Lloyd Munyaradzi Manokore v Perkins Zhawari and Lillian Zhawari

1
                                                                                  HH 378-21
                                                                                 HC 5527/20
                                                                           REF CASE 2210/17




LLOYD MUNYARADZI MANOKORE
versus
PERKINS ZHAWARI
and
LILLIAN ZHAWARI


HIGH COURT OF ZIMBABWE
CHIRAWU-MUGOMBA J
HARARE, 29 June 2021

A Kadye, for the applicant
H Mukonoweshuro, for the respondent


Opposed Application


       CHIRAWU-MUGOMBA J: On 29 June 2021, I gave judgment ex tempore. I have
been requested to give reasons and these are they.
           The matter was placed before me as a chamber application for condonation and
upliftment of bar in terms of Order 32 r 241 as read with Order 12 r 84(1)(a) of the Rules of
the High Court, 1971.
       The applicant’s case is as follows. The 1 st and 2nd respondents filed summons in case
number HC2210/17 seeking to set aside a sale of property that was conducted by Manokore
and Partners. The applicant is a 2 nd defendant in that matter. He duly entered appearance to
defend but the notice was not served on the respondents within the prescribed time limits as
per r 49. On 3 April 2017, the applicant filed a special plea and exception to the summons
and declaration. This, together with the notice of entry of appearance to defend were served
on 5 April 2017. The respondents notified the applicant’s legal practitioners that the entry of
appearance to defend notice was irregular for non-compliance with r 49. The application for
a special plea and exception was duly set down for hearing on 28 July 2017. To the
applicant’s recollection, his legal practitioners applied for the removal of the bar out of the
abundance of caution. Judgment was handed down on 15 September 2020. The court held
that the applicant was barred for non-compliance with the provisions of r 49 unless he sought
condonation for the late service of the notice of appearance to defend hence this application.
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                                                                                         HH 378-21
                                                                                        HC 5527/20
                                                                                  REF CASE 2210/17

The notice was not served on time due to an omission by the applicant’s legal practitioner’s
law firm messenger who failed to serve it on time. It was served only 4 days out of time and
no prejudice was occasioned to the respondents. The most appropriate remedy at most is an
order of costs against the applicant who has a good defence on the merits. When the
respondents filed HC 2210/17, they had filed a similar matter in the High Court at Bulawayo
which was only withdrawn after the special plea and exception had been filed. The
respondents lawfully ceded their immovable property to National Foods for sale. Applicant
acted at all times within the provisions of the power-of-attorney. The balance of convenience
favours the applicant because at stake is an immovable property and the respondents claim is
for its replacement. If the application is not granted, the applicant will be ordered to replace
the property without a trial. If the court does not grant the application for condonation, the
applicant tenders the amounts claimed by the respondents in the alternative prayers.
         The application is strongly opposed by the respondents. They make the following
averments. The sale and transfer of the immovable property that is the subject of the
contestation was unlawful, it was done without a court order and without authority. The
power-of-attorney was granted in 2012 and the alleged default was in 2013. Therefore it
could not be used to sell the property. The applicant therefore does not have prospects of
success on the merits. The judgment of the court in HC 2210/17 noted that the applicant had
flagrantly and knowingly refused to seek condonation for breach of court rules. Whilst
admitting that the applicant has a reasonable explanation for failure to serve the notice of
entry of appearance to defend, he has no reasonable explanation for a delay in excess of three
years to seek condonation. The currency since 2017 has since changed and an order of costs
against the applicant will not cure the financial prejudice that the respondents have suffered.
It is trite that the granting of an application for condonation is at the discretion of the court.
        As per The Civil Practice of the Supreme Court of South Africa 4 ed by van Winsen,
Cilliers and Loots at pp. 897-898;
         “Condonation of the non-observance of the rules is by no means a mere formality. It is for
        the applicant to satisfy the court that there is sufficient cause to excuse him from compliance
        …..The court's power to grant relief should not be exercised arbitrarily and upon the mere
        asking, but with proper judicial discretion and upon sufficient and satisfactory grounds being
        shown by the applicant. In the determination whether sufficient cause has been shown, the
        basic principle is that the court has a discretion, to be exercised judicially upon a
        consideration of all the facts, and in essence it is a matter of fairness to both sides in which
        the court will endeavour to reach a conclusion that will be in the best interests of justice. The
        factors usually weighed by the court in considering applications for condonation ... include
                                                                                               3
                                                                                       HH 378-21
                                                                                      HC 5527/20
                                                                                REF CASE 2210/17

