Interim Interdict Pendente Lite and Stay of Execution re: Interim Interdict Pending Nothing

HH99-12 : SHUNGU ENGINEERING (PVT) LTD vs SIMBARASHE SANGONDIMAMBO & ORS
Ruled By: MATHONSI J

This is an urgent application in which the applicant seeks a provisional order in the following terms:-“(A) TERMS OF FINAL ORDER SOUGHTThat you show cause to this Honourable Court why a final order should not be made in the following terms:1. That the execution of the Arbitral Award in case ...

This is an urgent application in which the applicant seeks a provisional order in the following terms:-

“(A) TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. That the execution of the Arbitral Award in case number HC6251/11 by the respondents be and is hereby permanently stayed.

2. That there shall be no order as to costs of this application.

(B) INTERIM RELIEF GRANTED

Pending confirmation or discharge of the provisional order the applicant is granted the following relief:

(a) That the execution of the Arbitral Award registered in case number HC6251/11 be and is hereby stayed.

(b) In the event of this application being heard after execution has been carried out, that the applicant be restored to possession of its movable property.”

On 24 May 2011, labour arbitrator, L.M. Gabilo, handed down an arbitral award in an arbitration involving the parties in terms of which he directed the applicant to pay the respondents a total sum of US$24,103 as unpaid salaries and cash in lieu of notice.

It does not appear, from the papers, as if the applicant did anything about the award until recently.

The arbitral award was registered with this Court following an application made by the respondents in terms of section 98(14) of the Labour Act [Chapter 28:01] in case number HC6251/11 but not before that application was served upon the applicant on 4 July 2011.

According to the Deputy Sheriff's return of service, the application was served on an employee of the applicant, Mrs Mudyawabikwa, who is a responsible person.

The applicant did not see the wisdom of opposing the application and now claims that the employee did not bring it to the attention of management.

I find it incredible that Mrs Mudyawabikwa could have appropriated the application for herself - especially as no affidavit has been elicited from her explaining how this came about. In fact, I reject the argument that the applicant only got to know of the arbitral award at the time of attachment.

Looking at L.M. Gabilo's award, the arbitration costs were to be borne by the parties at the ratio of 15% by the respondents and 85% by the applicant. It is highly unlikely that the arbitrator would have failed to send the award to the applicant when the bulk of his fees were to come from the applicant.

I therefore proceed from the premise, that, aware of both the award and its registration as an order of this Court, the applicant did nothing about the matter until removal of its property on 12 January 2012.

This is particularly so given that the applicant did not act even when served with the notice of seizure and attachment on 6 September 2011 and with the notice of removal on 5 January 2012.

Following registration of the award, a writ of execution was issued and the applicant's property attached and removed for sale in execution on 13 January 2012. It is that removal which jolted the applicant into action, as, prior to that, it had blissfully allowed the matter to remain unattended.

The applicant promptly filed an urgent application in this Court, in case no. HC289/12, seeking an order for a stay of execution pending the hearing of a review application which it only filed in the Labour Court on 13 January 2012 when its property was removed.

The urgent application, in HC289/12, was placed before my brother MUTEMA J who refused it on 13 January 2012 on the basis that he lacked jurisdiction as section 89(6) of the Labour Act [Chapter 28:01] ousted the jurisdiction of this Court, the determination of such application falling within the exclusive purview of the Labour Court as well as the fact that no urgency was demonstrated by the applicant - it having waited until the eleventh hour to bring the application.

It would appear that after failing to get relief from this Court, the applicant tried its luck at the Labour Court but it met with no joy there either as Senior President, G. Mhuri, of that Court, threw out the application on 15 February 2012 “for want of jurisdiction”.

The applicant then returned to this Court, again, on an urgent basis, seeking a stay of execution pending the determination of its review application in the Labour Court.

Significantly, the applicant filed almost the same application rejected by MUTEMA J and did not attach the review application in question.

HH16-10 : AMBASSADOR CHIMONYO vs ROUTE TOUTE BV and PENINSULAR PLANTATIONS PL and MATANUSKA PL and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and THE MINISTER OF FOREIGN AFFAIRS
Ruled By: MUSAKWA J

As regards prospects of success, the applicant's contention is that the issue hinges on a point of law. Essentially, it is contended that in view of the divergence of opinion on whether illegality constitutes a defence to a charge of spoliation, the applicant has prospects of success in seeking a rescission of the default judgment. Counsel ...

As regards prospects of success, the applicant's contention is that the issue hinges on a point of law.

Essentially, it is contended that in view of the divergence of opinion on whether illegality constitutes a defence to a charge of spoliation, the applicant has prospects of success in seeking a rescission of the default judgment. Counsel for the applicant also submitted that different judgments have emanated from this court regarding occupation of Gazetted Land. The divergence of opinion was noted by CHIDYAUSIKU CJ in the case of Nyasha Chikafu v (1) Dodhill (Private) Limited (2) Simon Donald Keevil (3) The Minister of Lands and Rural Resettlement SC28-09.

At the very least, the applicant's prospects of success are balanced because of the uncertainty that has emerged in the law.

Counsel for the first, second, third and fourth respondents also submitted that the applicant enjoys limited prospects of success in light of the judgment by PATEL J. The applicant did not oppose the particular application, and as at the date of hearing of the present application, it was submitted, on the respondents' behalf, that there was no indication that the applicant had appealed against that judgment.

The applicant has brought up a different argument on the subject of spoliation.

This is in the wake of the judgment in the case of Nyasha Chikafu v (1) Dodhill (Private) Limited (2) Simon Donald Keevil (3) The Minister of Lands and Rural Resettlement SC28-09. In that case, which was an application for leave to appeal, CHIDYAUSIKU CJ granted the application after noting that there was a divergence of decided cases on spoliation within this jurisdiction. At p7 of the cyclostyled judgment, the learned Chief Justice had this to say -

“Can unlawful occupation constitute a defence to a claim for mandament van spolie? It is quite clear that the authorities are divergent on this issue. One line of authorities, which includes judgments of the High Court of Zimbabwe, supports the contention that unlawful occupation can be a defence; while other authorities, that include High Court of Zimbabwe judgments as well, are to the effect that unlawful occupation is irrelevant. Given this situation, whichever party lost in the High Court had prospects of success as its contention is supported by a line of decided cases.”

In light of the sentiments expressed in the above cited case, it cannot be said that the applicant has no prospects of success in his intended application for rescission of the default judgment. It means that the rights of the parties to the farm in question are evenly balanced.

Accordingly, the application is granted as follows -

INTERIM RELIEF

Pending the determination of this matter, the applicant is granted the following relief:-

(a) The operation of and execution of the default order handed down by Honourable Justice Karwi in case number HC6541/09 be and is hereby stayed.

(b) The applicant shall file his application for rescission of judgment granted in case number HC6541/09 within seven days of the granting of this order.

HH89-10 : NATHAN CHILUFYA vs COMMISSIONER GENERAL OF POLICE and CO MINISTERS OF HOME AFFAIRS and OFFICER IN CHARGE ZRP CHIKURUBI DETENTION BARRACKS and CHIEF SUPT MUTODZA
Ruled By: UCHENA J

The applicant is a Detective Assistant Inspector in the Zimbabwe Republic Police. He was charged and convicted for bringing disrepute to the Zimbabwe Republic Police in contravention of section 35 of the Police Act [Chapter 11:10] (hereinafter called the Police Act).

He was sentenced to twelve days imprisonment.

The first respondent is the Commissioner General of the Zimbabwe Republic Police, who is being sued in his official capacity as the Head of the Zimbabwe Republic Police.

The second respondents are the Co-Ministers of Home Affairs, being sued in their capacity as the Ministers responsible for the Zimbabwe Republic Police.

The third respondent is the officer in charge of Chikurubi Detention Barracks, where the applicant will be lodged for twelve days if he is to serve the sentence imposed on him by the fourth respondent.

The fourth respondent is the officer who tried, convicted, and sentenced the applicant to twelve days imprisonment.

The applicant was convicted by the fourth respondent on allegations that he had sought and obtained a bribe of US$500, and stolen a plasma television from a suspect he had arrested and was about to lodge in police cells. He was charged under section 35 of the schedule to the Police Act, which provides as follows:

“Acting in an unbecoming or disorderly manner or in any manner prejudicial to good order or discipline or reasonably likely to bring discredit to the Police Force.”

