Court name
Harare High Court
Case number
HC 9904 of 2011

Turner & Sons (Pvt) Ltd v Master of the High Court & Ors (HC 9904 of 2011) [2015] ZWHHC 498 (02 June 2015);

Law report citations
Media neutral citation
[2015] ZWHHC 498
Case summary:

Practice and procedure – affidavits – answering affidavits – filing of – may not be filed after respondent’s heads of argument have been filed, unless court grants leave – contents of – must be brief
 

Headnote and holding:

The sequence of affidavits in motions proceedings, as set out in Order 32 of the High Court Rules 1971, is: (1) founding affidavit; (2) notice of opposition and opposing affidavits; (3) answering affidavit; (4) further affidavits. Thereafter the rules provide for the set down of the matter and the filing of heads of argument. The thinking of the drafters of the rules was that heads of argument, in which legal arguments are presented, are filed after the parties have presented their factual positions, in affidavits, before the court. This is in order to avoid the situation where a substantial portion of an answering affidavit is devoted to answering the legal arguments raised in the heads of argument. Although the Rules are silent on whether leave is required if an answering affidavit is to be filed after heads of argument have been filed, an applicant who intends to file an answering affidavit after the filing of heads of argument must seek leave of the court and must be able to establish a proper and satisfactory explanation why the answering affidavit was not filed in the proper sequence. The usual factors determining whether condonation should be granted will be taken into account. If condonation is not granted, the affidavit will be expunged from the record.

Answering affidavits should not contain new material or bring fresh allegations against the respondent. They should also be brief, not voluminous. If they are unnecessarily prolix or do not comply with the requirements of r 227 regarding the layout and contents of affidavits, an adverse order of costs may be made.

Coram
Makoni J

1

HH 498-15

HC 9904/11

 

 

TURNER AND SONS (PVT) LTD

versus

MASTER OF THE HIGH COURT

and

THERESA GRIMMEL

and

DOBROCK (PVT) LTD

 

 

HIGH COURT OF ZIMBABWE

MAKONI J

HARARE, 12 July 2013 & 3 June 2015

 

 

Opposed matter

 

 

Mrs J Wood, for the applicant

F Girach, for the 2nd respondent

A P de Bourbon, for the Intervener

 

MAKONI J: There have been running battles between the applicant and the Intervener in this court over the Zambezi Paddle Steamer (Pvt) Ltd (the company).

The main disagreements between them culminated in the applicant being compelled to initiate court proceedings for the liquidation of the company.  This resulted in a very detailed judgment by Kudya J where he gives a detailed background to the matter and finally granted a Provisional Order for the liquidation of the company.  The second respondent came on the fray then.  The provisional order was confirmed 18 November 2009.

The applicant now approaches the court seeking an order in the following terms.

“1. The decision by the 1st and 2nd respondents to allow the claim of the 3rd respondent in the sum of U$ 315 084.16 three hundred and fifteen thousand eighty four United States dollars and sixteen cents) in respect of operating expenses and U$71 567.00 (seventy one thousand five hundred and sixty seven United States dollars) in respect of a loan account held in Zambezi Paddle Steamer (Private) Limited be and is hereby set aside.

2. Any sum paid by the 2nd respondent to the 3rd respondent pursuant to allowing the said claim shall be repaid and shall be held by the 1st respondent pending the finalization of this matter.

3. forthwith upon service of this order, the 1st respondent shall cause an independent firm of auditors to conduct an audit into the financial affairs of the Zambezi Paddle Steamer (Private) Limited from 1994 to 2009 and, upon conclusion thereof, shall give such directions to the liquidator of Zambezi Paddle Steamer (Private) Limited as are necessary arising from the audit report.

4.  The 2nd respondent shall pay the costs of the said audit.

5.  The 2nd respondent be and is hereby removes from office as liquidator of Zambezi Paddle Steamer (Private) Limited and in her place shall be appointed Winsley Militala of Petwin Executor & Trust Co. (Pvt) Ltd.

6. The 1st respondent shall supervise the transfer of all books of account, records and other documents pertaining to the liquidation of Zambezi Paddle Steamer (Private) from the 2nd respondent to her replacement.

