Cossam Chiangwa v Apostolic Faith Mission in Zimbabwe & 5 Ors

### Preamble
1
HH 493-18
HC 7143/18
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COSSAM CHIANGWA

versus

APOSTOLIC FAITH MISSION IN ZIMBABWE

and

ASPHER MADZIYIRE

and

TONDERAL MATHENDE

and

AMON DUBIE MADAWO

and

MUNYARADZI SHUMBA

and

TAWANDA NYAMBIRAI

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE, 8 August, 2018 and 21 August, 2018

Urgent chamber application

F Chinwawadzimba, for the applicant

T. W. Nyamakura, for the 1st, 2nd, 4th, 5th, 6th respondents

B Diza, for the 3rd respondent

MANGOTA J: The applicant is deputy president in the first respondent, a pentecostal church. He filed this application through the urgent chamber book. He did so on 3 August, 2018. He couched his draft order in the following terms:

“1. TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the 	following terms:

No writ or execution of the order obtained in the High Court held at Harare 		under case No. HC 4756/18 will be issued or actioned by the respondents during the 	pendency of the application for rescission of judgment.

The respondents pay costs of suit on a legal practitioner and client scale.

INTERIM RELIEF GRANTED

Pending argument and finalization of the application under HC 7096/18 the applicant are (sic) granted the following interim relief:

That the provisions of the order granted under HC 4756/18 be and are hereby temporarily suspended pending the determination and conclusion of the application for rescission of judgment filed under HC 7096/18”

HC 4756/18 is the third respondent’s application against the applicant, the second, fourth, fifth and sixth respondents all of whom are office bearers in the first respondent. He sued them in their official capacities. He served HC 4756/18 at the place of work of the applicant, the second, fourth, fifth and sixth respondents. He served it at number 23C, Maribou Close, Tynwald, Harare which is the first respondent’s address.

The applicant opposed HC 4756/18. He filed his notice of opposition on 19 June, 2018. The second, fourth, fifth and sixth respondents did not oppose the application.

The third respondent set down HC 4756/18 on the unopposed roll on three consecutive occasions. He set it down for Wednesday 13 June, 2018, Wednesday 20 June, 2018 and Wednesday 11 July, 2018 when the same was postponed to Wednesday 18 July, 2018.

The motion roll result slips show, as the history of HC 4756/18, that:

on 13 June, 2018 the application did not take off the ground because the motion court judge recused himself from the same;

on 20 June, 2018 the motion court Judge removed the application from the roll;

on 11 July, 2018 the judge postponed the application to Wednesday 18 July, 2018- and

on 18 July, 2018 default judgment was entered against the applicant, the second, fourth, fifth and sixth respondents.

It is the abovementioned judgment which the applicant is moving the court to rescind. He filed his rescission application under HC 7096/18. He did so on 1 August, 2018.

The current application aims at staying execution of HC 4756/18. The applicant is, in casu, moving the court to order that the status quo of HC 4756/18 be maintained until the application which he filed under HC 7096/18 has been heard and determined.

The respondents did not oppose this application. They wrote a letter to the registrar of this court through their legal practitioners of record. It is dated 8 August, 2018. It reads, in part, as follows:

“1. ….. We would be obliged if this letter is placed before His Lordship immediately after it

is received by the Registrar.

2. We act for the second, fourth, fifth and sixth respondents in the matter. His Lordship will readily note from the record that despite filing the application on 3 August, 2018, the applicant only served the application on the 6th August 2018 thereby denying the respondents ample time to prepare opposing documents to what is clearly a bulky application. Be that as it may, and after perusing the founding documents, we will seek to be heard, if His Lordship is so inclined, on the following points in opposition to the application. We have taken the step to prepare this minute in order to give the applicant notice of the points we wish to take.” [emphasis added]

The lackasdaisical approach which characterises the respondents’ attitude to the application cannot be accepted. They were not candid when they stated that the applicant denied them the opportunity to be heard. They received the application on 6 August, 2018. The same was set down for 8 August, 2018. They had the whole of 7 August, 2018 at their disposal. They could easily have prepared and filed their notice(s) of opposition on the mentioned date, or on the following day and before the application was heard. They could, in the alternative, have applied, on the day of hearing, for a postponement of the application to a day or two to enable them to prepare and file their notice(s) of opposition. Nothing prevented them from pursuing the stated alternative route.

No meaningful value can be attached to the contents of the letter which the respondents addressed to the Registrar. The contents of the letter are not the respondents’ evidence. They cannot, on their own, assist in the determination of this application.

