Maxwell Matsvimbo Sibanda v (1) Gwynne Ann Stevenson (2) Brian Stevenson (3) Wintertons Legal Practitioners (4) N.M Wilsmer (5) Mrs Chimbinu of Kantor and Immerman (6) Minter Trust (7) The Registrar of Deeds (8) Kantor and Immerman Legal Practitioners

### Preamble
Judgment No. SC 123/20
1
Civil Appeal No. SC 659/18
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DISTRIBUTABLE   (115)

MAXWELL     MATSVIMBO     SIBANDA

v

(1)	    GWYNNE     ANN     STEVENSON     (2)     BRIAN STEVENSON    (3)      WINTERTONS     LEGAL     PRACTITIONERS   (4)     N.M     WILSMER    (5)     MRS     CHIMBINU     OF     KANTOR     AND     IMMERMAN     (6)     MINTER     TRUST      (7)     THE     REGISTRAR     OF     DEEDS      (8)     KANTOR     AND     IMMERMAN     LEGAL     PRACTITIONERS

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, MAKARAU JA & GUVAVA JA

HARARE: MAY 23, 2019 & OCTOBER 5, 2020

Appellant in person

No appearance for the first - seventh respondents

M. Mugandiwa, for the eighth respondent

GUVAVA JA:     This is an appeal against a judgment of the High Court sitting at Harare handed down on 8 August 2018 dismissing an application for joinder of the eighth respondent in a pending matter instituted by the appellant in the High Court.

BACKGROUND FACTS

The brief facts of the matter may be summarised as follows:

The first respondent is the owner of a certain piece of property known as 47 Addington Lane, Ballantyne Park, Harare. First and second respondents are husband and wife.  The appellant and the first and second respondents (‘the respondents’) entered into a lease agreement in April 2005. In terms of the agreement, the respondents leased to the appellant premises known as 47 Addington Lane, Ballantyne Park Harare (‘the property’). It was an agreed term of the contract that the appellant would renovate and make improvements on the property.  In terms of clause 19 of the agreement, the appellant was given the right of first refusal to purchase the property in the event that the respondents decided to sell the property. The lease was subsequently renewed on similar terms.

In about August 2005, the respondents offered to sell the property to the appellant for the sum of US$220 000. It was agreed that the amount was to be converted and paid in Zimbabwe dollars. The appellant accepted the offer. He offered to pay the sum of ZW$1,5 billion. However, the sale did not go through due to a dispute which arose between the parties primarily in respect to the rate of conversion of the amount of US$220 000 to Zimbabwean dollars. As a result, the appellant asked the eighth respondent, who was his former legal practitioners, to register a caveat over the property until their dispute was settled. On 25 April 2007 a caveat was registered with the seventh respondent.

In 2014, the appellant filed an application for an interdict to stop the respondents from selling and transferring the property pending the determination of his claim for the improvements he had effected on the property. The application was dismissed on 25 June 2014. An appeal was subsequently noted by the appellant under SC 376/14.

On 22 February 2016, the appellant went to the office of the seventh respondent and discovered that the caveat had been removed on 25 October 2014. This was after a period of seven years after the eighth respondent had renounced agency and was no longer representing the appellant. The caveat was apparently removed through the instructions of the fifth respondent (‘Mrs Chimbinu’) who worked for the eighth respondent.  On inspecting the records, appellant realised that the property had been sold and transferred to the sixth respondent in 2014.

On 9 March 2018, the appellant filed an application in the High Court against the first to the seventh respondents under case number HC 3203/18. In that application, he sought an order that he be given the right to exercise his right of first option to purchase the property and an order declaring the removal of the caveat and the subsequent transfer of the property to the sixth respondent null and void.

The appellant thereafter filed an application for the joinder of the eighth respondent to the proceedings under HC 3203/18 alleging that the eighth respondent had a direct and substantial interest in the matter. The joinder was also sought on the basis that the eighth respondent had to clarify the fifth respondent’s actions of removing the caveat without having been so instructed by the appellant.

The application was opposed by the eighth respondent. It stated that that they last dealt with the appellant in 2007. It submitted that there was no longer any privity of contract between it and the appellant and was not aware of anything that happened after they renounced agency. It also submitted that the appellant had not been able to establish the eighth respondent’s direct interest in the matter and thus there was no cause of action against the eighth respondent.

The court a quo in dealing with the application determined that the appellant had not alleged any negligence on the part of Mrs Chimbinu in his founding affidavit. The court also found that the appellant had been unsuccessful in stopping the transfer of the property and therefore the first and second respondents were at liberty to deal with their property as they pleased. The court found that the eighth respondent had no interest in the matter and dismissed the application for joinder.

