Urgent
chamber application
BHUNU
J:
On
28 May 2014 the first respondent National Social Security Authority
obtained default judgment against the 11 applicants. The default
judgment reads:
“WHEREUPON
after reading documents filed of record and hearing counsel;
IT
IS ORDERED That:
1.
The 1st,
2nd,
3rd,
4th,
5th,
6th,
7th,
8th,
9th,
10th,
and 11th,
defendant(s) be and are hereby ordered, jointly and in solidium, the
one paying and the other to be absolved, to pay the sum of
US$4,988,564-29 (four million nine hundred and eighty-thousand, five
hundred and sixty four United States Dollars and twenty nine cents)
together with interest thereon at the rate of 7% per annum with
effect from the 11th
September, 2013 up to date of payment in full and such interest being
capitalised monthly.
2.
The immovable properties situate in the district of Salisbury, which
properties are described in the schedule hereto, be and are hereby
declared specially executable.
2.1
Industrial plot 3 Salisbury Township of the Agricultural and
Horticultural Society Showground of Salisbury Township Lands
registered in the name of the 2nd
defendant under deed of transfer (Reg. No. 11942/01);
2.2
Stand 11 Newlands, registered in the name of the 3rd
defendant under Deed of Transfer (Reg. No. 7160/95) dated the 23rd
day of October, 1997.
2.3
An undivided 12.5 share being Share No.7 in lot 7B Rietfontein
registered in the name of the 4th
defendant under Deed of Transfer (Reg. No.1461/08) dated 8th
day of April 2008.
2.4
An undivided 12.5 share being Share No.8 in lot 1 of lot 7B
Reinfontein registered in the name of the 5th
defendant under Deed of Transfer (Reg. No. 1462/08) dated the 21st
day of April 2008.
2.5
An undivided 12.5 share being Share No. 9 in lot 1 of lot 7B
Reinfontein registered in the name of the sixth defendant under Deed
of Transfer (Reg. No. 1484/08) dated the 9th
day of April 2008.
2.6
An undivided 12.5 share being Share No. 10 in lot 1 of lot 7B
Reinfontein registered in the name of the 7th
defendant under Deed of Transfer (Reg. No. 1482/08) dated the 16th
day of April 2008.
2.7
An undivided 12.5 share being Share No. 11 in lot 7B Reinfontein
registered in the name of the 8th
defendant under Deed of Transfer (Reg. No. 1461/08) dated the 16th
day of April 2008.
2.8
An undivided 12.5 share being Share No. 12 in lot 1 of lot 7B
Reinfontein registered in the name of the 9th
defendant under Deed of Transfer (Reg. No. 1483/08) dated the 9th
day of April 2008.
2.9
An undivided 12.5 share being Share No. 14 in lot 1 of lot 7B
Reinfontein registered in the name of the 10th
defendant under Deed of Transfer (Reg. No. 1460/08) dated the 24th
day of April 2008.
2.10
An undivided 12.5 share being Share No. 15 in lot 1 of lot 7B
Reinfontein registered in the name of the 11th
defendant under Deed of Transfer (Reg. No. 1477/08) dated the 9th
day of April 2008.
3.
The 1st
to the 11th
defendant(s) be and are hereby ordered jointly, severally and in
solidium, the one paying the others to be absolved, to pay costs on
legal practitioner and client scale.”
Following
the granting of the above default order the second respondent sold
the said properties in execution at various public auctions in March
2015 according to law. The relevant respondents were duly declared
the highest bidders of the respective properties on offer for which
they sought transfer.
Aggrieved
by the prices obtained for the properties the applicant challenged
confirmation of the sales which challenges were dismissed by the
second respondent on 11 May 2015. With full knowledge of the
dismissals, the applicants only approached the court on 5 June 2015,
more than 20 days later on an urgent basis challenging transfer of
the properties in question to the respective highest bidders.
The
applicants seek an urgent order interdicting transfer pending its
challenge to the sales in execution in terms of Rule 359 arguing that
the properties were sold for unreasonably low prices.
The
applicant started by inviting the court for an inspection in loco to
enable it to view the disputed properties and make its own
assessment. They also endeavoured to argue that there was no finality
to litigation as they were still vigorously pursuing rescission of
the default judgment in question.
The
respondents countered by quickly raising the point in
limine
that the matter was not urgent.
It
is common cause that the applicant delayed in bringing this
application by more than 20 days with full knowledge that its
properties had been sold for that much. The applicant openly admitted
the delay but sought to shift the blame to its erstwhile legal
practitioner Mr Mlotshwa
whom it accused of incompetence and delaying the proceedings by
clinking onto the case despite being asked to renounce agency.
The
applicant's strategy in this respect reminds me of two village
pranks in our area who used to start a fight between themselves
whenever food and drink were running low only to regroup, sit down
and enjoy the left overs after everyone else had fled in panic.
The
change of lawyers appears to be a trick to explain the inexplicable
inordinate delay in bringing this application.
I
take that view because the applicants have filed no affidavit or
explanation from Mr Mlotshwa
explaining
his alleged misconduct. I would therefore hesitate to ascribe any
wrong doing to Mr Mlotshwa
without hearing him.
A
perusal of the papers shows that the applicants current lawyers are
not saying anything different from what Mr Mlotshwa
has always been saying. In any case Mr Mlotshwa
was the applicants' agent and it is an established principle of the
law of agency that he who does a thing through another does it
himself. Thus Mr Mlotshwa's
conduct became theirs and his principals cannot without more easily
discard him and seek to distance themselves from his actions. This is
for the simple reason that in the ordinary run of things a principal
is bound by the conduct of his agent.
The
onus is on the principal who seeks to resile from the conduct of his
agent, to show why he might not be bound by his agent's conduct.
In
this case the applicants have fallen far too short of proving that
onus.
Unfortunately,
the conclusion that the admitted inordinate delay in this case was
self-made is unavoidable.
Although
the applicants have told me that they have filed an application for
rescission of judgment they have omitted to dwell on their prospects
of success and reason for default. That omission has a bearing on the
urgency of the matter because the Respondents already have a lawful
judgment in their favour and the courts generally lean in favour of
the urgent and timely enforcement of its judgments to the exclusion
of any unwarranted delay or interference.
The
headnote in the case of Chibanda
v
King
1983 (1) ZLR 116 clearly puts the point home thus:
“It
must also be borne in mind that if the court were to extent mercy it
will be doing it at the expense of a litigant who has already
established in court his right and title to what is being claimed.
Such mercy should rather be sought in the action itself, before
judgment is given, not afterwards.”
For
the foregoing reasons in the absence of any justifiable excuse, I
cannot countenance any further delay in giving effect to a lawful
judgment of this court. I accordingly hold that the matter before me
is not urgent.
Venturas
& Samukange, the
applicants' legal practitioners
Kantor
& Immerman, the
2nd
respondent's legal practitioners
G
N Mlotshwa, the
3rd
respondent's legal practitioners
Chihambakwe
Mutizwa & Partners, the
1st
respondent's legal practitioners
Nyakutombwa
Mugabe Legal Practitioners, the
7th
respondent's legal practitioners
Sachikonye-Ushe
Legal Practitioners, the
11th
respondent's legal practitioners
Takawira
Chambers, the
12th
respondent's legal practitioners
