MWAYERA v CHIVIZHE & ORS

SUPREME COURT, HARARE

[Civil Appeal SC 16-16]

November 1, 2013

GWAUNZA, GOWORA AND HLATSHWAYO JJA

Practice and procedure   –   Court application   –   Nature and form of a counter court application.

Contract law  –  Specific performance  –  Whether can be granted in respect of cancelled contract without an order setting aside cancellation.

Appellant together with fourth respondent were respondents, in a substantive application, brought by first and second respondents in the High Court. Appellant defaulted in filing his heads of argument and was barred. He brought an application against the first and second respondents for the upliftment of the automatic bar operating against him. In response to that application, fourth respondent opposed it and purported to file a counter-application seeking substantive relief for specific performance against appellant. In filing the “counter-application” he did not bring it under Form 29 as is required by the First Schedule to the Rules. Substantively, he sought an order for specific performance to a cancelled contract without seeking the vacation of the cancellation.

Held, that a counter-application must take the form of a court application and must be in Form 29. The filing of a mere affidavit is inadequate. The filing of an opposing affidavit in which reference is made to a counter-application does not constitute compliance with the rules governing counter-applications. Order 32 r 230 of the Rules espouses a peremptory norm and must be complied with. A failure to comply with the rule cannot be condoned in the absence of compliance by a litigant with any form of application.

Held, further, that the main application before the court being for the upliftment of the bar was of a procedural nature. It was brought in a matter in which fourth respondent and appellant were respondents and pertained to the filing of heads of argument by one of the respondents, the appellant. A counter-application is one which seeks relief that is counter to the one sought in the main. In the matter before the High Court the counter-application did not seek to counter the prayer for the upliftment of the bar. It would be impermissible to file a counter-application which seeks substantive relief when the main application is for relief of a procedural nature.

Held, further, that the fourth respondent could not seek relief from a counter-application against a litigant who was cited as a respondent in the proceedings.

Held, further, that as to the merits of the appeal, it is trite that cancellation is a unilateral act which takes effect as at the time of its communication to the other party to the contract. It requires no concurrence from the party receiving notification of the same. The effect of the cancellation was to put an end to the primary obligations between the parties. Primary obligations are those related to the performances due by the respective parties under the contract. Once the contract was terminated by the appellant, the entitlement to specific performance by the fourth respondent terminated. In order to obtain specific performance under the cancelled contract, it behoved the fourth respondent to first seek an order setting aside the cancellation as a basis for the order prayed for. The court cannot give relief for the performance of bilateral obligations under an agreement that is no longer in existence.

Held, further, that where a clear dispute of fact incapable of resolution on the papers exists, an order for specific performance would not be merited.

Cases cited:

Blumo Trading (Pvt) Ltd v Nelmah Milling Co (Pvt) Ltd & Anor 2011 (1) ZLR 196 (H), referred to

Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S), referred to

Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H), applied

Legislation considered:

High Court Rules, 1971 (RGN 1047 of 1971), O 32 rr 229A and 230, First Schedule Form 29

T Mpofu, for the appellant

No appearance for the first, second and third respondents

L Uriri, for the fourth respondent

GOWORA JA:

After reading papers filed of record and hearing counsel in this matter we allowed the appeal and issued an order as prayed for. We indicated that our detailed reasons would follow in due course. These are they.

The appellant is the registered owner of an immovable property known as Stand 671 Borrowdale Town of Subdivision 4 of Lot D of Borrowdale Estate. On 30 May 2001, the appellant concluded a written agreement with the first and second respondents in terms of which he sold the said property to them. The said respondents failed to pay the purchase price as stipulated in the agreement and as a consequence the appellant cancelled the sale through his legal practitioners.

Subsequent to this, on 25 July 2001, the appellant concluded an agreement of sale with the fourth respondent in respect of the same property. The fourth respondent duly made payments in cash and also furnished the appellant with several cheques. Upon becoming aware of the developments between the appellant and the fourth respondent, the first and the second respondents approached the High Court on a certificate of urgency and in default of the appellant, obtained a provisional order interdicting transfer of the property to the fourth respondent. The fourth respondent was not cited as a party in the High Court proceedings. The provisional order was subsequently confirmed.

The appellant became aware of the order confirming the provisional order and filed an application for rescission of the judgment, which rescission was granted. Thereafter, he filed a notice of opposition and opposing affidavit to the provisional order granted in favour of the first and the second respondents. In due course, the fourth respondent got wind of the litigation and filed an application for his joinder to the litigation which was granted. He then filed his opposing papers to the application filed by the first and the second respondents.

