On
two occasions this matter appeared on my opposed motion court roll.
And on two occasions I struck it off; on the second occasion with the
tacit concurrence of both parties.
The
background to this case was this.
The
applicant had been an employee of J. W. Jaggers Wholesalers (Private)
Limited (“Jaggers”)
before it went bankrupt. Among the applicant's employment benefits
was subsidised accommodation in one of Jaggers' houses. After J. W.
Jaggers Wholesalers (Private) Limited's placement into liquidation,
the first respondent, in his capacity as the liquidator, went about
disposing, on the open market, of J. W. Jaggers Wholesalers (Private)
Limited's assets - including the house the applicant stayed in. The
applicant brought an urgent chamber application, inter
alia,
to restrain the first respondent from disposing the house to anyone
else other than himself. His argument was that as an employee and
sitting tenant he had the right of first refusal in any intended sale
of that house. MATHONSI J declined to hear the application on an
urgent basis. Among other things, the learned judge pointed out that
the applicant was labouring under a misconception. The right of first
refusal is not automatic but is one conferred by agreement.
The
applicant converted his urgent chamber application to an ordinary
court application. It was then referred to the ordinary roll. In due
course it came before MTSHIYA J. In default of appearance by the
first respondent, the learned judge granted the order sought by the
applicant.
It
was an interim order.
In
the main, the order interdicted the transfer of the house to the
second respondent, the buyer, pending the determination of the
applicant's rights. The order also directed that the house be
placed back on the market if the sale had already happened. Finally,
the order gave the applicant the right to buy the house.
That
was on 27 May 2014.
After
that, the first respondent applied for the rescission of the order by
MTSHIYA J. The application came before CHIGUMBA J. The application
was granted in default of appearance by the applicant. That was on 2
July 2014.
After
that, the applicant applied for the rescission of the order by
CHIGUMBA J….,.
The
next development was the placement on my opposed motion court roll,
on 15 January 2015, of the same application by the applicant that
MTSHIYA J had, in May 2014, disposed of. The applicant's
application for the rescission of the order by CHIGUMBA J was still
pending.
Before
me the applicant expressed surprise that his original application had
once again found its way back to court. He had not been responsible
for its set down. He was emphatic that it was the first respondent's
legal practitioners that had set it down. He said he had no interest
in that application anymore because before MTSHIYA J he had since got
what he wanted.
There
was nothing in the record to suggest how the matter had found its way
onto my list of opposed matters for that day. The first respondent
was in default. But the Sheriff's return of service indicated that
the notice of set down had been duly served on the first respondent's
legal practitioners a good ten days before. At the applicant's
instance, I struck the matter off the roll. At any rate, whoever had
wanted it back in court had done so prematurely. The application for
the rescission of the order by CHIGUMBA J was still pending.
Unfortunately,
that was not the end of the matter.
About
two months later, i.e. on 2 April 2015, the same matter was, once
again, placed on my list of opposed applications. This time both
parties were present; the applicant in person and the first
respondent represented by his legal practitioners. The applicant
repeated the same point that he had no interest in that application
being determined again because it had already been disposed of by
MTSHIYA J. He expressed bitterness on the manner in which the first
respondent and his legal practitioners were allegedly bent on
frustrating his efforts to get back the house and how they had now
caused his eviction.
In
response, counsel for the first respondent made some submissions that
I could not easily comprehend. What I understood, though, was that as
the first respondent's legal practitioners they had not been
advised of the date of hearing the first time the matter had appeared
before me earlier on in January 2015. This was despite the fact that
the set down of the matter had been at their instance, and that the
Sheriff's return of service had indicated that the Notice of Set
Down had been served on them. However, she said, all that was now
water under the bridge. The applicant could not proceed with his
application because any order of this court would be a brutum
fulmen.
She said even before the order of MTSHIYA J, in May 2014, the sale of
the house had already taken place. Transfer had subsequently been
registered in the name of the second respondent. Recently, the
applicant had been evicted from the house. So the applicant was
kicking a dead horse.
Following
certain queries raised by myself, inter
alia,
on the status of the application for the rescission of the order by
CHIGUMBA J and what the effect would be should that application
succeed, counsel for the first respondent suggested that the
application before me be postponed sine
die
pending the determination of the rescission application. However,
following further exchanges with both parties, there was some kind of
consensus reached. It was best that the application be struck off the
roll but I expressed concern on the manner in which the first
respondent's legal practitioners had handled the whole matter; not
least their default of appearance in January 2015, their premature
set down of their application before CHIGUMBA J, an aspect that the
Registrar of this court and the Judicial Service Commission had
conceded, and their insistence to have the same matter being set down
on the opposed roll only for them to seek that it be dismissed,
struck off or postponed sine
die….,.
In
the end the matter was struck off the roll.
