Urgent
Chamber Application
MATHONSI
J:
For
reasons which are not apparent from the papers placed before me, the
first respondent sued the first applicant in the magistrate's court
of Harare in case number 19780/13 for payment of the sum of
$73,577.93 together with interest of 5% per annum and costs of suit
on the scale of legal practitioner and client and obtained judgement
on 7 November 2013.
I
say the reasons are not apparent because a claim of that magnitude
would ordinarily be made in this court, the magistrates court's
civil jurisdiction being currently limited to only $10,000.00.
Subsequently,
a writ of execution against immovable property, being Stand 8 Good
Hope Township of Lot 7 of Good Hope, Westgate Harare, was issued on
14 November 2014 after the first respondent had failed to locate
sufficient movable assets to satisfy the debt.
That
property was then attached in execution by the second respondent in
terms of Order 26 Rule 8 of the Magistrates Court (Civil) Rules,
1980.
I
say that because the second respondent, sought authority from the
resident magistrate for the area to sell the property, presumably
acting in terms of Order 26 Rule 8(2) of that court's rules which
provides that whenever a dwelling is attached, the messenger shall
forthwith send written notification to the magistrate and then take
no further steps.
The
magistrate sent written notification of the attachment to the
secretary in the Ministry of Local Government, Public Works and
National Housing who did not bother to respond.
On
19 February 2015 the magistrate wrote to the second respondent in the
following:
“Reference
is made to my letter to the Secretary dated 2 January 2015. The
Secretary has not respondent (sic)
to the letter. In terms of O 26 r 8, you are hereby directed to
proceed with the sale of four attached properties. Be guided
accordingly.
B
Pabwe
Resident
Magistrate
Harare
Civil Court”
After
receiving those instructions from the magistrate, the second
respondent, who I must stress is an officer of that court charged
with the execution of writs coming out of that court, proceeded to
advertise the property for sale by public auction on 10 April 2015.
It
is that advertisement which has jolted the applicants into action and
triggered the filing of this urgent application wherein they seek the
following relief:
“TERMS
OF THE FINAL ORDER SOUGHT
That
you show cause to this Honourable Court why a final order should not
be made in the following terms:
(a)
The sale of Stand No.8 Goodhope Township of Lot 7 of Goodhope be and
is hereby suspended on condition that the applicant pays the
judgement in three equal monthly instalments of USD22,054.00
beginning on the 1st
of July 2015 until the debt is settled and if applicant defaults on
any one payment execution will proceed.
(b)
Applicants pay the costs.
INTERIM
RELIEF
It
is hereby ordered that pending the confirmation of this matter, the
applicant is granted the following relief -
1.
The sale of stand No.8 Goodhope Township of Lot 7 of Goodhope be and
is hereby suspended on condition that the applicant pays an amount of
USD22,054.00 on or before the first day of each month provided that
the first such payment shall commence on or before the 1st
of July 2015. In the event that the applicants defaults in respect of
any one payment the sale in execution shall proceed.
2.
The 2nd
respondent shall suspend any action towards the sale in execution of
the property referred to in paragraph 1 hereof.
3.
A copy of this order or shall be served on the 1st
and 2nd
respondent's legal practitioners.”
Never
mind that the interim relief is the same as the substantive relief;
(Kuvarega
v Registrar General & Anor
1998
(1) ZLR 188) but clearly this is an application made in terms of Rule
348A of the High Court of Zimbabwe Rules, 1971 for the stopping of a
sale in execution to facilitate settlement of a claim.
Ordinarily
there would be nothing wrong with it except that it has been made in
the wrong court.
Rule
348A deals with stopping sales in execution conducted by the Sheriff
of the High Court in pursuance of a writ issued in terms of Rule 346.
In
terms of Rule 348A(1) where a dwelling has been attached the Sheriff
is required to forthwith send the Secretary of the Ministry
responsible for the administration of the Housing and Building Act
[Chapter
22:07]
notification of the attachment.
Subrule
(4) allows the Secretary to approach this court by chamber
application for an order staying the sale.
A
judge will issue a provisional order staying the sale if satisfied
that there is a reasonable probability that the execution creditor's
claim will be satisfied or settled from the National Housing Fund.
In
terms of subrule (5a) the execution debtor himself is entitled to
make the application where the dwelling is occupied by the execution
debtor or members of his family.
This
court ruled in Masendeke
v Central Africa Building Society and Anor
2003 (1) ZLR 65 (H) 70 E that in terms of Rule 348A(6) any such
application shall be treated as urgent as no valid argument can be
advanced against the urgent treatment of an application in terms of
Rule 348A.
A
writ issued in terms of Rule 346 is in Form No.36 of the High Court
Rules and is issued following the grant of an order by this court and
cannot possibly relate to a writ issued following the grant of an
order by a magistrate.
