This judgment flows from an urgent application filed on
behalf of the applicant. The brief background facts to this matter are as
follows.
On 15 August 2014, the applicant filed an urgent
application for stay of execution of a judicial sale which was rejected by
CHATUKUTA J on the basis that it was not urgent. This was followed by this
current application which was filed on 11 December 2014 in a bid to stop a sale
of an immovable property that was scheduled to take place on the next day. The
respondents re-advertised the property for sale and on the eve of the sale set
for 12 December 2014. The same does not appear that counsel for the applicant
edited the application, otherwise he would not have filed the papers with such
glaring anomalies. When the application was placed before me, my first
impression was that the application was way past its sale-by date. The sale
sought to be stopped was going to take place on 16 August 2014 and yet we were
already in December 2014. The sale is supposed to have taken place months earlier.
The application was served on the Sheriff alone and he immediately stopped the
sale. The first respondent, (hereinafter referred to as the respondent), was
not served with a copy of the application. The respondent did not become aware
of the application until the date of hearing.
The application was not followed up and set down until the
respondent did so.
The certificate of urgency, as well as the founding
affidavit, does not allude to the previous application. Amusingly, the
certificate of urgency, signed on 11 December 2014, alludes to the fact that
the sale sought to be stopped was to take place on 15 August 2014. Yet, the
sale in issue was that of 12 December 2014.
If the application was not urgent in August 2014, what
makes it urgent now?
This is not a valid certificate of urgency, and,
consequently, the application cannot be urgent. It is this attempt to hoodwink
the court into believing that this was a fresh application that this court
takes serious exception to. This application amounts to an abuse of court
process. It is as a result of these anomalies that I formed the impression that
the application was not urgent and may have been previously brought although
this fact had not been disclosed.
Although I had formulated the opinion that the application
was not urgent, I directed that the matter be set down for an explanation from
the applicant. On the appointed date, the respondent had filed its notice of
opposition and counsel for the applicant was renouncing agency and was
withdrawing the application with a tender of costs.
The respondent has asked the court to dismiss the
application and make an award of costs de bonis propiis against counsel for the
applicant.
Counsel for the applicant's explanation was as follows.
After he made the initial application, he was made to
understand that it was not filed. His client misled him to believe that the
matter had been resolved between the parties resulting in the sale being
stayed. He learnt that this was not the correct position after the property was
re-advertised for sale. He changed the dates of the previous application and
re-filed the application. The application was served on the Sheriff alone. He
suspects that the applicant may have connived with his messenger to refrain
from serving a copy of the application on the respondent. He was taking
responsibility for the melee and was renouncing agency. He sought to withdraw
the application and tender wasted costs, presumably on the instructions of the
applicant.
The applicant did not bother to attend the hearing of the
application.
The facts surrounding the filing of both the first and the
second application disclose a serious dereliction of duty on the part of counsel
for the applicant. He appeared not to be aware, or care, about the progress of
the applications. He was not even aware that the first application had been
declined. He never followed it up. He filed the second application and did not
bother to chase it up. A Judge saddled with an urgent chamber application is
required to dispose of it within 48 hours. The application is required to be
treated urgently and it is expected that the legal practitioner dealing with
the matter views such application in the same light. Once a legal practitioner
has lodged an urgent application he is required to pay security for costs so
that the matter is placed before a judge. He is expected to consistently follow
it up until he establishes what the attitude and decision of the court over the
matter is. Where a matter has been resolved between the parties, this fact, or
development, should be relayed to the judge. It is not good enough to file an
urgent application and let it roll without following up on its progress.
An urgent application does not resolve itself. Counsel for
the applicant's failure to follow up the applications attracts serious concerns
regarding his attitude to his work and the manner in which he conducts himself
as an officer of this court. He was irresponsible and grossly negligent and
such conduct calls for censure.
The applicant did not only try to deceive the court.
The applicant has succeeded in pulling the carpet from
under the feet of the respondent. The legal practitioner concerned, being fully
aware that this application was not urgent, proceeded to file it as urgent. It
is clear that the applicant did so simply to frustrate the execution against
his property. This, the applicant achieved by selectively serving the
application on the Sheriff and thereby inducing the Sheriff stop the sale.
The failure to serve the application on the respondent
appears to me to be deliberate and gives the picture that the applicant did not
want the respondent to become aware of the application.
The applicant further did not pay the requisite security
for costs to enable the matter to be placed before a judge for determination
and allocation of a possible set down date. The application was in the Registry
from 11 to 17 December and was only referred to the court after the respondent
itself had paid the security for costs so that the application could be determined.
This confirms that the applicant did not file the matter with serious intention
that the matter be determined but rather to subvert the sale of the property.
The applicant worked in cahoots with his legal practitioners to frustrate the
execution process and obstruct the administration of justice.
This sort of conduct cannot be overlooked.
The conduct complained against is attributable to the legal
practitioner concerned, Mr Tariro Paul Machiridza. I am appalled by Mr.
Machiridza's conduct .His conduct is disgraceful. He acted deceptively with a
wanton disregard of the rules and procedures of this court. He not only abused
this court but was casual in his approach, unethical and unprofessional. There
is a growing tendency on the part of legal practitioners to recycle
applications in the hope that courts will blink and deal with the matters as if
fresh.
An application does not become urgent simply because you
have re-launched it.
Once an urgent application has been filed, it should be
served on all parties - and timorously. There is no room for hide and seek in
the courts. Let me sound a warning to legal practitioners with a like mind.
Laziness, ineptitude, and fraud do not pay and should never be a part of a
legal practitioner's portfolio. Legal practitioners who resort to this sort of
conduct do so at their own peril. They should not cry foul when courts frown at
their conduct and visit such conduct with dismissal of applications and they
get penalised personally for this type of conduct….,.
The applicant himself cannot escape unscathed.
The applicant himself has seriously abused this court, with
the assistance of his legal practitioner, and I have decided, in my discretion,
to dismiss the application and order that the applicant be barred from bringing
the same application in the future.
In the result, it is ordered as follows:-
1. The Urgent Chamber Application be and is
hereby dismissed and the applicant is barred from filing any application
further to stay the sale in execution of the movable property known as Lot 4 of
Subdivision E of Christon Bank.
