Air Namibia (Proprietary) Limited v Chenjerai Mawumba and Others

### Preamble
1
HH 520/18
HC 6573/18
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AIR NAMIBIA (PROPRIETARY) LIMITED

versus

CHENJERAI MAWUMBA

and

JULIANA MAGOMBEDZE

and

FADZAI NICOLE MAWUMBA

and

RUTENDO RUTH MUWUMBA

(A minor duly represented by Chenjerai Mawumba in

his capacity as the father and natural guardian)

and

TADIWANASHE SETH MAWUMBA

(A minor duly represented by Chenjerai Mawumba in

his capacity as the father and natural guardian)

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE, 20 July 2018 and 12 September 2018

Urgent Chamber Application

S. Hashiti instructed by K Musimwa, for the applicant

N. Mutevedzi with R Gwatsvaira, for the respondents

CHITAPI J: In this urgent application for a provisional order the applicant prays for relief as set out as follows;

FINAL ORDER SOUGHT

That the stay of execution is hereby granted

Respondents shall pay costs of suit on an attorney-client scale.

INTERIM RELIEF GRANTED

The respondents are interdicted to conduct the attachment of the applicant’s property until finalization of the applicant’s appeal under case no. SC 550/18.

I reserved judgment in this matter after argument. It is seldom that a judge finds himself having to contend with listening to academic presentations on law made for no other purpose than perhaps to simply satisfy the ego of the presenter. A judge unfortunately does not engage in debate with the parties or their legal practitioners. The judge can only listen to submissions made, seek clarifications and if merited require any of the parties or any other person to give further information which may assist in the determination of the urgent application as provided for under rule 246 (1) of the High Court Civil Rules, 1971. This application on the papers appeared to be a very simple one. l had thus scheduled to deal with on the turn after hearing the parties. It ended up being unexpectedly very prolonged on account of the rather unmerited opposition which was mounted by the respondents through their counsel Mr Mutevedzi.

The background to this application is as follows:

The applicant, which is a Namibian registered company operates an airline which makes scheduled flights into and from Zimbabwe.

The respondents are Zimbabwean nationals who made a chamber application in terms of s 15 of the High Court Act, [Chapter 7:06] under case no. HC 2355/18. The said application was made against the applicant herein as respondent. Its purport was to seek an order for attachment of the applicant’s property to found and confirm jurisdiction in a case for dilectual damages in the sum of US$1 million dollars which the respondents intended to institute against the applicant.

On 27 June, 2018 I granted the said application in case no. HC 2355/18. I granted the order made ex parte following submissions by the respondents that the matter be dealt with as such in terms of Order 32 Rule 242 (1) (b) – (2) of the High Court Rules, 1971. I was satisfied that the giving of notice to the applicant would have had the effect of forewarning the applicant of the proposed attachment with the result that the applicant could defeat the attachment if forewarned.

For reasons which will become apparent later in this judgment, I will set out the content of the order which l granted. It reads as follows:

IT IS ORDERED THAT:

The Sheriff of the High Court or his lawful deputy be and is hereby authorised and directed to attach any of the respondents’ movable property at its official address at shop number 202, Joina City, Harare and to impound any of the respondents airplanes situate in Zimbabwe in order to confirm and / or found the jurisdiction of the High Court of Zimbabwe, and this order shall be his warrant to do so.

The Sheriff of the High Court or his lawful Deputy be and is hereby ordered to keep the property attached pursuant to this order so attached until the action which the applicants intend to institute is finalized.

Respondent shall be liable for the Sheriff of High Court or his lawful Deputy’s costs of storage of the property attached by the Sheriff’s office pursuant to this order as well as any other costs arising from the said attachment.

Respondent to pay costs.

It goes without saying that because the application was made ex-parte and the relief similarly given ex-parte, the applicant herein was not aware of the making of the order.

For reasons not apparent in regard to how the applicant became aware of the application made under case no. HC 2355/18, since it had not been served on the applicant, the applicant’s legal practitioners filed a chamber application under case no. HC 5808/18 on 22 June, 2018. In the said application, the applicant sought the dismissal of application no. HC 2355/18 for want of prosecution purportedly in terms of Order 32 Rule 236 (3). The applicant alleged that it filed a notice of opposition in case no. HC 2355/18 on 21 March, 2018 following service of the said application which had been filed on 14 March, 2018.

