Urgent
Chamber
Application
CHIKOWERO
J:
I
have no doubt at all that this application is not urgent.
Upon
receipt of the application on 3 July 2018 I perused same and
instructed that it be set down for hearing on 5 July 2018 at 9:00am.
The
second respondent was not cited. It was not a party to the
proceedings at that stage.
This
notwithstanding, around 2:30pm on 3 July 2018 I received copy of
letter of the same date wherein the second respondent's legal
practitioners expressed, among other things, Ycob Investments (Pvt)
Ltd's real and substantial interest in the matter. The letter was
addressed to the applicant's legal practitioners and copied to the
Registrar. The latter placed the correspondence before me.
Come
5 July 2018 at 9:00am legal practitioners for all the parties herein
appeared before me. Upon the second respondent's counsel stating
that an application for joinder would be filed, I postponed the
hearing to the next day to enable such an application to be
instituted.
This
resulted in the second respondent's joinder, by consent, when the
parties and their legal practitioners appeared on 6 July 2018 for the
hearing.
The
first respondent had filed opposing papers. The second respondent had
not, but was ready to make oral submissions.
The
first respondent raised a single point in
limine.
It submitted that the application was not urgent.
I
agree that this is a classic case of self-created urgency.
That
is not the type of urgency contemplated by the Rules. I refer to a
few only of the decided cases on what urgency is: Kuvarega
v Registrar
General and Another
1998 (1) ZLR 188 (H) and Documents
Support Centre (Pvt) Ltd
v Mapuvire
2006 (1) ZLR 2323 (H).
In
sum a matter is urgent if, when the need to act arises, the matter
cannot wait.
In
this matter, the applicant waited from 16 March 2017 to 2 July 2018.
On
the former date it sold its rights, title and interest in Stand 1578
Ardbennie Township measuring 2,0371 hectares held under Deed of
Transfer number 5348/2011 to the second respondent.
On
the latter date it filed the present application.
The
applicant seeks an interim order compelling the first respondent to
furnish the former with its requirements for cancellation of mortgage
bonds registered in its favour in respect of the property concerned
and, against payment of the value of the loan, delivery of the title
deed.
The
first respondent had taken over the applicant's non-performing loan
from NMB Bank. It then proceeded to register mortgage bonds against
applicant's immovable property.
The
second respondent had seven days from 16 March 2017 to pay the
balance of the purchase price, the transfer fees and agent's
commission. Part of the purchase price was payable upon signing the
agreement of sale on 16 March 2017.
Between
then and filing of the application there was a lengthy period of
inaction by the applicant. Same was punctuated, among other events,
by the applicant waking up from its slumber to cancel the agreement
of sale (which was contested), entering into another agreement of
sale in respect of rights, title and interest in the same property
with Nyaradzo Life Assurance Company (Private) Limited (“Nyaradzo”)
on 15 June 2018 and the applicant's letter of 27 June 2018
requesting the first respondent to state its bond cancellation
requirements.
The
urgency is premised on the continued accrual of interest on the loan
for as long as the debt is not cleared. It also is based on the fear
that Nyaradzo may resile from the agreement of sale if the bond
cancellation requirements are not availed urgently to facilitate
transfer to this second purchaser.
But
interest has always been running ever since the first respondent took
over the applicant's debt on a date not disclosed in the
application.
Equally,
interest has always been accruing since 16 March 2017 when the
agreement of sale between applicant and the second respondent was
entered into.
The
matter cannot become urgent now just because applicant has entered
into an agreement of sale with Nyaradzo and is desperate to effect
transfer of title to Nyaradzo and not to the second respondent.
I
totally agree with both respondents that this application is not
urgent but is a clear abuse of court process. It is, I am compelled
to remark, a mischievous application.
I
therefore uphold the point in
limine.
The application is clearly not urgent.
For
completeness' sake, I wish to make a few remarks on the other two
points raised in
limine.
Firstly,
I disagree that I had no application before me.
I
have considered the ratio on non-compliance with Rule 241(1) of the
High Court Rules, 1971 spelt out in the Telecel
Zimbabwe (Pvt) Ltd
v Potraz
and Others
2015 (1) ZLR 651 (H). That reasoning process commends itself to me.
There
is no form in the current rules for an urgent chamber application
where such is to be served on the respondent(s).
