On 8 October 2014, I granted the applicant's claim for an eviction order against the respondents stemming from a sale in execution that had been confirmed by the Sheriff and where transfer of the property had already taken place.
I also dismissed the respondent's application for upliftment of bar for reasons I here upon elucidate.
The background facts are these:
The applicant bought the property through a Sherriff's sale for $116,000. The property is described as Subdivision A, Lot 16, Block B of Avondale, held under Deed of Transfer Registration No.4835/05.
The sale was in execution of a debt owed to Genesis Bank by the first respondent and his business partners and for which the property belonging to both respondents had been used as security.
Mr Maxwell Kufakunesu Chisvo was declared the highest bidder for the property on 18 March 2013.
On 19 March 2013, the second respondent applied to have the sale set aside on the basis that the price realised was unreasonable, given that their own evaluation was for $215,000.
The second respondent's application, which was in terms of Order 40 Rule 359, also contained various averments regarding the impropriety of the security that the Bank had obtained in the initial instance.
The application was dismissed in July 2013 and the sale was confirmed since the judgment debtor had failed to produce the buyer for this higher price.
Issues relating to any impropriety regarding the obtainment of the initial security were said to be matters for the court.
The property was duly transferred into the applicant's name in January 2014, which was some six months later.
On 22 January 2014, the applicant gave the respondents notice to vacate the premises.
On 24 January, the respondents practitioners wrote to the applicant's representative advising them of pending proceedings to challenge the terms on which the property had been acquired.
It was the applicant's position, that, the sale was no longer conditional but a confirmed sale, and, accordingly sought eviction on 10 February 2014 and holding over damages.
The respondents filed a notice of opposition, on 25 February, in which they argued, that, the highest bidder was one Mr Kufakunesu Chisvo and that they were surprised that the property was then transferred to Ladrax Investments (Pvt) Ltd.
Their primary objection was that the applicant is an imposter.
The applicant filed its answering affidavit, on 25 February, explaining that the applicant is a company whose directors are Mr Kufakunesu Chisvo and his wife, Joyce Chisvo.
He further explained, that, Mr Chisvo had made a request for the property be transferred into the applicant's name, which wish was acceded to by the Sherriff.
On 24 April 2014, the applicant filed its heads of argument. This is not disputed (the certificate of service confirms says that these were served on the Respondent on the 24th of May 2014. However the Registrar's stamp on proof of service reads 23rd of May so the assumption is that 24th of May is most likely a typing error and should have read 24th April which was when the heads were filed with the court).
It is also not in dispute, that, the respondents failed to file their heads of argument and were therefore barred.
The relevant Rule of the High Court, 1971 reads as follows:
“Rule 238(2a)
Heads of argument referred to in subrule (2) shall be filed by the respondent's legal practitioner not more than 10 days after the heads of argument of the applicant or excipient, as the case may be were delivered to the respondent in terms of sub-rule (1); provided that –
(i) No period during which the court is on vacation shall be counted as part of the ten day period;
(ii) The respondent's heads of argument shall be filed at least five days before the hearing.
(2b) Where heads of argument that are required to be filed in terms of subrule (2) are not filed within the period specified in subrule (2a), the respondent concerned shall be barred and the court or judge may deal with the matter on merits or direct that it be set down for hearing on the unopposed roll.”
On 8 October 2014, some five months after the filing of the applicant's heads, the matter came before me for hearing.
The respondents, being barred, they sought to make an application for upliftment of the bar through their practitioner…,.
He stated, that, the respondents case for upliftment of the bar is based on prior proceedings in which the allegation of fraud were made. He clarified to the court, that, when his firm received instructions from the respondents, its view was that an independent assessment of the allegations was necessary. As such, he said they were reluctant to push the matter without independent evidence. He went on to state, in his quest, that, a report had since been produced, on 25 September 2014, which would now form the basis of the application for upliftment of the bar.
It is necessary here to say a few words about the nature of those allegations as gleaned from the papers filed of record.
The respondents made allegations of fraud in the acquisition of the loan by one of the husband's business partners, particularly in that he had forged the second respondent's signature in order to register the bond.
The respondents had purported to bring two applications against Genesis Bank - one for condonation of late filing for rescission of the default judgment that the Bank had obtained resulting in the sale (HC973/13), and, another, for the actual rescission of the judgment itself (HC11069/11).
However, the respondents, having failed to pursue these applications to their logical conclusion, the documents filed of record indicate that Genesis Bank had brought chamber applications to have these matters dismissed for want of prosecution.
Also, no report had been made to the police concerning the alleged fraud.
The applicant was naturally opposed to the upliftment of the bar, arguing that the reasons could not be ventilated in an oral application.