In the meantime, alleging that some of the cheques tendered in payment of the purchase price by the fourth respondent had been unpaid and returned by the former’s bankers upon presentation, the appellant cancelled the agreement on the basis that the fourth respondent was in breach of his obligations under the agreement of sale.

The first and the second respondents took no further interest in the matter thereafter. In July 2006, the fourth respondent filed heads of argument in respect of the confirmation of the provisional order obtained by the first and second respondents for the interdict against transfer of the stand by the appellant to himself. Simultaneously with the heads of argument the fourth respondent served a notice of set down upon the appellant. Upon receipt of the notice of set down the appellant filed an application to have the automatic bar operating against him uplifted in order to enable him to file his own heads of argument. The application was opposed by the fourth respondent. In the opposing affidavit attached to his notice of opposition, the fourth respondent made reference to a counter-application for an order for specific performance against the appellant. A draft order comprising the relief sought was attached to the opposing affidavit.

The application by the appellant for the upliftment of the bar having been granted, the High Court proceeded to hear the application filed by the first and the second respondents for an interdict. The first and the second respondents who were the applicants in the applications were not before the court and the provisional order granted in their favour was discharged. The court then proceeded to deal with the counter-application and an order for specific performance was granted in favour of the fourth respondent. This appeal is directed at that order.

The first issue I deal with is whether or not the counter-application was properly before the court a quo.

Although the appellant did not raise this as one of his grounds of appeal, in his address, Mr Mpofu on behalf of the appellant, submitted that this was a point of law which is not dependent on facts for its resolution and which goes to the root of the matter. He referred to Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S) as authority for this proposition. At 157A-B this Court stated:

“Provided it is not one which is required by a definitive law to be specifically pleaded, a point of law, which goes to the root of the matter, may be raised at any time on appeal, if its consideration involves no unfairness to the party against whom it is directed: Morobane v Bateman 1918 AD 460; Paddock Motors (Pty) Ltd v Igesund 1976 (3) SA 16 (A) at 23D-G.”

In his heads of argument, Mr Uriri for the fourth respondent countered that the raising of the alleged defect of the counter-application at this stage of the proceedings was prejudicial to the fourth respondent. Before us however, this aspect of the argument was not persisted with, and it was clear that counsel was content to have the issue argued and determined for reasons that appear hereunder.

As submitted by counsel for both parties, this was the first time for such an issue to come before this Court. Whilst the appellant argued that the counter-application was fatally defective for want of form, the fourth respondent submitted that this Court should not allow form to prevail over substance, and the application should be found to have been properly brought before the court a quo.

The High Court Rules, 1971 (RGN 1047 of 1971) (“the Rules”) provide for the filing of counter-applications in O 32 r 229A which provides:

“229A Counter-applications

(1) Where a respondent files a notice of opposition and opposing affidavit, he may file, together with those documents, a counter -application                     against the applicant in the form, mutatis mutandis, of a court application or a chamber application, whichever is appropriate.

(2) This Order shall apply, mutatis mutandis, to a counter-application under subrule (1) as though it were a court application or a chamber                          application, as the case may be, and subject to subrule (3) and (4), it shall be dealt with at the same time as the principal application unless                       the court or a judge orders otherwise.

(3) If, in any application in which the respondent files a counter-application under subrule (1), the application is stayed, discontinued or                                 dismissed, the counter-application may nevertheless be proceeded with.

(4) The court or a judge may for good cause shown order an application and a counter-application filed under subrule (1) to be heard                                     separately.”

A number of applications were filed before the court a quo but for purposes of resolution of this appeal the only pertinent ones are the following, viz, HC 8068/01, HC 10464/02, HC 5426/02 and HC 192/02. The first is the urgent application filed by the first and the second respondents for an interdict against transfer of the property to the fourth respondent. The second is the application for rescission of judgment filed by the appellant. The third relates to the application for joinder brought by the fourth respondent with the last being filed by the appellant for the uplifting of an automatic bar for failure to file heads of argument relating to the application for an interdict. It is to this last mentioned application that the fourth respondent incorporated a counter-application in the notice of opposition.

A counter-application must take the form of a court application and must be in Form 29 as set out in the First Schedule to the Rules. There was no such court application filed by the fourth respondent. Instead what was filed was an affidavit. Again, contrary to the Rules the affidavit was not in proper form. The fourth respondent filed an opposing affidavit in which reference was made to a counter-application. It was to this affidavit that a draft order was attached. Order 32 r 229A of the Rules is clear and unambiguous. It is also peremptory in its terms and must be complied with to the letter. In Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H), HLATSWAYO J (as he then was) stated at 102F-104F:

“Rule 230 of the High Court Rules (RGN 1047 of 1971, as amended) prescribes in mandatory terms that a court application shall be made in Form No. 29 or, where it is ex parte, in Form No. 29B, which latter form is generally used for chamber applications. It is common cause that the form used by the applicant for the rescission of judgment is neither of the above stated forms, that is, it is in neither the court application form nor the chamber application form nor the hybrid ex parte court application form.

