Maxwell Matsvimbo Sibanda v Gwynne Ann Stevenson & 7 Ors

### Preamble
1
HH 474-18
HC 3656/18
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MAXWELL MATSVIMBO SIBANDA

versus

GWYNNE ANN STEVENSON

and

BRIAN STEVENSON

and

WINTERTONS LEGAL PRACTITIONERS

and

N.M.WILSMER

and

MRS CHIMBINU OF KANTOR & IMMERMAN

and

MINTER TRUST

and

THE REGISTRAR OF DEEDS

and

KANTOR AND IMMERMAN LEGAL PRACTITIONERS

HIGH COURT OF ZIMBABWE

MUZOFA J

HARARE, 19 July 2018 and 8 August 2018

Opposed Application for Joinder

Plaintiff – In Person

No appearance for 1st, 2nd, 3rd,4th,5th ,6th ,7th  respondents

Ms T Makanga, for the 8th respondent

MUZOFA J: The applicant seeks an order in the following terms, that:

“1.	The 8th respondent be and is hereby joined to the proceedings under case number HC 3203/18.

2.	Costs be in the cause.”

The applicant states that he was a lessee of a property owned by the first respondent.

The parties agreed that the applicant could effect renovations and improvements on the property, which he did. In due course sometime in August 2005 the first respondent offered the applicant the property for USD 220 000. The sale did not materialise due to the first and second respondents’ fault. In 2007 the applicant registered a caveat over the property through his erstwhile lawyers the eighth respondent. Around October and November 2007 the eighth respondent renounced agency. In February 2016, the applicant says he went to the Deeds Office to check on the property’s title deeds, to his surprise the caveat had been removed in October 2014 on the instruction of the fifth respondent who was employed by the eighth respondent. This was seven years after the eighth respondent renounced agency and the removal of the caveat was done without his knowledge. The applicant also discovered at the Deeds Office that the property had been transferred to the sixth respondent on the instruction of the first; second, third, fourth and fifth respondents. According to the applicant it is in the interest of justice that the eighth respondent be joined in the case HC 3203/18 since it has a direct interest in the matter.

In HC 3203/18 the applicant seeks an order that he be given the first option to purchase the property, that the removal of the caveat at the instance of the fifth respondent an employee of the eighth respondent be declared null and void, that the transfer of the property to the sixth respondent be declared null and void, that the sale of the property be declared null and void and costs on an attorney and client scale.

In short, the applicant seeks the eighth respondent’s joinder for the role of the fifth respondent its employee who caused the removal of the caveat on the property leading to the sale and transfer of the property to his prejudice.

The application was opposed by the eighth respondent. Precious Chakasikwa deposed to an affidavit on behalf of the eighth respondent. She states that the eighth respondent last dealt with the applicant in 2007 and is unaware of what transpired thereafter. Fifth respondent is unknown to the eighth respondent although at some point it had a Mrs Charity Chimbinyu in its employ who retired in December 2014. Further, that the applicant only referred to case HC 3203/18 but did not attach the pleadings, it is unaware of the issues in the said case. She also indicates that the applicant failed to set out what is the eighth respondent’s direct interest in the matter. On that basis there is no cause of action that arises against the eighth respondent. In any event, the applicant was aware that the caveat was to be removed and that the property was to be sold, he did not object.

I do not think the applicant’s case is with merit. A litigant has a right to seek joinder of a defendant at any stage of the proceedings. In terms of r 85 of the High Court Rules of Zimbabwe, 1971, two or more persons may be joined in one action as the plaintiff or defendants where if separate actions were brought against each of them some common question of law or fact would arise in those actions and also rights to relief claimed arise out of the same transaction.

In terms of r 87 (2)

“At any stage of the proceedings in any cause or matter the court may on such terms as it thinks just and either on its own motion or on application –

(b)	order any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter maybe effectually and completely determined and adjudicated upon, to be added as a party; but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorised.”

Joinder is therefore an exercise of discretion of the court on a proper consideration of the facts. The onus is on the applicant to show that the party sought to be joined is necessary in the resolution of the pending matter or has an interest in the matter. The order sought by the applicant that relates to the eighth respondent is the removal of the caveat. In its opposing papers the eighth respondent does not deny being involved in the removal of the caveat. It is explained that the applicant was aware of such intended removal. I was referred to some letters in HC 3203/18 which I could not find on perusing the said pleadings. It also raises the issue of prescription.

If there is any liability that has to attach to the eighth respondent it is through the work of its employee the fifth respondent. The sentiments by Mafusire J LAPF v Nyakawa and Others HH 60/ 15 on vicarious liability are apposite in this case that:

“An employer is liable for the wrongs done by his employee to another person in the course and scope of that employee’s employment. That an innocent employer should be liable for the wrongs committed by his employee during the course and scope of that employee’s employment is a matter of public policy. The rationale is that the employer’s work is done “by the hand of the employee”. The employer creates a risk of harm to others should the employee prove to be negligent, inefficient or untrustworthy. The employer is therefore under a duty to ensure that no injury befalls others as a result of the employee’s improper or negligent conduct in carrying on his work. The employee’s wrongful act can either be culpa (negligence), or dolus (intention), or both”.

In the applicant’s founding affidavit there is nothing alleging any negligence on the part of the fifth respondent. In my view even if he was not advised of the removal of the caveat the proceedings between the applicant and the first and second respondent and the outcomes were clear evidence that the owners of the property were at liberty to deal with the property as they pleased. The applicant has litigated seeking transfer of the property and enforcement of the sale agreement he entered into with the first and second defendants. He has been unsuccessful. The decision has been confirmed by the Supreme Court.

I am alive to Cheda J’s remarks in Sibanda v Sibanda and Anor 2009 (1) ZLR 64 (H) at 66H-67A that:

“It is therefore, pertinent to enquire as to the consequences of a non-joinder.  The prejudice is therefor anyone to see: there will be a lot of inconvenience, not only to the applicant, but to the court as well. No doubt this will result in the applicant being oppressed and, in an attempt to extricate herself therefrom, there will be a multiplicity of actions, a situation which should be avoided if possible see Mogan and Anor v Salisbury Municipality 1933 AD 167.”

The consequence of a non-joinder of the eighth respondent  are not obvious in this case particularly in the absence of an allegation that shows that the fifth respondent was negligent and caused the removal of the caveat in the course of his or her duties.

In Marai and Anor v Pongola Sugar Milling Co. and Ors 1961 (2) SA 698 N the court applied a two-tier approach in the determination of an application for joinder that:

“1.	that a party must have a direct and substantial interest in the issues raised in the proceedings.

2.	that his right may be affected by the judgment of the court.”

Clearly the eighth respondent neither has a direct interest in the matter nor was it shown by the applicant that it has such an interest.

There is no basis to order a joinder of the eighth respondent in the main matter	Accordingly,

The application be and is hereby dismissed.

Costs be in the cause.

Kantor and Immerman, 8th respondent’s legal practitioners