Lyndon Conrad Kashangura v The Registrar of Land Surveyors and 9 Others

### Preamble
1
HH 236-13
HC 1666/13
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LYNDON CONRAD KASHANGURA

versus

THE REGISTAR OF LAND SURVEYORS

and

ADMIRE MUNOWENYU

In his capacity of as the Council of Land Surveyors Scrutineer

and

THE CHAIRMAN, COUNCIL OF LAND SURVEYORS

and

STANLEY MUPEDZA

and

EMMANUEL MATE

and

ROBERT TOMBINDO

and

JABULANI SITHOLE

and

NEEDIE MLAMBO

and

THE SURVEYOR-GENERAL, EDWIN GUVAZA

and

THE MINISTER OF LANDS AND RURAL RESETTLEMENT

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 25 July 2013

Opposed Application

T.J. Muhonde, for the applicant

S. Hashidi, for the 1st, 3rd, 4th, 7th and 8th respondents

M. Chimombe, for the 2nd, 9th and 10th respondents

MATHONSI J:  The applicant issued this application on 1 March 2013 and had it served upon all the respondents on 1 March 2013. The dies inducae expired on 15 March 2013 but the respondents purported to file their notices of opposition on 18 March 2013, 3 days out of time. It is not the period of the infraction which informs my decision in this matter but what the respondents did after that or is it what they did not do.

By letter dated 19 March 2013, the applicant’s legal practitioners informed the respondents that their opposition had been filed out of time. Messrs Chihambakwe, Mutizwa & Partners responded by letter dated 21 March 2013 acknowledging that they had indeed filed the opposition out of time and sought the indulgence of the applicant. By letter dated 25 March 2013, exactly 4 months today, the applicant notified the respondents that he was unable to consent to the upliftment of the bar and advised them to take action to seek the upliftment.

Nothing whatsoever was done for the whole period of 4 months to deal with the bar operating against the respondents. In addition to that the notices of set down for today’s hearing were served several weeks ago. Again when notice of the hearing was given, the  respondents did nothing electing instead to wait for the court date as if they were not barred.

At the hearing of the matter Mr Muhonde for the applicant took a point in limine that all the respondents had no right of audience regard being had to the fact that they filed opposition out of time when they had already been barred. It is only when the point in limine was taken that Messrs Hashidi and Chimombe for the respondents stood up to make the application for the upliftment of the bar in terms of r 84(1) of the High Court Rules.

It is true that r 84(1) allows a party who is barred to appear at the hearing and make an application for the upliftment of the bar but one would expect that such application would be made where the defaulting party is pressed for time by reason of the matter being set down before they have had sufficient time to make a proper application. In this case the respondents had 4 months to do so but did nothing. They cannot expect the court to grant an indulgence.

What the respondents have done is to place their case in the record and sit back expecting the court to read their papers and conclude that they have a good case even when they knew their papers were filed out of time. The upliftment of the bar is not there as a matter of right, it is granted at the discretion of the court after it is satisfied by the reasons given for the delay.

What we now have is counsel virtually leading evidence from the bar and no explanation whatsoever has been given why an approach for the upliftment was not made for 4 months until today. Rules of court are there to be complied with and I cannot exercise my discretion in favour of the respondents when they have shown no respect but only disdain of the rules.

Accordingly, I make the following order, that:-

The application for upliftment of the bar is hereby dismissed.

The declaration by the first respondent in terms of s 10(3) (b) of the Land Surveyors (General) Rules, 1990 (published in Statutory Instrument 96 of 1990) to the effect that the fourth, fifth, sixth and seventh respondents were duly elected as members of the Council of Land Surveyors in terms of the said Land Surveyors (General) Rules be and is hereby declared null and void.

It be and is hereby declared that there was no Scruitineer duly appointed in terms of s 9 of the said Land Surveyors (General) Rules and the delegation of functions, duties and responsibilities of the Scruitineer by the second respondent to his subordinate,  one Ms Kundai in the Attorney General’s Office is hereby declared null and void.

The purported announcement of results of election by the first respondent in the Government Gazette edition of the 8th February 2013 under General Notice 38 of 2013 to the effect that the fourth, fifth, sixth and seventh respondents had been duly elected in terms of s 12 of the said Land Surveyors (General) Rules be and is hereby declared null and void.

Therefore, the election of members of the Council of Land Surveyors purportedly conducted and presided over by the first respondent on the 28th day of January 2013 be and is declared null and void for want of compliance with the mandatory provisions of the Land Surveyors (General) Rules, 1990 (published in Statutory Instrument 96 of 1990).

The fourth, fifth, sixth and seventh respondents shall forthwith cease to be the members of the Council of Land Surveyors and shall accordingly be deemed to have vacated office, which office shall become vacant on the date of this Order respectively.

The first, second, third, and tenth respondents be and are hereby directed to cause the conduct of election of members of the Council of Land Surveyors in compliance with the provisions of PART II of the Land Surveyors (General) Rules, 1990 (Published in Statutory Instrument 96 of 1990) within 30 days of service of this Order upon them respectively.

All the costs for the conduct of a fresh election pursuant to para 6 of this Order shall be borne by the first, second, third and fourth respondents, jointly and severally the one paying the other being absolved.

The first, second, third and fourth respondents be and hereby ordered to pay the applicant’s costs on an ordinary jointly and severally the one paying the other being absolved.

Muhonde Attorneys, applicant’s legal practitioners

Chihambakwe, Mutizwa & Partners, 1st , 3rd , 4th , 5th – 8th respondents’ legal practitioners

Attorney General’s Office Civil Division, 2nd , 9th and 10th respondents’ legal practitioners