Harare AND District Hellenic Community V Cremion Claudious Mapfumba AND Zimbabwe Electricity Transmission AND Distribution Company AND CITY OF Harare

### Preamble
1
HH434-2012
HC 2266-2012
HARARE AND DISTRICT HELLENIC COMMUNITY
versus
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==============================HARARE AND DISTRICT HELLENIC COMMUNITY
versus
CREMION CLAUDIOUS MAPFUMBA
and
ZIMBABWE ELECTRICITY TRANSMISSION AND
DISTRIBUTION COMPANY
and
CITY OF HARARE

HIGH COURT OF ZIMBABWE
BERE J
HARARE, 7th and 8th November 2012

Ms S. Njere, for the applicant
T. Magwaliba, for the 1st respondent

Opposed Application

BERE J: On 28 June 2012 the applicant filed the instant application. It was not until 7 November that this matter had to be argued as an opposed application in Court.

When the two counsels appeared before me to argue this matter, the first respondent’s counsel raised two points in limine which he hoped would dispose of the matter in the first respondent’s favour without dealing with the matter on merits. The 1st point in limine taken by counsel for the first respondent for the first time ever was to challenge the status of the deponent to the applicant’s founding affidavit. It was argued that on the papers the deponent had not properly articulated his capacity in bringing the application before the court and that he had failed to attach the applicant’s constitution to his founding affidavit. In advancing his argument, counsel referred me to three authorities where the same was dealt with viz, Mashonaland Turf Club v Nyamangunda¹; Christian Faith Tabernacle v Sparrows Nest Ministries² and Privatisation Agency of Zimbabwe & Another v Ukubambaba Kubatana Investments (Pvt) Ltd and Another³. I have acquainted myself with the cited authorities and I have noted the desired relevance to the application before me.


The second point raised in *limine* is that given the nature of the applicant’s claim, the applicant had appeared in the wrong court as it ought to have taken its dispute to the Administrative Court in terms of section 114 of the Water Act.\(^4\)

When the arguments were presented I expressed my misgivings about the conduct of the first respondent’s counsel of waiting until the date of hearing to start raising the first preliminary point for the first time ever.

I have reflected on the position taken by counsel and I accept that points of law need not necessarily be pleaded and that they can be raised at any stage in the proceedings.

However, I remain convinced that where points of law lean on factual allegations (as is invariably the case in the majority of these cases) to which the attention of the other party should have been drawn during pleadings, such an opportunity must not be lost. The concerned party must take the initiative to raise his concern to the would be offending party so that corrective action can be taken before the matter goes far.

Failure to do so by the concerned party like what the first respondent in the instant case has done may portray his raising of the point in *limine* in bad light. The other party might feel justified in thinking that the objection is tainted with *mala fide* and that it is being spuriously raised to delay the smooth finalization of an otherwise straight forward or clear case.

I hold the view that by operation of practice legal practitioners must feel inclined to keep their lines of communication open to each other despite representing parties or litigants with conflicting interests. Legal practitioners must develop a culture of communicating with one another on behalf of their respective clients for the mutual benefit of such clients and of course, the Court itself. My view is that such a practice of engagement would have a positive effect of reducing the areas of disagreement which are brought to court for adjudication. There should be no room for any legal practitioner to enthuse themselves in ambushing the other.

As it turned out in this case, when the applicant’s constitution was forwarded to me through my clerk by counsel for the applicant who obviously was not amused by the conduct of the first respondent’s counsel of raising a technical objection on the 11th hour of the hearing, if both legal practitioners had exchanged the constitution before the hearing, the first respondent’s counsel would not have wasted time raising the first preliminary point because the answer was there in the constitution. The first preliminary point is accordingly found against the first respondent.

On the second point raised, the applicant has produced a deed of transfer showing that the first respondent is not occupying any open space but property owned by the applicant. The substantive remedy desired by the applicant is to have its property freed from occupation by the first respondent.

It is a gross exaggeration for the first respondent to argue that this remedy is the prerogative of the Administrative Court.

On the contrary the interdict sought by the applicant has nothing to do with the Administrative Court which in any event is statutorily incapacitated to deal with the relief desired by the applicant. I am satisfied that the applicant is in the right court and I agree with the applicant’s counsel that the thrust of the court must be to determine whether or not the requirements of an interdict are established by the conduct of the first respondent vis-à-vis the applicant’s rights on the property. I am unable to find the second point sustainable and both points are dismissed with costs.

Messrs Honey and Blackenberg, Applicant’s legal practitioners
Messrs Moyo and Maguranyanga, 1st respondent’s legal practitioners
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