       the degree of non-compliance, the explanation for it, the importance of the case, the prospects
       of success, the respondent's interest in the finality of his judgment, the convenience of the
       court and the avoidance of unnecessary delay in the administration of justice.”
       This approach has been followed in this jurisdiction in a plethora of cases.
       At the hearing Mr Kadye submitted that there are two periods to be reckoned with in
determining whether or not the applicant has a reasonable explanation for the default. The
first period is between 21 March 2017 to 5 April 2017. This is the time when the applicant
filed and served its notice of entry of appearance to defend. This period is not contested. The
second period is the post judgment period, i.e. from 28 July 2017 to the 15 th of September
2020 when the court in HC 2210/17 held that the applicant’s exception and special plea were
improperly before the court regard being had to the fact that the notice of entry of appearance
to defend was not served. Therefore the contention by the respondents that applicant delayed
for a period of three years cannot be correct. Applicant could not have applied for
condonation without the judgment. Mr Mukonoweshuro submitted that the applicant’s legal
practitioners had been warned in 2017 that the non-service of the entry of appearance to
defend was an irregularity but they chose to do nothing. The court in HC 2210/17 stated that,
‘I agree with the plaintiff’s that the second defendant is in breach of a mandatory provision
of the rules and that unless condonation is granted, he remains barred”. Despite displaying
an attitude that can only be described as arrogance, the applicant must be given the benefit of
the doubt that indeed there are two periods to be reckoned with and that he could not have
made an application for condonation whilst waiting for the outcome of the matter. After all
the service of the appearance to defend was a major issue and the pronouncement by the court
would be material to whether or not he needed to be condoned.
       The crux of the application that will have a bearing on the other factors to be taken
into consideration lies on the prospects of success of applicant if were to be condoned. The
court drew the attention of Mr Kadye to two related matters. The first matter involves the
Legal Practitioners Disciplinary Tribunal (LPDT) 09/18 under HH-167-21. In that matter the
LPDT ordered that the applicant’s name be deleted from the register of Legal Practitioners,
Notaries Public and Conveyancers. What is critical is that the reasons for the order made
involved the issue of the sale of an immovable property belonging to the respondents, the
same subject matter in HC 2210/17. The LPDT made these (and other specific findings)
against the applicant (where he was the respondent) as follows:-
                                                                                               4
                                                                                       HH 378-21
                                                                                      HC 5527/20
                                                                                REF CASE 2210/17

       ‘It is further clear that the respondent was not circumspect in analysing the power of attorney
       that he relies on as authority for the disposal of the immovable property. My accepting to be
       complainants’ attorney and agent, the respondent owed the complainants a duty of care. Had
       he done so, it would have been clear to him that the complainants are identified in the power-
       of attorney as being indebted to his client National Foods Limited. The complainants did not
       have a contractual relationship with National Foods Limited in terms of which they were
       indebted to that company. They were sureties to the credit facility extended to Celgrim
       Bakeries. Further, they did not hold themselves in the power-of-attorney to be co-principal
       debtors with Celgrim bakeries.’

       Further that,
       ‘The complainants could not be indebted to National Foods Limited (in terms of an
       unspecified agreement between the two) and at the same time cede their property in support
       of a credit facility advanced to Celgrim. Both the power of attorney and the affidavit were
       therefore in our view, invalid ab initio’

       In LPDT1/21, the applicant filed an urgent application seeking suspension of the
determination in HH-167-21 pending the outcome of an appeal noted to the Supreme Court.
MUSAKWA J (as he then was) stated as follows, ‘We also found that the applicant sold a
property of the Zhuwaris that had been offered as security for a loan extended to Celgrim
Bakeries (Pvt) Ltd by National Foods Limited without their consent or an order of court”.
Further that, ‘It was the finding of this Tribunal that the power of attorney that the applicant
relies upon was irregular’. The application was dismissed.
       This court cannot ignore the two matters since they involve the same issues as in HC
2210/17. These findings cast a shadow on the applicant’s special plea and exception that he
seeks should be heard on the merits should the application for condonation be granted. In my
view, the findings buttress the respondents’ position as submitted by Mr Munoweshuro that
the applicant has no prospects of success if he were to be condoned for the late service of the
notice of entry of appearance to defend. It cannot be correct as submitted by Mr Kadye that
the findings are related to the present application but not to the extent of affecting the
application for condonation. The findings clearly are significant to the prospects of success.
Having said that I am mindful of the fact that denying an application for condonation can
potentially infringe the constitutionally protected right to a fair hearing and to equal
protection before the law. The beauty of the law however is that the court is given wide
discretion that it should exercise judiciously. In my view, it will not augur well to keep
subjecting the respondents to court processes after the loss of their immovable property. The
events giving rise to this matter arose in 2012. Since then there have been numerous cases
before this court including instances in which the applicant sought to delay the proceedings
                                                                                        5
                                                                                HH 378-21
                                                                               HC 5527/20
                                                                         REF CASE 2210/17

before the LPDT. The respondents deserve finality in litigation. I am fortified in my view by
the fact that the LPDT hearings are unique in that they are presided over by two judges and
three legal practitioners. The findings they make are the product of thorough considerations
of all the facts at hand and the law. The three legal practitioners have no interest in
disciplinary matters other than ensuring that an errant legal practitioner is punished
accordingly meaning that they also ensure that one who is not errant is protected. The
Tribunal found that the applicant deserved to be punished and this they did by ordering
deletion of his name from the Register of Legal Practitioners.
        The application for condonation therefore has no merit.
       The applicant has unnecessarily dragged the respondents to court again without
justification. He ought to be slapped with an order of costs.
DISPOSITION
   It is ordered that:-
   1. The application be and is hereby dismissed with costs.




Manokore & Partners, applicant’s legal practitioners
H. Mukonoweshuro & Partners, respondents’ legal practitioners