and on the 21st March 2016, I filed an answering affidavit and proceeded to set-down the matter.” He does not disclose the basis upon which he set-down the matter in the face of the opposition by POSB.  The legal practitioners for the parties exchanged some pleadings before the set down and before the hearing of HC 249/16. Neither Mr Masamvu, nor the applicant has an explanation why the application was set down on the unopposed motion court.

Despite this, applicant has the temerity to turn to this court for relief that would result in the court effectively ‘condoning’ or turning a blind eye to this deception, underhand and cheating the judicial system. The applicant’s conduct in my view is totally unacceptable and disgraceful. It is in short, and on the basis of the authorities cited above, conduct that should attracts serious censure from this court.

This court cannot countenance this kind of conduct. It threatens the whole fabric of the administration of justice. The deliberate deception, hoodwinking of this court to treat as unopposed, an otherwise opposed matter is totally unacceptable.  The exclusion of POSB pleadings placed before court, the outright cheating and undermining of the justice system cannot be acceptable. Applicant cannot come to this court, which he has himself undermined, and seek relief based on an order obtained through deception. This court will soil its hands with legal dirt if it were to condone such disgraceful conduct.

This court must be able, without hesitation or doubt to rely on the honest and reliability of a litigants who appear before it. If litigants and their legal representatives connive to mislead the court, such would be catastrophic to the justice delivery system in this jurisdiction. It is critical that this court deals with such misconduct decisively, to make the point that this court will not tolerate such misconduct in litigation. Litigants who attempt to cheat the system do so at their own peril. This is so because this court shall not tolerate its systems being contaminated. The tendency of interfering with court files must not be tolerated.

In my view litigants are not permitted to bring their “dirty” transactions into the clean halls of justice. Justice will not soil its hands by touching such transactions. “Dirty” in this regard also includes transactions that seek to defeat the law. (See Myburgh v Neethling 1948 (2) SA 515 (C) at 521) and Mathews v Rabinowitz 1948 (2) SA 876 (W) at 878).  Applicant’s conduct in obtaining the order in HC 249/16 was calculated to defeat the law.

The rule is that a litigant is not allowed to come to court with “dirty hands.” The dirty hands doctrine is an objection, if successful bars audience to a party who has engaged in inequitable behaviour, including fraud, deceit, unconscionability or bad faith, related to the subject matter of that party's claim. To prevail, a party must demonstrate that its opponent engaged in inequitable behaviour that is related to the subject matter of the litigation.

In HB 273/17, this court made a damning finding against the applicant; it criticised the clandestine manner in which the order in HC 249/16, was sought, it said:

First respondent (herein) then set the matter down on the unopposed roll and finalised it without notice to the applicant (herein). The matter was then set-down on the basis that the Sheriff who was a party also, had not opposed the application. That set down was thus irregular as applicant (herein) had opposed that application and has vested interests in the matter.

The order was therefore erroneously granted and one wonders why first respondent (herein) would snatch a judgment and then seek to cling to it. This is one application that need not have been opposed as the facts are crystal clear that the order obtained by the first respondent (herein) in HC 249/16 was not only premature and irregular, but it was clandestinely obtained. First respondent (herein) acted with mala fides and dishonesty in obtaining the order in HC 249/16, and as if that was not enough, first respondent still opposed this application, displaying an attitude which shows that the judgment was snatched deliberately, for there is no justification in clinging to a judgment one is not entitled to and was obviously granted in error. (My emphasis).

I agree.

The order in HC 249/16 was sought clandestinely, irregular, mala fides and dishonestly. This is the same order applicant anchors this application upon. He seeks relief from this court based on an order dishonestly obtained. The order in HC 249/16 is poisoned chalice, nothing can be anchored on it, and this court will have nothing to do with it. This court cannot accede to applicant’s requests, if it does, it will soil its hands and be part to acts of mala fides and dishonesty.

I agree that applicant has come to this court with very dirty and stinking hands. Applicant wants this court to use an order illegally obtained to his benefit. It is against this background, that I find that the doctrine of dirty hands was properly invoked against the applicant.

Disposition

It is in the result ordered as follows;

1. The point in limine raised by the 2nd respondent be and is hereby upheld.

2. The application be and is hereby dismissed with costs.

Ndlovu, Mehluli and Partners, applicant’s legal practitioners

Mawere Sibanda, 2nd respondent’slegal practitioners