MAFUSIRE J: This was an
urgent chamber application for a stay of execution pending the determination of
an application for rescission of judgment. The first respondent took a point in limine that the matter was not
urgent. I reserved judgment on that and directed argument on the merits. Towards
the end of submissions it seemed the matter could be amicably resolved by
treading the middle path. By consent I could order a stay provided the
applicant paid security in terms of Order 32 r 246[3]. It reads:
“Before granting a provisional order
a judge may require the applicant to give security for any loss or damage which
may be caused by the order and may order such additional evidence or
information to be given as he thinks fit.”
A consent order seemed
promising. The proceedings were briefly adjourned to enable the parties to
agree on the amount of security. But when they came back, not only were they
not in agreement, but also they had become more poles apart. They had just
agreed on one thing: I should make a determination on the papers as
supplemented by the oral submissions. I reserved judgment. This now is the
judgment: the point in limine first.
The facts were these. On
25 January 2017, in the main action under HC 81/16 [“the main action”], I
granted a default judgment in favour of the first respondent for $6 400 being
damages arising out of an assault by the applicant on the person of the first
respondent. On 14 March 2017, pursuant to the court order and the writ issued
subsequently thereto, the second respondent attached the applicant's goods – a
tractor and a single cab truck. On 17 March 2017 the applicant filed an
application for rescission of the default judgment under case no HC 82/17 [“the
rescission application”]. This was on the basis that when the summons
was served he had been away from his residence; that when he had come back and had
been given the summons, he had done nothing thinking that he would be called to
court for a hearing as no ordinary or reasonable court would enter judgment in
his absence. The applicant charged that the default judgment had been entered
in error because there were numerous triable issues in the first respondent's
claim for damages. The rescission application was made purportedly under Order
49 r 449 of the Rules of this Court.
Simultaneously with the
rescission application, the applicant filed this application.
On urgency, the first
respondent's argument was that the applicant had not acted when the need to do
so had arisen. His point was that when the applicant eventually saw the summons
and did nothing about it, he ought to have realised that the first respondent
would eventually apply for a default judgment. The first respondent relied on
the seminal and ageless passage in Kuvarega
v Registrar-General & Anor where CHATIKOBO J said, at
p 193 F -G:
“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 cannot wait. Urgency which stems
from a deliberate or careless abstention from action until the dead-line draws
near is not the type of urgency contemplated by the rules. It necessarily
follows that the certificate of urgency or the supporting affidavit must always
contain an explanation of the non-timeous action if there has been any delay.”
Mr Chakabuda, for the applicant, argued that even though a traditional
leader himself
who, as such, exercises quasi-judicial functions, the applicant's conduct
should not be judged by the standard of a reasonable man, the diligens paterfamilias. Rather, his
conduct should be judged on the basis of his own subjective state of mind at
the time. On that basis his own clock had begun to tick only on 14 March 2017
when his goods had been attached. Three days later, he had filed this application.
I am not persuaded. Rules
are rules. They apply to everybody in the same way. Without good cause being shown,
no litigant should urge that the Rules should be applied to them selectively. The
applicant is judged by the objective standard of the reasonable man, the diligens paterfamilias, just like
everyone else.
The first respondent's
summons in the main action was served on the applicant's wife. In his founding
papers the applicant says when he returned from some political party meeting he
was “… advised …” of the summons,
whatever that means. Curiously he does not say when he was advised. Where urgency is central, dates
are crucial. But this was just one of the problems with the application.
In my view, the major
problem with the application was what the applicant did, or did not do, after
being advised of the summons. He
says: “I anticipated that I would be
called to attend court and answer to the claims in the summons.” Now, that
was very unreasonable. What he anticipated is substantially, if not exactly,
what the summons called upon him to do.
The summons, which was
accompanied by a declaration, was an ordinary summons. It was on Form 2 of the
Rules. Among other things, it informed the applicant that the first respondent
was claiming US$51 400 as damages arising out of the applicant's assault on the
first respondent. It called upon the applicant to enter an appearance to defend
within ten days of the date of service, Saturdays, Sundays and public holidays
excluded. It then warned the applicant of the consequences of a failure to
enter an appearance to defend, namely that the first respondent's claims would
be heard and dealt with by the High Court “… without further notice to you.”
