Patricia Hlengiwe Parwada v Climatec Property (Pvt) Ltd

### Preamble
1
HH 588-25
HCH 941/24
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PATRICIA HLENGIWE PARWADA

Versus

CLIMATEC PROPERTY (PVT) LTD

HIGH COURT OF ZIMBABWE

CHILIMBE J

HARARE  24 September 2024, 25 March and 3 October 2025

T.L. Mapuranga for applicant

R. Mabwe with her W. Musikadi for respondent

CHILIMBE J

BACKGROUND

[1] Both sides this dispute raised mutually destructive preliminary points in a bid to non-suit each other. That aside, at the heart of the long-drawn dispute lies a simple matter; - ownership of an immovable property known as number 7 Durland Close, Mt Pleasant, Harare.

[2] Plaintiff (“Climatec”) sought to assert its rights over the property against defendant (“Mrs Parwada”) who claimed to have purchased same from a sister-entity to Climatec. Behind the transaction and dispute in general loomed the prominent personage of the late Mr Christopher Tachipona Kuruneri, a former politician, member of parliament and cabinet minister.

[3] Having started out as an application in the General Division of the High Court under case number HC 5912/20, the matter was converted into a trial action. At the pre-trial conference, Mrs Parwada made an application to amend her plea. Suffice to say, that quest was resisted by Climatec. I detail hereunder the application, opposition and in particular, the points in limine from both ends which I now need to dispose of in this judgment.

THE CASE MANAGEMENT ORDER OF 8 FEBRUARY 2024

[4] On 15 October 2021, my sister CHIRAWU-MUGOMBA J issued an order directing that the motion proceedings before her in HC 5912/20 be concluded as a trial cause in terms of the High Court Rules 2021.Resultantly, the parties progressed the matter leading to a pre-trial conference which I presided over on 8 February 2024.

[5] I noted that whilst Climatec had filed an amended declaration, Mrs Parawada had not responded to it. I sought clarification on whether the draft issues for trial had been drawn up based on the old plea and amended declaration. Mr Mapuranga (for Mrs Parwada) then moved an application from the bar to amend defendant`s plea. After engaging the parties further on the point, I issued, the following case management order by consent; -

The ruling on the parties` application for the trial to be conducted as a physical hearing and not via the virtual platform be and is hereby deferred for hand down with, or after the decision of the special plea.

The matter be postponed provisionally to 26 February 2024 subject to confirmation by the Registrar, and that the postponement is subject to the following directions; -

Defendant to file her application for leave to amend her plea by 12 February 2024,

Plaintiff to file its opposition by 14 February 2024,

Defendant to file her answering affidavit and heads of argument by 20 February 2024,

Plaintiff to file its heads of argument by 23 February 2024

Costs in the cause.

THE APPLICATION TO AMEND PLEADINGS

[6] Mrs Parwada filed a chamber for amendment of her plea, not on 12 February 2024 as directed, but 2 days later on 14 February 2024. The chamber application was, according to its heading, founding affidavit and subsequent written and oral arguments, filed in terms of r 7 (1) as read with r 41 (10) of the High Court Rules. These 2 rules deal respectively with the court`s departure from its rules and amendment of pleadings

[7] The material object of the chamber application was the amendment of the plea in order to introduce the defence of prescription. The delay in filing the application in compliance with paragraph 2 (a) of the order of 8 February 2025 as well as the rules under which the application was filed generated the first two points in limine from Climatec in its opposing affidavit.

[8] Mrs Parwada in turn, challenged the validity of the deponent to the opposing affidavit Ms Paidamoyo Patience Kuruneri` s authority. She nonetheless, indicated that a valid resolution of the board of directors of Climatec authorising Ms Kuruneri to act of the company`s behalf together with a current list of the said directors in the answering affidavit, heads or argument or any time before the hearing.

[9] This offer was not taken up and point was argued on 13 March 2024. Given the potentially dispositive nature of the issue, I deferred my ruling on the point and allowed Climatec, on 4 July 2024, another opportunity to file the authority concerned. A resolution was indeed filed by Climatec on 10 July 2024 but Mrs Parwada remained unpersuaded. I invited further argument given this subsequent development.