The
procedure relating to attachment of immovable property in the
magistrates court is governed by Order 26 Rule 8 of the rules of that
court. It provides:
“8.
Attachment
of dwelling
(1)
In this rule -
'dwelling'
means a building or part of a building, including a flat, designed as
a dwelling for a single family and includes the usual appurtenances
and out buildings associated with such a building;
'Secretary'
means the Secretary of the Ministry responsible for the
administration of the Housing and Building Act [Chapter
22:07].
(2)
Whenever a dwelling is attached under Rule 7, the messenger shall
forthwith send the provincial magistrate or magistrate of the court
from which the warrant of execution was issued, as the case may be,
written notification that the dwelling has been attached and is to be
sold in execution, and the messenger shall take no further steps in
regard to the sale of the dwelling for a period of forty days,
pending notification by the magistrate concerned in terms of subrule
(4).
(3)
Upon receiving notification of the attachment of a dwelling in terms
of subrule (2) the magistrate shall forthwith send the Secretary –
(a)
written notification that the dwelling has been attached under this
order and is to be sold in execution; and
(b)
copies of all documents and particulars relating to its attachment.
(4)
If, within 30 days after being sent notification under subrule (3),
the secretary notifies the magistrate in writing that he proposes to
satisfy or settle the judgment creditor's claim from the National
Housing Fund established by section 14 of the Housing and Building
Act [Chapter
22:07],
the magistrate shall, without undue delay, notify the messenger in
writing.(5) On receiving notification under subrule (4), the
messenger shall –
(a)
inform the judgment creditor of the Secretary's proposal; and
(b)
take no further steps in regard to the sale of the dwelling concerned
until a period of sixty days has elapsed from the date on which he
received such notification.
(6)
For the purpose of calculating any time-limit under this order, any
period during which the messenger is required by subule (2) or (5) to
take steps in regard to the sale of any dwelling shall be
disregarded”.
The
provisions of Order 26 Rule (8) are similar to those of Rule 348 of
the High Court Rules.
They
were meant to provide sanctuary to debtors when attachment of
dwelling houses became a serious national problem which was rendering
a lot of people homeless. The legislature intervened and a fund to
cater for such problem was set up.
The
High Court rules went further in Rule 348A(5a) to provide a remedy to
a judgment debtor who has made a reasonable offer to pay, other than
placing reliance on the Housing Fund administered by the secretary,
to approach the court to secure a stay of the sale on condition of
the offer.
Unfortunately
there is no similar remedy in the Magistrates Court Rules.
Even
if it were there, it would be available for enforcement in that
court.
What
the present applicants have done is to seek to stay proceedings being
pursued by another court, which has complete enforcement mechanisms
for its orders and rules that provide for the procedure to be
followed, in this court employing rules of this court applying to
orders issued by this court.
In
my view that is incompetent. You cannot mix oil with water.
Mr
Gijima
who
appeared for the applicants conceded that the application seeks to
stay execution which has been levied in terms of the Magistrates
Court Rules. He further conceded that it seeks to apply High Court
Rules on a matter governed by the Magistrates Court Rules and that it
is therefore out of order.
He
however submitted that I must indulge the applicants because there is
no provision in the Magistrate Court Act [Chapter
7:10]
and the Magistrates Court Rules allowing for such an application to
be made. For that reason, the applicants had no option but to come to
this court.
This
is a matter in which no amount of benevolence or indulgence can save
the applicants.
I
can simply not entertain an application which has been made in the
wrong court and seeks to apply rules not applicable to the case.
The
first respondent opposed the application on grounds other than the
issue of an approach made to the wrong court.
It
stated in the opposing affidavit of Loveness Ngwanga its legal
counsel, that the property attached is not a family dwelling as the
applicants and their family live at Dunine Farm in Beatrice and that
they had in fact consented to the sale of the dwelling by private
treaty as far back as January 2014.
It
produced evidence in the form of the messenger of court's returns
showing the attachment of their household furniture at Dunine Farm
Beatrice.
In
addition to that, the first respondent attached proof that the
applicants also own a house in Waterfalls Harare.
It
further asserted that the applicants have previously made endless
undertakings and proposals to settle the debt which have not been
honoured and there is nothing to show that the present offer will be
different.
I
do not consider it necessary to decide the merits of the application
having taken the view that the applicants are in the wrong court.
I
must say however that in light of the evidence produced in
opposition, the applicants would have had serious difficulties
sustaining a case even on the merits.
In
the result, the application is hereby dismissed with costs.
Messrs
Mapaya and Partners,
applicants legal practitioners
Muvirimi
Law Chambers,
1st
respondent's legal practitioners
