Urgent
Chamber Application
UCHENA
J:
This
application was filed as an urgent chamber application on 29 August
2014. It was assigned to me for determination on 1 September 2014.
After reading the file I endorsed on it the following statement;
“There
is a pending application for stay of execution. This application is
therefore not urgent”.
The
endorsement was communicated to the applicant's legal
practitioners.
By
letter dated 16 September 2014 the applicant's counsel sought to be
heard on the issue of urgency.
I
set the matter down for 17 September 2014. I heard the parties'
submissions from 2.15pm to 16.29pm. This was due to applicant's
counsel's failure to appreciate the significance of the applicant's
earlier application and the procedural law on expediting it, when the
need to set it down on urgent basis arose. My attempt to draw his
attention to this during the hearing yielded no meaningful response.
It has to be spelt out in this judgment.
Mr
Mutizwa for the first respondent raised preliminary issues of lis
pendens and urgency, among others.
The
issues could have been resolved easily and quickly if the provisions
of Rule 223A as read with Rule 223(3) of the High Court Rules 1971
had been taken into consideration by both parties.
It
is common cause, that the applicant has a pending application in this
court HC6819/14 in which it seeks stay of execution on the basis that
the first respondent's decision has been appealed against to the
Administrative Court. The parties in that case and this case are the
same and the cause of action is the same, giving rise to the raising
of the preliminary issue of lis alibi pendens.
The
applicant's counsel's submissions sought to get round this
predicament by relying on the earlier application being slower than
the later.
That
is where he got it wrong and missed the essence of my endorsement. He
should simply have expedited the earlier application when the need to
be heard on an urgent basis arose or on seeing my endorsement.
I
am aware of the case of DW Hattingh & Sons (Pvt) Ltd v Cole NO
1991 (2) ZLR 176 (SC) at page 180 B to C where KORSAH JA, said;
“The
court has a discretion to order or refuse a stay of proceedings on
the grounds of lis alibi pendens, and in the exercise of that
discretion it will have regard to the equities and to the balance of
convenience in the matter. (See Michaelson v Loweinstein, 1905 S 324;
Osman v Hector 1933 CPD 503; and Loader v Dursot Bros (Pty) Ltd 1948
(3) SA 136 (T).)”
In
this case I cannot exercise that discretion as there is a clear
procedure which the applicant should have used and can use to
expedite its earlier application.
Rule
223A provides for the expediting of the earlier application as
follows;
“223A.
Where a legal practitioner has certified in writing that a matter is
urgent, giving reasons for its urgency, the court or a judge may
direct that the matter should be set down for hearing at any time and
additionally, or alternatively, may hear the matter at any time or
place, and in such event Rule 223 shall not apply or shall apply with
such modifications as the court or judge may direct.” (emphasis
added)
This
procedure is distinct and separate from that provided for in Rule 242
and Rule 244 of the High Court Rules 1971, which provide for urgent
chamber applications.
Rule
223A provides for urgency which arises after an applicant will have
filed an ordinary application as the applicant had done in this case.
Rule 223 which has to be modified or can be rendered inoperative by
Rule 223A provides for the setting down of ordinary applications in
not less than eight business days after the filing of the notice of
opposition and opposing affidavit. It in subsection (3) provides as
follows;
“(3)
Subject to Rule 223A, without the consent of the respondent, no
application in which a notice of opposition and an opposing affidavit
have been filed shall be set down for hearing less than eight
business days after the notice of opposition and opposing affidavit
were filed.”
The
applicant filed this urgent application after the respondent had
filed its notice of opposition and opposing affidavit in which it
pointed out the applicant's tardiness in trying to stay execution
through an ordinary application. Instead of immediately invoking the
provisions of Rule 223A the applicant filed this urgent chamber
application in terms of Rule 244.
The
applicant's earlier application can be expedited by invoking the
provisions of Rule 223A which in spite of the filling of the first
respondent's notice of opposition and opposing affidavit, can if a
legal practitioner certifies its urgency can be set down as provided
in Rule 223A, and be heard at any time or place, and in such event
Rule 223 shall not apply or shall apply with such modifications as
the court or judge may direct.
I
therefore find that the first respondent correctly raised the
preliminary issues of lis pendens and urgency.
The
pending application takes away urgency from the current application
because it provides an alternative remedy to the applicant.
A
case can only be heard on urgent basis if it cannot await its turn in
the queue of cases filed for hearing by other litigants. It must be a
case in which the applicant has no other remedy besides seeking an
order through the urgent chamber application. Where a litigant has
alternative remedies his case should not be allowed to jump the
queue.
The
applicant should therefore, expedite its earlier application if it
believes that it can justify the existence of urgency.
I
will refrain from making a determination on the general urgency of
the circumstances existing between the parties, as it is the issue to
be decided by the court which shall hear the applicant's earlier
application.
This
application must fail on the preliminary issue of lis alibi pendens
and there being no urgency in this application because the applicant
has another remedy through the urgent set down of its ordinary
application.
The
hearing of this application before me was therefore unnecessary and
could have been avoided.
I
gave the applicant a hint of its being an unnecessary application.
The applicant insisted on being heard causing unnecessary costs to
the first respondent. It must pay the first respondent's costs on
the higher scale.
The
applicant's application is dismissed. The applicant shall pay the
first respondent's cost on the legal practitioner and client scale.
Messers
Gonese Attorneys, applicant's legal practitioners
Messers
Chihambakwe Mutizwa & Partners, first respondent's legal
practitioners
