George Doubt Chawawa vs Munashe Chawawa and others

### Preamble
1
HH 366-21
HC 2931/20
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GEORGE DOUBT CHAWAWA

versus

MUNASHE CHAWAWA

and

TATENDA CHAWANA

and

TRISH CHAWAWA

and

MELISSA CHAWAWA

and

MELODY CHAWAWA

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE, 14 June 2021 and 9 July, 2021

Opposed application

Ms C. Jiji, for the applicant

S. Katsuwa, for the respondents

MANGOTA J: A litigant who applies for the removal of the bar which operates against him admits the simple fact that he violated the rules(s) of court. His application for upliftment of the bar is, to all intents and purposes, a motion by him for condonation for his unwholesome conduct. He is, therefore, expected to be candid with the court, to give plausible reasons for his failure to comply with the rules of court and to place the court into his confidence in his effort to justify the condonation which he is moving the court to grant to him.

Where, in the process of applying to be condoned, he tells an obvious lie which runs contrary to matters which the court can mero motu take judicial notice of, his application for condonation or for upliftment of the bar cannot succeed. It cannot succeed because condonation is not there for the mere asking. It is available to a party who has a genuine reason, as opposed to a fanciful one, of flouting the rules of court. The court, therefore, exercises its discretion judiciously in granting, or refusing, an application for condonation or for the removal of the bar.

The remarks which I made in the foregoing part of this judgment are apposite to the present application. I heard it on 17 March, 2021. I delivered an ex tempore judgment in which I granted the motion of the applicant in terms of the draft.

On 1 April, 2021 the registrar of this court addressed a letter to me. He advised that the decision which I made on 17 March, 2021 was being appealed. He, therefore, requested for reasons which support my decision. These are they:

The applicant filed a suit against the respondents who are his children. He moved for their eviction from stand number 2423 Tynwald South, Harare (“the property”) which he said was his house.

The respondents resisted the eviction.  They filed their notice of opposition. They alleged, in the same, that they occupied the property through their mother one Loveness Kambuwa who claimed joint ownership of the property with the applicant who was, or is, her husband. She deposed to an affidavit to the stated effect. She admitted that the property was registered in the name of the applicant. She insisted, however, that she was a co-owner of the property with the applicant. She referred to the applicant as her husband with whom she gave birth to the respondents all of whom are of majority status.

It was on the basis of the above stated set of circumstances that the applicant applied for summary judgment. He did so on 14 August, 2020. He premised his application on the allegation that the respondents did not have a bona fide defence to his claim. He insisted that his claim was unassailable. He alleged that the defence which the respondents raised was nothing other than a delaying tactic on their part. He prayed for an order in terms of the draft.

The applicant filed his summary judgment application on 14 August, 2020. He served the same upon the respondents. These filed their notices of opposition on 3 September, 2020. He served his heads on them on 9 October, 2020.

The respondents should have filed their heads on 23 October, 2020. They did not. They were, therefore, barred. The bar which operates against them remained in place from 26 October, 2020 to 17 March, 2021, which is the date that I heard the application for summary judgment.

On the day that the application was to be heard, the respondents applied for upliftment of the bar. They applied orally and through counsel. He invoked r 84(1)(b) of the High Court Rules, 1971.

The rule allows a party who has been barred to apply orally at a hearing for removal of the bar. It reads:

“A party who has been barred may -

……; or

make an oral application at the hearing, if any, of the action or suit concerned;

and the judge or court may allow the application on such terms as to costs and otherwise as  he

or it ….. thinks fit.”

It is evident, from a reading of the rule, that the court has a discretion to grant or refuse the application for the removal of the bar. In exercising its discretion to grant or refuse the application, the court is guided by a number of factors.

Among the factors which the court takes into account are the extent of the delay, the reasons for the delay, the applicant’s prospects of success in the main matter, the prejudice which the granting of the application will cause to the respondent and the balance of convenience. These factors are considered together and not separately :Kombayi v Berkout, 1988 (1) ZLR 53 (SC).

The respondents stated, correctly in my view, that an applicant for upliftment of the bar must advance satisfactory reasons which support his application. They gave, as a reason for their inaction, that the Covid 19 pandemic which gripped Zimbabwe and the whole world made it impossible for them to file their heads within the dies induciae. They attributed part of the blame to the legal practitioner, one Shoko, whom they said was handling their case and left the law firm leaving counsel who appeared for them with the  unenviable task of having to read the file to enable him to appreciate the case of the respondents.

The applicant opposed the application for upliftment of the bar. He asserted that the respondents should have filed their heads on 23 October, 2020 or so soon thereafter. He insisted that Heads should have been filed when normal court business resumed on 2 March, 2021 or when the respondents received notice of set down of the summary judgment application. They, he stated, received the notice on 8 March, 2021 and they, he insisted, did nothing.

