Tandarai Inn (Pvt) Ltd & 2 Ors v Crazy Stores & 3 Ors

### Preamble
1
HB 223/22
HC 2115/20
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TANDARAI INN (PVT) LTD

And

VINCENCIA RUNGANI

And

GAMALIEL TINOFIRASHE RUNGANI

Versus

CRAZY STORES

AND

THE SHERIFF OF THE HIGH COURT OF ZIMBABWE

And

THE REGISTRAR OF DEEDS

And

NMB BANK LIMITED

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 27 JULY 2022 and 25 AUGUST 2022

T. Mabika for the applicants

Mr. S. Ngwenya for the 1st respondent

Ms. S. Lusinga for the 4th respondent

DUBE-BANDA J:

Introduction

This is an application for joinder in terms of Order 13 rule 87(2) (b) of the High Court Rules, 1971. The applicants seek an order couched in the following terms:

That the 1st, 2nd, and 3rd respondents be and are hereby joined in the proceedings under case number HC 666/20 as 3rd, 4th and 5th respondents respectively.

The applicants be and are hereby ordered to serve the 1st, 2nd  and 3rd respondents (sic) within 5 days of granting of this order.

The 1st, 2nd and 3rd respondents be and are hereby ordered to file their opposing papers within 10 days of being served with the application under case number HC 666/20.

There shall be no order as to costs.

The application is opposed by the 1st respondent. The 2nd and 3rd respondents have not filed any opposing papers nor participated at the hearing of this matter. I take it that they have taken a position that they shall abide by the decision of this court. 4th respondent did not file a notice of opposition. It filed heads of argument. Ms Lusinga counsel for the 4th respondent conceded that 4th respondent has been barred. Counsel indicated that her attendance at the hearing was only to observe the proceedings.

For convenience and where the context permits the 1st respondent shall be referred to Crazy Stores and other respondents by their names, i.e. the Sheriff of the High Court, the Registrar of Deeds and NMB Bank Limited.

Factual background

This application will be better understood against the background that follows. On 13 June 2013 NMB Bank Limited sued out a summons (HC 1473/13) against the applicants herein seeking in the main an order for the payment of the sum of USD61 824.00 inclusive of the capital debt and interest, and an order declaring the remaining extent of stands 1444, 1445, 1452, 1453 and 1454 Khumalo Township lands held under Deed of Transfer 1411/2005 (property) specially executable.

An order was granted in HC 1473/13. The property was attached and sold in execution. Crazy Stores was the highest bidder. It paid the bid price and the Sheriff confirmed the sale. The property has been transferred into the name of Crazy Stores. The applicants herein filed an urgent chamber application (HC 666/20) whose interim relief sought was to interdict the transfer of the property to Crazy Stores (Pvt) Ltd. On the 7 April 2020 the urgent application was placed before a judge of this court who commented thus: that the relief sought affected and was practically against Crazy Stores and the Registrar of Deeds who have not been joined as parties to the application; and that the application was replete with disputes of fact; and that the application was not urgent. On the 10 December 2020 the applicants filed this application seeking an order to join Crazy Stores, the Sheriff and the Registrar of Deeds in HC 666/20. It is against this background that the applicants have launched this application seeking the relief mentioned above.

Preliminary points

Other than resisting the relief sought on the merits, Crazy Stores took a number of preliminary points which were also the subject of argument in this matter. I heard both the preliminary points and the merits of the matter. This was to avoid a piece-meal treatment of the matter. I informed the parties that when the court retires to consider the matter it may dispose of the matter solely on preliminary points despite that they were argued together with the merits. But if the court dismisses the preliminary points, it will then proceed to deal with the merits.

The first preliminary objection taken was that this application is incompetent as it seeks to join the 1st, 2nd and 3rd respondents to a non-existent application. It was contended that HC 666/20 does not exist. It was submitted that HC 666/20 is non-existent by operation of law, in that queries that were raised by a judge in chambers were not attended to in terms of Practice direction 2 of 2016. Practice Direction 2 of 2016 provides thus:

DEALING WITH QUERIES IN CHAMBER MATTERS

Application

This Practice Direction applies to the Supreme Court and the High Court of Zimbabwe.

General Note

In order to ensure that litigants prosecute their matters to finality the following changes to the current practice takes effect from the 1st of September 2016.

Queries in chamber matters

3.1 in determining the fate of a chamber application a judge may raise such queries as he or she may consider pertinent to the disposal of the application.

3.2 Any query raised in terms of subparagraph (3.1) shall be attended to promptly and in any event, not later than 30 days from the date on which the query was raised.

3.3 Where a query so raised by a judge has not been attended to within the period stipulated in subparagraph (3.2), the chamber application shall be dismissed by the Registrar.

