This
application, although it does not specify the rule of court in terms
of which it is made, could only have been made on terms of Rule
348A(5a) of the High Court of Zimbabwe Rules, 1971. I say so because
the five (5) applicants who have come to court, on a certificate of
urgency, seek the following relief:
“FINAL
ORDER SOUGHT
1.
That the 1st
and 2nd
respondents be barred from selling in execution applicants'
immovable properties, namely, Stand 56 Rodel Township 3 of Rodel,
measuring 4,1183 hectares; Stand 2032 Glen Lorne Township of Stand
322 Glen Lorne Township of Lot 3A, Glen Lorne, measuring 1,0219
hectares; Stand 2136 Mabelreign Township, measuring 971 square
metres, for a period of four months from the date of this order.
2.
That each party bears its own costs.
INTERIM
RELIEF GRANTED
That,
pending the return date, the following relief is granted;
1.
The respondents be and are ordered to suspend the proposed sell (sic)
in execution of applicants' immovable properties, namely, Stand 56
Rodel Township 3 of Rodel, measuring 4,1183 hectares; Stand 2032 Glen
Lorne Township of Stand 322 Glen Lorne Township of Lot 3A, Glen
Lorne, measuring 1,0219 hectares; Stand 2136 Mabelreign Township,
measuring 971 square metres.
2.
There be no order as to costs.”
The
applicants' properties have been advertised for sale in execution
on 27 April 2014 and they would want the sale to be postponed for a
period of four (4) months to enable them to pay off the debt in terms
of a payment plan they have put forward. Therefore, there can be no
doubt that the application is made in terms of Rule 348A(5a) which
provides:
“Without
derogation from subrules (3) to (5), where the dwelling that has been
attached is occupied by the execution debtor or members of his
family, the execution debtor may, within ten days after the service
upon him of the notice in terms of Rule 347, make a chamber
application in accordance with subrule (5b) for the postponement or
suspension of -
(a)
The sale of the dwelling concerned; or
(b)
The eviction of the occupants.”
The
first applicant states, in his founding affidavit, that the sale will
result in the two families suffering loss and leave them destitute
when they have 'demonstrated unquestionable commitment' to settle
the debt. They would want an opportunity to do so in a less painful
way. Therefore, if the application is made in terms of Rule 348A(5a),
it must comply with that Rule - including the dies
inducae
of ten (10) days provided for in that Rule.
Counsel
for the first respondent has taken a point in limine
that the application has been made outside the prescribed period
without condonation of the departure from the Rules. He submitted
that the applicants were served with the notice on 20 March 2015,
and, when the application was filed, on 16 April 2015, it was already
out of time. It could not be made without condonation of the failure
to act timeously.
In
his founding affidavit, the first applicant alleges that the notices
were served on the first and second applicants on 28 March 2015 and
on the third applicant on 2 April 2015. If that is the case, then the
first and second applicants had until 15 April while the third
applicant had until 20 April 2015 during which to bring the
application. When the application was filed, on 16 April 2015, the
first and second applicants were out of time by one day while the
third applicant had time to spare.
It
is common cause that no application for condonation has been made for
the late filing of the application. There is a catena of cases to the
effect that for condonation to be granted, there must be a
substantive application for it. In Forestry
Commission v Moyo
1971
(1) ZLR 254 (S)…, GUBBAY CJ stated:
“I
entertain no doubt that, absent an application, it was erroneous of
the learned judge to condone what was on the face of it, a grave
non-compliance with Rule 259. For it is the making of the application
which triggers the discretion to extend the time. In Matsambire
v Gweru City Council
SC183-95 (not reported) this court held that where proceedings by way
of review were not instituted within the specified eight weeks
period, and condonation of the breach of Rule 259 was not sought, the
matter was not properly before the court. I can conceive of no reason
to depart from that ruling. One only has to have regard to the broad
factors which a court should take into account in deciding whether to
condone such a non-compliance, to appreciate the necessity for a
substantive application to be made. They are:
(a)
That the delay involved was not inordinate, having regard to the
circumstances of the case;
(b)
That there is a reasonable explanation for the delay;
(c)
That the prospects of success, should the application be granted, are
good; and
(d)
The possible prejudice to the other party should the application be
granted.
See
Director
of Civil Aviation v Hall
1990
(2) ZLR 354 (S) at 357 D-G.
How
can a court exercise a judicial discretion to condone when the party
at fault places before it no explanation for the delay?
Moreover,
in every such application, the respondent is entitled to be heard in
opposition. He must be permitted an opportunity to persuade the court
that the indulgence sought is not warranted. Without hearing him, how
can a court, for instance, be satisfied that he will suffer no
possible prejudice by the condonation?”
It
has long been decided that an application for condonation must
precede the main application. A party who finds himself out of time
to make an application must first seek condonation before making the
application; Sibanda
v Ntini
2000
(1) ZLR 264 (S); Viking
Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd
1998
(2) ZLR 249 (S)…,.
