Watermount Estates (Private) Limited & Another v Christopher Wesley Tande & Others

### Preamble
Judgment No. SC 125/22
1
Chamber Application No. SC 450A/21
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DISTRIBUTABLE (110)

(1)     WATERMOUNT      ESTATES      (PRIVATE)     LIMITED

(2)    ONIAS     ZIDANDA     GUMBO

v

(1)    CHRISTOPHER     WESLEY     TAKURA     TANDE

(2)     TBIC     INVESTMENTS     (PRIVATE)     LIMITED

(3)     EQUITY     PROPERTIES     (PRIVATE)     LIMITED

(4)     ORION     PROPERTIES     (PRIVATE)     LIMITED

SUPREME COURT OF ZIMBABWE

HARARE 24 FEBRUARY 2022 & 18 NOVEMBER 2022

T. Mpofu with F Mahere, for the first and second applicants

K Gama, for the first and third respondents

T. Magwaliba, for the second respondent

A. Taruvinga, for the citation.

No appearance for the fourth respondent

CHAMBER APPLICATION

BHUNU JA:

INTRODUCTION

[1] 	This is an application for condonation of non-compliance with Rule 70 (2) coupled with an application for extension of time within which to apply for reinstatement of the appeal.

[2]	The appellants are seeking the following relief:

“1. The application for condonation for non- compliance with rule 70(2) of the Supreme Court Rules be and is hereby granted;

2.	The application for extension of time within which to file and serve the application for reinstatement of the appeal in terms of 	rule 70 (2) be and is hereby granted;

3. The appeal in SC 543/2020 be and is hereby reinstated.

4. The applicants are given 10 working days from the production of this order to agree the respondents’ security for costs and in the event that such agreement is not reached to approach the Registrar of this Honourable Court to fix the respondent’s security 	for costs.

5. The costs of this application shall be borne by the Applicants if the application is not opposed.”

BRIEF SUMMARY OF THE CASE

[3] 	The first applicant is a company duly registered in terms of the laws of Zimbabwe.  It is the registered owner of certain pieces of immovable properties commonly known as Craig of Craig Estate measuring 600, 9072 hectares and Lot 1 of East Anglia of the Craig of Craig measuring 13, 6998 hectares in extent.  It holds the two pieces of land under Title Deed No. 8745/98.

[4] 	The applicants are embroiled in a vicious dispute with the first to third respondents over ownership of the said properties.  The dispute has since spilled into the courts.

[5]	The second applicant claims to be the director and shareholder of the first applicant.  He claims to have bought Mr Michael James Reimer’s entire shareholding in the company for $13,000,000-00 on 29 July 2020. In apparent proof thereof he tendered a copy of a CR 14 allegedly lodged with the Companies Registrar on 7 September 1998 which he backed up with an annual return filed on 2 June 1990.  He further tendered a CR 14 filed on 3 April 2014 showing the addition of Mr Kwaziso Bosha as a director following the retirement of Mr Tendai Mandimutsira.

[6] 	He averred that the first respondent acting in collusion with certain unnamed persons fraudulently altered company records at the Companies’ Registry and stripped him of his directorship and shareholding of the company in the process.

[7]   The second to third respondents denied any wrong doing. They countered that the second applicant had in fact resigned from the company on 30 November 2004.  He was therefore no longer a director of the company.  They asserted that on 22 March 2006 Mr Bosha filed a CR 14 advising the Registrar of Companies of the second applicant’s resignation as a director of the company. Thus the central bone of contention is the control and beneficial ownership of the first applicant.

[8]	Arising from that dispute the parties engaged in numerous litigations both in the court a quo and in this Court. Sometime in September 2020 the applicants approached the court a quo with an application for an interdict to preserve the status quo ante of the above properties pending the resolution of the dispute by the courts.  The application found no favour with CHINAMHORA J under judgment number HH 785/20.  The learned judge struck the application off the roll on a technicality holding that the applicants had no locus standi, that is to say the right to stand and be heard in a court of law with regard to the application.

[9]	Aggrieved, the applicants noted an appeal to this Court under case number SC 543/2020. The Registrar however subsequently deemed the appeal abandoned and consequently dismissed it for want of compliance with r 55(5) of the Court Rules thus prompting this application.

THE CITATION

[10]	During the course of the hearing Mr Mpofu counsel for the applicants, made serious allegations of improper unethical conduct against Mr Anold Taruvinga a legal practitioner instructed by a rival board of directors.  Mr Mpofu launched a scathing attack on Mr Taruvinga accusing him of improperly withdrawing an application filed by his instructing legal practitioners Gill, Godlonton and Gerrans in this Court under case number SC 144/21.  He sought censure of Mr Taruvinga by the Court alleging contempt of court and undue subversion of court process.  To that end he made a verbal application for the citation of Mr Taruvinga to answer for his alleged gross unethical conduct.  He sought punitive costs de bonis propriis against him.

