TelOne (Pvt) Ltd v Gold Driven Inv. (Pvt) Ltd (HC 4329 of 2014) [2015] ZWHHC 262 (17 March 2015)

1 HH 262-15 HC 4329/14 TELONE versus GOLD DRIVEN INVESTMENTS (PRIVATE LIMITED) HIGH COURT OF ZIMBABWE TSANGA J HARARE, 12 & 18 March 2015 Opposed Application ZT Zvobgo, for applicant GS Samkange, for respondent TSANGA J: The applicants seek registration of an arbitral award. At the hearing of the matter, Mr Zvobgo for applicant raised several issues regarding the respondent’s standing. He pointed out that the respondent’s heads were filed out of time and also that a supplementary notice of opposition acknowledging receipt of applicant’s heads was also filed after pleadings were closed. Mr Samkange for the respondent was of the view that none of the two actions alluded to had flouted any rules for reasons I will briefly elaborate. However, in the event that these actions were outside the rules of court he wished to make an application condonation and for uplifitment of the bar. The applicant vehemently opposed that liberty be granted to the Respondent to make such a chamber application given the contextual legal realities surrounding the matter which will be duly addressed. The facts surrounding the contentious supplementary affidavit are these. When respondents received notice of registration of the award, Mr Samkange on behalf of his client the respondent, filed a notice of opposition indicating that his client’s managing director was out of his country and that he had spoken to him and received instructions to oppose the award on the basis that he was of the opinion that the dismissal of his objections to the award had been on a technical aspect. The notice of opposition stated that he wished to make an application for review of the matter. Paragraph 6 of the notice of opposition filed on his behalf by his legal practitioners Venturas and Samkange was couched as follows: HH 262-15 HC 4329/14 “Upon perusing the application I noticed as already pointed out by Mr Liu, the managing director, that today is the last day and it is prudent to file a notice of opposition and that a supplementary and detailed opposition will be field upon Mr Liu’s return next week. There will be no prejudice suffered by the Applicant as an additional detailed opposing affidavit is filed. This can only assist the court in arriving at a fair and just determination.” The opposing affidavit with the above averments was field on the 12th of June 2014. On the 15th of July 2014, the applicant filed its answering affidavit to the notice of opposition that was filed by the respondent’s legal practitioner, which the applicant argues is the only valid notice of opposition filed within the dies induciae. The respondent filed its purported detailed supplementary affidavit on the 22nd of August a day after it received the Applicant’s heads of argument. This was without leave of the court. In arguing that in reality there was nothing untoward with its conduct, Mr Samkange submitted that the applicants should have at least gotten in touch to remind the respondent to file the supplementary affidavit timeously rather than going ahead to file its heads. He also argued that there was no need to make a formal application for the filing of this supporting affidavit since it was in effect the main affidavit rather than a supplementary one in his view. The initial affidavit filed was according to him aimed at satisfying the requirements of the rules with regard to the need for an opposing affidavit. Rule 233 (3) of the High Court Rules 1971 provides as follows with regard to the notice of opposition and opposing affidavits 1) ……. 2) …….. 3) A respondent who has failed to file a notice of opposition and opposing affidavit in terms of sub rule (1) shall be barred. It is for this reason that the respondent’s practitioner relayed the gist of the nature of the opposition upon which the respondent wished to rely in part of para 4 and the whole of para 5: “4……. His instruction is to oppose the award on the basis that whilst Respondent made an application in the High Court , that application was dismissed and an appeal was noted to the Supreme Court and dismissed on the basis of an issue raised on a technical point but was not based on the whole issue. 5. He further advised me that he would want to file an application for review against the whole award. If the award is registered the application for review will be academic…..” The general position is that it is undesirable for a legal practitioner to depose to an affidavit on behalf of his client unless the facts are within the knowledge for such HH 262-15 HC 4329/14 practitioner. (See Mandaza v Mzilikazi (Pvt) Ltd 2007 (1) ZLR 77). It is for this reason that the respondent’s practitioner indicated that a supplementary affidavit would be filed as his client was away. The respondent’s own actions and the content of what it asked its lawyer to aver on its behalf lend credence to the treatment of the opposing affidavit filed on its behalf as being in fulfilment of r 233(3). An attempt to file a supporting affidavit after the sequencing of pleadings had closed needed the sanction of the court. (See Associated Newspapers of Zimbabwe v Media & Information Commission 2006 (1) 128 (H) at 131 E-F; and Silver Trucks (Pvt) Ltd& Another v Director of Customs and Excise (1999) (1) 490). Indeed the respondent himself termed it “Respondent’s Supplementary Notice of Opposition”. Yet no application was made to place it before the court. The supplementary affidavit was filed unilaterally and out of time. The applicant is correct that it should not be considered. The respondent’s position that it should be allowed to apply for condonation of late filing of its supplementary opposing affidavit because the applicant had some professional duty to contact him with a reminder to file the supplementary affidavit lacks merit. It was the respondent’s own duty to put its house in order after all it was respondent who had promised to file the additional affidavit within