Solomio Farms (Pvt) Ltd. v UNLAWFUL OCCUPANTS, HOFMOOR ESTATE STAND 19833, RUWA (HB 58 of 2017; HC 1916 of 2015; XREF HC 2075 of 2014) [2017] ZWBHC 58 (16 March 2017)

SOLOMIO FARMS (PVT) LTD

Versus

THE UNLAWFUL OCCUPANTS, HOFMOOR ESTATE

STAND 19833, RUWA

And

THE SHERIFF OF ZIMBABWE NO

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 7 NOVEMBER 2016 & 16 MARCH 2017

Opposed Application

Ndlovu for the applicant

J. Mudimu for the respondent

MAKONESE J: In terms of Rule 233 (3) of the High Court Civil Rules, 1971 a respondent who has failed to file a notice of opposition and opposing affidavit in terms of sub-rule (1) shall be barred. This rule is peremptory. Where a party files a notice of opposition outside the prescribed time limits, and an application for condonation is not made, the matter is not properly before the court. No application for condonation for that late filing of a notice of opposition may be considered where no such application has been made. An explanation is essential before a court can exercise a judicial discretion to condone non-compliance with the rules. In general deliberate non-observance of time limits will not find favour with the court and will not be condoned. It is also well established in our law that at any stage during the proceedings in any cause or matter, the court may on such terms and conditions as it thinks just either of its own motion or on application order any person or party who ought to have been joined in the proceedings to be added as a party. It is not proper in terms of the provisions of Rule 87 of the High Court Rules for a party to simply add to the proceedings before the court, additional respondents, without a prior application being properly made to the court.

This opposed application was argued before me on the 7^th November 2016. I confirmed the provisional order in terms of the draft order. I was satisfied that the respondents were not properly before the court as they were duly barred. There was no application for condonation and I was implored by Mr Mudimu appearing for the respondents to invoke the provisions of Rule 4C and condone the late filing of the notice of opposition and opposing affidavits. I refused to do so. I shall give my full reasons. No explanation was given by the respondents for unilaterally joining the Ministry of Lands and Rural Resettlement and the Ministry of Local Government, Rural and Urban Development, in the absence of any order of the court allowing them to do so. This is irregular and is not permitted by the rules. Litigants who flagrantly fail to observe the rules of this court, may not cry foul when the courts refuse to entertain them.

Factual background

Applicant is the registered owner of a farm known as Hofmoor Estate stand 19833 Ruwa and is the holder of a subdivision permit granted under reference number 102002. Applicant has been developing the farm into residential stands under the supervision of Ruwa Town Council. Sometime around July 2015, applicant discovered that some unknown occupants were erecting illegal structures within the boundary of the farm without its permission and consent. Applicant subsequently reported the unlawful invasion to the Zimbabwe Republic Police at Ruwa and requested that the invaders be evicted from the farm. Applicant was advised that the police could only intervene in a civil dispute if there was a court order. On 17 July 2015 applicant approached this court on an urgent basis for an order for a mandam van spolie and obtained a provisional order for the ejectment of the respondents, interdicting them from accessing or entering Hofmoor Estate pending finalisation of the matter. On 23^rd September 2015 respondents were served with the provisional order as well as the notice of ejectment. On 28^th September 2015, 1^st respondent in a desperate bid to prevent enforcement of the provisional order filed two urgent chamber applications one with Harare High Court and another with this court. Both applications for stay of ejectment were refused. 1^st respondent then decided to file a notice of opposition on 22 October 2015. The notice of opposition was filed out of time when the respondents had been duly barred. No attempt was made to seek condonation for the late filing of the opposing affidavit. No explanation was placed before this court for the non-compliance with the rules.

In this application, applicant seeks confirmation of the provisional order granted by TAKUVA J on 28^th July 2015. The respondents filed heads of argument in opposition. Respondents deal with the form of the chamber application at great length and on the merits briefly deal with the merits of the matter. The heads of argument do not deal in one single sentence with the filing of the notice of opposition out of the prescribed time. No condonation is sought for. The respondents do not explain why they joined the Ministry of Lands and Rural Resettlement and the Ministry of Local Government, Rural and Urban Development outside the provisions of section 87 of the High Court Rules. The respondents claim that the applicant has no locus standi to institute these proceedings as the land in question was acquired by the state for rural resettlement. The respondents clearly ignored the fact that ex facie, the applicants had a subdivision permit issued by the Department of Physical Planning, Mashonaland East on 25^th November 2002. The issue of locus standi is clearly a red herring brought about by the respondents to obfuscate the issues.

Points in limine

I shall now proceed to deal with the preliminary issues raised by the applicants.

Whether or not 1^st respondent are properly before the court

Applicants averred that 1^st respondents are not properly before the court by virtue of their failure to file their notice of opposition within the stipulated time. Rule 247 (1) (c) provides that:

“Subject to subrule (3), a provisional order shall:-

(c ) specify the time within which the respondent shall file a notice of opposition if he opposes the relief sought.”

