Judgment No. HB 28/06
Case No. 955/05
Xref No. 115/04
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 7 JULY 2005 AND 6 APRIL 2006
Mr R Nyathifor applicant
Mr N Mazibukofor respondent
CHEDA J: On the 1stday of July 2005, applicant filed a court application where she sought an order in the following terms: -
“That applicant be and is hereby granted leave to conclude the sale of House No. 15821 Nkulumane Township for the price of $160 000 000-00 or any better purchase price.
That applicant be and is hereby granted leave to sign all documents necessary to effect the sale and transfer of house no. 15821 Nkulumane Township to any purchaser in terms of paragraph 1 of this order.
That respondent is to bear the costs of this application on an attorney and client scale.”
The parties were married under civil law and the said marriage was dissolved on 27 January 2005. Upon dissolution of the mariage Applicant was awarded 58% of the net proceeds of the sale of the immovable property being House No. 15821 Nkulumane, Bulawayo while respondent was awarded 42%. In order to fairly distribute the net proceeds of this house, the house was evaluated by an Estate Agent who pegged it at $85 million on the 25th day of February 2005.
On the 30th day of March 2005, applicant’s legal practitioners wrote a letter to respondent’s legal practitioners advising them of the Evaluation report and at the sametime inviting their client (respondent) to respond to their letter. In fact, the second paragraph of the said letter reads: -
“May we have your client’s observations. There is need to dispose of the house and conclude the matter without further ado”
On the 13th day of May 2005, one Mathew Ndeketeya made an offer to purchase the said house for $160 000 000-00. The said offer which was conveyed by applicant’s legal practitioners in their letter to respondent’s legal practitioners was couched as follows:-
“Messrs Calderwood, Bryce Hendrie and Partners
RE: ISABEL SIBANDA –vs- EDMOND SIBANDA: CASE NO: 115/04
We refer to the above matter.
We have been advised by client that an offer on the house has been made. We attach hereto a photocopy of a letter in this regard. As you will appreciate the proposal is for $160 million.
It will be best if your client may advise, as a matter of urgency, whether this offer is a acceptable to him.(sic) (The underlining is mine)
MARONDEDZE, NYATHI AND PARTNERS”
No response was received from applicant’s legal practitioners despite the fact that he was advised to attend to the issue urgently. Applicant and respondent’s legal practitioners subsequently held a telephone conversation wherein respondent’s legal practitioners advised them that they had not seen respondent for a couple of months and they therefore authorised applicant’s legal practitioners to write to him directly. This, they did on the 19th day of May 2005. In the said letter they advised him of the new offer of $160 000 000-00 against the official valuation of $85 000 000-00.In addition thereto, he was advised that he should give his views by the 25th day of May 2005. Respondent did not respond.
On the 1st day of June 2005, applicant filed this court application which was served on respondent on the 14th day of June 2005. Again, no response was received and this time no notice of opposition was filed and the matter was heard on the 7th day of July 2005 as an unopposed matter.
On the day of the hearing Mr Mazibuko for respondent appeared seeking to have the matter postponed in order to enable respondent to get a response from his employers with regards to a loan he had applied for in the sum of $100 000 000-00.
Mr Nyathi opposed this application on the basis that respondent had been given enough time to buy applicant out and also that there was a need for this dispute to be brought to finality.
The general rule and approach of this court in relation to postponement is that either party may apply for a postponement by way of a substantive application on notice of motion to his opponent before the trial or on the day of the hearing. I, however used my discretion and allowed Mr Mazibuko to advance his argument for a
postponement. The granting of such an application is in the nature of an indulgence and it lies entirely in the Court’s discretion to grant or refuse the application. The discretion is purely a judicial one. For that reason a litigant who seeks a postponement must satisfy the court that it should grant its indulgence. The courts are generally slow to refuse a postponement due to the consequences which may ensure. See Isaacs and others v University of the Western Cape 1974 (2) SA 409 and Western Bank Limited v Lesterand Mclean and others 1976 (3) SA 457. Respondent was aware of the order for the distribution of property as far back as 27th day of January 2005, which is the day of the dissolution of the marriage. Applicant’ legal practitioners advised of the need to finalise this through his legal practitioners and also by writing to him directly. His own legal practitioners were failing to contact him. It was both his duty and in his own interest to ensure that he retained contact with them at all cost until the matter was finalised in the form of the disposal of the immovable property.
In determining whether the matter should be postponed, the court in my view, should examine the reasons for the postponement and weigh them against the prejudice which the applicant will eventually suffer if the matter is postponed.
Incasu applicant seeks the postponement in order to get a response from his employers. While generally this is a sound argument, sight should not be lost that respondent had all the time to source funds. Against that, respondent has secured a firm offer of $160 million, an amount which is far much above the $85 million which was given as the then market value of the house in dispute. In addition, respondent decided to cut contact with his own legal practitioners before the matter was finalised, much to his peril.
On the basis of the fundamental principle that litigation must come to finality and respondent’s unsatisfactory reason for the postponement, this to me is not a proper case for a further postponement. I am of the view therefore, that justice requires that the postponement should not be allowed in this case.
Applicant has asked for costs at the legal practitioner and client scale. The general rule is that in the award of costs as between attorney and client scale is that something more underlies this practice than the mere punishment of the losing party. See Nel v Waterberg landbouwers Ko-operative Vereniging 1946 AD 597; Epstein and Payne v Fraay and others, 1948 (1) SA 1272(W) and Keyter v de wet, 1967 (1) SA 25(0).
In Nel’s case (supra) Tindall, J.A at 607 stated:-
“The true explanation of awards of attorney and client costs not authorised by Statute seems to be that, by reason of special considerations arising either from the circumstances which give rise, to the action or from the conduct of the losing party, the court in a particular case considers it just, by means of such an order, to ensure more effectually than it can do by means of a judgment for party and party costs that the successful party will not be out of pocket in respect of the expense caused to him by the litigation.”
There are various circumstances under which the court may award costs on a higher scale against respondent. One of which is the absence of bona fides in conducting litigation on the part of respondent; see Suzman Ltd v Pather and Sons, 1957(4) SA 690 (D).
Respondent was informed of an offer to purchase the property but did nothing until the last minute; that is until this application was made. He was aware that the property had found a buyer for a higher amount which was to his benefit, but despite all this positive developments to their case he still persisted with an application for postponement in order to hear from his employers wherein he had applied for a loan of $100 000 000-00.
This type of conduct, to me is an indication of lack of bona fide on his part and it is the type of conduct which attracts an award of costs at a higher scale.
In conclusion, this application is granted with costs at attorney and client scale.
Marondedze, Nyathi and Partnersapplicant’s legal practitioners
Calderwood, Bryce and Hendrie, respondent’ legal practitioners