CHITAKUNYE J. Applicant and
Noah Taguta have been quarrelling over the High Priesthood of Marange Apostolic
Church of St. Johanne for some years now. Each is now leading a faction.
The fight for the right to inherit priestly regalia has been ongoing for some
time. This case, HC 11783/11, and case no. HC 11782/11 mirror the extent to which
the fight has evolved. Though both cases were placed before me for hearing I
decided to issue separate judgments in view of the specific issues in each
case. This judgment pertains to the issues in HC 11783/11.
In December 2006 applicant obtained
a default judgment against first respondent. The first respondent through Noah
Taguta applied for the rescission of the default judgment. That matter was
placed before me and I granted the application for rescission on 14 May 2011.
My order read as follows:-
- The default judgment which was
granted in case no.HC2716/05 on 13 December 2006 be and is hereby
rescinded.
- The applicant be and is hereby
granted leave to file its opposing papers in case no. HC
2716/05 within 10 days from
the date of this order.
- The costs of this application
and HC 742/07 shall be borne by the first respondent and Mr. Musemburi of
T. K. Hove and Partners on an attorney client scale, jointly and
severally, the one paying the other to be absolved.”
The original result slip bears my
signature and is dated 14 May 2007. The signature and date against that
signature were indeed authored by me. Subsequent to that another result slip
with four clauses was authored. The fourth clause on this result slip reads as
follows:
'Pending
the final determination of case number HC 2716/05, the first respondent shall
restore to Noah Taguta the goods which were seized by the Deputy Sheriff for
Mutare on 13 February 2007.'
A perusal of reference file HC 489/07 shows that the fourth clause may have been
imposed after a letter by first respondent's legal practitioners dated 30 May
2007 to the registrar wherein the legal practitioner stated what he believed
was the correct order as pronounced in court. He went on to ask the registrar
to correct the order in these words:
“Please could you urgently revisit
the full text of his lordship's judgment and have the order corrected soon.”
In his letter dated 9 November
2011 to applicant's legal practitioners, first respondent's legal practitioner
confirms that the four clause order was issued on 1 June 2007. Thus as
from 1 June 2007 the file for case no. HC 489/05 now had two result slips and
court orders that were not the same.
The first respondent sought to
enforce the order with four clauses as it is the one with a clause requiring
applicant to restore to Noah Taguta all the goods that had been removed by the
deputy sheriff in pursuance of a default judgment.
It is common cause that first
respondent's attempt to obtain a writ of execution were unsuccessful. The
assistant registrar who handled the case indicated that he did not issue the
writ because of the two contradictory orders. He advised first respondent's
legal practitioners' that he needed to investigate the issue first. The first
respondent's legal practitioner confirmed that the assistant registrar refused
to grant the writ of execution albeit he stated different reasons for such
failure.
Having failed to obtain the writ of
execution first respondent's legal practitioner went ahead and executed the
order. According to his version he provided the Deputy Sheriff with the
following documents-
i.
the court order with four clauses;
ii.
two affidavits of persons who knew the location of the goods and who took him
there;
iii.
Applicant's affidavit;
iv.
a request for police officers to assist him in the execution;
v.
a previous return of service.
There
was no writ of execution. Execution nevertheless took place on 24 June 2011.
The applicant not being happy with
the outcome has approached this court seeking an order that:-
- The first respondent shall
return the entire goods attached and removed from applicant's place on 24
June 2011 as listed in the Notice of attachment of 24 June 2011;
- No further attachments shall be
done in the absence of an order for contempt of court and until the
Application for reinstatement of Case No. HC 2716/05 has been heard and
determined.
3. The first respondent
and Mr Muchandiona to pay costs on a client-attorney scale.”
The first respondent opposed the
application. The respondent contended that the correct order is the one with
four clauses.
As regards execution of the order
without a writ of execution, first respondent confirmed just as much when the
deponent to the opposing affidavit, Noah Taguta confirmed the failure to obtain
a writ of execution and the fact that they never the less proceeded to instruct
the deputy sheriff to execute.
The main issue discernible from the
documents filed of record pertains to the validity of the execution without a
writ of execution. It is however pertinent to also consider the issue of the
two court orders attached as annexure A1 and A2 to applicant's founding
affidavit.
In his letter to the registrar dated 30 May 2007 respondent's legal
practitioner acknowledged that as at that date he had received a court order
with three clauses. He deemed it not reflective of the order granted in court
and so requested the registrar to correct the 'error'. In his letter dated 9
November 2011 referred to above, counsel confirmed the order he was enforcing
was issued on 1 June 2007.
Despite the above counsel for
respondent, in his heads of arguments contended that the two orders were done
on the same day, which is 14 may 2007. As if oblivious of the
inconsistencies pointed to above counsel went on to state that:-
“The
inescapable conclusion to be drawn from the existence of seemingly different
orders is that an error occurred in the recording of the order resulting in the
issuance of the order with three clauses. Further, that after the error was
detected it was corrected immediately by the issuance of the order containing
four clauses. It is submitted that such correction was competent in terms of
Order 49, Rule 449 of the Rules of Court. It is common cause that the orders
were issued on the date of the judgment, while the judgment itself was
transcribed, in the nature of things, at a much later date.” (see para.12
first respondent's heads of arguments)
The legal practitioners'
correspondence quoted above show that this submission cannot be true. The
orders were not issued on the same day albeit they bear the same date. The date
is the date of judgment and not the date the orders were issued out. The order
with three clauses is consistent with the result slip I appended my signature
to on the date of judgment.