7. The costs of this application shall be borne by the 2nd and 3rd respondents, jointly and severally the one paying the other to be absolved, on any attorney/client scale.”

 

I will give, at this stage, a detailed chronological account of how the papers in this matter were filed as it will become relevant later on in the judgment. 

The present application was filed on 10 October 2011.  The opposing papers by both the second respondent and the Intervening party were filed on 24 October 2011.On 3 August 2012, the Intervening party filed its Head of Argument.  The applicant then filed two Answering Affidavits on 16 August 2012.  It filed its Heads of Argument on 6 September 2012. On 17 September 2012, the legal practitioners of the Intervener wrote a letter to the Registrar of the High Court, which was copied to and served on the applicant’s legal practitioners on 18 September 2012.  The letter pointed out that the filing of the Answering Affidavit in respect of the Intervener was an improper procedure.  It also gave notice that an application would be made to expunge the Answering Affidavit from the record.  At the end of May 2013 parties received notice that the matter had been set down for 20 June 2013.  On 12 June 2013 the Intervener filed Supplementary Heads of Argument making submissions regarding the admissibility of the Answering Affidavit.

On 20 June 2013 the matter was removed from the roll and re-enrolled for 12 July 2013. On 5 July 2013, the applicant filed an application for condonation of filing Answering Affidavit after Intervener’s Heads of Argument. The intervener filed a notice opposing the application. The matter was then heard on 12 July 2013.

The applicant’s complaints against the second respondent can be summarised as follows:

  1. That the second respondent was biased against the applicant from the onset and that this had a bearing in the manner in which she had acted in that
  1. She has failed to collect the sum of 87 000.00 which was unlawfully withdrawn by the Intervener from the company’s account
  2. She accepted a loan account which accrued in Zimbabwean dollars and paid it in United States Dollars
  3. She paid out a large amount to the Intervener as post-liquidation expenses
  1. The second respondent misrepresented the true legal position of the issue involved in the liquidation.
  2. Failure to seek independent legal advice in that she took advise from Messrs Atherstone and Cook who are lawyers for the Intervener.
  3. She failed to action a directive by the first respondent in that she ignored a request by the first respondent to look into irregularities in respect of the financial mismanagement of the Company by the Intervener
  4. She failed to establish the financial position of the company in that she did not examine all relevant books such as the ships log book which she deemed irrelevant.
  5. She misapplied funds under her control in that she paid to the Intervener, a loan account accrued in Zimbabwe dollars and the post liquidation expenses.
  6. That there had been under invoicing by the Intervener prior to liquidation.

The second respondent opposed the application and raised a point in limine that she was not properly cited as she was not cited in her capacity as the liquidator of the company.  On the merits, the second respondent opposed the application on the basis that the applicant is improperly before the court in that s 222(3) of the Companies [Chapter 24:03] (The Act) is specifically designed to challenge a decision of a liquidator in circumstances where the liquidator acts contrary to a resolution of either the creditors or of the contributories.  The basis upon which the applicant seeks the relief in the Draft Order remains far from clear and the evidence relied upon by the applicant is difficult if not impossible to discern.  As regards the relief under s 273 (1) of the Act, the applicant does not state in her founding papers what precise grounds or subsection /s of the section are being relied upon.

The Intervener raised the point that the party cited as the third respondent does not exist as a registered company and that the claim against the third respondent be dismissed with costs on a higher scale personally against the applicant.

It also raised the point that the applicant is not a creditor of the company in liquidation and is not entitle to utilize s222 (3) of the Act as a means of approaching this court for relief.

It also confirmed the point taken by second respondent that she is not properly cited as required by s 276 (1) of the Act.

It also took the point that the challenge in the present proceedings were not brought within a reasonable time after the alleged cause of complaint arose.

On the merits in respect of relief in terms of s 222(3) of the Act the Intervener contends that it is not clear which decision, stated in the singular in para 6 of the founding affidavit, it is attacking.  If it relates to the acceptance of the loan account, such acceptance was a decision by the Master and not the second respondent.  Such a decision cannot be attacked in terms of s 222 (3) of the Act. If any person is aggrieved by the decision of the Master he or she can bring the decision on review to the High Court. 

If challenge relates to the post liquidation expenses, no grounds were set out to impeach the decisions or actions of the liquidator.