Counsel for the respondents was not being candid with the court when he attributed his client’s failure to file heads timeously to the corona virus pandemic. Judicial notice is taken of the fact that the courts of Zimbabwe were fully operational during the whole of the court’s calendar for the third term of last year.

The stament of the respondents was like that of a person who chose to hide behind a finger, as it were. They could not, in all honesty, ascribe their failure to act to a non-existent reason.

The respondents had every opportunity to have filed their heads within the dies induciae or to apply for upliftment of the bar during the period which extended from 26 October 2020 to the end of the court’s calendar for the third term. They have no explanation at all for their inaction for one whole month and some days. The delay which occasioned their non-filing of Heads is inordinate and their explanation is unreasonable.

Counsel for the respondents was not being candid when he submitted, as he did, that the court opened and closed in October 2020. The reality of the matter is that the court did not close at all when it commenced its operations for the third term of last year.

The falsehood of the submission of counsel becomes evident from the statement which he made towards the conclusion of his argument. He stated that he did not have the actual dates as to when the lockdowns which affected the courts were pronounced. He submitted that the lockdowns, to his knowledge, affected the operation of business in general.

The respondents advanced no reason at all for not having filed their heads within the dies induciae. What counsel for them did was to try his luck for, and on behalf of, them. He, in the process, told an obvious lie. He knew that the respondents had flouted the rules of court. Instead of apologizing and moving for genuine condonation, he made up his mind to tell a lie. The lie which he told made a mockery of the application which he filed orally. It placed him in a very invidious position where he had to make every effort to give a semblance of what he hoped would be believed.

It is trite that, if a litigant gives false evidence, his story will be discarded and the same adverse inferences may be drawn as if he has not given evidence at all: Leather Trade Zimbabwe (Pvt) Ltd v Smith, HH 131/03; L.H. Hoffman & D.T. Zeffrett South African Law of Evidence, 3rd Edition, p 472, Deputy Sheriff, Harare v Mahleza & Anor 1997 (2) ZLR 425.

The respondents told a blue lie. They gave a non-existent reason for having flouted the rules of court. The story which they told is, therefore, discarded and adverse inferences are not difficult to draw against them in the circumstances of this application.

The respondents, it is my view, never showed any keen intention to oppose the application for summary judgment. The fact that they did not file their heads from 23 October 2020 todate says it all. Nothing prevented them from applying for upliftment of the bar from the date that they became aware of its operation todate. They did not advance any reason as to why they did not apply under Rule 84(1)(a) of the rules of court during the period which commenced on 2 March 2021 when the business of the court became operational after the December 2020 vacation and the January to February 2021 lockdown period. They did nothing when they received the notice of set down on 8 March 2021. They have no reason at all for not having filed their heads.

Counsel for the respondent’s fall-back position was to the effect that the legal practitioner who was handling the respondent’s file, one Shoko, left the firm of Mudimu Law Chambers. Counsel, it is observed, was giving evidence from the bar. This, as is known, is not permissible. The evidence which counsel gave hang in the air, so to speak. Nothing supported his statement which he apparently said just for the sake of saying it. Neither the respondents nor him filed any supporting affidavit from Shoko. The statement of counsel, therefore, stood on nothing and no weight can be placed upon it.

It is pertinent for me to mention that, whilst an application for upliftment of the bar may be made orally, the difficulty which arises where a legal practitioner applies orally on behalf of the person whom he represents can hardly be over-looked. The legal practitioner has to make a distinction between evidence which is attributable to the applicant and the application of the law to that evidence which matter lies in the domain of the legal practitioner himself.

The legal practitioner who applies for the removal of the bar under r 84(1)(b) must, therefore, be a very skilful person. He must be able to distinguish what he says as the applicant from what he says as the legal practitioner of the applicant. He is an officer of the court whom the law regards as such. Where he chooses to tell a lie, as counsel for the respondents did in casu, the risk of him having his name and/or reputation tarnished can hardly be ignored or wished away. A fortiori where the lie which he tells is so obvious to the naked eye that it cannot be told with a straight face.

Because of the manner in which the respondents approached their application for upliftment of the bar, I cannot distinguish their unexpressed conduct from the conduct of their legal practitioner. He told a lie to salvage the case of the respondents. This is a case where, in my view, the respondents cannot be absolved from the sins of their legal practitioner. They cannot extricate themselves from what he did when he spoke for them as well as for him both in one. They should, therefore, suffer for the sins of their legal practitioner. Salojee v Minister of Community Development 1965 (2) SA 135 (A) at 141 C-E.

I have considered all the circumstances of this case. I am satisfied that the respondents failed to discharge the onus which rests upon them. They did not prove, on a balance of probabilities, that the bar which the rules imposed upon them should be lifted. The bar, therefore, remains in operation making the application for summary judgment to remain unopposed.

The application is, in the result, granted as prayed.

Mangwana and Partners, applicant’s legal practitioners

Mudimu Law Chambers, respondents’ legal practitioners