Chamunogwa Moyo v O Danga and M Shoko and T Mapuvire and C Tonongera, NO

### Preamble
1
HMA 43-22
HC 168/20
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CHAMUNOGWA MOYO

versus

O DANGA

and

M SHOKO

and

T MAPUVIRE

and

C TONONGERA, NO

HIGH COURT OF ZIMBABWE

WAMAMBO J

MASVINGO, 18 October 2021 and 13 June 2022

Opposed Application

L Mudisi, for the applicant

T Chivasa, for the 1st respondent

T Midzi, for the 2nd respondent

WAMAMBO J: The applicant has lodged this review application seeking the following order:

“1. The proceedings under Case No. 270/19 at Zvishavane Magistrates Court be and are hereby quashed.

2. The matter be and is hereby referred back to Zvishavane Magistrates Court for a trial de novo before another Magistrate.

3. The first and second respondents to pay costs of suit at an attorney client scale”

The sole ground advanced for the review is couched as follows:-

The fourth respondent’s decision to commence the trial in the absence of the applicant’s legal representative was grossly irregular and illogical to an extent that no court acting on the same facts would have come up with such a decision.  Particularly in that.

(i)   The Court erred by making a decision without considering the facts at hand particularly in that the counsel for first and second respondents had communicated with the applicants’ counsel over the phone to which she explained she could not make it for trial on the day and sought to have the matter postponed to another day.

The applicant entered into a lease agreement with PG Properties for a shop in Zvishavane.   The shop was later sublet between the first, second and third respondents.  Applicant sought an order to evict the first to third respondents before the Magistrate sitting at Zvishavane.

The fourth respondent is cited in her official capacity as the presiding officer in the instant case.  The matter was set down for trial.  On the trial date applicant’s legal practitioners did not turn up.  Evidence was led from the applicant.  The applicant avers that his legal practitioners communicated with the first and second respondents’ legal practitioners requesting the matter to be postponed to a date when she would be available.  The court ordered the trial to commence.  Applicant firmly avers that the trial was commenced in the absence of his legal practitioners by order of the Learned Magistrate.  He claims flowing there-from that he was prejudiced as he gave evidence without tendering discovered documents.  He now seeks an order as aforementioned.

First and second respondents are opposed to the application while third respondent withdrew from the matter.  First respondent raises two points in limine.  He alleges firstly that the application is fatally defective as it runs foul of Rule 227(1)(a) of the Rules of the High Court, 1971.  First respondent avers that applicant’s annexures pages 21 to 41 are prepared back to back instead of being written on one side only as provided by the Rules.  The requirement that documents should be written on one side only is peremptory, so first respondent argues.

Rule 227 1(a) of the High Court Rules 1971 provides as follows:-

“1. Every written application, notice of opposition and supporting and answering affidavit shall-

be legibly written on A4 size paper on one side only and…………”

I find nothing in Rule 227(1)(a) requiring annexures to be written on one side only.  The Rule is clearly speaking to a written application, notice of opposition and supporting and answering affidavit.

I thus find the point in limine unmeritorious and dismiss it.  The other point in limine raised is enmeshed in the merits of the case and can not singularly be considered without dealing with the merits of the case.  On the merits the first to third respondents aver as follows:-

The applicant’s legal practitioners did not request for a postponement of the matter and the record will bear testimony to this assertion.

The trial court did not order the trial to commence in the absence of applicant’s legal practitioners because no application for postponement was made in the first place.  Applicant is the one who indicated that he was ready for trial.

Applicant regrets his decision to commence the trial in the absence of his legal practitioners and now seeks a review of the proceedings to correct his own mistake.  The assertion that applicant did not tender documents during his testimony, was in applicant’s discretion subject to the Rules of Court.

The law allows for a fair hearing and for a litigant to be represented by a lawyer of his choice but the law does not compel a litigant who is comfortable to handle his own case without a lawyer to find one.

In consideration of the submissions by the parties I have revisited the record to closely examine the contents thereof- The main basis of the application is that applicant was denied access to legal representation.  Other issues like applicant failing to tender discovered documents flow from the main basis.

