Willing Shoko v Belia Zibowa and Others

### Preamble
1
HB 229/22
HC 836/22
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WILLING SHOKO

Versus

BELIA ZIBOWA

And

BLESSING ZIBOWA

And

ISAIAH SHONIWA

And

TERRENCE KENNY

And

SHERIFF OF THE HIGH COURT

And

REGISTRAR OF DEEDS N.O.

And

FBC BUILDING SOCIETY

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 27 JULY 2022 & 8 SEPTEMBER 2022

Opposed application

Ms. P. Dube for the applicant

Prof. W.  Ncube for the 1st and 2nd respondents

DUBE-BANDA J:

Introduction

This is an application for leave to file an additional affidavit in HC 345/20 (main application). The applicant seeks an order couched in the following terms:

The applicant be and is hereby granted leave to file a supplementary affidavit under case number HC 345/20.

The applicant shall file such an affidavit within 5 days of the date of this order.

There is no order as to costs.

This application is opposed by the 1st and 2nd respondents. The 3rd, 4th, 5th, 6th and 7th respondents did not file opposing papers nor did they participate at the hearing of this matter.  In essence the contest is between the applicant on one hand and the 1st and 2nd respondent on the other hand. For convenience and where the context permit I shall refer to the applicant as Shoko and the 1st and 2nd respondents as the Zibowas.

The papers in this matter are voluminous. Spanning 256 pages.

The background facts

This application will be better understood against the background that follows. This matter arises from a long history of litigation. There has been a number of cases that have been filed before this court between 2014 to date. A number of cases have been cited as cross references in the main application and this application, they are these: HC 2748/18; HC 1649/18; HC 1043/14; HC 2818/17; HC 1268/17.

In case number HC 1043/14 Isaiah Shonhiwa obtained a judgment against Blessing Zibowa in the sum of USD51 000.00. An immovable property known as stand number 50 Southway Road, Burnside, Bulawayo (property) jointly registered in the name of Blessing Zibowa and Belia Zibowa (Zibowas) was declared specially executable by private treaty. In HC 2818/17 this court granted an order joining the Deputy Sheriff to HC 1043/14. The Deputy Sheriff was authorised to take all steps and sign all documents as may be necessary to cause the transfer of the property to any third party to whom the property could be sold by private treaty. The property was sold by private treaty and transferred to Shoko. It is this sale and transfer that are contested in the main application.

In the main application the Zibowas seek to review a decision of the Sheriff of the High Court and seek inter alia an order that the sale of the property to Shoko be declared illegal, unlawful and null, void and of no force or effect. The contention in the main application is that the decision of the Sheriff to sign the transfer documents and to transfer the property to Shoko was unlawful and illegal and beset with gross procedural irregularities, in that inter alia the property was transferred without any judicial sale of it having been made or conducted. Further that the purported private treaty agreement of the sale of the property is a nullity in that inter alia it was done by or under the authority of the judgment creditor by agents of the judgment creditor in violation of the law and the rules of court.

For completeness and for the reasons that will become apparent later in this judgment it is important to mention at this point in time that it is Mashayamombe & Co. Attorneys who represented Isaiah Shonhiwa in HC 2818/17.  It is Mashayamombe & Co. Attorneys who were the conveyancers in transferring the property from the Zibowas to Shoko. At the time of the filing of the notice of opposition in the main application Shoko was represented by Mashayamombe & Co. Attorneys.

Shoko is opposed to the order sought in main application. A complete set of pleadings have been filed and the matter is ready for set-down. I say so because Shoko filed a notice of opposition, the Zibowas filed an answering affidavit and heads of argument have been also filed.

On 17 May 2022 Shoko filed this application. He seeks leave of this court to file an additional affidavit in the main application for the purposes of introducing certain documents, i.e. an agreement of sale; declaration by seller; and a copy of a deed of settlement. It is contended that it is necessary that these documents be placed before court in the main application because they set the record straight. It is against this background that applicant has launched this application seeking the relief mentioned above.

