MUTEMA J: The 1st respondent sued the applicants under case number
HC 665/10 vicariously, jointly and severally, the one paying the other to be
absolved for damages suffered by him as a result of a road traffic accident
allegedly occasioned by the applicants' employee who was the driver of the
applicants' motor vehicle at the relevant time allegedly during the course and
scope of the driver's employment. The accident occurred on 11 May
2007. The driver was also a defendant in the suit but could not be served
with the summons as he had relocated to South Africa. After a contested trial,
CHEDA AJ on 15 November 2012 found for the 1st respondent in case
number HC-229-12 and awarded him damages in the sum
of $16 000,00 against both
applicants jointly and severally plus costs of suit. The parties were
represented by their current respective legal practitioners.
In November, 2012 the applicants lodged an appeal against CHEDA AJ's judgment
under cover of case number SC-380-12. On 24 January, 2013 1st
respondent obtained a default judgment in case number HC 4182/12 granting him
leave to execute the judgment in HB-229-12 pending appeal.
On 25 February, 2013, under case number HC 504/13 applicants filed an
application for rescission of judgment granting 1st respondent leave
to execute pending appeal in HC 4182/12. Applicants simultaneously filed
an application under case number HC 505/13 for condonation for failure to file
their opposing papers timeously in case number HC 4182/12. Both
applications are being opposed.
Following the grant of leave to execute pending appeal, 1st
respondent instructed the deputy sheriff (2nd respondent herein) to
attach applicants' Toyota Land Cruiser registration number AAX 6474 which was
done on 25 February 2013 with the notice of removal set for 28 February, 2013.
It is this attachment that has engendered this urgent chamber application whose
draft provisional order is couched in these terms:
“Terms of final order sought
Whereupon after reading documents filed of record:
It is ordered:-
That you show
cause to this honourable court why a final order should not be made in the
following terms.
Final order sought
1.
The execution of judgment under 665/10 be and is hereby stayed until the
finalization of case number SC 380/12 and case number HC 504/13.
2.
The 1st respondent pays costs of suit on an attorney – client scale.
Interim
relief granted:-
Pending the
confirmation or discharge of this provisional order the applicant (sic)
is granted the following relief:-
1.
The execution of the writ of execution under case number 665/10 be and is
hereby stayed pending the finalization of case number HC 504/13 being the
applicants' application for rescission of judgment and case number SC 380/12,
being the applicants' appeal at the Supreme Court.
2.
The respondents be and are hereby interdicted from removing and selling
applicants' Toyota Land Cruiser registration number AAX 6474.
3.
If the 2nd respondent has already removed the applicants' Toyota
Land Cruiser registration number AAX 6474 the 2nd respondent be and
is hereby ordered to release the said vehicle to the applicants or their duly
authorized representative.”
The 1st
respondent opposed the urgent chamber application and raised two preliminary
issues. They are the following:
1.
The application is not urgent because the need to act arose on 13 February,
2013 when the applicants became aware of the judgment under case number HC
4182/12 granting 1st respondent leave to execute pending appeal but
did not act until 26 February 2013 (13 days later) when this application was
filed – the applicants' having been galvanized into action by receipt of the
writ of execution on 25 February, 2013. He relied on three authorities
regarding this issue, viz – Kuvarega v Registrar General & Ano
1998 (1) ZLR 188 (H); Universal Merchant Bank of Zimbabwe Ltd v The
Zimbabwe Independent & Ano 2000 (1) ZLR 234 (HC) and Ndebele
v Ncube 1992 (1) ZLR 288 (SC).
2.
Similarities between the interim order and the final order sought. The
submission was that the effect of this is that once the interim order is
granted, there will be no need to anticipate anything on the return day.
Paragraph 1 of the interim order is incompetent in that if granted, the effect
will be to obtain both rescission of the default judgment as well as dismissal
of the application for leave to execute pending appeal via the backdoor.
In the event, 1st respondent
prayed for dismissal of the application based on the preliminary points raised
with costs on the scale of attorney and client.
For the applicants, it was submitted that the application remained urgent as
stated in the founding affidavit. It was argued that whilst it was
conceded that the need to act arose on 13 February, 2013 when applicants became
aware of the grant of leave to execute pending appeal, 1st applicant
was not available to sign his founding affidavit re: application for rescission
of judgment and once 1st applicant became aware of the writ of
execution on 25 February, 2013, he immediately filed the present urgent chamber
application for stay of execution.
Regarding the similarities between the interim and final orders sought in the
provisional order it was submitted that the interim order does not seek to
dispose of HC 4182/12 without rescission of the judgment but seeks to stay
execution and Mr Dube prayed for the court's indulgence to have the
interim order amended by removing reference to the Supreme Court case.
The case of Kuvarega v Registrar General & Ano, supra is
regarded as the locus classicus on the issue of what constitutes
urgency. At page 193, CHATIKOBO J had this to say:
“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 the
supporting affidavit must always contain an explanation of the non-timeous
action if there has been any delay. … Those who are diligent will take
heed. Forewarned is forearmed.”
