Wonders
never cease in the practice of law.
As
to how and indeed why the applicant would deem it fit to prepare and
file two (2) applications worded almost the same and seeking what is,
in essence, the same relief, is difficult to fathom. The same could
be said about the dusting and re-filing of an application that was
dismissed.
On
10 February 2015, the applicant filed an ordinary court application
for stay of execution in HC1180/15 in which it sought the following
relief:
“IT
IS ORDERED THAT:
1.
The 1st and 2nd respondent(s) are hereby
ordered not to sell the property of applicant save by private treaty.
2.
The 1st respondent to pay costs of suit on the attorney
and client scale.”
In
the founding affidavit deposed to by the Truman Joma, its Company
Secretary, the applicant stated that it had entered into an agreement
with the first respondent in terms of which it had taken delivery of
equipment with the purchase price of such equipment being paid from
income derived from the business it was engaged in. Due to harsh
economic conditions prevailing in the country its business ran into
trouble resulting in the first respondent taking judgment against it.
Truman
Joma went on to say that following negotiations the parties reached a
further agreement in terms of which the applicant pledged and
surrendered its movable property to the first respondent as security
for the faithful payment of the debt owed to the first respondent. In
pursuance thereof, the applicant attempted to liquidate the debt and
succeeded in paying a sum of $160,000= towards settlement of the
debt. This, however, did not stop the first respondent instructing
the second respondent, the Sheriff, to execute against the
applicant's property to satisfy the judgment debt. The applicant
became aware of the sale date, 14 February 2015, on 6 January 2015.
The
applicant maintained that this was in breach of the agreement of the
parties to the effect that the pledged property would be returned to
the applicant upon payment of at least half of the purchase price and
that if the sale was to occur it would be “by private treaty”.
For that reason, the applicant sought an order for stay of execution
aforesaid.
It
however did not produce the alleged agreement of the parties
recording those terms relying only on letters authored on its behalf
by its own legal practitioners with no corresponding commitment from
the first respondent. What is more, the applicant did not show that
it paid at least half of the purchase price given that the purchase
price was $416,712=39, the judgment debt, when it only paid
$160,000=.
On
13 February 2015 the applicant filed another application, this time
on a certificate of urgency, in HC1356/15 (which is the application
before me), on virtually the same facts (in fact the founding
affidavit is a regurgitation of the one founding the court
application in HC1180/15) seeking the following interim relief:
“INTERIM
RELIEF
Pending
the finalisation of the proceedings in HC1180/15 the 2nd
respondent be and is hereby ordered to:
1.
Return all the goods of the applicant attached in consequence of the
writ issued in HC7669/13, to the applicant pending the final
resolution of case HC1180/15.
2.
Stay all execution proceedings related to HC7669/13 until the
finalisation of the case in HC1180/15.”
I
have said that the relief sought in both matters is the same. It is
not clear why the applicant has made two different applications
seeking virtually the same thing. Even more baffling is why the
applicant, which says it became aware that its property would be sold
on 14 February 2015 as far back as 6 January 2015 not only did not do
anything until the day of reckoning but also elected to proceed by
ordinary application on 10 February 2015.
If
the above stated scenario is a strain to the mind, then the fact that
this urgent application is being made for the second time in as many
days is remarkably disheartening. I say this because on 10 February
2015, the applicant filed the same urgent application in HC1216/15 on
the same set of facts, the same founding affidavit and the same
annexures which it merely photocopied for HC1356/15. In short, the
applicant issued the same application twice after the first one was
set down before UCHENA J on 13 February 2015 at 10am and the learned
judge issued an order dismissing the application with costs on an
attorney and client scale.
What
we therefore have here is an application that has been dismissed with
costs on an adverse scale being re-instituted and placed before me
when the order of dismissal remains extant. Its simply not possible
because it was dismissed and cannot be revived. How such a simple and
straight forward procedural fact could have escaped the gaze and
understanding of the applicant's counsel is difficult to
comprehend.
What
I find even more disturbing is that the applicant did not see the
need to disclose to the court that its application has already been
dismissed by this court, per UCHENA J, and did not find it necessary
to even append HC1216/15 as a cross reference for the ease of the
court. There is little doubt that there was an attempt to pull the
wool over the court's eye which conduct should be frowned upon.
This is particularly so when the applicant is represented by counsel
who is an officer of this court.
As
if that was not bad enough as it is, the application itself is
legendary by its lack of merit. On 25 March 2014, this court, per
MANGOTA J, granted an order in favour of the first respondent in
HC7669/13 for payment of the sum of $416,712=39 together with
interest at the prescribed rate from the date of issue of the
summons, being 18 September 2013, to date of payment and costs of
suit on a legal practitioner and client scale. That court order is
still extant and no attempt has been made to challenge it meaning
that the applicant has to satisfy it or face execution against
property.
The
applicant claims to have paid only $160,000= towards the judgment
debt - which is not even half the judgment debt. If we were to assume
in the applicant's favour that there exists an agreement in terms
of which its goods would be saved upon payment of half what it owes,
the applicant would still be without such remedy as it has not paid
half what is owed. In addition, I have already alluded to its failure
to prove the existence of what it prefers to refer to as “an
interpartes bilateral stay of execution”, whatever that is.
What
remains, therefore, is a judgment that has not been fully satisfied
entitling the judgment creditor to execute against the judgment
debtors property in order to recover what is owed. There is no basis
whatsoever for a stay of execution in the circumstances of the case.
The
application itself is a serious abuse of process and may have been
brought in this manner in order to defeat the due process of
execution that had been set for Saturday 14 February 2015. This is
because upon this matter being referred to me on Saturday morning,
the Sheriff agreed to postpone the sale pending the determination of
this application, an application which was non-existent, it having
been dismissed the previous day.
There
is need for admonition because such abuse cannot be allowed to
perpetuate in our courts. Legal practitioners have been warned
repeatedly against the kind of conduct undertaken by the applicant's
counsel, who, although it should have been apparent from the very
beginning that the applicant had no case, she proceeded
notwithstanding even when she knew that that the order dismissing the
application remained effectual: See Moyo
& Anor v Hasbro Properties & Anor 2010 (2) ZLR
194 (H) 197 C; Hughber Petroleum
(Pvt) Ltd & Anor v Nyambuya & Anor HH78-14;
Macro Plumbers (Pvt) Ltd v Sheriff
of Zimbabwe N.O & Anor HH57-15.
The
only way to bring legal practitioners to line is to strike at their
pockets so that in future this will not be repeated.
Accordingly,
I make the following order, that:
1.
The application is hereby dismissed with costs on the scale of legal
practitioner and client.
2.
Such costs shall be borne by the law firm of Takawira Law Chambers de
bonis propriis.
3.
The law firm of Takawira Law Chambers shall not recover any fees for
this application.
