Hwange Local Board v Mkandla & Ors (HB 8 of 2017; HC 2528 of 2015; HC 2997 of 2016; XREF HC 2986 of 2016) [2017] ZWBHC 8 (26 January 2017)

HWANGE LOCAL BOARD

Versus

SIKHUMBUZO MKANDLA

t/a S. MKANDLA & ASSOCIATES PROFESSIONAL

SURVEYORS

And

THE SURVEYOR GENERAL

And

THE DEPUTY SHERIFF, HWANGE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 18 & 26 JANUARY 2017

Urgent Chamber Application

Advocate H. Moyo for applicant

Advocate L. Nkomo for 1^st respondent

MAKONESE J: The applicant filed an urgent chamber application on the 28^th November 2016 seeking interim relief in the following terms:

“1. That 1^st and 4^th respondents be and are hereby ordered to stop execution of the court order under HC 2528/15

2. That the 4^th respondent should return to applicant all the goods attached in terms of HC 2528/15”

I heard argument in this matter on the 18^th January 2017 and undertook to promptly deliver a ruling. I have perused the papers filed under case number HC 2528/15 and observe the following:-

1. On 15^th January 2016 the parties appeared before TAKUVA J for the purposes of a pre-trial conference.

2. The issue for determination as set out in the pre-trial conference minute filed by the applicant was whether it was liable to pay the survey fees claimed by the 1^st respondent, and whether applicant engaged 1^st respondent to carry out a survey of stands 4063 – 4663 and stands 4664 – 6119.

3. The parties filed a Deed of Settlement on 15^th July 2016 wherein the applicant agreed to pay the sum of US$88 846 together with interest at the prescribed rate calculated from 1^st June 2013 to date of final settlement in respect of survey fees.

4. On the 8^th September 2016 an order by consent was granted in terms of the Deed of Settlement.

5. On 16^th September 2016 1^st respondent issued a writ of execution to recover the judgment debt. On 25^th November 2016 applicant filed an application to set aside the judgment obtained by consent under case number HC 2896/16. The applicant brought the application in terms of Order 56 of the High Court Rules. Order 8 Rule 56 of the rules provides as follows:

“A judgment given by consent under these rules may be set aside by the court and leave may be given to the defendant to defend or to plaintiff to prosecute his action. Such leave shall only be given a good and sufficient cause and upon such terms as to costs and otherwise as the court deems fit.”

The applicant contends that it consented to judgment in case number HC 2528/15 as a result of misrepresentation of facts by 1^st respondent. Essentially the applicant argues that 1^st respondent did not disclose to applicant that the layout plan in respect of the survey fees that was claimed was not approved. I need not delve into the merits of that application save to point out that the issue before me at this stage is to determine whether the matter deserves to be determined on an urgent basis. The real motivation for the filing of this urgent application is set out in paragraph 8 of the applicant’s founding affidavit in the following terms:

“The matter is extremely urgent and cannot wait to be heard in the normal manner in that 1^st respondent has instructed the Sheriff to execute on the court order which carried a figure of US$425 984,80 which figure from 1^st respondent’s own admission is wrong as it covers payment of stands that are not developable at all. There are in excess of 899 stands that are not developable. The figure on the affected stands will reduce the writ by almost half should the matter proceed to trial and that aspect is proven. The court order was premised on wrong layout plans which render the whole work done as well as the cause of action null and void. The applicant is not in mora as the layout plans have not yet been approved in fact 1^st respondent is using wrong layout plans altogether.”

It has not escaped the court’s attention that before and after the writ of execution was issued the applicant has made several promises to settle its indebtedness to 1^st respondent. Regrettably, applicant has failed to pay for the survey fees for work done at its behest. It seems evident to me, that the applicant is seeking to distort the factual background. From the time that 1^st respondent was contracted to carry out the survey, applicant has always been aware that the layout plan, Approval Number AL 56 was being used by 1^st respondent to conduct the survey. It is beyond doubt that applicant became aware of the layout plan number AL 56 before 1^st respondent was even engaged to carry out the survey. I do not understand the relationship between payment for the survey fees and the stands that are developable. The fees were taxed by the office of the Survey-General and are due and owing regardless of the undevelopable stands arising from the survey.