In casu, it is common ground that the applicants became aware of the
default judgment giving 1st respondent leave to execute the judgment
appealed against on 13 February, 2013. That is when the need to act
arose. But did the applicants act timeously? The answer is
no. They simply bothered with signing founding affidavits pertaining to
the application for rescission of the default judgment and condonation of late
filing of opposing papers. A diligent parter familias would, under the
circumstances, have known that once leave to execute pending appeal has been
granted, execution of that judgment was imminent at any time and would have
immediately filed the urgent chamber application for stay of the execution
instead of wallowing in wonderland, only to be prodded into action by
attachment of property and file the application for stay some 13 days later –
something akin to shutting the stable door after the horse had bolted.
Neither the certificate of urgency nor the founding affidavit can be said to
contain any explanation, let alone a reasonable one, for the delay of 13 days
in filing this urgent chamber application. While the length of delay in
any given scenario is relative, the reasons proffered justifying the delay are
paramount.
Before closing this issue I am constrained to advert to a trend by some legal
practitioners which seems perturbing despite it having been hinted upon by
GILLESPIE J in General Transport & Engineering (Pvt) Ltd & Ors
v Zimbabwe Banking Corporation Ltd 1998 (2) ZLR 301 (HC). The
head note to that case reads:
“The preferential
treatment of allowing a matter to be dealt with urgently is only extended if
good cause is shown for treating the litigant in question differently from most
litigants. Where a party brings a chamber application for urgent relief,
it is a procedural requirement that the application be supported by a
certificate by a legal practitioner setting out with reasons the legal
practitioner's belief that the matter is urgent. The reason behind such
certificate is that the court is only prepared to act urgently, in a matter
where a legal practitioner is involved, if the legal practitioner is prepared
to give his assurance that such treatment is required. Before putting his
name to such a certificate, the legal practitioner must apply his mind and
judgment to the circumstances and reach a personal view that the matter is
urgent. He must support this judgment with reasons. It is an abuse
for a lawyer to put his name to such a certificate where he does not genuinely
hold the situation to be urgent. The genuineness of his belief can be
tested by the reasonableness of the purported view. Where a legal
practitioner could not reasonably entertain the belief that he professes, he
runs the risk of a judge concluding that he acted wrongfully, if not
dishonestly in giving his certificate of urgency.”
If one looks at the majority of the certificates of urgency filed in most
urgent chamber applications one easily gleans that most such applications are
not urgent at all. Therein is simply regurgitated the usual imminence of
the day of reckoning and the harm likely to be suffered if the matter is not
heard on an urgent basis. That with respect, seems shallow and
unacceptable. The chronology of the case leading to the day of reckoning,
including when the need to act arose as well as justification for the delay if
there is any must be clearly explained so as to persuade the court to properly
exercise its discretion in extending the desired protection/preferential
treatment. The harm likely to be suffered per se is not the hall mark or
pith of urgency.
This application is the seventh hearing of this matter. It is salutary to
remind legal practitioners and litigants alike of the lament by McNALLY JA in Ndebele
v Ncube 1992 (1) ZLR 288 (SC) at page 290 where the learned Judge
of Appeal had this to say:
“It is the
policy of the law that there should be finality in litigation. On the
other hand one does not want to do injustice to litigants. But it must be
observed that in recent years applications for rescission, for condonation, for
leave to apply or appeal out of time, and for other relief arising out of
delays either by the individual or his lawyer, have rocketed in numbers.
We are bombarded with excuses for failure to act. We are beginning to
hear more appeals for charity than for justice. Incompetence is becoming
a growth industry. Petty disputes are argued and then re-argued until
costs far exceed the capital amount in dispute. The time has come to
remind the legal profession of the old adage, vigilantibus non dormientibus
jura subveniunt – roughly translated, the law will help the vigilant but
not the sluggard.”
While acknowledging that there will always be cases where the delay is due to
some reasonable incapacity to act in time or to some understandable oversight,
the present is not such a case. Every day, twenty four seven, we are
bombarded with urgent chamber applications emanating mainly from lack of
vigilance thereby making the urgent chamber application route the norm instead of
the exception. This application does not scale the hurdle of the type of
urgency contemplated by the rules of this court.
Regarding the issue concerning similarities in the interim and final orders
sought in the draft provisional order, the applicants' counsel conceded,
properly in my view, that at least the relief being sought in paragraphs 1 of
both orders is the same. The net effect of granting the relief sought in
paragraph 1 of the interim order is that the applicants would have obtained
final relief on proof merely of a prima facie case. This is
undesirable as there would be nothing to anticipate on the return day.
The applicants, at the end of the day, would have no interest in the final
relief as there would be nothing to confirm or discharge. This is
tantamount to getting final relief via the backdoor. This was also
frowned upon in the Kuvarega case supra. I have not
been persuaded to grant the indulgence sought by Mr Dube of amending
the interim order sought by expunging reference to the Supreme Court
case. Earlier on in this judgment I decried incompetence by legal
practitioners and for me to bend backwards and accommodate the proposed
amendment when no persuasive ground has been laid for it would defeat that
frowned upon practice.
In the result, I find both preliminary points raised by 1st
respondent pregnant with merit and I uphold them and dismiss the application
with costs.
Cheda & Partners, applicants' legal practitioners
Mlweli
Ndlovu & Associates, 1st
respondent's legal practitioners