[11]	Mr Mpofu did not cite the rule of law under which the citation was sought.  Mindful of the inherent obligation of the Court to protect its own process and integrity at all material times, coupled with the need to accord Mr Taruvinga a chance to be heard on the serious allegations levelled against him, I granted the application but asked Mr Mpofu to draft the citation that he had initiated.

[12]	At the hearing of the citation Mr Taruvinga explained that on 9 June 2021 he was instructed in writing by a company called Watermount Estates (Private) Limited (the 1st Applicant) to assume agency on its behalf in several High Court and Supreme Court cases.  His instructions included withdrawing the application filed by Gill, Godlonton and Gerrans under case number SC 144/21 and SC 450/21. He produced a board resolution dated 8 June 2021 from his principal showing that it had terminated Gill, Godlonton & Gerrans’ mandate to represent it.

[13]   Having listened to Mr Taruvinga with no meaningful counter arguments from his accuser Mr Mpofu, I was convinced that his conduct was forthright and beyond reproach.  At all material times he properly acted within his mandate as a legal practitioner.  The right to represent Watermount, that is to say, the first applicant in legal proceedings is under contest and yet to be determined by the courts. Thus neither party has the exclusive right to represent it until the courts have finally determined the issue.  It was therefore remiss and presumptuous of Mr Mpofu to assume that he had the exclusive right to represent the first applicant.  The best he could do was to find lawful ways of reversing the withdrawals effected by Mr Taruvinga at the instance of his client rather than cast aspersions on an innocent fellow legal practitioner who was only discharging his mandate in terms of his client’s instructions.  Having come to that conclusion, I find that the citation was ill-conceived and baseless.  Mr Taruvinga was however magnanimous in not asking for costs.  The citation is accordingly dismissed with no order as to costs.  I now turn to consider the application on the merits.

REASONS FOR DELAY

[14]   The judgment the applicants intend to appeal against was handed down on 4 December 2020 under judgment No. HH 785/20.  The applicants noted their appeal against the judgment timeously on 9 December 2020.  On 12 May 2020 the Registrar wrote to the applicants’ legal practitioners advising them that the appeal was deemed abandoned for want of compliance with r 55(5).  The letter reads:

“RE: WATERMOUNT ESTATES (PVT) LTD & ANOTHER VS TANDE & OTHERS

Reference is made to the Notice of appeal you filed on the 9th of December 2020.

It is noted that you did not comply with Rule 55 (5) of the Supreme Court Rules (2018) with regards to payment of security costs.

In terms of sub-rule (6) of Rule 55 of the aforementioned Rule, the appeal is regarded as abandoned and is hereby dismissed.”

[15]	Counsel for the applicants took issue and challenged the Registrar’s interpretation of the Rule. He thus proceeded in terms of r 13 (1) of 	the Supreme Court Rules, 2018 seeking the setting aside of the Registrar’s order.  The application found no favour with MATHONSI JA. His Lordship dismissed the application clarifying the law in the process under judgment SC 130/2021.  At p 7 of his judgment the learned judge a quo remarked that both parties made strong submissions on the two polarised interpretations of the rules. He appreciated that the challenge gave the court a quo an opportunity to clarify the law for the public good.  Thus at p 14 of the judgment he had this to say:

“Regarding the question of costs, I am of the view that this is one case where each party should bear is own costs. I say so because the applicants were entitled to rely on the judgment in MDC & Ors, supra, which took a different view of the procedure. There has so far been no pronouncement to the contrary following the introduction of both Practice Direction 1 of 2013 and the 2018 Rules. Bringing this application has assisted in affording this Court the opportunity to clarify what was obviously a grey area.” (the italics are for emphasis).

[16]	Considering that the modest delay in complying with the rules was a direct consequence of the noble cause to clarify the law, it can hardly be said that the delay was wilful or deliberate.  I accordingly find that the reason for delay proffered by the applicants is eminently reasonable and to that extent excusable.

ANALYSIS AND DETERMINATION

[17]	As previously stated, the applicants approached the court a quo on an urgent basis seeking an interdict pendente lite under case number HC-4946/20.  They sought to preserve the properties in dispute until the final determination of the parties’ competing proprietary rights under case number HC 8497/18.

