BERE J: After listening to the submissions made by
both legal practitioners what has exercised my mind is whether or not this
matter is urgent.
What
is apparent to me is that the parties have been in and out of this court on
numerous occasion with allegations and counter allegations being thrown at each
other as the parties stampeded on each other in order to obtain the court's
sympathy.
I
do not believe that this case ought to be determined on the submissions made by
both legal practitioners when they appeared before me. It occurs to me that
when ever there are allegations of contempt such allegations must be
investigated first and the party alleged to be in contempt given an opportunity
to explain his or her conduct. This is so because of the effect or implications
of a party being found to be in contempt. Being in contempt of court carries
with it a drastic penalty which might lead to a party in contempt having to be
deprived of his liberty and such recourse must only be had to when all the
rules of naturally justice have been fully adhered to and followed to the letter.
What
has caught my attention in this matter is that this urgent application has been
prompted by the assumed delay in the conclusion of matter HC 1916/09 which was
heard before my sister judge GOWORA on 16 July 2009.
That hearing was prompted by the
parties desire to have the court determine inter
alia the fate of the tobacco barns, grading shades, storage sheds, workshop, office and irrigation pump
station on the part of the land allegedly allocated to the applicant in this
matter.
This court is already seized with
this matter and in my view it would be undermining the very authority of this
court if it were to make a determination that would render nugatory the ruling
of this same court in the main matter.
Once a matter is awaiting judgment
the same dispute no matter how camouflaged cannot be brought under the banner
of urgency in a desperate effort to bring finality to that same litigation.
There are various options available which a party desiring judgment to be
pronounced soon must initiate.
But to bring the same case on urgent
basis can only amount to an abuse of the whole process of urgency and such an
approach cannot be countenanced by this court.
In fact I cannot imagine a more
pointed way of abusing this process than what the applicant has done in this
matter.
One only needs to imagine what would
happen to the awaited judgment in HC 1916/09 if this court which has not even
had the opportunity and privilege of hearing all the evidence like in the main
case were to make a determination in this urgent application.
For these reasons I decline to
entertain this matter on an urgent basis.
The application is dismissed with
costs
Gula-Ndebele &
Partners,
applicant's legal practitioners
Venturas
& Samukange, 1st
& 2nd respondent's legal practitioners