A Form 2 summons is a very
simple and straightforward writ. The language is quite plain. Virtually all the
legalese is cut out. In my view, a diligens
paterfamilias, on reading such a summons, or, to use the applicant's own
words, on being “advised” of it,
would, at the very least, have checked whether or not he was still within the
prescribed time limits. The applicant has not said he is illiterate or that he
could not read or write. But even if he was all that, a diligens paterfamilias would, at the very least, either have complied
with the directive in the summons, or sought advice. If he was indigent, which
he never said he was, legal aid is abundantly available.
When the summons is
summoning you to enter an appearance to defend within a given period or else
the High Court will deal with your opponent's claim without any further notice
to you, it is very unreasonable for you to wait to be summoned to court yet again.
How many times must you be summoned? If such folly is excused, chaos will reign
in the courts. Concluded matters cannot always be revisited just because
someone was sluggard in the protection of their rights. As McNALLY JA said in Ndebele v Ncube:
“The time has come to remind the
legal profession of the old adage; vigilantibus
non dormientibus jura subveniunt – roughly translated, the law helps the
vigilant but not the sluggard.”
See also Masama v Borehole Drilling [Private] Limited; Mubvimbi v Maringa & Anor; Maravanyika v Hove; Beitbridge Rural District Council v Russell Construction Co [Private]
Limited
and Kodzwa v Secretary for Health &
Anor.
For the applicant, the clock
began to tick when he was “advised”
of the summons. As noted above, he curiously refrains from mentioning when that
was. But it was either before or after the dies
induciae had lapsed. If it was before, he could still have complied with
the summons. If it was after, then he had become automatically barred. But a diligens paterfamilias would then have taken
steps to uplift the bar, or, at the very least, sought legal advice. Default
judgment might not have been entered.
Only after his goods had
been attached did the applicant wake up from his self-induced slumber. He sprang
into action by asking that his matter be allowed to jump the queue. But that exactly
is the situation dealt with in the above passage in the Kuvarega case. A matter does not become urgent just because the day
of reckoning has arrived. Urgency which stems from a deliberate or careless
abstention from action until the dead-line draws near is not the type of
urgency contemplated by the Rules.
The applicant did not
treat his matter as urgent. For that reason the court should not.
Where a matter has been
adjudged to be not urgent, the general practice is simply to remove it from the
roll for urgent matters: see African
Consolidated Resources Plc. & Ors v Minister of Mines and Mining
Development & Ors; Mariyapera v Eddies Pfugari (Private) Limited & Anor; Air Zimbabwe (Private) Limited & Anor V Stephen Nhuta & Ors and Madza v The Reformed Church in Zimbabwe Daisyfield Trust & Ors.
But this, in my view, is
not cast in stone. In a proper case, a judicial officer may want to consider
the merits as well, for example, out of an abundance of caution in case the
issue of urgency was tenuous.
In Golden Reef Mining [Pvt] Ltd & Anor v Mnjiya Consulting Engineers
[Pty] Ltd & Anor I said an application for
a stay of execution was a species of an interdict. In my view, there is some difference
between an ordinary, typical or orthodox interdict with a stay. With an ordinary
interdict, the applicant must show a clear right in his favour, or, in the case
of an interim interdict, a prima facie
right having been infringed, or about to be infringed; an apprehension of an
irreparable harm if the interdict was not granted; a balance of convenience
favouring the granting of the interdict, and the absence of any other
satisfactory remedy: see Setlogelo v Setlogelo; Tribac [Pvt] Ltd v Tobacco
Marketing Board; Hix Networking Technologies v System Publishers [Pty Ltd & Anor; Flame Lily Investment Company [Pvt] Ltd v Zimbabwe Salvage [Pvt] Ltd and Anor and Universal Merchant Bank Zimbabwe Ltd v The Zimbabwe Independent &
Anor.