The submissions

In his founding affidavit the applicant avers that following the postponement of the main application on the 25th of March 2022 his legal practitioners perused the records at the office of the Registrar of Deeds and also perused the records at the office of the Sheriff of the High Court. It is averred that it then came to light during the inspection of the records that the agreement on which the transfer of the property was based and which is in the file of the Registrar of Deeds was not the one produced by the 1st and 2nd respondents in the main application. It is averred that the applicant seeks leave to file an additional affidavit in the main application in order to place the agreement signed by the Sheriff before court. The applicant also wishes to file a copy of a declaration by seller signed by the Sheriff. It is averred that these documents will set the record straight in the main application.

The applicant avers further that he wishes to introduce to the main application via additional affidavit a copy of a deed of settlement entered into by and between Blessing Zibowa and Isaiah Shoniwa. It is contended that the deed of settlement when read with the order in HC 1043/14 will show the manner in which the property was sold. It is said that the deed of settlement was filed of record in HC 2818/17 and it will show that Blessing Zibowa and Isaiah Shoniwa agreed that the property would be sold by private treaty as it was pledged as security, and that the Sheriff would sign the documents to effect the transfer to whosoever would be the purchaser.

The applicant avers further that the reasons for seeking to introduce these documents at this time was that they came to his attention recently. His erstwhile legal practitioners had not thought to attach the Sheriff’s Agreement and declaration by seller in the main application. Although the deed of settlement was filed in HC 2818/17 he was not a party to that case and a copy was only obtained at the request of instructed counsel.

Ms Dube counsel for the applicant submitted that the documents sought to be introduced by means of an additional affidavit are not before court in the main application. It was contended that they are important to the resolution of the main application.  Counsel submitted that these documents were in existence at the time the notice of opposition in the main application was filed, but their existence was not subjectively known to the applicant at that time.  Counsel argued that the many attacks on the documents sought to be introduced by means of an additional affidavit must be made in the main application, and not this one. Counsel prayed that a case has been made for this court to grant this application as per the draft order.

The 1st and 2nd respondents aver that the purported agreement of sale sought to be introduced is a fraud and an incomplete valueless agreement in that it was signed by the seller and not signed by the buyer. Again, it was averred that the document is a fraud in that it does not exist in the records of the Registrar of Deeds. Regarding the declaration by seller sought to be introduced by means of an additional affidavit, the respondents aver that it is fake and fraudulent as it differs not just in font but also wording from the declaration by seller held by the Registrar of Deeds.

It was averred further that the application to file an additional affidavit was filed two weeks from the date of set down of the main matter. It was argued that the applicant’s erstwhile counsel who prepared the opposing affidavit in the main application was fully aware of the deed of settlement, declaration by seller and the purported agreement sought to be introduced by means of an additional affidavit. It was averred that the erstwhile counsel prepared each and every one of those documents sought to be introduced via an additional affidavit. The erstwhile counsel attached the deed of settlement in case number HC 2818/17 and prepared the declaration by seller when he lodged the transfer documents.

The 1st and 2nd respondents aver that the introduction of the deed of settlement by means of an additional affidavit is wholly unnecessary as that document is already before court in HC 2818/17 which is cited as a cross reference in the main application. Regarding the declaration by seller it was averred that no compelling or special circumstances have been given to introduce it by means of an additional affidavit. Again, that the declaration by seller contains no additional allegations or averments about the sale which are not already contained in the power of attorney which is already part of the record in the main application.  Mr Ncube counsel for the 1st and 2nd respondent submitted that this application is mala fide and does not meet the requirement for the filing of an additional affidavit. Counsel prayed that the application be dismissed with costs.

The legal framework

The starting point in the consideration of an application for leave to file an additional affidavit is Rule 59 (12) of the High Court Rules, 2021, which says:

After an answering affidavit has been filed, no further affidavits may be filed without the leave of the court or a judge.

Rule 59(12) does not give guidance on the factors which must be considered in applications for leave to file further affidavits after the usual sequence of a founding affidavit, opposing affidavit and answering affidavit has been exhausted. Case law provides the principles applicable in instances where a party seeks leave to file a further affidavit.

