URGENT
CHAMBER APPLICATION
GUVAVA
J:
This matter was placed before me on a certificate of urgency in terms
of Rule 242 of the High Court Rules as amended. I dismissed the
application with costs because of the preliminary issues raised.
The
applicant has requested written reasons for my decision. These are
they.
The
applicant filed an urgent application for stay of execution. The
interim relief is in the following terms:
“(a)
The 1st, 2nd, and 3rd respondents be and are hereby ordered to stay
eviction and removal of the applicant from No.2 Daramombe High
School.
(b)
The 1st and 2nd respondents shall bear the costs of this application
on a legal practitioner client scale.”
The
facts of the matter as set out in the applicant's founding
affidavit may be summarized as follows:
The
applicant is employed as a boarding master at Daramombe High School.
The 1st respondent is the Church of the Province of Central Africa a
registered religious organization. The 2nd respondent is the Anglican
Dioceses of Masvingo a division of the 1st respondent.
The
3rd respondent is the Deputy Sheriff cited in his official capacity.
On
26 April 2000 applicant was appointed as the boarding master of
Daramombe High School. He was furnished with a house being House No.2
Daramombe Mission. On or around 4 May 2000 to February 2009 the
applicant was demoted to the post of caretaker and transferred to St
Michaels Secondary School near Dorowa Mine in Buhera.
The
applicant challenged his demotion and an arbitral award was made in
his favour on 9 July 2009 and he was reinstated back to the post of
boarding master at Daramombe High School.
On
12 December 2012 he was served with an order for his eviction from
House Number 2 Daramombe Mission and to hand over all the Mission
property in his possession to the 1st respondent.
The
warrant of ejectment which was attached to his notice of ejectment
does not cite the applicant as a party to the proceedings.
The
applicant claims that there is no basis to evict him as there is no
order against him.
He
also states that the Supreme Court judgment SC48/12 does not cite him
as a party and he does not claim occupation of the property through
the Diocesan Trustees for the Diocese of Harare.
The
application was opposed by the 1st and 2nd respondents.
Advocate
Mpofu raised four points in limine:
(i)
He argued firstly that the application was not filed in accordance
with Rule 241 of the High Court Rules. He submitted that on that
basis alone the application should be dismissed as there is no
application for condonation for the failure to comply with the Rules.
(ii)
Secondly he submitted that the matter was not urgent as contemplated
by the rules of the court.
(iii)
Thirdly he submitted that the applicant had not disclosed material
facts to the court with regards to his case; and, finally
(iv)
That the 2nd respondent should not have been cited as a party as it
is not a persona but a geographical area.
I
will deal with each of the points which were raised in limine.
1.
Non-compliance with Rule 241(1) of High Court Rules
It
was submitted that the applicant's chamber application does not
comply with Rule 241(1) of the High Court Rules.
In
terms of this Rule the applicant must set out the facts upon which
the application is based in Form 29B. The applicant did not attach
Form 29B to the application and did not apply for condonation for his
failure to comply with the rules.
The
applicant's legal practitioner conceded in argument that he had not
complied with Rule 241(1). He however argued that this did not
invalidate the application and asked the court to condone the
non-compliance with the rules.
Adv.
Mpofu relied on the case of Zimbabwe Open University v Madzombe 2009
(1) ZLR 101 where this court held that failure to comply with the
provisions of Rule 230 of the High Court Rules 1972 means that the
application was fatally defective.
In
that case the matter was struck off the roll as the court held that
there was a failure to comply with the rules and the failure to make
an application for condonation showed a cavalier approach to
compliance with the rules which should be discouraged.
I
agree entirely with the submissions made.
This
court has stated in a number of judgments of this court that parties
are obliged to comply with the rules. Where there is a non-compliance
the applicant must apply for condonation and give reasons for such
failure to comply with the rules. (See also Jensen v Avacalos 1993
(1) ZLR 216 (SC).
In
this case the applicant's legal practitioner made no effort to
comply with this rule despite the fact that the point was raised in
the respondents opposing affidavit. The request to the court to
condone the non-compliance was made cursorily at the hearing as if
the grant of such condonation is always there for the asking.
It
seems to me that legal practitioners must be reminded that there is
an obligation to comply with the rules of this court.
An
examination of Rule 241 shows that the wording of the provision is
obligatory. It states as follows:
“(1)
A chamber application shall be made by means of an entry in the
chamber book and shall be accompanied by Form 29B duly completed and
except as is provided in subrule (2), shall be supported by one or
more affidavits setting out the facts upon which the applicant
relies:
Provided
that, where a chamber application is to be served on an interested
party, it shall be in form No.29 with appropriate modifications….,.”
(underlining is my own)
Clearly,
where a party fails to comply with the rules there must be a
plausible reason why there has been a failure to comply.
In
this case the attitude of the applicant was that such non-compliance
must be granted by the court even though no explanation has been
proffered for such failure. The applicant's counsel merely
submitted that the defect was not material enough to vitiate the
application.