Aggrieved with the court a quo’s findings the appellant noted an appeal to this Court on the following grounds:

1.	“The court a quo misdirected itself by concluding that there is no basis to order a joinder of the eighth respondent in the main matter because the eighth respondent does not have a direct and substantial interest in the matter.

2.	The court a quo erred in finding that there is no prejudice suffered by the appellant as a result of the non-joinder and that the appellant failed to establish direct and substantial interest of eighth respondent.

3.	The court a quo misdirected itself by failing to observe that the joinder of the eighth respondent in the main matter would cure the uncertainty of whether the removal of caveat by fifth Respondent was due to negligence, mistake or fraudulent.”

ISSUES FOR DETERMINATION

It seems to me that only one issue arises from the three grounds of appeal and submissions made by counsel. The issue for determination by this Court is whether or not the court a quo erred in dismissing the application for joinder of the eighth respondent.

PRELIMINARY POINT

At the hearing of the matter it was apparent that the eighth respondent had failed to timeously file its heads of argument and as such was barred from making submissions and presenting arguments. Counsel for the eighth respondent applied for upliftment of the bar operating against it and for condonation of late filing of the heads of argument. In an effort to finalise the appeal the Court postponed the matter to 24 May 2019 to enable the Court and the appellant to have sight of the eighth respondent’s heads of argument.

At the resumed hearing, Mr Mugandiwa for the eighth respondent, explained that the failure to file the heads of argument was not deliberate but arose from the fact that he had erroneously assumed that heads of argument had been filed with the Court. He submitted that the confusion arose as there were a number of cases pending between it and the appellant.  He thus applied for upliftment of the bar and condonation for the late filing of the heads of argument.  The said heads of argument were filed on 23 May 2019. Counsel further submitted that the appeal had no prospects of success and prayed that the application be granted.

The appellant opposed the eighth respondent’s application on the basis that it had been aware of the set down of the appeal and as such ought to have diligently ensured that its heads of argument were filed on time. The appellant prayed that if the eighth respondent’s application was to be granted then it should be met with costs on a higher scale.

It was not in dispute that eighth respondent having failed to file heads of argument timeously, was automatically barred. For the bar operating against the eighth respondent to be uplifted it had to seek condonation for late filing of the heads of argument from the Court.

It is trite that in an application of this nature an applicant must show good and sufficient cause excusing him from non-compliance of the rules by considering cumulatively, the extent of the delay, the explanation for that delay and the strength of the applicant’s case on appeal, or the prospects of its success. See Bonnyview Estates Ltd v Zimbabwe Platinum Mines (Private) Limited & Anor SC 58/18 at p 3).

In casu, counsel for the eighth respondent explained that counsel had erroneously assumed that heads of argument had been filed. It was only when counsel was preparing for the hearing that he realised that heads of argument had not been filed in respect to the matter before the court. He immediately prepared the heads of argument and filed them on the date of the hearing. In our view the explanation given by counsel for the delay in filing the heads of argument was understandable in view of the number of cases before the court relating to the same parties. It was also noted that the delay was not inordinate. In an application for condonation it is incumbent for the court to also examine whether or not the impending appeal has prospects of success. The factors must then be determined cumulatively and the court has a discretion to grant or deny the application.

In respect to prospects of success, Counsel for the eighth respondent submitted that the court a quo could not be faulted for refusing to grant the joinder of the eighth respondent to the proceedings as the appellant had not shown that it had a direct and substantial interest in the matter. Counsel argued that the court a quo properly exercised its discretion in refusing to allow the application and its judgment could not be impugned.

In assessing the application for condonation for late filing of heads of argument it was apparent that the delay was not inordinate as the eighth respondent filed the heads of argument on the day of the hearing.  The explanation for the delay in filing the heads of argument by the eighth respondent though not very convincing was plausible in view of the multiplicity of cases between the same parties. However, the application turned primarily on whether or not the eighth respondent had prima facie prospects of success in the appeal. It was our view that there were prospects of success in opposing the appeal. In light of the prospects of success in opposing the appeal it was proper that the application for condonation for late filing of heads of argument and upliftment of the bar operating against the eighth respondent should be granted.

The appellant had requested that in the event that the application of the eighth respondent was granted it should be met with costs on a higher scale. It is trite that costs on a punitive scale are granted in very exceptional circumstances and only if the Court finds that there has been a deliberate failure to comply with the rules. In this case it was apparent that this was not the position. The counsel for the eighth respondent was negligent but he managed to file the heads of argument on the day of hearing. The appellant was given a whole day to go through them thus no prejudice was suffered by the appellant that would warrant the eighth respondent being punished with costs on a higher scale.