Mrs Ngwenya counsel for the 1st respondent submitted that the queries raised in HC 666/20 where not attended to within 30 days as provided for in Practice Direction 2 of 2016. Counsel submitted that if the queries have not been attended to within 30 days it is mandatory that the Registrar dismisses such an application. It was contended that this application is fatally defective because HC 666/20 does not exist, it is not pending. Cut to its bare bones the argument was that the respondents could not be joined to a non-existent application.

Mr Mabika counsel for the applicants submitted that HC 666/20 is pending before this court. It was set-down on the unopposed roll and was removed from the roll. Counsel contended that this court has no jurisdiction to comment on the merits of HC 666/20. The merits of HC 666/20 must be determined in that matter not in this application.

Practice Direction 2 of 2016 imposes a duty on the Registrar to dismiss an application where a query raised by a judge has not been attended to within the period of 30 days. The Practice Directive does not say the application shall be deemed to have been dismissed it specifically imposes a duty on the Registrar to dismiss such an application.  HC 666/20 has not been dismissed by the Registrar. It is not for this court to say the Registrar ought to have dismissed the application and therefore it is not pending. The Registrar must dismiss the application, and this court must be furnished with proof that such an application has been dismissed. No proof has been furnished that HC 666/20 has been dismissed by the Registrar. This court must keep to its lane. It is not for it to dismiss the application. It is simply the duty of the Registrar. This court does not know the reasons for the non-dismissal of HC 666/20. It cannot second guess the reasons thereof. The result is that HC 666/20 was not dismissed. It is still pending.

Further the file (HC 666/20) shows that Mr Mabika and Ms Lusinga on the 1st June 2021 asked the court to remove HC 666/20 from the unopposed roll because there were other matters that had to be finalised first. HC 666/20 was removed from the roll pending the finalisation of this matter.  A matter that has been removed from the roll pending the occurrence of an event remains pending until such occurrence. See: Practice Direction 3 of 2013. The preliminary objection that HC 666/20 is non-existent and not pending has no merit and is accordingly dismissed.

The second preliminary objection is that this application has been filed out of time. It was submitted that in terms of Practice Direction 2 of 2016 queries raised by a judge in chambers must be attended to within 30 days thereof, this application was filed after six months from the date the queries were raised. It was contended that the failure to file this application within 30 days from the date the queries were taken is fatal to this application and it must be dismissed.

I take the view that the penalty for failing to attend to queries within the time allowed by the Practice Direction 2 of 2016 is not the dismissal of the subsequent application such as this one, but the dismissal of the application in which the queries were raised. It was for the Registrar to engage the provisions of the Practice Direction and dismiss HC 666/20. He did not do so. This court does not know the reasons for the non-dismissal of HC 666/20.  HC 666/20 is still pending and therefore there is no sound basis to dismiss this application. This preliminary objection has no merit and is accordingly dismissed.

In the heads of argument it was contended further that the queries raised by the judge in chambers related to the fact that the application in HC 666/20 was riddled with disputes of fact. Such disputes of fact could not be cured on the papers and therefore that application should have been withdrawn. It was submitted that HC 666/20 is incurably bad and no proceedings can be anchored on it. It was contended further that the applicants cannot seek to join the respondents to a matter that cannot be adjudicated further as it is fatally defective. It was submitted further that even if this court was to accede to this application, the joinder would be futile as the application to which the respondents are sought to be joined is fatally defective.

This preliminary point can be disposed of very easily. What is before this court at this point in time is this application.  HC 666/20 is not before this court at this moment. This court cannot prejudge a matter that is not before it. The issue of disputes of fact in HC 666/20 cannot be debated and adjudicated in this application. That could be an argument for another day, but certainly not in this application. In the circumstances this preliminary point has no merit and is dismissed.

The merits

Submissions by the parties

In their founding affidavit the respondents aver that the respondents sought to be joined have an interest in HC 666/20. The 1st respondent purchased the property subject to the proceedings in HC 666/20. The 2nd respondent is the one who declared the 1st respondent the highest bidder. The 3rd respondent effected the transfer of the property into the name of the 1st respondent. It is contended that the three respondents be joined in HC 666/20.

The 1st respondent submits that the requirement of a substantial interest in the matter cannot be the only consideration for joining a party to a matter. It was contended that of necessity the particular matter that a party is sought to be joined to must be one that is alive. In this case HC 666/20 does not exist. It was submitted that HC 666/20 ceased to exist by operation of Practice Directive 2 of 2016. It was argued that HC 666/20 was found to be riddled with disputes of fact and could thus not be proceeded with on the basis of motion proceedings and is thus fatally defective. It was argued further that the issue of the efficacy of the Sheriff’s sales stands as an insurmountable stumbling block for the applicants. This is said to be so because it is argued that the property in dispute has been transferred and registered in the name of the 1st respondent, which it is argued is an occurrence which the applicants cannot reverse. 1st respondent contends that the application must be dismissed.

