1

                                                                                                                                                                  HH 680/22

                                                                                                                                               HC1710/22

PHIBEON BUSANGABANYE

And

TRANSFRONTIER INVESTMENTS (PVT) LTD

Versus

FARAI MATSIKA

And

FARAMATSI MOTORS (PVT) LTD

And

EDSON GATSI

And

DOVES HOLDINGS (PVT) LTD

And

DOVES LIFE ASURANCE (PVT) LTD

And

INSURANCE AND PENSIONS COMMISSION

HIGH COURT OF ZIMBABWE

CHILIMBE J

HARARE, 22,28 February 2022 & 28 September 2022

Adv R.H. Goba -for applicants

Adv G. Madzoka-for first and second respondents

Mr.C. Warara-for third respondent

Adv M. Ndhlovu-for fourth and fifth respondents

No appearance for sixth respondents.

Interlocutory application

CHILIMBE J

BACKGROUND

[ 1] On the return date to determine the fate of a provisional order, first to fifth respondents applied for excision from the record, of certain portions of the applicants` answering affidavit. These relate in the main, to the sale and transfer of certain property between a third party and second respondent in circumstances further described below. The provisional order had been obtained ex parte in this court on 6 May 2022. The ex parte application had in turn, been brought an urgent basis as an exercise of derivative rights in terms of section 61 of the Companies and Other Businesses Act [ Chapter 24:31] (COBA). 

THE UNDERLYING DISPUTE

[2] First applicant (“Busangabanye”) and first respondent, (“Matsika”) are two former business associates who have since fallen out rather badly. Unkind are the numerous allegations made by each against the other in the various matters before the court. Busangabanye paints Matsika as an archvillain; -one behind much of the corporate misconduct allegedly taking place at fourth and fifth respondents. Matsika ably reciprocates, dismissing Busangabanye as a disloyal and ungrateful peddler of falsehoods. The discord between first applicant and first respondent oscillates around control and ownership of shareholding in fourth respondent, (“Doves”) the principal asset. That shareholder dispute is pending resolution before this court in HC 3364/20.

[3] The other parties hereto are; - second applicant (“Transfrontier Investments”), an investment vehicle and (effectively) hundred per-cent shareholder in Doves. Busangabanye claims that due to Matsika`s intransigence, he was moved to exercise derivative rights to defend Transfrontier`s interest in Doves. Matsika is scathing in his rejection of both Busangabanye`s claim to shareholding in Transfrontier, as well as his right to pursue the derivative action. Second respondent, (“Faramatsi Motors”), is an asset owned or controlled by first respondent, Matsika who is its chief executive officer (CEO).

[ 4] Third respondent (“Gatsi), is the chief operating officer (COO) of fifth respondent (“Doves Assurance”) and director at Faramatsi Motors. Gatsi opposed the application but Busangabanye dismissed him as Matsika`s lackey and hatchet man. Doves Assurance is a subsidiary or associate of Doves. Sixth respondent (“IPEC”) is a statutory regulatory body of fourth and fifth respondents` business sectors. It has neither filed papers, appeared nor taken a position in the present proceedings. This despite some direct allegations of dereliction levelled against it by applicants. This general landscape of acrimony is relevant to the resolution of the matter before the court.

[4] Busangabanye avers that he resigned, on 8 August 2019, from the board of directors of Doves, amidst worrisome acts of corporate misgovernance. He then fortuitously unearthed, sometime in 2021, the irregular acquisition by Faramatsi Motors, of an immovable property belonging to Doves Assurance. This property is stand 11379 Salisbury Township, Graniteside measuring 1,1315 hectares held under Deed of Transfer number 3840/2019 (“the Graniteside property”). It is not in dispute that this property is presently registered in Faramatsi Motors` name.  Busangabanye submitted that the discovery filled him with trepidation and he promptly filed this present application. His motivation being to arrest what he considered an illegal transfer of Doves Assurance`s property as well as other suspected malpractices inimical to the legitimate interests of Doves, its shareholders as well as the policy holders of Doves Assurance.

