Ndoro and Another v Conjugal Enterprises (Private) Limited and Another (814 of 2022) [2022] ZWHHC 814 (16 November 2022)

1 HH 814-22 HC 7544/19 BRUCE NDORO and FUNGAYI NDORO versus CONJUGAL ENTERPRISES (PRIVATE) LIMITED and JOHANNES CONRAD MAKONYE HIGH COURT OF ZIMBABWE DEME J HARARE, 15 September & 16 November 2022 Opposed Application Ms R S Ruwona, for the 1st and 2nd applicants Mr S T Mutema, for the 1st and 2nd respondents DEME J: The applicants approached this court seeking a declaratory order to the effect that the cancellation of agreement of sale set in motion by the first respondent be declared to be of no force or effect. Alternatively, the applicants prayed for the confirmation of the cancellation of the agreement of sale coupled with the prayer for reimbursement of the total instalments paid as part of the purchase price. More precisely the applicants prayed for the relief expressed in the following way: 1. “It is declared that: The cancellation of the agreement of sale entered between the applicants and the first respondent be and is hereby declared null and void. 2. The agreement of sale referred to in 1 above remains valid and enforceable to the extent that the applicants are allowed to continue paying monthly instalments until the purchase price is paid in full. ALTERNATIVELY 3. The cancellation of the agreement of sale between the applicants and the first respondent be and is hereby confirmed and the respondents shall refund the applicants the payment made towards the purchase price in the sum of $19,687.00 (nineteen thousand six hundred and eight- seven Dollars) within fourteen days of service of this order on the respondents. 4. The first and second respondent (sic) jointly and severally with the one paying and the other to be absolved, pay costs of this application on an attorney and client scale.” HH 814-22 HC 7544/19 The applicants are a married couple. The first respondent is a company duly incorporated in terms of the laws of Zimbabwe where the second respondent is the Director of the first respondent. Sometime in September 2018, the applicants and the first respondent entered into the agreement of sale in respect of the property known as Lot 2 of Bedford Estate measuring 2,005 hectares (hereinafter called “the property”). The agreed purchase price for the property was US$35 007. The applicants paid the deposit of US$15 007 upon signature of the agreement of sale. The balance was payable over seventy months. It was a term of the agreement that the balance of the purchase price would attract interest plus administrative fees. Consequently, the applicants were supposed to pay to the first respondent a monthly instalme nt of US$520 for seventy months. The monthly instalment was payable on or before the first day of each month with the first instalment being payable on or before 1 November 2018. The applicants averred that they duly paid monthly instalments from November 2018 up to February 2019 using RTGS Dollars. The first respondent disputed this payment method and insisted that the payments were to be deposited into its nostro foreign currency account. The dispute culminated into the first respondent giving thirty day notice to the applicants calling upon them to remedy the breach of the agreement failing which the first respondent highlighted that it would cancel the agreement. The notice for the breach was dispatched to the applicants in May 2019. According to the first respondent, the purchase price, after 22 February 2019, was supposed to be paid in United States Dollars or alternatively its equivalency in RTGS Dollars or Zimbabwe Dollars. After the failure of negotiations between the parties, the first respondent advised the applicants, through a letter dated 3 July 2019, that the agreement of sale was cancelled. The respondents consented to the alternative application for reimbursement of the purchase price. However, it is the case of the respondents that such reimbursement must be subject to the deduction of the administration fees. The counsel for the respondents, Mr Mutema, from the bar, submitted that the first respondent had paid back to the applicants the purchase price. Ms Ruwona submitted that she was not aware of this development. The court directed the counsel for the applicants to verify this position with her clients who were not available on the hearing day. She later advised the court, through the letter dated 22 September 2022 which was also copied to respondents’ legal practitioners, that the applicants deny ever receiving the purchase price from the first respondent. The respondents strongly opposed this assertion by a copy of the letter bearing a wrong date of 16 July 2021 which was received by this court on 4 October 2022. HH 814-22 HC 7544/19 At the hearing, the applicant’s counsel, Ms Ruwona, raised a fresh point in limine to the effect that the opposing affidavit was not properly commissioned by the commissioner of oaths as there is no date for the administration of the oath on the affidavit concerned. The only date which can be seen from the opposing affidavit is the date which was generated