MANOKORE v ZHAWARI and ANOTHER (49 of 2024) [2024] ZWSC 49 (31 May 2024)

Judgment No. SC 49/24 Civil Appeal No. SC 252/21 1 REPORTABLE

(49) LLOYD MUNYARADZI MANOKORE v

(1) PERKINS ZHAWARI

(2) LILIAN ZHAWARI SUPREME COURT OF ZIMBABWE GUV A V A JA, KUDYA JA & MWAYERA JA HARARE: 25 NOVEMBER 2021 & 31 MAY 2024 F Girach, for the appellant H Mukonoweshuro, for the respondents KUDYA JA: The appellant appeals against an order handed down by the High Court (the court a quo) on 29 June 2021. The court a quo dismissed his application for condonation and upliftment of the bar. The bar arose from the appellant’s failure to serve his appearance to defend on the respondents within 24 hours, in breach of r 49 of the then subsisting High Court rules, 1971. These rules were repealed and replaced by the new rules, High Court rules, 2021 on 23 July 2021. The inordinate delay in the handing down of this judgment is sincerely regretted. THE PRELIMINARY ISSUE At the commencement of the hearing, Mr Girach for the appellant and Mr Mukonoweshuro, for the respondents, agreed that the appellant’s court application to consolidate SC300/21 with the present appeal was a misnomer. This was because SC 300/21 was a court Judgment No. SC 49/24 Civil Appeal No. SC 252/21 2 application to amend the appellant’s grounds of appeal in SC 100/21, an appeal against the Legal Practitioners Disciplinary Tribunal’s adverse order against the appellant. The application had already been moved and granted in SC 100/21. We therefore, on the turn, made the following

Order

“By consent, the application in SC 300/21 be and is hereby dismissed with no order as to costs.”

The Background

The appellant is a former legal practitioner and managing partner of Manokore Attorneys legal practitioners. He was disbarred from practicing as a legal practitioner, conveyancer and notary public by the Legal Practitioners Disciplinary Tribunal (LPDT or the tribunal) on 15 April 2021 in case No. LPDT 09/18 (judgement No. HH 167/21). His fate was sealed, notwithstanding his appeal in SC 100/21, by the Tribunal on 12 May 2021(LPDT 1/21, HH 230/21), when it dismissed his application for the suspension of its order, pending his appeal to this Court. This is because, in terms of s 29 (3) of the Legal Practitioners’ Act [Chapter 27:07], an appeal against an order of the tribunal does not suspend the order unless, on application, it directs otherwise. The respondents are husband and wife, who were the joint owners of an immovable property situated in Bellevue Bulawayo until it was sold by the appellant, who also facilitated its transfer, to Grace Nyoni (the purchaser) on 12 December 2014. On 6 November 2012, the respondents signed a power of attorney (the surety) and an affidavit. The power of attorney served the following purposes. It appointed the attorneys of Judgment No. SC 49/24 Civil Appeal No. SC 252/21 3 National Foods Operations Ltd (NFL) as the respondents’ attorney and agent. The appellant was the attorney for NFL. It further empowered the attorney, in the event that their own indebtedness to NFL remained seven (7) days past the due date, to alienate their Bellevue property, whose title deeds they voluntarily surrendered to NFL, in satisfaction of any such debt. The attorney was required to remit the balance of the purchase price to them. The affidavit was deposed to by the husband. He ceded the Bellevue property to NFL “to support the credit application of Celgrim Bakeries (Private) Limited t/a Freshbake” (the debtor). NFL duly advanced a credit facility to the debtor, which failed to repay on due date. On 19 February 2013, the debtor executed two acknowledgements of debt to NFL. It undertook to repay the debt in monthly installments failing which NFL would be entitled to “issue summons in any competent court” for the unpaid principal debt. The debtor, however, further defaulted. On 24 January 2014, the appellant, on behalf of NFL, called on the respondent’s surety of 6 November 2012. The respondents contacted the debtor. On 7 February 2014, the debtor’s legal practitioners wrote to the appellant. They indicated the impropriety of the appellant’s intention to sell the respondent’s property without a court order. They also conveyed the debtor’s offer to sell an array of its own equipment that would adequately meet its indebtedness. The debtor further offered to place the equipment under NFL’s custody during the sale. The appellant rejected the debtor’s offer and advice. On 11 February 2014, the appellant advised the respondents of the impending sale of their property. He also undertook to remit the balance from the purchase price to the respondents. The property was duly sold to Grace Nyoni (the purchaser) in September 2014 for Judgment No. SC 49/24 Civil Appeal No. SC 252/21 4 US$35

