Court name
Harare High Court
Case number
HC 497 of 2006

Sibanda & Anor v Mzyece N.O. & Ors (HC 497 of 2006) [2010] ZWHHC 91 (01 June 2010);

Law report citations
Media neutral citation
[2010] ZWHHC 91

 

REVEREND R.  J.  SIBANDA                                                         

(in his capacity as Overseer of the Apostolic  Faith Church)

and

APOSTOLIC   FAITH   CHURCH

versus

MAGISTRATE  RODNEY  MZYECE N. O.

and

NCN MATIZA

and

K. BOSHA

and

O. GUMBO

and

E. MUHLANGA 

and

A.MAHACHI

and

Mr. MANGERE

 

 

HIGH COURT OF ZIMBABWE

KARWI J

HARARE, 28 January 2010 & 2 June 2010

 

Opposed Court Application

 

KARWI J; First Applicant and the respondents are engaged in a bitter battle for the control of second respondent. As often happens in such issues, the disputes unfortunately spill into our courts. Parties have been engaged in litigation of all sorts since 2005.

The background to this application is that on 11 April 2006 the respondents unlawfully disposed people who were manning the Church of the keys to that Church and barred everyone else out. Following this action, and on 12 April 2006 Applicants made an application for a spoliation order against respondents in the Magistrates Court (Case NO. 5450/06). The matter was heard on the same day and a rule nisi issued in favour of applicants. The return date was 3 May 2006. Applicants’ legal practitioner failed to attend court on the return date resulting in the discharge of the rule nisi. On 5 May 2006 the first respondent issued a default judgment, which judgment applicants are now seeking to be reviewed. Applicants filed their application for review on 18 August 2006, some two months out of time. Applicants are also seeking condonation of their late application for review. The application is strongly opposed by the respondents. They are also seeking condonation of their delay in filing heads of argument in this matter.

In his founding affidavit, Mr Tendai Biti, the legal practitioner representing applicants states that two applications were filed on behalf of applicants in this matter. One was an urgent chamber application and the second was an application for condonation. Both matters were referred to the same judge. The urgent chamber application was not set down on an urgent basis but was set down in the ordinary course of events. Mr Biti further said that when he was served with the respondents Heads of argument on 4 January 2007 he assumed that same had been filed in respect of the chamber application, and because there was no obligation to file heads in respect of the urgent chamber application he elected not to file heads of argument. He then filed Heads of Argument on 14 June 2007. Mr Biti further said that the failure to file Heads of Argument was a result of a genuine error which was bona fide. He submitted that Applicants had a good case on the merits and that therefore the late filing of Heads of Argument be condoned and that the time within which to file Heads of Argument be extended to 14 June 2007 which is the date Heads of Argument were finally filed and that the automatic bar operating against Applicants be uplifted.

In his opposing affidavit, Onius Gumbo stated that the application for review was out of time as it was filed outside the eight weeks provided for by Order 33 Rule 259 of the High Court Rules. Judgment sought to be reviewed was delivered on 4 May 2006. Review proceedings ought to have been brought at the latest by 29 June 2006.The application was only filed on 18 August 2006, a period of almost two months after the expiration of the period within which applicants ought to have acted. It is peremptory that the applicants ought to have sought this court’s condonation of the delay. No good cause has been shown why Applicants should be indulged by this court.

Mr Gumbo further said that the first applicant had no locus standi to represent the second applicant. Mr Todd Phiri besides not being an elder in the second applicant does not have the locus standi to represent second applicant and the first applicant. The first applicant brought these proceedings as Reverend R.S. Sibanda, in his official capacity as Overseer of the Apostolic Faith Church. However the power of attorney upon which Todd Phiri purports to act upon only empowers him to act on behalf of R. J .Sibanda in his personal and private capacity. Todd Phiri cannot therefore claim to have the mandate to represent the second applicant through the said power of attorney.

Mr Gumbo went further to state that whilst the second respondent was a corporate body the first applicant was not the duly appointed Overseer. He was dismissed by the Apostolic Faith Mission of Oregon, the second respondent’s parent church. He had been appointed to the same position by the parent church and in tandem with the provisional ruling by NDOU J in case No. HB48/05 he had formally been dismissed due to his actions consequent to that ruling. Mr Gumbo added that Todd Phiri was not acting in terms of a special resolution of the board of the second respondent and none was attached to his papers. He was certain of this as he is the interim chairman of the second respondent’s board.

It was Mr Gumbo’s further point that none of the respondents in this matter had been dismissed and are still members of the second respondent. Any purported dismissal of the respondents was a nullity.

