TAKUVA J: This is an
urgent chamber application for an order couched in the following
terms:
“Pending the confirmation of
the provisional order, an interim relief is granted on the following
terms:
1. The sale by public auction of
a certain piece of land called sub-division E of Stand number 452M
Bellevue Township of sub-division A of Bellevue situate in the
District of Bulawayo be and is hereby stayed pending the finalisation
of this matter.”
The facts are that the late Moses
Maneto Kanhukamwe's rogue son, one Idon Kanhukamwe [Idon], was a
director of the 2nd
respondent. On 3 May 2010, 2nd
respondent, represented by Idon entered into a written overdraft
facility agreement in terms of which the 1st
respondent granted US$50,000,00 overdraft facility to 2nd
respondent. It was one of the terms of the agreement that the loan
facility would be secured by a Mortgage Bond in favour of the 1st
respondent over a certain piece of land called sub-division E of
stand 452M Bellevue Township Bulawayo.
It turned out that this Stand
belongs to the late Moses Maneto Kanhukamwe (Moses).
The 2nd
respondent started to draw down on the overdraft facility. In breach
of the agreement, 2nd
respondent failed to pay the amount owed to 1st
respondent prompting the latter to issue summons out of this court
under case number HC1530/13. A default judgment was granted in the
following terms;
“Judgment be and is hereby
entered against the 1st
and 2nd
defendants (i.e. 2nd
respondent in casu
and Moses) jointly and severally the one paying the other to be
absolved for –
(a) Payment of the sum of
US$101,668,92;
(b) Payment of interest on the
sum of US$101,668,92 at the rate of 28% per annum calculated from the
3rd
of March 2013 to date of full and final payment.
(c) A certain piece of land
situate in the district of Bulawayo called subdivision E of Stand 452
Bellevue Township of sub-division A of Bellevue situate in the
District of Bulawayo in the name of Moses Maneto Kanhukamwe be
declared executable;
(d) The 1st
and 2nd
defendants pay costs of suit on an attorney and client scale.”
The 1st
respondent obtained a writ of execution against Moses' immovable
property on the 11th
of July 2016. The above order had been granted on the 1st
of October 2013. The late Moses died on 17th
day of April 2012. The 1st
respondent instructed the 3rd
respondent to sell the said property on the 29th
day of July 2016 notwithstanding that the same property is
administered by the Master of the High Court as it falls under the
Estate Late Moses Kanhukamwe.
The Estate Late Moses Kanhukamwe
filed this application seeking the order referred to above.
According to the curator
bonis, she only became
aware of the fact that there is an order against the late's
immovable property after she saw a notice in the Chronicle notifying
of the sale of the said property on 29 July 2016. She further argued
that the death of Moses froze the execution process.
Mr Mlalazi
for the 1st
respondent submitted that while he was not opposed to the
application, he prayed for an order of costs on the executor for the
following reasons:
(a) although summons were issued
after Moses had died, his treacherous son Idon did not reveal this
information when he entered appearance to defend.
(b) Moses died in 2012 but his
estate was only registered in July 2016 after they had been served
with a writ.
(c) the executor or Moses must
have handed over the Title Deeds to Idon. Therefore there was a
conspiracy to defraud the 1st
respondent.
Mr Muzvuzvu
argued that costs de
bonis against the
executor are not properly requested for the simple reason that Idon
fraudulently used the house as security without the knowledge of
Moses or his wife, the executor of his estate. Further, when Idon
entered appearance to defend and filed a plea, he knew Moses had died
but he did not divulge this information. The executor cannot be said
to be guilty of malicious non-disclosure as she was not aware of her
son's fraudulent activities. Finally it was submitted that the
delay to register was not intended to prejudice anyone. Idon, fled to
Namibia when the net was closing in.
Costs are discretionary.
In terms of Rule 240 of the High
Court Rules 1971, the court has a discretion as to an award of an
order for costs. The rule states;
“240
Granting of
Order
At the conclusion of the hearing
or thereafter the court may refuse the application or may grant the
order applied for, including a provisional order, or any variation of
such order or provisional order, whether or not general or other
relief has been asked for and may
make such order as to costs as it thinks fit.”
(my emphasis)
In casu,
the applicant has not applied for costs.
It is the unsuccessful party that
has done so on the grounds of misconduct by the applicant.
I am not satisfied on the facts
that the applicant has been guilty of improper, dishonest or
discreditable conduct. All that Mr Mlalazi
has shown is a mere suspicion of misconduct which in my view is
insufficient to justify the court in exercising its discretion
against the applicant. There is no evidence that applicant was
aware, or ought to have known Idon's shenanigans. For these
reasons the application for costs is dismissed.
Accordingly, it is ordered that:-
Pending the confirmation of the
provisional order, an interim relief is granted on the following
terms:
1. The sale by public auction of
a certain piece of land called subdivision E of Stand number 452M
Bellevue Township of subdivision A of Bellevue situate in the
District of Bulawayo be and is hereby stayed.
2. Each party shall bear its own
costs.
Mugiya & Macharaga Law Chambers c/o Muzvuzvu & Mguni Law
Chambers, applicant's legal practitioners
Lawman Chimuriwo Attorneys c/o Dube-Banda, Nzarayapenga, 1st
respondent's legal practitioners
