The
background facts are that sometime in December 2011, the first
applicant and the second respondent entered into what the first
applicant described as “an agreement of exchange” wherein he
received two motor vehicles, namely, a BMW and a Suzuki pick-up truck
from the second respondent in exchange for his Toyota Hiace.
Subsequently,
the Toyota Hiace was impounded by the police on allegations that it
was a stolen vehicle, leading to the first applicant's arrest.
Meanwhile, the second respondent issued summons against the first
applicant claiming the value of her two motor vehicles. She obtained
a default judgment, under case number HC1938/12, against the first
applicant.
The
second respondent obtained a writ of execution leading to the sale of
the property on 28 August 2013. The first respondent then informed
all interested parties, including the first applicant and his
erstwhile legal practitioners to file written objections to him
within 15 days from the date the highest bidder was declared to be
the purchaser in terms of Rule 356 or the date of sale in terms of
Rule 358 of this court's Rules. The parties were warned that if no
objections were received, the first respondent would proceed to
confirm the sale.
No
such objections were received by the first respondent.
The
third respondent was then declared and confirmed as the purchaser of
the property at the sum of US40,000= on 17 October 2013.
The
first applicant, through his lawyers, Messrs Marondedze, Mukuku,
Ndove and Partners, filed a chamber application on 16 July 2013
seeking the postponement or suspension of sale under case number
HC1800/13. The application was dismissed by KAMOCHA J on the grounds
that it had been served on the respondents when the property had
already been sold.
The
first applicant then filed this application on 4 August 2015 seeking
the following relief;
“1.
Applicants be and are hereby granted condonation for leave to file
the application to have the decision of the Sheriff of Zimbabwe
confirming sale of a certain piece of land, being Stand 4022 Khumalo
Township of Stand 4125 Bulawayo, commonly known as Number 36
Ellington Avenue, Khumalo, Bulawayo set aside in terms of Rule 359 of
the High Court Rules, 1971 out of time.
2.
Each party to bear its own costs.”
The
basis upon which the application has been made can be gleaned from
the first applicant's founding affidavit. I summarise them thus;
1.
The first applicant believed that his erstwhile lawyers had made an
application to set aside the sale.
2.
He only discovered that the lawyers had done absolutely nothing when
the third respondent was granted an order, under case number
HC214/14, to transfer the property to his name.
3.
His failure to ensure that his instructions were executed by his
erstwhile lawyers was mostly caused by the fact that at the material
time he was incarcerated on allegations which gave rise to the
judgment debt.
4.
The applicant contended that he has bright prospects of success in
that the property was “given away at an outrageously unreasonable
price.”
5.
He also submitted, finally, that his family will become destitute as
the purchase price is insufficient to secure them alternative
accommodation.
The
applicants filed heads of argument and their lawyer made oral
submissions during the hearing. It was contended, on the applicants'
behalf, that it was never their wish to display a wilful disdain of
the Rules of this Court.
The
second and third respondents opposed the application on generally
similar grounds.
They
argued that the applicants have not established the requirements of
such an application in that the delay is inordinate, the explanation
for the delay is unreasonable and the prospects of success are not
bright.
As
regards the delay, the respondents argued that the applicants were
supposed to act no later than the 30th
of November 2013. They did not do so until the 4th
of August 2015 when they filed this application, i.e. more than
twenty (20) months later. Therefore, the application is “glaringly
inordinate.”
In
respect of the reasonableness of the explanation, the respondents
submitted that it is incorrect to attribute the delay to the first
applicant's incapacity due to incarceration, in that at the time
the need to act arose, the first applicant had been released from
prison. He was released on 13th
September 2013 and was required to act in November 2013. Through his
current legal practitioners, he filed a chamber application under
case number HC2815/13 on 7 November 2013.
The
first applicant's contention, in paragraph 14 of his founding
affidavit, that he “only discovered that his erstwhile lawyers had
done nothing when the third respondent was granted an order by Hon.
MAKONESE J, under case number HC214/14, to transfer the property to
his name” is clearly untrue as that judgment was delivered on the
2nd
of July 2015 and it took the applicants a full month to file this
application. In any case, the applicants should have realised, in
April 2015, that their erstwhile lawyers had done nothing to set
aside the sale. This is so because the third respondent applied for
and was granted a provisional order on 24 April 2015.
It
was further argued that the applicants had no prospects of success in
that they cannot complain about the low price when they refused the
auctioneers access to the building. Since they created this
situation, they cannot expect the court to protect their interests.
Also, the applicants have not placed any evidence to suggest that the
price for which the house was sold is unreasonably low. In any case,
according to the distribution plan, the first applicant is to be paid
an amount of US$18,143=50 which amount has not been shown to be
inadequate to secure alternative and decent accommodation for the
applicants and their family.
In
Kodzwa
v Secretary for Health & Anor
1999 (1) ZLR 313 (SC) it was stated that:
“The
factors which the court should consider in determining an application
for condonation are clearly set out in HERBSTEIN & VAN WINSEN,
The
Civil Practice of the High Courts of South Africa,
5th
edition, CILLIERS and LOOTS at page 897 -898 as follows:
'Condonation
of the non-observance of the Rules is by no means a mere formality.