It is, however, to the credit of the respondents that their respective legal practitioners remained in attendance. They educated the court on what happened on 20 June, 2018 as regards HC 4756/18. The events of the mentioned date remain critical to the determination of this application. That is so because HC 7143/18 is anchored on HC 4756/18 as well as on the circumstances which relate to the default judgment of 18 July, 2018.

It is trite that a person who applies on the basis of urgency must prove two important matters for him to succeed. These are:

whether or not he treated his application with the urgency which it deserves- and

whether or not he established a prima facie case which entitles him to an interim relief.

Both factors must be present in an application such as the present one. He cannot succeed where one of the mentioned matters is absent.

The applicant’s statement is that he became aware of the default judgment which had been entered against him and others on or about 23 July, 2018. He states that he applied for rescission of HC 4756/18 on 1 August, 2018. He avers, further, that he filed this application on 3 August, 2018.

The applicant cannot be said to have failed to meet the first of the abovementioned two requirements. He most certainly treated his application with the urgency which the same deserved. He filed it seven (7) days after he had become aware of the default judgment. He did not allow it to wait at all. His case on the point which is under consideration falls outside the remarks which Chatikobo J was pleased to make in Kuvarega v Registrar-General & Anor, 1998 (1) ZLR, 188.

Whether or not the applicant satisfies the second requirement does, in a large measure, depend on the circumstances under which HC 4756/18 was entered against him and others. Those, by extension, depend on the reasons which persuaded the motion court judge to remove HC 4756/18 from the roll on 20 June, 2018.

The motion roll result slip for the mentioned date indicates that HC 4756/18 was removed from the roll. The judge’s reasons for the removal of the case from the roll remain unstated.

The applicant’s statement on the issue which relates to the removal of HC 4756/18 from the roll is that the judge directed the third respondent to re-serve the same on him and others. He states that, following the directive of the judge, he instructed his legal practitioners to write to the third respondent’s legal practitioners advising the latter of his address of service. These, he avers, wrote the letter on 21 June, 2018.

The legal practitioners of the respondents have a different view of the judge’s directive. They state that their understanding of the same was that they had to satisfy the court that service of HC 4756/18 on the applicant and others was proper. They submit that, pursuant to the directive, they requested the third respondent and one Doreen Hope, who is the office secretary of the first respondent, to depose to an affidavit each stating the manner in which service of HC 4756/18 was effected on the applicant and the respondents. They remain of the view that what they did constitutes sufficient proof of service of HC 4756/18 on the applicant and others. They state that, when the affidavits of the two had been filed, they set down HC 4756/18 on the unopposed roll of 18 July, 2018.

The judge who presided over the motion court of 18 July, 2018 was satisfied that service of HC 4756/18 on the applicant and others was proper. He was also satisfied that:

(i)	the applicant filed his notice of opposition out of time and was, therefore, barred – and

(ii)	the other respondents did not oppose the application.

He, accordingly, entered judgment for the third respondent.

Critical to the resolution of this matter is the letter which the applicant’s legal practitioners wrote, at his instruction, to the legal practitioners of the third respondent following the judge’s directive. He attached the same to his application. He called it Annexure B. It is dated 21 June, 2018.

It goes without saying that the applicant would not have known of the judge’s directive of 20 June, 2018 if he was not in attendance at court when the same was issued. The fact that he instructed his legal practitioners to write to those of the third respondent only a day after the directive was issued does, in all probability, point in the direction that he attended the motion court of 20 June, 2018. The stated observation finds support from the statement of the applicant himself. He states that the motion court judge directed the third respondent to reserve HC 4756/18 on him and others. He would not have known of the content of the directive unless he, or his legal practitioner or both was/were in court on 20 June, 2018. The same observed matter finds further confirmation from the fact that he had already filed his notice of opposition when the directive was issued. He, in all probability, was keenly following the developments of the case at court.

Given the position that either his legal practitioner or him or both of them was/were in the motion court on 20 June, 2018 and that he had already filed his notice of opposition when the directive was issued, the reasoning of the respondent’s legal practitioners cannot be faulted. Their understanding of the directive, with which I agree, was that they had to satisfy the court that HC 4756/18 had, indeed, been served on the second, fourth, fifth and sixth respondents who did not appear to have reacted to the same.

It would, in my view, have made little, if any, sense for the motion court judge to direct the third respondent to re-serve HC 4756/18 on the applicant. He had already filed his notice of opposition on the same. Re- service of HC 4756/18 on him was, therefore not necessary.

The affidavit of the third respondent as read with that of Doreen Hope, the first respondent’s secretary, confirms the position that HC 4756/18 had properly been served on the applicant and all the other respondents. The affidavit states that the reservations of the judge who presided over the motion court on 20 June, 2018 were that HC 4756/18 had been served on the security guard who manned the premises of the first respondent.

