MATHONSI J: This matter came before me on a certificate of
urgency. The Applicant seeks the
following relief:
''TERMS OF FINAL ORDER SOUGHT
That the provisional order granted by this
Honourable Court be confirmed in the following manner:
1. That the 2nd
Respondent is permanently interdicted from executing and selling 1st
Applicant's immovable property being stand number 14959 Impala Road, Selbourne
Park, Bulawayo.
2. That the 1st
Respondent be and is hereby ordered to pay costs of suit on an attorney-client
scale.
INTERIM RELIEF GRANTED
Pending the finalisation of the matter, the
Applicant be granted the following relief:
1. That the 2nd
Respondent be and is hereby directed to stay the execution of the default order
granted under HC 1861/10 pending the finalisation of the matter under case
number HC 226/11.
2. That the 2nd
Respondent be and is hereby interdicted from selling or encumbering 1st
Applicant's immovable property being stand number 14959 Impala Road, Selbourne
Park Bulawayo.''
That the draft provisional
order does not accord with Form 29C of the High Court Rules, 1971 pales to
insignificance when considered against the backdrop of the fact that at no time
whatsoever did the 1st Respondent threaten to execute against stand
number 14959 Impala Road Selbourne Park
Bulawayo. Why then the applicant deemed
it necessary to make the application is not easy to fathom.
In this case, the 1st
Respondent instituted summons action against the applicants on 13 November 2009
under case No. HC 1861/09 seeking to compel them to construct a 4 roomed house
for him in terms of an agreement the parties allegedly entered into, or
alternatively payment of US$13 250-00 being the estimated value of such
property. The applicants entered
appearance but defaulted in filing a plea, were barred and judgment was entered
in favour of 1st Respondent on 1st April 2010.
On 7 July 2010 the Deputy
Sheriff served the applicants with a writ of execution against both movable and
immovable property the latter property being ''stand 2254 Bulawayo North,
Bulawayo also known as No. 9 David Carnegie North End Bulawayo registered in
the name of 2nd Defendant under Deed of Transfer Number 2641/86.''
While the applicants are
presumed in terms of Rule 63(3) of the High Court Rules 1971 to have had
knowledge of the judgment within 2 days after it was granted, even if they did
not have such knowledge, they certainly did on 7 July 2010 when they were
served with the writ of execution.
According to the Deputy Sheriff's return
of service, on that date they were also served with the notice of
judicial attachment of stand 2254 Bulawayo North also known as 9 David Carnegie
Road North End Bulawayo.
The applicants do not appear
to have done anything about the writ and the attachment. On 23 December 2010 they were served with a
notice of sale of the property which was to be auctioned on 28 January 2011 at
10 am. They again did not do anything
about it. It was not until the 27th
January 2011, more than a month after the notice of sale was given and one day
before the sale, that they filed this application, not to stop the sale of the
North End property but, as stated above, to interdict the 2nd
Respondent from selling their Selbourne Park property.
Just what did the Selbourne
Park property have to do with anything?
In support of the application, applicants annexed not only the order of
1st April 2010 which they want to have rescinded under HC 226/11
without seeking condonation for late filing of the rescission of judgment
application, but also the notice of sale of the North End property.
This did not stop a legal
practitioner and a senior partner in the firm of Moyo and Nyoni Legal
Practitioners certifying the matter urgent on the grounds that:
''1. The 2nd
Respondent has attached the 1st Applicant's immovable property, with
the intent of auctioning it. The
immovable property is the only Applicant's home and the only home for his
children.
2. The 1st
Applicant stands to suffer irreparable harm and prejudice if, his house is
attached as it will leave him homeless and worse his children will have no roof
over their head, if the execution is allowed to continue, yet the 2nd
applicant has got movable property which can settle the debt.
3. The 2nd
Respondent did not make due inquiry and diligent search to satisfy himself that
there was insufficient movable property to satisfy the amount due under the
writ in terms of the High Court Rules ---.
4. ---
5. The matter is thus urgent
and should be treated as such by this Honourable Court as there is an imminent
threat and danger that the Applicants will lose their immovable property, and
as such this matter cannot be filed as an ordinary application, as this will
take long.''
There is no factual foundation
for the grounds of urgency set out above.
Firstly, the applicants were aware of the existence of a judgment and
the attachment of the North End house for sale in execution at the very least
on 7 July 2010. They did not do anything
about the matter. They were notified of
the imminent sale on 23 December 2010 and again they did not act until the day
of reckoning. This, assuming they wanted
to stop the sale of the North End property.
It has been stated, time
without number, that urgency which stems from a deliberate or careless
abstention from action until the arrival of the day of reckoning is not the
urgency contemplated by the rules. Kuvarega v Registrar General & Another 1998(1) ZLR 188 (H)
at 193G; Williams v Kroutz &
Investments (Pvt) Ltd & Others HB -25 -06; Ncube V Messenger of Court
Bulawayo N.O & Another HB 146-10; Ndlovu
V PDS Investments & Another HB2-11.
