Clements Momberume v Davison Shonhiwa N.O and Marange Apostolic Church of St. Johanne and Master of the High Court and Israel Ruwoko

### Preamble
1
HH 133-13
HC 11782/11
CLEMENTS MOMBERUME
versus
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CLEMENTS MOMBERUME
versus
DAVISON SHONHIWA N.O
and
MARANGE APOSTOLIC CHURCH OF ST. JOHANNE
and
MASTER OF THE HIGH COURT
and
ISRAEL RUWOKO

HIGH COURT OF ZIMBABWE
CHITAKUNYE J
HARARE, 15 May, 2013

P. Munangati-Manongwa, for applicant
A.Muchandiona, for 2nd respondent
D. Sibanda, for 4th respondent

Opposed application

CHITAKUNYE J. This application was placed before me together with another application HC11783/11 wherein the present applicant is also applicant and the second respondent is cited as the first respondent. The issues in the two applications are related. I have however opted to deal with the applications separately. This judgment is therefore in respect of case No. HC 11782/11.

The applicant is a claimant to the leadership/inheritance of Marange Apostolic Church of St Johanne which church he contended was founded by his late father. The first respondent is the executor estate late Johanne Marange DR 1263/02. The second respondent is a church organisation in which one Noah Taguta claims to be the High Priest. The third respondent is cited in his official capacity and in terms of the rules. The fourth respondent was a member of the church faction led by applicant and is alleged to have switched allegiance in the dispute between the leadership in the second respondent and the applicant.

In the year 2005 applicant instituted court action against the first to the third respondents wherein he sought, inter alia, the return of goods he alleged belonged to his late father, Johanne Marange. On 13 December 2006 a default judgment was granted in favour of the applicant. The second respondent applied for the rescission of that default judgment. On
 14 May 2007 I granted the application for rescission of judgment. In my order I gave directions for the second respondent to file its opposing papers.

On 3 February 2009 the applicant’s then legal practitioners filed a notice of withdrawal purportedly on the instructions of fourth respondent.

The applicant alleges that he only learnt on 10 November 2011 that his application in HC 2716/05 had been withdrawn on 3 February 2009. Investigations revealed that the fourth respondent had approached his erstwhile legal practitioners and informed them that the issue between the parties had been resolved and so applicant was withdrawing the matter. The legal practitioner, who had all along been dealing with the fourth respondent as agent for the applicant, obliged by formally withdrawing the case.

The applicant thus approached this court seeking an order to set aside the notice of withdrawal and a reinstatement of case no. HC 2716/05. He alleged that he had not instructed the fourth respondent to withdraw the matter at all. He had no intention of withdrawing the matter at anytime as the dispute had not been resolved.

The application is opposed by the second and fourth respondents. The respondent’s contention was basically that the withdrawal was done at applicant’s instruction and so must stand.

The main issue is on the validity or otherwise of the notice of withdrawal. In terms rule 189 of the High Court Rules, 1971,

“The court may at any time allow any party to amend or withdraw any admission so made on such terms as may be just.”

Court will however not grant such withdraw just on the asking. A party seeking such a withdrawal must show just cause.

In AD Transport (Pvt) Ltd v Abbot 1988 (2) ZLR 92 (SC) at 98 GUBBAY JA (as he then was) said:

“An amendment which involves the withdrawal of an admission will not be granted by the court simply for the asking, for it is an indulgence and not a right. ……….. Before the court will exercise its discretion in favour of the desired amendment, it will require a reasonable explanation, of both the circumstances under which the pleader came to make the admission and the reasons why it is sought to resile from it. If persuaded that to allow the admission to be withdrawn will cause prejudice or injustice to the other party to the extent that a special order for costs will not compensate him, it will refuse the application.”

See also Washaya v Washaya 1989 (2) ZLR 195 (H).


In *Eastern Highlands Electrical (Pvt) Ltd v Gibson investments (Pvt) Ltd* 2002(1) ZLR 417(S) court held that:

“An admission maybe withdrawn where it is contrary to the facts and where injustice would result from an adherence to the admission.”

See also *Chimutanda Motor Spares (Pvt) Ltd v Musare and Anor* 1994(1) ZLR 310.

In *casu*, the notice of withdrawal was filed by a legal practitioner. That legal practitioner has deposed to an affidavit confirming that fact. He also stated that he received the instructions from the fourth respondent. It is not disputed that at the inception of that case the fourth respondent was in the faction led by applicant but has since joined the second respondent.

The fourth respondent admitted that he dealt with Gunje & Chasakara (applicant’s then legal practitioners) in connection with cases which pertained to the faction of the church led by the applicant. He however contended that this particular case involved applicant in his personal capacity and so he was not the one acting for applicant. Unfortunately for fourth respondent, the dispute between applicant and the other party was essentially the same. It involved applicant’s claim to the inheritance of, among other things, High Priesthood of the church and all that goes with such priesthood. I am inclined to believe applicant and his erstwhile legal practitioner on this point.

I am of the view that the applicant’s explanation of the circumstances under which case no. HC 2716/05 was withdrawn clearly shows the withdrawal was not on his instructions. It was not contended by the respondents that any settlement had been reached. In the circumstances the withdrawal was clearly contrary to the facts on the ground as portrayed by both sides. I am of the view that no prejudice will be occasioned to respondents which cannot be compensated by an award of costs in the event they are victorious in the main case.

In any case a reinstatement of the case is the only way that the dispute between the parties can be conclusively adjudicated upon.

Accordingly I hereby make a finding that the withdrawal was not properly made as it was not made either by applicant or on his instructions. The withdrawal was clearly made without authority and for the purposes of defeating applicant’s cause. It cannot stand.

The applicant argued that the fourth respondent be ordered to pay the costs of this application on a legal practitioner–client scale.


The circumstances of this case smack of an element of dishonesty on the party of the fourth respondent. He surely must have realised that what he did has now been unearthed. It ought to have been clear to the respondents that what they had rejoiced as a withdrawal was in fact not properly made as soon as applicant raised the issue. The applicant’s then legal practitioners confirmed in no uncertain terms the person who had been dealing with them and who had given the instructions for the withdrawal. The reasons given for the withdrawal was clearly not true even to the knowledge of respondents as no settlement had been reached, the factions represented by the respective leaders never stopped being at each other’s throat. It was thus apparent to both the second and the fourth respondent that the withdrawal was a farce. In the circumstances applicant rightly deserves his costs especially from the fourth respondent.

Accordingly it is hereby ordered that:

1. The Notice of withdrawal of case No. HC 2716/05 be and is hereby set aside.
2. Case No. HC 2716/05 be and is hereby reinstated.
3. The fourth respondent shall bear applicant’s costs on a legal practitioner-client scale.

*Munangati & Associates*, applicant’s legal practitioners
*Danziger and Partners*, second respondent’s legal practitioners
*Dzimba, Jaravaza & Associates*, fourth respondent’s legal practitioners
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