Muza v Saruchera & Ors (HC 6467 of 2013) [2015] ZWHHC 377 (14 April 2015)

1 HH 377-15 HC 6467/13 MISHECK MUZA versus REGGIE FRANCIS SARUCHERA (In his capacity as the liquidator of J. W. Jaggers Wholesalers (Private) Limited) and PRICES TRUST and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS HIGH COURT OF ZIMBABWE MAFUSIRE J HARARE, 2 & 15 April 2015 Opposed Application Applicant in person Ms A. Mobbs, for the first respondent No appearance for second, third and fourth respondents MAFUSIRE J: On two occasions this matter appeared on my opposed motion court roll. And on two occasions I struck it off; on the second occasion with the tacit concurrence of both parties. The background to this case was this. The applicant had been an employee of J. W. Jaggers Wholesalers (Private) Limited (“Jaggers”) before it went bankrupt. Among the applicant’s employment benefits was subsidised accommodation in one of Jaggers’ houses. After Jaggers’ placement into liquidation, the first respondent, in his capacity as the liquidator, went about disposing, on the open market, of Jaggers’ assets, including the house the applicant stayed in. The applicant brought an urgent chamber application, inter alia, to restrain the first respondent from disposing the house to anyone else other than himself. His argument was that as an employee and sitting tenant he had the right of first refusal in any intended sale of that house. MATHONSI J declined to hear the application on an urgent basis. Among other things, the learned judge pointed out that the applicant was labouring under a misconception. The right of first refusal is not automatic but is one conferred by agreement. HH 377-15 HC 6467/13 The applicant converted his urgent chamber application to an ordinary court application. It was then referred to the ordinary roll. In due course it came before MTSHIYA J. In default of appearance by the first respondent, the learned judge granted the order sought by the applicant. It was an interim order. In the main, the order interdicted the transfer of the house to the second respondent, the buyer, pending the determination of the applicant’s rights. The order also directed that the house be placed back on the market if the sale had already happened. Finally, the order gave the applicant the right to buy the house. That was on 27 May 2014. After that the first respondent applied for the rescission of the order by MTSHIYA J. The application came before CHIGUMBA J. The application was granted in default of appearance by the applicant. That was on 2 July 2014. After that the applicant applied for the rescission of the order by CHIGUMBA J. In both his application and his letter to the Law Society of Zimbabwe, which he copied to the registrar of this court, the Master and the Judicial Service Commission, the applicant complained bitterly about the manner in which the first respondent had, allegedly, surreptitiously got rescission of judgment. The responses from the registrar and the Judicial Service Commission conceded that the first respondent’s application for rescission of judgment had been prematurely set down, but that nothing untoward could be attributed to the clerk to CHIGUMBA J whom the applicant seemed to blame. The next development was the placement on my opposed motion court roll on 15 January 2015 of the same application by the applicant that MTSHIYA J had in May 2014 disposed of. The applicant’s application for the rescission of the order by CHIGUMBA J was still pending. Before me the applicant expressed surprise that his original application had once again found its way back to court. He had not been responsible for its set down. He was emphatic that it was the first respondent’s legal practitioners that had set it down. He said he had no interest in that application anymore because before MTSHIYA J he had since got what he wanted. There was nothing in the record to suggest how the matter had found its way onto my list of opposed matters for that day. The first respondent was in default. But the sheriff’s return of service indicated that the notice of set down had been duly served on the first respondent’s legal practitioners a good ten days before. At the applicant’s instance I struck the matter off the roll. At any rate, whoever had wanted it back in court had done so HH 377-15 HC 6467/13 prematurely. The application for the rescission of the order by CHIGUMBA J was still pending. Unfortunately, that was not the end of the matter. About two months later, i.e. on 2 April 2015, the same matter was once again placed on my list of opposed applications. This time both parties were present; the applicant in person and the first respondent represented by his legal practitioners. The applicant repeated the same point that he had no interest in that application being determined again because it had already been disposed of by MTSHIYA J. He expressed bitterness on the manner in which the first respondent and his legal practitioners were allegedly bent on frustrating his efforts to get back the house and how they had now caused his eviction. In response, Ms Mobbs, for the first respondent, made some submissions that I could not easily comprehend. What I understood though was that as the first respondent’s legal practitioners they had not been advised of the date of hearing the first time the matter had appeared before me earlier on in January 2015. This was despite the fact that the set down of the matter had been at their instance, and that the sheriff’s return of service had indicated that the notice of set down had been served on them. However, she said, all that was now water under the bridge. The applicant could not proceed with his application because any order of this court would be a brutum fulmen. She said even before the order of MTSHIYA J in May 2014, the sale of the house had already taken place. Transfer had subsequently been registered in the name of the second respondent. Recently, the applicant had been evicted from the house. So the applicant was kicking a dead horse. Following certain queries raised by myself, inter alia, on the status of the application for the rescission of the order by CHIGUMBA J, and what the effect would be should that application succeed, Ms Mobbs suggested that the application before me be postponed sine die pending the determination of the rescission application. However, following further exchanges with both parties, there was some kind of consensus reached. It was best that the application be struck off the roll. But I expressed concern on the manner in which the first respondent’s legal practitioners had handled the whole matter; not least their default of appearance in January 2015, their premature set down of their application before CHIGUMBA J, an aspect that the registrar of this court and the Judicial Service Commission had conceded, and their insistence to have the same matter being set down on the opposed roll only for them to seek that it be dismissed, struck off or postponed sine die. HH 377-15 HC 6467/13 In the end the matter was struck off the roll. The applicant complained that the first respondent’s conduct had cost him money in legal fees and other expenses. He wanted to be reimbursed. However, as he was not legally represented and could therefore not have paid legal fees, I indicated to him that if he felt he had been put to unnecessary expenses by anyone he was free to sue for damages. 15 April 2015 C. Nhemwa & Associates, first respondent’s legal practitioners