If it relates to the loan account being settled in United Stated Dollars when it accrued during the Zimbabwe dollar era, the Intervener contends that the United Stated dollar is the de facto currency of both the account and payment in Zimbabwe.  The exchange rate was determined by the Master, in terms of the discretion vested in him, based on an independent calculation by Sabre Services (Pvt) Ltd.  If the applicant has an issue with the determination, she cannot challenge it in terms of s 222 (3) of the Act. As regard the application in terms of s 273 (1) (b) of the Act the Intervener contends that the applicant;

Has failed to furnish evidence in support of the allegations summarised above against the second respondent.

As already mentioned earlier on in this judgment, the Intervener filed Heads of Argument before the applicant filed its Answering Affidavit in respect of the Intervener.  The Intervener gave notice on 17 September 2012 that the filing of the Answering Affidavit was an improper procedure and that an application would be made to expunge the Answering Affidavit from the record.  The applicant then filed an application for condonation for the filing of an Answering Affidavit after Heads of Argument had been filed.  The application was placed before me for determination.  It will therefore first of all determine that application as it has a bearing in the determination of the main matter.

 

Application for condonation

            It is the applicant’s contention that the application is made out of an abundance of caution as there is no provision in the Rules which requires that Answering Affidavit to be filed before Heads of Arguments.  The Rules provide that an Answering Affidavit can be filed 10 days before the day of hearing.

            The applicant further contends that the reason for the delay in filing the Answering Affidavit is that the applicant had to investigate matters by herself due to the second respondent’s gross negligence and the first respondent’s failure to conduct its own private investigation into the Intervener’s unlawful activities.  The investigation revealed that the Intervener had clearly defrauded the applicant by systematically externalizing foreign currency.  The proof of this externalization was attached to Answering Affidavit as Annexures C and D and it was only available to the applicant in July 2012.

The application is challenged by the Intervener on the basis that the application was not brought expeditiously and does not meet the requirements for condonation. The explanation given by the applicant is not reasonable.  The intervener also makes the point that the applicant persists in citing the third respondent is Dobrock (Pvt) Ltd, which company does not exist and that the Answering Affidavit does not comply with r 227 of the High Court Rules 1971 (the rules).

The second respondent opposes the application on the same ground as advanced by the Intervener.  She raised a further point that the Answering Affidavit raises new matters which is not permissible and that they are unnecessarily voluminous.

Ms Woods for the applicant submitted that the Answering Affidavit in respect of the second respondent was filed on time and that any submissions by Mr Girach should be ignored.

She further submitted that the third respondent, as in the founding affidavit in the present application is the third respondent at this time and that she will be making an application for amendment of its citation.

She further contended that the Rules do not provide that an Answering Affidavit cannot be filed after Heads of Argument.  She argued that the judgment of Ndou J in Magurenje v Maphosa & Ors 2005 (2) ZLR 44 (HC) at 47 was not correct. If the Rules required that leave be obtained to file Answering Affidavit after Heads of Argument they would have said so.  She further submitted that the applicant’s explanation for the delay is reasonable.  The applicant was carrying out investigations which revealed damming evidence against the Intervener which is to sole reason why he wants that evidence to be struck out.  The evidence was attached to the Answering Affidavit in respect of the second respondent and not that of the Intervener.  She further submitted that the court can grant condonation for departure from the Rules in the interest of justice.  There was no prejudice to the Intervener as it had filed Supplementary Heads of Argument to deal with issues raised in the Answering Affidavit.

Mr Girach for the second respondent abided by the submissions by Mr de Bourbon.    He made a further submission that the Answering Affidavits were voluminous and contained new matters in the form Annex C and D.  He submitted that it is a cardinal rule that new issues should not be canvassed in an Answering Affidavit.

 Mr de Bourbon submitted that the applicant, under oath stated in para 4 of the founding affidavit in the Application for condonation, that the third respondent is Dobrock Pvt Ltd despite it being pointed out that there is no such entity.

He further submitted that the judgment by Ndou J in Magurenje supra was correct.  The substantial portion of the applicant’s Answering Affidavit is in answer to the legal arguments in the Heads of Argument filed by the Intervener.