I have indicated that it is not apparent as to how the applicant became aware of the 	application no. HC 2355/18 because, the respondent in making their application aforesaid 	indicated that they had not served it. I also granted it on the understanding that it had not 	for reasons which l agreed with been served. Further, the notice of opposition purportedly 	filed by the applicant was not brought to my attention and is not filed in case no. HC 	2355/18. There is no proof of service of the notice of opposition filed in case no. HC 	2355/18. I am also not persuaded that the application case no. HC 5808/18 was a proper 	or competent application for the simple reason that because application HC 2355/18 was 	a chamber application, its disposal was not party driven but judge driven. Chamber 	applications are referred to a judge by the Registrar for disposal and do not require that a 	party should set down a chamber application for hearing. It is up to the judge to dispose 	of the application in terms of either rule 245 which deals with non-urgent applications or 	rule 246 which deals with urgent applications. Rule 236 (3) which allows for a 	respondent to apply for the dismissal of an application where the applicant has not set it 	down for hearing within one month after the filing of a notice of opposition does not 	apply to chamber applications. Be that as it may, application HC 5808/18 became 	academic and was overtaken by events because the main application HC 2355/18 was 	determined before the said application was referred to the judge for determination. For 	purposes of good order, the applicant having noted that its application had been overtaken 	by events should have filed a notice of withdrawal of the same. For the record, having 	perused the said application HC 5808/18, I noticed that the certificate of service was filed 	on 29 June, 2018. The filing of the certificate of urgency would have been required to 	be filed before the application was referred to a judge. By 29 June, 2018, case no HC 	2355/18 whose dismissal was sought had already been determined on 27 June, 2018. I 	will separately endorse that the record HC 5808/18 application is incompetent and 	was overtaken by events so that the matter can be recorded as finalized by the court and 	filed away.

On 14 July, 2018, the applicant filed this urgent chamber application for a provisional order on the terms indicated at the beginning of this judgment. I set down the application for hearing on 18 July, 2018. The chamber application is defective in that it does not comply with form 29B as read with r 241. It is not expected that a senior legal practitioner of Mr Musimwa’s experience still fails to comply with the rules despite a plethora of case law to this effect and the importance of complying with rules when bringing cases to court. One shudders to think what sort of grounding the junior practitioners who get employed or are attached to the senior practitioners who fail to comply with basic rules get taught. To put it beyond conjecture as to the basis for my criticism, the applicant’s notice of application should have set out the grounds of the application ex facie. The application instead states that:

“ Take notice that an urgent chamber application is hereby made to this Honourable 	Court on the grounds stated herein.

The accompany affidavit and Annexures shall be used in support of this application.”

The heading of the application itself reads as follows:

“URGENT CHAMBER APPLICATION FOR STAY OF EXECUTION PENDING APPEAL”

To compound my criticism of Mr Musimwa, the provisional order sought and the final

order are substantially the same except in regard to the prayer for costs. For whatever it is worth and for the benefit of Mr Musimwa, it is entirely competent to seek an order which is final in nature by way of urgent application. There is this myth or mis-appreciation of procedure by legal practitioners in believing that every urgent application must be for a provisional order and that it is returnable to court. Rule 244 read with the proviso thereof is clear that the judge can grant any competent order in an urgent application. An urgent application is one which is certified as urgent by a legal practitioner. It can be for an order which is final or for a provisional order in terms of r 246 (2), (3) as read with r 247.

Albeit the pronouncements of the courts falling on deaf ears with respect to some legal practitioners, for posterity I will for the umpteenth time, in the interests of justice once again hit the drum loud and clear and repeat that rules and procedure are there to be followed. Following rules constitutes part of law practice. That said, it appears to me that going forward, whilst the court has a discretion to either condone non-compliance with the rules in the interests of justice in terms of r 4C or to dismiss the application, the better route to adopt where circumstances permit and to avoid an injustice is for the court to condone the rule breach especially if it is one relating to form but to express its displeasure by ordering that the errant legal practitioner who is an officer of this court should be deprived of his fees. Such an order would reign in errant legal practitioners and should be made where merited after affording them an opportunity to explain their errors. Where the explanations are not convincing and the legal practitioner’s failures are adjudged to be gross, the attention of the Law Society should be drawn to the fact for it to monitor that the legal practitioner undergoes continuous legal training in the relevant areas of failure.