He was convicted and sentenced to twelve days imprisonment.

The suspect, and another witness, gave evidence at the trial leading to the conviction of the applicant.

In this application, the applicant alleges that the fourth respondent did not warn himself about the dangers of convicting on the evidence of accomplice witnesses. He also alleged, that, the fourth respondent did not warn the accomplices before they testified.

He further alleges that he is being exposed to double jeopardy as he is also being charged for the same acts under the Magistrate's Court.

He further complains that the sentence imposed by the fourth respondent induces a sense of shock.

Counsel for the applicant submitted that section 35(1) of the Police Act [Chapter 11:10] requires the trial under the Police Act to closely comply with the procedure followed in the courts of Zimbabwe. It provides as follows:

“(1) The proceedings before or at any trial by a board of officers or an officer in terms of this Act, shall, as near as may be, be the same as those prescribed for criminal cases in the courts of Zimbabwe.”

The intention of the legislature is clear.

The tribunal or trial officer must, as nearly as is possible, comply with the rules of evidence and procedure as is done in the courts of Zimbabwe. Where the tribunal or trial officer significantly departs from the procedure set for criminal proceedings in the courts of Zimbabwe the proceedings may be set aside on review.

The test applied on reviewing proceedings is whether or not the proceedings are in accordance with real and substantial justice.

That may be satisfied if a record reveals statements made by the accused admitting having done what is alleged or other things tending to support the conviction. In other words, errors, on the part of the prosecuting authority, may, if they do not go to the root of the proceedings, affect its being held to be in accordance with real and substantial justice.

A stay of sentence must therefore only be granted if the record shows prospects of success, which can only be properly assessed from the totality of the proceedings.

In this case, the applicant has not placed the record of proceedings before the court. In fact, the applicant said nothing about it in his founding affidavit.

Counsel for the applicant tried to explain from the bar, but, an application must stand or fall on the papers filed.

The applicant's failure to place the record before this court makes it impossible for this court to assess the applicant's prospects of success on review as the standard of assessment on review must comply with the proviso to section 34(3) of the Police Act, which provides as follows:

“Provided that no conviction or sentence shall be quashed or set aside by reason of any irregularity or defect in the record or proceedings unless the Commissioner considers that a miscarriage of justice has actually occurred.”

The alleged irregularities cannot, therefore, in the absence of information from the record showing that a miscarriage of justice actually occurred, persuade the court to stay the execution of sentence. The standard of review, set by the legislature for the Commissioner, must be applicable to the review of those proceedings by this court....,.

The applicant filed this urgent application seeking an order staying his imprisonment for twelve days as ordered by the fourth respondent. He seeks the stay of his imprisonment pending the review of his case. He says he is taking the proceedings on review before the High Court and seeks the stay of the sentence pending review.

He does not state that he has already filed a review, nor does he state the review case number. There is nothing on the record to show that the application for review has been filed.

Counsel for the applicant complains that he is facing difficulties in obtaining the judgment and record of proceedings.

If that is true, he can initiate other forms of review....,.

Section 29(4) of the High Court Act [Chapter 7:06]...,, provides as follows:

“(4) Subject to rules of court, the powers conferred by subss (1) and (2) may be exercised whenever it comes to the notice of the High Court or a judge of the High Court that any criminal proceedings of any inferior court or tribunal are not in accordance with real and substantial justice, notwithstanding that such proceedings are not the subject of an application to the High Court and have not been submitted to the High Court or the judge for review.”

Section 29(4) of the High Court Act gives this court, or a judge of this court, wide review powers.

It allows a judge to call for and review any proceedings of an inferior court or tribunal it becomes aware of and forms the view that they are not in accordance with real and substantial justice. The judge is empowered to call for and review any proceedings - even those he may hear about through the press, or a letter, or any other source of complaint or information.

This procedure can however not be used to review these proceedings because the applicant claims to have filed an application for review.

His legal practitioners must be allowed to represent him and seek justice for him. The courts should not be seen to be championing the cause of a legally represented applicant. That is why trials in the Magistrate's Courts, in which the accused is represented by a legal practitioner, are not subject to an automatic review....,.

The record of proceedings has not been placed before the court. The sentence cannot be stayed without assessing the applicant's prospects of success on review.

There is no proof that the applicant is seriously pursuing a review of the proceedings: what would happen if the sentence is stayed but the application for review is not filed?

I cannot therefore grant a stay of the execution of a sentence when there is no proof that an application for the review of the proceedings has been filed.

HH214-14 : TETRAD INVESTMENT BANK LIMITED vs BINDURA UNIVERSITY OF SCIENCE EDUCATION and THE SHERIFF OF ZIMBABWE
Ruled By: TAGU J

On 17 April 2014, I received a file for an urgent chamber application for a stay of execution pending the determination of an application for rescission of judgment. The applicant sought a provisional order in the following terms: “TERMS OF FINAL ORDER SOUGHT That you show cause to the Honourable Court why a final order should not ...

“TERMS OF FINAL ORDER SOUGHT

That you show cause to the Honourable Court why a final order should not be made in the following terms -

1. That the Writ of Execution issued under case number HC2106/14 be and is hereby set aside.

2. That execution of the order granted under case number HC2106/14 be and is hereby stayed pending the determination of Applicant's motion for the setting aside of such order.

3. That the 1^st Respondent shall pay the costs of this application on the legal practitioner client scale.

INTERIM RELIEF GRANTED

Pending determination of this matter, the Applicant is granted the following relief -

1. That the Writ of Execution issued under case number HC2106/14 be and is hereby suspended.

2. That execution of the judgment granted by the Court in case number HC2106/14 be and is hereby stayed.

3. That if execution had already taken place, the Sheriff restores the property to the Applicant within twenty four (24) hours of the granting of this order.

4. That Applicant shall file its application for setting aside of the order in case number HC2106/14 within three (3) days of the granting of this order.

SERVICE OF PROVISIONAL ORDER

This provisional order shall be served on the Respondents by the Applicant's legal practitioners or by the Deputy Sheriff.”

Whereupon, after reading documents filed of record and without hearing counsels, I declined to hear the application as I felt that the matter was not urgent and I made the following order:

“IT IS ORDERED THAT:

Matter does not meet requirements of urgency as contemplated by the Rules. Stay of execution cannot be granted pending nothing.”

Upon receipt of my order, counsel for the applicant wrote to the Registrar by letter dated 22 April 2014 seeking leave to present oral arguments on the issue of urgency. The letter was couched in the following manner:-

“…,.

We note that pursuant to the urgent chamber application in this matter, His Lordship is of the view that no urgency was disclosed and that His Lordship has endorsed the papers accordingly. We advise that the Applicant seeks leave to present oral argument before His Lordship on the point as we are of the view that His Lordship may be persuaded to revisit his view on the matter. As held in the case of Church of the Province of Central Africa v Diocesan Trustees, Diocese of Harare 2010 (1) ZLR 346 (H), the endorsement that the matter is not urgent reflects the prima facie view of the court on the papers without the benefit of oral argument from the parties. Until the matter has been fully argued orally and a determination made thereafter, His Lordship is not functus officio and can hear oral argument on the issue of urgency….,.”

On 28 April 2014, both the applicant's counsel and the first respondent's counsel made submissions. The first respondent's counsel then filed his notice of opposition in which he raised some points in limine as well as a counter urgent chamber application. I directed the parties to address me not only on the issue of urgency, but also on the points in limine, on the merits, as well as on the counter urgent chamber application.

Counsel for the first respondent raised points in limine on the following -

1. Lack of urgency;

2. Non-disclosure of material facts;

3. Res judicata; and

4. Functus officio….,.

The second respondent, who is the Sheriff of Zimbabwe, did not appear, meaning that he is prepared to be bound by the outcome of this case.

HH23-15 : FARISAI NANDO and RECSKILL INVESTMENTS (PVT) LTD vs PRIME INVESTMENTS (PVT) LTD Represented by Godwills Masimirembwa and SHERIFF FOR ZIMBABWE
Ruled By: MAFUSIRE J

This was an urgent chamber application. Ex tempore, I granted the following interim relief: “Interim relief granted: Pending the determination of this matter and the matter number MC 27477/14, the Applicant is granted the following relief: (i) That the 3rd Respondent be and is hereby interdicted, upon service of this order, from removing Applicant's property from and/or ejecting ...