It is for the applicant to satisfy the court that there is sufficient
cause to excuse him from compliance.'
The
court's power to grant relief should not be exercised arbitrarily
and upon the mere asking but with proper judicial discretion and upon
sufficient and satisfactory grounds being shown by the applicant. In
the determination whether sufficient cause has been shown, the basic
principle is that the court has a discretion to be exercised
judicially upon a consideration of all the facts, and, in essence, it
is a matter of fairness to both sides in which the court will
endeavour to reach a conclusion that will be in the best interests of
justice.
The
factors usually weighed by the court in considering applications for
condonation include the degree of non-compliance, the explanation for
it, the importance of he case, the prospects of success, the
respondent's interest in the finality of his judgment, the
convenience of the court and the avoidance of unnecessary delay in
the administration of justice.”…,.
See
also Bishi
v Secretary for Education
1989 (2) ZLR 240 (HC); United
Plant Hire (Pvt) Ltd v Hills & Ors
1976 (1) SA 717 (A); Chimunda
v Zimuto & Anor
SC361-05; Viking
Woodwork (Pvt) Ltd vs Blue Bells Enterprises (Pvt) Ltd
1998 (2) ZLR 249 (SC).
These
requirements have been summarised as;
(a)
The degree of non-compliance.
(b)
The explanation therefore.
(c)
The prospects of success on the merits.
(d)
The importance of the case.
(e)
The convenience of the court.
(f)
The avoidance of the unnecessary delay in the administration of
justice.
Applying
these principles to the case in
casu,
I find that the degree of non-compliance with the Rules is excessive
in that it took the applicants 1 year and 8 months to file this
application. It should be noted that Rule 359(8) of the High Court
Rules 1971 requires that an application in terms of that Rule be
filed within 30 days of the date of confirmation. The decision the
applicants seek to set aside
in casu was made on 17 October 2013. The applicants were supposed to
act no later than 30 November 2013 but they waited until the 4th
of August 2015.
In
Chidziva
and Ors v Ziscosteel Co. Ltd
1997 (2) ZLR 368 (S), a delay of five (5) months was held to be
inordinate and the application for condonation was dismissed.
In
casu,
the first applicant admits, in paragraph 17 of his founding
affidavit, that the delay is inordinate. He admitted that he became
aware of the Sheriff's decision to confirm the sale on the 16th
of
October 2013….,.
As
pointed out above, the first applicant's explanation for not acting
timeously is untruthful as he was a free man when the time to act
arose in November 2013. The second applicant has not tendered an
explanation whatsoever on why she did not pursue the court
application. Her affidavit is hollow and inadequate in this regard.
In my view, the applicants deliberately abstained from acting due to
lack of diligence. The expression, vigilantibus
non dormientibus jura subveniunt,
loosely translated to mean, the law will help the vigilant but not
the sluggard applies to them with equal force.
See
Ndebele
v Ncube
1992 (1) ZLR 288.
I
take the view that the applicants have been too cavalier in their
approach in that they have not explained their default in a manner
that can convince me to exercise my discretion in their favour.
As
regards prospects of success, I am of the view that the applicants
have no prospects of success on the merits because the applicants, or
one of them, were intent on frustrating the sale of the immovable
property such that they refused the auctioneers access to the
property. Further, there is no evaluation report to determine the
value of the property. Therefore, there are no reasonable grounds, in
my view, to conclude that the US$18,143=50 due to the first applicant
is inadequate to secure alternative decent accommodation for the
applicants' family.
Both
applicants did not address the issue of the importance of the case in
their papers. From the totality of the submissions, I am convinced
that the importance of this case to the applicants is open to doubt.
Surely, if indeed the applicants were interested in this case, they
would have prosecuted their matter diligently, timeously, and their
application would have canvassed all the requirements for an
application of this nature. This application is an after-thought
designed to frustrate the various judgments of this court.
Finally,
as regards the convenience of the court and the avoidance of
unnecessary delays in the administration of justice, it is the policy
of the law that there should be finality to litigation – see
Deweras
Farm v Zimbank
1997 (2) ZLR 47.
In
casu,
not only have the applicants delayed in noting their application,
they have offered no plausible reasons for their non-compliance.
Further, they demonstrated that they enjoy no good prospects of
success at all. The inconvenience that would be occasioned upon the
respondents if condonation were granted would be immense. So far,
there has been a multiplicity of litigation involving these parties.
For the respondents, defending further proceedings means more costs.
Also, the court is over-burdened with cases that require its
audience. It would not be in the interests of justice and fairness to
all other litigants, and the court's resources, to allow the
applicants to be heard in an application in terms of Rule 359(8)
whose provisions they have not complied with.
I
find that this application is devoid of merit in that the applicants
have not only inordinately delayed in filing their application but
have also dismally failed to offer a reasonable and acceptable
explanation for their non-compliance. They did not show any good
prospects of success. The applicants have failed to establish and
satisfy the requirements for an application of this nature.
Consequently, the court cannot exercise its discretion as it would
unnecessarily delay the administration of justice and inconvenience
the court.
In
the result, the application is dismissed with costs.
