Urgent
Chamber Application
TAGU
J:
The
applicant has approached this court on an urgent basis seeking the
following relief -
“TERMS
OF THE FINAL ORDER
1.
That you show cause to the Honourable Court, if any, why a final
order should not be granted in the following terms:
(a)
That the use of the Applicant's title deeds by the 1st
Respondent in transacting with
the
2nd
Respondent without the consent of the Applicant be and is hereby
declared unlawful.
(b)
That the Applicant's immovable property, being Stand 2169
Mabelreign Township measuring 981 square metres, be and is hereby
released from execution.
Interim
relief sought
Pending
determination of this matter, the Applicant is granted the following
relief:
(a)
That the order to stay execution of Case No. HC5914/12 be and hereby
granted pending finalization of rescission of judgment in case
HC1122/15.
(b)
Costs on a higher scale be borne by the 1st
and 2nd
Respondent jointly and severally.
Service
of the provisional order
This
provisional order may be served on the Respondents or their legal
practitioners by an employee of the Applicant's legal practitioners
or the Deputy Sheriff.”
At
the hearing of the application Mr Z.T. Zvobgo for the first
respondent raised two points in
limine.
The points were that -
(a)
The applicant's matter is not urgent;
(b)
The applicant's certificate of urgency is materially defective.
I
will deal with the points one by one.
Mr
Zvobgo submitted that the applicant avoided to explain why he did not
have sight of the first respondent's Summons instituted in the
action proceedings under case HC5914/12. According to Mr Zvobgo the
Summons as well as the notice of attachment of the applicant's
property were served at the same address, which is the applicant's
immovable property. No explanation was proffered from the applicant's
tenants why they did not bring the Summons to the attention of the
applicant. More importantly, the applicant's son one Milton
Mupfumira has been aware of the existence of the court order in case
HC5914/12 since the 13th
of October 2014 and has been making efforts to come up with a payment
plan to pay off the amount owed to the first respondent. In fact, the
reason why it was taking him long to come up with the payment plan
was because he was consulting with the rest of his family, the
applicant included.
Reference
was made to annexures 3, 4, 5 and 6. It was Mr Zvobgo's contention
that the applicant cannot hide behind, and blame his tenants for not
bring the court processes to his attention.
Further
to that, Mr ZVOBGO referred to annexures 7, 8, 9 and 10. These
referred to a string of email exchanges between the said Milton
Mupfumira and the first respondent's legal practitioners. For
avoidance of doubt I will quote the relevant annextures.
Annexures
1 and 2 are the Deputy Sheriff's returns showing that the processes
were being served at the applicant's residence since the 14th
of June 2012. The parties involved in those processes were Delta
Beverages (Pvt) Ltd) (the plaintiff), Passion and Dreams (Pvt) Ltd
(1st
defendant) and Michael Tigere Mupfumira (2nd
defendant). Applicant's explanation is that he was away in
Mhondoro.
Annexure
3 is an email dated 17 October 2014 sent by applicant's son Milton
Mupfumira to first respondent's legal practitioners. It read as
follows -
“Re:
Delta Beverages v Passion and Dreams P/L Michael Tigere Mupfumira
Goodmorning
Sir. Thank you for your email received and noted. I am currently
based in South Africa and was wondering if I could submit a proposal
here via email. I would also appreciate the opportunity to call you
if you could advise when you are available. Kind regards M T
Mupfumira.”
When
Mr M T Mupfumira sent the above email he was responding to an email
dated 13th
October 2014, sent by the first respondent's legal practitioners
which was couched in the following words –
“Dear
Mr Mupfumira
We
refer to the above matter.
We
attach hereto a copy of the court order which we obtained against
both yourself and Passion & Dreams (Pvt) Ltd. You will note that
your immovable property was declared specially executable. Unless we
start receiving payments from you towards liquidating the debt of
US$147,952.00 together with interest and our legal costs, we shall be
proceeding to instruct the Sheriff to sell your immovable property.
Kindly let us hear from you in the next seven business days failing
which we shall be proceeding with execution.
Yours
faithfully
Zvobgo
Tawanda Zvobgo
Associate
Trade
& Investment Unit
DUBE,
MANIKAI & HWACHA”
Then,
on 28 November 2014, Milton Mupfumira sent another email to the first
respondent's lawyers worded as follows-
“Re:
Delta Beverages v Passion and Dreams P/L Michael Tigere Mupfumira
Dear
Sir. I apologise for the late response. I have been away. Please may
we contact you by Tuesday afternoon. There
is a lot involved here therefore it's a family decision.
Again, I apologise and look forward to communicating before end of
day Tuesday. Kind regards Milton”
(underlining
is mine).
From
the above correspondence there is no basis for the applicant to blame
the tenants. His own son was aware of the court processes. It has not
been explained why the son did not bring all this to the father since
October 2014.
Even
if that is not enough, annexure 8 is a General Power of Attorney
purportedly signed by the applicant himself on 13 August 2011
authorising one Kefasi Machaya to use the applicant's Title Deeds
for the immovable property as a security for a debt owed to the first
respondent.
This
power of attorney is buttressed by an affidavit deposed to by the
applicant confirming his authority to Kefasi Machaya to use the Title
Deeds. Attached to the affidavit is annexure 10, a copy of
applicant's driver's licence.
In
my view, it is not correct to say the applicant only became aware of
court processes on 31 January 2014.
The
respondent's first point in
limine
has merits.
In
coming to this decision I am guided by what Chatikobo J said in the
case of Kuvarega
v
Registrar
General & Anor
1998 (1) ZLR 188 at 193 where he said -
“There
is an allied problem of practitioners who are in the habit of
certifying that a case is urgent when it is not one of
urgency……….What constitutes urgency is not only the imminent
arrival of the day of reckoning; a matter is urgent, if at the time
the need to act arrives, the matter cannot wait. Urgency which stems
from a deliberate or careless abstention from action until the
deadline draws near is not the type of urgency contemplated by the
rules. It necessarily follows that the certificate of urgency or the
supporting affidavit must always contain an explanation of the
non-timeous action if there has been a delay.”
The
property in question belongs to the applicant. He apparently
authorised his relatives to use his Title Deeds. The son was aware of
the court processes. He clearly stated that the decision as far as
the property in question was concerned was a family issue. Since the
13th
October 2014 they were aware of the court order and the fact that the
property in question had been declared executable. They did nothing
until the day of reckoning arrived. On the basis of the above I
decline to hear the matter on an urgent basis.
Even
if I may be wrong in declaring this matter not urgent, the
respondent's submissions in respect of the second point in
limine,
appears to me to be valid. The certificate of urgency was signed by
one Rosewitter Madembo of Messrs Govere Law Chambers. The same
Rosewitter Madembo commissioned the applicant's founding affidavit
in an application for rescission of default judgment attached as
annexure D to the application. She therefore had an interest in the
matter.
I
agree with the submissions made by Mr ZVOBGO. The position of the law
was spelt out in the cases of Chifamba
v Edgars
Stores Limited and the Deputy Sheriff, Chinhoyi
HC27/05 and Mawere
v Minister
of Mines and Mining Development
HH87/14.
In
the Mawere case supra,
Mangota J said -
“the
certificate of urgency was not only totally, but was incurably,
defective.”
I
share the same sentiments. The certificate in the present application
is incurably defective.
Wherefore,
I decline to hear this application on the basis that -
(a)
The application is not urgent.
(b)
The certificate of urgency is incurably defective.
Chinawa
Law Chambers,
applicant's legal practitioners
Dube,
Manikai & Hwacha,
1st
respondent's legal practitioners