He further contended that the applicant was warned about the impropriety of the Answering Affidavit and she decided to ignore the warning.  She only applied for condonation 9 months after the warning.

He further submitted that the applicant does not explain why further investigations were necessary and the dates when the further investigations were done and why they had not been done before the institution of proceedings.

 

Citation of Dobrock (Pvt) Ltd

            The applicant cited Dobrock (Pvt) Ltd in her founding affidavits in the main matter and in the present application as the third respondent. The Intervener Dobrock Holdings (Pvt) Ltd has had to seek leave to intervene in these proceedings as it has an interest in this matter.  This is despite the fact that it has previously been pointed out to the applicant as evidenced in para 3, on p 70, and the special plea on pages 154-156 of the applicant’s papers founding papers that Dobrock (Pvt) Ltd does not exist. The applicant persists with the citation of the third respondent as Dobrock (Pvt) Ltd in the present application and contends that an application will be made to amend the citation.

            I agree with the submissions by Mr de Bourbon that this goes beyond mere carelessness.  It shows lack of attention to detail and total confusion on the part of the applicant and those representing it of the real parties in the present matter.  This is not an issue that should have detained the court considering that notice was given that this point will be taken in the letter dated 17 September 2012 to the Registrar and served on the applicants legal practitioners.

            One wonders why we have gotten to this stage of the proceedings before the appropriate application to amend the citation is made. One might be excused for believing that the applicant had not done anything about this issue as it believes that there is no prejudice to the Intervener.  My view is that it is essential in proceedings to clearly define which party is before the court. The authors Herbestein and Van Winsen in The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa 5th Ed p 143 put it this was;

“Before one cites a party in a summons or in application proceedings, it is important to consider whether the party has locus standi to sue or be sued (legitima persona standi in judicio) ad to ascertain what the correct citation of the party is.”

 

 This enables the appropriate party to respond accordingly and it saves time on the part of the court .The court would then deal with the substantive dispute between the parties rather than being bogged down with preliminary issues. In this instance the Intervener has had to approach the court to seek leave to file papers in these proceedings which would have been avoided had the applicant been vigilant in the preparation of its papers. The claim against the third respondent is dismissed.

 

Answering Affidavits

            The applicant is her founding papers and submissions believe that in terms of the Rules there is no provision that the Answering Affidavit must be filed before Heads of Argument.  It can be filed up to ten days before the hearing.  The Rules are silent on whether leave is required if Answering Affidavit is filed after Heads of Argument had been filed.  She makes the application abundans cautela.

            It is my view that I must first determine whether leave of the court is required before determining the issue of condonation.

            Ndou J in the Magurenje case supra was confronted with the same situation as in the present matter.  At p 47 H and p 58 A-C he had this to say:

“ In my view, the filing of an answering affidavit after the parties have filed heads of argument can only be done in exceptional cases and only with the leave of the judge. The applicant did not seek such leave.  Instead, he submitted that he was entitle to do so in terms of the rules.  He is mistaken as such a procedure would defeat the whole purpose of filing heads of argument as set out in Order r 238 (1) (a).  For departure from the proper sequence, the indulgence from court or judge is necessary.  In this record, I refer to James Brown & Hamer (Pty) Ltd v Simmons NO 1963 (4) SA 656 (A) where at 660 D-F Ogilvie Thompson JA said:

“It is in the interest of the administration of justice that the well known and well established general rules regarding the number of sets and the proper sequence of affidavits in motion proceedings should ordinarily be observed.  That is not to say that those general rules must always be rigidly applied: some flexibility controlled by the presiding judge exercising his discretion in relation to the facts of the case before him, must necessarily also be permitted. (my emphasis)”

 

            I agree entirely with the position adopted by Ndou J in this matter. The sequence of affidavits in motions proceedings is set out in Order 32:

            Rule 230 – Founding affidavit

            Rule 233 – Notice of Opposition and Opposing Affidavits

            Rule 234 – Answering affidavit

            Rule 235 – Further affidavits

            Thereafter the rules provide for set down of the matter and the filing of Heads of Argument in Rules 236 and 283 respectively.

