Gwaradzimba v Panagiota Mercuri N.O. & Anor (HC 8899 of 2013) [2015] ZWHHC 168 (17 February 2015)

1 HH 168 -15 HC 8899/13 ARAFAS MTAUSI GWARADZIMBA versus AKA JULIE PANAGIOTA MERCURI N. O. and THE MASTER OF THE HIGH COURT N. O. HIGH COURT OF ZIMBABWE MWAYERA J HARARE, 26 November 2014 and 18 February 2015 Opposed application Adv E T Matinenga, for the appellant Adv H Moyo, for the 1st respondent MWAYERA J: In this application the applicant sought to amend the name of the plaintiff in case number HC 13277/12 so as to read Margaret Chivimbiso Mwamuka and not Arafas Mtausi Gwaradzimba N. O. The first respondent is opposed to the application. The brief background of the matter is that the applicant issued summons in HC 13 277/12 in his official capacity as executor of Estate of the late Vernon Nathaniel Mwamuka. The applicant assumed this title by virtue of a power of Attorney given by Margret Mwamuka, the surviving spouse and executor of the estate of Vernon Mwamuka. It became apparent on paper the applicant is in fact not an executor. Notice of intention to amend pleadings to reflect Magret Mwamuka was communicated to the respondents as way back as 2013. See p 27 of the record. The application was filed on 24 October 2013 and was opposed at pre-trial conference stage hence the current opposed formal application. The basis of the applicant’s application is to amend the plaintiff who instituted the proceedings on the basis of a power of attorney given by the executrix Margret Mwamuka (Attached to the application p 31). The anomaly that can be discerned easily from the papers is that the plaintiff is referred to as an executor when in actual fact his basis of issuing summons was per the power of attorney and not that he is the or executor. The respondent in opposition of the application premised its argument along the lines that there are no valid proceeding before the court given that plaintiff is cited in his official capacity as executor in an estate, a position which is not factual. The HH 168 -15 HC 8899/13 respondent argued that the plaintiff assumed a position he did not hold. The respondent sought to rely on the case of Stewart Scott Kennedy v Mazongororo Syringes 1996 (2) ZLR 565, arguing that the person who ought to issue summons, did not exist thus rendering the proceedings invalid. The crux of the respondent’s argument is that the plaintiff assumed the office of executor dative which office he does not hold. The respondent argued that the request to amend the summons by substituting himself with Mrs Mwamuka in the circumstances would be akin to requesting the court to amend a nullity which is a legal impossibility. The respondent argued that the applicant has no locus standi to bring the application before the court. Further, the respondent argued that the application if granted would prejudice the respondent given the line of defence to the claim. The respondent further argued that the application was fatal in that it failed to join the substitutee Mrs Margaret Mwamuka. The respondent sought to rely on Coetzee v Steyn 1955 (3) SA 48. Given the background of the case, and the applicant and respondent’s arguments, I propose to recount where necessary the circumstances of this case relating it to the law and case law alluded to by the parties. It is not in dispute that without a plaintiff there can be no claim. In other words a claim of a non-existing person is null and void as far as institution of the claim is concerned. The same reasoning was well propagated in the case of Stewart Scott Kennedy v Mazongoro Syringes (Private) Limited 1996 (2) ZLR 565. The plaintiff in the Steward Scott supra was non existent since the partnership had been dissolved. This scenario meant the summons were invalid and therefore could not be rectified by amendment. A reading of the Steward Scott case supra and Old Mutual Asset management (Private) Limited v Travel Tours and Car Sales HH 53-2007 surely depicts a distinguishable scenario from circumstances of the present case. It is crystal clear in the two cases mentioned above that the proceedings were instituted by a non existent person and hence void ab intio. They were incapable of amendment as they were a nullity in the first place. In this case, the plaintiff, Gwaradzimba, is a person in existence who albeit not an Executor was referred to in the claim as one. It is not in dispute that Mrs Margret Mwamuka the executor issued a power of attorney for the applicant to represent her but such does not qualify Gwaradzimba as the executor. It is that anomaly of the applicant not being properly cited as executor which the applicant seeks to amend by substitution of the plaintiff in HC 13277/12 with Mrs Margret Mwamuka the executor. In the present case the validity of the HH 168 -15 HC 8899/13 proceedings emanates from by the fact that a real person is cited on a power of attorney albeit wrongly referred to as executor. The fact that the plaintiff is existent gives a different complexion in that the proceedings in the first instance are valid. The case of JDM Agroconsult and Marketing v Editor, The Herald and Anor 2007 (2) ZLR 71 (H) is instructive. The substitution sought is to facilitate the amendment. The other argument advanced in opposition is with regard to the fact that Mrs Margret Mwamuka is not a party to the proceeding. It is clear from the papers filed that in an answering affidavit Mrs Magret Mwamuka, the executor of estate late Vernon Nathaniel Mwamuka, confirmed having given Afaras Mtausi Gwaradzimba authority to issue summons in case HC 13277/12 under a power of attorney which she granted, although inadvertently describing the applicant as