Urgent Chamber Application
NDOU
J: The
applicants seek a provisional order in the following terms:
“Terms
of the final order sought
That you show cause why a
final order should not be granted in the following terms:
1.
The sale in execution of immovable property namely Lot 8 of Lot 37A
Lochview situate in the district of Bulawayo measuring 5,427 square
metres in pursuance of the judgment under case number HC237/11 be and
is hereby stayed pending the final determination of case number
HC221/12 and the subsequent applicant for suspension of sale of an
immovable property.
2.
The 1st
respondent pays the costs of this application.
Interim order granted
That pending the final
determination of this application, it is ordered that:
3.
The 1st
and 2nd
respondents or any of their authorized officers, be and are hereby
ordered to stop the sale in execution of the immovable property
described in paragraph 1 herein pending the final conclusion of this
application.”
The salient facts of the
matter are the following:
On
or about 5 November 2009 at the instance and request of CMS Leather
(Pvt) Ltd trading as Footwear and Rubber Industries (“Footwear and
Rubber Industries”), 1st
respondent lent/and advanced a sum of US60,000,00 to the former.
That loan was secured by a special hypothecation over Lot 8 of Lot
37A Lochview (“Lot 8”) also known as number 3 Hill Road Lochview,
Bulawayo. The applicants were also guarantors to the loan and to
that effect signed unlimited guarantees in favour of the 1st
respondent.
Based on the agreement between
the parties, a bond was registered over Lot 8 with the consent and
acceptance of the applicants which bond provided for foreclosure
proceedings should the loan remain unpaid.
On the basis of that, the loan
was then disbursed to Footwear and Rubber Industries.
When
Footwear and Rubber Industries defaulted 1st
respondent called up the bond and issued summons against the
guarantors in January 2011 claiming the sum of US$73,447,69 with
interest at the rate of 42,5% compounded daily and an order declaring
Lot 8 executable.
The
applicants filed an appearance to defend on 10 February 2011 leading
to an application for summary judgment on 28 March 2011. That
application was not opposed and on 21 April 2011, judgment was
granted in favour of the 1st
respondent against the applicants.
On
18 July 2011, Lot 8 was attached by the Deputy Sheriff pursuant to a
warrant of execution that had been issued by the 1st
respondent.
Thereafter, applicants
approached their erstwhile legal practitioners. Nothing was done by
the applicants from July 2011 to December 2011. The applicants only
sprung into action on 15 December 2011 when they saw that Lot 8 was
advertised for sale for 16 December 2011.
They filed an application in
terms of Rule 348A(5a) to suspend and/or stop the sale on the basis
that a reasonable offer had been made of US$1,500,00 a month with
effect from 31 December 2011 and that the sale would cause undue
hardship to them.
That application was opposed
the very next day as it was improperly before the court.
The sale was however cancelled
by the Deputy Sheriff for some other reason unrelated to that
application. That application was withdrawn by the applicants on 3
January 2012.
Thereafter, Lot 8 was once
more advertised for sale by the Deputy Sheriff on 5 January 2012 for
27 February 2012.
From
5 January 2012 to 20 January 2012 the applicants did nothing. It was
only on 20 January 2012 that they filed an application for
condonation for the late filing of their intended application in
terms of Rule 348A (5a). The application was served on the 1st
respondent on 20 January 2012.
On
24 January 2012, the present urgent chamber application was issued
and served on 1st
respondent.
The
1st
respondent raised points in
limine
which I propose to consider in turn.
The first point is whether the
application is urgent.
The
applicants seek an interdict under a certificate of urgency. In CABS
v Ndlovu
HH-3-06, CHATUKUTA
J rightly pointed out that:
“Applicant
is required to satisfy the court that irreparable harm may be
suffered by the applicant if the matter is not dealt with urgently
and that applicant should have treated the matter urgently.”
See
also Triangle
Ltd
v ZIMRA
HB-12-11 and Kuvarega
v Registrar
General
1998 (1) ZLR 188 (H).
It is not the arrival of the
date of reckoning that matters.
As alluded to above, the
applicants were served with the notice of execution on 18 July 2011.
The latter was, therefore, the time to act. They did nothing from
July until 15 December 2011. They only acted a day before the date
of the advertised sale.
When
the sale was cancelled they once more did nothing until 3 January
2012 when they withdrew their flawed application of 15 December 2011.
They did not simultaneously or soon thereafter file another
application until the 1st
respondent re-advertised the sale of Lot 8.
After the latter sale was
advertised on 5 January 2012 they waited for several days before
filing the current application on the eleventh hour.
It is evident that all along
the applicants were acting in snail's pace, so to speak, and were
only prompted into action by the arrival of the date of reckoning.
They simply did not treat their matter urgently.
The attempt to blame their
erstwhile legal practitioners is not helpful as such dilatoriness
persisted even under the current legal practitioners.
The
applicants have all along been represented by legal practitioners and
even brief an advocate at some point yet there was not urgency shown
on their part. There is no explanation proffered for the non-timeous
action: Kuvarega
v Registrar
General, supra
and Mutizhe
v Ganda
& Ors
SC-17-09.
In
the absence of such acceptable explanation the matter cannot be
treated as urgent whatever the prospects of success may be – see
also Bosman
Transport Works
Committee
& Ors
v Piet
Bosman Transport (Pty) Ltd
1980 (4) SA 794 (A) at 799D-E and Viking
Woodwork (Pvt) Ltd
v Bluebells
Enterprises (Pvt) Ltd
1998 (2) ZLR 249 (S) at 253.
Taking all the above factors
into consideration the applicants failed to make a case for the
matter to be dealt with urgently.
On this point alone without
going into the merits the application is dismissed with costs.
Moyo
& Nyoni,
applicants' legal practitioners
Coghlan
& Welsh, 1st
respondent's legal practitioners