[10] On 24 September 2024 I received submissions on the point from Messrs Mapuranga and Mubaiwa, then appearing for Climatec. Based on the issues raised in argument and the need to resolve the matter to finality, I directed that the parties argue the rest of the points in limine. I received argument in that regard, on 6 March 2025 with Ms Mabwe now acting for Climatec. She then drew attention to the following perceived defects in Mrs Parwada`s papers; -

That the application for amendment of plea was filed out of time.

That the application was not served in terms of the rules.

That it failed to provide respondent with its procedural rights.

That it had not been filed in terms of rule 41 (10) of the High Court Rules SI 202/21 (“the High Court Rules”).

That the application was not preceded nor concomitant with a prayer for condonation.

THE POINTS IN LIMINE

[11] As stated at the beginning, the parties vied to obstruct each other`s access to the court`s ear. Taken to their illogical effect, the parties` points in limine effectively sought to tie the court down into dysfunctionality. One argued that there was no application before the court. As such any attacks against the opposition had to be disregarded. The other contended that there being no valid opposition, any challenge against the application could not be properly considered.

[12] In seeking to quell these adjectival paroxysims, I commence with the observation that a challenge has been mounted against the application. I must thus hear the objector first in order to establish if there is indeed a matter properly before the court. The fact that the objector may in fact be an imposter with no right of audience is a matter to be addressed once the initial question is resolved. In any event, counsel were aligned on this approach.

[13] After all, the rules of natural justice favour pragmatism over perfection because the latter may well impede the noble quest. (see S J W [in his capacity as legal guardian of minor child R S W] & Anor v Louise Morrisby & 4 Ors HH 674-22. Further, the preliminary issues raised essentially deal with whether or not there was compliance with the rules of court.

[14] In that regard, the matters raised by each side are issues which the court could very well have raised mero motu. In the same vein, the compliance issues were associated with case management directives meant to progress the said dispute to closure. Speedy resolution of disputes is a constitutional imperative and part of the pillars to the right to a fair hearing in terms of s 69(2) of the Constitution.

[15] Additionally, the court remains alive to the guidance in s 176 of the Constitution as variously articulated by numerous decisions of the Superior Courts. Namely that, and again without straying from the principle in decisions such as Gwaradzimba N.O. v CJ Petron & Co. (Pty) Ltd. 2016 (1) ZLR 28 (S); PG Industries (Zimbabwe) Ltd v Bvekerwa & Ors 2016 (2) ZLR 14 (S), and Nzara & Ors v Kashumba & Ors 2018 (1) ZLR 194 (S), this is a matter of a court about its own processes for the speedy disposal of disputes before it. I now turn to the points in limine; -

That the application for amendment of plea was filed out of time. And

That the application was not preceded nor concomitant with a prayer for condonation.

[16] I will address both point concomitantly because they are predicated on the same aspect. Firstly, Ms Mabwe argued that Mrs Parwada clearly breached the case management order of 8 February 2024. She filed her application, two days after the prescribed 12 February 2024. There was nothing on the papers to explain the default-especially, an affidavit from the legal practitioner who handled the matter.

[17] What aggravated the matter, according to counsel, was the failure of applicant to seek condonation for her non-compliance and absence of a prayer for condonation. In that regard, the court was precluded, submitted counsel, in the absence of such application, from indulging Mrs Parwada`s non-compliance. Ms Mabwe referred to the oft-cited passage from Forestry Commission v Moyo 1997 (1) ZLR 254 (S) where GUBBAY CJ held at page 260 that; -

“I entertain no doubt that, absent an application, it was erroneous of the learned judge to condone what was, on the face of it, a grave non-compliance with r 259. For it is the making of the application that triggers the discretion to extend the time. In Matsambire v Gweru City Council S-183-95 (not reported) this court held that where proceedings by way of review were not instituted within the specified eight-week period and condonation of the breach of r 259 was not sought, the matter was not properly before the court. I can conceive of no reason to depart from that ruling. One only has to have regard to the broad factors which a court should take into account in deciding whether to condone such a non-compliance, to appreciate the necessity for a substantive application to be made.”