On the other hand, in a
stay of execution the requirement is simply real and substantial justice: see Cohen v Cohen; Chibanda v King; Mupini v Makoni and Muchapondwa v Madake & Ors. The premise on which a
court may grant a stay of execution pending the determination of the main
matter or of an appeal is the inherent power reposed in it to control its own
process. In Cohen's case above GOLDIN
J said:
“Execution is a process of the Court
and the Court has an inherent power to control its own process subject to the
Rules of Court. Circumstances can arise where a stay of execution as sought
here should be granted on the basis of
real and substantial justice. Thus, where injustice would otherwise be
caused, the Court has the power and would, generally speaking, grant relief.” [my emphasis]
In
casu,
the application is manifestly a brutum
fulmen. So is, in my view, the rescission application as well. In all the three
proceedings the epicentre of the dispute is the assault. In the main action, I
granted judgment when the first respondent said and proved that the applicant
had assaulted him. In the rescission application, the applicant seeks
rescission but does not, in the least, deny the assault. In this urgent chamber
application the applicant seeks a stay but does not also deny the assault. In
both the rescission application and this urgent chamber application, the
applicant's single and central focus is that there are triable issues in the
first respondent's claim for damages. But not a single one of them relates to
whether or not the assault did happen. His major complaint is that the amounts
claimed were not proved. He challenges the general damages for contumelia. He challenges the special
damages for medical expenses as well as the quantum of the salary the first respondent
claimed was paid to some hired hand whilst he himself was recuperating. Nowhere
does the applicant challenge liability, namely the assault.
Mr Chakabuda
conceded the point. He blamed himself. He said the central focus had been on
the triable issues. He said, from the Bar, the assault was denied. But he was
saying this because the applicant, who was present during the hearing together with
his wife, was whispering something into his ears. But it was rather too late in
the day. Plainly, denying the assault at that stage was a natural reaction to a
barrage of questions that I was posing. A reading of both the rescission
application and the urgent chamber application leaves one in no doubt that the
assault was in fact tacitly admitted.
Even the argument on the
so-called triable issues was tenuous. Originally, and in the summons, the first
respondent claimed $51 400 as damages. The bulk of that money, $50 000, was said
to be for contumelia. The rest was
medical expenses and the cost of hired labour.
Contumelia,
the indignity or humiliation suffered, are general damages. Like pain, shock
and suffering, there are no scales to measure it. The final award is in the
discretion of the court. The discretion is exercised judiciously, not
whimsically, on the basis of the information made available. At the end of the
day, the court makes a value judgment.
In his application for a
default judgment, the first respondent submitted a detailed account of how the applicant
had perpetrated the assault on his person unprovoked; how it had been
persistent; how it had happened in the public view at a shopping centre; how
the first respondent was a man of standing, being someone running some
businesses at that shopping centre, and how the assault had humiliated him and
caused him physical injury.
On special damages, the
first respondent supplied documentary evidence to support each one of the
claims.
Exercising my discretion,
and having had regard to the general principles of quantification of damages, I
allowed the first respondent's claim but reduced the amount of general damages
to $5 000. I granted all the special damages.
Thus, the rescission
application seems doomed to fail. There must be finality in litigation.
The urgent chamber
application does not say what the value of the attached goods is. Mr Chakabuda claimed during the hearing the
tractor was worth $50 000 and the truck $10 000. Clearly, these were thumbsucks,
given on the spur of the moment because I had raised a query. kHe again
conceded the omission but persisted with the argument that the balance of
convenience favoured a stay of execution because the applicant would suffer an
irreparable loss if such valuable property was going to be auctioned for a song
as is normally the case with judicial sales. However, if that was the only
problem with the urgent chamber application I could perhaps have reconsidered.
But, as shown above, this application is incurably bad. The interests of
justice do not favour a stay.
In the premises, it is my
conclusion that the urgent chamber application was not urgent in the sense that
the applicant did not himself treat his cause as such. For that reason, the
application could simply be removed from the roll. However, and at any rate,
the urgent chamber application had no merit and is liable to be dismissed. It
is hereby dismissed.
The costs of this
application shall be borne by the applicant.
27 March 2017
Chakabuda Foroma
Law Chambers,
legal practitioners for the applicants
Ruvengo Maboke & Company, legal practitioners
for the first respondent
