Claudious Mapedzamombe v Emily Mhini

The applicant, Claudious Mapedzamombe, was the registered owner of Stand 606 Northwood Township 4 of Sumben. The property was sold in execution at a public auction and the respondent, Emily Mhini, was confirmed as the highest bidder. The property was transferred into her name on 24 November 1992. The applicant was not satisfied with this outcome and instituted multiple cases against the respondent and other parties. This culminated in the High Court in Mhini v Mapedzamombe 1999(1) ZLR 561 (H) making an order of perpetual silence, requiring the applicant to obtain leave of the court before instituting any proceedings relating directly or indirectly to the purchase of the property by the respondent. The applicant now sought to set aside this order. The applicant's founding affidavit sought rescission of the judgment by Garwe J, while the draft order sought leave to institute proceedings. The applicant was initially represented by legal practitioners who filed heads of argument but later renounced agency, leaving the applicant to appear in person at the hearing.

• Whether the applicant could be heard when he was in contempt of the order he sought to set aside, having failed to first seek leave to file the present application
• Whether the applicant's founding papers properly supported the relief sought in the draft order (leave to institute proceedings versus rescission of judgment)
• Whether the application was properly before the court given the confusion between seeking rescission and seeking leave

1. The application is dismissed. 2. The applicant to pay the respondent costs on a legal practitioner client scale.

Where a court order requires leave to institute proceedings and an applicant seeks such leave, the relief sought in the draft order will determine the nature of the application, even where the founding affidavit appears to seek different relief (such as rescission of judgment). The question of whether the founding papers adequately support the relief sought in the draft order is a matter to be determined on the merits rather than at the preliminary stage. However, an applicant who has been subject to an order of perpetual silence must comply with the requirements of that order when bringing applications.

The court observed that the applicant's erstwhile legal practitioners contributed to the confusion in the manner they drafted the papers. There were no averments in support of an application for leave; instead, the papers addressed the requirements of rescission of judgment and then included averments about upliftment of the bar. The court noted: 'One wonders what was being made reference to as upliftment of bar.' This comment suggests judicial concern about the quality of legal drafting and the responsibility of legal practitioners to ensure clarity and consistency in court papers before renouncing agency.

This case demonstrates the consequences of poorly drafted court papers where there is a disconnect between the relief sought in the founding affidavit and the draft order. It also illustrates the courts' approach to applications brought in violation of perpetual silence orders. The case serves as a reminder that litigants must comply with existing court orders (such as obtaining leave before instituting proceedings) and that confusion in pleadings, while not necessarily fatal at the preliminary stage, can contribute to the ultimate failure of an application. The award of costs on a legal practitioner-client scale (attorney-client scale) reflects the court's disapproval of the applicant's conduct in persistently instituting proceedings.