Now, r 4C gives the court or judge discretion to condone departures from the rules, while r 229C deals with a specific form of departure, viz., proceeding by way of court, instead of chamber, application and vice versa

Lest an impression be formed that this is a sterile dispute about forms, I have deemed it necessary to outline in a summary way what each of the two forms contains, on the one hand, and the unique features of the format used by the applicant, on the other. In Form 29, the applicant gives notice to the respondents that he or she intends to apply to the High Court for an order in terms of an annexed draft and that the accompanying affidavit/s and documents shall be used in support of the application. It goes on to inform the respondent, if he or she so wishes, to file papers in opposition in a specified manner and within a specified time limit, failing which the respondent is warned that the application would be dealt with as an unopposed application. In Form 29B, an application is made for an order in terms of an annexed draft on grounds that are set out in summary as the basis of the application and affidavits and documents are tendered in support of the application. By contrast, the unique format used by the applicant consists of a heading: ‘Application for Rescission of Judgment’ and the following terse statement: ‘Take notice that the Applicant, Zimbabwe Open University, hereby applies for Rescission of Judgment. The annexed affidavit is used in support thereof.’…

Can this substantial departure from the rules be condoned under r 4C? Rule 4C states as follows:

‘The court or judge may, in relation to any particular case before it or him, as the case may be – 

(a) direct, authorize or condone a departure from any provision of these rules, including an extension of any period specified therein, where it or he, as the case may be, is satisfied that the departure is required in the interests of justice;

(b) give such directions as to procedure in respect of any matter not expressly provided for in these rules as appear to it or him, as the case may be, to be just and expedient.’

In Simross Vintners (Pty) Ltd v Vermeulen, VRG Africa (Pty) Ltd v Walters T/A Trend Litho, Consolidated Credit Corporation (Pty) Ltd v van der Westhuizen 1978 (1) SA 779 (T), the applicants, in three applications for compulsory sequestration, had used the notice of motion prescribed in Form 2 of the South African Uniform Rules of Court, which was a form appropriate to ex parte applications. The applicant in the first application had not served the notice on the respondent, but the applicants in the other two applications had so served the notices on the respondents. It was held that in the first application the use of the Form 2 was perfectly in order, as the application was brought ex parte. However, as to the other two applications, it was held that as they were not brought ex parte, the notices of motion used in these applications (i.e., the Form 2 notice) were nullities and their use could not be condoned and the applications had to be struck off the roll:

‘ …. This applicant also relies on a nulla bona return, but it chose not only to address the Form 2 notice of motion to the respondent, but also to serve it on him. Hence it is not brought ex parte and r 6 (5) applies. It was suggested in some of the other applications which were eventually struck off the roll that this non-compliance might be condoned under r 27 (3). I have considered that possibility in this case, but apart from the fact that no cause at all is shown why there should be condonation, the more fundamental difficulty arises that the document which purports to be a notice of motion is, as I have indicated above, a nullity, and I have grave doubt whether the court has power under this rule to repair a nullity, a concept in law which carries within itself all the elements of irreparability… In addition it must be emphasized that Form 2 (a) contains a description of the procedural rights of the respondent after service of the notice of motion. These rights are considerable and substantial. How could a court, even if it were not a nullity, put a blue pencil through all these rights in the absence of the person in whom they reside and without notice to him that such an order which abrogates his rights might be made? This application is struck off the roll.’”

I respectfully associate myself with the comments of the learned judge above. Order 32 r 230 of the Rules espouses a peremptory norm and must be complied with. A failure to comply with the rule cannot be condoned in the absence of compliance by a litigant with any form of application. The undisputed fact is that the fourth respondent never filed any application in any form. The counter-application was, as a consequence, a non-event. The draft order attached to the opposing affidavit could not create something that never was. Consequently no relief could ensue from the same.

In addition to the above, the application for the upliftment of the bar was of a procedural nature. The relief sought therein was not substantive and was aimed at the first and second respondents principally as the applicants to the prayer for the interdict. The heads of argument were to be filed in relation to a claim for an interdict sought by the first and second respondents. The fourth respondent was seeking the same relief as the appellant; that is the discharge of the provisional order. A counter-application is one which seeks relief that is counter to the one sought in the main. In the matter before the High Court the counter-application did not seek to counter the prayer for the upliftment of the bar. It follows therefore that it would be impermissible to file a counter-application which seeks substantive relief when the main application is for relief of a procedural nature. There was therefore no proper counter-application before the court a quo.

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