Counsel for the applicant relied on the case of Kudakwashe Nyakambangwe v Jaggers Trador (Private) Limited HH146-03 which drew on HERBSTEIN and Van WINSEN, The Civil Practice of the Supreme Court of South Africa, 4ed…, for the considerations that the court takes into account in considering an application for condonation which include:
“The degree of non-compliance; the explanation for it; the importance of the case; the prospects of success; the respondent's interest in the finality of his judgment; the convenience of the court; and the avoidance of unnecessary delay in the administration of justice."
Where a respondent has been barred for failure to files heads of argument on time, Rule 238(2b) of the High Court Rules allows a court to deal with the matter on the merits: see GMB v Muchero 2008 (1) ZLR 216 (S) 216…,.
Counsel for the applicant therefore emphasised, that, no police report had been made against Mr Christopher Mawere, who is supposed to have forged the signatures. He also pointed out the first respondent had admitted to receiving US$94,000 to acquire mining equipment which is the reason why they bonded their property.
He maintained, that, the quest for upliftment of bar is an abuse of court process as the respondents have no case at all.
He also dismissed the argument by the respondents, that, the Sherriff should have proceeded against movable property first maintaining that it is a long standing practice to declare hypothecated property executable: see Meda v Homelink (Pvt) Ltd HB195-11.
His position was that it was unreasonable, under the circumstances, for the respondents not to have filed heads of argument.
Although an application for upliftment of the bar can indeed be made at the hearing; however, whether or not a party will be permitted to file their substantive application for the court's consideration, and for assessment by the other party, is not a given and should not be approached as such.
In my view, in light of the facts of the case, this was not a case where an application could simply be made casually on the date of the hearing without grave prejudice to the other side.
The applicants were seeking eviction and the respondents were well aware of this fact.
When they did not file their heads in accordance with the Rules, they were very much aware that they were barred; only to wait to come to court, on the date of the hearing, to tender an explanation that they were, all along, carrying out investigations to strengthen their case.
Furthermore, no correspondence came from them.
Even when they had gathered the information which they thought would bolster their case, they were still dilatory in seeking to bring it to the attention of the court.
Where an applicant has all the time in the world to make a substantive application for the court to consider, and does not do so, he only has himself to blame if the court then refuses to grant his application for non-compliance with the Rules.
My reasoning, in dismissing the respondents application for upliftment of the bar, is very much in line with the sentiments expressed by MAKONESE J in Ndlovu v Guardforce Invstms (Pvt) Ltd & Ors HB03-14.
He re-emphasized the need for legal practitioners to operate within time limits and in terms of laid down procedures, whose purpose is for litigants to know when they are expected to act.
As he explained, when time limits have not been observed, it is the duty of the practitioner to give a credible and convincing explanation why he failed to act timeously.
He also emphasised, that, the court may only excuse failure to act where the explanation given is credible. Significantly, as he stated, the courts should decline to exercise judicial discretion where the explanation proffered is not credible, even where the fault of the legal practitioner will have adverse consequences on the litigant.
I declined the application as the explanation as to why the application was being made at the eleventh hour was far from satisfactory.
There appeared to me to be a reckless and deliberate non-compliance with the Rules as the respondent had been aware, from as way back as April 2014, that, they were under an obligation to file heads.
In light of the facts of the matter, it seemed clear to me, that, the applicant would be prejudiced in the main matter and would not be compensated with a suitable order as to costs, largely because, up to the date of this hearing, the respondent had thus far failed to show any valid reasons for objecting to the sale and to the eviction.
I was not convinced, that, the application for upliftment of the bar was not being made with the intention of delaying the realisation of the applicant's claim for eviction.
If indeed a credit worthy report was now available, there was absolutely no reason why it could not have been the basis for making a chamber application for upliftment of the bar before 8 October.
Against the backdrop of the totality of the above facts, the application for upliftment of the bar clearly lacked merit.
The degree of non-compliance with the Rules, in my view, was inexcusable.
The explanation for the non compliance lacked credibility since the respondents did not even proceed to treat the “report” it had now purportedly obtained with the urgency that it deserved by making an application for upliftment of the bar - assuming it bolstered their case.
Having purchased the property, and transfer having been effected, the applicant clearly has an interest in the finality of his judgment.
In light of the above, I was of the view, that, there was no justification for delaying the administration of justice in the applicant's favour.
It was for the above reasons that I granted the order as follows:
1. The respondent, being barred for failure to file heads of argument, the Notice of Opposition is accordingly struck off.
2. The application, by the respondents, for upliftment of bar, is dismissed.
3. The respondents, and all those who claim title through them, be and are hereby ordered to vacate a certain Subdivision A of Lot 16 Block B of Avondale, also known as No.50 Broadlands Rd Emerald Hill, Harare within 48 hours of being served with Writ of Execution.
4. In the event of the respondents failing to abide with paragraph 3, the Sheriff be and is hereby ordered to evict the respondents and all those who claim title through them.
5. The first and second respondents, jointly and severally, one paying the other to be absolved, be and are hereby ordered to pay costs of suit on an attorney and client scale.