This was an urgent chamber application. Ex tempore, I granted the following interim relief:

“Interim relief granted:

Pending the determination of this matter and the matter number MC 27477/14, the Applicant is granted the following relief:

(i) That the 3^rd Respondent be and is hereby interdicted, upon service of this order, from removing Applicant's property from and/or ejecting Applicant and the minor children from the property known as 73 Orange Grove Drive, Highlands Harare.

(ii) That the Applicant shall file her application for rescission of judgment in HC10241/14 by not later than close of business on Monday, 12 January 2015.”

The wording of the interim relief was an amendment to the original draft order by the applicant.

Off-the-cuff, I expunged certain words from that draft and added paragraph (ii). The original draft by the applicant, with the expunged words in bold, had read as follows:

“Interim relief granted:

Pending the determination of this matter and the matter number MC27477/14, the Applicant is granted the following relief:

(i) That the 3^rd Respondent be and is hereby interdicted, upon service of this order, from removing Applicant's property from and/or ejecting Applicant and her minor children from the property known as 73 Orange Grove Drive, Highlands Harare, and if 3^rd Respondent has already ejected Applicant or removed her property, to unconditionally restore the same to Applicant and to permit her to re-enter the aforesaid property with the 1^st and 2^nd Respondents meeting the costs, if any, of returning the same to the Applicant's at the property pending the finalization of this matter and the matter number MC27477/14.”

The wording of the order that I finally granted was slightly different from what I really intended to convey.

During argument, counsel for the applicant had indicated, quite strongly, that she had already prepared an application for rescission of the order of this court in HC10241/14. She had said the only reason why she had not yet filed that application by the time of the hearing was pressure of work, all attention having been wholly focused on the urgent chamber application. So after I had decided to grant the applicant the substance of the relief that she sought, I wanted to put her on terms regarding her intended future litigation so that she would not sit on her laurels. I also wanted to ensure that the reference to “…, this matter…,” upon which the life of the provisional order was predicated, would be a reference to the intended rescission application, and that the failure to file that application within the stipulated time would lead to an automatic lapse of the provisional order. Therefore, believing that the further changes to the wording that I would have to make to the interim relief would largely be cosmetic, I gave notice to the parties, in accordance with Rule 449(2) of Order 49 of the Rules of this Court to correct or vary the provisional order in terms of Rule 449(1)(b). The Rule reads:

“449. Correction, variation and rescission of judgment and orders

(1) The court or a judge may, in addition to any other power it or he may have, mero motu or upon application of any party affected, rescind or vary any judgment or order –

(a)…,.

(b) In which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or

(c)…,.

(2) The court or judge shall not make any order correcting, rescinding or varying a judgment or order unless satisfied that all parties whose interests may be affected have had notice of the order proposed.”

The actual wording of the interim relief that I intended to grant, and which I am now hereby granting, with the new amendments in bold, underlined and in italics; and with certain tautology struck off, reads as follows:

“Interim relief granted:

Pending the determination of ~~this~~ the matter under HC10241/14 and HC10698/14 and ~~the~~ matter number MC27477/14, in the Magistrates' Court, the Applicant is hereby granted the following relief:

(i) That the 3^rd Respondent be and is hereby interdicted ~~upon service of this order~~ from removing Applicant's property ~~from~~ and/or ejecting Applicant and her three minor children, Nicole Masimirembwa (born 22 September 2003), Natalie Masimirembwa (born 30 September 2005) and Anotidaishe Masimirembwa (18 March 2008), from the property known as 73 Orange Grove Drive, Highlands Harare.

(ii) That the Applicant shall file her application for rescission of judgment in HC10241/14 and/or HC 106981/14 by not later than close of business on Monday, 12 January 2015, failing which this order shall automatically lapse.”

And now to the actual case.

HB77-16 : TRIANIC INVESTMENTS (PVT) LTD and REOUVEN DRAY vs NQOBILE KHUMALO and FRANCISCA MUFAMBI and THE SHERIFF OF ZIMBABWE, BULAWAYO
Ruled By: TAKUVA J

This is an urgent chamber application filed on 1 July 2015 and argued on 6 July 2015. The application and relief sought are clear and straight forward. However, the same cannot be said about the history of the numerous cases filed by the same parties in this court. The following exposition will show ...

This is an urgent chamber application filed on 1 July 2015 and argued on 6 July 2015.

The application and relief sought are clear and straight forward. However, the same cannot be said about the history of the numerous cases filed by the same parties in this court. The following exposition will show how thoroughly confusing the situation has become.

The applicant is the registered owner of Tengold Reef claims named Eric 21. The first and second respondents are former Directors of the first applicant who were dismissed as Directors of the company by virtue of a High Court order under HC3986/12. On 16 September 2014, the first and second respondents filed an urgent chamber application, under case number HC2167/14, seeking to interdict the applicants from interfering with Tengold Reef Mine. The respondents obtained a default interim order. Later, on 15^th January 2015, the respondents obtained a final order. The applicants then filed an application for rescission of judgment which was granted on 26 March 2015. The applicants then instructed their erstwhile legal practitioners, Cheda & Partners, to file a notice of opposition in case number HC2167/14. Apparently, no notice was filed due to problems that bedeviled that legal practice at that time. The applicants then searched for the file which could not be located timeously.

Be that as it may, the respondents set the matter down on the unopposed roll and a default judgment was granted on 24 June 2015. There was a notice of opposition filed of record as at that date. In the provisional order under case number HC2167/14, granted on 26 November 2014, the first and second respondents sought a final order in the following terms:

“(a) The respondents be and are hereby ordered not to sell the mine in question.

(b) The respondents be and are hereby interdicted from selling mining equipment situated on the mine in question or anywhere else unless in terms of the law.

It appears that without first filing and serving the applicants' practitioners with a notice of amendment, the first and second respondents unilaterally altered the terms of the final order sought by including the following clauses which are not supported by their founding affidavit:-

“(2) The respondents be and are hereby ordered not to interfere with the applicants' operations at the mine and not to interfere with equipment thereat.

(4) The respondents be and are hereby interdicted from going to the mine known as Eric 21 Trianic Investments (Pvt) Ltd, Filabusi.”

Armed with a default judgment incorporating the above clauses, the respondents obtained a writ directing the third respondent to evict the applicants from the mine on 3 July 2015. The applicants were served with the notice of eviction on 30 June 2015 and have since filed an application for rescission in this court under HC1713/15. They also filed this application on 1 July 2015 seeking the following interim relief:-

“Pending the finalization of the matter, the applicants be granted the following relief:-

1. That execution of case number HC2167/14 be and is hereby stayed pending the finalization of the application for rescission of judgment under case number HC1713/15.

2. The 3^rd respondent be and is hereby interdicted from evicting the applicants or anyone claiming possession through them from Eric 21 Mine.”

The application was vigorously opposed by the respondents.

The history I have set out earlier helps one to appreciate counsel for the first and second respondents' preliminary points.

The first point in limine raised is that the matter is not urgent at all in that the order was granted in September 2004 and the applicants waited for doomsday before acting.

He referred to the background and explained how the following cases were filed.

(a) HC141/15, an application for rescission of judgment granted on 26 March 2015.

(b) HC390/15, an urgent chamber application filed on 19 February 2015 for stay of execution. Application dismissed on 19 March 2015.

(d) HC1713/15, an application for rescission of a default judgment issued on 24 June 2015 under case number 2167/14.

When the application was filed, all these records were not attached to this record.

The court had to request the Registrar to attach them - and this took quite sometime. Upon perusing all of them, it became clear that while they explain the historical background they are of little help in deciding the question of urgency. What is critical is how the applicants treated this matter after they became aware of the default judgment granted on 24 June 2015 – See Kuvarega v Registrar General and Anor 1998 (1) ZLR 188 (H) where CHATIKOBO J…, said –

“What constitutes urgency is not an 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…,.”

In this case, the applicants became aware of the judgment on 30 June 2015 and they immediately filed an application for rescission under case number HC1713/15 and this application.

In the circumstances, it cannot be said that the applicants did not treat this matter with urgency. For these reasons, I find that the matter is urgent.

The focus should be on the default judgment and the respondents' conduct shortly after obtaining the default judgment on 24 June 2015.