Secondly, the immovable
property which the applicants seek to protect was never placed under attachment
and at no time did the 1st respondent threaten to auction it as
alleged in paragraphs 1 and 2 of the certificate of urgency. Even if it had been attached it was clearly
not the only home which the 1st Applicant had as he still had the
North End property. It was therefore
false that he and his children would be left homeless and without a roof over
their heads.
Thirdly, no movable property
is identified as belonging to the applicants which was available for attachment
instead of the house. Where the lawyer
certifying the matter as urgent got this from is not easy to appreciate.
More importantly, not much
industry was required of the lawyer to expose the fallacy of this entire
application. In fact, if he had taken a
moment to peruse the papers before issuing the certificate it would have been
apparent to him that the property described in the notice of sale was not the
property forming the subject of this application. The notice of sale is attached to the
founding affidavit as annexure ''C''.
The entire application is therefore premised on a falsehood.
Now, the hearing of a matter as
urgent is entirely the discretion of the court.
The court exercises its discretion in favour of an applicant and allows
such applicant to jump the queue on the strength of a certificate issued by a
legal practitioner. As stated by
Gillespie J in General Transport & Engineering (Pvt) Ltd v Zimbank Corp (Pvt) Ltd 1998(2) ZLR 301 at
302 E-F:
''Where the rule relating to a
certificate of urgency requires a legal practitioner to state his own belief in
the urgency of the matter that invitation must not be abused. He is not permitted to make as his
certificate of urgency a submission in which he is unable conscientiously to
concur. He has to apply his own mind and
judgment to the circumstances and reach a personal view that he can honestly
pass on to a judge and which he can support not only by the strength of his
arguments but on his own honour and name.
The reason behind this is that the court is only prepared to act urgently
on a matter where a legal practitioner is involved if a legal practitioner is
prepared to give his assurance that such treatment is required.''
See also Musunga v Utete & Another HH90-03 at 2 to 3. I find myself entirely in agreement with the
learned judge on that point. What is
more, unless the lawyer simply did not read the application, he could not
countenance the urgency of the matter and for him to certify the matter as he
did amounted to an abuse. I cannot be
faulted for concluding that he acted dishonestly. He risks being lumbered with costs de bonis propriis.
If
the certificate of urgency issued by Messrs Moyo & Nyoni was an aberration,
then the conduct of the legal practitioners representing the applicants who put
together the defective application is unforgivable. There is nothing to suggest that the lawyer
acquainted himself with the rules relating to the making of an urgent
application let alone a rescission of judgment application. To the extent that they sought to rely on a
notice of sale of a property in North End to interdict the sale of a property
in Selbourne Park without the slightest connection between the two, they failed
to show that there is a prima facie
case for such refief Kuvarega v Registrar
General & Another (Supra).
The
fact that there is absolutely no disclosure in the papers that the house sought
to be protected has not been placed under judicial attachment and that instead
the relevant house is the one in North End, means that there is a glaring
non-disclosure of material facts and misrepresentation as to suggest a
deliberate effort to hoodwink the court into granting an order where no
foundation for it is established. In
addition, there was no disclosure of the fact that even the house in North End,
had already been auctioned by the time the matter came for argument. In fact, Mr Mlala, who appeared for the
applicants insisted on arguing the matter right up to the end even as it was
apparent it had no merit. The lawyers
acted in bad faith.
These
factors, put together with the misrepresentation that the 1st
Applicant's only house was being auctioned when he had more than one house, and
cannot be accepted. The fact that he
owned more than one house was apparent even from the papers relied upon by the
applicants.
The
legal practitioners went on to make this application relying on a rescission of
judgment application which was filed hopelessly out of time and without even
attempting to seek the condonation of the court. When questioned about all these discrepancies,
Mr Mlala could only say that he overlooked them up to a time when it appeared
he had overlooked everything. There are
limits to which a lawyer can escape his own negligence and lack of diligence.
The 1st
Respondent is a man of moderate means who has been unnecessarily put out of
pocket having to defend an application which should not have been made at
all. Even assuming that the legal
practitioners overlooked the deficiencies in the application, after receiving
the opposing papers, it should have been apparent that the application was
hopeless and for them to fight it to the end was not only unreasonable but
clearly an abuse.
While
an order for costs de bonis propriis
against a legal practitioner is an exceptional measure, it should be made where,
in addition to negligence and impropriety, the legal practitioner's conduct amounts
to an abuse of process. O-marshah v Kasara 1996(1) ZLR 584(H) at
591 F; Masama v Borehole Drilling
(Pvt) Ltd 1993 (1) ZLR 116 (S) at 120G.
I am
of the view that Mr Mlala was negligent in a serious degree in the handling of
this matter. There is every reason to
''crack the whip'' as it were and order him to pay the costs de bonis propriis.
In
the result, I make the following order:
1. The application be and is hereby dismissed.
2. The costs shall be borne by the 1st and
2nd Applicants and Mr Mlala of Messrs Cheda & Partners de bonis propriis jointly and severally
on an attorney and client scale.
Dube-Banda, Nzarayapenga & Partners, 1st Respondent's Legal
Practitioners
Messrs. Cheda &
Partners, 1st & 2nd Applicants'
Legal Practitioners