            The thinking of the drafters of the rules was that Heads of Argument, in which legal arguments are presented, are filed after parties have presented their factual positions, in affidavits, before the court.  This is in order to avoid the situation that the applicant found itself in where a substantial portion of its answering affidavit is devoted to answering the legal arguments raised in the Interveners Heads of Argument.    My view is that an applicant who intends to file an Answering Affidavit after the filing of Heads of Argument must seek leave of the court and must be able to establish a proper and satisfactory explanation why the answering affidavit was not filed in proper sequence.

 Now I will revert to the application for condonation.  The requirements for an application for condonation are trite.  These are well captured by Sandura JA in Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S) at 315 B-D.

     “The factors which the court should consider in determining a n application for condonation are clearly set out in Herbestein  & Van Winsen’s The Civil Practice of the Supreme Court of South Africa 4 ed by van Winsen, Cilliers and Loots at pp 897-898 as follows:

“Condonation of the non-observance of the rules is by no means a mere formality.  It is for the applicant to satisfy the court that there is sufficient cause to excuse him from compliance….

The court’s power to grant relief should not be exercised arbitrarily and upon the mere asking, but with proper judicial discretion and upon sufficient and satisfactory grounds being shown, the basic principle is that the court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides in which the court will endeavor to reach a conclusion that will be in the best interests of justice.  The factors usually weighed by the court in considering applications for condonation…. Include the degree of non-compliance, the explanation for it, the importance of the case, the prospects of success, the respondent’s interest in the finality of his judgment, the convenience of the court and the avoidance of unnecessary delay in the administration of justice.”

 

            The court is enjoined to exercise its discretion in the interests of justice and when the reasons for non-compliance with rules have been explained to the satisfaction of the court grant condonation.

            In casu, the applicant became aware, as far back as 3 August 2012, that the Intervener was going to take issue with Answering Affidavit filed after it had filed its Heads of Argument.  This position is made clear in para 8 p 228 of the Interveners Heads of Argument which concludes by saying;

“It is submitted that any attempt by the applicant to file a replying affidavit in response to the filing if these Heads of Argument should not be accepted by this Honorable Court, save as further evidence of clear intention and motivation of Angela Allanby to delay the finalization of not only this application but of the liquidation process.”

 

The Heads of Argument were served on the applicant on 6 August 2012. What does the applicant do?  She proceeds to file an Answering Affidavit to the Notice of Opposition filed by the Intervener on 15 August 2012.  On 17 September 2012 the Intervener, through its legal practitioners, complains of the improper procedure and gives notice that an application will be made to expunge the affidavit.  Still the applicant does not react or respond.  The matter was set down for hearing initially on 20 June 2012.  The Intervener, through its legal practitioners, filed Supplementary Heads of Argument on 12 June 2013 where again the issue of the impropriety of the Answering Affidavit is raised.  The applicant did not do anything.  The matter was, on 20 June 2013, removed from the roll.  It was later re-enrolled for 12 July 2013.  That is when the applicant then filed the present application, a mere five days before the day of hearing.  There is no explanation given by applicant, for the delay bearing in mind that the issue was of law which ought to have been known to the applicant’s legal practitioners.  In any event this issue had specifically been raised in the letter to the Registrar of 17 September 2012 and served on the applicant’s legal practitioners.  It took the applicant 10 months to apply for condonation despite the warnings given to it.  My view is that the degree of non-compliance in this matter is gross. The remarks by Chidyausiku J (as he then was) in Lovemore Sango v Chairman of The Publicc Service Commission and Anor HH 28 -96 p 2 of the cyclostyled judgment are apposite.

“Those who sit on their litigation until cows come home have only themselves to blame if condonation is refused when they finally wake up from their years of somnambulism”

 

The explanation given by the applicant for the delay in filing the Answering Affidavit is that it had to investigate matters herself which the first and second respondent had failed to investigate.  The question to ask would be why file an application before you have established the full facts and then investigate later.  The issues that the applicant claim to have investigated on, such as alleged under invoicing and externalisation of foreign currency by the Intervener were live issues before the main application was filed.  It should have done its investigations before it instituted the proceedings.  It is trite that a case stands or falls on its founding papers.  My view is that the explanation for the delay in filing the Answering Affidavit is not reasonable in the circumstances.