More importantly, the spoliation order was never necessary as applicant was never in peaceful and undisturbed possession of the church premises concerned. Rev. Sibanda stays in Bulawayo and cannot under any circumstances be in possession of the premises in Harare. Furthermore, none of the respondents had been fighting for the control of the Highfield church.

As to the events surrounding the default judgment, assuming that the applicants erstwhile legal practitioners forgot to or were not aware of the return date, how could the first applicant also forget the date. First applicant applied for and obtained a rule nisi, and was made aware of the return date. Applicants were clearly in default and they had to explain their default.

Besides failing to attend court on the return date, applicants’ legal practitioners further bungled when on receipt of respondents’ Heads of Argument, they assumed that the same was in respect of another different application, and elected not to do anything, apparently because there was no obligation to act in that different matter. As a result the applicants became barred. Unfortunately for the applicant the bungling by their legal practitioners went on. The legal practitioner filed what he himself described as “uncharacteristically unstructured Heads of Argument” on 14 June 2007 for which he apologized in his supplementary Heads of Argument which he later filed well out of time on 1 September 2007. The Heads of Argument in question had actually not addressed the critical issues of the upliftment of the bar which had been occasioned by the late filing of Heads of Argument.

In terms of Order 33 Rule 259 of the High Court Rules, 1971 any proceedings by way of review shall be instituted within eight weeks of the termination of the suit, action or proceedings in which the irregularity or illegality complained of is alleged to have occurred. The judgment which is subject of this matter was handed down on 4 May 2006. The application for review should have been filed by 29 June 2006. The application in casu was only filed on 18 June 2006, some two months later. Papers show that there was no application made at all for condonation of the late application for review at the time that application was filed. Indeed there was no such an application in this application either. Such an application was only made ex abundanti cautela much later in supplementary Heads of Argument filed on 1 September 2006.

Accordingly, I find that the matter is not properly before this court as the applicant is barred. The application is fatally defective for non compliance with the Rules of this court. See Forestry Commission v Moyo 1997 [1] ZLR 254[S].

As far as the application for review is concerned, case authorities show that for a decision to attract review on the basis of gross unreasonableness it must be shown to be ‘So outrageous in its defiance of logic or of any acceptable moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it ….Lord SCARMAN spoke of a decision having to be so absurd that the decision maker “must have taken leave of his senses” See Dube v Mandioma NO & Anor SC 173 , Gondo v Minister of Public Service, Labour & Social Welfare & Anor SC95-98, and Charumbia v Commissioner of Taxes & 7 Ors SC88-98.

In the case of Secretary of State v Tameside Metropolitan Borough Council 1976[3]. All ER 665 CA AT PAGE 671 Lord DENNING stated;

“no one can properly be labeled as being unreasonable unless he is not only wrong but unreasonably wrong, so wrong that no reasonable person could sensibly take that view”.

 

The allegations of gross unreasonableness and gross irregularity were made by the applicants and are based on the fact that the first respondent made reference to the lack of merit in the applicant’s case. In my considered view the averments made in the affidavit filed in support of the relief sought come nowhere near satisfying the test articulated in the cases cited above. The giving of reasons in a judgment in which one is in default does not constitute unreasonableness. The giving of reasons for a default judgment where the applicant is in default does not constitute an irregularity. The first respondent had the applicants’ papers as well as those filed on behalf of the respondents before him. He applied his mind to the facts and wrote his judgment. I agree with submissions made by respondents’ counsel that this application is an attempt to circumvent the prescribed process and procedure for seeking rescission of a default judgment in circumstances where the applicants knew that they were out of time. The arguments made in this application, could still be made in an application for rescission of the default judgment.

I observed that throughout the applicants’ papers, the second applicant is improperly joined as an applicant in these proceedings. I agree with the respondents’ counsel that neither the first nor the deponent to the so- called founding affidavit (Todd Phiri) is authorized to represent the church in these proceedings. The power of attorney upon which he purports to act is given by the first applicant and not by the church. The Church has a Board which is the appropriate authority to make a resolution for the proceedings to be instituted and for the appointment of a person to represent it in these proceedings. Furthermore, the authority of Todd Phiri to represent the first applicant is also not established. In the first place the Power of Attorney attached to the papers shows that the first applicant appointed Moses Makayi, and not Todd Phiri, to be his agent. Secondly, it is noted that the first applicant instituted proceedings “in his official capacity as Overseer of the Apostolic Faith Church”, yet the power of attorney relied upon by Todd Phiri given by the first applicant is in his personal capacity. This is why even the authority by Todd Phiri to represent the first applicant has not been shown.

In the result, both the application for condonation and the application for review are hereby dismissed with costs.

 

 

 

Honey & Blanckenberg,applicants’ legal practitioners

Musunga & Associates, respondents’ legal practitioners