The second point in limine was that there is no proper application before the court for the following reasons:

(a) The application is tainted with fraud in that Mr Chikarara's (the deponent) signature on the documents filed is different.

(b) That the deponent to the founding affidavit has no locus standi in that annexure A does not state who gave him authority to represent the first applicant.

(c) That since the main application (that is the one for rescission of judgment) is not in terms of Rule 449, the applicant cannot obtain an order in terms of Rule 449 by way of an urgent chamber application.

(d) That one cannot obtain a relief for stay of execution pending nothing....,.

The final point, that one cannot obtain a relief for stay of execution pending nothing, is without merit in that the applicants successfully made an oral application to amend his papers to include the citation of case number HC1713/15 which is the application for rescission of judgment.

Appealed
SC23-19 : SERGEANT KHAUYEZA vs THE TRIAL OFFICER and THE COMMISSIONER - GENERAL OF POLICE
Ruled By: PATEL JA, BHUNU JA and BERE JA

This is an appeal against the judgement of the High Court in Case No. HC5569/17 in which the High Court dismissed an urgent chamber application seeking the stay of the appellant's detention, which was ordered by the Commissioner-General of Police (the second respondent), pending the finalisation of an application for review by the High Court of the proceedings before the single trial officer (the first respondent).

The High Court dismissed the urgent chamber application on the basis that the appellant had already appealed against the decision of the single trial officer to the Commissioner General of Police and could not therefore seek a review of the decision of the trial officer. The High Court also found that the appellant could not seek the stay of the detention order imposed by the Commissioner-General as he had not questioned the decision of the Commissioner General.

At the hearing of the appeal, the Court took the position that the present appeal should be confined to the specific facts pertaining to the appellant himself and the determination of the court a quo in that regard. The other questions raised on appeal were purely academic, relating as they did to other cases before the High Court and were therefore not properly before this Court.

As agreed with counsel, the issues to be determined herein were as follows:

(i) Whether the appellant was entitled to approach the High Court on review of the trial officer's decision after the dismissal of his appeal by the Commissioner-General.

(ii) Whether the appellant was entitled to approach the High Court to stay the order of detention imposed by the Commissioner General without having appealed his decision, pending the review of the trial officer's decision by the High Court.

During the course of submissions by counsel, it became apparent that the review proceedings in Case No. HC5385/17 were not actually pending at the time that the urgent chamber application was heard and determined by the court a quo. It was common cause that the decision of the trial officer was made on 29 March 2017. However, the application for review of that decision was only filed on 15 June 2017, well beyond the eight weeks prescribed by the High Court Rules.

Counsel for the appellant claimed that he had filed an application for condonation for the late noting of the application for review on 23 June 2017 and that the former application was still pending. He later contradicted himself by stating that the application for review had been amended by consent and therefore did not require any condonation. All of these claims were categorically refuted by counsel for the respondents. To further compound the matter, none of the documents relied upon by counsel for the appellant to support his contentions formed part of the record before us.

Counsel for the appellant eventually sought an order striking the matter off the roll with a tender of wasted costs. Counsel for the respondents, on the other hand, sought the dismissal of the matter with costs.

In our view, there was no review properly pending before the High Court at the time that the urgent chamber application was heard and determined by the court a quo. Therefore, the entire proceedings before the court a quo were premised on an erroneous factual background. Consequently, and by the same token, the present appeal was also predicated on the same erroneous set of facts. In the result, we are of the unanimous view that the appeal, having been lodged on an improper footing, should be dismissed rather than being struck off the roll.

It is accordingly ordered that the appeal be and is hereby dismissed with costs.

HMA17-17 : MAIN ROAD MOTORS (Case 1) and SYLVIA CHORUWA (Case 2) vs COMMISSIONER – GENERAL, ZIMRA
Ruled By: MAFUSIRE J

The respondent's fourth and last point in limine was that the matter was not urgent.By July 2016, when it published the public notice aforesaid, the applicants had become aware of the respondent's intention to seize the vehicles if they did not regularise their importation of them by 30 September 2016. ...

The respondent's fourth and last point in limine was that the matter was not urgent.

By July 2016, when it published the public notice aforesaid, the applicants had become aware of the respondent's intention to seize the vehicles if they did not regularise their importation of them by 30 September 2016. The last paragraph of that public notice read:

“Please utilise this opportunity to get the clearance for your motor vehicle[s] regularised urgently, before 30 September 2016. If you fall into the category of importers of motor vehicles which were imported within the period in which ZIMRA wants to check, as mentioned above, and you fail to comply within the period provided for in this notice, you risk having your motor vehicle seized wherever it is found.”

The respondent went on to engage the applicants personally, in correspondence dated 28 and 29 November 2016; 11 and 19 January 2017. In all of them, the respondent had been unequivocal about the Zimbabwe Revenue Authority's powers to carry out post-clearance audits and its threat to seize the vehicles unless the outstanding duties were paid. In addition, in Case 1, one of the officers had actually held a meeting with Patrick Muguti, on 14 September 2016, during which, among other things, the import of section 223A of the Customs and Excise Act [Chapter 23:02] was fully explained. It was at that meeting that Patrick Muguti revealed that the vehicle had already been sold to a third party.

The respondent argued that for the applicants to have waited until 1 February 2017 to launch their urgent chamber applications did not show that they had treated their matters with the urgency that they claimed they deserved.

The applicants maintained that their matters were urgent.

They argued that the respondent's last correspondence was only dated 19 January 2017, i.e. some twelve days before they filed the applications. Such a delay was not inordinate.

On 23 January 2017, the applicants had given due notice of their intention to sue for the review of the respondent's decision on post-clearance audits. Section 196 of the Customs and Excise Act [Chapter 23:02], among other things, requires that sixty days' notice for any civil proceedings against the State or the Commissioner or any officer for anything done, or omitted to be done, be given before action is taken. Section 119 of the Customs and Excise Act [Chapter 23:02] provides that one may appeal to this court against any determination of the Commissioner after payment of any duty or tax demanded by the Commissioner….,.

Furthermore, and at any rate, in substance, the applications were not urgent in the sense that the applicants themselves had not treated them as such. As early as July 2016, the respondents had evinced unequivocally his desire to seize and embargo the vehicles if the top-up duties remained unpaid. In all correspondence and engagements with the applicants, the respondent had been steadfast in wanting the outstanding duties paid or else he would cause the vehicles to be impounded. Therefore, the clock did not start to tick for the applicants only from 19 January 2017 when the respondent addressed the last correspondence to them. It had always been ticking since July 2016. There was no reason why the notice to sue that the applicants, eventually dispatched on 23 January 2017, was not dispatched any time from July 2016.

In Kuvarega v Registrar-General & Anor 1998 [1] ZLR 188 [H], CHATIKOBO J said…,:

“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.”

“…,. [T]he need to act…,” timeously, is not just to take any type of action. The action must be one that is effectual in protecting one's rights or averting impending peril….,.

Recently, in the case of Cawood v Madzingira & Anor HMA12-17 I said:

“Justice delivery requires that in every case the real or main dispute between the parties be determined finally. It is like surgery. The main dispute is the cyst or boil or ulcer that is threatening the social harmony that must exist between people. That ulcer must be opened up and treated….,. Until the ulcer is removed, the pain may remain….,.

It often happens that pending the determination of the main dispute, i.e. the treatment of the ulcer by surgery, other side issues or disputes may develop. But these are mere symptoms of the main problem. They may not require elaborate surgery. A simple prescription may be all that is necessary to provide interim relief. That simple pain killer is the provisional order that may be granted in an urgent chamber application. But it is granted on the understanding that the main surgery to deal with the real problem is awaiting determination.”

So, in these two cases, quite apart from the fact that in substance the urgency was manifestly self-created, there was also the additional problem that nowhere was, or is, the resolution of the main dispute between the Zimbabwe Revenue Authority and the applicants pending.

It was for the above reasons that I removed the matters from the roll for urgent matters.

HMA12-17 : BRIAN ANDREW CAWOOD vs ELASTO MADZINGIRA and THE MESSENGER OF COURT – MWENEZI N.O.
Ruled By: MAFUSIRE J

The one major weakness with the applicant's application was that the determination of that main dispute was pending nowhere….,.That means the urgent chamber application hung on nothing.

