MUTEMA J: This matter came before
me via the chamber book. The application was filed on 13 June, 2011 and was
scheduled to be heard on the 16th of June, 2011. Because the
opposing papers were filed and served upon the first respondent a few minutes
before the scheduled hearing, the applicant requested that the hearing be
postponed to either 20 or 21 June, 2011 to enable her to file an answering
affidavit. But since the applicant's immovable property was set to be auctioned
at 10 a.m. on 17 June, 2011 I directed that the hearing be postponed to 9 a.m.
on 17th June, 2011. However, by the time the hearing was concluded,
well after 11 a.m. when judgment was reserved, the auction had gone through.
The
bare bones of the dispute are summarised hereunder:-
On
9 October, 2006, third respondent, acting as second respondent's agent in his
capacity as the latter's managing director via a board resolution to that
effect, concluded a lease agreement with first respondent in terms of which
second respondent occupied premises known as 16th floor, ZB Life
Towers, 77 Jason Moyo Avenue, Harare. Third respondent is applicant's son and
applicant is also a director in second respondent company. The lease was to
endure until 31 October, 2008 in terms of clause 1.5 of the agreement. However,
in terms of clause 2.3 of the lease agreement, the parties agreed to an
automatic renewal of the lease in the event that the lessee would have failed
to give notice of its intentions to vacate the premises at least three calendar
months prior to the date of termination. The lessee did not give such notice
and remained in occupation of the premises thereby giving birth to a tacit
relocation of the lease on the same terms and conditions other than the rent
payable subject to two months written notice of termination on either side
being given.
When
the lease agreement was concluded on 9 October, 2006, three directors of second
respondent, viz the applicant, third respondent and one Alfred Tawanda Mupereri
bound themselves as surety and co-principal debtor jointly and severally for
the due and faithful performance by the second respondent of all obligations
imposed in terms of the lease agreement in question. They also renounced the
legal exception beneficium ordinis seu
excussionis (the defence by a surety when sued by the creditor that the
principal debtor be pursued first).
After
the tacit relocation of the lease the second respondent breached the agreement
by incurring rent arrears ever a period of time. First respondent as the
plaintiff sued second and third respondents and the applicant as defendants in
that chronology under case number HC 6322/09 for inter alia eviction and payment of the arrear rentals. Messrs
Kantor & Immerman were engaged by third respondent to enter appearance to
defend the suit on behalf of all the three defendants. When the matter got to
Pre-Trial Conference stage Kantor & Immerman renounced agency for
non-payment of fees.
Thereafter,
as can be gleaned from the papers filed of record, Messrs Mbidzo, Muchadehama
and Makoni were engaged to represent second and third respondents and the
applicant and on 1 October, 2010 Mr Nleya
for the plaintiff and Mr Mbidzo
appearing on behalf of the three defendants had an order by consent granted by
Chiweshe JP in the following terms:-
“WHEREUPON,
after reading documents filed of record and hearing counsel;
IT
IS ORDERED BY CONSENT THAT:
1. First
defendant, its subtenants, assignees, invitees and all those claiming
occupation through it shall vacate the plaintiff's premises being 16th
floor ZB Life Towers 77 Jason Moyo Avenue, Harare on or before the 18th
of October, 2010;
2. In
the event that the first defendant together with its subtenants, assignees,
invitees and all those claiming occupation through it failing to vacate the
plaintiff's premises in terms of para (1) above, the Sheriff of this Honourable
Court or his lawful deputy be and is hereby authorised to evict the first
defendant together with its subtenants, assignees, invitees and all those
claiming occupation through it from the plaintiff's premises being 16th
floor ZB Life Towers, 77 Jason Moyo Avenue;
3. First,
second and third defendant shall jointly and severally, the one paying the
others to be absolved, pay to the plaintiff the sum of US$156 652-10 in
instalments as follows:-
3.1.US$4
500-00 per month for the period of October, 2010 up to December 2010.
3.2.US$10
000-00 per month for the period January 2011 up to November 2011.
3.3.US$33
152-10 in December 2011.
4. First,
second and third defendants shall jointly and severally, the one paying the
others to be absolved, pay the plaintiff's agreed costs in the sum of
US$1800-00, plus VAT, on or before 31 January, 2011.
5. In
the event that the defendants fail to make any payment on due date, the Sheriff
of this Honourable Court or his lawful Deputy be and is hereby authorised to
attach the defendants' property to satisfy the balance due to the plaintiff.
6. Should
the plaintiff proceed in terms of para (2) and (3) above defendants shall,
jointly and severally the one paying the others to be absolved, pay the
plaintiff's costs on the legal practitioner and client scale”.
It
appears from the papers filed of record that the defendants in case HC 6322/09
failed to fulfil their part of the
consent order because the Sheriff subsequently went on to attach the
applicant's immovable property called stand 255 Quinnington Township 11 of Lot
DC Quinnington, Salisbury whose sale was scheduled for 10 a.m. on 17 June,
2011. This then galvanized the applicant into action by lodging this urgent
chamber application to stay execution of the judgment until the finalisation of
her application for rescission of the consent judgment which she has filed
under case No. HC 5516/11.
