Tizirai v Hamandishe & Ors (HC 3364 of 2015) [2015] ZWHHC 793 (14 October 2015)

1 HH 793/15 HC 3364/15 MISHECK TIZIRAI versus CHENJERAI HAMANDISHE and THE DEPOT MANAGER (VID KADOMA) and THE PRINCIPAL DIRECTOR and THE MINISTER OFTRANSPORT AND ROAD INFRASTURCTURE HIGH COURT OF ZIMBABWE MATHONSI J HARARE, 7 October 2015 and 14 October 2015 Opposed Application N. Mugiya, for the applicant J. Ndomene, for the 1st respondent T. Tabana, for the 2nd, 3rd and 4th respondents MATHONSI J: What kind of an application is this? Is it an application for review? Is it an appeal against the decision of the magistrates’ court sitting at Gokwe? It is simply not clear and those questions continue to exercise my mind because the manner in which the application was crafted betrays a muddled thinking on the part of whoever drafted it. He does not appear to have applied his mind at all to the procedure to be followed content to merely rush to court with what will go down as a novel application indeed. The applicant seeks the following order: “1. 2. The 1st respondent be ordered to pay the applicant US$6 000-00 being the value of the vehicle. The certificate of fitness for Mazda Bongo registration No ACF 2883 be declared fraudulent. 3. The 1st respondent be ordered to pay costs of suit on a client attorney scale.” HH 793/15 HC 3364/15 The facts are that sometime in April 2013 the applicant’s motor vehicle, a Mazda Bongo registration number ACF 2883 was being driven by his son Maxwell Tizirai when it was involved in a collision with an unnamed motor vehicle which was being driven by the first respondent somewhere in Zimbabwe. I say that because the papers do not state where the accident occurred. The first respondent accepted liability and on 26 May 2013 he undertook in writing to repair the motor vehicle. The first respondent must have repaired the motor vehicle but not to the satisfaction of the applicant who then approached the magistrates court in Gokwe in case number GL 15/14 seeking an order directing the first respondent to pay him $6 000-00 being the value of the motor vehicle or that he replaces his damaged Mazda Bongo. On 4 November 2014 that court ordered as follows: “After perusing papers filed of record and going through a trial, the court orders that the defendant must take the said vehicle to VID for inspection within 30 days from the day that this ruling has been passed before giving it to the plaintiff, failure of which he would pay US$6 000 being a replacement value as claimed by the plaintiff with no order as to costs.” That court order was not appealed against, neither was it taken on review. It remains extant. In compliance with the court order, the first respondent did take the motor vehicle to VID Kadoma where, upon inspection, it was issued with a certificate of road worthiness on 3 December 2014 much to the disappointment of the applicant who says the vehicle was visibly not roadworthy as it had a number of “obvious defects.” He questioned the certificate issued by VID Kadoma on the basis that it was fraudulent. On 26 March 2015 the applicant approached the magistrates’ court in Gokwe seeking redress in light of his dissatisfaction with the certification that the vehicle was road worthy. He says he wanted the court to order the first respondent to comply with the alternative order. That application was dismissed, the court ruling that the first respondent had complied with its order and that in any event, that court was functus officio. Against that background the applicant surprisingly launched this application. He says at para 15 of his founding affidavit: “15. I have therefore approached this court so that I could enforce the order granted by Gokwe Magistrates Court on the 4th November 2014 in particular that the 1st respondent be ordered to pay me US$6 000-00 which is the value of my loss.” HH 793/15 HC 3364/15 Strange indeed because the magistrates court is a stand-alone court which has its own enforcement mechanisms and certainly does not need the assistance of this court to enforce its court orders. More importantly that court has already ruled that its court order has been complied with to its satisfaction. What then is the basis for approaching this court, not by way of appeal or review, but by a fresh court application for a determination of a dispute that has long been determined. It is either forum shopping or the applicant does not know what he is doing. The application is opposed by all the respondents on the basis that it is defective and bad at law in light of the fact that there is already a court order on the issue that has brought the applicant to court. The second, third and fourth respondents have also added two more grounds for opposition namely the irregular citation of the second respondent and the fact that there is a material dispute of fact that cannot be resolved on the papers. I do not consider it necessary to even go that far because this application is misguided, ill conceived and the product of inattention on the part of the legal practitioner representing the applicant who ought to have known that one cannot approach this court seeking to enforce an order of the magistrate’s court. In addition, the applicant is clearly aggrieved by the decision of the magistrate’s court that the first respondent had fully complied with its order. The remedy available to him is not to launch a fresh application as he has done, but to take that ruling either on review or appeal. He has done neither electing to be adventurous in the extreme by bringing a novel application. There is no procedure for such application. The whole thrust of the application seems to point to an assertion that in the applicant’s view the dismissal of his application for the alternative relief of the value of the Mazda Bongo was wrongly made. He would therefore want me to order that he be paid the value. Clearly therefore he should have appealed against that decision instead of making a fresh application. This court cannot grant relief unless it has overturned the finding of the magistrate. It is a jurisdictional issue. I cannot be made to plough ground that has previously been ploughed by another court and a decision made except where an appeal has been made or the application is for review in terms of Order 33 of the court rules. As stated in Chimpondah & Anor v Muvami 2007 (2) ZLR 326 (H) 349 G; 330 A “Our law recognizes that once a dispute between the same parties has been exhausted by a competent court, it cannot be brought up for adjudication again as there is need for finality in litigation. To allow litigants to plough over the same ground hoping for a different result will HH 793/15 HC 3364/15 have the effect of introducing uncertainty into court decisions and will bring the administration of justice into dispute.” Stung by the obvious defects in the application Mr Mugiya for the applicant started by submitting that he has since discovered that there are disputes of facts which cannot be decided on the papers. He submitted that this damascene experience came over him after he had filed the application when he became aware of facts which had not been known to the applicant when the application was made. He therefore sought a referral of the matter to trial in order to resolve the disputed facts. Realising that he was standing on shifting ground, Mr Mugiya sought to disown the applicant’s request for the enforcement of the order of the magistrates’ court pointing out that the draft order also seeks a declaration that the certificate of roadworthiness is fraudulent. I have related to para 15 of the founding affidavit which makes it clear that the application seeks to enforce the order of the magistrates court. An application stands or falls on its founding affidavit. See Mobile Zimbabwe (Pvt) Ltd v Travel Forum (Pvt) Ltd 1990 (1) ZLR 67 (H) at 70; Muchini v Adams S – 47 – 13; Hiltunen v Hiltunen 2008 (2) ZLR 296 (H) 301 B; Magwiza v Ziumbe N. O. & Anor 2000 (2) ZLR 489 (S) 492 D – F. In application proceedings, it is to the founding affidavit that the court will look for a cause of action and not the fulminations of counsel made from the bar in a desperate effort to save an application which is on its knees. I conclude therefore that the applicant has taken a wrong turn. The application is spectacularly without merit. In the result, it is ordered that: 1. 2. The application is hereby dismissed. The applicant shall bear the costs. Messrs Mugiya & Macharaga, applicant’s legal practitioners Hore & Partners, 1st respondent legal practitioners Civil Division of the Attorney General’s Office, 2nd, 3rd and 4th respondents’ legal practitioners