HH72-13 : FIDELIS MHASHU vs WELLINGTON ASANI and ALFRED MAMVURA and THE DEPUTY SHERIFF
Ruled By: MATHONSI J

In addition…, although the applicant's property was placed under attachment on 26 February 2013 and he was given notice that it would be removed for sale in execution on 5 March 2013, not only did he file this application on the very last day, 4 March 2013, he also has ...

HH57-15 : MACRO PLUMBERS (PVT) LTD vs SHERIFF OF ZIMBABWE N.O. and OWEN CHIGOYA
Ruled By: MATHONSI J

Even if the merits of that application had been considered, there is no way execution would have been stayed to enable the applicant to make an application for condonation for the late noting of an appeal against an arbitral award issued on 15 August 2011.Condonation was being sought at the ...

HH327-14 : TM SUPERMARKET (PVT) LTD vs AVONDALE HOLDINGS (PVT) LTD and THE SHERIFF OF ZIMBABWE
Ruled By: CHATUKUTA J

On 6 May 2014, this court granted a default judgment against the applicant in case No. HC1747/14 for its ejectment from Lot 3 of Lot 22 of Lot 1 Block C of Avondale (the premises). This is an application for stay of execution of the judgment pending the determination of ...

HH258-15 : TETRAD HOLDINGS LIMITED and OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY and THE SHERIFF FOR ZIMBABWE N.O.
Ruled By: MAFUSIRE J

This was an urgent chamber application for a stay of execution.

It was filed on 6 March 2015. It was brought to my chambers at 17:15 hours three days later, i.e. on 9 March 2015. There were eleven applicants. Their case was that on 6 March 2015, i.e. the date the application was filed, the Sheriff, the second respondent herein, was scheduled to sell a number of properties belonging to applicants two to eleven.

The basis for seeking a stay was that the first respondent, National Social Security Authority (hereafter referred to as “NSSA”), had a judgment against the first applicant, Tetrad Holdings Limited (hereafter referred to as “Tetrad Holdings” or simply “Holdings”). It was said that that judgment had been obtained in error. NSSA's debt was said to be with Tetrad Investment Bank Limited (hereafter referred to as “Tetrad Bank” or simply “the Bank”) and not with Tetrad Holdings.

Apparently, Tetrad Investment Bank Limited was a subsidiary of Tetrad Holdings Limited.

However, in the founding papers, it was stressed that Tetrad Investment Bank Limited and Tetrad Holdings Limited were two distinct and separate entities. As such, it was said that an application for the rescission of the National Social Security Authority's (NSSA) judgment against Tetrad Holdings Limited had already been filed with this court. Thus, it was argued, if the Sheriff's sale went ahead there would be prejudice, not only to the shareholders of the applicants but also to the creditors.

After reading the papers, I agonised over whether or not to set down the matter for hearing.

The application was extremely economic with information. For example, other than describing all the applicants as companies incorporated according to the laws of Zimbabwe, and mentioning that the National Social Security Authority (NSSA) had a judgment against Tetrad Holdings Limited, which judgment was what the Sheriff was executing, the founding papers said nothing about the nature of the relationship between NSSA, as the judgment creditor, and the rest of the applicants. But, the main matter in which the writ of execution had been issued being a debt collection claim, I guessed that respondents two to eleven must have been guarantors or sureties of some sort. As it turned out, indeed they were.

But, that was not all.

The certificate of urgency, signed on 6 March 2015, said the matter was urgent because the sale was scheduled to take place that day; that Tetrad Holdings Limited was not, and had never been, the National Social Security Authority's (NSSA) debtor, but that it was Tetrad Investment Bank Limited that was; that for that reason the application for rescission of judgment had excellent prospects of success, and that, if the matter was not heard on an urgent basis, there was a risk of irreparable prejudice to the applicants' shareholders and creditors.

Only one date was mentioned, namely 6 March 2015 - the date of the sale.

Nothing was said about when the National Social Security Authority (NSSA) had obtained the judgment. It was not mentioned when the applicants had become aware of that judgment. No information was given as to what action, if any, the applicants had taken upon getting to know about that judgment. Neither the date of NSSA's writ nor that of the Sheriff's attachment was given. The property that the Sheriff had attached and was selling was not disclosed. Finally, it was not said when the application for rescission of judgment had been filed.

I turned to the founding affidavit and the rest of the papers. They were essentially an extension of the certificate of urgency.

Only two other dates were mentioned, namely, 8 August 2014 and 16 February 2015. It was said 8 August 2014 was when Tetrad Investment Bank Limited had held a Scheme Meeting with its creditors which the National Social Security Authority (NSSA) had attended, which, allegedly signified NSSA's acceptance that its debt was with the Tetrad Investment Bank Limited not Tetrad Holdings Limited. It was said 16 February 2015 was when the Sheriff had served the notice of sale on Tetrad Investment Bank Limited.

That was about all that the founding affidavit ever disclosed by way of additional information. The rest were basically legal arguments on why the sale had to be stopped....,.

The case number for that rescission application was just left blank!...,.

On urgency, it was said the National Social Security Authority's (NSSA) judgment had been given on 28 March 2014. That was almost a year ago. NSSA's writ had been served on 15 August 2014 but the applicants had turned the Sheriff away on the basis that execution had been suspended pending an order for leave to convene a Scheme Meeting in terms of the Companies Act [Chapter 24:03]. On 20 August 2014 and 10 October 2014 NSSA had sent the Sheriff back to the applicants with the writ. Movable properties for applicants two to eleven had then been attached.

Thus, the National Social Security Authority (NSSA) argued, the applicants had been aware of the attachment as far back as August 2014 but had chosen to do nothing until the day of the sale - almost seven months later.

On 16 February 2015, the applicants had been served with the Notice of Sale - again they had chosen to do nothing.

Only on 27 February 2015 did they file an ordinary court application for the condonation of the late filing of the application for rescission of judgment. However, they had withdrawn that application on 5 March 2015.

They had then proceeded to file the urgent chamber application on the next day, 6 March 2015.

HB88-16 : SOLOMON MHENYU vs RUTH MLAUDZI
Ruled By: MATHONSI J

The applicant was ordered by the Magistrates Court sitting at Beitbridge to pay the respondent a sum of $9,800= by a judgment delivered on 28 January 2013.He lodged an appeal to this court on 1 February 2013.By letter dated 13 November 2015, which he says was received by his legal ...

HB190-11 : KALAYI NJINI vs BERTHILDE JULIET NJINI and SOLWAYO NGWENYA and BULAWAYO CITY COUNCIL
Ruled By: CHEDA J

This is an urgent application seeking to suspend the construction and development of a maternity and gynaecological clinic or medical suite at Stand Number 18 Hillside, Bulawayo.

The facts of the matter are that the applicants are an elderly couple residing at 54 Cecil Avenue, Hillside, Bulawayo. The first respondent is a consultant Obstetrician and Gynaecologist. The second respondent is the local authority in charge of administering the affairs of the City of Bulawayo.

The applicants and respondents are adjacent neighbours and are separated by a durawall. Sometime in May 2011, the first respondent notified the applicants of his intention to construct and develop a clinic. This was after the second respondent advised him to notify his immediate neighbours as per its requirements where one intends to put up a structure or embark on a development which may adversely affect his neighbours. The applicants lodged an objection to the said intended development. Their objection was considered by the second respondent, which however, overruled them and proceeded to grant the applicant permission to construct and develop a clinic.

The applicants were not happy with the second respondent's decision and filed an Application for Review of the second respondent's decision under case number HCR132/11. This application is still pending. In order to stop the further development, the applicants filed this urgent chamber application. It is their argument that the construction of this clinic next to their property will:

(1) Affect the peace and quiet atmosphere of the suburb;

(2) Introduce communicable diseases; and

(3) Encourage undesirable elements of society such as thieves and some such other unlawful activities.

Both respondents opposed this urgent application. Counsel for both respondents raised two points in limine…,:

(1)...,.

(2) The second point raised is the validity of the Application for Review. The respondents have argued that the application was filed out of time.

Review applications are governed by Order 33 Rule 259 of the High Court Rules, which reads:

“ORDER 33 Reviews

259 Time within which proceedings to be instituted

Any proceedings by way of review shall be instituted within eight weeks of the termination of the suit, action or proceedings in which the irregularity or illegality complained of is alleged to have occurred:

Provided that the court may, for good cause shown, extend the time.”

