Urgent
Chamber Application
CHIKOWERO
J:
On
April 27th
2018 applicant filed an urgent chamber application for suspension of
a sale in execution of a dwelling in terms of Rule 348A(5b) of the
High Court Rules, 1971.
In
line with Rule 348A(6) l treated this matter as urgent. I caused it
to be set down for May 2nd
at 2.30pm for hearing as soon as it was allocated to me.
Opposing
papers were duly filed on April 30th
2018, and served. The parties and their legal practitioners appeared
before and, by consent, the matter was postponed to May 3rd
2018 at 9.00am to enable the applicant's legal practitioner to
reconsider whether to proceed with the application. This was
occasioned by the points in limine raised in 1st
respondent's opposing affidavit.
I
also took the opportunity to point out to both parties to consider
whether the matter was properly before me in view of this court's
decision in Masimbe
v Rainbow
Tourism Group 2016
(1) ZLR 367.
I
pause to remark that when l was preparing this judgment l noted that
the application was meant to be brought under Rule 348A(5a) and not
(5b).
Rule
348A(5b) provides for the form in terms of which the application in
terms of 348A(5a) must be brought. The form is provided in the rules
as Form No.45b. The citation of the incorrect subrule prejudiced no
one. I ignored it.
Preliminary
point 1: Should a Rule 348A(5a) application be filed as an urgent
chamber application?
May
3rd
2018 saw the preliminary points being argued before me. The first
point was that the matter was not properly before me because an
application in terms of Rule 348A(5a) cannot be brought as an urgent
chamber application.
This
matter came before me as an urgent chamber application, in terms of
Rule 348A(5a), for suspension of sale of a dwelling declared
specially executable by judgment of this court dated March 30th
2016.
The
order declaring the dwelling specially executable appears on the last
page of the judgment. Copy of the judgment is annexed to the
application.
Rule
348A(5b) is clear that an application for suspension or postponement
of a sale in execution of a dwelling, made in terms of the preceding
subrule, shall be in Form 45b. It deals with the procedure. Rule
348A(5b) is couched in peremptory terms.
In
this regard, I agree that, as a matter of procedure, an application
for suspension of a sale in execution of a dwelling brought in terms
of Rule 348A(5a) must not be brought as an urgent chamber
application.
It
must be brought as a chamber application as clearly spelt out in Rule
348A(5b) utilising the format therein provided. The relevant form is
attached to the Rules. It is Form No.45b.
I
agree also that an application in terms of Rule 348A(5a), because it
is not an urgent chamber application, it is not supported by any
affidavit, is not accompanied by any certificate of urgency and
should not have attached to it a draft provisional order.
Form
45b is a standard form document in the nature of a statement setting
out what should be contained in an application for suspension or
postponement of a sale in execution of a dwelling.
Put
differently, when duly completed and filed with the Registrar of this
court, Form 45b is the application itself. It has no provision for a
certificate of urgency. It also does not make provision for seeking
interim relief. The remedy envisaged therein is clearly final in both
form and substance.
It
is evident that l have on this point reached the same conclusion as
in Masimbe
v Rainbow
Tourism Group
2016 (1) ZLR 367 (H).
As
the rules of this court currently stand, an application under Rule
348A(5a) cannot be brought as an urgent chamber application. It must
be instituted as a chamber application in Form 45b, although it is
treated urgently.
However,
on the basis of the papers before me l dismiss the first point in
limine.
The reasons are:-
1.
The cover and title of the application clearly show that it was
brought as an urgent chamber application.
2.
It was accompanied by a certificate of urgency.
3.
The application was supported by a founding affidavit.
4.
As originally filed, it had a draft provisional order setting out the
terms of the final relief sought as well as the interim relief
desired.
5.
All the above shortcomings notwithstanding, pages 1 to 3 of the
application although christened: “Urgent chamber application for
suspension of sale in execution of dwelling in terms of Rule 348A(5b)
of the High Court Rules, (1971)” is in fact Form 45b. It is not
only so headed but is in fact so.
During
argument an oral application was made to amend the draft order by
entire deletion of the interim relief sought and substitution of
certain words in the remaining draft order to conform with the offer
made in Form 45b. Although the net result of the amendments sought
was clumsy vis-a-vis
the order sought, I was prepared to, and did, grant the application
for amendment of the draft order.
I
took the view that no one was prejudiced. A draft order, amended or
unamended, remains precisely that – a draft order.