URGENCY

[18]	The respondents unsuccessfully argued that the matter was 	not urgent. The learned judge a quo was not however clear and unequivocal in his articulation on the question of urgency. He simply remarked at p 8 of his judgment that:

“If the facts are examined, they point to failure to act when the need to act arose. I would have resolved the upheld of this matter (sic) by upholding this point, but have elected to examine the other points in limine in case my view is not correct.”

[19]    Having said that, the learned judge a quo proceeded to determine the next point in limine. I interpret the 	phrase, “I would have upheld” to mean that he did not uphold the objection against urgency. He simply had an inclination to uphold the objection but he did not uphold it for the reasons given.

[20]	The validity or otherwise of the reason given for not upholding the objection to urgency is neither here nor there. The bottom line is that the learned judge did not uphold the objection although he was inclined to do so.  He did not uphold the objection for fear that he could be wrong in upholding the objection. Considering that there was no dispute that the respondents had commenced construction works on the disputed land in the face of unterminated court proceedings regarding ownership of the disputed properties, the learned judge’s fear of getting it wrong on the issue of urgency was well grounded.

LOCUS STANDI

[21]	The respondents successfully opposed the application raising a point in limine arguing that the applicants had no locus standi.  Consequently the court a quo struck the matter off the roll with costs on account that the applicants had no locus standi.

[22]    In striking the matter off the roll the court a quo found that the second applicant had dishonestly withheld from the court vital information to the effect that he had signed an agreement confessing:

“1.  That Mr Onias Gumbo (the 2nd applicant), either directly or indirectly, has never been a shareholder in Time Bank of Zimbabwe Limited or in companies that own shares in Time bank of Zimbabwe Limited, and

2.   That Onias Gumbo (the 2nd applicant) either personally  or on behalf of any company shall not have a claim on, inter alia, Watermount Estates (Private) Limited, TBIC Investments (Private) Limited, Time Bank Holding Company (Private) or Time Bank of Zimbabwe Limited, in respect of transactions or shares or properties purchased or sold before the date of this agreement.”

[23]	In consequence thereof, the learned judge a quo found that the second applicant had unequivocally acknowledged that he has never been a shareholder in Time Bank of Zimbabwe.  He further found that the second applicant had accepted that he has no claim in the first applicant and the other entities mentioned in the undisclosed agreements.

[24]	Placing reliance on the presumption of validity of official documents until proven otherwise, the learned judge a quo found that the CR14 filed of record excluding the second applicant from directorship of the first applicant militated against his claim that he is a director and sole shareholder of first applicant.  To that end he relied on the dictum in Haixt v Wenzou Enterprises (Pvt) Ltd  HH 613 – 13 and Manhundu v Mushore & Ors HH – 80 – 11.

[25]	Riding on the back of those findings of fact the learned judge a quo concluded that the second applicant has no locus standi.  That conclusion of fact is difficult to fault considering that in case number HC 8497/18 the second applicant issued summons in a bid to regain his status as a director and sole shareholder of the first applicant.  Common sense dictates that the first applicant is not a shareholder or director of the first applicant until such time he has won his case under HC 8497/18.  The second applicant’s claim for restoration of his status as director and sole shareholder in fact amounts to a tacit admission that he is currently not a director and shareholder of the first applicant.  That being the case, at present he has no capacity to represent the first applicant or himself on matters pertaining to the first applicant’s company, that is to say, Watermount (Private) Limited.

[26]	His woes were compounded by his failure to disclose material facts which were damning to his case. The learned judge a quo’s placement of reliance on the dictum in Leader Tread Zimbabwe (Pvt) Ltd v Smith HH – 131- 03 is meritorious.  In that case NDOU J had this to say:

“It is trite that if a litigant has given false evidence his story will be discarded. And the same adverse inferences may be drawn as if he has not given any evidence at all.”

[27]	The court a quo having properly rejected the second applicant’s evidence, he was left with no leg to stand on. In fact he was left with no evidence at all to back up his claim to locus standi.  The finding that he had no locus standi was therefore inevitable.  That ruling does not however determine the merits of the main case.  It simply means that he has no locus standi until such time as he has it restored under case number HC 8497/18.  As things stand he cannot have locus standi in circumstances where he is struggling to have it restored in a court of law.

[28]	For the foregoing reasons I find that the applicants have no reasonable prospects of success on appeal.  It is accordingly ordered that the application be and is hereby dismissed with costs.

Gill Godlonton & Gerrans, applicants’ legal practitioners

Gama & Partners, 1st and 3rd respondents’ legal practitioners

Messers Chambati, Mataka & Makonese, 2nd respondent’s legal practitioners