The eight weeks expired on the 30 September 2011, and the Application for Review was filed on the 15th November 2011. It was therefore way out of time. The proviso in Rule 259 allows the applicant to apply for the extention of time on good cause shown.

On the 18th November 2011, the respondent's legal practitioners wrote a letter to the applicants wherein they advised them of the defect of their Application for Review. They advised them that the said application was filed out of time and that they should, therefore, have first applied for condonation of the late filing of the said Review Application. They went further and courteously advised then to withdraw the said Review Application. In the same letter, they asked them to do so by the 22nd November 2011 failing which they would file their opposing papers and ask for costs de bonis propriis.

Needless to say that the applicants' legal practitioners did not heed this advice.

The correct legal position is that for a court to hear the Application for Review where it has been filed out of time, an Application for Condonation must not only be filed, but must be filed, determined and granted first.

There is a plethora of authorities emphasising this time-honoured principle in our law. In Mlondiwa v Regional Director of Education, Midlands Province N.O. and Minister of Education HB19-94, MANYARARA AJ held that where an Application for Review filed in terms of Rule 259 is to be heard, an application for condonation must be filed and granted first. Such an application precedes the main application. The non-compliance of the Rules must be condoned by the court or Judge first.

This is the law.

The Supreme court has emphasised that principle in Matsambire v Gweru City Council SC183-95 and Forestry Commission v Jedias Moyo 1997 (1) ZLR 254 (S) amongst other cases.

In casu, the applicants did not comply with Rule 259, in particular, the proviso therein. The current application is predicated on the Application for Review. The said application, however, has fallen foul of the requirements of such application. The non-compliance is no doubt fatal and cannot, therefore, be revived as it is, in my view, stillborn. In other words, there is no Application for Review to talk about.

The position in this matter, therefore, is that the urgent chamber application before me is a nullity as there is no base for it to stand on in view of the non-compliance with the Rules regarding the application for an extension of time. This renders this application fatally defective and invalid.

Such a defect is incurable, as stated by LORD DENNING, that eminent jurist and the doyen of English Law, in McFoy v United Africa Company Ltd 1961 3 ALL ER 1169…, where he stated;

“Every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

See also Hattingh v Pienaar 1977 (2) SA 182 (0) and Jensen v Avacalos 1993 ZLR 216.

There has been an attempt to cure this defect by an application for condonation filed on the 24th November 2011. This defect cannot be cured by a mere application of this nature, as the application should not only be filed, but, should be filed and granted first thereby authorising the applicant to apply for review of the proceedings complained of….,.

The application, therefore, cannot pass the first hurdle of the points in limine raised in this application. Accordingly, the following order is made:

(1) The application be and is hereby dismissed.

HB14-16 : DHERERAI MANYONI vs COMMISSIONER GENERAL OF POLICE and ASSISTANT COMMISSIONER GORA
Ruled By: MAKONESE J

On 10 November 2015, the applicant filed an Urgent Application seeking the following relief:“INTERIM RELIEF SOUGHTThe respondents be and are hereby interdicted from forcibly taking the applicant to go and serve at Fairbridge detention barracks before the finalization of Constitutional Court Application under case number CCZ90/15.”After hearing the parties, I ...

On 10 November 2015, the applicant filed an Urgent Application seeking the following relief:

“INTERIM RELIEF SOUGHT

The respondents be and are hereby interdicted from forcibly taking the applicant to go and serve at Fairbridge detention barracks before the finalization of Constitutional Court Application under case number CCZ90/15.”

After hearing the parties, I dismissed the matter and indicated that my full reasons would follow. I indicated that the matter was not urgent for reasons that will become apparent in this judgment.

The applicant is a regular member of the Zimbabwe Republic Police stationed at Stops/Rose Camp, Bulawayo. He holds the rank of Seargent. In February 2012, the applicant appeared before a single officer charged with two Counts of contravening paragraph 35 of the Schedule to the Police Act [Chapter 11:10] as read with section 29 and 34 of the said Act. It was alleged that the applicant acted in an unbecoming or disorderly manner or in any manner prejudicial to good order or discipline or reasonably likely to bring discredit to the Police Force. In the first Count, it was alleged that the applicant sold “infringed” disks to members of the public. In the second Count, the applicant was arrested for driving without a valid driver's licence on 12 December 2011. The applicant conducted his own defence, pleaded not guilty to both Counts, but, at the end of the trial, he was convicted and sentenced to five days imprisonment on each Count at Fairbridge Detention Barracks. The applicant lodged an appeal against conviction and sentence with the Commissioner General of Police on 29 February 2012. The appeal was dismissed on 20 June 2012. The applicant was advised that he was to serve his sentence without delay. The applicant employed various tactics to avoid serving the sentence which clearly amount to flagrant abuse of court process.

In his urgent application, the applicant contended that for the past few years he had not laid his hands on the judgment by the Commissioner General. The applicant raised spurious allegations against the second respondent whom he accused of holding personal grudges against him. The applicant further argued that he was being frustrated by the first respondent who was blocking his request for study leave. The applicant claimed to have filed a Constitutional challenge with the Constitutional Court.

The applicant failed to prove that he had filed such an application. At the time of the hearing of the application, the respondents had not been served with any court papers from the Constitutional Court.

HH133-12 : MONICA CHIKOORE vs J P KADZIYA and DISTRICT ADMINISTRATOR, KADOMA DISTRICT and MINISTRY OF LOCAL GOVERNMENT
Ruled By: MATHONSI J

This is an urgent application in which the applicant seeks the following relief:“1. Terms of the Final Order SoughtThat you should show cause to this Honourable Court why an order should not be made in the following terms:(a) That the proposed meeting of 10 March be and is hereby set ...

This is an urgent application in which the applicant seeks the following relief:

“1. Terms of the Final Order Sought

That you should show cause to this Honourable Court why an order should not be made in the following terms:

(a) That the proposed meeting of 10 March be and is hereby set aside.

(b) Cost of this (sic) to be borne by the first respondent.

2. Interim Relief Granted

Pending finalisation of this matter, the applicant is granted the following relief:

(a) The respondents are hereby ordered and directed to suspend the meeting to be held on 10 March 2012 pending the outcome of the Anti-Corruption report.”

The applicant has stated, in her founding affidavit, that, she hails from a sub-house of the Benhura chieftainship known as the Wakapiwa clan. A process to select a substantive chief has commenced and a meeting to select the chief was set for 10 March 2012 at Manewe Business Centre in Kadoma. She stated, further, that, in that process there is some indication that her own sub house is being excluded from coming up with a possible candidate for the chieftainship because the District Administrator would like to impose a candidate favourable to him.

The applicant submits that her own sub-house and the Chitinhe sub house, although belonging to the Benhura chieftainship, have been excluded in the past and have not been given an opportunity to also rule in the rotational succession to the chieftainship. She bemoans the fact that documents proving that they have a right to participate in the chieftainship were tampered with at the office of the District Administrator resulting in her and other members of her family reporting the matter to the Anti-Corruption Commission which is now seized with the matter and is investigating it.

No documentation has been produced as proof that the Anti-Corruption Commission is investigating the matter, when such investigations commenced, and when they will end.

Indeed, no affidavit has been elicited from that Commission to bolster the applicant's case.

More importantly, it has not been shown what difference the Commission's investigations will make to the selection process.

The interdict which the applicant is seeking appears perpetual. She wants to stop a selection process pending nothing at all and for an indefinite period. This is inappropriate.

This application was filed on 9 March 2012 when the selection meeting had been pencilled for 10 March 2012. No explanation has been proffered as to why the applicant had to wait until the day of reckoning to make the application.

This matter therefore does not pass the test of urgency provided by the Rules of Court. It is urgency which stems from a deliberate and careless abstention from action until the deadline draws near and is not the urgency contemplated by the Rules: Kuvarega v Registrar General & Anor 1998 (1) ZLR 188…,.

In any event, the applicant has stated, now, that the meeting did not occur.

Even if the applicant had satisfied the requirements for urgency, she would still not succeed because the application is without merit.

There is no basis for stopping the selection process at all. If anything, the applicant should be asking for inclusion in the selection process so that she and her sub-house can justify their claim to the chieftainship. It is only when the selection process has come up with a flawed outcome that she can have a basis for challenging it.