Section 69 of the Constitution of Zimbabwe Amendment (No 20) Act 2013 provides as follows: -

“69 Right to a fair hearing

Every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court.

In the determination of court rights and obligations, every person has a right to a fair, speedy public hearing within a reasonable time before an independent and impartial court tribunal or other forum established by law.

Every person has the right of access to the courts, or to some other tribunal or forum established by law for the resolution of any dispute.

Every person has a right at their own expense to choose and be represented by a legal practitioner before any court tribunal or forum.

I specifically quote the above provision of the Constitution as it is relevant to the resolution of the matter.

The record of proceedings in this case however, is not quite in tandem with applicant’s submissions.  The record does not reflect that applicant’s legal practitioners indicated that the matter should be postponed to a date when she would be available.

The record reflects at p 68 as follows:

On 23 June 2020 the second defendant’s counsel submitted to the Court a quo that they had engaged plaintiff’s counsel.  Further that he had given plaintiff his cellphone to communicate with his legal practitioner.  The further submission appears on record on the same case.

“She said she cannot make it in her text message.  She said she cannot make it even if matter is stood down to 1115 hours.  She said she will take up the matter when she comes.”

The implication in applicant’s counsel taking up the matter when she comes is that she was not requesting for a postponement.  She was implying that she would join the proceedings at a later stage.  It was only the courtesy of first and second respondents counsel that resulted in applicant communicating with his legal practitioner.  It was at first and second respondent’s instigation that information was given to the court regarding applicant’s legal practitioner.

Applicant’s then legal practitioners did not have the courtesy to formally inform the Court of their position.  No legal practitioner was requested to appear on their behalf to appraise the Court of why the legal practitioner had not turned up for trial as per usual courtesy.

Upon respondent’s counsel indicating that he was ready for trial applicant also registered to the Court that he was ready for the trial.  Applicant avers that the Learned Trial Magistrate ordered the commencement of the trial.  This is not borne by the record.  The record reflects that applicant indicated that he was ready for trial.

This indication was made after submissions had been made before the Court by legal practitioners for first and second respondents that applicant’s legal practitioner would not be available.

This was also after applicant had spoken to his legal practitioner over the cellphone.  The irresistible conclusion is that applicant did not only decide to proceed with the trial but that he was cognisant and conscious of his decision in the light of the above

The resultant testimony of applicant wherein he did not produce exhibits is but a result of his own informed decision.  This cannot be visited upon the Learned Magistrate’s conduct in the proceedings.

Section 27 of the High Court Act talks to grounds for review as follows: -

“27 Grounds for review

Subject to this Act and any other law the grounds on which any proceedings or decision may be brought on review before the High Court shall be: -

Absence of jurisdiction on the part of the court, tribunal or authority concerned,

Interest in the cause, bias malice or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned as the case maybe,

Gross irregularity in the proceedings or the decision”

According to the ground for review advanced by applicant, applicant bases his application on s 27 (1)(c).  The gross irregularity alleged is not in tandem with the factual position on the record as already pointed out earlier.

There is nothing on record where it is indicated that applicant’s counsel sought to have the matter postponed to another date.  Applicant himself never made any such submissions before the Court a quo. What was placed on record came from first and second respondents counsel and this was not challenged by applicant.

Further applicant in the context as reflected on record made an informed decision to proceed with the trial anyway.  It is telling that applicant placed some emphasis on the fact that he did not tender any of the discovered documents.  This effectively means that applicant only later realised the implication flowing from his decision to proceed with the trial.

I find that the basis for the application is not borne by the record of proceedings in the court a quo.  It follows that the relief sought has not been justified and stands to be dismissed.

First and second respondent seek costs on a punitive scale.  I find that such costs are justified in this case.  Applicant clearly proceeded with an unmeritorius application.  This despite having been given notice through the respondent’s opposing affidavits of the nature of defects in their application.  Despite this applicant persisted with the application without regard thereto.

I order in the circumstances as follows:

The application be and is dismissed.

Applicant to pay first and second respondent’s costs on a legal practitioner-client scale.

Mutendi, Mudisi and Shumba, applicants’ legal practitioners

Chivasa and Associates, first respondents’ legal practitioners

H Tafa and Associates, second respondents’ legal practitioners