MATHONSI
J: The applicant was ordered by the magistrates court sitting
at Beitbridge to pay the respondent a sum of $9800-00 by a judgment delivered
on 28 January 2013. He lodged an appeal
to this court on 1 February 2013.
By
letter dated 13 November 2015, which he says was received by his legal practitioners
“sometime in November 2015”, the registrar of this court notified the applicant
of the sad news that his appeal had lapsed in terms of the rules of court by
reason that he had failed to pay the costs of preparation of the record and to
give security for the respondent's costs of the appeal.
The
applicant did not do anything about that outcome until he received notification
from the messenger of court on 22 February 2016 to the effect that his house
number 4542 Medium Density Beitbridge had been attached for sale in execution
on 4 March 2016. Rising from his slumber
he deposed to the founding affidavit in this urgent application the following
day on 23 February 2016.
He
has therefore brought this application on a certificate of urgency seeking what
is in essence final relief being the reinstatement of his appeal and a
condonation of his failure to pay the costs of preparation of the record and
the respondent's security for costs.
The
application is fraught with irregularities.
In the first place the applicant cannot seek final relief in an
application of this nature. Secondly, he
cannot seek condonation or a reinstatement of an appeal by urgent application
and certainly cannot hope to stay execution by such an application where he
does not even seek an order for stay.
The
applicant seems to wallow in the misconception that by reinstating his appeal
that takes care of execution against his property. He has simply made a wrong application. He should have made an application for stay
of execution. Whichever way, the
applicant cannot be heard on an urgent basis at all because this appears to be
self-created urgency, that urgency which stems from a deliberate inaction until
the day of reckoning is nigh.
The
applicant was aware of the dismissal of his appeal in November 2015 but did
nothing. It is only after three months
that he has decided to come on an urgent basis and only because of the
attachment of his property. It does not
work that way.
This
is an application which should not have been made in the manner that it has
been made especially in light of the fact that the applicant is represented by
a legal practitioner. For that reason
there is need for costs to be awarded to the respondent, who has been
unnecessarily put out of pocket, on a higher scale as a seal of the court's
displeasure at such blatant disregard of the rules.
In
the result, it is ordered that:
1. The
hearing of the matter as urgent is hereby refused.
2. The applicant shall bear the respondent's
costs on a legal practitioners and client scale.
Mutendi and
Shumba C/o Sansole & Senda,
applicant's legal practitioners
W. Tshakalisa, C/o S. Mlaudzi & Partners
respondent's legal practitioners
