MAWADZE J: I received this urgent chamber application on 4
February 2014 at about 1430 hours. I immediately attended to the matter and
after reading the documents filed of record I declined to set down the matter
on account that the matter is not urgent. An endorsement to that effect was
made the same day. I latter received a letter from the Registrar dated 24 march
2014 indicating that the applicants have noted an appeal against my refusal to
set down the matter on an urgent basis. I was thus required to give further
reasons for the decision I now proceed to do so.
The terms of the provisional order sought are as follows,
“INTERIM RELIEF GRANTED
1. 1st AND 3rd
respondent be and are hereby ordered to stay execution pending the
filing of an application for late filing of Rescission of Judgement to be filed
within forty eight (48) hours of this order.
2. Costs be costs in
this cause.
SERVICE OF PROVISIONAL ORDER
Service of this order to be effected by applicant's legal
practitioners” (sic)
The appellants are self actors and one wonders as to which
legal practitioner are being referred to.
The terms of the final order are as follows;
“TERMS OF FINAL ORDER SOUGHT.
That you show cause why a final order should not be made in
the following terms;
1. 1st and 3rd
respondents be and are hereby ordered to permanently stay execution in case
number HC 59112/13
2. Costs be cause in the
cause.” (sic)
The background facts of this
mater are as follows:
The first respondent on 10 July 2013 issued summons out of
this court claiming the following against the applicants and the second
respondent jointly and severally the one paying the other to be absolved.
“a.
Payment of US$288 519-90 due in respect of an unpaid loan facility advanced to
first defendant (now 2nd respondent) by the plaintiff (now 1st
respondent)
b.
Interest at the penalty rate from
time to time, currently at 24% per annum, compounded on a monthly basis with
effect from 30 June 2013.
c.
Payment of the sum of US$ 163 633-35 due in respect of an overdraft facility
extended to the first defendant by the plaintiff.
d.
Interest thereon at a penalty rate 24% per annum, compounded on a monthly basis
with effect from 30 June 2013 to the date of full payment in full.
e.
An order declaring a certain piece
of land in this District of Salisbury being stand 375 Borrowdale Brook Township
of Stand 137 Borrowdale Brook Town Ship measuring 2 206 square metres specially
executable
f.
Collection commission thereon calculated in accordance with By-Law 70 of the
Law Society of Zimbabwe By-Laws 1982.
g.
Costs of suit on a legal
practitioner attorney – client scale.”
The first respondent Ecobank Zimbabwe Ltd is a duly registered company in terms
of the laws of Zimbabwe and carries out business as a registered commercial
bank. The second respondent Strivewell investments (Pvt) Ltd t/a Denenga
Supermarkets is a duly registered company in terms of the law of Zimbabwe. Both
the first and second appellants whose relationship is not clear reside at no
375 Brook Way, Borrowdale Brook, Harare.
On 29 June 2012 the first respondent and the second respondent entered into a
written agreement (attached to the declaration) in which the first respondent
provided to the second respondent banking facility firstly as a loan payable on
specified terms and overdraft facility also repaid on specified terms in the amounts
claimed in the summons. The second respondent breached both the loan agreement
and the agreement relating to the overdraft facility by failing to pay amounts
due hence both amounts became immediately due and payable in accordance with
the agreement.
The first and second applicants are party to the proceedings in that they
signed a guarantee document and binding themselves as surety and co-principal
debtors with the second respondent for repayment of all sums due and
outstandings to the first respondent Ecobank Zimbabwe Limited. As part of the
agreement both first and second applicants registered a surety mortgage bond
over a certain piece of land 375 Borrowdale Brook Township of Stand Number 137
Borrowdale Broke Harare. The first and second applicants are therefore jointly
and severally liable with the second respondent to the first respondent in the
amounts claimed.
The second respondent was served with the summons on 8 August 2013. Both the
first and second applicants were served with the summons at their place of
residence No 375 Brook Way Borrowdale Brook Harare through their maid Esther
Kubwire on 29 July 2013. Neither the second respondent nor the both first and
second applicants entered an appearance to defend. On 10 October 2013 the first
respondent applied for a default judgement which was granted by my brother
MATHONSI J on 16 October 2013 as per the first respondent's claim in the
summons. Subsequent to that writ of execution against the immovable property
Stand 375 Borrowdale Brook township of Stand 137 Borrowdale Brook Township in
the District of Salisbury measuring 2 206 m2 was issued on 5
November 2013. A notice of seizure and attachment was issued on 31 January 2014
with the removal date being 4 February 2014. This triggered the filing of this
urgent chamber application by the first and second applicants on 4 February
2014.
In explaining the urgency of the matter both applicants admit being served with
the summons on 29 July 2013. They both said they took the summons to one Mr.
Munyaka who was the Judicial Manager of the second respondent and were advised
to leave the matter in Mr Munyaka's hands. Thereafter from July 2013 they both
did nothing to check if anything had been done by Mr. Munyaka. Both applicants
only sprang to action when the Sheriff of Zimbabwe visited their residence on
30 January 2014 armed with a notice of seizure and attachment. The applicants
blame Mr. Munyaka, whose affidavit is not even attached for their predicament,
for their failure to enter an appearance to defend. The applicants believe they
have a bona fide defence to the first respondentnt's claim as they
challenge the correctness of the amounts due both in respect of the loan
facility and the overdraft facility. They seem to admit to be in breach of the
agreement but do not state the amount they believe to be due.
As already said after I perused the documents filed by both applicants I formed
the opinion that the matter is not urgent and declined to set down the matter
for hearing.
The question of what constitutes urgency is settled in our law. See Kuverenga
v Registrar General and Anor 1998 (1) ZLR 188 at 193 F (H); Gifford
v Mazire and Ors 2007 (2) ZLR at 134 H-135 A (H).
The general thread which runs through all these cases is that a matter is
urgent if,
(a) It cannot wait the observance of the
normal procedural and time frames set by the rules of the court in ordinary
applications as to do so would render negatively the relief sought
(b) There is no other alternative remedy.
(c) The applicant treated the matter as
urgent by acting timeously and if there is a delay to give good or a sufficient
reason for such a delay.
(d) The relief sought should be of an
interim nature and proper at law.
I am not satisfied that the
applicants have been able to make a case for the matter to be heard on an
urgent basis. Firstly both applicants were sued in their respective capacities
as co-principal debtors in terms of the agreement they both signed. The cause
of action is clear. They were both properly served with the summons and did not
enter an appearance to defend. It is clear that both applicants did not treat
this matter as urgent themselves. The mind boggles why both applicants believed
one M. Munyaka would absolve them of their obligations at law. Both applicants
were being sued in the personal capacities in terms of the agreement they both
signed. There is nothing in the papers filed to show what other action the
applicants took after the inexplicable decision to leave their fate to the
hands of Mr. Munyaka. They simply waited for the day of reckoning. Indeed the
day arrived o 30 January 2014, 6 Months later after service of summons, and in
order to avert the inevitable doom they rushed to court seeking to be heard on
an urgent basis. There is no good reason why the court should treat this matter
as urgent when the applicants themselves did not treat it as such. The urgency
alleged is self created. To sum it all, the applicants have not even applied
for the rescission of the default judgement. They are clearly out of time. They
are yet to file an application for Condonation of Late Filing of an application
for rescission of judgement. It is upon this basis that I am asked to grant the
interim relief sought! In other words I am being asked to treat this matter as
urgent and grant temporary stay of execution pending nothing.
It is precisely for the reasons outlined above that I hold the view that this
matter is not urgent and I declined to set it down. The reasons thereof were
communicated, in a summary form, to the Registrar on the same day I received
the application.
