MANGOTA J: Following a default judgment
which was entered in its favour under case number HC 11024/14, the first
respondent issued a writ of execution against the applicants' property. Reference is made in this regard to Annexure
B which the applicants attached to their urgent chamber application.
As a reaction to the
default judgment which had been entered against them, the applicants filed two applications
with the court. They applied for:
(a)
rescission of the default judgment – and
(b) stay of execution of
the writ which the first respondent issued.
They applied that the
writ be stayed pending the determination of their application for rescission. The
two applications were respectively filed under case numbers HC 1921/15 and HC
1922/15.
Tagu
J dismissed the application for rescission of judgment on 5 August, 2015. The
applicants filed an appeal with the
Supreme Court against Tagu J's judgment.
They did so on 14 August, 2015 and under case number SC 472/15. Their
appeal is pending before the Supreme Court. The applicants served on all the
respondents their notice of appeal against the dismissal of their application
for rescission of judgment.
Their knowledge of the
pending appeal notwithstanding, the respondents made every effort to place the
movable goods of the applicants under the hammer. The third respondent, the applicants alleged,
stated that he would proceed to auction the applicants' property.
The
applicants attached to their application Annexure F. The annexure is an
advertisement which the third respondent placed in “The Herald” of Saturday 15 August, 2015. The advertisement showed
that the third respondent would auction the applicants' property on 22 August,
2015. The applicants said they became aware of the advertisement on 17 August,
2015.
The
advertisement, the applicants stated, prompted them to file the present urgent
chamber application. They moved the
court to interdict the respondents from auctioning their property on the basis
of the default judgment which the court granted to the first respondent under
case number HC 11024/14 until the Supreme Court has determined their
appeal. They submitted that they would
suffer irreparable harm if the court dismissed their application.
The
first respondent opposed the urgent chamber application. The second and third respondents did not
appear in person or through legal representation. They were cited in their official capacities. The court remains of the view that they will
abide by its decision.
The
first respondent which had a substantial interest in the application raised two
preliminary matters. It then proceeded
to address the court on the substantive aspects of the application. The in
limine matters which it raised were that:
(a) the
court did not have jurisdiction over the matter - and
(b) the
certificate of urgency which supported the application was not bringing out the
urgency of the application.
Before
I consider the merits and demerits of the application, it is pertinent for me
to
make some comments in regard to the
temporary interdict which I imposed on the respondents on 20 August, 2015. The
comments run as follows:
The
registrar referred the urgent chamber application to me on Thursday, 20
August 2015. I went through the application. I observed
that the auction which the applicants feared would effectively dispose of their
property was scheduled to take place on Saturday, 22 August 2015. I remained alive to fact that the application
had to be served on all the parties who would appear and present, as well as
argue, their respective cases before me.
The
second and third respondents were many kilometres away from Harare, the seat of
the court. The second respondent's address of service was given as number 34,
Lobengula Avenue, Gweru. The third respondent's address of service was stated
as Rushinga Co-operative Building, Hospital Road, Mt Darwin.
It
was in view of the distances which were involved that I scheduled the hearing
of the urgent chamber application to take place at 1200 hours of Thursday, 24
August 2015. My intention was that all the parties should be afforded an
opportunity to be served with, and notified of the date and time of the hearing
of, the application. I remained alive to the fact that the auction which was slated
for 22 August, 2015 would have come and gone bye at the time that I hear the
application. I realised that no purpose would have been served by hearing the
application when the goods which were, or are, the subject of the application
would have been disposed of at the auction. I was aware that, in applying as
they did, the applicants were moving the court to stop the auctioning of their
goods pending their appeal against the dismissal of their application for
rescission of judgment.
In
an effort to arrest the situation and allow the parties who were due to appear
before me on Monday 24 August 2015 to ventilate their respective cases, I
imposed a temporary interdict on the respondents. I restrained
them from auctioning the applicants' goods pending the hearing and
determination of the present application. The temporary interdict was meant to,
and it did actually, serve two important purposes namely:
(a) to
allow the situation which prevailed between the parties to remain undisturbed
until the parties' respective cases were properly, unhastily and impartially
argued as well as determined- and
(b) to
protect the second and third respondents who are officers of the court from
being compelled to act against the directive of the court by the first
respondent which might have, out of impatience, insisted that they should
proceed with execution of the writ as there was no court order which prevented
them from doing so.
