KAMOCHA J: After hearing the two legal practitioners representing the
respective parties I refused to hold that this matter was urgent and dismissed
it on that basis:
The applicant sought an interim relief in the following terms:-
“Pending the
final determination of this case the applicant be and is hereby granted leave
to:- (sic)
1.
The operation of the writ of execution sued out by the 1st
respondent in case number HC 3807/11 be and is hereby stayed until this
application is fully determined.
2.
The 2nd respondent be and is hereby prohibited from in any way
giving effect to the writ of execution in case number HC 3807/11 and, if at the
time this order is granted the 2nd respondent has removed any of the
applicant's property the 2nd respondent restore possession of such
property to the applicant, until a contrary order is made or until this matter
is fully determined.”
The brief facts giving rise to this
application were these. Case number HC 3807/11 was set down for a
pre-trial conference before a judge on 17 September 2012. The defendant
which is the applicant in this case did not send its official to attend the
pre-trial conference but its legal practitioner one W. Nyabadza was in
attendance. He had not filed the defendant's issues and synopsis of
evidence. Mr Nyabadza failed to proffer an explanation for the
defendant's official's absence at the pre-trial conference and to file issues
and synopsis. The presiding judge then authorized the plaintiff to set
the matter down on the unopposed roll for a default judgment.
The matter was set down on the unopposed roll for 1 November 2012. The
same judge happened to be presiding. Mr Majoko appeared for the
defendant and tried to move the court for a postponement, but his explanation
was not acceptable to the court which proceeded to grant the judgment.
Although Majoko was in attendance the judgment that was granted was a
default one as no arguments were heard on the merits. He sought to
explain the failure to attend a pre-trial conference by the defendant's
officials and failure to file defendant's issues and synopsis but the
explanation seems to have been rejected by the court. His suggestion to
have the matter postponed did not find favour with the court either.
Once the removal of the case from the roll was refused the defendant was
effectively in default. In the result, a default judgment was
granted. Procedurally, therefore, the defendant should have sought a
rescission of the judgment, rather than appeal against it. See Sibanda
& Ors vs Nkayi Rural District Council 1999 (1) ZLR 32 (SC).
When the default judgment was granted on 1 November 2012 no action was taken by
defendant until 16 November 2012 when it filed its appeal. A writ of
execution was served on it on 7 November 2012 but defendant did nothing to
protect whatever right it might have thought it had until 27 November 2012 when
it filed the present application. The defendant itself did not treat the
matter as urgent until the imminent arrival of the day of reckoning. The
matter is not urgent – see Kuvarega vs Registrar-General &
Anor 1998 (1) ZLR 188.
The defendant seems to approbate and reprobate. On 13 November 2012 it
addressed the following letter to the plaintiff's legal practitioners.
“Attention: Mr Bukuta
Dear Sir
Re: Debt Payment Plan
I refer to the above.
We are in
receipt of a writ of execution for $596 203,22. We are in the process of doing
our reconciliation on the ZIMDEF account, however, while that is going on we
are keen to engage ZIMDEF to reach an amicable payment plan.
We intend to
ring fence the full outstanding debt effective November 2012. We ensure
that all ZIMDEF deductions are remitted. This way our debt with ZIMDEF
will progressively go down.
We request to
settle the outstanding debt in six months equal monthly instalments starting
end of November 2012 and clearing the balance by April 2013.
If need be we
are prepared to have a meeting with ZIMDEF so that we explain our situation as
well as our plan of debt liquidation.
We await your response.
Yours faithfully
For Hwange Colliery Company Limited
L. Musasa
FINANCE MANAGER”
There is nowhere, where liability is denied in the above letter. Neither
is the sum of $596 203,22 disputed. Instead the defendant was proposing a
payment plan and promising to ring fence the full outstanding debt owed to the
plaintiff so as to properly liquidate the debt in six monthly equal instalments
commencing at the end of November 2012 with the last installment being paid by
April 2013. Mr Majoko who deposed to the founding affidavit
seems to contradict his client by taking issue with what the client is
admitting. This is a typical case of one hand not knowing what the other
is doing.
It was for the above reasons that I declined to treat this matter as urgent and
dismissed it with costs on that basis.
Majoko & Majoko, applicant's legal practitioners
Dube-Banda,
Nzarayapenga & Partners, respondent's legal
practitioners
