MAWADZE J: This is an urgent chamber application for a
provisional order whose interim relief sought is stated as follows:-
“Interim
relief sought/granted
1.
Pending
the determination of this matter, the respondents be and are interdicted
from removing the
property listed in Annexture A”.
The
terms of the final order sought are couched as follows:-
“Terms
of final order sought
The
respondents should show cause why a final order should not be made in the
following terms:
1.
The
respondents be and hereby interdicted from removing the property listed in
Annexture 'A' pending the determination of the matter in case HC 5098/10
2.
The
costs of suit shall be borne by the respondents if they oppose this application”.
The salient facts of this case can
be summarised in the following manner;
On 30 June 2010 the first respondent
obtained an order from this court against the second
respondent who owed the first
respondent a certain amount of money. In pursuance of that order a warrant of
writ was issued on 20 July 2010.
On
23 July 2010 the third respondent on the instructions of the first respondent
and in execution of the said order issued a notice of seizure and attachment of
goods itemised in Annexture 'A' and placed them under judicial attachment.
Annexture 'A' include the following:-
“1 x leather lounge suite, a x 3
piece sofas, 1 x JVC 42” LCD, 1 x 3 piece coffee table, 10 piece dining room
suite, 1 fridge master d/door, 1 Toyota 2,8 (4 x 4 ) Reg. No. ABC 6738, 1 x
Isuzu ABE 6077 pick-up” .
All
the goods listed in Annexture 'A' were at No 20 Babbacomb Road Mandara, Harare, Apparently the
applicant and the second respondent share this same residence. The applicant
contends that property listed in Annexture 'A' belong to the applicant and not
the judgment debtor the second respondent. On 27 July 2010 the applicant
instituted inter-pleader proceedings case no HC 5098/10 in which the applicant
is cited as the claimant and the first to third respondents are as in casu. This matter is pending before
this court. The applicant alleges that the issuance of inter-pleader
proceedings did not deter the first and third respondents who have threatened
to proceed with the sale of goods in Annexture 'A'. This development is the
reason upon which the applicant has approached this court on a certificate of
urgency seeking the provisional order referred to supra. Applicant's fear is that if the first and third respondents
are allowed to have their way the inter-pleader proceedings pending before this
court would be rendered meaningless if the disputed goods listed in Annexture
'A' are disposed of before finalization of case No. HC 5098/10. The second
respondent filed a supporting affidavit in which the second respondent alleges
that the property listed in Annexture 'A' belongs to the applicant and not to
the second respondent and that the first and third respondents have not
respected the inter-pleader proceedings as they have continued to threaten to
proceed with the seizure and sale of the goods belonging to the applicant. This
application is opposed.
At
the hearing of this application Mr Mutasa
for the first respondent raised three points in limine. I propose to deal with these points in limine first.
Points
in
limine
1.
Mr
Mutasa raised the point that the
certificate of urgency filed of record and attested by to by a legal
practitioner Mr Wellington Thomas Pasipanodya of Messrs Manase and Manase
is improperly before the court. In argument Mr Mutasa stated that in the main matter involving the first
respondent against the second respondent Case No. HC 1876/09 Mr Wellington Thomas Pasipanodya
represented the second respondent and unsuccessfully opposed the granting of
judgment in favour of the first respondent. Mr Mutasa's contention is that Mr Wellington
Thomas Pasipanodya has an interest in this matter and would do all he can to
frustrate the first respondent in executing the judgment issued in case No. HC
1876/10. Mr Mutasa submitted that it
is logical that Mr Wellington Thomas Pasipanodya
because of his vested interests would fight in the corner of the second
respondent and that he has done so by his certification of this matter as
urgent. On the other hand Mrs Sande
for the applicant submitted that there is no conflict of interest at all in Mr Wellington Thomas Pasipanodya attesting
to the certificate of urgency as he is not representing the applicant in this
case. Mrs Sande further argued that
the law firm representing the applicant in this case, that is Mupawaenda Sande
is different from the one under which Mr Wellington Thomas Pasipanodya
practices that is Manase and Manase. Mr Mutasa
cited the case of Chafanza Edgars Stores
and Anor 2005(1) ZLR 301 (the case however is on pp 299 to 301).
