MATHONSI J: This
is an urgent application in which the Applicant seeks a provisional order in
the following terms:
“TERMS OF ORDER SOUGHT
1.
That the second Respondent be and is hereby ordered to
proceed in terms of Clause (3) of the Judgment issued in case number 620/08 and
accordingly the Notice of Attachment and all other process issued out by First
Respondent in respect of the immovable property, No. 13 Drayton Avenue
Woodville, Bulawayo and stand 6436 Luveve, Bulawayo be and is hereby set aside.
2.
That the Applicant be discharged from the debt on the
grounds that the principal debtor made a reasonable offer to pay the debt in
instalments since January 2010, which offer was apparently unreasonably
rejected.
3.
Second Respondent shall bear the costs of this
application.
INTERIM
RELIEF GRANTED
Pending the return day of this
Provisional order, it is hereby ordered that the removal and sale of the
immovable property, NO. 13 Drayton Avenue, Woodvile, Bulawayo and stand 6436
Luveve, Bulawayo attached at the instance of second Respondent under case
number MC 620/2008 be and is hereby stayed.”
In my view not only is the
application completely hopeless on the merits, it also does not pass the test
of urgency. The facts are generally
common cause. Sometime in 2008, the
second Respondent obtained an order in the magistrates' court against the
Applicant in the sum of R205 060-00 together with interest. That court order went on to provide that in
the event of Applicant's failure to pay his immovable properties namely number
13 Drayton Avenue, Woodvile Bulawayo and stand 6436 Luveve, Bulawayo could be
taken over by the second Respondent after valuation to establish the exact
amount they represent as against the judgment debt. These properties had been given as security
for the debt in question.
The Applicant failed to pay the debt
resulting in the second respondent instructing the first Respondent to place
the properties under attachment for sale in execution in order to recover the
judgment debt. Needless to say that the
second Respondent has elected not to take over the properties but to execute
against them.
Under case number HC 1995/08 the
Applicant obtained a provisional order against second Respondent interdicting
him from executing the judgment of the magistrates court. That provisional order was subsequently
discharged on 29 October 2009. On 18
December 2009 the Applicant sought leave from the second Respondent to sell the
properties by private treaty and he was subsequently allowed to do so. He enlisted the services of at least two law
firms but did not succeed in selling the properties.
On the 8th February 2010
the two properties were placed under attachment for sale in execution and the
Applicant was notified of this. Through
his legal practitioners he sought an extension of time to sell the properties
by private treaty which was granted. He
again failed to secure a buyer. It was
not until 29 September 2010 that a date for the sale was set as the 29th
October 2010. Prior to that the first
Respondent had notified the Applicant by letter dated 2nd July 2010
of the intention to sell his property.
He did not do anything.
This application was only filed on 3rd
November 2010, almost, 9 months after the attachment of the property. A litigant is not entitled as of right to
have their matter heard urgently. As
stated by Makarau J (as she then was) in Musunga
v Utete and Another HH 90-03 at pages 2-3:
“It is trite that no litigant
is entitled as of right to have his or her matter heard urgently----. The test for urgency as provided for under
the rules is that the matter must be so urgent and the risk of irreparable
damage --- so great that the matter cannot proceed within the normal time frame
provided for in the rules.”
While the Applicant became aware of
the pending execution in February 2010, he only approached the court several
months later. In my view this was
self-created urgency. Urgency which
stems from a deliberate or careless abstention from action is not the kind of
urgency contemplated by the rules. See Williams v Kroutz Investments (Pvt) Ltd and
Others HB 25/06, Kuvarega v Registrar
General and Another 1998 (1) ZLR 188 (H); Granspeak Investments (Pvt) Ltd and Another v Delta Operations (Pvt)
Ltd and Another 2001 (2) ZLR 551 (H) and
Mettallion Gold Zimbabwe v Eurotech Plant and Equipment (Pvt) Ltd and Another
HB 87/10
As stated by Chatikobo J in Kuvarega v Registrar General and Another (supra) at
193 G:
“What constitutes urgency is
not only the imminent arrival of 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 for the non-timeous action if
there has been a delay.”
Clearly therefore the Applicant has
failed to show why his matter should be allowed to jump the queue and be heard
urgently when he sat on the problem from February 2010. For that reason alone the application cannot
succeed.
I do not have to decide the merits
of the matter but it is obvious that the Applicant will have extreme
difficulties in preventing the holder of a judgment sounding in money from
executing that judgment. There is no way
a debtor can be allowed to prescribe when and how a creditor must execute a
judgment.
Accordingly the application is
dismissed with costs on an attorney and client scale.
Western Law Chambers, applicant's legal
practitioners
Calderwood, Bryce Hendrie
and partners, 2nd respondent's legal
practitioners