The applicant further contends in paragraph 11 of the founding affidavit as follows:-

“… The applicant will suffer severe prejudice and irreparable harm should the order not be granted in that the applicant uses public funds to pay 1^st respondent and has already paid US$115,000. The figures as it stands are incorrect, as there is a reduction in the stands actually surveyed, the survey work is incomplete and the working document being the layout plan has not been approved …”

The applicant’s contentions in the founding affidavit show the applicant’s lack of candour and a distortion of facts. It is clear that the reliance on the layout plan AL 56 in carrying out the title survey that resulted in some stands being pegged on undevelopable areas such as steep slopes, streams, rivers and hilltops has always been known to the applicant and is not a recent discovery. As far back as 16^th April 2013 the deponent to applicant’s founding affidavit, Ndumiso Mdlalose, signed a certificate of receipt of Beacons from 1^st respondent. It is therefore, clear that there is an attempt by the applicant to misrepresent facts. The court will not take lightly the deliberate distortion and misrepresentation of facts, moreso where it is designed to wood-wink the court into granting an order based on such misrepresentation. A matter can never be urgent where all the facts that are alleged to form the basis of the urgency were known to the applicant years before the filing of such application. It is clear that the motivation for the filing of this urgent application for stay of execution is the imminent removal and sale in execution of the applicant’s property. The applicant has failed to comply with its proposed payment plan and has devised a strategy to delay execution by purporting to seek the setting aside of the order granted by consent under case number HC 2528/15. I entertain no doubt that the urgency in this matter is contrived and motivated by a desire to delay payment. The applicant’s claims are predicated upon the misleading assertion that 1^st respondent made a misrepresentation to the applicant that 1^st respondent was using an unapproved plan number AL 56. This averment is not only dishonest but mala fides. The document trail placed on record by 1^st respondent shows that applicant was the recipient of the layout plan, AL 56 in October 2012. This was before 1^st respondent was contracted by the Surveyor General to conduct the title survey.

It is my view, therefore that this case typifies contrived urgency through a deliberate distortion of facts calculated to sway the opinion of the court. The applicant is using court process to delay payment due to 1^st respondent.

For the aforegoing reasons, the matter is clearly not urgent because nothing unexpected has occurred warranting this honourable court’s intervention. Applicant’s counsel argued that the need to act arose on 18^th November 2016. This can hardly be nearer to the true position. The need to act was prompted by the issuance of the writ of execution. There is therefore no lawful justification for the applicant approaching this court by way of an urgent application.

See the case of Gwarada v Johnson & Ors 2009 (2) ZLR 159 (H).

In Central Africa (Pvt) Ltd v Moyas & Another HH 57/12 at page 2 of the cyclostyled judgment BERE J state as follows:

“It is the accepted position that courts detest or frown on those litigants or legal practitioners who desire to derive the sympathy of the court by deliberately withholding vital information which has a bearing on the very matter that the court is called upon to determine …”

See also Chidawu and Ors v Shah & Ors SC-12-13.

As I have already indicated the urgency is founded on deliberate misrepresentation of facts and untruthful dispositions meant to improperly sway the opinion of the court in favour of the applicant. There is evidently serious lack of candour and mala fides on the part of the applicant.

In the result, I am inclined to dismiss the application and uphold the preliminary point.

Accordingly, it is ordered as follows:

1. The application be and is hereby dismissed.

2. The applicant is to bear the costs of suit.

Messrs Dube-Tachiona & Tsvangirai, applicant’s legal practitioners

Dube-Banda, Nzarayapenga & Partners, 1^st respondent’s legal practitioners