000. She took transfer on 12 December 2014. The credit balance due to the respondents, after deducting the principal debt and interest, expenses, collection commission and legal fees, was in the sum of US$6 802.54. The appellant remitted this amount to NFL and not the respondents. It was common cause that the respondents did not provide the sellers’ power of attorney to pass transfer and declaration Aggrieved by the appellant’s conduct, on 20 June 2016, the respondents complained to the Law Society of Zimbabwe (LSZ) that their property had been sold and transferred without their consent. The LSZ hauled the appellant before the LPDT. The tribunal found him guilty of unprofessional, dishonorable and unworthy conduct and duly disbarred him from legal practice. The appellant noted an appeal, which, in terms of s 29 (3) of the Legal Practitioners Act, did not suspend his conviction and penalty. His application to the tribunal for the suspension of its order, pending the determination of the appeal, was unsuccessful. THE PROCEEDINGS IN THE COURT A QUO In March 2017, the respondents issued summons out of the Harare High Court in case No. HC 2210/17 against NFL, the appellant, the debtor, the purchaser and the Registrar of Deeds, Bulawayo. They sought the cancellation of the sale and transfer of their immovable property, alternatively, amongst others, damages in the sum equivalent to the replacement value of the property. The summons was served on the appellant on 15 March 2017. Judgment No. SC 49/24 Civil Appeal No. SC 252/21 5 The appellant entered appearance on 20 March 2017. He did not serve it on the respondents within the 24 hour period (by 22 March 2017) prescribed in r 49 of the old rules. Rule 49 was replaced by r 20 (6) of the new rules. The new rule, unlike r 49, provides a sanction against a defendant who fails to serve an appearance to defend within seven (7) days from the date of filing. The anomaly was brought to his attention by the respondents’ erstwhile legal practitioners on 4 April 2017. They requested the appellant to regularize the anomaly, in terms of the rules of court. The appellant declined to do so. He proceeded to file a special plea and exception on 5 April 2017, which he served together with the appearance to defend on the respondents on the same date. He ignored the protestations of the respondent’s legal practitioners that his actions were alien to the rules of Court. At his request, the special plea and exception, were set down. In an unreported judgment issued on 15 September 2020, the court a quo struck the matter off the roll with costs on the basis that the appellant had “flagrantly and knowingly” refused to seek condonation for a breach of a mandatory rule of the Court. It warned him that he would remain barred until he sought and was granted condonation for the breach. The appellant abided by the order and sought condonation a quo on 30 September 2020. The application was contested. In the court a quo, the parties were ad idem on the requirements for condonation. While the list of considerations is not exhaustive, they limited themselves to the extent of the delay, the reasonableness of the explanation for the delay, prospects of success and prejudice to the appellant and interests of justice. In his founding affidavit, the appellant provided an explanation for the non-service of the appearance but did not do so for the late filing of the application for condonation. He, however, explained the reason for filing the application out of time in his answering affidavit. He further relied on the contents of Judgment No. SC 49/24 Civil Appeal No. SC 252/21 6 the respondents’ power of attorney and affidavit of 6 November 2012 for his defence. He also averred that if his application were unsuccessful, he would be prejudiced in that he would be forced to pay the replacement value of the Bellevue property. He further averred that the balance of convenience was tilted in his favour. This was because a dismissal of his application would firstly, prejudice the interest of justice by abridging his right to be heard and secondly, would prejudice him by making him liable for a claim that was unmeritorious. THE CONTENTIONS BEFORE THE COURT A QUO Mr Kadye, who appeared for the appellant a quo , relied on the averments in the appellant’s papers and contended that the delay was not inordinate, the explanation thereof reasonable and the prospects of success of his defence on the merits high. He further submitted that the appellant would be prejudiced in the manner highlighted in his founding papers. Counsel took two points to demonstrate that the appellant genuinely held that condonation was not required. Firstly, that r 49 unlike 50 and later r 20 (6) did not provide a sanction for failing to serve the appearance. Secondly, he invoked the common law principle, “ cessante ratione legis, cessat ipse lex”, which translates to “if the reason of the law falls away, the law falls away”. He argued that the latter principle obviated the need for service, once the respondents became aware of its presence in the chamber book on 4 April 2017. He thus submitted that the failure to serve in these circumstances constituted a mere technical breach. He thus argued that such an awareness prior to the service cured the automatic bar. Mr Kadye also argued that the power of attorney constituted a surety and consent to the sale and transfer of the immovable property in the event that the debtor failed to pay the outstanding principal amount. The debtor had failed to meet its pending obligations. The Judgment No. SC 49/24 Civil Appeal No. SC 252/21 7 appellant was therefore empowered by the surety agreement to alienate the property to settle the indebtedness. On the other hand, Mr Mukonoweshuro, for the respondents conceded that the explanation for the failure to serve the appearance within the prescribed time frame was reasonable. He however contended that, as the appellant had not proffered an explanation for the delay in filing the application in his founding affidavit, the extent of the delay was overly inordinate. He argued on the strength of Fuyana v Moyo SC 54/06 at p 10 and Muchini v Adams 2013