To seek to stop the process in its tracks because a case of tampering with records at the District Administrator's office has been referred to the Anti-Corruption Commission is unsustainable.

Accordingly, the application is dismissed with costs.

HH974-15 : GUGULETHU HURASHA vs CENTRAL AFRICAN BUILDING SOCIETY and FIRST CAPITAL PLUS and ITAYI MUNYEZA and SHERIFF OF ZIMBABWE and MASTER OF THE HIGH COURT
Ruled By: NDEWERE J

The applicant and the third respondent divorced on 16 January 2014 in Case No. HC7328/13.

In terms of a consent paper concluded on 14 November 2013, which became part of the divorce order of 16 January 2014, the applicant and the third respondent agreed to give their matrimonial home, Stand No.17074 Giraffe Crescent, Borrowdale West, Harare to their two minor children in equal shares.

Paragraph E.5 of the Consent Paper stated as follows:

“E. Division of Matrimonial Property

5. Stand No.17074 Giraffe Crescent, Borrowdale West, Harare shall be awarded to the two minor children in equal shares. The property shall be transferred and registered in the said minor children's names within one year of the order. The parties shall sign all relevant papers to effect transfer to the minor children, failing which, the Sheriff Harare shall sign all such papers as if it were the plaintiff and defendant. The plaintiff shall pay the cost of the transfer. In addition, the defendant shall exercise the rights (usufruct) of use and occupation until she dies or remarries whichever occurs sooner.”

Stand No.17074 Giraffe Crescent was not transferred and registered in the children's names within one year, contrary to what was ordered by the court.

The court was not told of any steps which were taken by the applicant and the third respondent towards complying with the Divorce Order.

It also appears, that, the Sheriff, who was supposed to sign all the papers, for purposes of transfer and registration, if the applicant and the third respondent failed to do so, was never approached.

The property thus remained in the third respondent's name, in contravention of the divorce order.

It is common cause, that, in August, 2015, the above property was attached by the first respondent in order to satisfy a debt by the second respondent where the third respondent had signed as surety.

The applicant says she became aware of the attachment on 21 August 2015. On 2 September 2015 the applicant filed an urgent chamber application for stay of execution of the writ of attachment.

There was a delay of more than 10 days from the date of the attachment to the date of filing of the urgent application. That delay is not explained, contrary to case authorities which indicate that any delay in approaching the court urgently should be explained since an applicant in an urgent application should herself treat the matter urgently.

The first respondent opposed the urgent application....,.

I will..., proceed to consider the merits of the application.

The court order of 16 January 2014 said Stand 17074 Giraffe Crescent was to be transferred and registered in the minor children's names within one year of the divorce order….,.

This time limit was put to protect the interests of the minor children by ensuring a speedy transfer and registration into their names.

This was not done, and, as stated previously, no explanation is given as to why that was not done.

There is just a bald statement by the applicant, which was not supported by a supporting affidavit from the third respondent, that the third respondent did not have the money to process the transfer.

The attachment was done more than one and a half years after the divorce order.

Why then should the first respondent be prejudiced when it is the applicant and the third respondent who failed to protect their minor children's rights by complying with the terms of the divorce order to transfer and register the house into the children's names within a year of the divorce order?

The adage “the law helps the vigilant and not the sluggard” enunciated in Ndebele v Ncube 1992 (1) ZLR 288…, is applicable in this instance.

The applicant and the third respondent were not vigilant in safeguarding the minor children's interests.

Secondly, as indicated by the first respondent, the applicant was aware of the debt and the search for assets as far back as December 2014, yet, she still did not make effort to ensure registration of the house into the children's names.

What further compounds the matter for the applicant is that the relief she is seeking sounds permanent in nature.

It is not a stay pending some other application or action to be taken but a permanent stay of execution.

Her affidavit, in paragraph 18.3, also suggests that the second and third respondents have no financial means to clear the debt.

All these factors militate against the granting of the application.

Granting the application will mean that the first respondent cannot recover his debt from the second and the third respondent forever, when he has a court order entitling him to do so, and this court has no power to stop a creditor with a valid court order from recovering his debt.

In any event, the property is also mortgaged to another creditor so the rights of the children remain exposed even if the application were to be granted.

As correctly conceded by the applicant, in paragraph 19.1 of her founding affidavit, the attachment cannot be faulted since the property still belongs to the third respondent.

While the court sympathises with the minor children in this case, the court has no legal basis to stay execution of the attached property.

The application is therefore dismissed with costs.

Back Main menu

Law Portal
Zimbabwe

Interim Interdict Pendente Lite and Stay of Execution re: Interim Interdict Pending Nothing

HH99-12 : SHUNGU ENGINEERING (PVT) LTD vs SIMBARASHE SANGONDIMAMBO & ORS
Ruled By: MATHONSI J

HH16-10 : AMBASSADOR CHIMONYO vs ROUTE TOUTE BV and PENINSULAR PLANTATIONS PL and MATANUSKA PL and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and THE MINISTER OF FOREIGN AFFAIRS
Ruled By: MUSAKWA J

HH89-10 : NATHAN CHILUFYA vs COMMISSIONER GENERAL OF POLICE and CO MINISTERS OF HOME AFFAIRS and OFFICER IN CHARGE ZRP CHIKURUBI DETENTION BARRACKS and CHIEF SUPT MUTODZA
Ruled By: UCHENA J

HH214-14 : TETRAD INVESTMENT BANK LIMITED vs BINDURA UNIVERSITY OF SCIENCE EDUCATION and THE SHERIFF OF ZIMBABWE
Ruled By: TAGU J

HH23-15 : FARISAI NANDO and RECSKILL INVESTMENTS (PVT) LTD vs PRIME INVESTMENTS (PVT) LTD Represented by Godwills Masimirembwa and SHERIFF FOR ZIMBABWE
Ruled By: MAFUSIRE J

HB77-16 : TRIANIC INVESTMENTS (PVT) LTD and REOUVEN DRAY vs NQOBILE KHUMALO and FRANCISCA MUFAMBI and THE SHERIFF OF ZIMBABWE, BULAWAYO
Ruled By: TAKUVA J

Appealed
SC23-19 : SERGEANT KHAUYEZA vs THE TRIAL OFFICER and THE COMMISSIONER - GENERAL OF POLICE
Ruled By: PATEL JA, BHUNU JA and BERE JA

HMA17-17 : MAIN ROAD MOTORS (Case 1) and SYLVIA CHORUWA (Case 2) vs COMMISSIONER – GENERAL, ZIMRA
Ruled By: MAFUSIRE J

HMA12-17 : BRIAN ANDREW CAWOOD vs ELASTO MADZINGIRA and THE MESSENGER OF COURT – MWENEZI N.O.
Ruled By: MAFUSIRE J

HH72-13 : FIDELIS MHASHU vs WELLINGTON ASANI and ALFRED MAMVURA and THE DEPUTY SHERIFF
Ruled By: MATHONSI J

HH57-15 : MACRO PLUMBERS (PVT) LTD vs SHERIFF OF ZIMBABWE N.O. and OWEN CHIGOYA
Ruled By: MATHONSI J

HH327-14 : TM SUPERMARKET (PVT) LTD vs AVONDALE HOLDINGS (PVT) LTD and THE SHERIFF OF ZIMBABWE
Ruled By: CHATUKUTA J

HH258-15 : TETRAD HOLDINGS LIMITED and OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY and THE SHERIFF FOR ZIMBABWE N.O.
Ruled By: MAFUSIRE J

HB88-16 : SOLOMON MHENYU vs RUTH MLAUDZI
Ruled By: MATHONSI J

HB190-11 : KALAYI NJINI vs BERTHILDE JULIET NJINI and SOLWAYO NGWENYA and BULAWAYO CITY COUNCIL
Ruled By: CHEDA J

HB14-16 : DHERERAI MANYONI vs COMMISSIONER GENERAL OF POLICE and ASSISTANT COMMISSIONER GORA
Ruled By: MAKONESE J

HH133-12 : MONICA CHIKOORE vs J P KADZIYA and DISTRICT ADMINISTRATOR, KADOMA DISTRICT and MINISTRY OF LOCAL GOVERNMENT
Ruled By: MATHONSI J

