Tawodzera v Pahwaringira And 5 Others (29 of 2021) [2021] ZWHHC 29 (28 January 2021)

1 HH 29/21 HC 55/21 BLESERT TAWODZERA versus ERASMUS PAHWARINGIRA and THE REGISTRAR OF DEEDS and G. S KASHANGURA LAW CHAMBERS and DROWACK INVESTMENTS (PVT) LTD and BEVANDA GWARA and LEOPDOLD RUGARE CHINDAYA HIGH COURT OF ZIMBABWE CHIRAWU-MUGOMBA J HARARE, 28 January 2021 Urgent chamber application CHIRAWU-MUGOMBA J: This matter was placed before me as an urgent chamber application. The applicant seeks the following order. TERMS OF FINAL ORDER SOUGHT That you show cause to this Honourable Court why a final order should not be made in the following terms; 1. The two cases, case no. HC 7459/18 and HC 752/17 shall be consolidated and tried together as one action. 2. Costs of this application shall be determined in the application for consolidation case no. HC 6659/20. INTERIM ORDER GRANTED Pending the confirmation or discharge of this order or resolution of the dispute between the parties, applicant is hereby granted the following relief: 1. That pending the determination and or finalisation of the application for consolidation of cases no. HC 752/17 and HC 7459/18, in case no. HC 6659/20, the trial of HC 7459/18 shall be stayed. SERVICE OF THIS PROVISIONAL ORDER Leave be and is hereby granted to the applicant’s legal practitioners to serve the provisional order on respondent’s legal practitioners. HH 29/21 HC 55/21 The applicant’s case can be summarised as follows. The root of the application revolves around a property known as stand 3469 Warren Park Township. There is a dispute pending before this honourable court pertaining to the sale of that property under case number HC 752/17. The property has since been sold and transferred to the 6th respondent who now holds title. The 6th respondent has sought the eviction of the applicant from the property in case number HC 7459/18. The applicant has made an application for consolidation of HC 7459/18 and HC 752/17 under case number HC 6659/20. The application has not yet been dealt with. HC 7459/18 has been set down for the 22nd of February 2021 and the applicant contends that the trial should not go ahead without an outcome of the application for consolidation because it will render the application for consolidation futile. The 6th respondent strenuously opposed the application and his response can be summarised as follows. He is now the lawful owner of the property but his efforts to obtain vacant possession have been thwarted by the applicant who has come to court with dirty hands. He filed case number HC 7459/18 on the 16th of August 2018 for a spoliation order, eviction and holding over damages. HC 7459/18 was initially set down for trial for the 27th of October 2020. However the trial has not taken place due to delays caused by the applicant. The latter once filed an urgent application in HC 6737/2020 which is essentially the same as the present matter. Such application was subsequently withdrawn by the applicant. At the hearing, the parties through their legal practitioners agreed that the trial should proceed on the 22nd of February 2021. The applicant knew about the trial as far back as the 6th of October 2020 but he did not act. He only filed the application for consolidation in November 2020. Therefore the application lacks urgency. The law on urgency is well set – see Kuvarega vs Registrar –general and anor, 1998(1) ZLR 188(H). It is my considered view that this application is not urgent at all. The applicant failed to disclose to the court when exactly the need to act arose. In HC 752/17, the matter was remitted to this court from the Supreme Court with an order that it proceed as a trial matter. The Supreme Court order is dated the 9th of November 2018. Summons in HC 7459/18 were issued against the applicant in August 2018. There is no indication from the applicant as to when exactly he received the summons which would then have been a basis for seeking consolidation. The applicant also was very much aware of the trial set down for the 27th of October 2020 but has not explained why he only filed an application for HH 29/21 HC 55/21 consolidation in November 2020. The applicant’s affidavit is therefore fraught with non- disclosure of essential facts. In that regard I can do no better than to quote NDOU J in Ncube vs. Mpofu N. O and anor, HB-121-11 as follows:- The failure to disclose the Tshabalala property is a material non-disclosure in this case. It goes to the core of the issue of urgency. As stated in Graspeak Investments P/L vs Delta Corporation P/L & Anor 2001 (2) ZLR 551 (H), the courts should discourage urgent applications which are characterized by material non-disclosure, mala fides or dishonesty. “Although, generally, an applicant is entitled to embody in his supporting affidavits only allegations relevant to the establishment of his right, when he is bringing an ex parte application in which relief is claimed against another party he must make full disclosure of all the material facts that might affect the granting or otherwise of an order ex parte. The utmost good faith must be observed by litigants making ex parte applications in placing material facts before the court, so much so that if an order has been made upon an ex parte application and it appears that material facts have been kept back, whether willfully and mala fide or negligently, which might have influenced the decision of the court whether to make an order or not, the court has a discretion to set the order aside with costs on the ground of non-disclosure.” – The Civil Practice of the Supreme Court of South Africa by Herbstein & Van Winsen 4 Ed at page 367. See also Power N. O. vs Beiber & Ors 1955 (1) SA 491 (W) and Exp Madikiza et Uxor 1995 (4) SA 433 (TK) at 436I-J. The order postponing the trial that appears on page 42 of the application is very specific that it was an order by consent. The applicant has not explained why he now seeks to wriggle out of that order. As pointed out by the 6th respondent, the applicant does have an alternative remedy of seeking damages. The relief that the applicant has sought is clearly not interim in nature. It is final and that is why even in the final relief, he has actually sought an order of consolidation which is the same as he seeks in HC 6659/20. I am cognisant of the fact that every person in terms of the 2013 Constitution has a right to litigate which may be curtailed as is the current case by emergencies. In our case, the COVID 19 pandemic has seriously affected the operations of the courts. However Practice direction number 1 of 2021 puts urgent chamber applications in the category of exceptions, meaning that the courts will continue hearing such cases. I daresay that in view of that fact an urgent chamber application filed during the lock down period should demonstrate extreme urgency. In view of the non-disclosure of material facts by the applicant, an appropriate order for costs is that he should bear the costs of 6th respondent. The 1-5th respondents did not oppose the application and therefore are not entitled to costs. The application is therefore for reasons cited above not urgent. HH 29/21 HC 55/21 DISPOSITION 1. The application is not urgent and is struck off from the roll of urgent matters. 2. The applicant shall pay the 6th respondent’s costs. Hungwe and Partners, applicant’s legal practitioners Thoughts Deme Attorneys-At-Law, 1st respondent’s legal practitioners G. S Motsi Law Chambers, 3rd respondent’s legal practitioners Mugiya and Muvhami, 5th respondent’s legal practitioners Mundia and Mudhara, 6th respondent’s legal practitioners