Agricura (Private) Limited v Bassy Mwasigalla and 3 Others (305 of 2024) [2024] ZWHHC 305 (22 July 2024)

1 HH 305 - 24 HC 1036/24 AGRICURA (PRIVATE) LIMITED versus BASSY MWASIGALLA (nee Bugoga) and CLASSIQUE PROJECTS MANAGEMENT (PRIVATE) LIMITED and TINASHE NHETE (PRIVATE) LIMITED and REGISTRAR OF DEEDS N. O HIGH COURT OF ZIMBABWE KATIYO J DUBE J SIZIBA J MAMBARA J DEMBURE J CHIVAYO J HARARE, 27 June 2024 and 22 July 2024 Opposed Application E. T. Moyo, for the applicant P. T. Dube, for the respondent MAMBARA J: This is an application by Agricura (Private) Limited ("the applicant") seeking condonation for non-compliance with Rule 60(1) of the High Court Rules, 2021. Specifically, the applicant failed to modify Form No. 23 as required and now seeks the court's permission to amend the form accordingly. The applicant initially filed a court application using Form No. 23 without making the necessary modifications. Upon realizing this error after the 1st respondent filed its notice of opposition, the applicant filed a chamber application to correct the procedural mistake. The primary issue before the court is whether to grant the applicant leave to amend Form No. 23 post-filing and whether such an amendment aligns with the interests of justice. Rule 7 of the High Court Rules, SI 202 of 2021(hereinafter referred to as the “Rules”) grants the court discretion to deviate from any procedural rules if such deviation serves the interests of justice. This provision is essential to ensure that rigid adherence to procedural rules does not obstruct the fair administration of justice. It allows the court flexibility to address procedural errors and ensure substantive justice prevails. HH 305 - 24 HC 1036/24 Rule 59(1) permits modifications to court forms, demonstrating an inherent flexibility within the High Court Rules to adapt as necessary. It explicitly allows chamber applications to be served in modified forms, indicating that procedural adjustments are recognized and accommodated by the rules. According to rule 59(13), initiating a court application in the wrong form is not a ground for dismissing the application. This rule further emphasizes the court's ability to rectify procedural errors to prevent injustice and underscores the importance of substantive justice over procedural formalities. The applicant’s request for leave to modify Form No. 23 is rooted in the procedural flexibility allowed by the High Court Rules. While there is no specific rule addressing the application for leave to modify a form after it has been issued, the general provisions under Rule 7 and Rule 59 provide sufficient grounds for the court to exercise its discretion. The applicant cited several case authorities supporting the application for condonation and modification of Form No. 23: In Marick Trading (Pvt) Ltd v Old Mutual Life Assurance Co of Zimbabwe (Pvt) Ltd & Anor HC 11164 of 2014, HC8399 of 2014, Ref HC 3268 of 2012 [2015} ZWHHC 667 (30 July 2015) the court emphasized that parties must comply with court rules and seek condonation when they fail to do so. The court stated that a lack of proper explanation for non-compliance can lead to dismissal of the application. However, the court also recognized that using incorrect forms can be rectified if it does not cause prejudice to any party. The court highlighted the importance of judicial discretion, stating that it may condone non- compliance with procedural rules if it serves the interest of justice, as provided by Rule. Munondo & 5 Others v New Century Productions (Pvt) Ltd & 2 Others (32 of 2024) [2024] ZWHHC 28 (19 January 2024) highlighted issues of non-compliance with procedural form requirements. The court reiterated that using the wrong form without causing substantial prejudice might not invalidate the application. The first respondent strongly opposes the application for condonation and modification of Form No. 23, arguing that a defective application cannot be amended and must be withdrawn and refiled. The respondent's contention is based on established legal principles that a nullity cannot be amended. They rely heavily on the precedent set in Jensen HH 305 - 24 HC 1036/24 v Acavalos 1993 (1) ZLR 216 (S), which emphasizes that compliance with procedural rules is mandatory and that non-compliance results in a nullity that cannot be cured by amendment. Furthermore, the respondent cites Zimbabwe Newspapers (1980) Limited v Kufa (137 of 2021) [2021] ZWSC 137 to support the argument that any appeal or application that fails to meet procedural requirements is fatally defective. The respondent maintains that allowing the modification would set a dangerous precedent, undermining the integrity of procedural rules and potentially leading to a lax approach to procedural compliance. This, they argue, would result in unfairness and inefficiency in the judicial process. The task before this court is to evaluate the application for condonation of non- compliance with Rule 60(1) of the High Court Rules, 2021, and to determine whether to allow the applicant to amend Form No. 23. This evaluation involves a meticulous examination of both procedural adherence and substantive justice principles, with reference to relevant case law and the potential impact on both parties involved. The primary argument presented by the first respondent revolves around the necessity of strict procedural adherence. Citing the principles laid out in Jensen v Acavalos above, the respondent contends that procedural rules are mandatory and non-compliance results in a nullity that cannot be amended. This position is further supported by Zimbabwe Newspapers (1980) Limited v Kufa which underscores that a fatally defective notice of appeal is null and void, and cannot be rectified through amendments. While the importance of procedural rules cannot be understated, this court must also consider the overarching objective of the legal system: the administration of justice. Procedural rules are designed to facilitate justice, not to serve as barriers that obstruct the fair resolution of disputes. This principle was notably articulated in Marick Trading (Pvt) Ltd v Old Mutual Life Assurance Co of Zimbabwe (Pvt) Ltd & Anor (supra) where the court emphasized the necessity of judicial discretion in condoning procedural non-compliance to