THE PROVISIONAL AND FINAL ORDERS 

[5] The provisional (per KWENDA J on 6 May 2021), and final orders granted and sought respectively read as follows; -

          “INTERIM RELIEF GRANTED

            Applicants be and is hereby granted the following relief:

1. Pending final determination of this matter, Case No. HC 1710/21,4^th and 5^th respondents be and are hereby restrained and prohibited from whether directly or indirectly transferring, encumbering, bequeathing, selling off or disposing any assets of the 4^th and 5^th respondents including Stand 11379 Salisbury Township, Graniteside measuring 1,1315 hectares held under Deed of Transfer number 3840/2019 which is presently registered in the name of 2^nd respondent.
2. 1^st,3^rd respondents be and are hereby directed [not] to do anything or perform any act preparatory to, directly or indirectly the effect of which is to encumber, dispose, bequeath, donate or transfer any assets movable or immovable of 5^th respondent.
3. The costs of this matter and of interlocutory applications filed of record are hereby deemed to be in the cause of HC 3364/20.”

                                “TERMS OF THE FINAL ORDER SOUGHT

1. Pending determination of Case No. HC 3364/20,4^th and 5^th respondents be and are hereby restrained from, whether directly or indirectly, transferring, encumbering, bequeathing, selling off, dissipating or otherwise disposing any assets of the 4^th and 5^th respondents including Stand 11379 Salisbury Township, Graniteside measuring 1,1315 hectares held under Deed of Transfer number 3840/2019 which is presently registered in the name of 2^nd respondent.”

THE ISSUES EMANATING FROM THE POINT OF LAW RAISED.

[ 6] The application to expunge was raised as a point of law from the bar. Counsel from both sides were divergent on the matters arising to be resolved from the point of law so raised. It would therefore useful to commence by distilling the legal issues concerned.

[ 7] First to fifth respondents` position was simple. That the answering affidavit contained new facts and evidence. These additions varied, to respondents` prejudice, the cause of action as set out in the founding affidavit. As such, the offending parts had to be struck off the record once it was determined that they constituted new facts and evidence. The applicants denied that the impugned parts of the answering affidavit contained new facts and evidence. Neither did they introduce a fresh causa. Intrinsic in applicants` argument was a prayer that if the attachments were ruled as new evidence or facts, then such be admitted exceptionally. Respondents argued that the court was precluded from condoning the inclusion of new facts and evidence on the simple basis that applicants had not properly moved the court to exercise such discretion. Discretion was exercisable only on facts presented to demonstrate “good and sufficient cause”. Such facts were absent. Applicants argued in turn that respondents ought to have applied to have those parts of the answering affidavit deemed objectionable struck off the record

[ 8] Distilled to its bare essentials, the legal point raised in the objection can be restated as follows; -What is the exact nature of these facts and evidence included in the answering affidavit and giving rise to the complaint? What is their materiality? Do they restate the causa set out in the founding affidavit and if so, how? Is it by way of elaboration of that same cause? Or do they materially alter its thrust by introducing completely new dimensions? Do they in that regard, amount to new or fresh facts and evidence? And in the first instance, why were they not included in the founding affidavit?  Is the explanation for their exclusion or omission plausible? Is the entire enterprise free of mala fides? What is the impact of these facts and evidence on the respondents` defence? Only after this analysis can the question then be asked as to whether the offending parts should be excised or permitted to stand.

[ 9] Below is the disputed list of attachments to the answering affidavit; -

1.  Annexure A-an agreement confirming sale of the Graniteside property to Doves Assurance signed on 20 and 27 August 2018.
2. Annexure B-a resolution of 2 July 2018 by the board of Doves Assurance approving the purchase of the Graniteside property and authorising Matsika to represent the company during the transaction.
3. Annexure B1-a Zimbabwe Revenue Authority (ZIMRA) capital gains tax certificate issued on 11 June 2019 relating to a transaction between the sellers and Faramatsi Motors regarding the Graniteside property.
4. Annexure B2- a power of attorney to pass transfer of the Graniteside property to Faramatsi Motors.
5. Annexure C-a letter dated 25 September 2018 from ZB Building Society to ZIMRA`s Capital Gains Tax Assessment Division confirming advancement of a mortgage loan to Doves Assurance for purposes of purchasing the Graniteside property.
6. Annexure D- document described by applicants as confirmation of sale from ZB Building Society to Doves Assurance.
7. Affidavit by Vivian Nigel Carthew Gabriel, a seasoned estate agent who negotiated the sale of the Graniteside property to Doves Assurance in August 2018.This agent stated under oath that the sale was, to the best of his knowledge, never cancelled nor reversed.

THE LAW ON PURPOSE, NATURE AND CONTENTS OF ANSWERING AFFIDAVITS.