In this mater, the provisional order provided for (12) twelve days within which the 1^st respondent had to file their notice of opposition – after service of the order on them. The 1^st respondents were served with the provisional order and the notice of ejectment on 23^rd September 2015. The 1^st respondent had to file their notice of opposition on the 9^th October 2015. 1^st respondent only filed their notice of opposition on 22 October 2015, eight days after the expiration of the time limit. This issue was raised by the applicants in an answering affidavit filed with this court on 28^th October 2015. No attempt was made to seek condonation for the late filing of the opposing papers. No explanation has been advanced for the non-observance of the time limits. What is clear is that upon service of the provisional order the respondents made futile attempts to secure an order for stay of ejectment in both the High Court Harare and Bulawayo. Both applications were declined. It seems that this is when it dawned on the respondents that they should in fact oppose the confirmation of the provisional order. I am convinced that the respondents were motivated to oppose confirmation of the provisional order by their failure to obtain an order for stay ejectment. The respondents are not being candid in their dealings with this court. It is trite law that failure to file any process within the stipulated time results in such party being barred. The effect of the bar is stipulated in Rule 83 of the High Court Rules which provides that:

“Effect of the bar

whilst a bar is in operation, the registrar shall not accept for filing any pleading or other document from the party barred; and the party barred shall not be permitted to appear personally or by a legal practitioner in any subsequent proceedings in such action or suit, except for the purpose of applying for the removal of the bar.”

In this matter, 1^st respondent failed to file their notice of opposition within twelve days and as such they were barred with effect from the 9^th October 2015. The respondents stood barred and never sought to apply to the court for condonation. In the result, in my view the respondents were not properly before the court. In Forestry Commission v Moyo 1997 (1) ZLR 254 at page 260, GUBBAY CJ as he then was) stated as follows:

“I entertain no doubt that, absent an application, it was erroneous of the learned judge to condone what was on the face of it, a grave non compliance with rule 259. For it is the making of the application that triggers the discretion to extend the time.”

The court went on to refer to the case of Director of Civil Aviation v Hall 1990 (2) ZLR 354 (5) at page 357D-G. The judge remarked that how can a court exercise a judicial discretion to condone when the party at fault places before it no explanation for the delay?

As I have stated above at the commencement of argument, respondent’s legal practitioner invited me to invoke the provisions of Rule 4C, to allow him to be heard in the absence of an application for condonation. This is inspite of the fact that when the matter was argued on 7^th November 2015, a whole year had almost elapsed when it was pointed out to the respondents that they had been barred.

I would in the circumstances find that a party who is barred in terms of Rule 233 (3) of the High Court Rules must seek condonation first, explaining the cause of the non-observance of the rules. In the absence of such explanation, the respondents remain barred and are not properly before the court. In Murimbechi v Townshend HH-275-89, the court held that in an application under rule 233 for an extension of time within which to file affidavits, legal practitioners cannot expect automatic condonation for the late filing merely because the delay amounts to only one or two days beyond the time limit prescribed by the Rules of Court. I would, go further to state that quite often legal practitioners assume that by the mere mention of the words “Rule 4C”, the court is obliged to exercise a discretion to order a departure from the rules. This is not so. The party who has failed to comply with Rules of court must formally seek condonation explaining the cause for the delay. The respondents in this matter had a complete year to place an application for condonation before court but deliberately refrained from doing so. I would, therefore uphold the first preliminary point as being meritorious and find that the respondents are not properly before the court.

Whether or not the joinder of the Ministry of Lands and Rural Resettlement and the Ministry of Local Government Rural and Urban Development by 1^st respondent is proper at law

The second point in limine taken by the applicant is that the purported joinder of the Ministry of Lands and Rural Resettlement and the Ministry of Local Government Rural and Urban Development by the 1^st respondent is a nullity. Rule 87 (2) (b) and (3) explicitly provides that a joinder can only be done through an application to court by the party seeking to be joined to the proceedings. The court of its own motion may also order the joinder of any party to the proceedings. The rules do not allow a party to arbitrarily and unilaterally join parties to any proceedings in the absence of an application being made to court and being granted. In Burdock Investments (Pvt) Ltd v Time Bank of Zimbabwe Ltd & Ors 2003 (2) ZLR 437 (H), MAKARAU J (as she then was) stated the position in the following terms at page 442D:-

“Before a party may be joined or may be allowed to intervene before this court, he or she must establish a direct and substantial interest in the subject matter of the judgment. The interest must be such that the judgment cannot be carried into effect without adversely affecting the legal position of the party mis-joined and the circumstances where the defence of res judicata will not be raised against that party in future proceedings to protect that interest.”

In the application before me, the respondents unilaterally, and arbitrarily of their own motion without any application to court, joined the two government Ministries. This is not only undesirable but improper. The purported joinder is therefore of no legal force or effect. It is a nullity.

I conclude that, the respondents having been duly barred in terms of the rules of the court, and not having sought condonation for the non-compliance with the rules, remained so barred.

I am satisfied, that this was a proper case to uphold the points in limine.

The following order was accordingly made:-

1. The provisional order granted on 28^th July 2015 be and is hereby confirmed.

2. The respondents are ordered to pay the costs of suit.

R. Ndlovu & Company, applicant’s legal practitioners

Mudimu Law Chambers, respondents’ legal practitioners