Thamer Said Ahmed Al Shanfari v G.N. Mlotshwa & Co. Legal Practitioners and Others

The applicant purchased four properties in Glen Lorne, Harare, between 1999 and 2001 using his own finances, intending to register them in the name of a trust and companies in which he was the majority shareholder. The applicant engaged G.N. Mlotshwa & Co. Legal Practitioners (the first respondent) around 15 March 2012 to manage his legal affairs and handed over custody of original and photocopied documents pertaining to ownership of the properties. On 27 February 2019, the applicant's agent received a letter of demand from the first respondent, now representing other parties, claiming that ownership documents for the properties had been regularized under Folyjon Gardens (Private) Limited and demanding handover of the properties. The applicant denied authorizing any disposal and filed the main application (HC 8780/19) seeking a caveat over the properties. Subsequently, the applicant sought to join the first, second, and third respondents (the law firm and its partners) to the main proceedings under Rule 87(2)(b) of the High Court Rules.

• Whether Rule 87(2)(b) of the High Court Rules, which deals with joinder of parties, applies to motion proceedings or only to action proceedings
• Whether the court can exercise its discretion under Rule 4C to authorize a departure from the rules in the interests of justice
• Whether the applicant established a cause of action for joinder
• Whether the respondents have a direct and substantial interest in the main proceedings such that they should be joined as parties
• Whether costs on a legal practitioner and client scale were appropriate

1. The application for joinder was granted. 2. The first, second and third respondents were joined as seventh, eighth and ninth respondents in Case No. HC 8780/19. 3. The first, second and third respondents were given ten (10) days to prepare and file their notice of opposition and opposing affidavit(s) to the main application. 4. The first, second and third respondents were ordered to pay the applicant's costs on a legal practitioner and client scale jointly and severally, the one paying the others to be absolved.

Rule 87(2)(b) of the High Court Rules applies to motion proceedings as well as action proceedings. The use of the phrase 'in any cause or matter' in the rule indicates legislative intention to apply the joinder provisions broadly, not just to actions. Even if there were doubt about the application of Rule 87(2)(b) to motion proceedings, the court has power under Rule 4C to authorize a departure from the rules in the interests of justice, and this power is consistent with the constitutional inherent powers of the High Court under section 176 of the Constitution to regulate its own processes. For a party to be joined under Rule 87(2)(b), they must have a direct and substantial interest in the issues raised in the proceedings and their rights may be affected by the judgment of the court. A direct and substantial interest means an interest in the right which is the subject matter of the litigation, not merely a financial or indirect interest. The court may exercise its discretion to join parties whose presence is necessary to ensure that all issues in dispute may be effectually and completely determined.

The court observed that it would be anomalous if the law permitted joinder in action proceedings but not in motion proceedings, as this would potentially violate the constitutional right to equal protection and benefit of the law under section 56(1) of the Constitution. The court noted that in the main application, the fourth respondent correctly deferred all matters relating to allegations of impropriety in the disposal of the properties to the respondents being joined, as they were the ones who had to respond to the allegations that triggered the main application. The court commented that the applicant's current legal practitioners had alluded to the possibility of a complaint being lodged with the Law Society against the second respondent personally and against the law firm, and possibly the institution of litigation against them, evidencing the seriousness of the conflict of interest allegations.

This case is significant in Zimbabwean civil procedure law for establishing that Rule 87(2)(b) of the High Court Rules, which provides for joinder of parties, applies to motion proceedings and not just action proceedings. The judgment clarifies the proper interpretation of the phrase 'in any cause or matter' in Rule 87(2)(b) as encompassing both actions and applications. The case also demonstrates the court's willingness to exercise its discretion under Rule 4C to authorize departures from the rules in the interests of justice, and affirms that this discretionary power is grounded in the constitutional inherent powers of the High Court under section 176 of the Constitution. The judgment reinforces the principle that joinder is appropriate where parties have a direct and substantial interest in the proceedings and may be affected by the judgment, particularly where their conduct triggered the litigation. It also addresses important issues of legal ethics concerning conflict of interest where a law firm holds client documents then represents adverse parties claiming the same property.