Court name
Supreme Court of Zimbabwe
Case number
SC 7 of 2005
Civil Appeal 112 of 2002
Case name
Beverley Building Society v Rgwafa (12/02)
Law report citations
Media neutral citation
[2005] ZWSC 7













REPORTABLE
(5)


Judgment
No. SC. 7/05


Civil
Appeal No. 112/02








BEVERLEY
BUILDING SOCIETY v





GODFREY
GODWIN RGWAFA








SUPREME
COURT OF ZIMBABWE


SANDURA
JA, ZIYAMBI JA & GWAUNZA JA


HARARE,
FEBRUARY 7, 2005








J
C Andersen SC
, for the appellant





F
Chimbaru
, for the respondent






SANDURA JA: This is an
appeal against a judgment of the High Court which granted an ex
parte
application, filed by the respondent (“Godfrey”) in
terms of s 51(2) of the Serious Offences (Confiscation of
Profits) Act
[Chapter 9:17] (“the Act”), for an order
directing the appellant’s general manager to produce to Godfrey
certain documents alleged to be
in the appellant’s possession or
control. The documents were to be produced within forty-eight hours
after service of the order
on the general manager.





After
counsel for the respondent conceded, quite properly in my view, that
the appeal ought to be allowed, the following order was
made:






“1. The appeal is allowed with
costs on the legal practitioner and client scale.






2. The
order of the court a quo is set aside and the following
is substituted –





‘The
application is dismissed with costs’.”






Before
setting out the reasons for granting that order, I would like to
indicate that on 13 December 2004 a court application
was filed
in this Court on behalf of the appellant (“Beverley”) seeking
leave to place additional evidence before this Court.
The evidence
was in the form of an affidavit sworn to by Miccah Moyo
(“Moyo”), Beverley’s managing director.






The
application was not opposed and, consequently, we granted it with
costs, having been satisfied that the basic requirements which
must
be met by an applicant in such application were present. See S v
Kuiper
2000 (1) ZLR 113 (S) at 115G-116D.





Having
said that, I wish to set out the background facts in this matter.
They are as follows.





A
company called Bernwin Development Company (Pvt) Ltd (“Bernwin”),
whose principal shareholder was Bernard Mahara Mutanga (“Mutanga”),
owned immovable property in Harare (“the property”) which it
wished to develop. It approached Beverley for the required finance.





In
1999 Beverley and Bernwin concluded two agreements, in terms of which
Beverley advanced to Bernwin two loans on certain terms
and
conditions. As security for the said loans Bernwin registered two
mortgage bonds over the property in favour of Beverley.





Subsequently,
Beverley discovered that some of the funds advanced to Bernwin had
been used for purposes other than the development
of the property.
In order to be sure that the funds would only be used for the agreed
purpose, Beverley devised a very strict procedure
for disbursing the
funds which required proof of the progress completed on the ground as
verified by Beverley’s valuers.





Thereafter,
Mutanga, apparently annoyed by the new procedure for disbursing the
funds, approached the Criminal Investigation Department
of the
Zimbabwe Republic Police and alleged that Beverley had failed to
disburse all the money lent to Bernwin because some of the
money had
been fraudulently disbursed to third parties by Moyo, who was then
Beverley’s deputy general manager, and David Chinhara
(“Chinhara”), who was then Beverley’s mortgage operations
manager.





The
allegation was investigated by Detective Inspector Charles Murehwa
(“Murehwa”) and his colleagues. In the course of that
investigation, Murehwa and his team informed Beverley that they
required from it all the documents relating to the two loans advanced
by Beverley to Bernwin, and the documents were given to them.





However,
a few days later Murehwa and his team arrested Moyo and Chinhara on a
Friday, detained them over the weekend and took them
to the
magistrate’s court on Monday. The allegation was that they had
committed fraud. The presiding magistrate subsequently
refused to
place them on remand on the ground that there was no reasonable
suspicion that they had committed an offence.





As
a consequence of their unlawful arrest and detention, Moyo and
Chinhara subsequently instituted a civil action for damages in
the
High Court against Murehwa and two other persons. Thereafter, on
14 January 2002 the High Court granted an order by consent
directing the three defendants to pay to each plaintiff damages in
the sum of $100 000.00, together with interest and costs
of
suit, jointly and severally, the one paying the others to be
absolved.





About
two-and-a-half months later, on 28 March 2002, Godfrey filed an
urgent ex parte application in the High Court against Beverley
in terms of s 51(2) of the Act, seeking the order already
referred to at the
beginning of this judgment. The order was
granted on 3 April 2002.





Aggrieved
by that decision, Beverley appealed to this Court.





Section 51(2)
of the Act reads as follows:





“Where
a person has been convicted of, or is reasonably suspected of having
committed, a serious offence and a police officer has
reasonable
grounds for suspecting that any person has possession or control of
any property-tracking document in relation to that
offence, he may
apply to a judge for an order directing the person, subject to
subsection (5), to produce to a police officer
any document
described in the order which is in that person’s possession or
control.”






The
issue which arose for consideration was whether Godfrey had any basis
for filing the ex parte application. I do not think that he
had.





I
say so because in April 2000 Moyo and Chinhara were arrested and
detained by Murehwa and his team on the same allegations
subsequently
made against them by Godfrey in the ex parte application filed
in the High Court on 28 March 2002. In the course of their
investigation Murehwa and his team required Beverley
to produce, and
Beverley did produce, all the documents which related to the two
loans advanced by Beverley to Bernwin.





