The respondents' second matter in limine was, or is, that the
present application is not urgent.
The applicants, on their part,
insisted that the application was urgent. The urgency of the application, they
said, arose from two matters which were that:-
(a) The first applicant received a
warrant of execution; and
(b) The attorneys of the ...
The respondents' second matter in limine was, or is, that the
present application is not urgent.
The applicants, on their part,
insisted that the application was urgent. The urgency of the application, they
said, arose from two matters which were that:-
(a) The first applicant received a
warrant of execution; and
(b) The attorneys of the respondents
in the rescission of judgment application which was set down for hearing on 3
March 2014 confirmed to the applicants that they intended to execute the
warrant without any further delay.
The applicants attached to their
founding affidavit, Annexures A and B, which annexures would, in their view,
assist the court in determining the urgency, or otherwise, of the
application.
At the time of the hearing of the
matter, the warrant of execution which the applicants made reference to was not
in the record of proceedings. The applicants were kind enough to submit that
warrant. They did so at the instance of the court which drew their attention to
the absence of the warrant from the record and its request that it be made part
of the record because of its importance in the determination of the case. The
applicants submitted the warrant on 20 February 2014. Attached to the warrant
is a document which is entitled NOTICE OF ATTACHMENT, I.T.O. RULES 45(12). I
will, for purposes of clarity, refer to the warrant as Annexure C and the Notice
of Attachment as Annexure D. Both those annexures support the claim of the
applicants which is to the effect that their matter is urgent.
The applicants argued that the
execution of the warrant will result in the first applicant's property, which
they said was in excess of R18 million value-wise, being transferred from South
Africa to Zimbabwe. There is, according to them, a real risk that once the
property has been transferred to Zimbabwe, the applicants will not be able to
recover the same in the event of success in a rescission application which is
before the court in South Africa or any subsequent appeals. They argued,
further, that irreparable harm may be suffered by them if the main application
is not dealt with on an urgent basis.
The court mentions, in passing, that
the present applications are preceded by a default judgment which the court in
South Africa entered against the first applicant. The date on which the first
applicant became aware of the judgment which had been entered against him
remains unknown. What is known, however, is that the judgment in question was
entered, or granted, on 11 October 2012. What is also known is that the first
applicant applied for rescission of judgment on 12 August 2013. It can safely
be assumed that as of the mentioned date, the first applicant was pretty much
alive to the existence of the judgment which, to all intents and purposes, was
going to operate against his interests. The Notice of Attachment, Annexure D,
which the applicants submitted, is dated 9 December 2013. That Notice, read
together with Annexure B, which the plaintiff, or the applicant's legal
practitioners in the South African court case, addressed to the first
applicant's legal practitioners on 10 December 2013 supports the court's
observation which is to the effect that the first applicant became aware of the
existence of Annexures C and D from as far back in time as 10 December 2013 or
even earlier than the mentioned date. He was, as at that date, also aware that
judicial attachment of his property had either taken place or was seriously
being contemplated. Paragraph 4 of Annexure B is pertinent to the matter. It,
in part, reads:-
“…,. Senior counsel acting for our
client made it clear when the rescission application was last in court
that our client does not provide any undertaking to stay the execution pending
the hearing of the rescission application during February 2014”. …,.
Annexure B is dated 10 December
2013.
The quoted paragraph makes reference
to a rescission application which the first applicant made as well as to a
hearing which the court in South Africa had scheduled to take place in February
- and not 3 March 2014. The first applicant cannot, under the circumstances, be
heard to be claiming that he was, as at 10 December 2013, not aware of the
existence of the warrant of execution and/or the other party's avowed intention
to execute. His knowledge of those matters notwithstanding, the first applicant
did nothing about the matter which related to the protection by him of his
property which was under the threat of being attached and sold in execution. He
remained indifferent to the described set of circumstances from about 10
December 2013 to 30 January 2014 when he said he started to act in an effort to
protect his property. He said his action was prompted by the statement which
the Minister made on 30 January 2014. The applicants spoke with some degree of
eloquence in their endeavour to show the court the steps which they said they
took in reaction to the Minister's statement. The steps in question do, no
doubt, lead up to the present application. Their counsel…, implored the
court to look at his clients' case in the context of its circumstances. He, in
this regard, referred the court to the remarks of BERE J, who, in Dodhill (Pvt) Ltd v Minister of Lands and Rural Resettlement
& Anor 2009 (1) ZLR 182, 187 said:
“There is no standard formula which
determines urgency. Every case number be looked at within its context.”
It is on the basis of the
abovementioned remarks, therefore, that counsel for the applicants urged the
court not to lose sight of the context which pertains to this urgent chamber
application.
The Learned Judge's remarks would
have applied to the case of the applicants' pretty well if that case had
remained confined to the time that the applicants reacted to the statement of
the Minister right up to the stage that they filed this application with the
court. It has, however, been observed that the first applicant became aware of
the warrant of execution, Annexure C, and the Notice of Attachment, Annexure D,
on or about 10 December 2013. He was also aware, at about the same date, of the
existence of the letter which threatened execution of the property his
application for rescission notwithstanding. The applicants marked that letter
Annexure B. He, despite his knowledge in the abovementioned regard, remained
inattentive to the threat which the law was likely to visit upon him from about
10 December 2013 to 30 January 2014 when he, for the first time, started to put
the wheels of justice into motion with a view to protecting his interests.
Simple mathematical calculation shows that he was inactive in regard to the
threat for a period of some fifty (50) days running. He proferred no reasons
for his inaction. Certainly, this is not the context in which the Learned
Judge wanted his remarks to have been understood to mean. The conduct of the
first applicant in allowing the matter to remain unattended to for a period of
fifty (50) days without any reason on his part for not acting upon it can, at
best, be described in the words of CHATIKOBO J…, who, in Kuvarega v Registrar General & Anor 1998 (1) ZLR 189, 193 said:-
“What constitutes urgency is not
only the imminent 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 acting until the deadline draws near is
not the type of urgency contemplated by the rules.”
The learned judge's remarks are on
all fours with the conduct of the first applicant who did nothing for some
fifty (50) days running when his goods were under a real threat of being put
under the hammer. He allowed that matter to wait and only did have it
commenced, in the court's view, in preparation of the rescission application
which the court in South Africa set down for hearing on 3 March 2014. This, in
a nutshell, is what is termed self-created urgency which cannot properly be
placed under the realms of what are, in the strict sense of the word, termed
urgent chamber applications.
The court observes and mentions, in
passing, that the application in the main case was prepared on 12 or 13
February 2014 and the applicants' affidavit which related to that case was
signed and sworn to on 11 February 2014. The court noted, further, that the
applicants' urgent chamber application was prepared on 10 February 2014 and
that the affidavit which related to that case was signed and sworn to on 11
February 2014. It is evident that the urgent chamber application came into
existence prior to the existence of the main application. That evident fact
notwithstanding, the application in the main case was filed with the Registrar
of this court on 13 February 2014 and the present application was filed with
the same office on the following day i.e 14 February 2014. The observed
confused state of affairs did arise, in the court's view, from an effort by the
applicants to convey to the court the impression that the application in the
main case preceded the present application when, on an effortless analysis of
the two applications, the reverse of the matter was the case. The applicants'
scheme was, unfortunately for them, not a well thought out one. It betrayed
their unrewarding effort in a manner which is difficult to countenance.
Their case on this preliminary matter cannot,
and does not, hold.