a week. The respondent’s counsel also put forward the argument that the heads were not exactly out of time based on his interpretation of the proviso to r238 (2) (a) of the High Court rules. The relevant rule of the High Court, 1971 reads as follows: R238 (2) (a) “Heads of argument referred to in sub rule (2) shall be field by the respondent‘s legal practitioner not more than 10 days after the heads of argument of the applicant or excipient , as the case may be were delivered to the respondent in terms of sub rule (1) Provided that – (i) No period during which the court is on vacation shall be counted as part of the ten day period; (ii) The respondent’s heads of argument shall be field at least five days before the hearing” The interpretation of this rule was well ventilated in Vera v Imperial Asset Management 2006 (1) 436 at p 437 F- G where Makarau J as she then was stated as follows: “The operative part of the rule is not to be found in the proviso. It is in the main provision and is to the effect that the respondent is to file his or her heads of argument HH 262-15 HC 4329/14 within 10 days of being served with applicant’s heads. That is the immutable rule. However, in the event that the respondent has been served with the applicant’s heads close to the set down date, he or she shall not have the benefit of the full 10 day period within which to file and serve heads stipulated in the main provision but shall have to do so five clear days before the set down date. This is the import of the proviso to the main provision of the rule.” The respondent’s heads were filed on the 31st of December 2014 clearly outside the 10 day period envisaged by the rules given that the applicant’s heads had been filed on August21 2014. The respondent was therefore effectively barred and in technical default by the time it purported to file its head. A misinterpretation of the rules will not advance its case any further. The respondent cannot simply craft rules for himself by filing a supplementary affidavit without leave of the court and also seeking to interpret the rule on heads of argument to suit self-created dilatoriness. As stated, applicant is vehemently opposed to allowing the applicant to make a chamber application for upliftment of a bar. This is on the basis that he has not made out a case for it. It was emphasised that there is no reason why respondent should have waited for the hearing date in order to make the application when its practitioner has been aware, regardless of what he says, that respondent has been under a bar for the last 7 months. The applicant therefore argued that the respondent should not be allowed to hold the court and itself to ransom. More significantly the applicant’s position was that any postponement to allow for the application must be viewed in light of respondent’s prospects in this matter. It was pointed out the record speaks for itself that the respondent has no arguable matter. Granting leave to make the application under these circumstances would indeed amount to an abuse of court process. It is not in every case where a party’s request for leave to make an application for upiliftment of a bar should be granted more so where there are compelling reasons advanced in opposition. Where a respondent has been barred for failure to files heads of argument on time r 238 (2b) allows a court to deal with the matter on merits. (See GMB v Muchero 2008(1) ZLR 216 (S) 216 at p 221F; Vera v Imperial Asset Management, supra) It is these that applicant urges this court to examine for the position that the Respondent is simply seeking to buy time by requesting to make a chamber application for upliftment of bar. As regards merits of the matter an arbitration award was granted to the applicants on 16th August 2010 which respondents sought to be set aside in the High Court on the grounds that award was against the grounds of public policy in that rules of natural justice had been HH 262-15 HC 4329/14 breached in the making of the award. They also argued that it was in conflict with the substantive law of Zimbabwe. Upon hearing of the matter, the |High court dismissed the contentions in their entirety with costs. It was for this reason that in its answering affidavit Applicant pointed out that a review of the award cannot be made using s 26 and 27 of the High Court since the setting aside award must strictly be within the parameters of article 36 of the Arbitration Act. This Act indeed informed the respondents applications for setting aside the award in the High court and the Supreme Court and hence the matter is now res judicata. Furthermore six years have passed since the arbitral award was made and any further delay can only prejudice the applicant. On the merits it is evident that the applicant has a clear case as the matter is effectively res judicata on account of the Supreme Court decision. There can be no other basis for setting the award aside. The applicant has indeed been put through unnecessary expense by the respondent’s challenge of this registration and a quest for higher costs are justified. Accordingly, for the above reasons, leave to make a chamber application for upliftment of the bar is denied. It is therefore ordered that: 1. The arbitral award dated 16th August 2010 by the Arbitrator the Hon Justice A R Gubbay (rtd) be and is hereby registered as an order of this Court. 2. The respondent shall pay the applicant : a) The sum of US$ 5,097,842.00 with interest thereon at the prescribed rate of 5% per annum from 11 September 2009 to the date of payment in full. b) The sum of $11.392.052.00 with interest at six months LIBOR calculated on the outstanding daily balance compounded monthly from date of demand to date of payment in full; and c) One fifth of the costs incurred by Applicant in the arbitration. 3. The Respondent shall pay the costs of suit on a legal Practitioner / client scale. Dube Manikai & Hwacha, applicant’s legal practitioners Messrs Venturas and Samkange, respondent’s legal practitioners