This
is an application for stay of execution. The application is opposed.
On
18th
December 2015, the respondents caused summons to be issued against
the applicant. The claims were defended. The applicant subsequently
requested the respondents to supply further particulars. On 18th
January 2016 the respondents supplied the further particulars sought
but the applicant insisted on further and better particulars. The
respondents wrote to the applicant refusing to furnish the further
and better particulars. The respondents proceeded to file a notice of
intention to bar.
Despite
protestations by the applicant, the respondents proceeded to effect
the bar and applied for default judgement.
An
application for rescission of judgment was filed under case number
HC798/16. The matter has not been resolved.
On
12th
February 2016, the applicant, probably unaware of the bar, filed a
chamber application to compel the respondents to supply the further
and better particulars. On 10th
March 2016 the applicant proceeded to apply for the upliftment of the
automatic bar. That matter is still outstanding and has not been
argued.
It
is contended, on behalf of the applicant, that the notice of
intention to bar was issued and effected prematurely and therefore
void ab
initio
and must be uplifted in terms of Order 12 Rule 84 of the High Court
Rules, 1971. Rule 84 provides as follows:
“(1)
A party who has been barred may –
(a)
Make a chamber application to remove the bar;
(b)
Make an oral application at the hearing, if any, of the action or
suit concerned;
and
the judge or court may allow the application on such terms as to
costs and otherwise as he or if, as the case maybe, thinks fit.”
In
an application for the upliftment of the bar, our courts require that
the applicant must file an affidavit of merits and give good and
sufficient reasons for the delay or failure to comply with the rules.
The applicant must also disclose a bona
fide
defence on the merits.
It
is clear from the provisions of Rule 83 of the High Court Rules that
a litigant who has been barred is prohibited from being heard for any
other purpose other than for the upliftment of the bar. The rule
provides as follows:
“83.
Whilst a bar is in operation –
(a)
The registrar shall not accept for filing any pleading or other
documents from the party barred; and
(b)
The party barred shall not be permitted to appear personally or by
legal practitioner in any subsequent pleadings in the action or suit;
except for the purpose of applying for the removal of the bar.”
There
can be no doubt that the applicant has no right of audience before
the court for as long as the bar remains effective. This court is
therefore not at liberty to determine the applicant's application
to compel further and better particulars and/or application for
rescission of judgment before the application for the upliftment of
the automatic bar is determined.
A
perusal of the record indicates that the applicant initially
requested the further particulars on 14th
January 2016. The respondents consequently supplied the further
particulars. The applicant deemed that there were inconsistencies in
the amounts claimed by the respondents. In particular, the applicant
requested an explanation of how the sum of $18,300= was arrived at.
In view of the fact that the basis of the respondent's claim was
payment of monies invested under an investment facility the
particulars requested were of critical relevance.
The
applicant contends that the conduct of the respondents amounts to a
snatching of judgment, in that the respondents were fully aware that
the applicants had every intention of defending the matter. The
applicants were aware that an application for the uplifting of the
bar had been filed but nevertheless proceeded to effect the bar and
obtained default judgment on 16 February 2016.
The
brief summary of the state of this matter is therefore as follows:
(a)
Case number HC356/16
This
is a chamber application wherein the applicant filed a chamber
application to compel the respondents to file further and better
particulars. The application was opposed and the matter remains
pending. It has not been set down for hearing.
(b)
Case number HC627/16
Upon
becoming aware that the respondents had not withdrawn the notice of
intention to bar but that, in fact, they had proceeded to effect the
bar, the applicant filed another application for the upliftment of
the bar. That application was also opposed and the matter remains
pending.
(c)
Case number HC781/16
The
applicants became aware that the respondents had obtained default
judgment, and, in the light of the fact that an application for the
upliftment of the automatic bar had been opposed the applicant filed
an application for default judgment. This application was also
opposed and remains pending.
In
spite of all the matters that are still pending and unresolved, the
respondents have proceeded with execution. The applicant's property
was attached and removal was set for the 7th
July 2016. The applicant argued that the application for stay of
execution was merited in that if execution were to proceed, he would
suffer irreparable harm. The applicant contends that the balance of
convenience favours the granting of the application for stay of
execution.
The
respondents urge this court to reject the application for stay of
execution on the grounds that the application is an abuse of court
process and that there is need for finality in litigation.
It
is common cause that the applicant was served with summons in the
main action under case number HC3415/15.
For
the sake of clarity, it is necessary to set out the basis of the
claim as contained in the declaration.
The
plaintiffs (respondents) are Lynette Chabata and Tererai Chabata. The
defendant is reflected as MOB Capital (Pvt) Ltd, a company operating
a micro-finance business based at 105 Kaufman House, R. G. Mugabe
Way, Bulawayo.
On
or about 3rd
January 2014, the plaintiffs placed the sum of $10,000= with the
defendant under a mutually agreed investment scheme. The funds were
to earn interest at the rate of 7.5% per month. On or about 7th
January 2014 the plaintiffs, utilizing funds acquired in their joint
efforts placed the sum of US$42,900= with the defendant for
investment through an electronic funds transfer into the defendant's
CBZ account. Of the total in investment with it, the defendant paid
out the sum of US$25,000=. The respondents contend that as at 30th
September 2015 the plaintiffs cancelled the investment scheme and
demanded a refund of US$24,380= broken down as follows:
Capital -
US$18 300
Interest
- US$
6 080
Total
US$24
380
The
applicants sought further particulars, amongst other things demanding
to know how the interest was computed and to whom the sum of
US$25,000= had been paid. The applicant was not satisfied with the
further particulars furnished and sought further and better
particulars.
This
is the stage when problems commenced.
The
respondents proceeded to file a notice of intention to bar and
subsequently obtained default judgment. The issue for determination
is whether in spite of the background facts detailed above this court
should exercise it inherent jurisdiction and order a stay of
execution.
I
must point out that in an application of this nature, the court is
not determining the application for rescission of judgment, neither
is it considering the application for the upliftment of the automatic
bar. The court is enjoined to consider whether there is good and
sufficient cause to grant the stay of execution. To a large extent,
the background facts assist the court in its decision whether this
application for stay is without merit and designed to frustrate the
other party. In the case of Zimbabwe
Open University v Maguramombe & Another
SC20-12, the court laid down the factors to be taken into account in
considering the interim relief of stay of execution. The factors to
be taken into account are now well settled. These are:
(i)
Whether or not the party seeking the relief has a prima
facie
right to stay execution of the sale of the attached property.
(ii)
Whether or not the applicant would suffer irreparable harm.
(iii)
The balance of convenience.
See
also the cases of Nzara
v Tsanyau & Ors
2014 (1) ZLR 674 (H); Arches
(Pvt) Ltd v Guthrie Holdings
1989 (1) ZLR 1523 (H).
Firstly,
the applicant seems to me to have established that they have a prima
facie
right to stay execution.
It
has not been contested that they are still matters pending in court
to be resolved. The respondents have simply ignored all the pending
matters and proceeded to execute. It is observed that the default
judgment sought to be enforced was obtained in February 2016. No
explanation has been advanced as to why the pending matters have not
been resolved.
Secondly,
there can be no doubt that the applicant stands to suffer irreparable
harm if execution is not stayed. The balance of convenience, in all
probability, favours the applicant. It cannot be argued that the
application for stay has been filed for the sole purpose of delay and
frustrating the course of justice.
In
the result, the following order is made:
1.
Pending the finalisation of the cases under HC627/16, HC798/16 and
HC356/16, the execution of a default judgment granted by this court
under case number HC3415/15 be and is hereby stayed.
2.
Each party to bear its own costs.