[18] In response, Mr Mapuranga referred to the opposing affidavit wherein the failure to adhere to the court order was attributed to challenges encountered in uploading the papers on 12 February 2024.Further, counsel argued that there was no need to file an additional affidavit by the legal practitioner as pointed out in Paul Gary Friendship v Cargo Carriers Ltd & Anor 2013 (1) ZLR 31 because there was no derelict and Mrs Parwada herself placed the relevant facts before the court.

[19] I am inclined to agree with Mr Mapuranga. There was no need for an affidavit from a legal practitioner. Mrs Parwada attached to her affidavit a notification sent to her, from the IECMS platform to the following effect; -

“On: 12 Feb 2024 17:23

Hello,

This is to notify you that you have successfully submitted your Court Application in Case HCH5912/20 to the High Court Harare. Your submission is now waiting for compliance check. Please note that compliance check is done during registry hours.

Regards

IECMS Support Team”

[20] The issue under contest was whether or not the application had been filed on 12 February 2024.Such matters, with the advent of the IECMS facility ought not detain the court. The system must speak for itself. After all, this automated case management platform was established in order to, among other benefits, eliminate the yesteryear pains from the administrative justice system.

[21] Including the considerable agonising associated with questions regarding when, how or even why a pleading was filed, lodged or submitted to the registry. The system herein confirmed that there was no derelict and thus no need for condonation. See also Daily Dose Investments (Pvt) Ltd v Pritchards Trading (Pvt) Ltd HH 341-25.

[22] On the same point, I draw attention to the 2023 amendments to the High Court Rules which introduced, relevant to this discourse, the following definitions in r 2 thereof, in addition to the other provisions; -

“date of filing” means the date on which any pleading envisaged by these rules is lodged with the Registrar;

“filing” means electronic filing or physical filing;

Rule 15 (7) (7) In addition to the methods of service provided for in these rules, service may be effected electronically by way of e-mail, web-portal or other electronic means designated by the Chief Justice in a Practice Direction, in which case…...

Rule 15 (16) (16) Any process, other than process referred to in sub rule (12) may be served by registered post or by electronic mail in accordance with this rule;

I will in that regard, disallow preliminary points (i) and (v) . Now to the next objection (ii) relating to the alleged failure to serve the application in terms of the rules.

That the application was not served in terms of the rules.

[23] Ms Kuruneri raised the rather alarming averment that the application was served via a social media platform known as WhatsApp. Mobile telephone screenshots to that effect were attached to her answering affidavit. Service is provided in terms of subrules (7) and (8) of r 15 of the High Court Rules which provide thus; -

(7) In addition to the methods of service provided for in these rules, service may be effected electronically by way of e-mail, web-portal or other electronic means designated by the Chief Justice in a Practice Direction, in which case—

(a) proof of such electronic service shall be simultaneously copied to the Registrar;

(b) a sent status report shall be deemed to be prima facie proof of electronic service. Service of process shall be effected as near as possible between the hours of 0700 and 2100 on any day which is not a Sunday except for process for the arrest of any person and process served by post, telegraph, facsimile, email, or courier which shall be validly served at any time.

(8) Except as otherwise provided for in these rules, proof of service of any document required to be filed shall be lodged with the Registrar in all cases not more than forty-eight hours after such service.

[24] In her answering affidavit, Mrs Parwada attached a series of email communications between the parties` respective legal practitioners being Messrs Moses Mtombeni, Wellington Musikadi, and Advocate Mapuranga. The net effect of these emails is that service was indeed effected in terms of the rules. I need not advert to all of them but one addressed by Mr Musikadi to Mr Mtombeni on 14 February 2024 at 17:01 stated as follows; -

“Dear Sir;

We acknowledge receipt of the application for leave to amend the plea. We also confirm receipt of the copy of the application that you sent us on the WhatsApp platform.

Kind regards;

Wellington Musikadi, Associate”

The objection (ii) in that regard, cannot be sustained and is dismissed.

