Mndaka & Ors v Harvey World Travel (Pvt) Ltd. (HC 407 of 2015; Ref HC 1311 of 2012) [2015] ZWHHC 745 (23 September 2015)

1 HH 745-15 HC 407/15 Ref Case HC 1311/12 JOSEPHAT BANDA MNDAKA and TAPIWA RICHARD KUNYADINI and LUKE MWAZIYA versus HARVEY WORLD TRAVEL (PVT) LTD t/a VINTAGE TRAVEL AND TOURS HIGH COURT OF ZIMBABWE MATHONSI J HARARE, 23 September 2015 Opposed Application C. Kwaramba, for the applicants B. Marowa, for the respondent MATHONSI J: Voluminous documents running into 132 pages have been filed in this application. It is outlay not borne by the issue at hand, which itself is a simple one, namely whether there is “good and sufficient cause” as envisaged by r 56 of the High Court of Zimbabwe, Rules, 1971 to rescind the consent order granted at a pre-trial conference on 10 September 2012 against the applicants herein, 3 Mobile (Pvt) Ltd and Langton Nyatsambo in HC 1311/12. In that matter the respondent sued the present applicants and those two others for payment of $3 240-00 being the cost of air tickets it had issued for them to travel to Johannesburg South Africa. Describing the applicants in its declaration, the respondent pleaded that: “4. 5. 6. Third defendant is Josephat Banda Mndaka a male adult whose address of service is that of the Frist Defendant (3 Mobile (Pvt) Ltd). Fourth defendant is Tapiwa Kunyadini a male adult whose address of service is that of the First defendant. Fifth defendant is Luke Mwaziya a male adult whose address of service is that of the First Defendant”. HH 745-15 HC 407/15 Ref Case HC 1311/12 But then we know that these “male adults”’ addresses are not that of 3 Mobile (Pvt) Ltd a company which does not employ them and is only connected to them by virtue of the fact that they dealt with it during the course of their employment by the Municipality of Harare where the first applicant is employed as an Information Technology Officer, the second applicant as Area Engineer and the third applicant as Acting Commercial Services Manager. It is the Municipality which engaged 3 Mobile (Pvt) Ltd, a company which was bidding for a contract to instal a cellphone meter reading system for the Municipality. In trying to persuade the Municipality to give it the contract 3 Mobile (Pvt) Ltd offered to send the applicants to South Africa on an all-expenses paid trip to inspect a similar system it had installed in that country. That is how the issue of purchasing air tickets arose. In view of the fact that the summons for the applicants was directed at the address of 3 Mobile (Pvt) Ltd, given as c/o Chadyiwa & Associates, the Sheriff did not serve it upon them but reported in his return of service that on 23 February 2012 he: “ Served (the summons) on Ms J Sineya receptionist at Chadyawa & Associates 1st , 2nd , 3rd , 4th and 5th defendants legal practitioners who accepted service on behalf of 1st , 2nd , 3rd , 4th and 5th defendants at place of business”. That is where the problem began. On 27 February 2012, Chadyiwa & Associates purported to enter appearance on behalf of all the 5 defendants. On 10 April 2012 they filed a very brief plea on behalf of “the defendant” but signed off in that plea as “defendants’ legal practitioners”, presenting a challenge as to which defendant they represented. In the summary of evidence which Chadyiwa & Associates filed they stated that “the defendants will lead evidence from themselves and from George an accountant with the first defendant”. At the pre-trial conference held on 10 September 2012, the applicants were not in attendance, they could not be because there is nothing to suggest that they ever became aware of the litigation against them. John Mutonono of Chadyiwa & Associates appeared, ostensibly for all the defendants and signed a consent to judgment resulting in the consent order which is sought to be rescinded. John Mutonono has deposed to an affidavit which is an indictment to the ethical conduct of legal practitioners practising law in this country. He states: “4. Sometime in 2012 I received instructions to represent the defendants in case No HC 1311/12. HH 745-15 HC 407/15 Ref Case HC 1311/12 5. 6. 7. 8. 9. 10. 11. 12. 13. The person who brought the instructions was, one Langton Nyatsambo, who was the 2nd defendant in the matter but was also the owner and a director of 3 Mobile (Pvt) Ltd which was cited as the first defendant in the matter. (We know from the return of service that the summons was served on Mutonono’s law firm by the Sheriff). He approached me with a summons and asked me to defend it on behalf of all the defendants, which I did. I must state that I represented all the defendants at the specific instance of Mr Langton Nyatsambo who indicated to me that 3 Mobile (Pvt) Ltd was the principal debtor and that the rest of the defendants were not significant to the transaction. In other words his instructions were that it was 3 Mobile (Pvt) Ltd which owed the claimed amount not the other defendants who had been cited. I defended the matter up to the pre-trial conference stage where through instructions from Mr Langton Nyatsambo, I signed a consent order which resulted in the current order. In effect, it was Langton Nyatsambo who admitted that it was his company which owed the plaintiff. Unfortunately there was no separation of defendants and I believe it was because it seemed obvious at that time that 3 Mobile (Pvt) Ltd would pay the debt. I must admit however that I never met the applicant and his two workmates. I do not know them even now. The 3rd, 4th and 5th defendants in case No. HC 1311/12 never gave me instructions. I was never told about them. 14. They definitely did not consent to the order