The court may in its discretion permit the filing of a further affidavit. The authors Herbstein and Van Winsen in in the Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa (5th ed.) 433 say leave to file further affidavits will be granted only in exceptional circumstances or in special circumstances or if the court considers such a course advisable.

In Mokoena v Old Mutual Life Assurance Company (JS 123/2016) [2019] ZALCJHB 54 the court said the filing of further affidavits in motion proceedings is permitted only with the indulgence of the court, which has the sole discretion whether or not to allow such affidavits.  The court noted that from the authorities the legal position can be summarised as follows:

Allowing the filing of further affidavits is not a right that a party has, but an indulgence from a court in the exercise of its discretion; the material sought to be raised in the supplementary affidavit must be relevant to the issues for determination of the main claim or application; in exercising its discretion, the court will do so with a measure of flexibility, taking into account all the facts of the case and in further consideration of what is fair to the parties. The said leave to file further affidavits, out of sequence, may be allowed, for example, where there was something unexpected in the applicant’s replying affidavits or where a new matter was raised, or where the information/evidence was not available to the respondent (or could not be made available) when the founding affidavits were filed and before the answering affidavits could be filed. Even then however, the party seeking to supplement must give a satisfactory explanation which negatives mala fides or culpable remissness as to why the information/evidence could not be put before the Court at an earlier stage; and that when considering whether to allow the filing of further affidavits, prejudice is not the test, and it is incumbent on the applicant to establish exceptional circumstances which render it fair to permit the filing of the additional affidavit.

See: Associated Newspaper of Zimbabwe v Media Information Commission 2006 (1) ZLR 128 (H); United Refineries Limited v Mining Industry Pension Fund & Ors SC 63/14; Revesai v Windmill (Pvt) Ltd HH 163-16.

It is on the basis of these legal principles that this application must be viewed and considered

The application of the law to the facts

The 1st document that the applicant seeks to introduce via a further affidavit is a purported agreement of sale. This document purports to be an agreement of sale between the Zibowas and Shoko. It has no provision for the signatures of the Zibowas, it has that of the Sheriff and Shoko. It bears the Signature of the Sheriff who says he signed in pursuance of court orders in HC 1043/14, HC 1649/18 and a writ of execution in HC 1268/17. It has no signature of Shoko as the purchaser.

It is trite that the basis of an agreement is the meeting of minds or the mutual understanding between two or more persons with the subjective intention to create an obligation, or obligations, between them. The agreement need not be reduced to writing for its validity, however if the parties decide that it be reduced to writing it must then embody the signatures of all the parties.  A document with one signature cannot be an agreement. In Christie RH The Contract Law of South Africa (2nd ed. Butterworths 1991) 124 the learned author says once the parties have decided that they will reduce their contract to writing then the contract comes into existence when, and only when, the written document containing it has been signed by both parties.  The document applicant intends to introduce by means of a further affidavit does not qualify to be a valid, binding and enforceable agreement between the parties.

Ms Dube argued that the many attacks on the documents sought to be introduced by means of an additional affidavit must be made in the main application, and not this one. In principle she was correct, but there are limitations to it.   This court cannot close its eyes as it were, and allow a document to pass as an agreement when it bears a signature of one party. It is simply not an agreement.

Again, it is clear that this document was in the possession of the applicant’s erstwhile legal practitioners (Mashayamombe & Co. Attorneys) when they did the conveyancing, i.e. transferring the property from the Zibowas to Shoko.  It must have been in their possession when they filed Shoko’s notice of opposition in the main application. No affidavit has been filed from the retiring legal practitioners explaining the reason the document was not introduced in the main matter via the notice of the opposition and opposing affidavit.

This court cannot grant leave to the applicant to file a further affidavit to introduce a document that is not an agreement, and which was in the possession of the applicant’s legal practitioners, by extension in the possession of the applicant when it ought to have been filed.