Doreen Hope who is a responsible person at the address of service of HC 4756/18 confirms that she received HC 4756/18 from one David Marijani, the security guard. She says she received the same on 23 May, 2018, which is a day after David Marijani had received the same. She states that she immediately called all the respondents who were cited in the application, each in turn. She avers that she delivered a copy of the application to each of the respondents except the applicant whom she says collected a copy of the application from her only on 20 June, 2018 and after she had made a number of follow-up phone calls to him.

The amount and quality of detail which the applicant included in his opposing affidavit shows that he received HC 4756/18 earlier than 20 June, 2018. He did real and substantial justice to the case. He did not operate upon guess work at all. He meticulously dealt with the substance of HC 4756/18 on a paragraph-by- paragraph basis. He even raised three in limine matters before he dealt with the substance of the same.

The applicant’s statement is that HC 4756/18 was served upon him on 14 June 2018. He states, in the same breadth, that he filed his notice of opposition out of time. He avers that he intended to apply for condonation for late filing of notice of opposition.

The applicant was not candid with the court when he claimed that HC 4756/18 was served upon him on 14 June, 2018. If his statement in the mentioned regard is correct, he would not state, as he did, that his notice of opposition was filed out of time.

A notice of opposition which is filed two days from the date that the application was served on the applicant cannot be said to have been filed out of time. It would have been filed within the time which the rules of court prescribe.

HC 4756/18 was properly served on the applicant on 23 May, 2018. It was served on him at his place of work. It was for the mentioned reason, if for no other, that he made up his mind to lie and state, as he did, that the same was served on him on 14 June, 2018. He must have realised that, if he told the truth on the issue of service of the application, he would remain barred. He, therefore, decided to tell a lie which he hoped would salvage his case from the automatic bar which had became operative against him. It was unfortunate that the lie which he told could not hold. It made no sense at all.

Given the bar which operates against the applicant under HC 4756/18, his application for rescission of the same stands on nothing. The cause of the default judgment which had been entered against him remains intact. He does not explain how the judgment which was entered against him on the ground that he failed to comply with the rules of court can be rescinded before he successfully applies for the upliftment of the bar which operates against him in the case.

The applicant’s application under r 449 of the rules of court is misplaced. It cannot hold.

HC 4756/18 was entered against him after he filed his notice of opposition out of time. He filed it when the automatic bar had already become operative against him. HC4756/18 was not, therefore, erroneously sought or granted. It was properly entered against him.

The application should have been filed under r 63 and not r 449 of the High Court Rules, 1971. It is based on the inapplicable rule. It is fatally defensive. It cannot, therefore, see the light of day in court.

A judgment which is entered as a result of a party’s conscious failure to comply with the rules of court is not erroneously sought or granted. It is properly granted. It cannot be undone by the mere application for its rescission. The only manner in which it can be rescinded occurs when the party which is adversely affected by the same makes the effort to correct it through the procedure which the rules of court prescribe for the same.

It requires little, if any, debate to observe and state that HC 7096/18 is inextricably connected to HC 4756/18. HC 4756/18 cannot, therefore, be decided in the applicant’s favour unless and until he successfully applies for upliftment of the bar which the rules of court impose upon him in respect of the same.

Because HC 7096/18 stands on nothing, the applicant does not establish a prime facie case which entitles him to the relief he is seeking in casu. He, in the premise, fails to satisfy the second of the two requirements which he must establish in an application such as the present one. His current application cannot succeed. It cannot because his prospects of success under HC 7096/18 are next to nothing.

I mention in passing that both the applicant and the respondents are acting outside the constitution of the first respondent. Their terms of office as office bearers of the first respondent expired in February-March, 2018. They, for their unknown reasons, remain holding on to their former positions in the first respondent.

The third respondent remained alive to the above stated fact. He moved the court to grant to him the order which he obtained against the applicant and others on 18 July, 2018. He, in the process, clothed his otherwise unlawful conduct with some legality. It is, therefore, on the basis of the court order that he is compelling the applicant and others to carry out certain processes which pertain to the operations of the first respondent.

The applicant, it has already been stated, does not satisfy the second of the two requirements which relate to the granting of the interim relief to him. The onus lies on him to prove his case on a balance of probabilities. He failed to discharge it in casu. The application is, therefore, dismissed with costs.

Maseko Law Chambers, applicant’s legal practitioners

Mtetwa & Nyambirai legal practitioners, 1st, 2nd , 4th , 5th , 6th respondent’s legal practitioners

Mhishi Nkomo, 3rd respondent’s legal practitioners