I will out of benevolence and in the hope that errant practitioners take heed quote a few judgments of this court on the need to comply with rules of court be it in ordinary, chamber or urgent chamber applications, see David Jack & Ors v Lloyd Mushipe & Ors HH 318/15, Marick Trading Pvt Ltd v Old Mutual Life Assurance Company Pvt Ltd & Anor HH 667/15, Joshua Nyamhuka & Anor v Abigail Mapingure & Ors HH 29/17, Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H), Salt Lakes Holdings Pvt Ltd & Anor v CBZ Bank & Anor HH 636/15, Grandwell Holdings v ZCDC & 2 Ors HH 125/17, Brain Andrew Cawood v Elasto Madzingura & Anor MSVH 12/17, Ignatius Masamba v Secretary Judicial Service Commission & Anor HH 283/17 and several others which can be found on reference to decided cases on the need to comply with the rules. Legal practitioners must therefore take heed that they risk being put to shame by the court for inefficiency and being deprived of their costs. It is high time that the profession focuses on efficiency and to shun tardiness in case presentations, preparation of pleadings and all other facets of legal practice that has to do with justice administration. The profession must justify its description of a learned profession and its members learned officers of the court.

Back to the background facts, the applicant filed an appeal No. SC 550/18 against my order given in case No. HC 2355/18 on 13 July, 2018 with the Supreme Court. On the following day, this urgent application was filed. I have already indicated that the application was set down for 18 July, 2018 following its referral to me in terms of r 244.

(h)	On 18 July, 2018, Mr Hashiti who appeared instructed by Mr Musimwa applied for a postponement of the hearing. He indicated that he had instructions that he needed to verify through documentation still to be availed to him to the effect that the applicant was in fact an incola. In his submissions which I found meritorious, he stated that should applicant be an incola, then the issue of arrests or attachments of the applicant’s property to found and confirm jurisdiction would fall away. Mr Mutevedzi first opposed the postponement arguing that the request was frivolous.  I was utterly surprised by his attitude because the reasons for the request had merit and would enable him to file his clients (the respondents) claims expeditiously without putting the respondents to the costs of ancillary matters of jurisdiction. Having found the opposition to the application to be without merit I dismissed the opposition and postponed the hearing to 20 July, 2018.

(i)	On 20 July, 2018, Mr Hashiti now had in attendance representatives of the applicant being, its Senior Legal Manager Mr Jerhome Tjizo and the Senior General Manager, Ground Operations Mr Moses Shihepo. They had flown from Namibia for the hearing. I was advised by Mr Hashiti that the legal practitioners and the parties were in consultation but appeared not to be in agreement.

(j)	For their part, the respondents had on 18 July, 2018 filed a notice of apposition. They contended that the application was not urgent because the order sought to be stayed had been appealed against. It was also contended that since the respondents had not taken any steps to enforce the order no urgency had arisen. It is of course correct that an appeal was noted to the Supreme Court. The appeal suspended the execution of the judgment appealed against. The law in this regard was aptly set out by Corbett JA in South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A1) at 544-545 A, a case cited by Garwe JA in Longman Zimbabwe (Pvt) Ltd v Midzi & Ors SC 54/07 thus:

“Whatever the true position may have been in the Dutch Courts, and more particularly the court of Holland  … it is today the accepted common law rule of practice in our courts that generally the execution of a judgment is automatically suspended upon the noting of an appeal with the result that, pending the appeal, the judgment cannot be carried and no effect can be given thereto except with the leave of the curt which granted the judgment.”

After extensive discussion on the correctness of the above proposition and

consideration of various decided cases, Garwe JA with the concurrence of the other members of the court stated thus:

“The position may now be accepted as settled that unless empowered by law to do so, an inferior court or other authority has no power to order the suspension of its own orders or judgment and further that the noting of an appeal against the judgment or order of such court or  tribunal or other authority in the absence of a statutory provision to that effect; does not have the effect of suspending the operation of the judgment or order that is sought to be appealed against.”

The legal position following on the above settled position is that my order having been appealed against and it being an order of a superior court cannot be executed upon until the appeal is disposed of or unless the respondents in the appeal apply to execute the order pending appeal. Accordingly, there is no legal basis for the applicant to seek a protection order or interdict to stay execution pending appeal. The interdict or protection if one may use the expressions loosely is given in law and already in place. If l were to grant the order, I would simply be restating or endorsing a settled position. It is not the function of a court to do that in the absence of a dispute on the interpretation of the legal position.