by the computer, according to her further submissions. She further submitted that this defect makes the opposition fatally defective. This point in limine had not been raised in the applicant’s papers before. Ms Ruwona submitted that the point in limine concerned is a point of law which can be raised at any time. She motivated the court to treat the matter as an unopposed application. The counsel for the applicant relied upon the cases of Mike Mandishayika v Maria Sithole1 and Twin Castle Resources (Pvt) Ltd v Paari Mining Syndicate and Ors2. The counsel insisted that the applicant’s counsel was raising evidentiary issues from the bar which is not allowed at law. According to Mr Mutema, these factual issues ought to have been pleaded. Mr Mutema further argued that the present case can be distinguished from the facts of cases submitted by the applicant’s counsel. The following two issues emerge from the submissions made by counsel for the parties: (a) Whether or not the point of law can be raised at any time. (b) Whether the opposing affidavit filed was validly and properly commissioned. It is now settled that points of law may be raised at any time. They ought not necessarily to have been pleaded. Reference is made to the case of Ampthill Peerage 3, where LORD WILBERFORCE remarked as follows: “Any determination of dispute of fact may, the law recognises, be imperfect; the law aims at providing the best and safest conclusion compatible with human fallibility, and having reached that solution it closes the book. The law knows. And we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interest of peace, certainty and security it prevents further inquiry.” Thus, according to the case of Ampthill Peerage (supra), one of the advantages of allowing a point of law to be raised at any time is that law is certain and has the ability of bringing finality to litigation. A point of law will always be available whether or not it has been raised. Thus, there will be limited or no prejudice to be suffered by the opposite party. The major potential prejudice likely to be suffered by the respondents was whether or not their counsel was ready 1 HH798/15. 2 HH153/21. 3 1977] AC 547 at 569. HH 814-22 HC 7544/19 to respond to the point of law upon a short notice. Upon being asked by the court whether he was ready to respond, the counsel for the respondents highlighted that he was ready to respond and did not need extra time to prepare his response. It is essential to emphasise that a point of law can be raised by a litigant or by the court on its own initiative. Reference is made to the case of Sindikumbuwalo Pacifique v The Commissioner General Department of Customs and Excise4, where the court postulated the following pertinent remarks: “The question whether or not there is a defendant before the court is a critical point of law. A court cannot proceed to hear any matter on merit unless satisfied that there are parties before it who seek resolution of a dispute resulting in a competent decision which is binding upon the parties. Critical as it is, a point of law can be raised at any time. I do not believe that the issue of whether or not there is a defendant before the court has to be raised through an exception. In Muchakati v Netherburn Mine 1996 (1) ZLR 153 (S) the Supreme Court held that a point of law that went to the root of the matter can be raised at any time. Apart from a litigant raising same the court can raise it mero motu.” In my view, I see no merit in the argument for counsel for the respondents. In the premises, I am of the view that the point of law was properly raised. I will now turn my attention to the issue for the validity of the opposing affidavit which is before the court. In the case of Twin Castle Resources (Pvt) Ltd v Paari Mining Syndicate and Ors5, the Court made the following remarks: “The main notice of opposition itself was equally said to be defective. Whilst the main notice of opposition bore a stamp by the Commissioner of Oaths, it was silent as to when Luxton Mawanga who swore to the affidavit, had appeared before the Commissioner of Oaths. It merely had one computer generated date as to when the deponent had signed. It was therefore argued that effectively there was no notice of opposition before me. Applicant’s lawyer Mr. Chiuta, drew on the case of Mike Mandishayika v Maria Sithole HH 798/15 to bolster this point wherein it was stated that: “An affidavit is a written statement made on oath before a commissioner of oaths or other person authorised to administer oaths. The deponent to the statement must take the oath in the presence of the commissioner of oaths and must append his or her signature to the document in the presence of such commissioner. Equally the commissioner must administer the oath in accordance with the law and thereafter must append his or her signature onto the statement in the presence of the deponent. The commissioner must also endorse the date on which the oath was so administered. These acts must occur contemporaneously.” 4 HH137/18. 