The deed of settlement sought to be introduced via an additional affidavit is an annexure in HC 2818/17. I accept that the applicant was not a litigant in HC 2818/17, however I take note that in paragraph 76 of his opposing affidavit in the main application the applicant avers that the order in HC 2818/17 was properly served on Blessing Zibowa.  The order in HC 2818/17 was granted on the 8th November 2017. He filed his notice of opposition in the main application on 30 November 2020. Therefore at the time he filed his notice of opposition in the main mater he had knowledge of case number HC 2818/17, and this is the case that contains a copy of the deed of settlement he seeks to introduce in the main application by means of a further affidavit. The deed of settlement was at his disposal and he could have introduced it to the main application through his notice of opposition if he so wished. He cannot be permitted to come to court on the 17 May 2022 when the main application is ripe for a hearing and seek to reverse the process back to the pleadings stage for the purposes of filing a document that he had prior to filing his notice of opposition. Clearly the process in the main application has reached a point of no return.

Again, it is his erstwhile legal practitioners Mashayamombe & Co. Attorneys who prepared the deed of settlement and filed HC 2818/17. HC 2818/17 was filed on the 25th October 2017.  At the time the legal practitioners drafted the notice of opposition in the main application they had the deed of settlement. Ms Dube argued that the applicant did not have “subjective knowledge” of the deed of settlement, meaning that his erstwhile legal practitioners did not bring it to his attention. This is a red herring — a semantic smokescreen.

No affidavit has been filed from the retiring legal practitioners to corroborate the applicant’s version that he had no knowledge of the deed of settlement and explaining the reason the deed of settlement that was in their possession was not introduced in the main application via the notice of the opposition. In the absence of such an explanation this court cannot accede to the request by the applicant to introduce this document in the face of the fact that the main application is ripe for hearing. The reason given by the applicant for the failure to file this document via the notice of opposition in the main application is unimpressive.

Again, the deed of settlement is before court in HC 2818/17. This is a cross reference matter cited in the main application and in this application. The deed of settlement is already part of the court record through the reference case (HC 2818/17) and can be used by the litigants in argument and the court in the determination of the main application. If authority is required for this position Mhungu v Mtindi 1986 (2) ZLR 171 (SC) is such authority. Where at 173A-B McNallyJA said-

It seems clear from the judgment in which the learned judge a quo granted summary judgment that he made reference to the papers in case number HC 3406/84.  In so doing he was undoubtedly right.  In general the court is always entitled to make reference to its own records and proceedings and to take note of their contents-

Halsbury 4 ed Vol 17 paragraph 102; Boyce NO v Bloem & Ors 1960 (3) SA 855 (T); Shell Zimbabwe (Pvt) Ltd v Webb 1981 ZLR 498 (HS) at 503-4 (this case was upset on appeal but not on this point).  The position is a fortiori when the defence involves a reference to the previous proceedings, as this one does. (My emphasis).

The main application is ready for a hearing. This court cannot re-open pleadings in the main application for the purpose of filing a further affidavit to introduce a deed of settlement which is already before court. The need to introduce the deed of settlement in the main application was not motivated by something unexpected or new matter that was raised in Zibowas answering affidavit.  The deed of settlement was available to the applicant when he filed his notice of opposition in the main application.

In respect of the seller’s declaration I take note that in paragraph 50 of his opposing affidavit in the main application the applicant avers that the Sheriff signed all the transfer documents including the seller’s declarations, the power of attorney all in the capacity of the seller. In this application there are two copies of the declaration by seller, and a close look clearly reveals that they are marked differences between the two. I take the view that by his own version at the time the applicant filed his notice of opposition in the main application knew of the existence of the two declarations. I say so because in his opposing affidavit in the main application he spoke of the “seller’s declarations” not “declaration”. Going by his version in the main application at the time he filed his opposing affidavit he knew of the existence of the seller’s declaration he seeks to introduce by means of a further affidavit.

Again the applicant’s erstwhile legal practitioners Mashayamombe & Co. Attorneys were the conveyancers in the transfer of the property from the Zibowas to Shoko. It is trite that it is the conveyancer who prepares transfer documents. The legal practitioners must have prepared the declaration by seller which applicant seeks to introduce to the main application by means of a further affidavit. The declaration by seller was in existence and in the control of the applicant’s legal practitioners when they filed the notice of opposition and opposing affidavit in the main application. Without the erstwhile legal practitioner’s version this court cannot accept that the declaration by seller came to the applicant’s attention recently. There are no exceptional circumstances or special circumstances which this court can invoke to permit the filing of a further affidavit for the purposes of introducing what was available at time the applicant filed his notice of opposition in the main application.