Accordingly, on the preliminary point, it is my view that the application for upliftment of the bar and condonation for the late filing of heads of argument should be granted with no order as to costs.

SUBMISSIONS ON THE MERITS

The appellant submitted that in its opposing affidavit to the application for joinder the eighth respondent conceded that it had been instructed to act on behalf of the appellant before renouncing agency. It was appellant’s argument that it was wrong for the eighth respondent to give instructions for the removal of the caveat placed on the property in dispute after it had renounced agency and was no longer acting on behalf of the appellant.

The appellant further argued that it was of importance that the eighth respondent be joined to the proceedings under HC 3203/18 so that it could explain why it gave instructions for the removal of the caveat. The appellant also argued that such explanation would be necessary to the application interdicting the first and second respondents from disposing of the property.

Counsel for the eighth respondent submitted that it was not necessary for the joinder of the eighth respondent to the interdict application as it did not have any direct or substantial interest in the outcome of the application under HC 3203/18. Counsel further submitted that it could proffer any required explanation concerning the removal of the caveat if it were called as a witness. It was therefore not necessary for it to be a party to the proceedings. In the event that eighth respondent was unwilling to come and give evidence then a subpoena could be issued in order to compel it to attend court.

APPLICATION OF THE LAW TO THE FACTS

Whether or not the court a quo erred in refusing the joinder of the eighth respondent

It is clear that the appellant was obliged to show that the eighth respondent had a real and substantial interest in the application under HC 3203/18 in order for him to succeed in the appeal. In this appeal, the appellant had to show how the court a quo erred by failing to appreciate that the eighth respondent had a direct interest in the outcome of the application.

Joinder of a party to proceedings before the High Court is provided for in the Rules, 1971 (‘the Rules’). Order 13 r 85 of the High Court Rules provides for joinder of a party or parties to pending proceedings as follows:

“85.	Subject to rule 86 two or more persons may be joined together in one action as plaintiffs or defendants whether in convention or in reconvention where__

(a)	if separate actions were brought by or against each of them, as the case may be, some common questions of law or fact would arise in all the actions; and

(b)	all rights to relief claimed in the action, whether they are joint, several or alternative, are in respect of or arise out of the same transaction or series of transactions.”

The scholars Cilliers AC, Loots C and Nel HC Herbstein and van Winsen, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa (5th Ed., Juta & Co. Ltd, Cape Town, 2009) vol. 1 at p 215 state as follows with regards to joinder:

“A third party who has, or may have a direct and substantial interest in any order the court might make in proceedings or if such an order cannot be sustained or carried into effect without prejudicing that party, is a necessary party and should be joined in the proceedings, unless the court is satisfied that such a person has waived the right to be joined… In fact, when such person is a necessary party in the sense that the court will not deal with the issues without a joinder being effected, and no question of discretion or convenience arises.”

Direct and substantial interest is defined as follows at p 217:

“A ‘direct and substantial interest’ has been held to be an ‘interest in the right which is the subject-matter of the litigation and not merely a financial interest which is only an indirect interest in such litigation.’ It is ‘a legal interest in the subject matter of the litigation, excluding an indirect commercial interest only’. The possibility of such an interest is sufficient, and it is not necessary for the court to determine that it in fact exists. For joinder to be essential, the parties to be joined must have a direct and substantial interest not only in the subject-matter of the litigation, but also in the outcome of it.” (emphasis added)

In Makanda and Others v Mosotho and Others [2018] ZAFSHC 7 the court noted the test to be applied by a court in joinder of parties. The court noted the following:

“The test for joinder of parties has been formulated thus by Erasmus-Superior Court Practise Volume 2 at 01-124:

‘The test is whether or not a party has a 'direct and substantial interest' in the subject matter of the action, that is, a legal interest in the subject matter of the litigation which may be affected prejudicially by the judgment of the court.’

On page D1-125 the learned author further goes on to say:

‘The rule is that any person is a necessary party and should be joined if such person has a direct and substantial interest in any order the court might make, or if such an order cannot be sustained or carried into effect without prejudicing that party, the court is satisfied that he has waived his right to be joined’”

In Zimbabwe Teachers Association & Ors v Minister of Education and Culture 1990 (2) ZLR 48 (HC) at p 52 F the court held that:

“It is well settled that, in order to justify its participation in a suit such as the present, a party such as second applicant has to show that it has a direct and substantial interest in the subject-matter and outcome of the application. In regard to the concept of such a “direct and substantial interest,

…

In the case of SA Optometric Association v Frames Distributors (Pty) Ltd t/a Frames Unlimited 1985 (3) SA 100 (O) at 103 I to 104 F LICHTENBERG J said:

‘To justify its participation in a suit or to bring proceedings for relief, a party must show that it has a direct and substantial interest in the right which is the subject-matter of the litigation and in the outcome of the litigation and not merely a financial interest which is only an indirect interest in such litigation...’”

