Urgent
chamber application
MATHONSI
J:
An
abuse of court process is the use of the process of the court for
purposes for which it is not meant. It is unfortunate in the extreme
and should be supressed by all means possible as resort to it by
litigants has always tended to bring the administration of justice to
disrepute. The moment a litigant thinks he or she can come to court
to seek shelter against imminent execution, not because the litigant
has a cause of action but because they think they can mumble
something in an application and hope that while the court struggles
to decipher what it is they are saying, they can enjoy to shelter
under the court's wings delaying the inevitable as much as
possible, that is an abuse of court process. It is even more
repugnant when it appears to be instigated by the involvement of a
legal practitioner, who, as an officer of the court, should know
better.
The
2 applicants have come to court on an urgent basis seeking the
following relief:
“TERMS
OF THE FINAL RELIEF SOUGHT
(sic)
That
you show cause to this Honourable Court why a final order should not
be granted in the following terms:
(a)
Stay of execution be and is hereby granted.
(b)
Cost of suit should not be awarded against 1st
respondent.
INTERIM
RELIEF GRANTED
Pending
the finalisation of this matter:- (sic)
(c)
The execution of the first respondent's writ of execution in
HC2594/13 be and is hereby stayed pending the finalisation of 1st
and 2nd
applicant's application for rescission of judgement in HC6560/14.
(d)
Costs of suit are granted in favour of applicant on an ordinary
scale.”
Never
mind the procedural challenges posed by the wording of the
provisional order, the grammatical frailties and the disregard of
Form 29C given in the rules of court, but this is an application in
which the applicants seek to renege from a judgement granted at a
pre-trial conference by consent following a Deed of Settlement by the
parties.
On
19 June 2012 the 2 applicants concluded a sale agreement with the
first respondent in terms of which they sold to him a 25 acre piece
of land in Chegutu for $26,500-00. When they failed to transfer the
land to the purchaser, in breach of the agreement, he cancelled it
and sued for the return of the purchase price. Although the
applicants initially resisted the suit, they relented at the
pre-trial conference. Self–acting, they signed a Deed of Settlement
which was then reduced to a consent order granted on 3 June 2014, per
BHUNU J, in terms of which they are required to pay the sum of
$26,500-00 to the respondent. It would appear that when the Deed of
Settlement was concluded the applicants had committed to paying the
debt by 31 May 2014 but the ink on the Deed had hardly dried when
they returned, down on their knees, they filed a document which they
christened: “Request for further extension on Deed of Settlement”
to wit:
“The
1st
and 2nd
defendants (the applicants herein) having reached settlement with the
plaintiff on all issues in dispute on or before the 31st May 2014
hereby kindly request for the extension on stay of execution due to
the following reasons:
1.
That the defendants had entered into an agreement with a third party
who had agreed to advance them with the proceeds from the sale of
tobacco harvest.
2.
The above was to be done before the 31st
of April 2014 (sic).
3.
That the liquidity challenges currently being faced in the country's
economy has had a serious negative bearings (sic) on issues such as
this one which require liquidity settlement.
4.
-------.
5.
Be and it is hereby kindly requested a further extension to time and
further PTC before Honourable Justice BHUNU to consider and probably
agree on a new payment plan being proposed by the defendants as
follows:
(a)
That a down payment of $1,000-00 (one thousand dollars) on or before
31 May 2014 from the soya bean harvest from a buyer who has already
been identified.
(b)
That a monthly instalment of $500= (five hundred dollars) from
horticulture proceeds until the whole amount is settled.
(c)
Consider amortisation figures to cover interest on the monthly
outstanding balance.
6.
------.” (The underlining is mine)
The
buyer of soya beans must have disappointed because on 10 June 2014
the applicants, this time acting through their legal practitioners,
Ngarava, Moyo & Chikono, dispatched another proposal in the
following:
“Our
client advised us that the matter had gone to pre-trial conference
level and a Deed of Settlement was signed by the parties to the
litigation. Considering the economic environment prevailing it has
turned out that it is very difficult for the other party to fulfil
their part of the bargain. We note that the land in question is still
available. We are in the process of getting instructions from our
client with a view of settling the matter amicably. We are aware that
efforts have always been made to achieve the same result.”