In
my view this is not sufficient and on this basis alone I would
dismiss the application.
2.
Application is not urgent/ Material non-disclosure of facts
The
applicant submitted that he acted timeously as he approached the
court as soon as he was served with the Notice of Eviction.
It
was submitted by Mr Marume on applicant's behalf that as he was not
cited as a respondent in the case of The Church of the Province of
Central Africa v The Diocesan Trustees For The Diocese of Harare SC
48/12 (The Supreme Court Judgment) and it should not apply to him.
I
was however not persuaded by the stance adopted by the applicant.
The
background to the Supreme Court Judgment was that in 2007 a dispute
arose between the respondents and the Diocesan Trustees of the
Dioceses of Harare. The issue was whether the people who had been
members of the Board of Trustees for the Dioceses Harare withdrew
their membership from the 1st respondent and thereby lost their right
to control property such as church buildings, houses, schools, motor
vehicles and funds in the bank.
The
Supreme Court in its judgment ordered that the Diocesan Trustees for
the Dioceses of Harare should deliver all the properties to the 1st
respondent.
Prior
to this judgment the Trustees of the Dioceses of Harare had taken
control of all the properties and appointed its own employees after
evicting 1st respondent's employees.
The
Trustees for the Dioceses of Harare also re-appointed some employees
who were already in the employ of 1st respondent. The applicant
appears to have fallen in this category of persons as he had been
previously employed by the 1st respondent.
It
was apparent to me that the issue of urgency should be dealt with
together with the issue of the failure to disclose material facts to
the court as it seemed to me the points were interlinked.
It
was submitted by the respondent's counsel that the applicant
deliberately failed to disclose to the court that he had been
appointed to the post of boarding master through Bishop Kunonga and
the Anglican Church of the Province of Zimbabwe.
In
order to confirm this assertion the 1st respondent attached to its
opposing papers a copy of a letter from the Anglican Diocese of
Harare dated 23 April 2012 appointing the applicant to the post of
boarding master with effect from 1 October 2011. The applicant
accepted the appointment by the Anglican Church of the Province of
Zimbabwe.
The
applicant did not disclose these facts to the court in his founding
affidavit.
It
was quite apparent from the papers filed that the applicant was
re-appointed by the Anglican Church of the Province of Zimbabwe.
The
1st respondent following the Supreme Court judgment issued out writs
of execution to recover all the immoveable properties including the
property occupied by the applicant.
The
applicant should have been aware that his occupation of the property
would be affected by the Supreme Court judgment as his appointment
was as a result of the Anglican Church of the Province of Zimbabwe as
he was no longer in the employee of the 1st respondent.
The
eviction was ordered as far back as October 2012 after the Supreme
Court judgment.
There
is no explanation in the certificate of urgency why the applicant did
nothing from that date until he received the Notice of Eviction.
In
the case of Kuvarega v The Registrar General & Anor 1998 (1) ZLR
188 Chatikobo J (as he then was) stated that urgency does not arise
on the day of reckoning but arises when the need to act arises.
The
applicant was aware of the need to act as far back as October 2012
but did nothing. He then sought to hide his failure to act by not
disclosing facts which were material to this case.
This
point was highlighted in the case of Leader Trade Zimbabwe v Smith HH
131/03 where the court held that where an applicant gives false
evidence then the application should be dismissed. In my view
therefore the application may be dismissed on this basis of these two
points.
3.
Wrong citation of the 2nd Respondent
It
was also submitted on behalf of the respondents that the 2nd
respondent should not have been cited as a party to the proceedings
as it is not a legal persona but a geographical area.
This
position was set out clearly in the Supreme Court Judgment at page 15
where the court held as follows:
“In
so far as the legal status of the diocese of Harare is concerned, the
conclusion by the learned judge that it is not a legal entity that
can be withdrawn from the Province is undoubtedly correct. The
holding is in accordance with the principle derived from the ancient
laws and usages of the Catholic Church that dioceses should be
associated in provinces. The preamble to the Constitution confirms
that the Church was formed on the basis of the principle that a
diocese is an administrative area or legal division of a Province
under the episcopical jurisdiction of the bishop. The word diocese is
derived from a Greek term meaning administration……”
The
applicant's legal practitioner correctly conceded that the 2nd
respondent should not have been cited.
Indeed
it would have been difficult for him to argue otherwise in view of
the detailed judgment dealing with the point.
In
my view therefore the points in limine which were raised by the
respondents were proper and warranted the dismissal of the
applicant's application without proceeding to deal with the merits.
With
regards to costs it was my view that the applicant should pay the
respondents costs as not only did he cite a non-existent persona but
he sought to hide material facts from the court. The application
itself did not comply with the rules and was clearly not urgent but
filed merely to buy time for the applicant so that he would not be
evicted.
It
was for the above reasons that I dismissed the application with
costs.
Matsikidze
& Mucheche, Applicants Legal Practitioners
Gill,
Godlonton & Gerrans, 1st and 2nd Respondents Legal Practitioners
