BERE
J: This urgent application stems from a
default judgment granted by my brother BHUNU J on 10 December 2008. The court
order was couched in the following:
"It
is ordered that:
1.
The respondent shall and is hereby ordered to take all
the necessary steps to pass transfer of stand 1744 Marlborough
Township 23 of Marlborough
to the applicant.
2.
Alternatively should the respondent fail to take the
necessary steps to transfer stand 1744 Marlborough
Township 23 of Malborough to the applicant within 14 (fourteen) days of being
served with this order, the deputy sheriff be and is hereby ordered to take
such steps on the applicant's behalf.
3.
The respondent shall pay costs of suit".
It
is clear that following the order of the court the now first respondent
proceeded with execution which culminated in her being granted a deed of
transfer in respect of the property in question. The power of Attorney to pass
transfer was granted to the appearer on 27 January 2009 and transfer of the
property was eventually effected on 5 February 2009.
Almost
two months after default judgment had been granted against it, the applicant
filed an application for rescission of judgment. This was on 2 February 2009.
This application was followed by the filing of the instant application on
urgent basis to stay execution pending the determination of the application for
rescission of judgment.
The
basis for the application for rescission of judgment was the averment by the
applicant that the first respondent's counsel had acted unethically by
"snatching" a judgment against it. No effort was made by the first respondent's
counsel to notify the applicant's counsel of the date of hearing, so the
argument went.
As
usual, the other allied argument was that the applicant has overwhelming
prospects of success in the main matter.
In
her response to the urgent application filed, the first respondent took issue
with the question of urgency. She contended that this matter was not urgent at
all and that if anything the urgency was self-created and therefore would not
suffice.
It
was contended on behalf of the first respondent that the applicant's legal
practitioners had become aware of the court's judgment as far back as 7 January
2009 and failed to take corrective action promptly. It was not possible for the
applicant's legal practitioners to controvert this averment in the light of
their own letter of 7 January 2009 referred to as Annexure 'A' in the notice of
opposition.
It
was also contended on behalf of the first respondent that, in any event the
application for stay of execution was coming too late, as execution had already
been effected on 5 February 2009, the process for transfer having started as
far back as January 2009.
THE ISSUE OF
URGENCY
It
is now trite that a litigant cannot benefit from self-created urgency. A matter
does not become urgent merely because a party has failed to take corrective
measures timeously. See the repeatedly quoted case of Kuvariga v Registrar General
& Anor .
It
is abundantly clear that on 7 January 2009 the applicant through its legal
practitioners had become aware of the default judgment granted against it on 10
December 2008. This is confirmed by annexure "A" to the first respondent's
notice of opposition. For the avoidance of doubt part of that letter reads as
follows:
"We refer to the
above matter and to a copy of an order granted on the 10th day of
December 2008 served at our offices today the 7th of January 2009".
From 7 January
2009, the applicant was only able to file the instant application for stay of
execution of judgment on 4 February 2009. Even the application for rescission
of judgment was only filed on 2 February 2009.
The
delay in filing the instant application has not been adequately explained by
both the applicant (through its founding affidavit) as well as its counsel
through submissions made in court.
In
my view this is a clear case of self-created urgency.
If
I have missed the point (which factor I do not concede to), there is another
practical hurdle which the applicant has to pass.
It
is common cause that at the time of hearing of this application the first
respondent, by natural process of litigation had already executed on the order
granted in her favour. The property around which this litigation is centered on
had already been transferred into the first respondent's name. An application
for stay of execution pre-supposes that execution would not have been effected
at the time the matter is brought to court for argument. It defeats common
sense and simple logic to seek to stop execution when it has already been
effected.
On
merits, the applicant is not on balanced feet because of the following reasons:
The applicant's
counsel attacked the first respondent counsel for having snatched a judgment.
This serious accusation does not find favour with the letter written by the
first respondent's legal practitioners on 15 September 2008 which served as a
notice for the date of trial of the matter. Part of the letter reads as
follows:
"The
matter has been postponed to 24 November 2008".
The applicant's counsel's law firm acknowledged
receipt of this letter through R Kurari who stamped confirmation of receipt on
17 September 2008 at 4.44 hours.
To
confirm beyond any shadow of doubt that the applicant's law firm had indeed received
notification of hearing the applicant's law firm wrote on 7 January 2009 inter alia as follows:
"Our Mr
Mutanangira the only other legal practitioner in the law firm who could have
attended the matter was also unavailable due to his attendance at the SADC
Tribunal. The failure on our client's part to attend court was thus clearly
due to an oversight on the part of the writer to make necessary arrangements in
his absence (my emphasis).
Clearly,
the applicant's law firm was aware of the trial date of this matter. I must
point out that allegations of snatching at judgments are of serious magnitude
for they portray the accused law firm in bad light. Legal practitioners must be
careful to avoid casting aspersions
on fellow legal
practitioners in their quest to build a good case in favour of their clients or
sometimes in a desperate effort to attract the court's sympathy. It is
unethical as it is inconsistent with the rules of practice.
The
applicant's counsel put up quite a persuasive argument that it is his
understanding that in order for a notice of set down to be valid, there must
always be a formal notice of set down. His argument was that the notification
to his law firm of the trial date of 24 November 2008 remained invalid as long
as there was no formal notice of set down emanating from the Registrar's
office.
This
argument was premised on the provisions of order 31 r 215
which provides among other things as follows:
"215 (2) Once a date
becomes available for the hearing of a case placed on the list in terms of r
214, the Registrar shall allocate a date for the case to be heard and shall
give the parties notice of the date".
BEADLE
J (as he then was) had occasion to deal with an almost similar situation in the
case of Le Roux v Le Roux,
In that case the learned judge held that oral notification of the defendant for
a trial date by a plaintiff was not sufficient notice as such an approach did
not satisfy the requirements of the Rules of the Court.
It
should be noted that in the Leroux case supra
the learned judge was dealing with a matter which was coming to court for trial
for the first time.
However,
in the instant case this case had had its first abortive trial date followed by
subsequent numerous postponements which culminated in a further postponement of
trial to 24 November 2004,
I
am of the firm view that the written notification of the trial date on 16
September 2008 by the first respondent's counsel whose receipt was acknowledged
by the applicant's law firm would suffice for purposes of full compliance with
r 215 (supra). I am satisfied that
the applicant's counsel's interpretation of the same rule would be a skewed
one.
The
thrust of the applicant's case is that the parties entered into an agreement
and some property which was already mortgaged by Barclays Bank and that such an
agreement was unenforceable. The respondent denied this position and maintained
that at the time the sale transaction was concluded the property had not been
mortgaged and that in any event the law does not prohibit the sale of mortgaged
property, the only hindrance being that such property cannot be transferred
without the consent of the mortgager. I agree because in general terms the
mortgager would not refuse transfer if the mortgage bond has been fully
serviced.
In
conclusion I am more than satisfied that whichever way one looks at the filed
application, that application cannot be sustained.
Accordingly
the application is dismissed with costs.
Mutamangira & Associates,
applicant's legal practitioners
Kantor & Immerman, first respondent's legal practitioners