What
the rules allow is for an applicant to improvise. Such improvisation
is through using Form 29 with modifications.
My
attention was drawn in this regard to the following matters: The
Trustees of the Apostolic
Faith Mission in Africa
v Zulu
Rosewell and Others
HH158/17; David
Mapurisa Jack and
Others
v Lloyd
Mushipe N.O and Others
HH318/15; Joshua
Nyamhuka and Another
v Abigail
Mapingure and Others
HH29/17.
In
the instant matter there was substantial compliance with Rule 241(1).
The
grounds of the application were stated in the notice of the
application itself. The application was served on the first
respondent. In due course, copy thereof was also served on second
respondent's legal practitioners when they expressed their client's
intention to apply for joinder.
The
application stated that the founding affidavit and annexures would be
used in support of the application. Further, the notice is clear that
an order would be sought in terms of the draft order, a copy of which
was attached to the application.
The
only procedural rights which were omitted in the notice to the
application were the want of a statement of first respondent's
rights to file opposing papers and the time frame within which to do
so.
Second
respondent, who had not been cited, is the one who submitted that the
application should be struck off the roll of urgent matters as being
fatally defective.
Second
respondent appeared at the hearing. It opposed the application,
verbally, through its counsel. In my view, second respondent was not
prejudiced in any way by the minor infraction of the rules in the
manner indicated.
I
do not agree that I cannot invoke Rule 4C in the absence of an
application for condonation by the applicant. My reading of the Rule
does not limit my discretion in the manner suggested by second
respondent's counsel.
My
understanding of that Rule is that, in relation to any particular
case before it or him, a court or judge may authorise, condone or
direct a departure from any provision of the rules.
The
only qualification is that condonation of the departure should be
such as is required in the interests of justice.
I
am satisfied that condonation of the departure from strict compliance
with Rule 241(1) in the particular circumstances of this case was
required in the interests of justice.
I
do not accept second respondent's argument that I must not consider
whether second respondent was prejudiced or not. I do not accept that
the court is a machine, confined to chucking out matters where there
has not been strict adherence to the letter of the Rules.
Second
respondent was not prejudiced.
These
rules were made to assist the court in the administration of justice.
The rules were not made in a vacuum. Adherence to the rules ought not
to be allowed to attain religious proportions for to do so would
impede the purpose for which the rules were enacted.
I
therefore dismiss the point in
limine
that the application is invalid for want of compliance with Rule
241(1) of the High Court Rules, 1971.
Finally,
the second respondent contended that I should either dismiss the
urgent chamber application or decline to hear it on the basis of
urgency by reason of material non-disclosure. In this application the
material non-disclosure relates to the aspect of urgency as well as
to the merits of the application.
It
is sufficient that I point out that applicant did not disclose that
second respondent had telephonically communicated, through its legal
practitioners, and on 29 June 2018, that it regarded the cancellation
of the agreement of sale as invalid and would be filing summons for a
declaration of nullity of that cancellation. That dispute was
material. By not disclosing the existence of the dispute in the
founding affidavit and proceeding to avoid citing second respondent,
applicant was clearly not being candid with the court.
Its
application had four annexures relating to second respondent. They
ran from pages 11 to 25 of the application. The non-disclosure was
designed to give the court the impression that second respondent
consented to the cancellation of the agreement of sale. It gave the
impression that second respondent was not an interested party.
In
so far as the non-disclosure related to urgency, the untrue picture
was painted that first respondent's refusal to avail its
cancellation of the mortgage bonds requirements qualified the matter
as urgent because it exposed the applicant to continued accrual of
interest. No mention was made of the dispute between second
respondent and applicant over cancellation of the agreement of sale
as that would have demonstrated that this application was not only
not urgent but calculated to present second respondent with the fact
of transfer before resolution of the dispute between the applicant
and the second respondent.
In
all the circumstances, therefore, I find that the application is not
urgent and accordingly order as follows:
1.
The application is removed from the roll of urgent matters.
2.
The applicant shall pay the first and second respondent's costs of
this application on the legal practitioner and client scale.
Mhishi
Nkomo Legal Practitioners, applicant's
legal practitioners
Matsika
Legal Practitioners,
1st
respondent's legal practitioners
Mushoriwa
Pasi Corporate Attorneys,
2nd
respondent's legal practitioners
