Urgent
Chamber Application
TAGU
J:
The
applicant invoked Rule 348A of the High Court Rules 1971 to stop the
sale in execution of a dwelling house scheduled for 16th
March 2018 that was purportedly attached on the 28th
of February 2018 by the second respondent acting under the
instructions of the first respondent.
The
attached property is a piece of land situate in the district of
Salisbury called Stand Number 48 Emerald Hill Township 2 of Stand 26B
Emerald Hill measuring 2,002 square metres.
This
application was brought as an urgent chamber application seeking the
following relief -
“TERMS
OF FINAL ORDER SOUGHT
That
you show cause to the Honourable Court why a final order should not
be made in the following terms -
1.
The 2nd Respondent be and is hereby interdicted from selling the
property belonging to the Applicant.
2.
That 1st
Respondent be and is hereby ordered to pay the costs of this suit at
a higher scale.
INTERIM
RELIEF GRANTED
Pending
determination of this matter, the Applicant is granted the following
relief -
3.
That 2nd
Respondent be and is hereby ordered to stay the execution scheduled
for the 16th
March 2018 pending the finalization of matter HC2454/18.
4.
In the event that the 2nd
Respondent has proceeded with execution scheduled for 16th
March 2018 the 2nd
Respondent be and is hereby ordered to cancel any other steps towards
finalization of the matter pending finalization of matter HC2454/18.
SERVICE
OF PROVISIONAL ORDER
This
provisional order shall be served upon the Respondents by Applicant's
legal practitioners.”
At
the hearing of the matter the first respondent opposed the
application.
Mr
Mutero
for the respondents raised two major points in
limine;
(i)
The first point in
limine
was that the matter was not urgent as contemplated in the case of
Kuvarega
v Registrar
General & Anor
1998 (1) ZLR 188 (H); and
(ii)
The second preliminary point was that this application is purported
to be in terms of Rule 348A yet it is an application for stay of
execution.
As
regards the first point that this matter is not urgent Mr Mutero
submitted that the fact that the day of reckoning has arrived does
not create urgency if the following is to be taken into account. The
first respondent obtained judgment against applicant, third, fourth,
fifth and sixth respondents on the 13th
of May 2014 as per copy of which is attached hereto marked “A”.
The first respondent then executed against applicant's movables in
April 2015 whereby a sum of US$37,477.96 was realized as more fully
appears from annexure “B”. Thereafter, a nulla
bona
return was rendered as per annexure “C”. A Writ of Execution
against immovable property including the one in issue was issued on
the 29th
of May 2015 as more fully appears from annexure “D”. The second
respondent attached the property in issue at the Deeds Office and
served a copy of a notice of attachment on applicant as per annexures
“E” and “F” in July 2015. Upon receipt of the notice of
attachment applicant, Fred Moyo and Dominic Benhura requested a
meeting which was held at the first respondent's legal
practitioners' offices in August 2015. They indicated that they
were looking for investors for their mines and first respondent
agreed to suspend execution on condition that there was noticeable
progress by the 30th
of November 2015. Since then no progress was made at all regarding
the coming on board of investors and first respondent resumed
execution.
Therefore,
applicant has been aware of the attachment of the property in issue
since July 2015 (more than two and half years ago) and did not take
any action since then. For these reasons this matter cannot be said
to be urgent now and should be dismissed for want of urgency.
On
the second point Mr Mutero
submitted that this application has been brought as an urgent chamber
application for stay of execution. He said even if it is taken as an
application in terms of Rule 348A this application is fatally
defective for a number of reasons.
(a)
Firstly, an application in terms of Rule 348A should be in Form 45
yet this application does not follow that format and no hardships has
been alleged in the founding affidavit.
(b)
The application is again hopelessly out of time since it was supposed
to have been made within 10 days from the date of attachment and is
being made more than three years later and no application for
condonation was made.
He
therefore prayed that this application be dismissed without hearing
the merits.
The
first preliminary point has not been materially disputed. The facts
as outlined by Mr Mutero
were not disputed either.
In
my view there has been material non-disclosure of material facts by
the applicant in that the history of the matter as outlined by Mr
Mutero
were not disclosed. An impression had been created that the dwelling
had been attached on the 28th
February 2018 by the second respondent and was due to be sold on the
16th
March 2018 yet the attachment took place more than three years ago.
For
these reasons I agree with Mr Mutero
that
this application does not meet the requirements of urgency.
Even
if I may be wrong to so hold I am convinced that there mere mention
of a dwelling house is neither here nor there because this
application which is purported to be an application in terms of Rule
348A is fatally defective in that it does not comply with the Rules.
The form in which it is brought is not in compliance with Form 45.
Deliberate
failure to comply with the rules is fatally defective. In the
circumstances I will uphold the preliminary points and dismiss the
application with costs.
IT
IS ORDERED THAT:
1.
The application is dismissed with costs.
Mwonzora
& Associates,
applicant's legal practitioners
Sawyer
Mkushi,
1st
respondent's legal practitioners
