Blesert Tawodzera v Erasmus Pahwaringira and The Registrar of Deeds and G.S Kashangura Law Chambers and Drowack Investments (Pvt) Ltd and Bevanda Gwara and Leopold Rugare Chindaya

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BLESERT TAWODZERA
versus
 ERASMUS PAHWARINGIRA
and
THE REGISTRAR OF DEEDS
and
G.S KASHANGURA LAW CHAMBERS
and
DROWACK INVESTMENTS (PVT) LTD
and
BEVANDA GWARA
and
LEOPDOLD RUGARE CHINDAYA


HIGH COURT OF ZIMBABWE
CHIRAWU-MUGOMBA J
HARARE, 28 January 2021


Urgent chamber application
     CHIRAWU-MUGOMBA J: This matter was placed before me as an urgent chamber
application. The applicant seeks the following order.

        TERMS OF FINAL ORDER SOUGHT
    That you show cause to this Honourable Court why a final order should not be made in the
following terms;
    1. The two cases, case no. HC 7459/18 and HC 752/17 shall be consolidated and tried together
       as one action.
    2. Costs of this application shall be determined in the application for consolidation case no. HC
       6659/20.
    INTERIM ORDER GRANTED
    Pending the confirmation or discharge of this order or resolution of the dispute between the
parties, applicant is hereby granted the following relief:
    1. That pending the determination and or finalisation of the application for consolidation of
       cases no. HC 752/17 and HC 7459/18, in case no. HC 6659/20, the trial of HC 7459/18 shall
       be stayed.
    SERVICE OF THIS PROVISIONAL ORDER
    Leave be and is hereby granted to the applicant’s legal practitioners to serve the provisional order
on respondent’s legal practitioners.
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   The applicant’s case can be summarised as follows. The root of the application revolves
around a property known as stand 3469 Warren Park Township. There is a dispute pending
before this honourable court pertaining to the sale of that property under case number HC
752/17. The property has since been sold and transferred to the 6 th respondent who now
holds title. The 6th respondent has sought the eviction of the applicant from the property in
case number HC 7459/18. The applicant has made an application for consolidation of HC
7459/18 and HC 752/17 under case number HC 6659/20. The application has not yet been
dealt with. HC 7459/18 has been set down for the 22 nd of February 2021 and the applicant
contends that the trial should not go ahead without an outcome of the application for
consolidation because it will render the application for consolidation futile.

   The 6th respondent strenuously opposed the application and his response can be
summarised as follows. He is now the lawful owner of the property but his efforts to obtain
vacant possession have been thwarted by the applicant who has come to court with dirty
hands. He filed case number HC 7459/18 on the 16 th of August 2018 for a spoliation order,
eviction and holding over damages. HC 7459/18 was initially set down for trial for the 27th of
October 2020. However the trial has not taken place due to delays caused by the applicant.
The latter once filed an urgent application in HC 6737/2020 which is essentially the same as
the present matter. Such application was subsequently withdrawn by the applicant. At the
hearing, the parties through their legal practitioners agreed that the trial should proceed on the
22nd of February 2021. The applicant knew about the trial as far back as the 6 th of October
2020 but he did not act. He only filed the application for consolidation in November 2020.
Therefore the application lacks urgency.

   The law on urgency is well set – see Kuvarega vs Registrar –general and anor, 1998(1)
ZLR 188(H). It is my considered view that this application is not urgent at all. The applicant
failed to disclose to the court when exactly the need to act arose. In HC 752/17, the matter
was remitted to this court from the Supreme Court with an order that it proceed as a trial
matter. The Supreme Court order is dated the 9th of November 2018. Summons in HC
7459/18 were issued against the applicant in August 2018. There is no indication from the
applicant as to when exactly he received the summons which would then have been a basis
for seeking consolidation. The applicant also was very much aware of the trial set down for
the 27th of October 2020 but has not explained why he only filed an application for
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consolidation in November 2020. The applicant’s affidavit is therefore fraught with non-
disclosure of essential facts. In that regard I can do no better than to quote NDOU J in Ncube
vs. Mpofu N.O and anor, HB-121-11 as follows:-

    The failure to disclose the Tshabalala property is a material non-disclosure in this case. It goes to
the core of the issue of urgency. As stated in Graspeak Investments P/L vs Delta Corporation P/L &
Anor 2001 (2) ZLR 551 (H), the courts should discourage urgent applications which are characterized
by material non-disclosure, mala fides or dishonesty.
    “Although, generally, an applicant is entitled to embody in his supporting affidavits only
    allegations relevant to the establishment of his right, when he is bringing an ex parte application
    in which relief is claimed against another party he must make full disclosure of all the material
    facts that might affect the granting or otherwise of an order ex parte. The utmost good faith must
    be observed by litigants making ex parte applications in placing material facts before the court, so
    much so that if an order has been made upon an ex parte application and it appears that material
    facts have been kept back, whether willfully and mala fide or negligently, which might have
    influenced the decision of the court whether to make an order or not, the court has a discretion to
    set the order aside with costs on the ground of non-disclosure.” – The Civil Practice of the
    Supreme Court of South Africa by Herbstein & Van Winsen 4 Ed at page 367. See also Power
    N.O. vs Beiber & Ors 1955 (1) SA 491 (W) and Exp Madikiza et Uxor 1995 (4) SA 433 (TK) at
    436I-J.
        The order postponing the trial that appears on page 42 of the application is very
specific that it was an order by consent. The applicant has not explained why he now seeks
to wriggle out of that order.
        As pointed out by the 6th respondent, the applicant does have an alternative remedy of
seeking damages. The relief that the applicant has sought is clearly not interim in nature. It
is final and that is why even in the final relief, he has actually sought an order of
consolidation which is the same as he seeks in HC 6659/20.
I am cognisant of the fact that every person in terms of the 2013 Constitution has a right to
litigate which may be curtailed as is the current case by emergencies. In our case, the COVID
19 pandemic has seriously affected the operations of the courts. However Practice direction
number 1 of 2021 puts urgent chamber applications in the category of exceptions, meaning
that the courts will continue hearing such cases. I daresay that in view of that fact an urgent
chamber application filed during the lock down period should demonstrate extreme urgency.

        In view of the non-disclosure of material facts by the applicant, an appropriate order
for costs is that he should bear the costs of 6 th respondent. The 1-5th respondents did not
oppose the application and therefore are not entitled to costs.

        The application is therefore for reasons cited above not urgent.
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   DISPOSITION
   1. The application is not urgent and is struck off from the roll of urgent matters.
   2. The applicant shall pay the 6th respondent’s costs.


Hungwe and Partners, applicant’s legal practitioners
Thoughts Deme Attorneys-At-Law, 1st respondent’s legal practitioners
G.S Motsi Law Chambers, 3rd respondent’s legal practitioners
Mugiya and Muvhami, 5th respondent’s legal practitioners
Mundia and Mudhara, 6th respondent’s legal practitioners