sought 15. I do not know whether they were ever served with any court process.” (The underlining is mine) What has become of legal practitioners in this jurisdiction? Mutonono’s indiscretions did not start there. Much earlier on before the summons was served he had authored a letter on 2 February 2012 addressed to the respondent’s legal practitioners demanding that the summons be served upon him: He stated: “RE: OUTSTANDING AIR FARE CHARGES : MR L NYATSAMBO & 3 OTHERS HH 745-15 HC 407/15 Ref Case HC 1311/12 Your letter dated 27the January 2012 refers. In the event that you issue out summons, same can be served on us. In the meantime we are awaiting for a response from our clients as to when and how much they will be able to pay”. Just how does a lawyer who has never met a litigant demand that the summons issued against such a litigant be served upon him? How does a lawyer who does not even know a person, appropriate that person’s summons, enter appearance to defend on behalf of that unknown person, file a dubious plea and crown it all by consenting to judgment on behalf of that person? Could it be that the instructions to undertake that exercise would have been transmitted through osmosis or the process of diffusion? It is just unthinkable. The whole process would be a charade where a legal practitioner misleads the court that they are acting on behalf of a litigant when they have never met that litigant forcing the court to act on a mispresentation. A legal practitioner proceeds to commit a party to a judgment in respect of a litigation that the party knows nothing about he not having even been served with the court process. It is atrocious and unconscionable unethical conduct which must be condemned in the strongest of terms. As it is now, three people who were unaware of a claim when it was commenced and when it was concluded now find themselves grappling with a judgment unlawfully consented to by a tardy legal practitioner abusing the trust that the court reposes on its officers, a trust he does not deserve. One would forgive such indiscretion by a legal practitioner if it was an isolated occurrence. It is not. This court has been confronted with a number of cases in which legal practitioners purport to represent litigants they have never met and consent to judgment without the knowledge of the litigant. Such unethical conduct appears to be on the rise forcing the hand of the court. The time to act has come in order to rescue the noble profession from the bad apples that seem not to have taken any lessons on legal ethics. For that reason, this judgment will be forwarded to the secretary of the Law Society of Zimbabwe with appropriate recommendations for that authority, which is tasked with regulating the conduct of legal practitioners in this country, to investigate the conduct of John Mutonono. In terms of r 56: “A judgment given by consent under these rules may be set aside by the court and leave may be given to the defendant to defend, or to plaintiff to prosecute his action. Such leave shall only be given on good and sufficient cause and upon such terms as to costs and otherwise as the court deems fit”. HH 745-15 HC 407/15 Ref Case HC 1311/12 It has been held that the requirements for rescission of a judgment given by consent in terms of r 56 are the same as those for rescission provided for in r 63. See Roland & Anor v McDonnell 1986 (2) ZLR 216 (S), Nyemba v CBZ & Ors HH 255/14. The court has to be satisfied that there is good and sufficient cause to rescind the judgment given by consent. What we have in this matter is a summons which was never sent to the applicants but was directed to a party that had a reason to conceal it from the applicants especially as City of Harare had paid for the air tickets forming the subject of the litigation. The conduct of that party and that of its legal practitioner to appropriate the summons and pretend to act on behalf of the applicants right up to the end without involving the applicant’s at all betrays an ill- motive. A consent to judgment was then signed by a legal practitioner who, by his own admission, had never met the applicants and never received instructions from them. Although he says that it was obvious that 3 Mobile (Pvt) Ltd is the one that owed the debt, Mutonono not only initially conjured a dubious plea denying liability, he later consented to judgment even on behalf of those that did not owe the debt, were unknown to him and never instructed him. In my view, there is good and sufficient cause to rescind the consent judgment to the extent that it relates to the applicants and I proceed to do so. John Mutonono must foot the legal costs for bringing about this problem by his conduct. Washaya v Washaya 1989 (2) ZLR 195 (H). Accordingly, It is ordered that: 1. The consent judgment entered on 10 September 2012 in HC 1311/12 to the extent that it relates to the 1st, 2nd and 3rd applicants, is hereby rescinded. 2. The 1st, 2nd, and 3rd applicants are hereby granted leave to file and prosecute whatever defence they may have against that claim. 3. The registrar of this court is directed to serve this judgment upon the secretary of the Law Society of Zimbabwe for him to investigate the conduct of John Mutonono as counsel for the defendants in HC 1311/12 and to take appropriate action if necessary. 4. The costs of this application shall be borne by Mr John Mutonono de bonis propriis on the scale of legal practitioner and client and by the respondent on an ordinary scale. HH 745-15 HC 407/15 Ref Case HC 1311/12 Mbidzo Muchadehama and Makoni, applicants’ legal practitioners Mugwadi & Associates, respondent’s legal practitioners