My view is that while it
is correct that Mr Wellington Thomas
Pasipanodya has an interest in these proceedings arising from his role in
case No. HC 1876/10 representing the second respondent, the nature of his
interest is clearly distinguishable from the concerns raised by the learned
judge in Chafanza case supra. I would
agree with Mrs Sande that there is no
conflict of interest in Mr Wellington
Thomas Pasipanodya attesting to the certificate of urgency. I therefore
find nothing inherently irregular about the certificate of urgency filed of record
and would find no merit in the submission that the certificate of urgency is
improperly before the court.
2.
The
second point in limine raised by Mr Mutasa is that the applicant has not
complied with the mandatory requirement of R 241(1) and on that basis alone
this application should fail.
Rule 241(1) provided as
follows:-
“241 Form of chamber
applications
(1) A chamber application shall be made by means
of an entry in the chamber book and shall be accompanied by Form 29B duly
competed and, except as provided in subrule (2) shall be supported by one or
more affidavits setting out the facts upon which the applicant relies"
Form 29B provides that the grounds upon which
the application is based must be set
out in that form.
I
understand Mr Mutasa's argument in
its regard to be two fold. Firstly in that this application is not accompanied
by Form 29B and secondly that the facts or grounds upon which this application
is based are not set out in the format provided for under R 241(1). It is
correct that this application is not accompanied by Form 29B and that on p1 of
the application which should be in the format of Form 29B the grounds upon
which the application is based are not set out.
Mrs
Sande countered that the applicant
complied with the requirements of R 241(1) as the applicant has proceeded to
set out the grounds upon which the application is based in the founding and
supporting affidavits.
I
am not persuaded by Mrs Sande's
argument. Rule 241(1) clearly provides for two requirements, which are that the
application shall be supported by one or more affidavits and secondly be accompanied
by Form 29B. The grounds upon which the application is based should be stated
both in the supporting affidavits and in Form 29B. This would imply that the setting
out of the grounds upon which the application is based in the supporting
affidavit would not obviate the need to attach Form 29B duly completed (which
entails setting out the facts upon which the application is based). Indeed this may sound redundant and unnecessary
but the requirements set out in R 241(1) are clear. In casu the applicant has partially complied with the mandatory
requirements of R 241(1) by setting out the grounds upon which the application
is based in the supporting affidavits (founding affidavit).
Mr
Mutasa referred to the case Inyanga Downs Orchards v Edward Buwu HH
108-2010 in which MUSAKWA J in dealing with the effect of non compliance with
the requirements of the rules inclusive of R 241(1) extensively referred to the
case of Forestry Commission v Moyo
1997 (1) ZLR 254(S) (and an earlier decision by MALABA J (as he then was in the
same case). I do not share the view that in Inyanga
Downs Orchards v Edward Buwu case supra
MUSAKWA J dismissed the urgent
chamber application solely on the basis of
non compliance with R 241(1) specifically failure to attaché Form 29B.
In that case MUSAKWA J considered a number of points in limine raised by the respondent and arrived at the following
decision captured on p 8 of the cyclostyled judgment;
“From a consideration of the points in limine I come to the conclusion that
the application cannot be entertained. Therefore the application is dismissed
with costs”.
My
view is that Mrs Sande should have
sought condonation for the failure to fully comply with R 241(1). The remarks
by GABBAY CJ (as he then was in Forestry
Commission v Moyo supra at pp 259-260 are pertinent;
“I entertain no doubt that, absent
an application it was erroneous of the learned judge to condone what was on the
face of it, a grave non compliance with R259. For it is making of the
application that triggers the discretion to extend time. In Matsambire v Gweru City Council S-183-95
(unreported) this court held that where proceedings by way of review were not
instituted within the specified eight week period and condonation of the breach
of R259 was not sought, the matter was not properly before the court. I can
conceive of no reason to depart form that ruling. One only has to have regard
to broad factors which a court should take into account in deciding whether to
condone such non compliance, to appreciate the necessity for a substantive
application to be made”.
The
remarks by the learned CHIEF JUSTICE (as he then was) in my view state the
basic principle that where there is non compliance with the mandatory
requirements of the rules, such an omission should, as a matter of principle,
be cured by making a proper application for condonation. In casu no such application was made.