[ 10] It is a well-established position that an answering affidavit must not contain new evidence or fresh facts, especially if such have the effect of varying the cause of action. This legal position is set out in a number of authorities including Mobil Oil (Pvt) Ltd v Travel Forum (Pvt) Ltd 1990 (1) ZLR 67 (H); Hiltunen v Hiltunen 2008 (2) ZLR; Loveness Serengedo v Eric Cable N.O. HH 32-08. Oft quoted is MANGOTA J`s opening dictum in Kaskay Properties (Pvt) Ltd v Minister of Lands and Rural Resettlement & 2 Ors HH 762-17[1] where the court asserted this need to set out a causa firmly in the founding affidavit; -

“A litigant who makes a conscious decision to sue through motion, as opposed to action, proceedings is enjoined to anticipate the respondent’s defence. Having anticipated such, he must include in his founding affidavit all the evidence which supports his case including such evidence as will rebut the respondent’s defence.  Where he adopts the stated line of reasoning, the court will not find him wanting when he restates his position in the answering affidavit as he will merely be confirming what he has already told the court. A litigant in other words, should not leave material facts which support his case or rebuts the respondent’s case to the answering affidavit. Where he does so, he runs the risk of the court not taking into account new evidence which he places in the answering affidavit as the respondent would not have had an opportunity to make any comments on the new evidence which he includes in the answering affidavit.” [ underlined for emphasis]

DO THE FRESH FACTS AND EVIDENCE ALTER THE ORIGINAL CAUSE OF ACTION?

[ 11] There is a purpose to all these restrictions to what a party may include in an answering affidavit. The cause of action set out in the founding affidavit must not be varied to the prejudice of the other party or obfuscation of the controversy.  Cause of action was defined in in Peebles v Dairibord (Private) Limited Peebles v Dairiboard (Private) Limited 1999 (1) ZLR 41 (H), and in Joel Simon Silonda (Substituted By Executor Vusumuzi Thomas Silonda) v Vusumuzi Nkomo SC 6-22 as follows at page 16; -

“The law on what constitutes a cause of action is settled. A cause of action is simply a factual conspectus, the existence of which entitles one person to obtain from the court a remedy against another person. In other words, it is an entire set of facts upon which the relief sought stands. See Peebles v Dairiboard (Private) Limited 1999 (1) ZLR 41 (H) at 54E-F and Abrahamse & Sons v SA Railways and Harbours 1933 CPD 626 at 637.” [ emphasis added]

[12] Viewed against the above, it is indisputable that applicants introduced fresh evidence and new facts and that such introduction impacts the cause of action. The founding affidavit made, (a) general allegations of dereliction of fiduciary duty by the directors of Doves and Doves Assurance, (b) conflict of interest averments on the part of Matsika and (c) further allegations that Doves and Doves Assurance, were prejudiced by the transfer of the Graniteside property to Faramatsi Motors through a questionable transaction. The answering affidavit sought to detail the nature of such misconduct. This it attempted to do by furnishing documents not previously attached to the founding affidavit. The import of the documents was to confirm that the Graniteside property, which was acquired by Faramatsi Motors, had at some point, been sold to Doves Assurance, a fact denied by the respondents in the opposing papers. These documents, together with the affidavit of Gabriel the realtor, potentially affect the fate of the provisional and final orders sought. In the final analysis, they constitute fresh and additional facts which were not present in the original affidavit. The question then arises; -should the documents and all their references be instantaneously expunged from record as prayed by respondents? The court naturally has a discretion over the matter.

[ 13] I was referred to Forestry Commission v Moyo 1997 (1) ZLR 254 (S) as authority that in the absence of an application for condonation, a defective pleading should be automatically struck off the record. In Sammy`s Group (Pvt) Ltd v Meyburgh & 2 Ors SC 194-13, the Supreme Court stated the position that a special plea and exception filed outside the dies prescribed in the rules of court ought not have been entertained by the court in the absence of an application for condonation.

[14] There are two important considerations associated with these “condonation   authorities”[2] including Moyo v Forestry Commission (supra). These are (a) the failure to abide by a specific and peremptory provision in the rules, especially adhering to dies induciae and (b) an explanation of the delay between the time that a party ought to have observed the procedure breached, and the time that an application for condonation takes place. In this instance, we are not faced with the breach of a precise item in the rules unlike situations regarding the filing of appeals, special pleas, exceptions or applications for rescission of judgment. As regards (b) the succeeding paragraphs address the matter.