I have, prior to
this application, come across situations where a party makes an application of
the present nature, the court gives directions to the registrar to set the matter
down for hearing as well as to serve the application on all the parties whom
the applicant(s) has or have cited. An
unscrupulous legal practitioner, I have noted, has acted contrary to the
directions of the court and instructed the sheriff to proceed with the
execution of the writ. The legal
practitioner's argument has, under the stated circumstances, been that what the
court has given was a directive which was not binding on anyone, let alone his
client. The sheriff has, more often than not, been placed into a very invidious
position which conflicts with the directive of the court. It was and is,
therefore, important that the sheriff should remain protected against acting
contrary to the principles which govern and guide the courts' practices and
procedures by the issuance of such temporary orders as the one which was issued
on 20 August, 2015.
Such orders are
and should, in my view, come into existence in the interest of the parties'
cause. They aim at the attainment of
real and substantial justice. They restrain one party from taking an unfair
advantage over the other party on the basis of some technicality which, on the
face of it, is operating in its favour.
The above stated matters suffice as an explanation for the temporary
interdict which was issued on 20 August, 2015.
The applicants
stated that they learnt of the intended auctioning of their property on 17
August, 2015. They filed the present
application with the court on 19 August, 2015.
They, in that regard, complied with r 244 of the rules of this court.
The first
respondent stated, as its first preliminary matter in opposition to the
application, that the court did not have jurisdiction over the present
application. It developed its argument
around that preliminary issue along the following lines. It said the urgent
chamber application for stay of execution involved an assessment of the
applicants' prospects of success on appeal.
It stated that the Supreme Court, and not this court, has the
jurisdiction to make the assessment. It,
on that basis, insisted that the applicants' application was in the wrong
forum. It submitted that the urgent
chamber application should have been filed with the Supreme Court and not this
court.
The applicants
stated to the contrary in their response to the first respondent's above
mentioned in limine matter. They
stated that the court does have jurisdiction to hear and determine their
application. They, in this regard, made reference to s 171 (1) of the
Constitution of Zimbabwe. They said the
section confers jurisdiction on the court to entertain the application. The section reads:
“171 JURISDCTION OF HIGH COURT
(1)
The
High court-
(a)
has original jurisdiction overall civil
and criminal matters throughout Zimbabwe;
(b)
…….;
(c)
…….;
and
(d)
……….”[emphasis added].
The applicants submitted that the
application which was before the court was a civil matter. They insisted that the application was,
therefore, properly before the court.
A
reading of s 171 (1) of the constitution shows in a clear and unambiguous
manner that the court has the necessary jurisdiction to hear as well as
determine the application.
The first respondent's
assertions on the issue of the court lacking the jurisdiction to hear the
application was, to a large extent, misplaced. That is so because, while it is
accepted that an application for stay of execution pending the hearing of an
appeal does involve an assessment of the applicant's prospects of success, the
court's ability to make the assessment is not excluded. At any rate, the
assessment is not the only factor which determines the propriety or otherwise
of the application. Other matters come into play. Amongst such matters are the interests
of justice as between the parties.
An
application for stay of execution does, by its nature, fall into the area of
equity reliefs. Where, therefore, equity demands that it be granted in the
interests of justice, the court hearing the application is, as a general principle,
enjoined to consider and, where appropriate, grant it.
The
applicants referred the court to s 176 of the Constitution of Zimbabwe. They
argued, and correctly so, that the section confers power on the court to
regulate its processes as well as to develop the common law or the customary
law taking into account the interests of justice. The position which the
applicants stated is in sinc with the remarks of Gubbay CJ who,
in Mupini v Makoni, 1993(1) ZLR 80(s) said:
“Execution of a judgment is a
process of the court and the court has an inherent power to control its own processes and procedures, subject to
such rules as are in force. In the exercise of a wide discretion, the court may
set aside or suspend a writ of execution or cancel the grant of a provisional
stay. It will act where real and substantial justice so demands. The onus rests on the party seeking a stay of execution to satisfy
the court that special circumstances exist. Such special circumstance can be
readily found where the judgment is for ejectment or the transfer of property,
because the carrying into operation of the judgment could make restitution of
the original position difficult”.
The
parties are, in this regard, referred to the following case authorities where
the cited principle was also enunciated: Cohen
v Cohen 1979 (1) ZLR 184 (G), Santam Ins Co Ltd v Paget, 1981 (1) ZLR 132 (S) and Chibanda
v King 1983 (1) ZLR 116 (H)
wherein Dumbutshena AJP stated that the applicant:
“must satisfy the court that he may
suffer irremediable harm or prejudice if execution is granted.”
