Siyaphumelela Collective Farming Co-operative Society Limited v Jonathan Dube and Deputy Sheriff: Gwanda

### Preamble
1
HB 120.20
HC 2750/16
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SIYAPHUMELELA COLLECTIVE FARMING

CO-OPERATIVE SOCIETY LIMITED

Versus

JONATHAN DUBE

And

DEPUTY SHERIFF: GWANDA

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 9 AND 25 JUNE 2020

Opposed Application

J Tshuma, for the applicant

S Chamunorwa, for the 1st respondent

MOYO J:	This is an application for the upliftment of the automatic bar that came about after applicant failed to file a new set of opposing papers against the confirmation of a Provisional Order that had been granted against it after it had filed opposing papers for argument on whether or not a Provisional Order should be granted.  It would appear applicant’s lawyer laboured under the mistake that once having filed opposing papers against the granting of the interim order, if it had no additional information it would still use the same opposing papers to argue against the confirmation of the Provisional Order.

The applicant’s legal practitioner per his founding affidavit, was of the mistaken view that the opposing papers filed before the granting of the interim order, could stand as opposing papers in opposition to the confirmation of the order.  On 25 October 2016, applicant’s lawyers wrote to the respondent’s lawyers communicating their position regarding the filing of the opposing papers and asking respondent’s lawyers if they were of the view that an application to uplift the bar has to be filed.  Respondent’s lawyers wrote to applicant’s lawyers on 26 October 2016 advising them that their interpretation of the issue regarding the filing of the opposing papers was incorrect and that an automatic bar was already in operation meaning that they had to file an application for the upliftment of the bar if they were so inclined.  This application was then filed on 2 November 2016.

The respondent then opposed the application raising first a point in limine to the effect that Webb Low and Barry and Canaan Sibanda no longer had the authority to act on behalf of applicant since the management committee of applicant had since changed.

On the merits of the application the respondent says the failure to file a notice of opposition was deliberate as the Provisional Order specifically ordered respondent on what it should do.  That, the applicant intended to disregard the express terms of the court order.  Further that it being a court order that was disobeyed, this court cannot revisit its own order and accept that which is contrary to the court order.

On the merits, the respondent says the writ being the subject matter of the proceedings wherein applicant is now barred was in fact satisfied and that all disputes relating to the co-operative should be finalized in terms of the Constitution and the applicable Act.  He further avers that he is at the farm with the co-operative’s consent.

I will start with the issue of the authority to represent applicant by Webb Low and Barry and Cannan Sibanda.

It is common cause that these 2 parties whose authority is now being challenged represented applicant in the main matter.  That, following papers filed by them in opposition of the application in the main matter, the matter was heard and interim relief granted in respondent’s favour.  That, a Provisional Order was then served on these very same parties, calling for their action if they were opposed to its confirmation.  That, the lawyer misinterpreted the law in relation to the opposing papers resulting in the dies inducie expiring and hence the automatic bar.  The question that immediately arises is, if Webb Low and Barry, duly instructed by Canaan Sibanda on behalf of the applicant, were served with the Provisional Order, which called for a response by applicant and if they had filed such opposing papers on time would they not be clothed with the same authority that they had when they filed the first set of opposing papers?  If they would be clothed with authority to file opposing papers in time, why would they then cease to have the same authority now that they were out of time and are barred.  For, I believe, the essence of this application is that they were late with filing opposing papers against a Provisional Order that had been obtained against their client.

Respondent’s counsel argues that applicant’s counsel and applicant are indeed in breach of the rules, because respondents expected them to file opposing papers on time.  So if they could file opposing papers to the main matter, how could they be handicapped in terms of authority to file an application for the upliftment of the bar that paves the way for them to do what applicant expected them to do upon service of the Provisional Order?  I fail to find logic in respondent’s contention.  Asked about the issue of the mandate relating to filing opposing papers on time, respondent’s counsel submitted that the court should forget about the main matter for a while.  Respondent contends that the management committee of the applicant changed and therefore, Canaan Sibanda did not then have a new mandate from the new committee.  I do not understand this contention in that it is being argued that Messrs Webb Low and Barry had to constantly check with applicant if their mandate to represent applicant in the main matter had been revoked?  If it is contended that the new management committee withdrew the mandate, was it not incumbent upon it to communicate such to the lawyers?  To say, a Provisional Order has been served in a matter that you already had a mandate to represent applicant in, please note that with the coming in of the new management committee that mandate has since been revoked and withdrawn?  I say so for it defies logic that a mandate granted to institute or defend proceedings would just vanish midway in the prosecution of same, without express communication to that effect.    Respondent does not allege specifically that the new management committee indeed withdrew the mandate.  I particularly have a difficulty understanding the respondent’s argument on this point.