For a party to be joined at the institution of proceedings or to ongoing proceedings a direct and substantial interest in the subject matter must be established.

In casu the appellant was obliged to show that the eighth respondent had a direct interest in the outcome of the application for an interdict in case HC 8303/18.

The court a quo made the following finding at page 4 of its judgment:

“The consequence of a non-joinder of the eighth respondent are not obvious in this case particularly in the absence of an allegation that shows that the fifth respondent was negligent and caused the removal of the caveat in the course of his or her duties ….

Clearly the eighth respondent neither has a direct interest in the matter nor was it shown by the applicant that it has such an interest. There is no basis to order a joinder of the eighth respondent in the main matter”

It is undisputed that the eighth respondent was instructed by the appellant to register a caveat over the property in dispute in 2007. Between October and November 2007 the eighth respondent renounced agency in representing the appellant, thus marking the end of any form of relationship between the two parties.

The appellant based his claim for the joinder of the eighth respondent before the court a quo on the fact that the fifth respondent, who he purported was in the employ of the eighth respondent as a legal practitioner, had removed a caveat on the property in dispute on 25 October 2014 some 7 years after the eighth respondent had renounced its agency. The eighth respondent in its opposing affidavit to the application for joinder counter argued that fifth respondent was unknown to it and as such could not answer to any claims made against such person. The eighth respondent further averred that it once had an employee by the name of ‘Mrs Charity Chimbinu’ who had retired in December 2014.

It is clear that a material dispute exists as to the true identity and involvement (in the matter involving the removal of the caveat) of the fifth respondent as evidenced from the different arguments put forward by the appellant and eighth respondent.  The fifth respondent left the employ of the eighth respondent and as such there could be no basis for the eighth respondent to answer any case on her behalf. The appellant’s claim that the eighth respondent was responsible for any such acts by the said fifth respondent was thus unfounded and unsubstantiated. As no cause of action arose against the eighth respondent in the application for an interdict under HC 3203/18 there could be no basis for its joinder as a party to the proceedings.

In any event the non-joinder of the eighth respondent is not fatal to the outcome of the application under case number HC 3203/18. Should the appellant wish to lead evidence from the eighth respondent on any facts surrounding the removal of the caveat he could call them as a witnesses in his case. It follows that the appellant will not suffer any prejudice in the non-joinder of the eighth respondent. The appellant has failed to show how the eighth respondent has a direct and substantial interest in the matter or its outcome.

In addition, regard should also be had to r 87 (1) of the High Court Rules which provides that:

“No cause or matter shall be defeated by reason of the misjoinder or non-joinder of any party and the court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the person who are parties to the cause or matter.” (emphasis added)

The above provision was applied in Brightlands Farming (Pvt) Ltd v Redan Petroleum and Anor SC 69/17 wherein PATEL JA stated as follows:

“In our view, the non-joinder of Crestlane as a party to the proceedings was not critical to the main issue for consideration before the court a quo. The court erroneously focused on this issue and thereby misdirected itself. In any event, the High Court Rules 1971 specifically provide that no cause of action shall be defeated merely by reason of the non-joinder or misjoinder of a party.”

The application under HC 3203/18 can still be determined by the court seized with the matter with or without the joinder of the eighth respondent. Questions as to how the caveat was removed can be answered by the fifth respondent on whose purported instruction the caveat was removed. The court a quo cannot be faulted for dismissing the appellant’s application for joinder.

DISPOSITION

The appellant has failed to show how the eighth respondent has a direct and substantial interest in the application under HC 3203/18. The appeal is thus devoid of merit and must be dismissed.  Ordinarily costs must follow the cause. However, in this case it was apparent that the appellant was ignorant on the issues of procedure and the eighth respondent did not insist on its costs. In view of the concession made in respect to costs it is appropriate that no order should be made against the appellant.

It is accordingly ordered as follows: -

The appeal be and is hereby dismissed with each party bearing its own costs.

GWAUNZA DCJ			I agree

MAKARAU JA			I agree

Kantor & Immerman, 8th respondent’s legal practitioner