The
applicant's grounds for stay of execution are these:-
1. the
lease agreement for which she stood surety expired on 31 December (sic) 2008 and she was not advised of any
extension neither did she wish to extend the suretyship beyond the initial
term;
2. her
liability in terms of the deed of suretyship was in Zimbabwe dollars and not in
United States dollars;
3. she
was not afforded an opportunity to be heard in the proceedings in case No. HC
6322/09 on which the order of execution is premised since:
-
she was not served with
any court documents in respect of case No. HC 6322/09,
-
she did not attend the
hearing of the matter.
-
she never engaged
either Messrs Kantor and Immerman or Mbidzo, Muchadehama and Makoni to
represent her interests in the matter;
-
she did not authorise
any of the defendants to stand in her place and appear before the court;
-
she did not consent to
the granting of the order in case No. HC 6322/09; and
-
she was unaware of the
dispute until 25 May, 2011 when the deputy Sheriff served her with a notice of
the sale in execution of her immovable property addressed to third respondent
(her own notice was delivered the next day).
The
peroration of applicant's answering affidavit is couched in these words:-
“10.
In the circumstances, I submit
that the Sheriff's sale in execution scheduled for 10:00 hours this morning be
stayed pending the outcome of my application for rescission of judgment or at
least to allow:
10.1
third respondent to sell his
property by private treaty; and
10.2
me to sale (sic) my Mandara property by private treaty to the best advantage so
that if there is to be any execution it can be in respect of any outstanding
balance”.
What is common cause in this matter, in
spite of applicant's other protestations, is
that she became aware of the
Sheriff's notice of sale in execution on 25 May, 2011 and that she filed the
urgent application on 13 June, 2011 – some 13 working days (or 19 days later
since urgent applications can be heard on any day at any hour).
The
issue which falls for determination and can dispose of the matter without being
detained by unnecessary splitting of hairs at this juncture is whether the
alleged urgency scales the hurdle of the type of urgency contemplated by the
rules of this Court. The often cited case in determining what constitutes
urgency is that of Kuvarega v Registrar
General & Anor 1998(1) ZLR 188 (HC). The words of CHATIKOBO J at p 193
bear useful repetition for clarity. The learned Judge said:-
“In
the present case, the applicant was advised by the first respondent on 13
February, 1998 that people would not be barred from putting on the T-shirts
complained of. It was not until 20 February, 1998 that this application was
launched. The certificate of urgency does not explain why no action was taken
until the very last working day before the election began. No explanation was
given about the delay. What constitutes urgency is not only the imminent
arrival of the day of reckoning; a matter is urgent, if at the time the need to
act arises, the matter cannot wait. Urgency which stems from a deliberate or
careless abstention from action until the deadline draws near is not the type
of urgency contemplated by the rules. It necessarily follows that the
certificate of urgency or the supporting affidavit must always contain an explanation
of the non-timeous action if there has been any delay. In casu, if I had formed the view that it was desirable to postpone
the election I may nevertheless, have been dissuaded from granting such an
order because by the time the parties appeared before me to argue the matter,
the election was already under way. Those who are diligent will take heed.
Forewarned is forearmed”.
The
foregoing salutary warning, coupled with what GILLESPIE J said in General Transport & Engineering (Pvt)
Ltd & Ors v Zimbabwe Banking Corporation Ltd 1998 (2) ZLR 301 (HC) that
the extension of protection as a matter of urgency is relief available from
this court as a matter of discretion and that this preferential treatment is
only extended where good cause can be shown for treating one litigant
differently from most litigants behoves me to exercise my discretion against
the applicant. The grounds for the discretion are simply these: an application
stands or falls on its founding affidavit. In
casu there was a delay of 19 days after the need to act arose on 25 May,
2011. Neither the certificate of urgency nor the founding affidavit does
contain an explanation for the non-timeous action. To attempt to smuggle in an
explanation for the delay in an answering affidavit is non-suited. Even
assuming that the applicant's delay was occasioned by advice from her legal
practitioner of record to first engage the first respondent this will simply
amount to lack of diligence on the part of the legal practitioner who is
presumed to know the law. It was futile for applicant to embark upon a flurry
of meetings with officers of the first respondent with no tangible positive
result being yielded without filing a concomitant urgent chamber application.
Even
if I had formed the view that it was desirable to stay the execution I may
nevertheless, have been deterred from granting such an order because while the
parties were arguing the matter before me, the sale was underway. As it turned
out the application was overtaken by events and the result was merely academic.
Once again those who are diligent will take heed and forewarned is forearmed!
In
the event the application lacks any semblance of the urgency contemplated by
the rules of this court and is accordingly dismissed on that basis with costs.
Ziumbe
& Mtambanengwe, applicant's legal practitioners
Gill, Godlonton & Gerrans, 1st respondent's legal practitioners