I would have thought that a properly advised legal practitioner would have argued the matter and sought the dismissal of the application on the basis that there was no 	proper or legally competent application before me. It was not to be with Mr Mutevedzi for the respondents. He went on at length to argue that the application was not urgent. It is common cause and a matter of law, logic and common sense that an invalid application is just that. Nothing sits on nothing. It is as good as it is not there. Urgency does not come into it because if for example the application was adjudged not urgent, it would have to be referred to the ordinary roll. A nullity is not referred for determination. It is declared to be so and that’s the end of the matter.

Mr Mutevedzi was not done. He argued that the application was incurably defective as it was not accompanied by Form 29B. He further argued that the appeal notice was defective because it did not bear a High Court stamp. I cannot of course determine the validity of a notice of appeal agreed to be pending in the Supreme Court. It is for that court to make the determination  . The argument raised by Mr Mutevedzi in this regard contradicted his earlier submissions and the deposition of the respondents that they accepted that the order sought to be styed had been appealed against. Mr Mutevedzi was not done, he then attacked the authority of the deponent to the founding affidavit to represent the applicant.

For his part the applicant’s counsel did not adopt a grandstanding approach. Mr Hashiti sought to depart from the thrust of the application and submitted that the applicant’s concern was that it risked having its business adversely affected by an attachment of its aircraft or other property. He tendered the applicant’s resolution to 	provide a bank guarantee in the sum of US$25 000-00 as security for its due submission to jurisdiction of the court. The offer was refused by the respondents’ counsel who argued for the dismissal of the application. When I asked Mr Mutevedzi whether he did not consider that the interests of the respondents would be better served by a consensus between the parties on the submission to jurisdiction by consent secured a bank guarantee or other security, he was adamant that the application should just be dismissed. Mr Hashiti’s position was that a mutual agreement on the issue would have dispensed with the appeal thus opening doors for the respondents to immediately institute action. Although these submissions were being made in the course of the hearing, the issue was not before me and I could not make any determination thereon and will not do so in view of my finding that the application before me is incompetent at law in the circumstances of the existence of a pending validity noted appeal.

I should express my disquiet at the poor standard of understanding of basic law principles by the applicants’ instructing legal practitioner and by Mr Mutevedzi. It is not expected that any astute legal practitioner would not appreciate that the noted appeal unless set aside or the appeal determined was a bar to execution of my order. Sustained arguments by Mr Mutevedzi on issues which did not contribute to the determination of a simple legal issue, namely whether there was a valid application before the court in the face of the appeal was an indictment on his ability to grasp the issue at play. A legal practitioner should identify the issue or issues for determination and focus on them. Grand standing before a court or judge hardly impresses nor does it make a good legal practitioner.

I seriously considered depriving the legal practitioners of their costs as a mark of the courts displeasure at the legal practitioners’ basic lack of diligent execution of their mandates. Mr Musimwa’s failure to appreciate that the application was a nullity and Mr Mutevedzi’s lack of appreciation of issues and arguing ad infinitum on matters arising from an invalid application presented a serious indictment on the sinking levels of competence of some legal practitioners. I could not properly determine whether or not to deprive the legal practitioners of their costs as I did not hear them on the matter.  It was a thought which played on my mind as l prepared these reasons for judgment.

I must in dismissing this application determine the question of costs. The general rule is that costs follow the result. This notwithstanding, costs are awarded in the discretion of the court and as with any other discretion, it is exercised judiciously. The principles which the court considers include, the conduct of the parties before and during the hearing, whether a party has been wholly or partially successful, whether a party has offered to settle the matter and any other pertinent circumstances. See Manica Zimbabwe Ltd v Grindsberg Inv. (Pvt) Ltd & Ors HH 95/16. In casu, considering all the matters over which I have expressed the court’s disquiet informed by what is clearly ineptitude by its officers, Mr Hashiti excluded, an order that each party bears its own costs would have been appropriate. In view however of the fact that the applicant’s application is not supported in law, the filing of the ill-advised application is the one which set into motion all that followed it culminating in the court’s time being wasted as well.

The appropriate order under the circumstances is that the application be and is hereby dismissed with costs.

Musimwa & Associates, applicants’ legal practitioners

Mutamangira & Associates, respondents’ legal practitioners