On the date of the hearing I
dismissed the application as being improperly before the court. I
indicated that reasons would follow.
These are they.
The applicant seeks the following
relief;
“TERMS OF FINAL ORDER SOUGHT
That you show cause to this
Honourable court why a final should not be made in the following terms-
1. That the debt owed by the
Zimbabwe National Water Authority to second applicant be and is hereby ceded to
the first respondent for the value of the judgment debt in case No. HC2559/13.
2.The second respondent be and is
hereby ordered to permanently stay execution against applicant's dwelling being
Stand No.6 Anita Road, Burnside, Bulawayo.
3. Costs shall be borne by the
applicants if the application is unopposed.
OR Alternatively that:
4. The second respondent be and is
hereby ordered to permanently stay execution against applicant's dwelling being
No.6 Anita Road, Burnside, Bulawayo.
5. That second applicant be and is
hereby ordered and directed to pay the amounts due to the first respondent upon
its receipt of the funds owed to it by the Zimbabwe National Water Authority.
6. …,.
INTERIM RELIEF GRANTED
Pending determination of the
application for rescission of judgment, the applicant is
granted the following relief:
1) The second respondent be and is
hereby ordered to send written notification to the 4th respondent
that the 1st applicant's dwelling, being Stand No.6. Anita Road,
Bumside, Bulawayo has been attached and to take no further steps in regard to
the sale of the dwelling or eviction of the occupants for a period of ten days.
2) 3rd respondent be and
is hereby ordered to stay execution against applicant's property pending a
response from 4th respondent in terms of Order 40 Rule 348A(3).
3) The Zimbabwe National Water
Authority be and is hereby ordered to pay all amounts owed by it to the 2nd
applicant, to the 1st respondent's legal practitioners, Messrs Dube
Manikai and Hwacha, to the value of the judgement debt in case No. HC2559/13.
4) Costs to be borne by first
applicant.”
The brief facts are that the second
applicant was advanced a loan by the first respondent. The first applicant
and his wife stood as sureties for the loan advanced. As at 12 March 2013
the loan amount stood at $321,962=78. As a result, the first respondent
applied for and was awarded a provisional sentence against the second
applicant, the first applicant and his wife on 15 May 2013. On 3 September
2013 a writ of execution was issued by this court against Stand No.6 Anita
Road, Burnside Township. Such writ of execution was served upon the first
applicant and his wife on 9 September 2013.
On 13 December 2013, the applicant
filed an urgent chamber application for the stay of execution of the sale of a
dwelling in terms of Order 40 Rule 348A of the High Court Rules, 1971.
The respondents raised a point in limine that such application was
filed out of time and should be dismissed as no condonation had been sought and
granted by this court.
Rule 348A(5a) provides:
“Without derogation from subrule (3)
to (5) where the dwelling that has been attached is occupied by members of his
family, the execution debtor may, within ten days after the service upon him of
the notice in terms of rule 347, make a chamber application in accordance with
subrule (5b) for the suspension of;
1. The sale of the dwelling
concerned, or
2. The eviction of its occupants.”
In a similar case of Meda v Homelink (Pvt) Ltd & Anor HB195-11 this court ruled that the
application was not properly before the court as it had been filed well after
the ten day period provided for in the Rules. In casu, this application, having been filed well after the
ten day period, and condonation not having been sought nor granted, I found
that the application was improperly before me.
Accordingly, the application is dismissed with
costs for want of compliance with the Rules.
