Masango v Matambo & Anor (HC 754 of 2011; HH 139 of 2016) [2016] ZWHHC 139 (17 February 2016)

1 HH 139-16 HC 754/11 JAIROS JOZZY MASANGO versus CEPHAS MATAMBO and DULY’S MOTORS a division of Duly Holdings Limited HIGH COURT OF ZIMBABWE MUREMBA J HARARE, 14 January 2016 & 17 February 2016 Opposed Application – Application for amendment O. Shava, for the applicant E. T. Moyo, for the respondent MUREMBA J: This is an application for the amendment of the summons and declaration which were issued out of this court on 2 March 2005 under case number HC 1041/05. The applicant was claiming the replacement value of his Nissan Hardbody motor vehicle which went missing whilst in the custody, care and possession of the respondents who had been given same to sell on behalf of the applicant. The claim was in Zimbabwean currency. It was a claim for Z$158 182 950-00. The matter has not yet proceeded to trial and the applicant now wants to amend its claim to the United States dollar following our adoption of the multi-currency system in 2009. Instead of ZW$158 182 950-00 the applicant now wants to claim US$26 258-00. The applicant avers that the introduction of the multi-currency system makes it legally permissible to make claims in foreign currency. He avers that it is inconceivable to make a claim in the local currency as it is no longer in use. The applicant also avers that he wants an order which is capable of enforcement in the event that he succeeds in his claim. He said that the court cannot grant an order which is brutum fulmen because the Zimbabwean dollar is now defunct. Upon receipt of this application, the respondents filed a notice of opposition and one opposing affidavit for both of them. The applicant in his answering affidavit took exception to this opposing affidavit and raised a point in limine averring that the affidavit is fatally defective warranting the matter to be treated as unopposed as there is no opposition before HH 139-16 HC 754/11 the court. The basis for the exception is that the opposing affidavit was deposed to by one Melvin Roy Sparrow who is not a party to the proceedings. The applicant said that in the affidavit Melvin Roy Sparrow does not say who he is and what his relationship to the respondents is. He also does not aver that he has the authority of the respondents to depose to the affidavit on their behalf. In opposing the point in limine the respondents’ counsel argued in the heads of argument that: “The founding affidavit clearly stated the capacity in which the deponent, Mr Richard Muvirimi was acting and that was in his capacity as Finance Director. The applicant did not file an answering affidavit challenging the deponent’s authority to represent the respondents but has raised the challenge in their heads of argument. It is submitted that the deponent to the opposing affidavit was acting as a representative of the second respondent which is an artificial person ….. The first respondent was sued in his capacity as the sales Manager of the second respondent in the course and scope of employment hence his liability arose by virtue of being an employee of the second respondent. In light of that the first respondent’s liability is essentially the second respondent’s hence the second respondent has from the beginning defended the matter on its own behalf and on behalf of the first respondent. In light of that the deponent to the opposing affidavit is the duly appointed representative of the respondents ………. The deponent is a representative of the respondents. He expressly states that he is authorised to act on behalf of the respondents although no resolution was attached. It is submitted that the failure to attach a company resolution is not fatal to the application”. Relying on the case of Cabs v Magodo HH 331/15, the respondents’ counsel, in the same heads of arguments, went on to say that such a resolution can be produced from the bar. He said that the resolution authorising the deponent to represent the respondents would be produced at the hearing. He further said that if the court makes a finding that there was non- compliance with its rules it can condone the failure to comply. He said that the only omission that the deponent made was not to make an averment that he could swear positively to the facts that he was going to depose to. Let me hasten to point out that it is not proper for the respondent’s counsel to make factual averments which are not in the respondents’ affidavit in the heads of argument in response to points in limine raised by the applicant in the answering affidavit. What the respondents’ counsel did is tantamount to leading evidence in the heads of argument which is not permissible. Heads of argument are a summary of the principal points of submission a legal practitioner or a party intends to make, plus the authorities they intend to rely on during the hearing1. Put differently, heads of argument are skeleton arguments that are prepared by the legal practitioners or parties in preparation of arguing the matter on the day of the 1 Order 40 Rule 238 of the High Court Rules, 1971 HH 139-16 HC 754/11 hearing. Evidence in an application is given in affidavit form, and not in the heads of argument. Procedurally, the proper or correct course to take if the respondent wants to respond to new issues raised by the applicant in the answering affidavit is to make an application to court or to a judge for leave to file a further affidavit2. In casu, if the respondents felt that they wanted to respond to the point in limine which was raised by the applicant in the answering affidavit they ought to have made an application for leave to file a further affidavit in terms of r 235. Whether or not that application would have been granted would have been the discretion of the court or judge seized with the matter. I will therefore disregard the evidence that Mr Moyo sought to give through the heads of argument. I am in agreement with the applicant that the opposing affidavit is fatally defective as it lacks the necessary averments which Melvin Roy Sparrow ought to have made. He must have stated who he is, what his relationship to the second respondent is and that he has the authority of the second respondent to depose to the affidavit on its behalf. He could have even attached proof of authority to do so. In other words he should have simply stated in what capacity he was deposing to the affidavit on behalf of the second respondent. In respect of the first respondent who is a natural person, Melvin Roy Sparrow should have stated on what authority he was deposing to the affidavit on his behalf, for instance, by virtue of a power of attorney granted to him. In the absence of such authority, the first respondent should have deposed to his own opposing affidavit. The opposing affidavit is fatally defective to the extent that it cannot be said that there is any opposing affidavit from the respondents. There being no opposition in the matter, the matter is treated as unopposed. In the result, the application to amend the summons and declaration is granted as prayed for in the draft order. Mbidzo Muchadehama & Makoni, applicant’s legal practitioners Henning Lock Donagher & Winterton, respondents’ legal practitioners 2 Order 32 Rule 235 of the High Court Rules, 1971