Kennedy Godwin Mangenje v TBIC Investments (Private) Limited & 2 Ors

### Preamble
Judgment No. 16/18
1
Chamber Application SC 68/17
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DISTRIBUTABLE 	(12)

KENNEDY     GODWIN     MANGENJE

v

TBIC     INVESTMENTS     (PRIVATE)     LIMITED     (2)     PAUL     ESAU     HUPENYU     CHIDAWANYIKA

SUPREME COURT OF ZIMBABWE

HARARE JUNE 15, 2017 & FEBRUARY 28, 2018

E. Matinenga, with E. Jera, for the applicant

K. Gama, with Mr. K. Kapaso, for the respondent

Before GUVAVA JA, In Chambers

This is a chamber application which was made in terms of r 39 (4) of the Rules of the Supreme Court, 1964. The applicant was seeking an order to lead further evidence in a matter which had been heard on appeal in this court and was awaiting judgment.

BACKGROUND

The background to this application is quite simple, and may be summarized as follows:

The dispute between the parties revolves around a piece of land called the remaining extent of Stuhm in Goromonzi. The parties appeared before the Supreme Court on 31 January 2017

to argue an appeal concerning the dispute between them. The court comprised of Justices Gwaunza JA, Gowora JA and Bhunu JA. During submissions the court inquired as to the status of the land in question, that is, whether or not any developments had been effected on the land. In response counsel for the applicant (who was the second respondent in the appeal) submitted that there were no developments on the property.  The court reserved judgment after hearing submissions by both counsel. The applicant subsequently filed the application before me seeking to produce further evidence, on the state of the land in dispute, as applicant stated that counsel had given the court wrong information.

The application was opposed by the respondents. Mr Gama for the respondents raised four preliminary points in the opposing affidavit and in heads of argument filed. He submitted that the application was fatally defective as it did not comply with the requirements of r 39 (4) of the Rules.

He also submitted that an application in terms of r 39 may only be made by way of court application before the court seized with the appeal and not in chambers before a single judge.

At the hearing, Mr Matinenga, for the applicant, submitted that the application before the court was essentially an application for leave to lead further evidence before the court which had heard the appeal and not an application to lead further evidence strictu sensu as required by r 39 (4). It was his argument that he had been constrained to use this rule as he could not find an appropriate rule in the Supreme Court Rules which allowed him to ask for the relief he sought. As such he had decided to approach a judge in chambers for directions on how he could lead the

further evidence before the court which had heard the appeal using the rule for leading further evidence on appeal. He argued that the basis for such an application was that the issue was unprecedented but had arisen due to the issues raised by the judges during the hearing of the appeal.

ISSUES

Taking cognizance of all these facts, it was my view that four issues arise for determination.

The first issue is whether an application in terms of r 39 of the Supreme Court Rules can be made by way of chamber application.

The second issue is whether this application complied with r 39 (4) of the Supreme Court Rules.

The third issue is whether this was indeed an application for permission to approach the court, who had heard the appeal, and not the actual application in terms of r 39 (4).

The fourth issue is, once a court has reserved judgment, are litigants still at liberty to lead further evidence which was not before the court during the hearing.

WHETHER AN APPLICATION IN TERMS OF RULE 39 OF THE SUPREME COURT RULES MAY BE MADE BY CHAMBER APPLICATION

It was submitted that this application was not properly before me. I agreed entirely with the submissions made by Mr Gama.

It is now trite that applications in terms of this rule must be made by way of court application in open court.   Rule 39 (1) provides:

“Subject to the provisions of rules 31, 36. 37 and 38 applications shall be by court application signed by the applicant or his legal representative and accompanied by an affidavit setting out any facts which are relied upon.”

In the case of Blue Rangers Estate (Pvt) Ltd v Jamaya Muduviri and Anor SC 20/09 MALABA DCJ (as he then was) had occasion to interpret this Rule. He stated that an application in terms of r 39 must be made by way of court application in open court.

It is common cause that in this matter the Supreme Court had already heard the appeal on 31 January 2017 and reserved its judgment.  At the hearing of this appeal no such application was made.

