TAGU J:This is an application filed under a certificate of
urgency in terms of the rules of this court and seeks the following relief:-
“TERMS OF THE ORDER SOUGHT
That you show cause to this Honourable Court why a final
order on the following terms should not be made.
a. That the second
Respondent be and is hereby interdicted from removing and executing the
Applicant's property
b. That the First Respondent
shall pay costs of this application.
INTERIM RELIEF SOUGHT
Pending Appeal of the judgment in HC 7394/ 13, the
applicant is granted the following relief;
1. The Second Respondent be
and is hereby ordered to stay removal and execution of the Applicant's property
immediately upon service of this order.
2. In the event that the
Second Respondent does not comply with paragraph 1 above, that he/she be and
hereby held to be in contempt of court and liable to all costs that will follow
as a result thereof.
SERVICE OF THE PROVISIONAL ORDER
1. The order shall be served
by the Applicant's Legal Practitioners to the 1st and 2nd
Respondents.”
The facts and historical background to this application is
that the first respondent got a default judgment against the applicant on 27
February 2014 in case HC 7394 /13. The applicant's legal Practitioner Mr Makwanya
was present. The applicant's legal practitioner was on that day alerted to the
fact that a bar was operational against his client by reason of his non timeous
filing of heads of argument. When his argument was not sustained by the court,
Mr Makwanya excused himself and left the court room. Thereupon, the
court pronounced judgement in favour of first respondent. It is this judgment
that the first respondent is now executing. It is pursuant to this judgment
that the first respondent has obtained a writ of execution on the 18 March 2014
leading to the attachment of the applicant's property which was attached on 11
April 2014 pending removal on 17April 2014. Pending appeal against judgment in
HC 7394/13 supra, the applicant has approached this court on an urgent
basis to stay removal and execution of its property.
This application is strongly opposed by the first
respondent.
The applicant detailed its reasons for filing this
application on a certificate of urgency. Inter alia it stated that it became
aware of the court order on 11 April 2014 at the time of attachment of its
assets. In relation to the present application Mr Makwanya who
certified this matter as urgent stated that if the removal is allowed to take
place, the Applicant will suffer irreparable harm given that the applicant will
completely cease to operate and will close down thereby prejudicing all other
retrenches who are in worse of position than the first Respondent and current
employees who are owed close to one year in salary arrears. He urged the court
to grant the relief for the sake of equity, fairness and justice for the
benefit of other employees.
Mr Lisias Chadya Sibanda, the applicant's Executive Chairman averred that the
attached property are entire assets of the company which is mainly machinery
and tools that are used for operating the company. The majority of these assets
were imported and without them, the company will be closed. He said as it
stands the applicant has paid a total of $ 50 000.00 to the first respondent
reducing the debt from $ 199 473.00 to $ 149 473.00.
The first respondent on the other hand countered the
applicant's claims by saying there was no truth at all in the applicant's
averments. Firstly, the first respondent contended that the applicant's
explanation was unreasonable and unacceptable. Mr P Kawonde for the
first respondent argued that there was no urgency in this matter. He said the
applicant was not being truthful to the court as material facts were concealed.
He said Mr Makwanya was aware of the judgment and order of the court
as far back as 27February 2014. He argued that there was no appeal filed
against the order in case HC 7394/13. Further he submitted that there was also
no application for rescission of judgment filed against case HC 7394/13. In any
case he argued that the applicant is already out of time if it wanted to
appeal. Firstly, it has to apply for condonation of late noting of appeal.
Secondly, it also has to make an application for condonation for late filing of
an application for rescission. He argued further that there are no prospects of
success even if condonation is allowed because the applicant is not disputing
that it owes the first respondent. In short he summed it up by saying this application
is being made pending nothing, that urgency in this case was self- created and
that the issue of liquidity crunch and fact of company closing down are just
excuses, explanations and are not legal arguments. Hence he prayed that the
application be dismissed.
In casu, the applicant is seeking a stay of
removal pending appeal. It is apparent from the relief sought that applicant
seeks a stay of execution or removal pending nothing at all yet the first
respondent is executing a judgment of this court which still stands. No appeal
has been filed to date. Pressed by the court and being challenged by MrKawonde
to produce even a copy of the notice of appeal, Mr Makwanya who
appeared for the Applicant, could not do so. Instead he said his clerk had the
copy yet he had Applicant's file with him.
From the time when it was inevitable that default judgment
was to be entered on the 27 February 2014 to date, applicant has done
absolutely nothing. In my view the application for stay of removal was filed
prematurely at a time when no application for either rescission of judgment or
appeal had been made and as such it was bad at law given that execution or
removal could not be stayed pending nothing.
This brings me to the issue of urgency raised by Mr Kawonde.
The applicant contented that it only became aware of the order on the 11 April
2014. Given the historical background of the matter that I stated above it is
not true. Applicant's legal practitioner was aware as far back as 27 February
2014 that a default judgment was granted in favour of the first Respondent. The
applicant was therefore dishonest and concealed information from the court. If
the applicant was not aware, at least its lawyer knew. The consequences of
being dishonesty and concealing information from the court was spelt out in Graspeak
Investment P/L v Delta Corporation P/L & Anor 2001 ZLR 551
(H).
In Graspeak Investment P/L v Delta Corporation
P/L & Anor, supra at 555C-E NDOU J had this to say:
“The courts should, in my view, discourage urgent
applications, whether ex parte or not, which are characterised by
material non-disclosures, mala fides, or dishonesty. Depending on the
circumstances of the case, the court may make adverse or punitive orders as a
seal of disapproval of mala fides or dishonesty on the part of
litigants. In this case, the applicant attempted to mislead the court by not
only withholding material information but by also making untruthful statements
in the founding affidavit. The applicant's non-disclosure relates to the
question of urgency. In the circumstances, I find that the application is not
urgent and dismiss the application on that basis.”
In the present case while the applicant was aware or deemed
to be aware that there was a default judgement against it as far back as
February 2014, did nothing. It was only the attachment of property that jolted
the applicant into action resulting in this application being filed on 15April
2014 even before an appeal or application for rescission of the judgement was
made.
In my view urgency in this case was self-created. In Kuvarega
v Registrar General & Anor 1998 (1) ZLR 188 (H) at 193 F – G
CHATIKOBO J, dealing with urgency in such matters stated:-
“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 can not wait. Urgency which sterms from a
deliberate or careless abstention from action until the deadline draws near is
not the type of urgency contemplated by the rules.”
In casu applicant waited until first respondent
caused attachment of property. Urgency which comes about as a result of one's
failure to act timeously due to lack of diligence or otherwise on their part is
not the kind of urgency which these courts can entertain as it is self- created.
The application as contended by MrKawonde is not urgent as
contemplated by the rules of this court.
Having come to the conclusion that the matter is not urgent
I need not labour myself in dealing with the other issues such as equity,
fairness and justice raised by the applicant.
Accordingly it is ordered as follows:
That the application be and is hereby dismissed with costs.
M. E. Motsi and Associates,
legal practitioners for the applicant
Kawonde
and Company, legal practitioners for first respondent