The writ which the first
respondent seeks to execute is a process of this court. It was issued by the
first respondent following the default judgment which the court entered in its
favour under case number HC 11024/14. On the strength of s 176 of the
constitution of Zimbabwe as read with Gubbay CJ's dictum in Mupini v Makoni (supra), therefore, the court has every right and every authority to
control that writ in the interests of the attainment of real and substantial
justice.
The
first respondent's second line of argument in opposition to the application was
that, whilst the principle which states that an appeal suspends execution of a
judgment appealed against was or is a correct reflection of the law, the
intended appeal was aimed at the dismissal of the application for rescission of
judgment and not at the default judgment itself. It submitted that the default
judgment was not disturbed by the appeal which the applicants filed with the
Supreme Court. It said the default judgment remained intact. It stated that
what was suspended by the appeal which the applicants noted was Tagu J's
judgment. It, therefore, insisted that execution should proceed.
The
applicants appeared to have missed the first respondent's argument on this
matter. They did not address the court in respect of it. They remained
disturbingly mute.
It
requires little effort to observe that the dismissal of the application for
rescission terminated the order for stay of execution which the court granted
to the applicants on 21 April, 2015 under case number HC 1922/15. As of 5
August, 2015, therefore, the order of Mtshiya J [case number HC 11024/14] once
again became executable.
The
appeal which the applicants noted does have a substantial bearing on the
default judgment which the court entered in favour of the first respondent. Where the Supreme Court dismisses the appeal,
the default judgment remains undisturbed and, therefore, enforceable. However,
where the Supreme Court upholds the appeal, the default judgment cannot be
enforced as it would have been rescinded by an order of that court. The parties
would, in that regard, have reverted to their status quo ante which prevailed before the default judgment was granted to
the first respondent.
There is no doubt that the appeal is
inter-linked to both the dismissal of the application for rescission and the
default judgment itself. The Supreme Court's determination of the appeal is a sine qua non of the enforceability or
otherwise of the default judgment. It follows, from the foregoing, that the
applicants' appeal to the Supreme Court suspends both the dismissal of the
application for rescission and the default judgment which the court entered in favour
of the first respondent.
Whether or not the
court is functus officio in regard to
the present application does, by and large, depend on the circumstances of this
case. The first respondent stated that,
in dismissing the application for rescission of default judgement, the court
pronounced itself on the point that the applicants were in wilful default. It submitted that the court cannot, under the
circumstances, re-visit the same matter.
The applicants
argued to the contrary. They submitted
that the court was not functus officio. They, in that regard, referred the court to
the case of Nasasa Cellular (Pvt) Ltd
v South African Post Office Limited
[57471/07 (2010) Zagpphc] 90 wherein the requirements of the common law term functus officio were articulated as
being:
(i)
the same parties (idem actor)
(ii)
the same cause of action (eadem petendi causa)- and
(iii)
the same thing (relief) demanded (eadem res).
It is evident,
from the foregoing, that whilst the parties to the present application are the
same, the cause of action is not the
same. Nor is the relief which the applicants are seeking in casu the same as the relief which they sought when they appeared
before Tagu J.
When
the parties appeared before Tagu J, the cause of action was the default
judgment. The relief which the applicants moved the court to consider in their
favour was a rescission of that judgment. The application for stay of execution
pending appeal is a new matter. That matter was not before Tagu J when he made
a determination of the applicants' application for rescission of default
judgment. I, in this regard, associate myself fully with Mafusire J who, when
dealing with the same parties and on an application of a similar nature under
case number HC 6407/15, aptly defined the term functus officio as follows:
“In the context of legal
proceedings, to be functus officio is
to lack legal competence to adjudicate on the proceedings because one would
have disposed of them previously. To be functus
officio is to have discharged one's office”.
The court is satisfied,
on the basis of the foregoing, that it is not functus officio in so far as the application which is before it is
concerned. The first respondent's submission which was to the effect that it
was fuctus officio was, therefore,
misplaced.
The first respondent's
second in limine matter related to
the certificate of urgency. It stated that the legal practitioner who prepared
the certificate appeared to have entertained the view that the applicants were
confident that the Supreme Court would rule in their favour. It submitted that
the legal practitioner did not appear to share the applicants' confidence in
the appeal which they filed with the Supreme Court. It criticised the legal
practitioner for having made what it termed a bold assertion which was to the
effect that the applicants would suffer irreparable harm. It said the legal
practitioner did not profer any explanation as to why the applicants could not
recover against it when it invested the sum which is the subject of the
proceedings in the main case.