The applicant argues that through its investigations it discovered irregular and unlawful behavior by the Intervener which it attached to the second respondent’s Answering Affidavit.  This brings to the fore the issue raised by Mr Girach of new matters in an Answering Affidavit.

The Answering Affidavit contains fresh allegations in the form of Annexure H and I to the Answering Affidavit on pages 283-287 and 309-311 and para 13 on p 354 of the Answering Affidavit to the notice of opposition by the Intervener which should have been contained in the Founding Affidavit. Neither the second respondent nor the Intervening Party has been afforded the opportunity to deal with those facts in an opposing affidavit.

As was stated by the authors Herbestein and Van Winsen- The Civil Practice of The High Courts and the Supreme Courts of Appeal of South Africa: 5th Ed at p 429

“The primary purpose of the replying affidavit (answering affidavit) is to put up evidence which serves to refute the case made out by the respondent in the answering affidavit (notice of opposition).”

 

It is not to be used to bring fresh allegations against the respondents as the door would have been closed to them before they could be respond.

The other point taken by the second respondent and the Intervener is the voluminous nature of the Answering Affidavits.  They are indeed voluminous with a lot of annexures attached to them. In preparing Answering Affidavits consideration should be given to the remarks by Schustz JA in Minister of Environment Affairs and Tourism and Others v Phambili Fisheries (Pty) Ltd; Minister of Environmental Affairs and Tourism and Others v Bato Fishing (Pty) Ltd 2003 (6) SA 407 (SCA) at 439 G-H where he stated;

“There is one other matter that I am compelled to mention-replying affidavits.  In the great majority of cases the replying affidavit should be by far the shortest.  But in practice it is very often by far the longest- and the most valueless.  It was so in these reviews.  The respondents, who were the applicants below, filed replying affidavits of inordinate length.  Being forced to wade through their almost endless repetition when the pleading of the case is all but over brings about irritation, not persuasion.  It is time that the courts declare war on unnecessarily prolix replying affidavits and upon those who inflate them.

The Answering Affidavit are fraught with other irregularities. They do not comply with r 227 1 (b) as they are not divided into paragraphs numbered consecutively each paragraph containing separate allegations.  Examples are found in para 7 p 251, para 44 p 264-266 and para 27 p 357.

After considering all the circumstances in this matter, it is my finding that the application for condonation was not bought expeditiously and does not meet the requirements of such an application.  In the result, the application for condonation for the late filing of Answering Affidavit after the Intervener’s Head of Argument is dismissed.  The Answering Affidavit in respect of the Intervener is expunged from the record. Such other issues as the voluminous nature of the affidavits and that they do not comply with the rule, standing on their own, would not, in my view, result in the affidavits being expunged from the record. Rather it should give rise to an adverse order of costs.

The second respondent’s Answering Affidavit was filed before the second respondent had filed its Heads of Argument.  It is therefore properly before the court.  However fresh matters in the form of Annexure H and I on pp 283-287 and 309-311 and para 13 on p 354 in the Answering Affidavit in response to the second respondent’s notice of opposition are hereby expunged from the record.

 

Main matter

            The second respondent took the point in limine that the application is fatally defective for want of proper citation of the second respondent. The second respondent is cited as Theresa Grimmel, in her personal capacity. It is clear from the founding papers that the basis upon which she is being sued is because she is the liquidator of the company.

            Section 276 (1) of the Act which deals with the citation of the liquidator provides;

“A liquidator shall be described by the style of the liquidator of the particular company in respect of which he is appointed and not by his individual name.”

 

            The provision is peremptory and makes it clear that a liquidator cannot be cited in his or her own name. On this point the authors Herbastein and Van Winsen (supra) at p 147 state the following:

“If a person is suing or being sued in a representative capacity, for example as executor or trustee, rule 17 (4) requires that the summons should make this quite clear. The words in his (or her) capacity as should be added after the person’s name. If a person is sued in a representative capacity, judgment cannot be given against him or her personally or vice versa”

 

            They refer to the case of Basset v Platt 1954 (1) SA (N) in which a summons was held to be irregular and was set aside where the plaintiff, in issuing summons in which she claimed an order declaring a will to be null and void, had not made it clear to the defendant whether he was being sued in a representative capacity as executor or in his personal capacity. See also JDM-Consults & Marketing (Pvt) Ltd v Editor, The herald & Anor 2007 (2) ZLR 71 (1).