However as already stated applicant has partially complied with the
requirements of R 241(1). I am not persuaded that despite such partial
compliance I should still dismiss the application on the basis that it is
fatally defective. In my view proper and relevant arguments need to be made in
that regard before this court can pronounce itself with finality on that issue.
3.
The
third point in limine raised by the
Mr Mutasa is that this matter is not
urgent and that on that basis I should decline to hear the merits of the case.
In the case, of Kuvarega v Registrar General
& Anor 1998(1) ZLR 188 CHATIKOBO J aptly dealt with what constitutes
urgency in an application of this nature. NDOU J in discussing the question of
urgency in the case of Mathias
Madzivanzira and 2 Ors v Dexprint Investments (Private) Limited and Anor HH
145-2002 at pp2-3 also referred to the remarks by PARADZA J in the case of Dexprint Investments (Pvt) Ltd v Ace
Property and Investment Company HH 120-2002 which remarks are captured as
follows:-
“For a court to deal with a matter
on an urgent basis, it must be satisfied of a number of important aspects. The
court has laid down the guidelines to be followed. If by its nature the
circumstances are such that the matter can not wait in the sense that if not dealt immediately irreparable prejudice
with result, the court can be inclined to deal with that on an urgency basis.
Further, it must also be clear that the applicant did on his own part treat the
matter as urgent. In other words if an applicant does not act immediately and
waits for doomsday to arrive and does not give a reasonable explanation for
that delay in taking action, he cannot expect to convince the court that the
matter is indeed on that warrants to be dealt with on an urgent basis”.
Mr
Mutasa submitted that there is no
urgency in this matter because the goods were attached on 20 July 2010 and the
applicant only made this urgent chamber application after 16 working days and
that no explanation has been proffered for this delay. The correct sequence of
events of this matter does not at all support the argument advanced by Mr Mutasa. The writ was indeed issued on 20 July 2010 but
the notice of seizure and attachment of goods was issued by the third
respondent on 23 July 2010. It is not
correct that after being served with the notice of seizure on 23 July 2010 the
applicant took no action until 13 August 2010 when this application was made.
The applicant issued inter-pleader proceedings on 27 July 2010 which was only
after the expiry of one working day from 23 July 2010 as 24 and 25 July fell on
a weekend. Applicant therefore within a day took steps to try and prevent the
disposal of these goods in issue.
The
applicant in para(s) 7 to 8.4 of the founding affidavit explained that both the
first and third respondents were determined to proceed with the disposal of the
goods in Annexure 'A' despite the issuance of inter-pleader proceedings. It is alleged they continued to approach the second respondent
and the applicant then proceeded thereafter on 13 August 2010 to file this
urgent chamber application in a bid to protect his interests in the property
listed in Annexture 'A'. The facts of the case clearly show that the applicant
acted with due diligence and that the matter is indeed urgent.
All
in all I therefore find no merit in the points in limine raised by Mr Mutasa.
I now proceed to deal with the
merits of this application.
The
interim relief or provisional order sought by the applicant is premised on the
grounds that proper inter-pleader proceedings have been filed in this court
under case no. HC 5098/10. However a perusal of the record in case no HC
5098/10 clearly shows that the so called inter-pleader proceedings filed by the
applicant are so defective to such an
extent that there are no any valid inter-pleader proceedings pending before this
court. The applicant totally failed to comply with the provisions of Order 30
and specifically Rules 205A to 208 which outline the procedure to be followed
in instituting inter-pleader proceedings. Mrs Sande conceded that she had no meaningful submissions to make in
that regard. I share the difficulty she had. In my view there is therefore no
basis for this court to grant the provisional order in the absence of proper
and valid inter-pleader proceedings before this court. There are no such
proceedings pending before this court. On that point alone the applicant's case
cannot succeed. I therefore find no need to deal with other issues raised by Mr
Mutasa save the question of costs.
My
view is that this is a proper case to award costs on a higher scale. Applicant
failed to comply with elementary procedure in instituting inter-pleader
proceedings and has proceeded to make a fatally defective urgent chamber
application.
I
accordingly make the following order:-
1. The application is dismissed.
2. The applicant shall pay costs on the
legal practitioner client scale.
Mupawaenda Sande, applicant's legal practitioners
Gill,
Godlonton & Gerrans,
first respondent's legal practitioners