prevent injustice. In Marick Trading, (supra) the court recognized that procedural errors, if not prejudicial, could be rectified through judicial discretion. This stance aligns with Rule 4C of the High Court Rules, which empowers the court to overlook procedural errors to achieve substantive justice. This approach ensures that the legal process remains flexible and adaptable, capable of addressing the complexities of individual cases without being hindered by rigid procedural formalities. HH 305 - 24 HC 1036/24 The respondent's argument hinges on maintaining the integrity of procedural rules, asserting that allowing amendments to a defective application would undermine the legal system's foundation. This perspective is rooted in the principle that procedural rules ensure fairness and order in legal proceedings. By strictly adhering to these rules, the legal system upholds predictability, consistency, and equality before the law. In Zimbabwe Newspapers (1980) Limited v Kufa, (supra) the Supreme Court reinforced this principle, stating that a notice of appeal which does not comply with the rules is fatally defective and invalid. This case illustrates the potential consequences of procedural non-compliance, emphasizing that the court cannot condone or amend a nullity. The court's decision to strike off the appeal due to a defective notice highlights the importance of adhering to procedural requirements to maintain the integrity and efficiency of the judicial process. However, this strict approach can sometimes result in harsh outcomes, particularly when procedural errors are minor and do not affect the substantive merits of a case. The court must balance the need for procedural integrity with the necessity of ensuring that justice is served. This balancing act was evident in Munondo & 5 Others v New Century Productions (Pvt) Ltd & 2 Others (supra), where the court acknowledged that using the wrong form without causing substantial prejudice might not invalidate the application. This case supports the view that procedural errors, which do not prejudice the opposing party, should be rectified to achieve fair outcomes. The applicant's argument centres on the principles of judicial discretion and substantive justice. By highlighting cases such as Marick Trading and Munondo, the applicant contends that procedural errors should not obstruct the fair resolution of disputes, particularly when such errors do not prejudice the opposing party. The applicant has demonstrated that the error in failing to modify Form No. 23 was a genuine mistake, promptly addressed upon realization, and that no significant prejudice has been suffered by the respondent. Furthermore, the applicant argues that the interests of justice would be best served by allowing the amendment of Form No. 23, ensuring that the case is decided on its substantive merits rather than being dismissed on procedural technicalities. This approach aligns with the principles articulated in Moyo v Sibanda & Ors (HB 81 of 2017, HC 1597 of 2015) [2017] ZWBHC 81 (30 March 2017), where the court upheld the importance of protecting substantive rights and ensuring fair outcomes. HH 305 - 24 HC 1036/24 In Moyo v Sibanda (supra), the court emphasized that procedural rules should not be applied rigidly when such application would result in injustice. The court's decision to uphold the applicant's standing and protect the interests of her minor child underscores the importance of ensuring that procedural technicalities do not undermine substantive justice. This case supports the applicant's contention that judicial discretion should be exercised to rectify procedural errors, particularly when no prejudice is caused to the opposing party. While the respondent's objections are grounded in maintaining procedural integrity, they fail to demonstrate any substantial prejudice that would arise from the modification of Form No. 23. The primary contention appears to be based on procedural grounds rather than substantive issues. Given the lack of demonstrated prejudice, the court is justified in exercising its discretion to allow the modification. In Jensen v Acavalos (supra), the court emphasized the necessity for strict compliance with procedural rules in the filing of notices of appeal. However, the court also recognized the importance of seeking condonation promptly to rectify procedural errors. This principle aligns with the applicant's argument for judicial discretion in addressing minor procedural errors that do not affect the substance of the case. The respondent's reliance on Zimbabwe Newspapers (1980) Limited v Kufa above, further underscores the importance of procedural compliance. However, this case also illustrates the potential harshness of rigid procedural adherence, supporting the need for judicial discretion in certain circumstances to achieve substantive justice. The court must balance the need for procedural integrity with the necessity of ensuring that justice is served, particularly when procedural errors are minor and do not cause prejudice. In light of the above considerations, the court finds that it is in the interests of justice to grant the applicant leave to modify Form No. 23. The modification will enable the proper adjudication of the substantive issues without undue prejudice to any party. The principles established in the cited case authorities support the applicant's position and demonstrate that the High Court has a well-established practice of allowing procedural modifications to facilitate justice. The court's decision is guided by the principles of judicial discretion and the need to balance procedural adherence with substantive justice. By allowing the modification of Form No. 23, the court ensures that the applicant's case is decided on its merits, upholding the integrity of the judicial process while preventing undue prejudice. HH 305 - 24 HC 1036/24 In the result, it is ordered that: 1. The application for condonation for non-compliance with Rule 60(1) of the High Court Rules, 2021 under case reference HCH246/24 be and is hereby granted. 2. The modified form shall be filed within 7 days of this judgment. 3. There shall be no order as to costs. Mushoriwa Pasi, applicant’s legal practitioners Dube Manikai & Hwacha, first respondent’s legal practitioners