            My view is that the mischief behind s 276 (1) becomes clearer when one looks at the execution of the court order. Execution cannot be done against an individual for acts done in a representative capacity.

            This issue was brought to the attention of the applicant in para 2 of the second respondent’s notice of opposition. Its response at p127 was as follows:

“This is denied. They are one and the same person. It is further submitted moreover that the manner in which second respondent has cited makes her personally liable. I am in formed and surely believe that it is not necessary to cite first respondent (sic) in her formal capacity. However, out of an abundance of caution, and without admitting the requirement thereof, application will be made to amend the citation thereof.”

 

            The applicant sought to argue that a 276 (1) of the Act is applicable when dealing with a situation where proceedings are being instituted against a liquidator in his/her capacity as a representative of the company in liquidation. In casu it is applicant’s allegation that the liquidator has been completely remiss in her duties and should as a consequence be removed in terms of s 273 (1). IN my view this is splitting hairs.

            In her submissions, Mrs Wood contented that she is sued in both capacities and an application will be made to cite her as. Theressa Grimmel N.O to cover both respects.

            As was correctly pointed out by Mr Girach, this stance is clearly at odds with the founding papers and the relief being sought by the applicant. The entire application is premised on the second respondent being a liquidator. The use of s 222 (3) of the Act is telling in that it sets out the relief to be obtained by a person aggrieved “by any act or decision of the liquidator.” The applicant also seeks relief in terms of s 273 (1) which deals with removal of a liquidator. I also agree with the submission by Mr Girach that what the applicant is seeking to do is to join a party and not amend the citation. According to the position adopted by the applicant, Theresa Grimmel in her personal capacity will remain as cited. She will then have to join Theresa Grimmel in her capacity as the liquidator of company. The reason being you cannot ask the court to remove a party, as a liquidator, which is not before the court.

            Again we have gotten to this stage of the proceedings when it is not clear who the second respondent is. The applicant has known for more than a year that the citation of the second respondent is an issue. It threatened to file an application to amend the citation but up to the date of hearing such application had not been filed. As I stated earlier on, before one cites a party it is important to ascertain what the correct citation of the party is. This is so so that the party cited may know right from inception the case against it that it is being sued.

            In casu it is not clear who the second respondent is.

            In view of the above, clearly, the application is fatally defective for want of proper citation of the second respondent. In view of the above finding, the applicant’s case collapses.

            The second respondent and the Intervener applied for costs de bonis propriis. No arguments were advanced in support of such an award. However I will not hesitate to award costs on a punitive scale. There are imunerable blunders in the applicant’s case which might give credence to the Intervener’s contention that the litigation is meant to harass the Intervener and delay the finalisation of the liquidation process in the matter. Those blunders were pointed out to the applicant but it persisted with them until the day of the hearing. This is a typical case that Mc Nally J had in mind in Ndebele v Ncube 1992 (1) ZLR 288 (S) at 290 C-E, as quoted in the Kodzwa case supra, when he said the following;

“More recently, in own jurisdiction, my brother Mc Nally said the following in Ndebele v Ncube 1992 (1) ZLR 288 (S) at 290 C-E:

“It is the policy of the law that there should be finality in litigation.  On the other hand, one does not want to do injustice to litigants.  But it must be observed that in recent years applications for rescission, for condonation, for leave to apply or appeal out of time, and for other relief arising out of delays either by the individual or his lawyer have rocketed in numbers.  We are bombared with excuses for failure to act. We are beginning to hear more appeals for charity than for justice.  In competence is becoming a growth industry.  Petty disputes are argued and then re-argued until the costs far exceed the capital amount in dispute.  The time has come to remind the legal profession of the old adage, vigilantibus non dormientibus subveniunt-roughly translated, the law will help the vigilant but not the sluggard.”

           

            In the result I will make the following order:

  1. The application is dismissed
  2. The applicant to pay the second respondent’s and the Intervener’s costs on a legal practitioner client scale.       

 

 

 

Venturas & Samukange, applicant’s legal practitioners

Messrs Coghlan, Welsh & Guest, 2nd respondent’s legal practitioners

Atherstone & Cook, intervener’s legal practitioners