[ 15] When confronted with the absence of a full explanation as to why the new facts and evidence was not included in the founding affidavit, applicants argued as follows; - respondents ought to have excepted or moved for the expunging of the impugned evidence through an application on notice. Raising the matter from the bar precluded either side from presenting anything other than legal arguments. Respondents recriminated that applicants ought to have applied for leave to include additional evidence in the answering affidavits. Both parties do have a point -whose net effect is to merely to accuse the other of breach of the rules. As a matter of the court`s finding, the applicants` answering affidavit offends the established principles governing answering affidavit. On that basis, an application seeking leave to adduce the additional evidence would have been warranted. Similarly, r 43 of the High Court Rules SI 202/21, exhorts a party besmirched with an irregular pleading not to suffer such insult. That party must apply to court to have the offending pleading set aside. (See also Herbstein and van Winsen The Civil Practice of the High Courts of South Africa volume 1 5^th Edition at page 735).

[ 16] But to pluck the feathers off this egg-and-chicken type of argument, I note one simple thing; - neither application for condonation nor for striking off was made. The present objection was raised as a point of law from the bar. It was subsequently argued as such after the parties` respective counsel filed heads of argument addressing the legal point so raised. I believe the point must therefore be disposed of as such. I am guided by the approach taken by the South African High Court in Faber Lola v Nazerian Rimon 2012/ 42735, (Gauteng), (cited with approval by CHIRAWU-MUGOMBA J in Nashe Family Trust v Charles Chiwara & 2 Ors HH 476-18) where the court stated that [ at 27]; -

“I do not agree with the suggestion which was made on behalf of the applicant that the objection to raising new material in a replying affidavit can only be dealt with by way of an application to strike out. The issue of introducing new material in a replying affidavit is a point of law which in my view can be raised even at the hearing of the matter.”

[ 17] Apart from that, the nature of the dispute itself as well as facts already on record support the disposition of this legal point on papers and argument. I advert as well, to the principles laid down by the Supreme Court in various authorities on the treatment of evidence adduced belatedly. GOWORA JA (as she then was) at page 2 of United     Refineries     Limited v   The     Mining     Industry     Pension     Fund, & 3 Ors SC 63-14, which principles I believe apply with equal force herein;

“When considering an application by a party for leave to file a supplementary affidavit, the court is called upon to exercise a judicial discretion.  In the exercise of this discretion, it is a fundamental consideration that the dispute between the parties be adjudicated upon all the relevant facts pertaining to the dispute.  The court is therefore permitted a certain amount of flexibility in order to balance the interests of the parties to achieve fairness and justice.  In this exercise the court has to take into account the following factors:

1. A proper and satisfactory explanation as to why the information had not been placed before the court at an earlier stage;
2. The absence of mala fides in relation to the application itself;
3. That the filing of the supplementary affidavit will not cause prejudice which cannot be remedied by an order of costs.” [emphasis added]

[ 18] On the same point, MAVANGIRA AJA (as she then was) at page 2 of N. Svova & Others V National Social Security Authority Sc 10-16, stated the applicable criteria to consider in applications for adduction of additional evidence as follows; -

“The criteria to be met in such applications are spelt out in Warren-Codrington v Forsyth Trust (Pvt) Ltd 2000 (2) ZLR 377 (SC) at 380-381.  These are briefly: –

1. could the evidence not, with reasonable diligence, have been obtained in time for the trial?
2. is the evidence apparently credible?
3. would it probably have an important influence on the result of the case, although it need not be decisive?
4. have conditions changed since the trial so that the fresh evidence will prejudice the opposite party?”

[ 19]. The authorities have applied the above broad-based principles in the following manner. In Mobil Oil Zimbabwe (Pvt) Ltd v Travel Forum (Pvt) Ltd 1990 (1) ZLR 67 (H), the court held that applicant had not furnished a basis for failure to include information in a founding affidavit. The court declined to accept, in Turner & Sons (Pvt) Ltd v The Master & Ors (supra), an answering affidavit filed after respondents had already filed their heads of argument for the following reasons; -firstly, the answering affidavits dealt with issues raised in the respondents` heads of argument. It thus accorded the other side no opportunity to respond. It was noted that the applicant in that matter was building her case as she went along and that she had in any event, taken inordinately long to file an application for condonation of late filing of the answering affidavit.