I
agree that the state of applicant's papers even after the amendment
is in form a mixture of an urgent chamber application and a chamber
application in Form No. 45b. That is clearly undesirable considering
that applicant is legally represented.
One
option would have been for applicant to withdraw the application and
file, in proper form, the desired application. That was not done.
I
am prepared to, and do, condone applicant's procedural failings in
this regard. I condone the procedural departure using the discretion
reposed in me by Rule 4C of the High Court Rules, 1971.
There
has been substantial compliance with Rule 348A(5a) and (5b) in that
Form 45b is in fact part of the papers before me.
Confusion
may also have ensued in the wake of this court relating to
applications for postponement or suspension of sale in execution of a
dwelling in terms of Rule 348A(5a) being made as urgent chamber
applications. I refer in this regard to the following matters;
Masendeke
v Central
Africa Building Society & Anor
2003 (1) ZLR 65 (H); Muguti
& Anor
v Tian
Ze Tobacco Co (Pvt) Ltd & Anor 2015
(1)
ZLR
561 (H).
If
the confusion does in fact exist, the same is in my view, clearly
unnecessary. The rules cannot be clearer on the correct procedure to
be followed.
In
the circumstances, I dismiss the first point in
limine.
Preliminary
point 2: Is Rule 348A(5a) applicable to a dwelling which has been
declared by a court order to be specially executable?
This
issue has been considered by this court in the past. The following
matters are pertinent in this regard; Meda
v
Homelink
(Pvt) Ltd & Anor
2011 (2) ZLR 516 (H); Nyabindu
&
Anor
v Barclays Bank of Zimbabwe Ltd & Others
2016 (1) ZLR 348 (H); Electroforce
Wholesalers (Pvt) Ltd & Anor
v FBC
Bank
Ltd HH 14/2015.
In
all three matters this court has held that Rule 348A(5a) does not
apply to a dwelling
which
has been declared by a Court Order to be specially executable.
I
am not persuaded that the above matters were wrongly decided.
In
Meda
(supra)
DUBE
J stated
at 352 G – 353 A;
“Rule
348A is applicable where the Sheriff attaches a 'dwelling' in
circumstances where the debt sought to be recovered is not linked to
the dwelling concerned. It applies where the dwelling is not under
mortgage. Rule 348A is not applicable to foreclosure proceedings.
Where a person approaches a bank for a loan and mortgages his house
as security for a debt, he cannot when he defaults, plead that his
house is his sole dwelling. Any person who puts his home up as
security for loan and does so being well aware of the fact that
should he fail to service the loan, his house will be up for sale,
cannot complain when he fails to service the loan and the bank
attaches his home. Such a person takes a risk which he should live
with. The applicants cannot cry foul now and seek to avoid their
financial and lawful obligations by invoking Rule 348A to avoid their
obligations. The applicants should live with the consequences of
mortgaging their house. To allow litigants in foreclosure proceedings
to hide behind the fact that the mortgaged house is a family dwelling
would amount to home seekers getting mortgages without security.”
I
am in entire agreement with these remarks.
Although
no distinction is made on a plain and literal reading of Rule
348A(5a) between attached dwellings subject to a mortgage bond and
those not so subject, by mortgaging the dwelling the applicant
effectively waived the protection otherwise available under Rule
348A.
In
my view, this court cannot blow hot and cold. It cannot declare the
dwelling specially executable and then, when that very order is
executed upon effectively set it aside by declaring the same property
not executable, never mind the conditions attached to such latter
court order.
I
am aware that Masendeke
v
Central
Africa Building Society & Anor
2003 (1) ZLR 65 (H) was an urgent chamber application brought under
Rule 348A wherein this court suspended the sale in execution of a
dwelling.
A
reading of that judgment does not disclose that this point was raised
in that matter. Rather the matter was decided on the basis of Rule
348(5e)(b)(i)(ii) and (iii).
I
observe also, in passing, that Masendeke
(supra)
was brought as an urgent chamber application when the Rules provide
for a chamber application. Because of that, the provisional order
granted therein was not only final in nature but a replica of the
final order sought.
I
remain unpersuaded that Masendeke
(supra)
was correctly decided in so far as it ordered suspension of sale in
execution of a dwelling declared specially executable by an order of
court.
I
therefore uphold this preliminary point.
Accordingly,
the application is dismissed with costs.
Gill
Godlonton & Gerrans, applicant's
legal practitioners
Mawere
& Sibanda, 1st
respondent's legal practitioners