HH974-15 : GUGULETHU HURASHA vs CENTRAL AFRICAN BUILDING SOCIETY and FIRST CAPITAL PLUS and ITAYI MUNYEZA and SHERIFF OF ZIMBABWE and MASTER OF THE HIGH COURT
Ruled By: NDEWERE J

Categories

Law Portal Zimbabwe

Interim Interdict Pendente Lite and Stay of Execution re: Interim Interdict Pending Nothing

HH99-12 : SHUNGU ENGINEERING (PVT) LTD vs SIMBARASHE SANGONDIMAMBO & ORS Ruled By: MATHONSI J

HH16-10 : AMBASSADOR CHIMONYO vs ROUTE TOUTE BV and PENINSULAR PLANTATIONS PL and MATANUSKA PL and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and THE MINISTER OF FOREIGN AFFAIRS Ruled By: MUSAKWA J

HH89-10 : NATHAN CHILUFYA vs COMMISSIONER GENERAL OF POLICE and CO MINISTERS OF HOME AFFAIRS and OFFICER IN CHARGE ZRP CHIKURUBI DETENTION BARRACKS and CHIEF SUPT MUTODZA Ruled By: UCHENA J

HH214-14 : TETRAD INVESTMENT BANK LIMITED vs BINDURA UNIVERSITY OF SCIENCE EDUCATION and THE SHERIFF OF ZIMBABWE Ruled By: TAGU J

HH23-15 : FARISAI NANDO and RECSKILL INVESTMENTS (PVT) LTD vs PRIME INVESTMENTS (PVT) LTD Represented by Godwills Masimirembwa and SHERIFF FOR ZIMBABWE Ruled By: MAFUSIRE J

HB77-16 : TRIANIC INVESTMENTS (PVT) LTD and REOUVEN DRAY vs NQOBILE KHUMALO and FRANCISCA MUFAMBI and THE SHERIFF OF ZIMBABWE, BULAWAYO Ruled By: TAKUVA J

Appealed SC23-19 : SERGEANT KHAUYEZA vs THE TRIAL OFFICER and THE COMMISSIONER - GENERAL OF POLICE Ruled By: PATEL JA, BHUNU JA and BERE JA

HMA17-17 : MAIN ROAD MOTORS (Case 1) and SYLVIA CHORUWA (Case 2) vs COMMISSIONER – GENERAL, ZIMRA Ruled By: MAFUSIRE J

HMA12-17 : BRIAN ANDREW CAWOOD vs ELASTO MADZINGIRA and THE MESSENGER OF COURT – MWENEZI N.O. Ruled By: MAFUSIRE J

HH72-13 : FIDELIS MHASHU vs WELLINGTON ASANI and ALFRED MAMVURA and THE DEPUTY SHERIFF Ruled By: MATHONSI J

HH57-15 : MACRO PLUMBERS (PVT) LTD vs SHERIFF OF ZIMBABWE N.O. and OWEN CHIGOYA Ruled By: MATHONSI J

HH327-14 : TM SUPERMARKET (PVT) LTD vs AVONDALE HOLDINGS (PVT) LTD and THE SHERIFF OF ZIMBABWE Ruled By: CHATUKUTA J

HH258-15 : TETRAD HOLDINGS LIMITED and OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY and THE SHERIFF FOR ZIMBABWE N.O. Ruled By: MAFUSIRE J

HB88-16 : SOLOMON MHENYU vs RUTH MLAUDZI Ruled By: MATHONSI J

HB190-11 : KALAYI NJINI vs BERTHILDE JULIET NJINI and SOLWAYO NGWENYA and BULAWAYO CITY COUNCIL Ruled By: CHEDA J

HB14-16 : DHERERAI MANYONI vs COMMISSIONER GENERAL OF POLICE and ASSISTANT COMMISSIONER GORA Ruled By: MAKONESE J

HH133-12 : MONICA CHIKOORE vs J P KADZIYA and DISTRICT ADMINISTRATOR, KADOMA DISTRICT and MINISTRY OF LOCAL GOVERNMENT Ruled By: MATHONSI J

HH974-15 : GUGULETHU HURASHA vs CENTRAL AFRICAN BUILDING SOCIETY and FIRST CAPITAL PLUS and ITAYI MUNYEZA and SHERIFF OF ZIMBABWE and MASTER OF THE HIGH COURT Ruled By: NDEWERE J

Categories

Your Donation.

Law Portal
Zimbabwe

HH99-12 : SHUNGU ENGINEERING (PVT) LTD vs SIMBARASHE SANGONDIMAMBO & ORS
Ruled By: MATHONSI J

HH16-10 : AMBASSADOR CHIMONYO vs ROUTE TOUTE BV and PENINSULAR PLANTATIONS PL and MATANUSKA PL and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and THE MINISTER OF FOREIGN AFFAIRS
Ruled By: MUSAKWA J

HH89-10 : NATHAN CHILUFYA vs COMMISSIONER GENERAL OF POLICE and CO MINISTERS OF HOME AFFAIRS and OFFICER IN CHARGE ZRP CHIKURUBI DETENTION BARRACKS and CHIEF SUPT MUTODZA
Ruled By: UCHENA J

HH214-14 : TETRAD INVESTMENT BANK LIMITED vs BINDURA UNIVERSITY OF SCIENCE EDUCATION and THE SHERIFF OF ZIMBABWE
Ruled By: TAGU J

HH23-15 : FARISAI NANDO and RECSKILL INVESTMENTS (PVT) LTD vs PRIME INVESTMENTS (PVT) LTD Represented by Godwills Masimirembwa and SHERIFF FOR ZIMBABWE
Ruled By: MAFUSIRE J

HB77-16 : TRIANIC INVESTMENTS (PVT) LTD and REOUVEN DRAY vs NQOBILE KHUMALO and FRANCISCA MUFAMBI and THE SHERIFF OF ZIMBABWE, BULAWAYO
Ruled By: TAKUVA J

Appealed
SC23-19 : SERGEANT KHAUYEZA vs THE TRIAL OFFICER and THE COMMISSIONER - GENERAL OF POLICE
Ruled By: PATEL JA, BHUNU JA and BERE JA

HMA17-17 : MAIN ROAD MOTORS (Case 1) and SYLVIA CHORUWA (Case 2) vs COMMISSIONER – GENERAL, ZIMRA
Ruled By: MAFUSIRE J

HMA12-17 : BRIAN ANDREW CAWOOD vs ELASTO MADZINGIRA and THE MESSENGER OF COURT – MWENEZI N.O.
Ruled By: MAFUSIRE J

HH72-13 : FIDELIS MHASHU vs WELLINGTON ASANI and ALFRED MAMVURA and THE DEPUTY SHERIFF
Ruled By: MATHONSI J

HH57-15 : MACRO PLUMBERS (PVT) LTD vs SHERIFF OF ZIMBABWE N.O. and OWEN CHIGOYA
Ruled By: MATHONSI J

HH327-14 : TM SUPERMARKET (PVT) LTD vs AVONDALE HOLDINGS (PVT) LTD and THE SHERIFF OF ZIMBABWE
Ruled By: CHATUKUTA J

HH258-15 : TETRAD HOLDINGS LIMITED and OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY and THE SHERIFF FOR ZIMBABWE N.O.
Ruled By: MAFUSIRE J

HB88-16 : SOLOMON MHENYU vs RUTH MLAUDZI
Ruled By: MATHONSI J

HB190-11 : KALAYI NJINI vs BERTHILDE JULIET NJINI and SOLWAYO NGWENYA and BULAWAYO CITY COUNCIL
Ruled By: CHEDA J

HB14-16 : DHERERAI MANYONI vs COMMISSIONER GENERAL OF POLICE and ASSISTANT COMMISSIONER GORA
Ruled By: MAKONESE J

HH133-12 : MONICA CHIKOORE vs J P KADZIYA and DISTRICT ADMINISTRATOR, KADOMA DISTRICT and MINISTRY OF LOCAL GOVERNMENT
Ruled By: MATHONSI J

HH974-15 : GUGULETHU HURASHA vs CENTRAL AFRICAN BUILDING SOCIETY and FIRST CAPITAL PLUS and ITAYI MUNYEZA and SHERIFF OF ZIMBABWE and MASTER OF THE HIGH COURT
Ruled By: NDEWERE J