[ 20] Additionally, the court ruled that the information which applicant had omitted from her founding affidavit could have been, on exercise of reasonable diligence, been secured and included when the application was initially filed. The fundamental consideration in that decision related to delay in acting. In Mangwiza v Ziumbe NO & Anor 2000 (2) ZLR 489 (S) at 492D-F, the court found no basis for applicant`s attempt to completely amend the causa in her answering affidavit. A similar situation obtained in United     Refineries     Limited v   The     Mining     Industry     Pension     Fund, & 3 Ors (supra) where the court refused the adduction of new evidence because (a) the information concerned had been in applicant`s possession from inception, (b) no explanation had been tendered for its exclusion, and (c) the additional information had the effect of withdrawing a previously made admission. The court observed as follows at page 7; -

“There can be no doubt that in the circumstances of this case the adduction of new evidence would have caused prejudice to the respondent which could not be cured by an order of costs no matter how punitive such costs would have been. A court would not exercise its discretion for the filing of a further affidavit where the affidavits sought to be filed do not constitute a reply but raise wholly fresh issues, thus entailing the filing of further affidavits by the applicant.”

[ 21] In Scotfin Ltd v Afri Trade Supplies (Pvt) Ltd 1993 (2) ZLR 170 (H), ROBINSON J admitted exceptionally, an answering affidavit in an application for summary judgment in order to meet the justice of a case. This decision was followed in Standard Chartered v Matiza 1994 (1) ZLR 186.Similarly, MATHONSI J (as he then was) allowed additional affidavits on the following basis in Dominion Trading FZ-LLC v Victoria Foods (Pvt) Limited HH 324-13 where the learned judge held thus at page 2; -

“The gravaman of this matter is a determination of whether the respondent is insolvent and therefore should be wound up.  The application having been filed on 4 July 2012 but only set down for argument on 10 September 2013, the court will certainly benefit from an update of the current extent of liability as well as measures that have been put in place to improve the fortunes of the respondent. For these reasons, I granted leave to the respondent to introduce additional affidavits which can only assist the court in determining the dispute between the parties.”

[ 22] In Jackson v Rothmans of Pall Mall (Zim) (Pvt) Ltd 1993 (2) ZLR 156 (S) the court took the following factors into account in resolving a similar question at page 161 G-H; -

“In the present appeal, as in the case that the venerable judge made the above-cited remarks, the application for a provisional order of sequestration was placed before the court as a matter of urgency in the interests, not only of the applicant, (respondent), but the public generally. Mrs. Jackson had committed an act of insolvency by disappearing from her home and workplace when investigations were afoot to determine the extent of the defalcations committed by her. It was impossible to have all the facts at its disposal before mounting its application: Registrar of Insurance v Johannesburg Insurance Co. Ltd (1) 1962 (4) SA 548 (W). In the circumstances of this case, I am of the opinion that the trial court exercised its discretion judicially in relying upon facts disclosed for the first time in the answering affidavit of the respondent, as the investigations were continuing at the time of launching the urgent application for the provisional order.”

[ 23] In summary, the authorities have adopted the following approach in treating the adduction of evidence outside the normal procedural framework set by the rules. Courts will consider the relevance and importance of the evidence concerned to the resolution of the dispute. The explanation by applicant as to why such evidence was not earlier furnished is critical. It also addresses the sincerity of the applicant as well as the question of any prejudice likely to befall the respondents. An applicant may be penalised by an order of costs to assuage prejudice deemed likely to befall the respondents. Where no good explanation for the default, and where the evidence intended to be introduced departs materially from the original causa pleaded, courts will not accommodate an applicant. But where good cause is shown to justify exceptional admission of evidence, additional affidavits may be permitted to accord respondents an opportunity to respond or comment to the evidence exceptionally adduced. This additional step being taken to avert prejudice befalling the respondents.

[ 24] In the present matter, applicants have not furnished a full explanation as to why the evidence submitted under cover of the answering affidavit was not earlier provided. What has been tendered is a general picture of intense acrimony between the first applicant and first respondent which poisoned the relationship between first applicant and the respondents. It was argued that even if the respondents had possessed the evidence forming subject of the complaint, they would not have tendered same to first respondent. This however amounts to conjecture and would not suffice as a specific reason explaining why the information was not attached to the founding affidavit.