The application before me was a Chamber Application. I had not been part of the court that heard the appeal I was therefore satisfied that I could not deal with the application in terms of this Rule.

WHETHER THE APPLICATION COMPLIES WITH R 39 (4) OF THE SUPREME

COURT RULES

It was also my view that even if the application was properly before me, it was evident that it did not comply with the rule under which it had been brought before the court. The rule reads as follows:

Rule 39(4)

“An application to lead further evidence on appeal shall be accompanied by that evidence in the form of an affidavit and also by an affidavit, or a statement from counsel, showing why the evidence was not led at the trial, as also a copy of the judgment appealed from and

a statement indicating in what manner it is alleged the evidence sought to be adduced affects the matters at issue.”

A proper reading of this Rule shows that these requirements are peremptory. An application in terms of this rule must contain the following:

The evidence sought to be led must be in the form of an affidavit;

There must be an affidavit or statement from counsel explaining why such evidence was not led at the trial;

The application must have a copy of the judgment from the court of first instance; and

There must be an affidavit or statement from counsel explaining how such evidence would affect the decision of the appellate court.

In casu there is no affidavit from the applicant’s legal counsel showing why the evidence was not led in the court a quo. If they were of the view that such evidence was important it should have been led before the court a quo.

Secondly, the applicant did not attach a copy of the judgment appealed against in the present application.

Thirdly the evidence presented is in the form of pictures and not an affidavit as required by this rule. Even if the applicant wanted to rely on the photographs it seems to me that it would have been necessary to have some evidence explaining who had taken the photographs and when and where they had been taken. One cannot simply expect a court to rely on photographs which could have been taken at a completely different location to the one in issue.

In my view, failure to comply with the specific requirements of this Rule renders the application fatally defective.

When these irregularities were brought to counsel’s attention, he conceded the defects but submitted that the requirements were not peremptory. However, no authority was submitted for such an interpretation. As there was no authority to base this opinion I was of the view that the clear wording of the rule should prevail.

I was also fortified in this view by the fact that the purpose of the rule is to seek an indulgence from the court. It cannot be argued that in such circumstances a strict interpretation should not be applied.

WHETHER THIS WAS AN APPLICATION TO LEAD EVIDENCE BEFORE THE JUDGES SEIZED WITH THE MATTER ON APPEAL

Mr Matinenga further submitted during the hearing that the application was not one to lead further evidence but in fact merely one requesting permission to allow the applicant to approach the judges who had heard the appeal so that they could determine whether or not the further evidence should be allowed.

I was not persuaded by this submission. It appeared to me that this was clearly an afterthought after realizing the defects in the application.

An examination of the founding affidavit belies such an explanation. In order to illustrate this point, I will reproduce in full the relevant parts of the founding affidavit.

“NATURE OF APPLICATION

In this application I am seeking an order allowing me to lead further evidence to this court in terms of R 39 (4) of the Rules of this Court…

In view of the foregoing, I humbly pray that this court allows that this further evidence be presented so that the court can determine the matter with that evidence available as opposed to submissions made by my legal counsel from the bar which was not informed.”

In my view this was clearly a request for the evidence to be placed before the judges who had dealt with the matter after considering the merits of the application. It could never be construed as an application to be allowed to make the application before the judges who were seized with the matter. This position is also fortified by the wording of the draft order that was attached to the application.

The draft order was worded as follows:

“It is ordered that:

The application be and is hereby granted.

The applicant be and is hereby granted leave to adduce further evidence on appeal under SC 469/13.

Each party shall bear its own cost.”

I have no doubt that this was an order to include further evidence in the matter on appeal. During the hearing Mr Matinenga sought to amend the draft order in para 2 so that it could read as follows:

“2, That applicant be and is hereby granted leave to adduce further evidence on appeal before

judges Gwaunza, Gowora and Bhunu under SC 469/13.”

Although an application to amend a draft order may be made during the course of the hearing it obviously must be backed by the evidence as contained in the founding affidavit.