Counsel's summation that the order
with four clauses was competently amended in terms of rule 449 is not correct.
Rule 449 provides that:-
“(1)
The court or a judge may, in addition to any other power it or he may have, mero
motuor upon the application of any party
affected, correct, 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 a 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.”
Upon perusal of the referenced file
HC 489/05, I did not find any evidence that court or a judge mero motu
made the correction or that there was ever an application by any party for the
correction of the order. The only document in the file is the letter by
respondent's legal practitioners dated 30 May 2007 addressed to the registrar.
That was certainly not an application as envisaged by the rules.
This therefore means that the
purported correction of the order with three clauses to the order with four
clauses was not properly done. In the absence of a proper correction of the
order the order issued on 14 May 2007 with three clauses remains as the valid
court order. That order did not call upon applicant to restore the goods that
were attached by respondent on 24 June 2011.
The applicant's allegation that the
execution was done without a writ of execution is common cause. The respondent
contended that in the circumstances of this case there was no need for a writ
of execution.
Rule 322 of the High Court Rules
states that:-
“The
process for the execution of any judgment for the payment of money, for the
delivery up of goods or premises, or for ejectment, shall be by writ of
execution signed by the registrar and addressed to the sheriff or his deputy,
in accordance with one or other of Forms Nos. 34 to 41.”
The rule seems clear that it applies
in respect of 'any judgment for the payment of money, for the delivery of goods
or premises, or for ejectment.'
In Mhlanga vSheriff of the
High Court 1999 (1) ZLR 276 (H) at p 283C-D GWAUNZA J emphasised the
requirement when she said that:-
“In
as much as the Deputy Sheriff cannot attach property in execution unless there
is a judgment that has to be satisfied, he cannot attach the property in
question without a writ of execution.”
The respondents' counsel contended
that in as far as the order in question required applicant to perform an act,
to do something and not to pay anything, it was thus an order ad factum praestandum.
The respondent was thus at liberty to enforce by way of writ at its own risk or
by other lawful means including contempt of court. Counsel's argument in this
regard appeared misplaced. The authorities cited tend to confirm this.
In Coetzee vGovernment
of South Africa & Others 1995(4) SA 631 at p. SACHS J said the
following:-
“In
respect of contempt of court, the common law drew a sharp distinction between
orders ad pecuniam solvendam, which related to the payment of money, and
orders ad factum praestandum, which called upon a person to perform a
certain act or refrain from specified action. Failure to comply with the order
to pay money was not regarded as contempt of court, whereas disobedience of the
latter was. Thus civil imprisonment for failure to pay a debt was a remedy in
its own right, not dependent on proof of contempt of court. Conversely contempt
of court proceedings were not used against defaulting judgment debtors.”
In casu the order was for the
delivery of goods. Respondent sought to send the sheriff to attach and remove
the goods. It is that form of execution that requires a writ of execution. This
is not a case whereby respondent sought to effect the delivery through contempt
proceedings. The respondent attempted to have the registrar sign a writ of
execution but the registrar would not.
I am of the view that counsel for
respondent should have paid heed to the registrar's caution. The registrar's
refusal was based on the existence of two orders that were not the same. That
issue had to be clarified before execution could take place.
As I have already made a finding
that the order with four clauses was done later and without following the
proper procedure for correction or amendment, it follows that that order cannot
stand. Any purported enforcement of that order is null and void.
The applicant asked for costs on an
attorney-client scale against first respondent and Mr. Muchandiona in person.
It is not in every case of a misjudgement on the part of a legal practitioner
that costs are awarded against him. There must be something that demands that
such an award be made. In casu, counsel was aware of the first order
with three clauses. When the Assistant registrar pointed to the existence of
two orders that needed clarification, he would naturally not have been
surprised. His conduct in going against prudent advice and proceeding to
instruct the deputy sheriff to attach and remove the goods in question
certainly calls for censure. The manner in which he conducted himself in the
face of the two court orders shows that he really did not mind the consequences
as long as he had the goods attached, removed and delivered to his client. It
is only proper that he be ordered to pay costs together with his client on a
higher scale.
Accordingly it is hereby ordered
that:-
- The first Respondent shall
return all the goods attached and removed from applicant's place on 24
June 2011 as listed in the Notice of attachment of 24 June 2011.
- No further attachments shall be
done in the absence of an order for contempt of court and until the
application in case number HC 2716/05 has been determined.
- The first respondent and Mr. A.
Muchandiona, in his personal capacity, shall pay applicants costs on a
legal practitioner/client scale.
Munangati and Associates,
applicant's legal practitioners
Danziger and Partners, first respondent's legal practitioners.
