MATHONSI J: This is an urgent chamber
application filed on 24 June 2010 in which the Applicant seeks the following
interim relief:-
“B. INTERIM RELIEF GRANTED
That pending
determination of this matter, the Applicant is granted the following relief:-
(a) That the execution of the judgment
granted in first Respondent's favour under case No. HC 2337/08 be and is hereby
stayed.
(b) That the second Respondent be and is
hereby permanently interdicted from auctioning the property belonging to
Applicant and should return or deliver the attached property back to the
Applicant.”
It is apparent from this relief sought that Applicant seeks a stay of
execution pending nothing at all and yet the first Respondent is executing a
judgment of this court which still stands.
It is also not immediately ascertainable from the papers why Applicant
seeks to “permanently interdict” the first Respondent from auctioning the
property that was placed under attachment.
The final order that Applicant seeks also poses some difficulties. It reads as follows:-
“A. TERMS OF THE
FINAL ORDER SOUGHT.
That you should
show cause to this Honourable Court why a final order should not be made in the
following terms:-
(i)
First Respondent be and is hereby ordered to pay
R64810 as compensation for damages caused to Applicant's property Plot No 114
Jupiter Street, Kensington, Bulawayo.
(ii)
That first Respondent is ordered to pay the costs of
suit.”
There is an obvious disconnection between the final order being sought
by the Applicant and the interim relief that she seeks. This is apart from the fact that the final
order sought is patently a claim for damages which cannot be brought by such
application especially on an urgent basis.
Historically, the first Respondent filed a court application against the
Applicant and Barclays Bank Manager on the 24th November 2008 under
case No. HC 2337/08. That Application
was served by the Deputy Sheriff personally upon the Applicant on the 14th
January 2008. She did not act timeously
against the Application in question and in fact did not act at all until the
order was granted on the 19th February 2009.
On the 26th February 2009, the Applicant filed an application
for rescission of the order granted on 19 February 2009 in case No. HC 323/09 which
application the first Respondent opposed.
Although the Applicant filed an answering affidavit on the 22nd
April 2009, she did not prosecute the rescission of judgment application within
the time allowed by the rules and did not seek condonation for failure to do
so; see Sibanda v Ntini 2002 ZLR 264(S). She simply did not do anything at all until
the first Respondent made an application in case No. HC 1457/09 seeking an
order for the dismissal of that application for want of prosecution. That order was granted on the 3rd
May 2010.
Meanwhile first Respondent had long started executing the order granted
in his favour by attaching money in Applicant's foreign currency account at
Barclays Bank and having it transferred to his account. Applicant had also filed another urgent
chamber application under case No. HC 335/09 seeking, inter alia,
a stay of execution. That application is
still pending and was never withdrawn.
To that extent therefore the matter is lis pendens.
What appears to have prompted the current application is the attachment
and removal of Applicant's property by the Deputy Sheriff of Bulawayo on the 31st
May 2010 in order to realise the balance of the order granted in his favour on
19th February 2010 which order the Applicant has been aware of for
well over a year. As pointed out already
the Applicant is not currently seeking a rescission of that order which has
already been executed to a large extent.
Even the removal of her property on the 31st May 2010 did not
jolt the Applicant to immediate action given that the current urgent Application
was only filed on 24 June 2010. The
question which arises therefore is whether this matter could be said to be
urgent in light of the foregoing. No
litigant is entitled to be heard on an urgent basis as of right and the matter
is urgent if, at the time it is filed, the risk of irreparable damage is so
great that it cannot proceed within the normal time frame provided by the
rules. Musunga v Utete and Another HH90/2003.
Legal practitioners are in the habit of certifying applications as
urgent as a matter of course without consideration of the facts of the
matter. As pointed out in Kuvarega v Registar General and Another
1998(1) ZLR 188 at 193 E-G.
“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 supporting affidavit must always contain an explanation
of the non-timeous action if there has been any delay.”
See also Granspeak Investments
(Pvt) Ltd v Delta Operations (Pvt) Ltd and Another 2001(2) ZLR 551 and General Transport and Engineering (Pvt) Ltd
and Others v Zimbabwe Corp (Pvt) Ltd 1998 (2) ZLR 301 at 302 E-F.
In the present case no explanation has been given for Applicant's
failure to act timeously when she was aware of the existence of the order
against her as far back as February 2009.
Further, no explanation is proffered as to why the original urgent
application for stay of execution (HC 335/09) was not prosecuted up to now.
The Applicant complied with the first leg of the order by allowing the
money to be recovered from her Barclays account. She has now filed this application to contest
the recovery of R18000-00 which she has known was due in terms of the court
order of 19th February 2009.
It is a principle of our law that there must finality to litigation; Ndebele v Ncube 1992(1) ZLR 288 at 290
C-D.
In any event, for an Applicant in an urgent application to obtain
interim relief, he or she must show that there is a prima facie
case for such relief; Kuvarega v
Registrar General and Another (supra).
The Applicant in the present case has not shown that she has a prima
facie case. The mere allegation
that she has a possible counter claim against the first Respondent for damages
does
not qualify as a prima facie case as would entitle her to interim
relief. After all such a claim can be
prosecuted independently.
I therefore come to the conclusion that this application cannot succeed
not only because urgency has not been established but also because on the
merits applicant still has insurmountable difficulties.
In the result the application is dismissed with costs.
Lazarus
and Sarif, applicants' legal practitioners
Messrs R. Ndlovu and
Company, 1st respondent's legal practitioners
