TAGU J: In this urgent chamber application the applicant
who is a self- actor sought a provisional order in the following terms:-
“IT IS ORDERED THAT:-
That you show cause to this Honourable Court why a final order
should not be made in the following terms:
1. Pending the finalization
of case no HC 2343 /14 the operation of the Court Order in Case Ho. HC 5823 /12
be and is hereby suspended.
2. All parties foot their own
costs.
INTERIM ORDER
1. Pending the determination
of this application, the execution of the Writ issued under Case no. HC 5823
/12 be and is hereby stayed pending the determination of the Application in
Case no. HC 2343 /14”
The applicant is a director of Vlei Creations a company trading
as Sunset Savemore Budiriro 4 doing business with the first respondent a
company called Radchart Investments, a wholesale/retail chain.
Sometime in October 2011 and on various dates first
respondent sold and supplied various grocery goods to applicant on credit
totalling $ 2 658.45 which the applicant failed to pay for. As a result of that
failure the first respondent issued summons out of this court against the
applicant claiming payment of $ 2658.45 in case HC 5823/12. The summons cited
applicant as Mr MUZA T/A SUNSET SAVEMORE, BUDIRIRO 4 SHOPPING CENTRE, HARARE.
The applicant was then represented by A R Chizikani legal
practitioners who entered appearance to defend on behalf of applicant. The
applicant failed to file his plea within the stipulated time frame. The lawyers
for the first defendant then filed a notice to plead and an intention to bar.
Still the applicant failed to file his plea and was duly barred. The first
respondent then applied for a default judgment which was granted.
When the first respondent issued a writ of execution
causing the attachment of applicant's motor vehicle the applicant jolted into
action and filed an application for rescission of judgment in case HC
2343 /14 and filed another urgent chamber application for stay of execution
pending determination of his application for rescission in case HC 2394 /14.
The application for rescission is still pending before this court. However, his
urgent chamber application was dismissed and applicant was directed to issue
interpleader summons since he claimed that the vehicle belonged to Jaggers, a
company under liquidation.
On 13 May 2014 the first respondent obtained another writ
of execution and this time attached the applicant's property. This prompted the
applicant to make this current urgent chamber application for stay of execution
pending the determination of his application for rescission in case HC 2343/14.
This application is opposed by the first respondent.
Both applicant and Mr Mavhiringidze made
submissions. It is not the intention of this court to decide on the application
for rescission since this will be dealt with by another court. What this court
will decide is whether the application is urgent or not and whether the
applicant is entitled to the relief he is seeking.
It is common cause that the first respondent has a judgment
against the applicant which was granted in default. It is common cause that
this judgment is subject to an application for rescission. It is again common
cause that the first respondent has caused a number of applicant's personal
property to be attached in execution. It follows therefore that this property
can be removed and sold any time soon. This makes this matter urgent. The court
had to decide whether the applicant could be prejudiced if execution is not
stayed, particularly in the event that the applicant succeeds in his
application for rescission.
The court is of the view that if execution is not stayed
the applicant may be prejudiced in the event that the default judgment is set
aside. In the event that the application for rescission fails the first
respondent can still enforce his judgment.
In the circumstances the application for stay of execution
is granted per draft order.
Madanhi,
Mugadza & Co, 1st respondent's legal
practitioners.
