BHUNU
J: The first applicant is a director of the second applicant company Daniel
Technologies P/L. The first respondent is a company in the business of letting
out properties.
On
or about July 2008 the parties concluded a written lease agreement in respect
of premises situate at 14th Floor, North Wing, Cabs Centre Stand
Number 736B corner Sam Nujoma and Jason Moyo Avenue Harare.
The second applicant subsequently fell into arrears resulting in the
parties concluding a deed of settlement on 15 October 2009.in the following
terms:
“1. The lessee shall settle US$12,627.09, which is part payment of
the balance of its outstanding rent and operating costs for the leased premises
for the period January to October 2009 not later than 31 October 2009.
2.
US$12,627.09, which is the balance of the lessee
outstanding and operating costs for the period January to October 2009, shall
be settled no later than 30 November 2009.
3.
In the event of Breach of this Deed of Settlement the
lessor shall have the right to immediately cancel the lease agreement and
demand vacant possession of the leased premises.
4.
The Lessee shall be liable for legal costs at the legal
practitioner and client scale”
By
3 March 2010 the lessee had made no payments at all and the amount awing had ballooned
to US$28, 198.54. As a result the 1st respondent obtained a default
order against both applicants in the following terms:
“a. The
1st and 2nd Respondents shall pay to the Applicant
jointly and severally one paying the other to be absolved US$28 198, 54.
b.
Interest thereon of 5% pre annum from November 2009 to
date of payment in full.
c.
Cost of suit on the legal practitioner client scale”.
A perusal of the record of proceedings shows that the relevant notices
were served on an employee of the second applicant.
The judgment debt not having been satisfied, the first respondent
obtained a writ of execution on 15 March 2010. On 17 May 2011 the second respondent
attached and served a notice of removal on the first applicant. This prompted
him to lodge this urgent chamber application for stay of execution pending the
determination of the application for rescission of judgment he has already
lodged with this Court. In this application he purports to represent himself
and the second applicant.
Before me the first applicant stated that he is not disputing liability
but was pleading for time to pay since he had no capacity to pay because
currently he is unemployed and the second respondent is not operating. This is
what he had to say:
“The company is
currently non existent. My lease was in Zimbabwean dollars. I have written them
a letter to say what I can afford. I do not deny liability. I do not deny
anything. I am willing to pay.
Right now I am
not working and the company is not operational. I can't say where I will get
the money from because I am not working and the company is not operational but
I will look for the money and pay them.”
It
is needless to say that the applicants have failed to put up a case showing
that they have any prospects of success in reversing the order that they want
stayed. They have also failed to establish that they have the capacity to
settle the judgment debt within a reasonable time to warrant any leniency. That
being the case, the first respondent cannot be faulted for insisting on
execution. For that reason the application for stay of execution cannot
succeed. It was a term of the written lease agreement that costs shall be at
the higher scale. The Court has a duty to honour that undertaking.
It
is accordingly ordered that the application for stay of execution be and is
hereby dismissed with costs at the legal practitioner and client scale.
Gill, Godlonton &
Gerrans, 1st respondent's legal practitioners.
