MATHONSI J: The applicant is one of the
two people who signed an acknowledgement of debt as sureties and co-principal
debtors on 6 April 2009 binding themselves for a loan advanced by the first
respondent to Balemu Safaris (Pvt) Ltd.
The applicant also consented to the registration of a mortgage bond
against her title to stand 108 Mahatshula Township of stand 1 Mahatshula
Township Bulawayo as security for the debt.
When the debt was not liquidated, the first respondent took judgment
against the applicant and two others on 26 February 2010. Subsequent to that, the applicant was served
with a writ of execution and notice of judicial attachment of her stand 108
Mahatshula Bulawayo on 13 May 2010. The
sale of that property was originally scheduled to take place on 27 August 2010
but was cancelled after the applicant had made an offer to settle the debt
together with other charges by 30 November 2010.
The papers show that the applicant paid part of the money owed but did
not clear all that was outstanding by 30 November 2010. Up to now the debt has not been cleared. Finding itself with no other option, the
first respondent instructed the Sheriff to proceed with the sale of applicant's
dwelling house in order to recover what remained outstanding. A new date of sale, being 24 June 2011 was
set by the Sheriff.
Stung by that turn of events, the applicant launched the present
application on 17 June 2011. The
application is purportedly made in terms of Order 40 rule 348A of the High
Court of Zimbabwe Rules, 1971. She seeks
an order suspending the sale of the house on the pain of her paying US$500-00
per month with effect from 1 July 2011 until the outstanding debt is
liquidated. She also seeks an order
directing the first respondent to produce a breakdown of what remains owing to
facilitate its settlement in monthly instalments of US$500-00 per month
aforesaid.
The first respondent has strongly opposed the application as lacking in
merit. At the commencement of the
hearing Mr Ncube for the first
respondent took a point in limine that, if this application was
meant to be made in terms of subrule (5a) of rule 348A (something not apparent ex
facie the application), then it has been brought out of time. As no application for condonation has been
made, the application should fall on that score alone.
In response, Mr Nkomo for the
applicant, while conceding that the application was submitted out of time,
urged me to indulge the applicant in the exercise of my discretion given by
rule 4C(a) of the High Court Rules because it is in the interest of justice
that it be done. He took the view that a
grave injustice will occur if there is no departure from the provisions of rule
348(5a) given that the figures submitted by first respondent for the amount owing
are contested.
That rule provides;
“Without derogating
from subrule (3) to (5), where the dwelling that has been attached is occupied
by the execution debtor or members of his family, the execution debtor may,
within ten days after the service upon him of the notice in terms of rule 347,
make a chamber application in accordance with subrule (5b) for the postponement
or suspension of-
(a) the sale of the dwelling concerned, or
(b) the eviction of the occupants.”
In casu, the applicant was
served with the notice of attachment together with the writ of execution
against the dwelling on 13 May 2010. She
was therefore entitled to make this application by 28 May 2010. She did not.
As already stated the application was only filed on 17 June 2011 almost
13 months out of time. In her wisdom,
the applicant did not find it necessary to seek condonation from the court to
bring the application out of time.
Mr Ncube
has made reference to a catena of cases to the effect that for condonation to
be granted, there must be a substantive application for it. In Forestry
Commission v Moyo 1997 (1) ZLR 254(S) at 260 C-H and 261 A, GUBBAY C.J.
stated;
“I entertain no doubt
that, absent an application, it was erroneous of the learned judge to condone
what was on the face of it, a grave non-compliance with rule 259. For it is the making of the application that
triggers the discretion to extend the time.
In Matsambire v Gweru City Council
S -183-95 (not reported) this court held that where proceedings by way of
review were not instituted within the specified eight weeks period and
condonation of the breach of rule 259 was not sought, the matter was not
properly before the court. I can
conceive of no reason to depart from that ruling. One only has to have regard to the broad
factors which a court should take into account in deciding whether to condone
such a non-compliance, to appreciate the necessity for a substantive
application to be made. They are:
(a) that the delay involved was not
inordinate, having regard to the circumstances of the case;
(b) that there is a reasonable explanation
for the delay;
(c) that the prospects of success should the
application be granted are good; and
(d) the possible prejudice to the other
party should the application be granted.
See Director of Civil Aviation v Hall
1990(2) ZLR 354(S) at 357 D-G. How can a
court exercise a judicial discretion to condone when the party at fault places
before it no explanation for the delay?
Moreover, in every
such application the respondent is entitled to be heard in opposition. He must be permitted an opportunity to
persuade the court, that the indulgence sought is not warranted. Without hearing him how can a court, for
instance, be satisfied that he will suffer no possible prejudice by the
condonation.”
In the present case, Mr Nkomo
urged me to rely on rule 4C to indulge the applicant. Quite often legal practitioners who find
themselves having fallen foul of the rules of court are quick to rely on that rule
to circumvent the process of the rules.
There is however no magic coming out of rule 4C (a). It simply provides;
“The Court or a
judge may, in relation to any particular case before it or him, as the case may
be-
(a) direct, authorise or condone a departure
from any provision of these rules, including an extension of any period
specified therein, where it or he, as the case may be, is satisfied that the
departure is required in the interests of justice.”
The applicant has not asked me to condone her 13 months delay in
bringing this application because she has not made a substantive application
for condonation. The objection to the
late filing of this application was made in the opposing papers filed on behalf
of the first respondent. The applicant
still had time, some 10 days or so before the matter was heard, to submit an
application for condonation. She chose
not to. Short of descending onto the
arena, on what basis can I condone?
That an application for condonation must precede the main application
has already been determined by the Supreme Court: Sibanda v Ntini 2002(1) ZLR 264(S); Mlondiwa v Regional Director of Education, Midlands Province N.O and
Another HB 19-94.
In Viking Woodwork (Pvt) Ltd v
Blue Bells Enterprises (Pvt) (Ltd) 1998(2) ZLR 249(S) at 251 C-D SANDURA JA
stated that a party who finds himself out of time to make an application must
first seek condonation:
“If he does not
make the application within that period but wants to make it after the period
has expired, he must first of all make an application for condonation of the
late filing of the application. This
should be done as soon as he realises that he has not complied with the
rule. If he does not seek condonation as
soon as possible he should give an acceptable explanation, not only for the
delay in making the application for the rescission of the default judgment, but
also for the delay in seeking condonation.”
As this issue has been settled by the Supreme Court in a number of
cases, I find myself in total agreement with the words of NDOU J in Sai Enterprises (Pvt) Ltd v Girdle
Enterprises (Pvt) Ltd t/a Quality Engineering Services (Pvt) Ltd HB 62/09
(as yet unreported) at page 2 where he said:
“This court is
bound by the precedents set by the Supreme Court. Arguing against such clear decisions of the
Supreme Court is province of academics and not this court.”
In the absence of a substantive application for condonation, the
applicant cannot be indulged. This
should have been apparent to the applicant from the very beginning. That notwithstanding, she set about
hopelessly out of time to bring this application. Even after it was brought to her attention in
the opposing affidavit that the application was out of time, she still went on,
virtually headlong, without seeking condonation.
Even if the acknowledgement of debt she signed did not commit her to pay
costs of litigation against her on a higher scale, this is a case which would
still attract punitive costs because of the brazen manner in which the
applicant rode rough shod on clear provisions of the rules.
I therefore come to the conclusion that the point in limine
taken on behalf of the first respondent has merit.
In the result the application is dismissed with costs on an attorney and
client scale.
Messrs
Cheda and partners, applicant's legal practitioners
Costa and Madzonga c/o
Coghlan & Welsh, 1st
respondent's legal practitioners
