Cilia Chifika v Eston Dube and Bulawayo City Council

### Preamble
1
HB 261/22
HC 01/22
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CILIA CHIFIKA

(Duly represented by Sithembiso Chifika)

Versus

ESTON DUBE

And

BULAWAYO CITY COUNCIL

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 13 OCTOBER 2022 & 20 OCTOBER 2022

Court application

B. Ndove, for the applicant

N. Mlala, for the 1st respondent

DUBE-BANDA J:

This is a court application. In this application the applicant seeks an order couched as follows.

That the 1st respondent be and is hereby ordered to proceed to the offices of the 2nd respondent to effect transfer of house 73339 Lobengula West, Bulawayo into the names of the applicant within fourteen days from the date of the order.

In the event that the 1st respondent fails to effect transfer as stipulated by paragraph (1) above of this order the Sheriff, Bulawayo be and is hereby authorized to sign all the relevant transfer papers on behalf of the 1st respondent and ensure that transfer is effected into the applicant’s name.

The 1st respondent be and is hereby ordered to pay all statutory liabilities, specially Capital Gains Tax, in lieu of transfer.

The 2nd respondent be and is hereby ordered to accept such transfer.

The 1st respondent pays the costs on an attorney client scale.

The application is opposed by the first respondent. The second respondent has not filed any opposing papers nor participated at the hearing of this matter. I take it that it has taken a position that it shall abide by the decision of this court.

At the commencement of the hearing Mr Ndove counsel for the first respondent raised three preliminary points, i.e. that there was no answering affidavit before court, that the special power of attorney is so irregular that it must be expunged from the record, and that the general power of attorney signed by the applicant in favour of one Sithembiso Chifika is inadequate for litigation and hence there is no application before court. Counsel argued that this application must be dismissed with costs on a legal practitioner and client scale.

The answering affidavit is attacked on the basis that it opens as “I, Sithembiso Chifika do hereby make oath and state as follows,” but it was attested to by one Celia Chifika. Mr Ndove argued that such a document does not qualify to be described as an affidavit. Counsel submitted that in the first instance it should not have been commissioned at all. Regarding the special power of attorney it was submitted that since it was introduced in the proceedings via an irregular answering affidavit, it also cannot stand, it must fall by the wayside together with the irregular affidavit. In respect of the general power of attorney it was submitted that it is inadequate for litigation and hence there is no application before court.

Mr Mlala counsel for the applicant argued that it was clear that the version in the answering affidavit was that of Sithembiso Chifika and not Celia Chifika (applicant). Counsel argued that the court should not only consider the person who attested to the affidavit, but must consider the version, which in counsel’s submissions was that of Sithembiso Chifika (the agent). Counsel argued that even if the answering affidavit was expunged from the record, the application will still stand on the basis of founding affidavit filed in support of the application. Counsel seemed to see nothing irregular about the general power of attorney executed by Sithembiso Chifika in favour of Celia Chifika. Counsel argued further that the preliminary points be refused and the application be heard and determined on the merits.

The first issue for determination is whether there is an answering affidavit before court? An affidavit is a sworn statement a person makes asserting that certain facts are within his or her knowledge or belief true and correct.  See: Chinzou v Masomera & Ors 2015 (2) ZLR 274 (H). Rule 58(4)(a) of the High Court Rules, 2021 provides that an affidavit shall be made by the applicant or respondent, as the case may be, or a person who can swear to the facts or averments set out therein. In casu the answering affidavit opens as follows: “I, Sithembiso Chifika do hereby make oath and state as follows”, however the affidavit is attested by a different person i.e. Celia Chifika. It is clear that the person who appeared before the commissioner of oaths is not Sithembiso Chifika but Celia Chifika. An affidavit is very similar to a witness’s sworn testimony in a court of law, in a court it must be the testifying witness who takes the oath. Again an affidavit must be made by the person who appears and takes the oath before a commissioner of oaths. The document filed and described as an answering affidavit is so irregular and so defective that it does not meet the requirements of an affidavit. It was not made by the person who appeared before the commissioner of oaths. It is just not an affidavit. It is a nullity. In the circumstances, there is no answering affidavit before court.

Regarding the special power of attorney it is clear that it was introduced via the purported answering affidavit. Now that the purported answering affidavit has fallen by the wayside, the special power of attorney must also fall. There is also something conspicuous about this special power of attorney, it is that it was signed on the 28 February 2022, while the purported answering affidavit was signed on the 24 February 2022. In essence this means the purported answering affidavit was attested to before the special power of attorney came into existence. My view is that such is irregular. I say so because the deponent must first have authority to depose to an affidavit, not to depose to an affidavit and get the authority after the event. In any event nothing much turns on this issue because the power of attorney simply falls by the wayside because the purported answering affidavit on which it is anchored has fallen. The special power of attorney has no leg to stand on in the absence of the answering affidavit through which it was introduced into the proceedings. It is not part of the record before court.