Enter
a new set of legal practitioners following the attachment of property
on 31 July 2014 and the commendable spirit of amicably settling the
matter is sacrificed at the alter of expediency and the applicants
start singing a different tune.
In
the founding affidavit of the first applicant, he states that they
“did not fully appreciate the consequences of our concession” and
go on to mumble something to the effect that they thought they were
only admitting to having received the purchase price and that they
have now been advised by their legal practitioners that they have a
bona fide defence in that the first respondent was unjustly enriched
by occupying the piece of land for 2 years.
They
have now filed an application for rescission of the consent judgment
and would want execution to be stayed pending a determination of that
application.
Now,
to me this is trifling with the court in the extreme and a lamentable
abuse of process. It would appear that the applicants underwent their
damascene experience the moment they sought and obtained legal
counsel from a new set of legal practitioners. The same people who
admitted receiving the purchase price and failing to transfer the
land to the buyer, who have been pleading for months for more time to
sell their produce in order to pay what they know to be rightly due,
and filed a document in this same court asking it “to consider and
probably agree on a new payment plan” have thrown all that out
through the window and would want the court to reverse the whole
process.
If
that is not an abuse of process of gigantic proportions, then nothing
is.
As
to why this court should always stand ready to cushion the applicants
in their vacillations, we are not told. What is however clear is that
after the applicants could not raise the money they undertook to
refund they thought of coming to court for shelter and not to pursue
any recognisable remedy. They have none and this application is
thoroughly without merit.
While
it is true that in terms of Rule 56 of the High Court Rules, a
judgment given by consent may be set aside by the court and leave
given to the defendant to defend, such leave can only be given on
“good and sufficient cause”. I am aware that I am not sitting to
determine the merits of the application for rescission of judgment, I
having been asked only to stay execution. However a stay of execution
is discretionary upon the court and this court is not in the habit of
exercising its discretion in favour of those unashamedly abusing its
process, for an abuse of monumental proportions this application is.
In
determining what constitutes “good and sufficient cause” the same
principles used to determine that in an application to set aside a
judgment given in default apply. In addition, a party will not
normally be permitted to fight over again a battle which has already
been fought unless there has been a significant change in
circumstances or a party has become aware of facts which he could not
reasonably have known or found out in the first encounter: Roland &
Anor v McDonnell 1986 (2) ZLR 216 (S); Nyemba v CBZ Bank & Ors
HH255/14.
To
my mind, the inability to raise the money due in terms of a consent
order is not one such circumstance and certainly not a fact the
discovery of which would entitle a party to a second bite at the
cherry as it were.
Mr
Musimwa for the applicants has submitted that there are material
disputes of fact which can only be determined at the trial, as if
this is an application for summary judgment. He further argues that
the applicants suffered court fright at the pre-trial conference
which caused them to capitulate when in fact they had a defence. The
defence is in the form of a counterclaim for use of the land which
the respondent enjoyed before the agreement was cancelled. It is
significant that there was no counterclaim for that filed in the main
action. It is difficult to understand how the existence of such
counterclaim has only been discovered now. There is nothing new that
the applicants were not aware of at the time that they consented to
judgment.
Something
has also been said about the applicants not being aware that they
could have offered alternative land to the respondent. What this
means is that the applicants would want to negotiate a new contract
with the respondent.
While
I am not dealing with the rescission of judgment application, in
determining whether to exercise my discretion to grant the applicants
the indulgence of a stay of execution, I must have regard to whether
they at least begin to present good and sufficient cause to reverse
the consent order. I am not persuaded any such cause is presented.
Ms
Zindi for the respondent has asked for costs on a higher scale to be
granted. I have no doubt in my mind that the applicants' misguided
effort must be rewarded, not with the order that they seek for they
do not deserve it, but with an award of punitive costs which they
richly deserve for daring to think that this court should be drawn to
the sphere of kindergarten.
In
the result, this application is hereby dismissed with costs on the
legal practitioner and client scale.
Messrs
Musimwa & Associates, applicants' legal practitioners
Mtetwa
& Nyambiri Incorporating Wilmot & Bennett, respondent's
legal practitioners
