Tendai Tarinda v Jeconiah Prince Ncube (N.O) and Kathy Mwanza

### Preamble
1
HB 277/20
HC 989/20
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TENDAI TARINDA

Versus

JECONIAH PRINCE NCUBE (N.O)

And

KATHY MWANZA

HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO, 19 & 26 NOVEMBER 2020

Court application for extension of time to file a notice of opposition

N. Sibanda, for the applicant

L. Nyathi-Dube, for the 2nd respondent

DUBE-BANDA J:	This application is for an extension of time within which to file a notice of opposition in case number HC 2301/19. The order sought is couched in the following terms:

The applicant’s late filing of the notice of opposition be and is hereby condoned.

The applicant is hereby required to file and serve its notice of opposition on the 2nd respondent’s court application for review within 48 hours of this order.

No order as to costs.

The application is opposed.

During hearing, Mr Sibanda, counsel for the applicant after trying to argue in support of this application, made a U-turn and conceded that the matter be removed from the roll. After hearing argument, I struck off this matter from the roll and reserved judgment on costs.  The question is what should be done as far as costs are concerned? To answer this question, this court has to consider facts and circumstances of this matter.

For ease of reference, and where the context allows, applicant will be referred to as “applicant” or “Tendai Tarinda” and respondent as “respondent” or “Kathy Mwanza.”

Factual background

On the 27 September 2019, Kathy Mwanza sued out a court application in HC 2301/19 for review in terms of Order 33 of the High Court Rules, 1971 (Rules). The application was served on Tendai Tarinda, he did not file a notice of opposition within the time allowed by the rules of court. On the 11 November 2019, Tendai Tarinda sued out a chamber application in HC 2693/19 for condonation and upliftment of bar, for the failure to file a notice of opposition in HC 2301/19. The purpose of this application was thatthe bar in HC 2301/19 be lifted and he be permitted to file a notice of opposition. On the 25 November 2019, in HC 2301/19 Kathy Mwanzafiled a notice of opposition, and filed heads of argument on the 15 May 2020. On the 20 May 2020, Tendai Tarinda filed a notice of withdrawal of HC 2693/19.

Again, on the 8 June 2020, Tendai Tarinda, sued out yet another chamber application in HC 875/20, seeking an order uplifting the bar and condonation to file a notice of opposition in HC 2301/19 outside the time allowed by the rules of court. This application was withdrawn on the 18 June 2020.  On the 14 September 2020, Tendai Tarinda sued out this court application HC 989/20 for extension of time within which to file a notice of opposition in HC 2301/19.

This is the third application filed with this court, by the applicant and seeking substantially similar relief. The first two applications having been withdrawn.

The law and facts

This court application is itself not signed. Mr Sibanda conceded that indeed the application is not signed, however argued that as long as the application shows the name of the legal practitioner who drew the application, it is enough. This application shows that a Mr Runganga drew the application, (the reference to the court application is Mr T. Runganga/sgs/nvw).  I found this argument thoughtless and disingenuous. Order 32 rule 227 (2) of the High Court Rules, 1971 provides that every written application and notice of opposition shall—(b) be signed by the applicant or respondent, as the case may be, or by his legal practitioner. It is trite that the word shall is peremptory. Failure to comply with a peremptory rule renders the application fatally defective. See Econet Wireless (Pvt) Ltd v Trustco Mobile (Proprietary) Ltd & Anor SC 43/13. There is no application before court. See Yunus Ahmed v Docking Station Safaris Private T/A Cc Sales SC 70/18.

This application is titled court application for extension of time within which to file a notice of opposition. (It is not even an application, it is called such for lack of a better word).Asalluded above, the notice of opposition is sought to be filed in HC 2301/19- the review application. There is no application for condonation. Theapplicant, by operation of rule 233 (3) of the rules,stood barred in HC 2301/19 and does not seek condonation in this application. All applicant is seeking is an extension of time in which to file a notice of opposition. Applicant argues that this application has been launched in terms of rule 4C of the High Court Rules, 1971, which provides that:

4C. Departures from rules and directions as to procedure

The court or a judge may, in relation to any particular case before it or him, as the case may be—

direct, authorize or condone a departure from any provision of these rules, including an extension of any period specified therein, where it or he, as the case may be, is satisfied that the departure is required in the interests of justice.

I hold the view that such an application cannot be anchored on rule 4C of the rules. This rule speaks to what a judge or court may do. In terms of this rule a judge or court may authorise or condone a departure from any provisions of the rules. I take the view that this is not the rule a litigant can invoke to anchor an application. In any event, a litigant who desires an extension of time has at his or her disposal rule 229 of the rules, which says where a party desires an extension of any time fixed by or in terms of the rules and the other partyrefuses to agree thereto, the party so desiring may make a chamber application for such extension and the judgemay make such order on the application as he thinks just. This is the rule that speaks to what a litigant who desires an extension of time may do. There is no plausible reason why a litigant may invoke a general rule when there is a specific rule that speaks to the issue that it seeks to address. Rule 4C must not be used when there is a specific rule which deals with the issue applicant seeks the court to address. At a basic level this is what the principle of subsidiaryspeaks to.