Thereafter,
when Murehwa and his team took Moyo and Chinhara to the magistrate’s
court for remand the presiding magistrate refused
to place them on
remand on the ground that they had no case to answer.





In
addition, when Murehwa and the two other persons were sued by Moyo
and Chinhara for damages for unlawful arrest and detention,
they
consented to an order directing them to pay damages in the sum of
$100 000.00 to each plaintiff. If there had been any
evidence
which justified the arrest and detention, they would not have
consented to the granting of the order.





In
my view, Godfrey must have been aware of all this background
information when he filed the ex parte application in the High
Court. I say so because both he and Murehwa were members of the
Serious Offences Fraud Squad in the Criminal
Investigation Department
and were based in Harare. The unlawful arrest and detention of Moyo
and Chinhara by Murehwa and his team,
as well as the order for the
payment of damages, which was granted by consent, would not have
escaped Godfrey’s notice.





As
the application was ex parte, Godfrey should have made a full
disclosure of all the relevant information which was within his
knowledge and which might have affected
the granting of the order
sought.





In
this regard, the learned authors of Herbstein & Van Winsen:
The Civil Practice of the Supreme Court of South Africa
4 ed
state at follows at p 367:






“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 wilfully 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.”






In
my view, it is clear from a perusal of Godfrey’s founding affidavit
that the most important part of the background facts already
set out
in this judgment was deliberately withheld from the court. Had
Godfrey stated in his affidavit that the fraud allegations
against
Moyo and Chinhara had previously been investigated by Murehwa and his
team, and that the magistrate before whom the two men
had been
brought for remand had refused to place them on remand on the ground
that they had no case to answer, it is unlikely that
the learned
judge in the court a quo would have granted the order which
she granted.





In
the circumstances, we were satisfied that the ex parte
application filed by Godfrey was an abuse of the process of the High
Court, and that the order granted by the learned judge in the
court
a quo should be set aside with costs on the legal
practitioner and client scale.





Finally,
I would like to comment on the late filing of the respondent’s
heads of argument.





The
appellant’s heads of argument were filed with this Court on
25 November 2004 and thereafter served on the respondent,
but
the respondent’s heads of argument were not filed until Thursday
3 February 2005, in breach of the Rules of this Court
(“the
Rules).





Rule
43(3) of the Rules, which governs the filing of heads of argument by
the respondent, in relevant part reads as follows:





“Where
the respondent will be represented by a legal practitioner at the
hearing of the appeal, that legal practitioner shall,
within ten days
after receiving the appellant’s heads of argument in terms of
subrule (2), file with a registrar a document
setting out the
main heads of his argument together with a list of authorities cited
in support of each head, and immediately thereafter
shall deliver a
copy to the appellant …”.





In
view of the fact that the appeal was due to be heard on Monday
7 February 2005, the filing of the respondent’s heads of
argument on Thursday 3 February 2005 was obviously not in
compliance with the Rules, as no condonation of the late filing of
the heads of argument had been granted.





Consequently,
Mr 
Andersen,
who appeared for the appellant, submitted, quite correctly in my
view, that counsel for the respondent was not properly before this
Court. That submission prompted Ms 
Chimbaru,
who appeared for the respondent, to make an application for
condonation of the late filing of her heads of argument.





Her
explanation for the delay in filing the heads of argument was as
follows. There had been some confusion in the Attorney-General’s
Office with regard to which Division of that Office was to handle the
appeal. As a result, the relevant file had initially been
sent to
the Civil Division instead of the Criminal Division, to which it was
eventually sent on 27 January 2005. It was only
after that
date that the file was allocated to her and she was directed to
prepare the respondent’s heads of argument. By that
time, the
period within which the heads of argument ought to have been filed
had already expired.





Whilst
that explanation was not entirely satisfactory, we decided to give
Ms 
Chimbaru
the benefit of the doubt, and accordingly condoned the late filing of
her heads of argument.





However,
legal practitioners should be aware that this Court will not always
consider applications for condonation indulgently.
The relief
sought will only be granted when sufficient and satisfactory grounds
have been advanced.





In
appropriate cases, applications for the condonation of the late
filing of heads of argument may be refused. As DUMBUTSHENA  CJ
stated in
Le Mans
Motors (Pvt) Ltd v Collins

1986 (2) ZLR 253 (S) at 253 F-G:





“Time
and time again, we have warned legal practitioners of the need to
file heads of argument in compliance with rule 43(2) of
the
Supreme Court Rules as amended. Insufficient heed has been paid to
our warnings. The time has come to indicate this Court’s
disapproval by dismissing this appeal. In doing so we wish to
stress that we would not have resorted to this somewhat drastic
action
but for the fact that it is our unanimous view that there is
no reasonable prospect of this appeal succeeding.”





It
is, therefore, in the interests of the administration of justice that
legal practitioners observe the Rules of this Court, and
that
whenever they realise that they have not complied with the Rules,
they should, without delay, apply for condonation.














ZIYAMBI
JA: I agree.














GWAUNZA
JA: I agree.














Gill,
Godlonton & Gerrans
,
appellant's legal practitioners


Office
of the Attorney-General
,
respondent's legal practitioners