The
applicants seek a provisional order in the following terms:
“Terms
of final order sought
That
the respondents show cause, if any, to this honourable court why:-
1.
The proceedings in case number 51/11 Gweru Magistrates' Court should not remain
postponed sine die pending determination of the review application in case
number HC190/11.
2.
The operation of the interim part of the rule nissi in Gweru Magistrates' Court
case number 51/11 should not be suspended pending the determination of review
application number HC190/11.
3. The
costs of this chamber application should not be costs in the cause in the
review application.
Interim
Relief Granted
Pending
final determination of this chamber application applicants are granted the
following relief:
1.
Proceedings in Gweru Magistrates' Court under case number 51/11 remain
postponed sine die.
2. The
operation of the interim part of the rule nissi in Gweru Magistrates' Court
number 51/11 is suspended.”
The
background facts are the following.
On
10 January 2011, the applicants were served with an order granted ex parte on 7 January 2011 in favour of the second
respondent and an application therefore by the first respondent, the rule nissi
in which was returnable on 19 January 2011. On 17 January 2011, the applicants
served the second respondent with a Notice of Opposition to the application for
the rule nissi, and their affidavits in opposition, seeking a discharge of the
rule nissi on the grounds, inter alia, that:-
(a) The
court had no jurisdiction over the matter;
(b) The
order granted ex parte was void at law; and
(c) The
second respondent herein had breached the requirement of utmost good faith in
approaching the court through his non-disclosure of an amended putative
contract.
At
the hearing on the return day, the second respondent applied for a postponement
of the hearing, allegedly for the purpose of delivering a replying affidavit on
the factual issues which were not disclosed. The latter application was opposed
by the applicants. The parties' legal practitioners made submissions. After
argument, the first respondent indicated to the parties that the ruling will be
given “before lunch.” Later, on enquiry through the first respondent's Clerk,
the parties were informed that the ruling will be given at 2pm. In the
afternoon, the second respondent and his legal practitioner did not return.
When the matter was called, the first respondent directed the applicant's legal
practitioner to the Clerk of the Court where he would find the written ruling.
The ruling was in favour of the second respondent's application for
postponement. The applicants were not amused by the turn of events. They speculate that the reason why the second
respondent and his legal practitioner did not come to court in the afternoon is
that there was private communication between the first respondent and the second
respondent's legal practitioner in the absence and outside the hearing of the
applicants and their legal practitioner.
It is
for this reason that they made an application for review on the basis of bias
by the first respondent. The applicants also made this application to stay the
proceedings and the operations of the rule nissi.
In
casu, there is alternative remedy
available to the applicants before filing this application under a certificate
of urgency. Immediately after the granting of the postponement, the applicants
should have applied for recusal of the first respondent and another magistrate
would have been appointed. The applicants decided to forego that route and made
this urgent application to arrest the proceedings. On this ground alone, the application should
fail.
Accordingly,
I dismiss the application with costs.