5 HH153/21. HH 814-22 HC 7544/19 See also State v Hurle & Others (2) 1998(2) ZLR 42 and Firstel Cellular (Pvt) Ltd v NetOne Cellular (Pvt) Ltd S-1-15. The notice of opposition most certainly did not have the date on which the oath was administered. The supplementary documents were even more defective as illustrated. Clearly, in light of the Mandishayika case, the affidavits were indeed defective for the reasons outlined. The point in limine regarding the defective affidavits and that there was no valid notice of opposition before me is upheld.” In casu, the opposing affidavit does bear a computer generated date just like the opposing affidavit in the case of “Twin Castle Resources” (supra). The opposing affidavit, in the relevant portion, simply states: “Thus done and dated at Harare this 23rd day of September 2019”. The commissioner of oaths went on to append his signature. The date for the administration of the oath remains a mystery. One wonders whether the oath was administered on the date specified by the computer or on a future date. In the case of State v Hurle & Others6, the court had this to say on what is expected in administering an oath: - “A justice of the peace, or a commissioner of oaths, called upon to attest a document, has a duty, exemplified by the solemnity of the oath he is permitted to administer. He is obliged, without fail, to have the deponent appear before him. He has no excuse for not administering the oath, for not calling upon the deponent to swear that the deposition is, to the best of his knowledge true in every respect. A deponent’s signature has to be affixed in the presence of the commissioner. The commissioner’s own signature is an assurance that all these procedures have been complied with.” It is apparent that one cannot verify whether the deponent took the requisite oath if an affidavit is commissioned in this way. The affidavit prepared under such circumsta nces becomes incredible. See the case of Mike Mandishayika v Maria Sithole7, where the court propounded that: “In casu, the deponent signed the deposition on a deferent date and the commissioner commissioned it several months after that. There is no assurance that the deponent signed in the presence of the commissioner or even that he ever took the requisite oath. Clearly the affidavit was not properly commissioned and so should not have been accepted as an affidavit. If at all reliance was to be placed on medical evidence the examining doctor ought to have testified on his findings. There is therefore no credible medical evidence.” Thus, there are many dangers of accepting an improperly commissioned affidavit. It is apposite that there must be strict adherence to the proper methods of commissioning affidavits. 6 1998(2) ZLR 42. 7 HH798/15. HH 814-22 HC 7544/19 Any compromise would bring justice into disrepute. Reference is made to the case of Tawanda v Ndebele8, where the court commented as follows: “It is my view, therefore, that there should be no compromise by seeking to accept a questionably authenticated document either for academic or expedience purposes. The rules of this court have listed certain officials who are authorised to authenticate documents and those rules should be applied in toto.” Consequently, there is no reason for dismissing the point in limine. I am persuaded by the point in limine concerned. Accordingly, the point in limine is upheld. Ms Ruwona motivated the court to regard the matter as an unopposed matter. I disagree with this approach as the defect raised is not a fatal one. Rather, it is a remediable defect. For that reason, it is appropriate to ensure that the respondents are given time to cure the defect concerned by removing the matter from the roll. This is in harmony with the need to uphold the right to fair trial established in terms of S 69 of the Constitution. The right to fair trial is one of the rights that is non-derogable according to S 86(3) of the Constitution. Deeming the present application as an unopposed case will not bring finality to litigation. The applicants will only be entitled to default judgment under such circumstances. The respondents may then seek to set aside the default judgment which will prolong the litigation between the parties. The need to bring finality to litigation was emphasized In Ndebele v Ncube,9 where it was held that: “It is the policy of the law that there should be finality in litigation. On the other hand one does not want to do injustice to litigants.” Both sets of litigants had prayed for costs on an attorney and client scale. Costs generally follow the event. However, in my view, it is in the interest of justice that costs must be in the cause. Consequently, it is ordered as follows: 8 HB 27-06. 9 1992 (1) ZLR 288 (S). HH 814-22 HC 7544/19 (a) The matter be and is hereby removed from the roll. (b) The respondents be and are hereby directed to amend the opposing affidavit within ten days from the granting of this order and thereafter the matter shall proceed in terms of the Rules. (c) Costs shall be in the cause. Masiya-Sheshe and Associates, applicants’ legal practitioners. Stansilous and Associates Law Firm, respondents’ legal practitioners.