Further, a litigant may not seek an extension of time without first seeking condonation. In HC 2301/19, applicant failed to file its notice of opposition within the time allowed by the rules of court. He must seek and obtain condonation for that default. He cannot just seek an extension of time to file its notice of opposition. To permit such a procedure would be incongruous to the letter and spirit of the rules. A litigant must seek condonation, for the late filing of a notice of opposition. The party who has failed to comply with rules of court must formally seek condonation explaining the cause for the delay.It is the making of the application for condonation that triggers the extension of time. A court cannot condone a departure from the rules without an application.  See Forestry Commission v Moyo1997 (1) ZLR 254 at page 260Murimbechi v Townshend HH-275-89; Solomio Farms (Pvt) Ltd Versus The Unlawful Occupants, Hofmoor Estate Stand 19833, Ruwa And The Sheriff Of Zimbabwe NOHB 58/17.An application for extension of time is not the proper application to make given the circumstances of this case.

Mr Sibanda, on reflection and after realising the futility of the application for the extension of time, turned around and said in the alternative he was now making an oral application for condonation. He contended that applicant was still relying on the founding affidavit filed with the application for extension of time. The founding affidavit is very clear, it says “this is a court application for extension of time within which to file a notice of opposition in terms of rule 4C (a) of the High Court Rules, 1971.”  It is trite that an application stands or falls on its founding affidavit. See Fuyana v Moyo SC 54-06, Muchini v Adams & Ors SC 47-13 and Austerlands (Pvt) Ltd v Trade andInvestment Bank Ltd & Ors SC 80-06. The relief sought and the draft order attempts to speak to condonation, which causes a disconnect with the founding affidavit. The nature of the application that is before the court is determined by the contents of the founding affidavit. This application is thus one for extension of time within which to file a notice of opposition in terms of rule 4C of the High Court Rules, 1971 as averred in the founding affidavit, it cannot be used in support of an application for condonation. The oral application for condonation was itself still-borne.

Applicant seeks to show that it has good prospects of success in HC 2301/19, the application for review. No record of proceedings from the magistrate’s court has been attached to demonstrate that applicant has good prospects of success on the merits. It is from the record of proceedings that this court may ascertain whether the opposition applicant intends to file in the review application has any prospects of success. In the main matter, i.e. the review application, the court is asked to review the proceedings of the magistrate’s court, a challenge to that review must speak to the record. Applicant has filed an affidavit, but without the record of proceedings, it is not enough. This court cannot review averments in the affidavits, but the record of proceedings. Again, on this point, this application is still-borne.

Faced with these numerous procedural flaws attended to this application, Mr Sibanda made a turn and asked that this application be removed from the roll.

Costs

What could not escape the immediate observation of this court was that Mr Sibanda was neither familiar with the facts of this case, nor had he read the file in this matter. When referred to a particular page in the bundle of papers before court, he would turn, whisper, and seek assistance from counsel for the respondent. This became consistent and persistent during the hearing. In the light of the circumstances of this case, I called upon counsel to show cause why an order of costs debonis propriis, may not be made against him. Mr Sibanda informed this court that he is not the legal practitioner who prepared this application. His seniors allocated him this case at the proverbial eleventh hour.

The legal profession is a responsible one. A legal practitioner is required to show great skill and knowledge in the performance of his duties. Where a legal practitioner has made a mistake, it should not be easily disregarded. However, one must also take cognisance of the fact that the legal practise is a difficult one, and even the most experienced of practitioners can make mistakes. Therefore, one should not have too much of a lenient attitude towards mistakes which result in unnecessary costs, but one should also not apply the whip too strenuously. See Waarv Louw 1977 (3) SA 297 (O.P.A.).

Debonis propriis orders should only be made in exceptional circumstances, for example in cases of dishonesty, serious negligence, mala fides, and professional negligence of a high degree fall into this category. An order of this nature can also be made where the order is justified by special circumstances or considerations. Costs debonis propriis will be awarded against a lawyer as an exceptional measure and in order to penalise him for the conduct of the case where it has been conducted in a manner involving neglect or impropriety by himself. Such costs are only awarded in reasonably grave circumstances. See Rautenbach v Symington 1995 (4) SA 583 (0) at 588 A- B; Matamisa v Mutare City Council 1998 (2) ZLR 439 (SC) at 447; Ormashah v Karasa 1996 (1) ZLR 584 (H) at 591; Techniquip (Pvt) Ltd v Allan Cameron Engineering (Pvt) Ltd1994 (1) ZLR 246 (S) at 248 G.

