[Opposed Application HH 21-16]

March 23, 2015 and January 13, 2016


Practice and procedure  – Setting aside  – Effect of setting aside an order under rule 449 (1)(a).

Legal practitioner  – Conflict of interest  – Legal practitioner acting against former client  – Effect of such conduct on affidavit drawn by legal practitioner.

Practice and procedure  – Provisional order  – Difference between provisional and rule nisi.

Practice and procedure  – Court order  – Difference between enforcing and relief seeking expansion of order.

Practice and procedure  – Application  – Duty of disclosure  – Extends even to non-urgent applications  – Duty of legal practitioner when becomes emotionally invested in a matter.

Applicants brought an application to enforce a lapsed tribute agreement. In doing so, they were represented by a legal practitioner who had acted for the respondents and who was one of the directors of one of the respondents. Six points in limine were taken against the applicants. In upholding them the court:

Held, that if an order is set aside under O 49 r 449 (1)(a) of the High Court Rules (RGN 1047 of 1971) the dispute remains live between the parties and must be resolved in terms of the re-opened proceedings. It is an abuse of court process for a party to bring the same matter in fresh proceedings not having terminated the initial proceedings in which the order for rescission was granted.

Held, further, that a legal practitioner involves himself/herself in a serious conflict of interest situation in acting against a former corporate client, more so under circumstances where he remains a director in that client at the time of the litigation. An affidavit drawn by a legal practitioner under such circumstances is liable to being struck out.

Held, further, that an executionary action should not result in the expansion of an order of the court as that offends against the functus officio principle.

Held, further, that the duty to disclose material information which may be adverse to an applicant’s cause or which does not necessarily aid the cause of that particular applicant extends even to non urgent matters. A litigant who breaches that standard would be non-suited before a court of law.

Held, further, that a legal practitioner who finds himself/herself being emotionally invested in a matter as a result of a conflicted position has a duty to the court and the other party to seek the intervention of a more neutral practitioner to progress his client’s cause. A breach of the time honoured standard will yield a special order of costs.

Cases cited:

Centra (Pvt) Ltd v Moyas & Anor HH 57-12 (unreported), referred to

MacNeil & Anor v Haskins 2003 (2) ZLR 334 (H), referred to

Mashangwa v Bhadhi & Ors HH 8-12 (unreported), referred to

Masina v Gaibie & Ors HB 134-11 (unreported), referred to

Matamisa v Mutare City Council (Attorney-General Intervening) 1998 (2) ZLR 439 (S), followed

Matanhire v BP Shell Marketing Services (Pvt) Ltd 2005 (1) ZLR 140 (S), applied

Ncube v Mpofu NO & Anor HB 121-11 (unreported), referred to

Ndlovu v Murandu 1999 (2) ZLR 341 (H), referred to

Pertsilis v Calcaterra & Anor 1999 (1) ZLR 70 (H), referred to

Legislation considered:

Companies Act [Chapter 24:03], ss 187 (4) and (7)

High Court Rules, 1971 (RGN 1047 of 1971), O 32 rr 231, 240, 246 (2), 247 (1)(c), O 49 r 449 (1)(a)

Book cited:

Cilliers AC, Loots C and Nel HC Herbstein and Van Winsen, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa (5th edn, Juta & Co Ltd, Cape Town, 2009)

AP de Bourbon SC, for the applicants

T Mpofu, for the respondents


The applicant approached this Court seeking an order in the following terms:

“It is ordered that:

1. The registration of the tribute agreement dated 13 February 2014 be and is hereby recorded to be in compliance with para 5 of the order by the Honourable Patel J in HH 261-11.

2. Within 48 (forty eight) hours of the service of this order on them, the respondents and all those claiming through them be and are hereby directed to permit the applicants, its officers agents successors and assigns to operate under the tribute agreements at Dodge Mine Shamva District Mashonaland Central Province subject to the terms of the tribute agreement.

3. Failing compliance the Sheriff or his lawful Deputy, if necessary with the assistance of CFO the Zimbabwe Republic Police be and is hereby directed to take such measures as may be necessary to enable the applicants to operate under the tribute agreement.

4. Each party shall bear its own costs.”

I have recited the terms of the order, in full, as these will become relevant later on in the judgment.

