UNITED REFINERIES LIMITED
(1) THE MINING INDUSTRY PENSION FUND (2) THE REGISTRAR OF DEEDS
(3) ERROL STUART WOLHUTTER (4) AUSTIN JAMELA SIBANDA t/a JOEL PINCUS KONSON AND WOLHUTTER.
SUPREME COURT OF ZIMBABWE
ZIYAMBI JA, GWAUNZA JA & GOWORA JA
HARARE, SEPTEMBER 20, 2013 & SEPTEMBER 8, 2014
T Magwaliba, for the appellant
T Mpofu, for the first respondent
GOWORA JA: In February 2011, the first respondent, (hereinafter referred to as “the respondent”) filed a court application against the appellant, the second respondent and the third respondent wherein an order for specific performance was sought against the appellant. The application was opposed by the appellant and the third respondent. The second respondent did not respond.
The third respondent filed opposing papers in which it denied averments made against it. The third respondent however, did not comment on the merits or otherwise of the application and filed no further documents in relation to the application.
The appellant filed opposing papers on 24 February 2011 and the respondent filed an answering affidavit. On 11 May 2011 the respondent filed its heads of argument. On 17 May 2011 the appellant filed a chamber application for leave to file a supplementary opposing affidavit. It was opposed by the respondent. Ultimately, the application was dismissed by the High Court. The appellant was dissatisfied with the judgment and has noted an appeal to this Court.
In dismissing the application, the court a quo concluded that the appellant had made admissions in its opposing affidavit which it was seeking to withdraw through the averments contained in the supplementary affidavit that it was proposing to file. The court found in addition that the appellant had not advanced a full and satisfactory explanation for its failure to include the information in its opposing affidavit. It concluded that the application to file the supplementary opposing affidavit was not bona fide.
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:
A proper and satisfactory explanation as to why the information had not been placed before the court at an earlier stage;
The absence of mala fides in relation to the application itself;
That the filing of the supplementary affidavit will not cause prejudice which cannot be remedied by an order of costs.
The appellant has submitted that at the end of the day in its enquiry the court must endeavour to achieve fairness to all parties. The explanation for the failure to place the facts sought to be adduced through the supplementary affidavit is blamed on the appellant’s erstwhile legal practitioner.
As the court had to consider, on the one hand, the explanation for the failure to include the information and determine therefrom the lack of mala fides on the part of the applicant and the attendant prejudice to the respondent on the other, the absence of an affidavit from the legal practitioner concerned meant that the failure had not been explained. The court a quo found that where a party seeks to redress or explain a procedural omission, irregularity or wrongful conduct attributed to his legal practitioner, it was imperative that the legal practitioner concerned be requested to depose to an affidavit to outline his or her role in the conduct of the matter. The court a quo found that the appellant had failed to file a supporting affidavit from the maligned legal practitioner and that this was fatal to its case as he was the only person who could explain the chronology of the events and his reasons for refusing to include the defence proposed in the initial opposing affidavit. The court found that there was no comprehensive inclusive explanation for the omission of the crucial information from the opposing affidavit.
The view of this Court is that the finding was correct. In Diocesan Trustees, Diocese of Harare v Church of the Province of Central Africa 2010 (1) ZLR 267 MALABA DCJ stated:
“Although in argument Mr Zhou suggested that the failure to comply with the relevant rules was wholly attributable to the respondent’s legal practitioners, there was no admission of negligence by the legal practitioner who deposed to the opposing affidavit on behalf of the respondent on 29 September. One cannot consider absolving the respondent from the consequences of lack of diligence committed by its legal practitioners when there is no suggestion in its papers that the “oversight” was that of the legal practitioner. It would have been after the responsible legal practitioner had filed an affidavit admitting fault and explaining in some detail what happened, that the judge would be in a position to decide whether the respondent should not be visited with the sins of its legal practitioners. Where no factual basis for making such a distinction of culpability has been provided, the judge would have no right to draw it. It must follow that without an affidavit from the person responsible for the “oversight” admitting fault and explaining the circumstances under which he or she overlooked the rules, one is at a loss for the reason why it found necessary to state in the opposing affidavit that an “oversight” on the part of the respondent was the cause of the non-compliance."