MUSAKWA
J: The applicant is seeking a stay of execution of a judgment granted in
default on 31 May 2010.
Summons
that gave rise to the default judgment were served on the second respondent
whose address of service was cited as Stand 223 Makoni Shopping Centre,
Chitungwiza. However, the writ of execution, notice of seizure as well as
notice of removal give the second respondent's address as stand number 20924
Unit 'G' extension Shopping Centre.
In
a founding affidavit deposed to on behalf of the applicant by its managing
director, Irene Kandawasvika it is stated that she was served with a notice of
removal dated 30 June 2010 on 5 July 2010. Thereafter a notice of seizure was completed.
In the notice of seizure some assets of the deponent were then listed. The
assets in contention comprise a computer, printer, television set and a Peugeot
306 motor vehicle. The motor vehicle is said to belong to Irene Kandawasvika's
cousin. Although Irene Kandawasvika purports to represent the applicant one
wonders why the proceedings were instituted in the applicant's name if some of
the assets belong to her. Under such circumstances if the goods belong to Irene
Kandawasvika then she should have instituted the proceedings in her name.
Two
preliminary issues were raised by first respondent. Firstly, it was contended
that the applicant adopted the wrong procedure as it should have resorted to
interpleader proceedings in terms of the rules of court. Secondly, it was
contended that the matter lacks urgency. This is premised on the argument that the
applicant was served with the notice of seizure on 30 June 2010 and yet the
present application was only filed on 9 July 2010. The delay in
making the application is not explained.
Mr
Mugiya for the applicant submitted
that the matter is urgent as the applicant is likely to lose its property
including the vehicle which belongs to an uncle of the deponent to the founding
affidavit. He also submitted that there is no justification why execution was
being carried out at a different address from the one where summons were
served.
On
the other hand Mr Muzondo submitted
that there is no proof that the seized property belongs to the applicant. He
also contended that if the motor vehicle belongs to an uncle of Irene
Kandawasvika as was now being submitted, then there is no legal basis for her
to institute proceedings on behalf of the uncle. He further submitted that the
proper way of determining this matter is by way of interpleader proceedings.
Regarding urgency he referred to the case of Kuvarega v Registrar General
and Another 1998 (1) ZLR 188(H). His contention was that there was no need
to wait until 9 July when the need to act arose on 30 June.
The
third respondent deposed to an affidavit in which he explained the
circumstances under which he executed the judgment. Basically he states that
the goods in question were identified to him by a director of second
respondent. At the hearing of this matter he wanted to submit additional
evidence not canvassed in his affidavit.
On
the basis of urgency alone, the application would fail. Although counsel for the
applicant sought to highlight that the matter is extremely urgent it is
apparent that the conduct of the applicant does not underlie such urgency. No
explanation is given in the founding affidavit why no action was taken at the
earliest opportunity when notice of seizure was served on 30 June. On what
constitutes urgency this is what CHATIKOBO J had to say in Kuvarega's case at p. 193-
““There is an allied problem of
practitioners who are in the habit of certifying that a case is urgent when it
is not one of urgency. In the present case, the applicant was advised by the
first respondent on 13 February 1998 that people would not be barred from
putting on the T-shirts complained of. It was not until 20 February 1998 that
this application was launched. The certificate of urgency does not explain why
no action was taken until the very last working day before the election began.
No explanation was given about the
delay. What constitutes urgency is not only the imminent arrival of the day of
reckoning; a matter is urgent, if at the time the need to act arises, the
matter cannot wait. Urgency which stems from a deliberate or careless
abstention from action until the dead-line draws near is not the type of
urgency contemplated by the rules. It necessarily follows that the certificate
of urgency or the supporting affidavit must always contain an explanation of
the non-timeous action if there has been any delay. In casu, if I had formed the view that it was desirable to postpone
the election I may nevertheless, have been dissuaded from granting such an
order because, by the time the parties appeared before me to argue the matter, the
election was already under way. Those who are diligent will take heed.
Forewarned is forearmed.”
A
delay of one week may ordinarily not be said to be inordinate but where it
occurs it has to be explained. This is especially so when it is claimed that a
matter is extremely urgent. In the present matter the goods were to be removed
on 9 July and such coincidence with the date of filing of the application
reinforces the conclusion that the applicant was lethargic in its handling of
the matter.
I
am also of the view that the applicant lacks the locus standi to institute the proceedings. This is because the
goods are said to belong to Irene Kandawasvika and her uncle or cousin.
Therefore the applicant, being a separate legal personality has no legal
interest to protect. It is not clear why the proceedings were instituted in the
applicant's name. In one breath, Irene Kandawasvika claims ownership of all the
attached goods, but elsewhere in the founding affidavit she sates that the
motor vehicle belongs to her cousin. It just serves to show how lackadaisical the
applicant has been in preparing this matter.
Counsel
for the applicant did not make any submissions on the procedure adopted in this
matter. I agree that this is a matter that should have been dealt with by way
of interpleader notice in terms of Order 30 of the High Court Rules. On the
face of it one cannot fault the third respondent if account is taken of
GELLESPIE J's remarks in the case of Doelcam
(Pvt) Ltd v Pichanick and Others 1999 (1) ZLR 390 (H) in which at p. 398 he
had this to say-
“The messenger of court who seizes
and sells the property of another is protected from the consequences of his act
by the authority of the court he serves. What would otherwise be a wrongful and
intentional invasion of another's rights of property has the element of
wrongfulness removed by the existence of a valid warrant of court. The warrant
permits not only the removal of the judgment debtor's goods, but also the
removal from the judgment debtor's possession of goods of third parties
provided that no notice of the third party claim is given to the messenger.
That property is deemed to be that of the debtor. Where such notice is given,
then attachment is unlawful; interpleader proceedings must be instituted.”
In
the circumstances the application is dismissed with costs.
Mupindu Legal Practitioners, for applicant
Garabga, Ncube &
Partners, first respondent's legal practitioners