the executor. This is also clear from the applicant’s legal practitioner’s affidavit, which affidavit is properly before the court since a lawyer is not precluded from giving evidence of a legal nature and of facts he has knowledge of. The applicant’s supporting affidavit in answer also crystalizes the circumstances under which he was authorised by Margret Mwamuka to issue summons under case HC 13277/12. The purpose of an answering affidavit among others is to answer issues raised by the opposition and such evidence cannot be disregarded. In answering affidavits, the applicant is accorded an opportunity to answer issues raised in opposition papers. It is clear the applicant was authorised by Mrs Mwamuka to issue summons. The law on amendments is very clear. The application was made on notice. Order 20 r 132 and 134 are apposite on amendments of pleadings. Rule 132 reads: “Subject to rules 134 and 151 failing consent by all parties, the court or Judge may at any stage of the proceedings allow either party to alter or amend his pleadings in such a manner and or such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.[my emphasis]” Attention should also be paid to rule 226 whose import is to allow applications for whatever purpose to be made in writing. In the case of ZFC Ltd v Taylor 1999 (1) ZLR p 308 the Honourable Judge Gillespie referred to written applications for amendment in the event of parties not consenting. The judge correctly spelt out the procedure where there is need to amend. The application ought to be supported by an affidavit showing good cause and must be accompanied by a draft order. Given the circumstances of this case, the applicant has approached the court with a written application on notice to amend the HH 168 -15 HC 8899/13 summons by substitution of the plaintiff. This is the on basis that the plaintiff was inadventely referred to as executor on the grounds of a power of attorney from the official executor. Generally, amendments shall be made as may be necessary to determine the real question in controversy between the parties. In this case, the matter is centred on the estates. There is no prejudice which will be occasioned having the executor of the estate appear as the plaintiff without changing the nature and subject of the cause of action. In the case of Moolman v Estate Moolman and Anor 1927 CPD 27 at p29 Watermeyer J captioned that amendments, in situations where the applications are not mala fide, ought to be granted. I subscribe to these same sentiments which have also been echoed in our own jurisdiction. See Chakadaya v Chakadaya 2001 (1) ZLR 421. Also, in Commercial Union Assurance Company Limited v Waymark N. O.1995 (2) SA 72 TK White J set out general principles governing applications for amendment of pleadings. He outlined that it would not be appropriate to refuse an application for amendment simply to punish the applicant for somewhat dilatory and negligent notification in delay in bringing the application. I subscribe to the reasons in Commercial Union Assurance Company Limited v Waymark NO supra, moreso given that in our jurisdiction, the amendment of pleading as provided by our rules, may be entertained at any stage upon application in writing or orally. The court however has a discretion to grant or refuse the application. The central aspect in the exercise of its discretion is what is just and necessary for purposes of determining the real question in controversy between the parties. In the circumstances of this case, it is clear that the application brought before the court is very procedural. The issue of delay in bringing the application cannot stand in the way given the interest of justice on whether or not the amendment would turn out to be prejudicial to the other party. The application to amend the summons by substituting the plaintiff in HC13277/12 with Mrs Margret Mwamuka, the executor, in her late husband Venon Mwamuka’s estate appears to have been motivated by genuiness as opposed to malice. Mrs Mwamuka the executor had given a power of attorney to Mr Arafus Gwaradzimba to administer the estate. To have him cited as an executor would be erroneous. It is this anomaly which the amendment seeks to correct. I find no reason why I should read mala fides in such a scenario. It is crystal clear Mrs Margret Mwamuka is the executor, and no injustice would be occasioned by amendment of pleadings by substitution of the plaintiff. HH 168 -15 HC 8899/13 The application for amendment is genuine in that as it seeks to facilitate proper ventilation of the disputes between the correct and or appropriate parties relevant to the issue. In my view, in deciding whether to grant or refuse the application, what is central to this exercise of discretion is what is just and necessary for purposes of determining the real question of controversy. I do not perceive any prejudice which would be occasioned by having the executor as party to the proceedings which is not curable by remedies available readily to the respondent. It is accordingly ordered: 1. That the summons current plaintiff in case 13277/2012 be and is hereby substituted by Margaret Chivimbiso Mwamuka (in her capacity as Executrix of the Estate of the late Vernon Nathaniel Mwamuka) 2. That the plaintiff’s declaration filed of record in case HC13277/12 be and is hereby amended by deletion wherever it appears; of the name “AFARAS MTAUSI GWARADZIMBA and substitution thereof with the name MARGARET CHIVIMBISO MWAMUKA” 3. That costs of this application be costs in the cause. Chihamba, Mutizwa & Partners, appellant’s legal practitioners Joel Pincus, Konson & Wolhuter, 1st respondent’s legal practitioners