In the case of African Banking Corporation of Zimbabwe Ltd Banc ABC v PWC Motors Pvt Ltd and Others HH 123-13 the learned Judge held therein that it is not in every case where a resolution must be produced and that the court has to be satisfied that the person prosecuting a case is not doing so without authority and that each case will then depend on its own facts.

In this particular case, the problem is that the court is being told that somewhere, midway during litigation in the main matter, applicant’s mandate to Canaan Sibanda and Webb Low and Barry, must have vanished yet there is no express communication as such and reasonably, it is expected that if they could file the opposing papers that were then out of time, then they could reasonably file an application that seeks to undo their failure to file such.

On the merits, it would appear that applicant’s lawyer made a blatant error on interpreting the rules with regard to opposing papers in urgent applications.  He did try to communicate his mistaken position to the respondent’s lawyers and this application was filed within the same week the dies induciae had expired.  A Provisional Order has been granted that applicant argues cannot be confirmed as the relief being sought therein in final terms is incompetent as it seeks to stay permanently the execution of an order of this court that remains extant.  Respondent on the other hand argues that once the order was granted he vacated the farm and came back later under a new arrangement, meaning that if applicant wants to remove him, it must start a new process to do so.  I would not be able to discern what exactly the dispute is between the parties, it is for the court dealing with the main matter, that is, to hear argument and either confirm or discharge the Provisional Order.  In a case like this one, the court is called to exercise its discretion in a case where a litigant has been shut out of court proceedings by failure to act within the time prescribed by either the rules of court or a court order as is this case in this matter.

It is trite that in exercising its discretion the court, is guided by a certain criteria in order to achieve justice between the warring parties.  Such criteria was laid down in the case of K M Auctions Pvt Ltd v Adanesh S and Another SC 15/12 wherein the following was listed:-

The degree of non compliance.

The explanation for it.

The importance of the case

The prospects of success.

The respondent’s interest in the finality of the case.

The convenience of the court.

The avoidance of unnecessary delay in the administration of justice.

In the case of Mahachi v Barclays Bank of Zimbabwe SC 6-06 it was held that even where there is no acceptable explanation for non-compliance, the applicant can still show very good prospects of success on the merits of the main matter.  In the case of Melane v Santana Insurance Co Ltd 1962 (4) SA 531 (A) at 532 C-F, it was stated thus:-

“In deciding whether sufficient cause has been shown the basic principle is that the court has a discretion to be exercised judicially upon a consideration of all the facts and in essence it is a matter of fairness to both parties.  Among the facts usually relevant are the degree of lateness, the explanation therefore, the prospects of success and the importance of the case.  Ordinarily these facts are interrelated, they are compatible with a true discretion, save of course, that if there are no prospects of success there would be no point in granting condonation.  An attempt to formulate a rule of thumb would only save to harden the arteries of what should be a flexible discretion.  What is needed is an objective conspectus of all the facts.  Thus a slight delay and a good explanation may help compensate for prospects of success which are not strong or the importance of the issue may tend to compensate for a long delay.   And the respondent’s interests in finality must not be over looked.”

The same sentiments were expressed by the court in the case of United Plant Hire Pvt Ltd v Hills and Others 1976 (1) SA 717 (A) at 720 F-G.

