Delta Beverages (Private) Limited v Solomon Mandizira

### Preamble
1
HH 80-2013
HC 12316/11
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DELTA BEVERAGES (PRIVATE) LIMITED

versus

SOLOMON MANDIZIRA

HIGH COURT OF ZIMBABWE

KUDYA J

HARARE 15 MARCH 2013

Opposed Application

T Mpofu, for the applicant

Ms S Gutsa, for the respondent

KUDYA J: This is an unusual application. The applicant is the purported defendant in a contested action filed by the respondent as plaintiff in this court HC 8956/10. A pre-trial conference was held and the action referred to trial on a set of issues that were agreed between the parties before a judge.

There is no founding affidavit in the matter. The application was brought on 9 December 2011 by way of a supporting affidavit by the legal practitioner of record of the applicant who purportedly took instructions from the defendant before filing its appearance to defend and plea. The legal practitioner seeks to amend the plea of her client by deleting an inaccurate averment contained therein on the ground that she inserted it under a misapprehension of her client’s instructions.

The application was opposed on 29 December 2011. The respondent raises the lack of a founding affidavit as non-suiting the applicant. The application was filed a year after the plea was filed. The delay in making the present application was not explained. The other ground raised being that the amendment introduces a new defence that will delay the main action that had been referred to trial.

The difficulty faced by the legal practitioner in question was that she could not file an answering affidavit. The respondent filed heads on 21 March 2012 that were served on the deponent to the supporting affidavit on the same day. The legal practitioner in question filed her heads of argument on 22 May 2012. She was woefully out of time and automatically barred. Then on 31 July 2012 the legal practitioner in question purportedly filed an answering affidavit. I am bewildered by such desecration of the rules of court.

I agree with the respondent that an application is initiated by a founding affidavit and not a supporting affidavit. The cause of action is set out in a founding affidavit.  See Hiltunen v Hiltunen 2008 (2) ZLR 296 (H) at 301B and Mangwiza v Ziumbe NO & Anor 2000 (2) ZLR 489 (S) at 492 D-F. In the absence of a founding affidavit, there is no application before me. It does not appear to me that the application was brought by the applicant.

The preliminary point has merit. The application is dismissed. It is clear to me that the legal practitioner in question has evinced a complete and utter disdain for the rules of court. It is only fair that she pays the cost of this application de bonis propiis on the scale of legal practitioner and client.

Accordingly, the application is dismissed with costs de bonis propiis against Mutsa Jean Remba of Dube Manikai and Hwacha legal practitioners

Dube Manikai and Hwacha, the applicant legal practitioners

Chingeya-Mandizira, the respondent’s legal practitioners