MUFUNDISI v RUSERE 2008 (2) ZLR 264 (H)

Flynote

Legal practitioner — conduct and ethics — refusal to accept court process — practitioner having obtained order in ex parte application — order granted erroneously — practitioner refusing to accept notice of set-down for fresh hearing — such conduct unethical and unacceptable

Practice and procedure — application — ex parte application — court's discretion to allow affected party to be heard — High Court Rules 1971 — r 244 D — proviso to — r 246(1) — purpose of these provisions — protection for litigants in ex parte applications

Practice and procedure — judgment — correction of — judgment or order erroneously granted in absence of party affected thereby — judge mero motu invoking provisions of r 449 of High Court Rules 1971 E

Headnote

The applicant sought and obtained an ex parte order which restrained the respondent from disposing of a certain motor vehicle. Upon having had his attention drawn to the respondent's notice of opposition to the applicant's application, the judge considered that the order should not have been granted before affording the respondent an opportunity to be heard. Accordingly, he mero moto invoked the provisions of r 449 of the High Court Rules 1971, which allows a court to correct, rescind or vary any judgment or order erroneously granted in the absence of any party affected thereby. He arranged for the matter to be set down for further hearing, intending to advise the parties that he proposed to have the order granted ex parte rescinded and to hear both parties afresh and on equal footing before making a determination. The applicant's legal practitioner did not appear at the hearing; the evidence was that his firm had refused to accept service of the notice of hearing, and that the applicant's counsel, who happened to be at the court on the date of set-down, indicated that he would not attend.

Held, that judges are not endowed with the gift of infallibility and r 449 can, in certain circumstances, be invoked by the judge to rectify his error. Thus, the rule may be used where a provisional order is erroneously granted in the absence of the respondent.

Held, further, that the purpose of the proviso to r 244 of the High Court Rules, 1971, and of r 246(1)(b) of the Rules, is to provide sufficient safeguards for litigants who might otherwise be adversely affected by ex parte applications granted in terms of r 246(2).

Held, further, that it is both unethical and unprofessional for a legal practitioner to attempt to frustrate court process by refusing to accept service of a notice of set down in an attempt to cling to a provisional order granted erroneously in the absence of the respondent. For a legal practitioner to advise his law firm to refuse to accept court process for whatever reason would represent an act of brutality to the rules of professional ethics. Such an act is clearly calculated to subvert court process and is unacceptable. It is unforgivable for a legal practitioner to conspire to defeat court process by arrogantly instructing his law firm to refuse to accept court process in the misplaced hope that his client can hold onto a court order obtained ex parte.