The findings regarding the nullity of the purported answering affidavit and the special power of attorney are not dispositive of this matter. It is for this reason that I now turn to consider the first respondent’s attack on the general power of attorney. The power of attorney simply means the power to act on behalf of someone. In respect of the attack on the general power of attorney, the issue is whether it is adequate for litigation. The application was filed by Sithembiso Chifika on the strength of a general power of attorney executed by Celia Chifika. The jurisprudence is that a general power of attorney is inadequate for litigation. In Ashley v S.A. Prudential Ltd 1929(1) TPD283at 285 Tindall J had this to say on the issue of general power of attorney:

“But in my opinion, where the authority is stated to be ‘to demand and receive the title deeds relating to such transfer’ it cannot be said that bringing legal proceedings to obtain the title deeds is a necessary or usual means of executing the authority to ‘demand and receive’. The institution and prosecution of legal proceedings is an important step which may involve the principal in great expense and I see no justification for holding that where a principal authorises an agent to ‘demand and receive’ a thing, the principal must be taken to have intended to include the authority to bring and prosecute proceedings. There is no reason for construing the word ‘demand’ in a sense other than its ordinary sense which is well understood and means ‘claim’ in other words an extrajudicial demand”

Equally in Mutemererwa &Another v Tavarwisa & Another HH 160-2004 Kamocha J opined that:

“In casu, the power of attorney nominated and appointed the agent for managing and transacting all the principal’s affairs involving the purchase of the property. There would be no justification for construing it to have authorised him to bring and prosecute legal proceedings. He had no authority to do that.”

In casu the general power of attorney executed on 27 December 2021 related to the “management and transacting all my affairs in Zimbabwe. With power to demand, sue for recovery and receive all debits or sums of money, goods, effects and things whatsoever, which are now, or may hereafter become, due or belong to me…..” I am of the view that the general power of attorney did not authorise Sithembiso Chifika to institute and prosecute litigation specifically regarding house number 7333 Lobengula West, Bulawayo.

I say so because legal proceedings require the principal’s specific and special mandate in respect of the subject matter of the litigation. Just to say with power to demand, sue for recovery and receive all debits or sums of money, goods, effects and things is too general and seriously inadequate to litigate. Authority to institute litigation needs to be authorised by clear and specific language in a special power of attorney authorizing a person to act on behalf of another person under specific and clearly laid-out circumstances.

In any event house number 7333 Lobengula West, Bulawayo cannot be said to fall under “all debits or sums of money, goods, effects and things.” It is an immovable property, not goods, effect or things. There is no justification for construing the general power of attorney to have authorised the agent to bring and prosecute legal proceedings in respect of an immovable property being house number 7333 Lobengula West. It does not.

Thus the agent therefore had no authority to institute ligation without the principal’s specific or special mandate as at the date of filing this application. See: Masamba v Zimbabwe Electricity and Distribution Company (Pvt) Ltd HH 411/15.  My view is that at law Sithembiso Chifika is on a frolic of her own. Therefore there is no proper application before court. In the light of the above findings this application must be struck off the roll with an appropriate order of costs.

First respondent sought costs on a legal practitioner and client scale. A court may award attorney and client costs against an unsuccessful party where his conduct has been unworthy, reprehensible or blameworthy or where he has been actuated by malice or has been guilty of grave misconduct either in the transaction under enquiry or in the conduct of the case. In this matter there are a lot of issues that are concerning e.g. at law the application was not authorised by the applicant, however she attempted to rescue this irregularity by means of a special power of attorney introduced through a document that did not meet the requirements of an affidavit. She signed a general power of attorney which is inadequate for litigation. In this matter they has been a marked failure to pay attention to detail. Although the prosecution of this case has been below the acceptable threshold of a vigilant litigant, however the applicant’s conduct cannot properly be described as unworthy, or blameworthy to the extent that it merits an attorney and client costs order being made against her.  I do not believe, therefore, that it will be appropriate to mulct the applicant with an order of costs on a legal practitioner and client scale.

In the result:

This application be and is hereby struck off the roll.

The applicant to pay the costs on a party and party scale.

Sansole and Senda, applicant’s legal practitioners

Ndove & Associates, 1st respondent’s legal practitioners