Urgent Chamber Application
KAMOCHA J: This application was filed on a
certificate of urgency. The applicant was seeking the following order:
“It is ordered that:-
(1)
The meeting of creditors set for the 28th February, 2014 at 9:00 am
at the Bulawayo High Court be and is hereby stayed pending determination of the
application filed under case number HC 312/14;
(2)
The cause filed under case number HC 312/14 shall be heard on an expedited
basis in connection with which
(a)
1st respondent shall file his opposing papers in that matter within
3 days of the date of this order
(b)
Applicant shall thereafter file its answering papers and heads of argument
within 5 days of service upon its legal practitioners by 1st
respondent of his opposing papers
(c)
The assistant registrar is directed upon receipt of applicant's heads of
argument to set the matter under number HC 312/14 on the earliest available
court date
(3)
The meeting of creditors shall be held in terms of the order of MUTEMA J after
determination of the court application referred to above.
(4)
Costs of this application shall be in the cause of the application under HC
312/14”
After hearing the parties on whether or
not this matter was urgent the court held that it was not urgent and did not
merit to jump the queue. Accordingly the application was dismissed and I
indicated to the parties that my reasons would follow in due course.
These are they
On 4 April, 2011 Archer Clothing Manufacturers (Pvt) ltd – “Archer” was placed
under judicial management. A final order was granted and Phillip Ndlovu
the first respondent in this matter was appointed the Judicial Manager.
On 15 January, 2013 it was placed under provisional liquidation and Phillip
Ndlovu was appointed provisional liquidator.
According to the provisional liquidator the applicant had always been treated
as a creditor of Archer albeit as an unsecured creditor but applicant had never
raised any objection to the claim being accepted as an unsecured claim.
The applicant was aware that the validity of the mortgage bond was put into
question since such a mortgage bond was registered in favour of the applicant
over Lasker Brothers property not Archer property. The mortgage bond was
not a surety mortgage bond and therefore could not be used as security for
Archer's debts to applicant.
The applicant was aware of the issue relating to the mortgage bond in question
as far back as 2009. Applicant should have sought to rectify the said
bond by registering it as a surety bond. Applicant had been advised by
letter from the provisional liquidator that its bond was invalid.
The deficiencies relating to the applicant's security were highlighted at a
creditors meeting. One such meeting was held on 20 August 2013 at which
the provisional liquidator was actually tasked to investigate the validity of
the said bond. The second such meeting was on 28 November 2013 whereat
the invalidity of the applicant's security was highlighted.
The applicant should have acted urgently a long time ago but did not. The
urgency is self created. Applicant had been classified as an unsecured
creditor for quite some time and was aware of that. It had only been
spurred by the meeting of 28 February, 2014 to file this application on a
certificate of urgency.
That is not the urgency contemplated by the law. A matter is urgent if it
cannot wait. The application in casu did not deserve to be
accorded the status of an urgent application and was accordingly dismissed ipso
facto.
Mawere & Sibanda
applicant's legal practitioners
Webb, Low & Barry, 1st respondent's legal practitioners
Cheda & Partners, 3rd respondent's legal practitioners
Mhishi
Legal Practice, 4th respondent's legal practitioners