[ 25] I am not convinced however, that the absence of an explanation as to why the information was not included in the founding affidavit should be fatal to applicants` cause and the following is my reasoning. As (a), that absence of an explanation must be weighed against other factors. Most persuasively, I find that no serious argument has been mounted regarding the authenticity or relevance of the documents.  The annexures and affidavit of Gabriel, on the face of it constitute material that would assist a court dispose of the provisional and final order. (b) No suggestions of impropriety or mala fides on the part of applicants apart from the argument that applicants made their case as they progressed it. Unlike in the Turner, Mangwiza or United Refineries authorities where parties completely sought to panel beat their causa out of desperation, I note that the new facts and evidence in the present matter attach to the core allegation that founded the issuance of the provisional order; -transfer of the Graniteside property. (c) A question might be asked as to whether applicants would have withheld this sort of evidence had it been in their possession at the time proceedings were launched. Likely not. (d) The main complaint was that the annexures to the answering affidavit would greatly prejudice the respondents. The disquiet expressed was that even if the respondents were to be permitted to file additional affidavits, the risk of this dispute “snowballing” could not be discounted. (see Magurenje v Maphosa & Ors 2005 (2) ZLR 44 (H).)  

[ 26] (e) I note that the additional information relates to the transaction concerning the Graniteside stand and nothing more. It should be neither complicated nor difficult for respondents to explain (and or dismiss) the additional documents in order to clear the air around that transaction. (f) The documents do not appear ex facie to be quarrelsome or controversial. (g) It should be practicable to permit respondents to file additional affidavits and heads of argument to deal with the issues raised. An order of costs should address any complaints of prejudice or inconvenience.

DISPOSITION  

[ 27] Finally as (h), a compelling feature in this matter is the need to resolve the underlying dispute between the parties on the return date. Regard cannot be lost, in considering whether or not to exclude the additional information in the answering affidavits, of the fact that this matter started life as a derivative action. It commenced as an application by a party claiming that it sought to correct corporate misgovernance. Whether or not the derivative action requirements have been met is a matter for the return date. What suffices for now in that applicants found favour at the initial instance and secured a provisional order from this court. Such an allegation scopes in the interests of parties other than the shareholders such as policy holders.

[28] These factors justify adoption of a robust approach so that on the return day, the matters may be interrogated to finality. Inevitably, a decision to admit the additional material will call for filing of additional affidavits by the other respondents. Noted is the risk of further legal clutter raised by Advocate Madzoka for first and second defendants. That is a risk which the parties will have to confront and defeat. The rules create room for how such can be achieved. I also take note in considering this risk, that the answering affidavit introduced but one aspect; -an allegation that the Graniteside property was at some stage, purchased by Doves Assurance.

THE QUESTION OF COSTS

[ 29] The inconvenience feared by respondents should, in as far as that is possible, be assuaged by an order of costs. I note however that a caveat seems to have been laid on the issue of costs by my brother KWENDA J whose provisional order stated that; -

3.“The costs of this matter and of interlocutory applications filed of record by respondents and determined by this court in this application be and are hereby deemed to be costs in the cause of HC 3364/20.” [ emphasis added]

[ 30] This order was carefully worded. It seeks to defer the issue of costs for the interim hearing as well as any applications filed as at the date of issuance of the order, for determination at the closure of HC 3364/20, it left some leeway for other matters, to be dealt with differently. On that basis, I believe that an order of costs against the applicants will be consistent with the guidance in cases such as United     Refineries     Limited v   The     Mining     Industry     Pension     Fund, [at 24 above] where the court considered; -

 “That the filing of the supplementary affidavit will not cause prejudice which cannot be remedied by an order of costs.”

It is hereby ordered that; -

1. The application to expunge certain portions from the answering affidavit filed of record be and is hereby dismissed.
2. The respondents are granted leave, should they be so advised, to file and serve additional affidavits to respond to, and address any new matters raised in applicants` answering affidavits, within 10 days of the date of this order.
3. The respondents are granted leave, should they be so advised, to file supplementary heads of argument to respond to, and address any new matters raised in applicants` answering affidavits.
4. Any of the parties to set the matter down for continuation after the expiry of the period within which to file additional affidavits and heads of argument.
5. The applicants to pay the costs of this interlocutory application.

Manase & Manase -applicants legal practitioners,

Mutamangira & Associates-1^st ,2^nd and 3^rd respondents` legal practitioners,

Thoughts Deme Attorneys- 4^th respondents` attorneys,

Warara & Partners-5^th respondents` attorneys.