MTSHIYA J: This is an urgent chamber application for the
following relief:
FINAL ORDER
“1. The execution by the respondent of the
default judgment granted by this Honourable Court against the applicant on 14
September 2010 under case number HC 5254/10 be and is hereby stayed pending the
final determination of application for rescission of judgment filed under case
reference HC 7538/2010.
2. The costs of this application shall be
borne by the respondent.
INTERIM RELIEF GRANTED
THAT Pending confirmation or
discharge of this provisional order;
1.
That
the respondent be and is hereby interdicted from executing the default judgment
granted by this Honourable Court against the applicant on 14 September 2010
under case number HC 5254/10”
The following is the relevant brief
background to the application.
On 14 September 2010 this court
granted the following order in favour of the
respondent:
“1. Judgment be granted against defendant in
the amount of US$23 400-00 together with interest thereon calculated at the
rate of 5% per annum from September 2009 to date of payment.
2.
Costs
of suit”.
On 15 October 2010 the respondent's
legal practitioners informed the applicant's legal
practitioners of the court order in
the following terms:-
“Re: OUR CLIENT: CHRISTINE FISHER vs A.
FISHER: CASE NO. 5254/10
Please find enclosed herein a copy
of the Order that we obtained from the High Court.
Please note that our client is
agreeable to your client settling the debt in instalments. To this end, let us
have your settlement proposals by return of post.
We trust that it shall not be
necessary to instruct the Deputy Sheriff to execute.
Yours faithfully
T.K. Hove
TK HOVE
AND PARTNERS”
The
applicant's legal practitioners responded to the above letter as follows:-
“We refer to your letter dated 15
October 2010 received at our offices by hand only on 18 October 2010.
We notice that you obtained default
judgment in this matter on 14 September 2010 notwithstanding the fact that our
client's appearance to defend was entered on 10 September 2010 and served at
your offices on 13 September 2010. We are instructed that your client's summons
was served on our client only on 08 September 2010 and as such his appearance
to defend appears to have been filed timeously. Kindly therefore clarify to us
the basis upon which a default judgment was sought and granted.
In addition upon being served with
our client's appearance to defend you did not even extend the courtesy of
advising that you had already applied for default judgment. Our client
certainly intends to defend this claim and has therefore instructed us to apply
for a rescission of the judgment and for a stay of execution.
Kindly therefore let us know whether
your client is amenable to a rescission of this judgment by consent and to a
stay of execution of the judgment in question. The writer tried to call you
telephonically this morning but both your mobile phone and office telephone
were not answered. We should be pleased if you could let us hear from you in
response thereto by close of business today”.
On
22 October 2010, fearing that the respondent would proceed with execution as intimated
in the letter of 15 October 2010, the applicant filed this urgent application
for stay of execution. The application is opposed.
In
support of the urgent application the certificate of urgency reads, in part, as
foolows:-
“1. Accordingly it is certain that execution
of this default judgment is now
imminent when in fact applicant
denies being indebted to the respondent in the sums claimed or at all and had
entered an appearance to defend the matter on 10 September 2010, being within
two days of the date when applicant first saw the summons.
2
Accordingly
should the respondent not be urgently ordered to stay the imminent
execution, applicant will suffer
irreparable harm as his property will be attached and sold in execution to
satisfy a debt which applicant denies and does not even owe to the respondent.
3.
Applicant
has, simultaneously with this Urgent Application, filed an application for
rescission of the default judgment granted in favour of the respondent on 14
September 2010. Accordingly, it is prudent that execution of this judgment be
stayed as a matter of urgency, pending the final determination of the
application for rescission of judgment, otherwise the application for
rescission of judgment will be rendered only academic.
4.
…………”
The founding affidavit attempts to
support the above position in the following manner:-
“I deny being indebted to the
respondent in the sums mentioned or at all. In fact I entered an appearance to
defend the main matter on 10 September 2010, that was, within two days of my
first sight of the summons. Unbeknown to me, the summons had been served at my
business address on 13 August 2010 but my son's friend, Kurt Ruseke, who
received the summons inadvertently delayed in forwarding the same to me until
08 September 2010 when he left them in the letter box at my house.
Accordingly, I was not in wilful
default. Surprisingly, upon being served with my appearance to defend stating
that the summons was served on 08 September 2010, respondent's legal
practitioners did not write to me advising the actual date when the summons was
served. They did not even warn me to regularise this position and I only
discovered the same after being advised of the default judgment on 18 October
2010. It therefore appears that the respondent was bent on snatching the
judgment only.
I have simultaneously with this
application filed with this Court under case number HC 7538/10 an application
for the rescission of the default judgment in question. It is clear that my
application for rescission of judgment is bona
fide and has merits. I was not in wilful default and I have a bona fide defence on the merits. I beg
leave to refer this application”.
In
her opposing affidavit the respondent points out that the matter should be
dismissed with costs for lack of urgency because the applicant has, since July
2010, been always aware of the case. This application, it is argued, was only
filed on 22 October 2010 – yet summons was served on 13 August 2010. The
respondent goes on to point out that the “applicant did nothing to seriously
defend the case and is now only acting because execution is imminent and this
does not constitute urgency”.
Whilst
agreeing that he became aware of the court summons on 8 September 2010 and
entered appearance on 10 September 2010, the applicant argues that he only
became aware of the final development on 18 October 2010. He then filed this
application on 22 October 2010. To that end, the applicant argues, this
application was not triggered by the threat of imminent execution. He therefore
argued that the principle of law enunciated in the case of Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 H did not
apply. In that case it was held that:
“What constitutes urgency is not
only the imminent arrival of the day of reckoning, a matter is also 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. If there has
been any delay, the certificate of urgency or supporting affidavit must contain
an explanation of the non-timeous action”
Applying
the above principles to this application I would reason as follows:
Notwithstanding
the issue of entering appearance to defend, I would argue that the need to
respond to the judicial process and react timeously arose when the applicant,
as he claims, became aware of the litigation on 8 September 2010. The duty to
enquire about progress on the matter lay squarely with the applicant who, in
any case, admits that his relationship with the respondent had become sour.
Faced with litigation, he should have known that the respondent was serious. He
did nothing as a follow up to the court process. The need to act timeously had
already arisen.
I
also find it unconvincing that Kurt Rusike safely kept the summons in his
possession from 13 August 2010 until 8 September 2010. The probabilities are that
the story is untrue. I find it most unlikely that having kept the summons for
almost a month, Kurt Rusike would then, on 8 September 2010, merely drop the
summons in a letter box. Given the delay, Kurt Rusike would have ensured that
the summons was personally handed to his friend's father the applicant. He knew
he had had it since 13 August 2010.
Given
the foregoing I find it difficult to depart from the principles of law laid in
the Kuvarega case (supra). There is
nothing in casu to compel me to depart
from those principles. This application is in my view triggered by the issue of
imminent execution of the default judgment obtained by the respondent on 14
September 2010. The applicant's sudden awakening to stop the inevitable is
coming late in the day and cannot therefore enjoy the blessings of this court.
There is therefore no urgency in this matter and having so ruled I find it
unnecessary to delve into the merits of the matter.
I
therefore order as follows:-
The
application be and is hereby dismissed with costs for lack of urgency.
Costa & Madzona, applicant's legal practitioners
T.K.
Hove & Partners,
respondent's legal practitioners