(iii) That it failed to provide respondent with its procedural rights

[25] Thirdly, Ms Mabwe attacked the application for its failure to provide for respondent`s procedural rights.  The application`s notice was not amended to align its provisions with the case management order of 8 February 2024. The said notice proceeded to replicate the standard plethora of procedural rights which were wholly inapplicable. Including prescribing a 10-day period within which to respond.

[26] This approach was fatal, argued Ms Mabwe, citing the Supreme Court decision of Cape Valley v Chiduku SC 51-23. Therein, it was held that over-providing dies injudiciae contrary to those set in the rules rendered an application incurably defective.  Mr Mapuranga`s response in resisting this point is best extracted from paragraph 2.4 of his written submissions which stated that; -

“…The Respondent misinterprets the case management order by his Lordship Chilimbe J while it gave timelines for filing of process it did not abrogate timelines. If the Respondent had filed an opposition outside the given dates but within ten days of receipt of the application, it would be within the dies induciae but in violation of the Court Order. The opposition would be valid, and it may be related to even though it would have caused inconvenience to the Court and the Applicant.”

[27] The above excerpt reflects counsel`s understanding of a case management order which had set a series of procedural blitzes between 12 February and 16 February in order to have the matter set down and argued. Clearly, the understanding and therefore argument are both inconsistent with the case management order. The matter had been taken outside the strictures of the rules. Special provisions had been created to facilitate its disposal.

[28] But Mr Mapuranga`s error will not quite profit Ms Mabwe on the point. Because firstly, Cape Valley v Chiduku is distinguishable from the circumstances obtaining in the matter before the court. Principally in that Cape Valley was concerned with adherence to the rules of court but herein, the case management order substantially adjusted the strict provisions in the rules and fixed short timelines.

[29] Secondly, the case management order, issued under the hand of the court with the wisdom of both counsel omitted to stipulate (for completeness) that the provisions in the rules regarding notice periods had been dispensed with. Thirdly, and in any event, the effect if any of the breach was negligible. I am reminded of the remarks by CLOETE J in Uitenhage Municipality v Uys 1974 (3) SA 800 (E) at page 505 D-F who stated thus in pardoning an inconsequential infraction; -

“The principle has repeatedly been laid down in our Courts that the Court is entitled to overlook, in proper cases, any irregularity in procedure which does not work any substantial prejudice to the other side. (See The Civil Practice of the Superior Courts in South Africa, 2nd ed., by Herbstein and Van E Winsen, at p. 356 and the authorities there cited). In Trans-African Insurance Co., Ltd. v Maluleka, 1956 (2) SA 273 (AD) at p. 278, SCHREINER, J.A., says:

"... technical objections to less than perfect procedural steps should not be permitted, in the absence of prejudice, to interfere with the expeditious and, if possible, inexpensive decision of cases on their real merits".

The case before me appears to be eminently one where I should not in the light of this principle uphold the objection to the receiving of the applicant's replying affidavits. The objection is therefore dismissed.”

The third point in limine will thus be dismissed.

That it had not been filed in terms of rule 41 (10) of the High Court Rules SI 202/21 (“the High Court Rules”).

[30] Ms Mabwe contended quite emphatically too, that the application was fatally flawed because it was brought in terms of the wrong rules. In the first instance, Mrs Parwada -quite incorrectly- sought to invoke a generic rule -r7 (1) of the High Court Rules to found a cause of action. Additionally, she had purported to act in terms of r 41 (10) rather than r 41 (1) to (4) as applicable, of the High Court Rules.

[31] Finally, counsel submitted that Mrs Parwada could not escape- via the convenience of an application to amend pleadings- the time limits set by r 42 of the High Court Rules on the filing of a special plea. She had sought to file such special plea more than 27 months “out of time”. In response, Mr Mapuranga cited a number of leading authorities, and submitted further that it was an established position that a defendant could, with the court`s sanction, still file a special plea outside the period stipulated in the rules. Mrs Parwada had therefore correctly moved to persuade the court to grant her such leave.

