This is an urgent chamber application filed on 1 July 2015
and argued on 6 July 2015.
The application and relief sought are clear and straight
forward. However, the same cannot be said about the history of the numerous
cases filed by the same parties in this court. The following exposition will
show how thoroughly confusing the situation has become.
The applicant is the registered owner of Tengold Reef
claims named Eric 21. The first and second respondents are former Directors of
the first applicant who were dismissed as Directors of the company by virtue of
a High Court order under HC3986/12. On 16 September 2014, the first and second
respondents filed an urgent chamber application, under case number HC2167/14,
seeking to interdict the applicants from interfering with Tengold Reef Mine. The
respondents obtained a default interim order.
Later, on 15th January 2015, the respondents obtained a final
order. The applicants then filed an application for rescission of judgment
which was granted on 26 March 2015. The applicants then instructed their
erstwhile legal practitioners, Cheda & Partners, to file a notice of
opposition in case number HC2167/14. Apparently, no notice was filed due to
problems that bedeviled that legal practice at that time. The applicants then
searched for the file which could not be located timeously.
Be that as it may, the respondents set the matter down on
the unopposed roll and a default judgment was granted on 24 June 2015. There
was a notice of opposition filed of record as at that date. In the provisional
order under case number HC2167/14, granted on 26 November 2014, the first and second
respondents sought a final order in the following terms:
“(a) The respondents be
and are hereby ordered not to sell the mine in question.
(b) The respondents be
and are hereby interdicted from selling mining equipment situated on the mine
in question or anywhere else unless in terms of the law.
(c) The respondents to pay costs of suit on an
attorney-client scale.”
It appears that without first filing and serving the
applicants' practitioners with a notice of amendment, the first and second
respondents unilaterally altered the terms of the final order sought by
including the following clauses which are not supported by their founding
affidavit:-
“(2) The respondents be
and are hereby ordered not to interfere with the applicants' operations at the
mine and not to interfere with equipment thereat.
(4) The respondents be and are hereby interdicted from
going to the mine known as Eric 21 Trianic Investments (Pvt) Ltd, Filabusi.”
Armed with a default judgment incorporating the above
clauses, the respondents obtained a writ directing the third respondent to
evict the applicants from the mine on 3 July 2015. The applicants were served
with the notice of eviction on 30 June 2015 and have since filed an application
for rescission in this court under HC1713/15. They also filed this application
on 1 July 2015 seeking the following interim relief:-
“Pending the finalization of the matter, the applicants be
granted the following relief:-
1. That execution of case number HC2167/14 be and is hereby
stayed pending the finalization of the application for rescission of judgment
under case number HC1713/15.
2. The 3rd respondent be and is hereby
interdicted from evicting the applicants or anyone claiming possession through
them from Eric 21 Mine.”
The application was vigorously opposed by the respondents.
The history I have set out earlier helps one to appreciate counsel
for the first and second respondents' preliminary
points.
The first point in limine raised is that the matter is not
urgent at all in that the order was granted in September 2004 and the
applicants waited for doomsday before acting.
He referred to the background and explained how the
following cases were filed.
(a) HC141/15, an application for rescission of judgment
granted on 26 March 2015.
(b) HC390/15, an urgent chamber application filed on 19
February 2015 for stay of execution. Application dismissed on 19 March 2015.
(c) HC2167/14, an application for rescission of judgment.
(d) HC1713/15, an application for rescission of a default
judgment issued on 24 June 2015 under case number 2167/14.
When the application was filed, all these records were not
attached to this record.
The court had to request the Registrar to attach them - and
this took quite sometime. Upon perusing all of them, it became clear that while
they explain the historical background they are of little help in deciding the
question of urgency. What is critical is how the applicants treated this matter
after they became aware of the default judgment granted on 24 June 2015 – See
Kuvarega v Registrar General and Anor 1998 (1) ZLR 188 (H) where CHATIKOBO J…,
said –
“What constitutes urgency is not an imminent arrival of the
day of reckoning, a matter is also 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 deadline draws near is not the type
of urgency contemplated by the Rules…,.”
In this case, the applicants became aware of the judgment
on 30 June 2015 and they immediately filed an application for rescission under
case number HC1713/15 and this application.
In the circumstances, it cannot be said that the applicants
did not treat this matter with urgency. For these reasons, I find that the
matter is urgent.
The focus should be on the default judgment and the
respondents' conduct shortly after obtaining the default judgment on 24 June
2015.
The second point in limine was that there is no proper
application before the court for the following reasons:
(a) The application is tainted with fraud in that Mr
Chikarara's (the deponent) signature on the documents filed is different.
(b) That the deponent to the founding affidavit has no
locus standi in that annexure A does not state who gave him authority to
represent the first applicant.
(c) That since the main application (that is the one for
rescission of judgment) is not in terms of Rule 449, the applicant cannot
obtain an order in terms of Rule 449 by way of an urgent chamber application.
(d) That one cannot obtain a relief for stay of
execution pending nothing....,.
The final point, that one cannot obtain a relief for stay of execution pending nothing, is without merit in that the applicants successfully made an oral application to amend his papers to include the citation of case number HC1713/15 which is the application for rescission of judgment.