As
stated by NDOU J in Sai
Enterprises (Pvt) Ltd v Girdle Enterprises (Pvt) Ltd
2009
(1) ZLR 352 (H)…,:
“This
court is bound by the precedents set by the Supreme Court. Arguing
against such clear decisions of the Supreme Court is the
province of academics and not this court.”
I
conclude, therefore, that if the first and second applicants would
like to save their property by a Rule 348A(5a) application, they have
to seek condonation first, whichever way one reckons the time; be it
from 20 March 2015, as advocated by the first respondent, or 28 March
2015 which the applicants are relying upon.
Until
that is done successfully their application is improperly before me
and would have to be struck off….,.
Counsel
for the first respondent correctly abandoned his assertion that a
sale may have occurred on 17 April 2015. If the second respondent,
who did not bother to appear or submit a report, had indeed attempted
to sell the properties on that date such a sale would have been
invalid for two (2) reasons, namely, that he had already been served
with this application on 16 April 2015 and would have known that the
matter awaited determination. Secondly, the notice of sale, in terms
of Rule 347, served upon the applicants, set the date of sale as 27
April 2015. Any sale before that date would be invalid.
That
only leaves the application of the third respondent, whose dwelling
in Mabelreign is also under the threat of execution.
He
has stated, in his affidavit, that his family will suffer great
hardship if it is sold because it is their only home. He associates
himself fully with the contents of the first applicant's affidavit
in which it is stated that a genuine offer to clear the debt owed to
the first respondent has been made and that if all the efforts being
made to raise the money achieve the results the debt will be
liquidated within the time that they request. A payment of $200,000=
is expected from the applicant's debtor which will significantly
reduce the debt when paid to the first respondent. The applicants are
committed to clear the debt, and, if allowed to sell the property in
Nyanga by private treaty, the debt will be cleared.
In
opposition, the first respondent asserts that the applicants'
proposals are nothing but “hot air.” They have, in the last few
months, been making commitments which have not been honoured and for
that reason they are not entitled to any further indulgence. In
addition to that, the money owed by the applicants is for the benefit
of minor children who are now being prejudiced by the delay in
settlement.
In
terms of Rule 348A(5e) -
“If,
on the hearing of an application in terms of subrule (5a) the judge
is satisfied -
(a))
That the dwelling concerned is occupied by the execution debtor or
his family and it is likely that he or they will suffer great
hardship if the dwelling is sold or they are evicted from it, as the
case may be; and
(b)
That –
(i)
The execution debtor has made a reasonable offer to settle the
judgment debt; or
(ii)
The occupants of the dwelling concerned require a reasonable period
in which to find other accommodation; or
(iii)
There is some other ground for postponing the sale of the dwelling
concerned or the eviction of its occupants, as the case may be;
the
judge may order the postponement or suspension of the sale of the
dwelling concerned or the eviction of its occupants, subject to such
terms and conditions as he may specify.”
In
Masendeke
v Central Africa Building Society & Anor
2003
(1) ZLR 65 (H) CHINHENGO J stated that the requirements set out in
sub-rule (5e) are disjunctive even though in Rule 348(5a) they are
linked by “and.” If one requirement is eminently met then the
fact that the other requirement has not been fully met does not debar
the applicant from obtaining an order for postponement or suspension.
At 68 H and 69 A-B the learned judge said:
“It
is necessary to underline the requirements of Rule 348(5e) in regard
to the aspect on which the judge must be satisfied. It is not enough
that the execution debtor or his family will suffer hardship if the
dwelling is sold. The judge must be satisfied that the hardship is
great. In my view, the hardship must be more than
the ordinary hardships which persons deprived of their place of
residence ordinarily suffer as the attendant inconveniences in
finding and paying for alternative accommodation or the need to
relocate to another residential place such as rural home or a rented
accommodation. The hardship must be great in that it results in the
execution (debtor) being rendered homeless or destitute. The second
requirement relevant to this application is whether the execution
debtor has made a reasonable offer to settle the judgment debt.
Subrule
(5e)(b)(iii) of Rule 348A also empowers the judge to postpone or
suspend the sale of the dwelling for 'some other good ground.'”
The
third applicant has not elaborated on the kind of hardship he and his
family will be subjected to as a result of the sale of the dwelling.
What has, however, swayed me is the fact that the judgement debtor
appears to have made a reasonable offer to settle the debt. Granted,
the amount owed being $344,323= is a substantial amount of money.
However, I am mindful of the fact that the positions the parties
currently occupy only came about by virtue of a cession signed two
(2) months ago, on 16 February 2015. Since then, the debtor has made
payments amounting to $75,000= and appears to have been relentless in
trying to find ways to settle the debt. More importantly, they are
not asking for a long stretch of time to settle the debt, but only
four months.
I
am therefore satisfied that a reasonable offer has been made. Even if
the judgment debtor does not honour it, a delay of four months in
execution is not, in my view, an earth-shattering occurrence or a
train smash as would unduly prejudice the judgment creditor, who will
still be at liberty to proceed with the execution.
In
the result, it is ordered that -
1.
The application of the first and second applicants is hereby struck
off as being improperly before me.
2.
The application of the third applicant succeeds in that the
provisional order is granted in favour of the third applicant as
amended.