The first respondent did
not say the certificate was detective. All it said was that the author of the
certificate appeared to have based his opinion of the urgency or otherwise of
the application on the confidence which the applicants held in the appeal which
they noted.
It goes without saying
that a legal practitioner who prepares a certificate of urgency bases his or
her opinion on the contents of the applicant(s) founding affidavit. He or she
does not base his opinion of the matter on nothing. Whether or not he expresses
his independent view or he/she bases his view on the strength of the contents
of the affidavit does not, in the court's view, show the certificate to be
defective.
Preparation of the
certificate is a matter of individual approach and style. What is important, at
the end of the day, is that the certificate, as prepared, must bring out to the
fore and to the satisfaction of the court, that the application is urgent.
The legal practitioner
who prepared the certificate did not make bold and unsubstantiated allegations.
He did not state that the applicants would suffer irreparable harm if execution
was allowed to proceed and left the matter at that. He stated that the
applicants' business operations would be adversely affected. He stated,
further, that seeking any redress from the first respondent which is a foreign
company after execution had occurred would not only be very difficult, but
would also be a costly, exercise.
It is not in dispute that
the first respondent is a foreign company. The applicants stated in para 7 of
their affidavit that the first respondent was registered in terms of the laws
of South Africa. The first respondent did not controvert the applicants'
assertions on that matter. All it said was that the applicants were able to
recover from it if the Supreme Court ruled in their favour when execution has
already taken place. It did not state how they would do so if it packed up and
left its operations in this country.
The first respondent's
second preliminary matter could not hold. It raised it as a matter of course.
It was, in fact, devoid of merit.
The
relief which the applicants moved the court to grant to them is based on
principles of equity. Real and substantial justice must not only be done. It
must also be seen to be done. Not granting the applicants the relief which they
are seeking would, in the view which the court holds of the matter, cause them
to suffer irreparable harm. They stated, and the court agrees with them, that
if their application is dismissed the harm which they would suffer would be of
some serious magnitude.
The
balance of convenience, in the court's view, favours the position that
execution be stayed until the applicants' appeal has been heard and determined.
The appeal which they noted, it has been stated, suspends Tagu J's judgment as
well as the default judgment which was entered in the first respondent's
favour. The parties are, in this regard, referred to the wise words of Corbett
JA who in South Cape Corporation v Engineering Management Services 1977 (3)
SA 534 (A) made a definite pronouncement of the law on this aspect of the
matter when he remarked as follows:
“It is today the accepted common
law rule of practice in our courts that generally the execution of a judgment
is automatically suspended upon the noting of an appeal, with result that,
pending the appeal the judgment cannot be carried out and no effect can be
given thereto, except with the leave of court which granted the judgment. To
obtain such leave, the party in whose favour the judgment was given must make a
special application. The purpose of this rule as to the suspension of a
judgment on the noting of an appeal is to prevent irreparable damage from being
done to the intending appellant ...”
Whilst the above cited
words emanated from a court which falls outside our jurisdiction, the
persuasive value of Corbett JA's dictum cannot
be taken to be without weight. It, in the court's view, applies with equal
force and weight to the circumstances of the present case. It requires little
emphasis to state that a positive outcome of the applicants' appeal would be
moot and meaningless if it is delivered when their property has been auctioned.
They averred, and in the court's view correctly so, that seeking any redress
from the first respondent which is a foreign company after the sale in
execution has occurred would serve no meaningful purpose. There is, therefore,
no doubt that a refusal of the application would visit them with serious
injustice. Equity demands that they be allowed to have their day in the Supreme
Court.
The court's sworn duty is
to do justice and not injustice to parties who appear before it. It, to the
stated extent, exhorts the parties not to take an unfair advantage over each
other as that remains a recipe for a multiplicity of litigation. Parties must,
at all times, respect each other's positions and prosecute and/or defend their
cases in terms of laid down principles of court's practices and procedures.
They should not be allowed to rush each other into flouting processes of the
court or court orders. They must have the necessary patience to exhaust the
procedures of court and, at all times, allow due process to take place before they
proceed to assert what they say rightly and lawfully belongs to them.
The court has considered
all the circumstances of this application. It is satisfied that the applicants
proved their case on a balance of probabilities. In the premise, the interim order
is granted as prayed.
Thompson Stevenson
& Associates, applicants'
legal practitioners
Mundia and Mudhara 1st
respondent's legal practitioners