The background relevant to the present proceedings is that, sometime in 2008 the applicants entered into a tribute agreement with the owner of Dodge Mine (“the mine”), the second respondent represented by the third respondent. The tribute agreement was to run for a period of three years. At the time the parties entered into the agreement, there was an understanding that the then tributor Morris Tendayi Nyakudya and Vambe Mills (Pvt) Ltd would vacate the mine in May 2008. They resisted vacating the mine. The applicants and the respondents then instituted proceedings against them. The dispute was resolved by Patel J (as he then was) in a judgment HH 261-11 delivered on 15 November 2011. By the time the judgment was delivered, the tribute had lapsed. About eight months after the judgment, the respondents sold the mine to Mabwe Minerals Zimbabwe (Pvt) Ltd (Mabwe Minerals).

In the meantime, the applicants through a series of litigation to enforce the tribute agreement, managed to have the tribute registered on 13 February 2014.

In February 2014, the applicants entered the mine and commenced operations on the belief that the registration of the tribute agreement in compliance with the judgment under HH 261-11 entitled the first applicant to unconditional access to the mine. Mabwe Minerals instituted spoliation proceedings which was granted by Tagu J. The first applicant appealed to the Supreme Court and the order by Tagu J was upheld.

The applicants then instituted fresh proceedings in the High Court seeking to be permitted to enter the mine. The order was granted by Mafusire J on 30 July 2014. On 24 August 2014, the applicants entered the mine and resumed operations.

On 10 October 2014, Mafusire J set aside the default judgment that he had entered in terms of O 49 r 449 of the High Court Rules, 1971 (RGN 1047 of 1971) (“the Rules”). The applicants appealed to the Supreme Court. The respondent filed an urgent application for the urgent hearing of the appeal in the Supreme Court. The application was granted. The applicants responded by withdrawing the appeal. They immediately filed the present application.

The basis for the application is that the applicants seek the implementation of the order in HH 261-11 in order to observe due process of the law.

The application is opposed and the respondents raise, in limine, six points vis:

(i) Lis pendens

(ii) Conflict of interest and abuse of court process

(iii) Dirty hands

(iv) Nature of application

(v) Material non-disclosure

(vi) Abuse of process

Lis pendens

This point was raised by the respondents, in their notice of opposition, that the present application is identical, in its material respects, to HC 5926/14 in which the applicant sought the same relief as in the present matter. The order that was granted, in default, by Mafusire J, was set aside on the basis that the order was granted in error. This meant that the matter should have proceeded on the merits.

In their answering affidavit filed on 5 December 2014 in para 13.1 p 115 the applicants respond to the point as follows:

“This statement bordered on the absurd. The judge who granted the order in HC 5926/14 abandoned that judgment of his own initiative. It is ridicule to suggest that the same abandoned judgment is pending.”

The point is persisted with in the appellant’s heads of argument filed on 8 December 2014 where it was submitted as follows:

“2.1 The respondent’s papers suggest that HC 5926/14 is still pending. Greater misconception on interlocutory and final orders is impossible to imagine. Mafusire J ruling is by no means intermediate. (sic)

Herbstein and Van Winsen, The Civil Practice of the Superior Courts in South Africa p 630 where the following appears:

‘An interlocutory order is an order granted by a court at an intermediate stage in the course of litigation setting or giving directions in regard to some procedural question which has arisen in the dispute between the parties. Such an order may be either purely interlocutory or may be an interlocutory order having final or definitive effect.’

2.2 His lordship’s order has final definitive effect. He raised the error mero motu. He set aside the order. He did not set out any conditions ancillary or consequential to the revocation of HC 5926/14 which made HH 599/15 a final judgment. Mafusire J is functus officio in HC 5926/14. The matter cannot be re enrolled before either Mafusire J or any other judge of the High Court for that matter.

2.3 Mindful of the need to follow due process the first respondent brought the present application.”

On 12 December 2014, the respondents filed their heads of argument where they argue the point. On 7 January 2015, a notice of withdrawal of HC 5926/14 finds its way to the file as Annexure 9. It is not accompanied by a supplementary affidavit. As a result, the respondents did not persist with the point.

Although the notice of withdrawal came in a bit late, it was the proper course for the applicants to take. The relief that the applicants seek in the present proceedings is ostensibly the same as they sought in HC 5926/14. The setting aside of the order by Mafusire J did not dispose of the matter. That order did not have a final and definitive effect on the main matter. The respondents were then supposed to file their notice of opposition and the matter proceeded in terms of the Rules.

It will not be necessary for me to make a determination of the point but the matter might be relevant in determining the issues of costs.

Conflict of interest

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