In the main case, there is a dispute relating to respondent’s occupation of the farm and whether the court order sought to be executed against him by applicant is being lawfully executed.  These litigants are members of a co-operative and obviously it is in the interest of justice that the issues amongst them be resolved.  A matter is already pending before this court where applicant wishes to challenge the confirmation of a Provisional Order granted against it.  The interests of justice demand that the doors of the courts be not slammed shut in the face of litigants who are pleading to be heard which is why a procedure and a criteria to seek condonation or an indulgence has been part of our law since time immemorial.  This is because slamming the door shut in the faces of those who are late in their quest for justice can indeed result in an unfair state of affairs.   However, guidance is given on how such litigants can be allowed on board so that they are heard and their input is taken into account before the law takes its course against them.  Which is why in the case of National University of Lesotho v Thabani LSCA 26/-08, the learned Judge of Appeal had this to say:-

“Rules are not cast in stone.  This court retains a discretion to condone a breach of its rules in order to achieve a just result.  The attainment of justice is this court’s ultimate aim.  Thus it has been said that the rules exist for the court, not the court for the rules.  This discretionary power of the court must, however, not be seen as an encouragement to laxity in the observance of the Rules in the hope that the court will ultimately be sympathetic.  There is a limit to this court’s tolerance.”

In the case of William Bain and Co Holdings Pvt Ltd v Chikwanda HH 290-13, the court held that in practice, willful default is seldom clear cut. And that in most cases, it is a question of the degree of negligence by the defaulting party that the court is called upon to determine.  That in coming to a conclusion, there is a certain weighing of the balance between the extent of the negligence and the merits of the defence.  In this case it is clear that the applicant’s legal practitioner misinterpreted the Provisional Order and the Rules of this court.  Respondent says it is a deliberate and flagrant breach of the rules.  I believe not, for, right from the 20th of October applicant’s counsel was trying to get respondent’s counsel to consent to the opposing papers in the file standing against confirmation.  That he was wrong in his understanding and interpretation, does not make it deliberate.  I believe a party who is in flagrant breach of the rules, is the one who is fully appreciating what needs to be done, and mindless of the consequences thereof, sits back and does nothing.  I do not believe that a party who misinterprets what he should do, and goes about doing the wrong thing altogether, is in flagrant breach of the rules, for it cannot be held that he was aware of what had to be done, but in disrespect for the court, he refrained from doing it, without any consideration of the consequences of his conduct.  I hold the view that, for a litigant to be held to be in flagrant breach of the rules, his mind must be conscious of what needs to be done, but he chooses, fully appreciating the requirement, not to act.  In the case before me, a conscious mind to disregard the rules is not present.  However, I believe, a mistake put the applicant in the situation that it finds itself in.

Again, soon after realising that there could be a mess resulting from its inaction, this application was launched within a short space of time.  The delay was therefore not inordinate.  Again, tilting the scales in applicant’s favour is that it has presented an argument, which if it succeeds in substantiating in the main application, there could indeed be prospects of success.

Again, there is no prejudice to the respondent in that to date, the Provisional Order remains unconfirmed and the Provisional Order still operates in his favour until either confirmed or discharged.  In the case of Landfish Enterprises v Robert Moyo HB 147-04 a respondent had been automatically barred for failure to file opposing papers timeously.  The delay was 2 days.  Prior to being out of time, respondent’s lawyer had written to applicant’s lawyers advising that his papers may be out of time.  In that case NDOU J quoted McNALLY JA in Sangore v Olivine Industries Pvt Ltd 1988 (2) ZLR 201 (S) wherein he said thus;

“One is naturally reluctant to reach a decision which would result in the giving of judgment against a person without his being heard, when he protests that he has a valid defence.”

In that case the court went on to hold that a bar can be set aside on good cause shown.  I hold the view that in this matter, there has not been a flagrant disregard for the rules as I have already shown herein.  That, justice between man and man demands that where possible, and where an opportunity can be given to those seeking it, every litigant should be heard on the merits of a case so that the real dispute between the parties can be resolved.  I hold the view that, in the interests of justice, applicant should be allowed audience in the main matter and that indeed a good cause has been shown for such a conclusion.

It is for these reasons that I will exercise my discretion in favour of the applicant.

I accordingly grant the application with costs being in the cause.

Webb, Low & Barry Inc. Ben Baron & Partners, applicant’s legal practitioners

Messrs Calderwood, Bryce Hendrie & Partners, 1st respondent’s legal practitioners