THE LAW: FILING OF SPECIAL PLEAS AFTER EXPIRY OF PERIOD SET IN THE RULES

[32] The arguments and indeed the application in my view, conflated two types of procedure. Number one, -the filing of a special plea after the period set out in the rules had elapsed. Number two-the filing of an amendment to pleadings. I commence with r 42 (1) (a) of the High Court Rules which provides that; -

42. Exceptions, special pleas, applications to strike out and applications for particulars

(1) As an alternative to pleading to the merits, a party may within the period allowed for filing any subsequent pleading—

(a) take a plea in bar or in abatement where the matter is one of substance which does not involve going into the merits of the case and which, if allowed, will dispose of the case;

[33] In Sammy’s Group (Pvt) Ltd v Meyburgh NO & Ors SC 45-15, the Supreme Court held as follows [ at 22] when disposing of a question on whether or not a special plea could be filed outside the period fixed in the then relevant rule 119 of the old 1971 rules; -

“It is true, as the learned Judge remarked, that there is no sanction for the late filing of an exception or special plea.  However, the provision in the Rules is mandatory and the documents filed in contravention thereof cannot, in the absence of condonation of the non-compliance with the Rules, have any legal validity. The sanction must, in my view be, that the pleading is invalid by virtue of its non-compliance with the Rules. First respondent’s exception was filed 15 days out of time.  Second respondent’s special plea and exception were filed 6 and a half months out of time.  Both applications were in violation of the Rules without explanation, without condonation, sought or granted.   There was, therefore, no legal basis on which they were entertained by the court a quo.” [ underlined for emphasis]

As such, an applicant intending to file a special plea “27 months” after expiry of the period prescribed in r 42 (1) would-per the authorities discussed below-not be availed such prayer upon mere request.

THE LAW: AMENDMENT OF PLEADINGS

[34] As a general precept, the courts will favourably accommodate a party seeking an amendment to its pleadings. The reason being the expectation in the law that amending pleadings created an opportunity to assist the resolution of the dispute by further accentuating the elements of the controversy.

[35] A wealth of authorities exists on this point. Mr Mapuranga cited Horne v Hine (1) 1947 SR 123; 1947(4) SA 757 (SR). Other authorities include Whittaker v Ross & Anor 1911 TPD 1092, McDuff & Co (in liquidation) v Johannesburg Consolidated Investments Co Ltd 1923 TPD 309, Chikadaya v Chikadaya & Anor 2001 (1) ZLR 421 (S) and Moolman v Estate Moolman 1927 CPD 27, where WATERMEYER J held as follows at 29; -

“…. the practical rule adopted seems to be that amendments will always be allowed unless the application to amend is mala fides or unless such amendment would cause an injustice to the other side which cannot be compensated by costs, or in other words unless the parties cannot be put back for the purposes of justice the same position as they were when the pleading which it is sought to amend was filed.”

[36] With this guidance in mind, I set out in part, the procedure for amendment of pleadings per r 41 of the High Court Rules below; -

41. Amendment of pleadings and matters arising pending action

(1) Any party wishing to amend a pleading or document other than a sworn statement, filed in connection with any proceedings shall, notify all other parties of his or her intention to amend and shall furnish particulars of the amendment.

(2) The notice referred to in sub rule (1) shall state that unless written objection to the proposed amendment is filed and delivered within ten days of delivery of the notice, the amendment will be effected.

(3) An objection to a proposed amendment shall state clearly and concisely the grounds upon which the objection is based.

(4) If an objection which complies with sub rule (3) is filed within the period set out in sub rule (2), the party desiring to amend may, within ten days, lodge an application for leave to amend.

(5) …….

(6) …….

(7) …….

(8) ……

(9) …….

(10) The court or a judge may, notwithstanding anything to the contrary in this rule, at any stage of the proceedings before judgment, allow either party to alter or amend any pleading or document, in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.

APPLICATION OF THE LAW TO THE FACTS.

[37] It must be noted that at the pre-trial conference, the parties agreed to a truncated process to progress the exercise by Mrs Parwada of her rights in terms of rr 41 and 42. The case management order obviated the steps in subrules (1) to (3) of the High Court Rules.