When asked as to who should pay the costs in this matter, Mr Sibanda, to his credit saidTanaka Law Chambers. I agree. The fault lies squarely on the doorstep of Tanaka Law Chambers.I am inclined to award costs on the attorney and client scale debones propriis against Tanaka Law Chambers. These are the reasons:-

Respondent seeks costs on a legal practitioner and client scale, and on the facts of this case, such costs are justified, but what is not justified is to mulct applicant with such costs. Costs orders debonis propriis are reserved for serious cases of misconduct or abuse of the processes of court.  This case qualifies for such costs. The conduct of Tanaka Law Chambers exhibits serious neglect in the prosecution of this matter.

The defects in this application are procedural, which is in the domain of legal practitioners. Litigants who approach a legal practitioners are, in most instances, not legally qualified, and do not have knowledge of civil procedure. They are reliant on the legal practitioners to advise them of their prospects of success.Applicant is barred in the main matter i.e. HC 2301/19, instead of filing an application for condonation, some strange application is filed in terms of rule 4C. Tanaka Law Chambers was enjoined to provide applicant effective and competent legal representation.

This application is not signed. To fail to sign an application, or even to check whether an application has been signed, signals an unacceptable level of neglect.  Signing an application is an elementary procedure, with serious consequences if not done. The legal practitioners produced papers that are patently defective. In the result, there is no application before court.

Tanaka Law Chambers assigns, at the eleventh hour a matter to a legal practitioner who is not familiar with the case. This is a junior legal practitioner who requires assistance and tutelage, none is given to him in this case. Mr Sibanda, did not prepare this application, he was merely asked to argue the case. Partners and seniors in law firms must take note that such practice is unacceptable in this court.  To just hand over a file at the eleventh hour to a junior and ask such practitioner to proceed and argue a matter in this court is unacceptable and wrong. Such practice denies this court the benefit of cogent and well-reasoned argument from such counsel, and make such counsel no different from a litigant without legal representation, i.e. a self-actor. Again, such practice has the potential of denying a litigant effective and competent representation which is a cornerstone to a fair hearing.

This is the third application filed in this court seeking substantially similar relief. The first two HC 2693/19 and HC 875/20, were filed and withdrawn. This application is also fraught with procedural defects.

There is something spectacularly wrong and irregular with the supporting affidavit of Belinda Khuphe. Belinda Khuphe filed a supporting affidavit in case HC 875/20 (application that was withdrawn), that affidavit was attested on the 29 May 2020. She filed a substantially similar affidavit in support of this application, which was again attested on the 29 May 2020. In both affidavits the commissioner of oaths is the same – one Vezokuhle Eric Ndlovu. In case HC 875/20, the supporting affidavit has thirteen paragraphs, in this application this affidavit has twelve paragraphs. In both affidavits paragraphs one to twelve are identical, word for word.  In HC 875/20, there is paragraph thirteen, which does not appear in the affidavit in support of this application. This paragraph thirteen reads as follows; “the delay in filing the chamber application was not wilful nor deliberate, as the applicant was still in the offing for a response from the respondent on whether or not they would oppose the chamber application for condonation.”

In essence what this means is that on the 29 May 2020, Belinda Khuphe appeared before Vezokuhle Eric Ndlovu twice, and signed two sets of affidavits one for HC 875/20 and the other for this application. For HC 875/20,she included paragraph thirteen and which paragraph was not included in the affidavit used in support of this application. It is however, apparent from the facts of this case, that on the 29 May 2020, it was not known or foreseeable that this application would be filed. This application was only launched on the 14 September 2020, approximately three months later. The supporting affidavit for this application could not have been signed three months earlier. The affidavit of Belinda Khuphe filed in support of this application is worrying,and one can only conclude that it is a result of doctoring and editing of an already signed affidavit. Such conduct is scandalous and reprehensible.

There are also several typographical errors in the applicant’s founding affidavit, e.g. “1st respondent and the myself,” “in which the I sought the variation,” “which application the I have since withdrawn,” “I verily believe that the I have good prospects of success,” “and that I nothing at law.” These typographical errors show the carelessness and thoughtlessness with which this application was prepared. Legal practitioners must proof read and correct their work. This is not too much to ask for, it is elementary.

There is no reason why the applicant, who relied on advice from his legal team, should be out of pocket for the costs of the application. In matters such as these, courts have, in some instances, disallowed all or part of the fees recoverable by the offending legal practitioners. See: Mdlulu v Delarey and others [1998] 1 ALL SA 434 (W); Wenum v Maquassi Hills Local Municipality and Others [2016] JOL 35824 (LC). In appropriate cases both sanctions, a costs order debonis propriis, and an order that no fees shall be recovered by the legal practitioner may be granted. In my view, this is such a matter.

Disposition

In the result, it is ordered as follows:

That this matter is struck off the roll.

That Tanaka Law Chambers pays the costs of this application debonis propriis on a legal practitioner and client scale.

Applicant's legal practitioners shall not recover any fees from applicant relating to this application, and they are ordered to refund any fees already paid to them to the applicant.

Tanaka Law Chambers, applicants’ legal practitioners

Masiye-Moyo and Associates, 2nd respondents’ legal practitioners