MATHONSI J: This is an urgent application for a stay of
execution pending the determination of an application for rescission of
judgment. The urgent application was
filed on the 5th August 2010 while the application for rescission of
judgment was only filed under case No. HC 1558/10 on the 12th August
2010.
When the urgent application was
filed, it was filed with an incomplete draft of the provisional order which did
not have the reverse page of Form 29C.
The application was therefore filed without the terms of the final order
sought and a prayer for interim relief.
The first Respondent filed an
opposing affidavit to the application in which it raised essentially four
points in limine, namely that:
(a)
the matter is not urgent as the
urgency that has caused the Applicant to approach the court the way it has done
is self-created and therefore not the kind of urgency envisaged by the Rules of
this court.
(b)
there has been a signal failure to
comply with the Rules of this Court in that the application is not accompanied
by a draft order in Form 29C in breach of Rule 247(1) (a) of the High Court
Rules and that omission is fatal to the application.
(c)
the application for a stay of
execution was filed prematurely at a time when no application for rescission of
judgment had been made and as such it was bad at law given that execution could
not be stayed pending nothing particularly where no draft order containing what
was being prayed for had been made.
(d)
the Applicant had an alternative
remedy other than a stay of execution, that is, he could still sue for damages
if he subsequently succeeds in overturning the judgment given in default
against it.
At the hearing of the application the Applicant
sought to file a document to amend its draft order by introducing the reverse
page of Form 29C having realised that the draft order was incomplete. The application for an amendment was strongly
contested by Mr Ncube appearing for
the first Respondent who submitted that the application should be considered as
it was at the time of filing and that Applicant should not be allowed to amend
its papers in response to the points in limine made by the first
Respondent.
The background of the matter is that starting
about the 17th June 2007 and following then, the first Respondent
supplied Applicant with mining equipment at the Applicant's special instance
and request. Invoices for payment were
submitted in Zimbabwe dollars but no payment was made for the relevant
invoices.
During subsequent months and indeed years, the
first Respondent sent several written reminders and revised invoices demanding
payment which payment was not made.
About February 2009, the Zimbabwe dollar became moribund and multiple
currencies were introduced. At some
stage after the introduction of foreign currency, the Applicant requested the
first Respondent to revise its invoices taking this into account and submit
amended invoices denominated in United States Dollars.
The request by the Applicant for revised invoices
was an admission of liability which clearly interrupted any prescriptive period
which might have been running and there is no merit in the half-hearted
argument over prescription.
The first Respondent submitted revised accounts
denominated in United States Dollars but still no payment was forthcoming from
the Applicant despite numerous demands which are filed of record in case no. HC
1111/10. On the 15th June 2010, the first
Respondent issued summons against the Applicant claiming a sum of $169 755-87.
The said summons was served upon the Applicant on
the 26th June 2010 and, as no appearance to defend was filed, an
application for default judgment was made which was granted on the 22nd
July 2010. Applicant appears to have
done nothing at all about the matter until an attachment of property in
execution of the default judgment was made on 2nd August 2010.
The attachment of property jolted the Applicant
into action resulting in this urgent application being filed on 5th
August 2010 even before an application for rescission of the judgment granted
in default was made. It was only filed
on 12th August 2010.
From the time that Applicant was served with the
summons on the 26th June 2010, it has done absolutely nothing, quite
consistent with its conduct over the years when it did not respond to any of
the demands made by the first Respondent for payment.
The claim that when the summons was received a
letter was written to Applicant's legal practitioners instructing them to
defend the action but that the letter in question has just vanished from the
surface of the earth, is simply disingenuous.
Pressed by the Court to produce even a file copy of that letter to
signify that at least something was done, Mr
Tandi who appeared for the Applicant, could not do so even as he claimed to
have the entire office file of the Applicant on the matter in his possession.
Not even the service of summons could incite
action on the part of the Applicant. Now
that its property has been attached in execution, Applicant has decided to
approach the Court on an urgent basis.
It was pointed out in the case of Kuvarega
v Registrar General and Another 1998(1) ZLR 188 at 193 E- G that:
“Urgency which
stems from a deliberate or careless absention 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 Khumalo
v Mpofu HB 56/10 (as yet unreported) where at page 3 of the cyclostyled
judgment I did state that:-
“No litigant is entitled to be heard on an urgent
basis as of right.”
I am not persuaded that the urgency arising out
of the facts of this matter is one contemplated by the Rules. Quite to the contrary this is not only
self-created urgency but also a deliberate attempt to frustrate the first
Respondent in its resolve to recover what it is entitled to. I am fortified in that conclusion by the fact
that at no stage did the Applicant deny liability or that the mining equipment
was delivered. All that Applicant
appears to be saying is that it will not pay until the Applicant reduces the
price to a level acceptable to the Applicant even though Applicant has had the
benefit of the goods supplied for more than 2 years.
Having come to the conclusion that the matter is
not urgent, it is not necessary to determine the other points raised in limine
or to go into the merits.
Accordingly it is ordered as follows:
1. That
the Application be and is hereby dismissed.
2. That
the Applicant shall bear the costs of suit on an attorney and client scale.
Kantor
and Immerman C/o Joel & Pincus, applicant's legal practitioners
Messrs Cheda and Partners, 1st
respondent's legal practitioners