I juxtapose all this with what the court said in  Associated Newspaper of Zimbabwe v Media Information Commission 2006 (1) ZLR 128 (H) @ 131 that:

Leave to file additional affidavits cannot be for the asking. The court will insist on the observance of its rules regarding the sequencing of affidavits to be filed in an application, for uniformity of practice and certainty in the system, unless in the view of the court, justice will miscarry. In particular, the court will not readily grant leave to file an additional affidavit to deal with facts that were available to the parties at the time the permitted affidavits were drawn up and deposed to. Again, the court will not readily grant leave to file additional affidavits that seek to bring in a new cause of action or defence where the facts giving rise to such were available to the parties at the time of the filing of the traditional recognised affidavits.

Disposition

The applicant faces certain insurmountable hurdles with this application for a variety of reasons including that the explanation for the failure to introduce in the opposing affidavit the documents he seeks to introduce by means of a further affidavit is not impressive.

The application to file a further affidavit came at a time when the pleadings in respect of the main application were closed, and the matter was ripe for hearing. In his own founding affidavit the applicant avers that the main application was set down for the 25 March 2022 for a hearing. For some reason the matter was postponed. This application was filed on the 17 May 2022 when the main application had already been provided with a set down date.  In light of the protracted history and nature of this case, there is no justification for the 1st and 2nd respondents to be burdened long after the pleadings have closed to have to answer further matters that should have been raised at the time the opposing affidavit was filed. The applicant has not demonstrated exceptional circumstances requiring the Court to exercise its discretion and to allow the filing of a further affidavit.

The applicant intends to file a further affidavit not to counter unexpected averments nor new facts raised in the Zibowas answering affidavit. The documents the applicant seeks to introduce were in existence when the notice of opposition was filed in the main application. No affidavit has been filed from the retiring legal practitioners explaining the cause of the failure to file documents that they themselves had prepared and were in their possession when they filed a notice of opposition in the main application, choosing only to file a copy of the power of attorney to pass transfer. The erstwhile legal practitioners could have informed this court in detail the reasons the documents sought to be introduced were omitted. This failure presents a difficulty to the applicant’s case.  Ultimately there is no comprehensive and acceptable explanation for the omission of these documents.

The purpose of filing a further affidavit is to enable a litigant to file additional information that he becomes aware of after the filing of the three affidavits as required in terms of the Rule of Court. See: Industry Pension Fund v United Refineries Ltd & Anor 2012(2) ZLR 98 (H). In this case I am not satisfied that the applicant came to know of the information he seeks to introduce by means of a further affidavit after the filing of the opposing affidavit. I am not satisfied that the applicant has advanced a full and satisfactory explanation for the failure to include this information in his opposing affidavit.

On the facts of this case I am not satisfied that the applicant has established exceptional circumstances to permit the filing of a further affidavit. The applicant was represented by legal practitioners when he filed his notice of opposition in the main application. It was the same legal practitioners who prepared all the documents the applicant seeks to introduce by means of a further affidavit.

No exceptional circumstances exist to allow the applicant to file a further affidavit. I take the view that the applicant with the advice of counsel has identified gaps in his opposing affidavit and he seeks merely to ‘plug holes’ in his opposing affidavit. A further affidavit cannot be filed to correct failures in the case of a litigant.  It is for these reasons that this application must fail.

The general rule in matters of costs is that the successful party should be given its costs, and this rule should not be departed from except where there are good grounds for doing so. I can think of no reason why I should deviate from this general rule. I therefore intend awarding costs against the applicant. The 1st and 2nd respondents had sought costs on a punitive scale, no case has been made for such costs.

In the result, I order as follows:

The application be and is hereby dismissed.

The applicant shall pay the costs of suit.

V. Chikomo Law Chambers applicant’s legal practitioners

Mathonsi Ncube Law Chambers 1st and 2nd respondents’ legal practitioners