It is trite that an application stands or falls on the contents of its founding affidavit. As I stated above the founding affidavit which had been filed by the applicant was one requesting leave to lead further evidence in terms of r 39 (4) of the Supreme Court Rules and no amount of tweaking could change the import of the application that had been filed.

The amendment which was being sought to the draft order was not supported by the founding affidavit that was filed by the applicant. In my view the application would also fail on this point.

It seems to me that even if Mr Matinenga was correct that the application before me was merely one seeking leave to lead further evidence before the judges who had heard the matter, such an application could not be made in terms of this rule. As stated before an application in terms of r 39 (4) of the rules of court is a special procedure established in order to allow a court seized with a matter to determine whether or not such evidence is necessary in the resolution of an appeal. A careful reading of the rule shows that it was never envisaged that it could be used to allow a litigant to approach another judge to give him authority to approach the court that initially dealt with the matter.

Counsel argued that the application was based on the case of Tsvangirai & Ors v Registrar General 2002 (2) ZLR 653. This case dealt with how submissions may be made to a court after a hearing but before judgment is delivered. These were legal arguments which were to be placed before the court. The case did not deal with the question of leading further evidence

which had never been before the court a quo and in my view is clearly distinguishable on the facts. The operative part of this judgment reads as follows:

“The third issue relates to something that happened after the hearing of the appeal had been concluded and the court had reserved its judgment. The appellant, without first applying to do so and, therefore without the invitation of the court sought to introduce, after the fact, a document entitled “The Appellant’s Further Submissions”. No authority was cited as the basis for the submission of this document. The two learned judges who heard this appeal together with me each received a copy of the document in question. We conferred over this unusual development and concluded that the submission of the document was an attempt by the appellant to improperly influence the outcome of this matter. We record our extreme displeasure at this attempt to influence our determination of this appeal and hope that such behavior on the part of a senior legal counsel will not be repeated.”

This case made it clear that a party to proceedings cannot simply place information before a court without the acquiescence of the court to receive it. The acquiescence, it was made clear, ought to be sought in terms of some law. Rule 39 (4) is clearly not the law envisaged by the above quote.

In addition, no explanation was given for the letter dated 11 April 2017 asking the registrar to place the Chamber Application before one of the three judges who had heard the main matter on appeal. Such a request could only arise where the applicant was seeking the order which he now sought to distance himself from. Without an explanation from the applicant one is left with the inescapable conclusion that this letter was based on the realization that an application to lead further evidence could not be determined by a judge who had not been originally seized with the matter when it was heard on appeal.

4.	WHETHER AN APPLICATION TO LEAD FURTHER EVIDENCE CAN STILL BE MADE AFTER A COURT HAS HEARD THE APPEAL AND THE MATTER IS AWAITING JUDGMENT

In view of the findings that I have made with regards to the first, second and third issues, it seems to me that it is not necessary for me to determine the fourth issue on whether or

not an application to lead further evidence may be made after an appeal has been heard and is awaiting judgment. This issue could only be determined if a proper application for such relief had been filed before me.

COSTS

With regards to costs, I find that the applicant was disingenuous in approaching this court in terms of r 39 (4) of the Rules, as is apparent from the face of the application. Once in chambers the applicant attempts to abandon this rule and motivate the court to accept that it is a sui generis application occasioned by the finding in the Tsvangirai case cited above. With the above findings in mind, and the fact that counsel for the respondent had brought these concerns to the applicants’ attention in a letter of 25 April, I find that the requested costs on a punitive scale are warranted. The application was riddled with irregularities and was bound to fail. It should not have been persisted with but gracefully withdrawn with an appropriate tender of costs.

The court takes a serious view of conduct that may act in such a way as to mislead.  A litigant finding himself in the position of the applicant ought to show contrition yet the applicant remained intransigent.

For the reasons given above I make the following order:

The application be and is hereby dismissed with costs on a legal practitioner and client scale.

Moyo & Jera Legal Practitioners, applicant’s legal practitioners

Gama & Partners, respondent’s legal practitioners