Digit-On Investments (Pvt) LTD AND W.d.m Investments (Pvt) LTD AND Lagher Investments (Pvt) LTD Versus National Railways Contributory Pension FUND AND National Railways OF Zimbabwe AND Sheriff OF HIGH Court N.O

### Preamble
1
HH 519-18
HC 2911/18
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DIGIT-ON INVESTMENTS (PVT) LTD

and

W.D.M INVESTMENTS (PVT) LTD

and

LAGHER INVESTMENTS (PVT) LTD

versus

NATIONAL RAILWAYS CONTRIBUTORY PENSION FUND

and

NATIONAL RAILWAYS OF ZIMBABWE

and

SHERIFF OF HIGH COURT N.O

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE, 30 March 2018 and 12 September, 2018

Urgent Chamber Application

No Appearance by Applicants

In Attendance: P.M Mazhande

N. Bvekwa, for the 1st and 2nd respondents

CHITAPI J: I was on the urgent applications duty roster in the week beginning 26 March, 2018 through to 1 April, 2018. Being on urgent duty is a daunting assignment for any judge because the judge on duty is on call twenty four hours. Judges take turns to perform the 24 hour shift.  It is their duty to be available all the time to dispense justice to all and sundry.

On 29 March, 2018, I received a phone call from the duty Registrar advising that an urgent chamber application had just been filed. The time of the call was about 6.50 p.m. I happened to be still in my chambers. I directed the Registrar to bring the application up to my chambers on the 1st floor so that I would run through it and give directions as to its management. Rule 244 of the High Court Civil Rule, 1971 mandates the Registrar to “forthwith submit to a judge” any chamber application accompanied by a certificate of urgency from a legal practitioner. The rule places a lot of trust and responsibility upon legal practitioners to play a role in the set down of urgent applications. The legal practitioner attesting to a certificate of urgency assumes a quasi-judicial function in that such legal practitioner expresses an opinion on the application regarding the urgency of the same. The certificate is of such critical importance that a judge acts on its strength to abandon other work and attend to the call by the certifying legal practitioner that a matter whose determination cannot await to be resolved in line with earlier filed matters has presented itself. If legal practitioners can appreciate that the certificate of urgency has the effect of making the judge jump, then one hopes that such power is not abused.

When the application was placed before me, I checked the certificate of urgency. It was very brief. It purported that one, Admire Masango, a legal practitioner practising with Muronda Malinga legal practitioners had prepared it. No urgency was disclosed in the certificate because the applicants were seeking a stay of an eviction sanctioned by judgment of this court which judgment had not been appealed against nor compromised.

I set down the application for hearing on the following day 30 March, 2018 at 11.30 a.m. I directed the duty Registrar to notify the parties of the hearing in the usual manner. I had the option to mark the application as not urgent and to refer it to the Registrar for the applicants if advised to use the ordinary roll for applications. What motivated me to set the matter down was that I had determined that the application was an abuse of court process and in particular of the urgent chamber applications procedure. I wanted the applicants’ legal practitioner to explain his apparent abuse of the procedure for urgent applications and to  show cause why I should not make an order of costs against the applicants’ legal practitioners debonis propris as a mark of disapproval for abuse of process. I also intended to call upon the certifying legal practitioner to justify why a clearly unmerited application was blessed with an undeserving certificate of urgency. I also proposed to make a costs order against the certifying legal practitioner. In this regard I make reference to my judgment in Elizabeth Kwaramba v Real Estate Sense (Pvt) Ltd and Sheriff of Zimbabwe HH 628/17. In that judgment which I ordered that it brought to the attention of legal practitioners through the Law Society, I expressed the view that it was now time for the court to visit legal practitioners who abused the urgent applications procedure with costs orders. Subject to the audi-alteram partem rule wherein I would hear the legal practitioners before making an appropriate order, I had marked out this applications as prima facie suited to a consideration of penalizing the errant legal practitioners as threatened in HH 628/17.

At the appointed time for the hearing, I had no idea that I was in for a greater surprise. Mr P Mazhande of Mazhande and Mazhande Legal Practitioners, the purported legal practitioners for the applicants appeared with Mr N Bvekwa for the first and second respondents. They exchanged the customary greeting of “good morning judge”, to which I responded knowing fully well that deep down, I had not had a good evening nor morning because of the unmerited urgent application which I had to read over after disturbing my diary for the day. I said to myself, Mr Mazhande had better prepare to give a good explanation to justify the filing of the application on the urgent roll.

Mr Mazhande whom I expected to say that he was representing the applicants, politely submitted that he did not represent anyone but had simply attended because the Registrar had telephoned him the previous night around 8.00pm to advise him that the urgent application filed by his firm had been set down for the following day at 11:30am. He disowned the application and expressed total ignorance of the application. He submitted that a fraud and forgery had been committed against his firm through the use of his trade name because he did not file the application. The purported applicants did not attend before me.

If the surprise which I had experienced the previous night over the abuse of process in filing the purported urgent application was anything to go by, then, the submission by Mr Mazhande frightened the daylights out of me. It was more shocking that the legal profession could so easily be infiltrated by imposters. I directed Mr Mazhande to put his protestations and denial in writing so that I would in turn bring it to the attention of the Judge President and The Law Society that such irregular practices were taking place. The Judge President to whom a copy of this judgment will immediately be referred will no doubt take such measures as he considers appropriate to curtail the irregular practice of fraudulent process being filed in the courts.

Mr Mazhande subsequently addressed a letter to the Registrar on 5 April, 2018. I quote the letter in full.

“5 April, 2018

RE: DIGIT –ONE (PVT) AND TWO (2) OTHERS VS NATIONAL RAILWAYS OF 	ZIMBABWE CONTRIBUTORY PENSION FUND AND TWO (2) OTHERS: HC 2911/18

The above matter refers.

It was brought to my attention on Thursday 29 March 2018 at around 2000 hours by the Registrar that an urgent chamber application had been filed under the name of our Law Firm and that the matter had been set down for hearing before Justice Chitapi on Friday 30 March 2018 at 11.30am. This came as a surprise to myself as our Firm had not attended to any urgent 	chamber application on the said date or during the same week.

Our Mr Mazhande then appeared before Justice Chitapi on 30 March 2018 at 11.30am. He then noted that he was not aware and had not received any instructions from any of the parties sighted	in the said application. None of the sighted parties are our clients.

We therefore, believe that this was the work of an individual abusing our name and our 	Honourable Courts.

We hope that this will be looked into.”

In view of the fact that the application was disowned by the legal practitioner who purportedly filed it, it was agreed by both Messrs Mazhande and Bvekwa that such conduct of impersonating legal practitioners should be nipped in the bud. It is not for me to suggest how this can be done. The best l can do is to raise the red flag and alert the judges through this judgment to be on the guard. The Judge President as indicated will be appraised accordingly. The following order was therefore made in the light of the fact that the identities of the applicant could not be verified thus making a dismissal inappropriate.

Order

The application is struck off the roll.

Copy of this judgment should, be forwarded to the Law Society by the Registrar.

Bvekwa & Associates, 1st and 2nd respondents’ legal practitioners