[38] On that basis I would, to an extent, agree with Mr Mapuranga that it was no longer necessary for Mrs Parwada to observe the steps in subrules (1) to (3). The crux of the matter however, is whether the procedure subsequently adopted by Mrs Parwada aligns with the procedure set out in the rules and as enunciated by the authorities. Paragraph 1.5 of the heads of argument filed on behalf of Mrs Parwada summarises the procedure adopted; -

“The application filed by the Applicant was in terms of Rule 7(a) as read with Rule 41(10) of the High Court Rules wherein the Applicant seeks to file a plea to the amended declaration. The plea introduces two special pleas – prescription and locus standi as well as deals with the averments of the amended declaration on the merits.”

[39] Clearly, the application was an adroit attempt to sidestep the principle in Sammy`s Group; - namely, to apply for condonation for failure to file the special plea within the period set out in r 41 (1) of the High Court Rules. I find it apt to refer, at this stage, to the observations by BHUNU JA in Yunus Ahmed v Docking Station Safaris Private t/a CC Sales SC 70-18 [ at pp 2-3] where Learned Judge of Appeal noted that; -

“On the face of the application it is indicated that the application is for condonation and extension of time in terms of r 31 of the Rules of the Supreme Court, 1964. The contents of the founding affidavit tell a different story. The application is said to be an application for condonation and reinstatement of appeal arising from the fact that the applicant did not serve the notice of appeal on the Registrar of the High Court. The applicant seems to be confused as to the nature of the application that he is supposed to bring before this Court.

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 and Investment Bank Ltd & Ors SC 80-06). In cases where the headings on the cover of an application tell one thing and the contents of the founding affidavits tell another; the nature of the application that is before the court is determined by the contents of the founding affidavit and not the headings on the cover of the application. This was aptly captured by GOWORA JA in Zimbabwe Posts (Pvt) Ltd v Communication & Allied Services Union SC 20/16 as followings……”

[40] The issue therefore was not so much a matter of the want of a procedure to follow. It was about the nature of the application to mount. Before me now is an application whose head differs from its body. That head proclaims an application for leave to amend pleadings. The body substantially incorporates an application to file a special plea.

[41] The former yields materially to the latter which in turn, was not framed in the recognised (and recommended) format of applications for condonation. It does not-in manner and to the requisite standard - set out the nature of the default, explanation thereof, aspects of delay and a prayer for clemency. I was referred to established authorities on this point by Ms Mabwe, including Al Shams Global BVI (Pvt) Ltd v Registrar of Deeds & Anor HH-573-22 and Equity Properties (Pvt) Ltd v Global BVI Ltd HH-801-22.

DISPOSITION

[42] This attempt to subsume one procedure into another was fatal to the applicant`s cause. Again to reiterate that condonation carries specific requirements which a party must fulfil. Because such cannot be granted for the mere asking. Similarly, a court- whilst leaning toward indulgence- will not extend the benefit to amend pleadings without query.

[43] Additionally, the material contention which Mrs Parwada sought to introduce to the dispute was a special plea which could be dispositive of Climatec`s claim. Such procedures carries its own requirements.  The applicant was obliged to pursue her remedies in a manner consistent with the requirements of such relief. She did not do so and I will thus allow point in limine (iv).

[44] This finding disposes of the matter and obviates an inquiry and ruling into the applicant`s own objection regarding authority to institute proceedings. As for costs, the respondent Climatec has prevailed although the bulk of its objections were dismissed.  As such Climatec is entitled to its costs. But not at the punitive scale requested in the written submissions. Such were not justifiable based on the trite position of our law regarding the award of costs on a higher scale.

It is hereby ordered that; -

The preliminary objections (i), (ii), (iii) and (v) moved by the respondent be and are hereby dismissed.

The preliminary objection (v) moved by the respondent regarding the procedure adopted in filing this application be and is hereby upheld.

The application be and is hereby struck off as being invalidly before the court.

The applicant bears the costs of suit on an ordinary scale.

Mtombeni, Mkwesha and Muzavazi- applicant`s legal practitioners

Chimuka Mafunga Commercial Attorneys-respondent`s legal practitioners

[CHILIMBE J____3/10/25]