The legal principles

Order 13 rule (2) provides thus:

At any stage of the proceedings in any cause or matter the court may on such terms as it thinks just and either of its own motion or on application—

(a) ………………

(b) order any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, to be added as a party; but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorised.

It is trite in this jurisdiction that for a party to be joined in litigation such party must have a direct and substantial interest in the matter. See: Timba v Chief Elections Officer & Others SC 69 of 2015; Mwazha & Others v Mhambare SC 116/21. In Herbstein and Van Winsen’s book on the civil practice of higher courts Civil Practice of the High Courts of South Africa”,  5th ed. at page 217 the authors say:

A ‘direct and substantial interest’ has been held to be ‘an interest in the right which is the subject-matter of the litigation and not merely a financial interest which is only an indirect interest in such litigation.’ It is ‘a legal interest in the subject matter of the litigation, excluding an indirect commercial interest only.’ The possibility of such an interest is sufficient, and it is no necessary for the court to determine that in fact it exists. For the joinder to be essential, the parties to be joined must have a direct and substantial interest not only in the subject-matter of the litigation, but also in the outcome of it.

Guiding principles and rules with regard to joinder of a party to proceedings have been well established through case law over the years. The test is whether or not a party has a 'direct and substantial interest' in the subject matter of the action, that is, a legal interest in the subject matter of the litigation which interest may be prejudicially affected by the judgment of the court. See: Henri Viljoen (Pty) Ltd v Awerbuch Bros 1953 (2) SA 151 (O).

In Gordon v Department of Health, Kwazulu-Natal 2008 (6) SA 522 (SCA) the court held that the rule is that any person is a necessary party and should be joined if such person has a direct and substantial interest in any order the court might make, or if such an order cannot be sustained or carried into effect without prejudicing that party. See: Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A).

It is on the basis of these legal principles that this application must be viewed and considered.

Application of the law to the facts

The crisp question in this application is thus whether the 1st, 2nd and 3rd respondents should be joined in case number HC 666/20. It is necessary for the applicants to demonstrate that each of the respondents sought to be joined has a substantial interest in the subject matter of HC 666/20.

In resisting to be joined in HC 666/20 the 1st respondent recycled the same arguments it raised regarding the preliminary points. I repeat that HC 699/20 has not been dismissed by the Registrar and it is still pending. The alleged disputes of fact in HC 666/20 cannot be decided in this application. The issue whether the applicants have made a case to reverse the Sheriff’s sale cannot be decided in this application. These are issues that will have to be debated and adjudicated in HC 666/20. These issues are irrelevant in the consideration whether the 1st, 2nd and 3rd respondents have to be joined in HC 666/20.

In casu the 1st respondent purchased the property at the Sheriff’s auction sale. It paid the bid price, the sale was confirmed and the property was transferred into its name. In HC 666/20 the applicants seek an order inter alia that the confirmation of the sale be cancelled and the transfer of the property to the 1st respondent be reversed. I therefore entertain no doubt that the 1st respondent has an interest in HC 666/22 which qualifies as a ‘direct and substantial’. It has a direct and substantial interest not only in the subject-matter of the litigation, but also in the outcome of it. If the order sought in HC 666/20 is granted it shall without doubt prejudice the 1st respondent. In other words, it has the kind of interest that necessitates it being joined as a party in HC 666/20.

The 2nd respondent is the Sheriff of the High Court. It is the Sheriff which attached the property, sold it in execution, confirmed the sale and transferred it to the 1st respondent. It has a direct and substantial of the kind that necessitates it being joined as a party in HC 666/20. The 3rd respondent is sought to be joined in its official capacities because the implementation of the order sought in HC 666/20, if granted may require its services. It has to be joined in HC 666/20. No doubt.

Disposition

The court will exercise its discretion to order joinder to ensure that all persons interested in the subject-matter of the dispute and whose rights may be affected by the judgment of the Court are before it.

It is incongruous that the 1st respondent is actually resisting to be joined in a matter in which it has a direct and substantial interest in the circumstances where it must be in the forefront in seeking such joinder to protect its interest.

The applicants have not sought costs against the 1st respondent and no costs shall be awarded.

In the circumstances I find that the applicants have made a case for the relief sought in this application.

In the result, I order as follows:

That the 1st, 2nd, and 3rd respondents be and are hereby joined in the proceedings under case number HC 666/20 as 3rd, 4th and 5th respondents respectively.

The applicants be and are hereby ordered to serve the 1st, 2nd  and 3rd respondents with the application in HC 666/20 within 5 days of granting of this order.

The 1st, 2nd and 3rd respondents be and are hereby ordered to file their opposing papers in HC 666/20 within 10 days of service per (ii) above.

There shall be no order as to costs.

Mugiya and Muvhami Law Chambers applicants’ legal practitioners

Coghlan and Welsh 1st respondent’s legal practitioners

Danziger & Partners 4th respondent’s legal practitioners