(1) ZLR 67 (S) at 70A that, for it to be valid, the cessante based explanation should have been raised in the founding affidavit and not in the answering affidavit. He therefore requested the court a quo to ignore the belated explanation. He also argued that the failure to comply with a mandatory legislative decree was a material breach, which could only be rectified by a condonation order. Mr Mukonweshuro further contended that, as the appellant did not have a good and bona fide defence to the claim, he did not have any prospects of success on the merits. He also argued that the surety agreement, encapsulated in the power of attorney, as between NFL and the respondents, would have constituted an illegal and therefore unenforceable pactum commissorium, had the respondents been indebted to NFL. Further, that, as the respondents did not bind themselves as co-principal debtors with the debtor, their property could only be sold and transferred by an order of court or with their consent. He also contended that the absence of the seller’s power of attorney and declaration to transfer the property affirmed that they never consented to the sale and transfer. The overall absence of either of these two, so his argument went, invalidated the sale and transfer of the immovable property. He further argued that the Judgment No. SC 49/24 Civil Appeal No. SC 252/21 8 respondents had been seriously prejudiced by the deprivation of their property and the US dollar denominated rentals that they were receiving before the sale and transfer. He also contended that the purported breach of the appellant’s right to be heard was a necessary and unavoidable consequence arising from his flagrant and intentional breach of the then subsisting rules of Court. THE FINDINGS OF THE COURT A QUO. The parties argued on the import of the LPDT findings, at the instance of the court a quo. The court a quo found that, even though the appellant was arrogant in refusing to seek condonation at the prompting of the respondents’ legal practitioners, his explanation for the delay in launching the application before it, was reasonable. He was awaiting the decision of the court a quo on the propriety of his special plea and exception in the face of r

49. It accordingly found that the delay was not inordinate. The court a quo specifically held that the nub of the application was on prospects of success. By reference to the LPDT decision, it held that the appellant did not have any prospects of success on the merits. It accordingly dismissed the application for condonation and upliftment of the bar. Dissatisfied with the findings a quo, the appellant appeals to this Court on the following grounds of appeal. “THE GROUNDS OF APPEAL

1. The court a quo erred at law in finding that the High Court was bound by the factual findings of the Law Society Disciplinary Tribunal in HH 167/21 and HH 230/21. Judgment No. SC 49/24 Civil Appeal No. SC 252/21 9

2. The court a quo erred by making a finding that the prospects of success had already been dealt with in judgment number HH 167/21 and HH 230/21.

3. In any event, the court a quo erred in failing to place any consideration to the fact that HH 167/21 is the subject of an appeal.

4. Further, the court a quo erred by treating the respondents as if they were parties to the Law Society Disciplinary Tribunal proceedings.

5. The court a quo misdirected itself by finding that there was no reasonable explanation of the delay in seeking condonation in circumstances where the respondents admitted on oath that the appellant did in fact have a reasonable explanation.

6. The court a quo erred in not finding that the appellant had shown, on the papers, that he had reasonable prospects of success in defending the claim.