Tuvigari Investments (Pvt) Ltd v Chiremba & Ors (HC 531 of 2009) [2009] ZWHHC 23 (5 February 2009)

TUVIGARI INVESTMENTS (PRIVATE) LIMITED

versus

LUCY CHIREMBA (nee GOTORA)

and

THE DEPUTY SHERIFF (HARARE)

and

THE REGISTRAR OF DEEDS N.O.

HIGH COURT OF ZIMBABWE

BERE J

HARARE, 6 February 2009

Urgent Chamber Application

G Ndudzo, for the applicant

M L Nyaundi, for the first respondent

BERE J: This urgent application stems from a default judgment granted by my brother BHUNU J on 10 December 2008. The court order was couched in the following:

“It is ordered that:

1. The respondent shall and is hereby ordered to take all the necessary steps to pass transfer of stand 1744 Marlborough Township 23 of Marlborough to the applicant.

2. Alternatively should the respondent fail to take the necessary steps to transfer stand 1744 Marlborough Township 23 of Malborough to the applicant within 14 (fourteen) days of being served with this order, the deputy sheriff be and is hereby ordered to take such steps on the applicant’s behalf.

3. The respondent shall pay costs of suit”.

It is clear that following the order of the court the now first respondent proceeded with execution which culminated in her being granted a deed of transfer in respect of the property in question. The power of Attorney to pass transfer was granted to the appearer on 27 January 2009 and transfer of the property was eventually effected on 5 February 2009.

Almost two months after default judgment had been granted against it, the applicant filed an application for rescission of judgment. This was on 2 February 2009. This application was followed by the filing of the instant application on urgent basis to stay execution pending the determination of the application for rescission of judgment.

The basis for the application for rescission of judgment was the averment by the applicant that the first respondent’s counsel had acted unethically by “snatching” a judgment against it. No effort was made by the first respondent’s counsel to notify the applicant’s counsel of the date of hearing, so the argument went.

As usual, the other allied argument was that the applicant has overwhelming prospects of success in the main matter.

In her response to the urgent application filed, the first respondent took issue with the question of urgency. She contended that this matter was not urgent at all and that if anything the urgency was self-created and therefore would not suffice.

It was contended on behalf of the first respondent that the applicant’s legal practitioners had become aware of the court’s judgment as far back as 7 January 2009 and failed to take corrective action promptly. It was not possible for the applicant’s legal practitioners to controvert this averment in the light of their own letter of 7 January 2009 referred to as Annexure ‘A’ in the notice of opposition.

It was also contended on behalf of the first respondent that, in any event the application for stay of execution was coming too late, as execution had already been effected on 5 February 2009, the process for transfer having started as far back as January 2009.

THE ISSUE OF URGENCY

It is now trite that a litigant cannot benefit from self-created urgency. A matter does not become urgent merely because a party has failed to take corrective measures timeously. See the repeatedly quoted case of Kuvariga v Registrar General & Anor¹ .

It is abundantly clear that on 7 January 2009 the applicant through its legal practitioners had become aware of the default judgment granted against it on 10 December 2008. This is confirmed by annexure “A” to the first respondent’s notice of opposition. For the avoidance of doubt part of that letter reads as follows:

“We refer to the above matter and to a copy of an order granted on the 10^th day of December 2008 served at our offices today the 7^th of January 2009”.

From 7 January 2009, the applicant was only able to file the instant application for stay of execution of judgment on 4 February 2009. Even the application for rescission of judgment was only filed on 2 February 2009.

The delay in filing the instant application has not been adequately explained by both the applicant (through its founding affidavit) as well as its counsel through submissions made in court.

In my view this is a clear case of self-created urgency.

If I have missed the point (which factor I do not concede to), there is another practical hurdle which the applicant has to pass.

It is common cause that at the time of hearing of this application the first respondent, by natural process of litigation had already executed on the order granted in her favour. The property around which this litigation is centered on had already been transferred into the first respondent’s name. An application for stay of execution pre-supposes that execution would not have been effected at the time the matter is brought to court for argument. It defeats common sense and simple logic to seek to stop execution when it has already been effected.

On merits, the applicant is not on balanced feet because of the following reasons:

The applicant’s counsel attacked the first respondent counsel for having snatched a judgment. This serious accusation does not find favour with the letter written by the first respondent’s legal practitioners on 15 September 2008 which served as a notice for the date of trial of the matter. Part of the letter reads as follows:

“The matter has been postponed to 24 November 2008”.

The applicant’s counsel’s law firm acknowledged receipt of this letter through R Kurari who stamped confirmation of receipt on 17 September 2008 at 4.44 hours.

To confirm beyond any shadow of doubt that the applicant’s law firm had indeed received notification of hearing the applicant’s law firm wrote on 7 January 2009 inter alia as follows:

“Our Mr Mutanangira the only other legal practitioner in the law firm who could have attended the matter was also unavailable due to his attendance at the SADC Tribunal. The failure on our client’s part to attend court was thus clearly due to an oversight on the part of the writer to make necessary arrangements in his absence (my emphasis).

Clearly, the applicant’s law firm was aware of the trial date of this matter. I must point out that allegations of snatching at judgments are of serious magnitude for they portray the accused law firm in bad light. Legal practitioners must be careful to avoid casting aspersions

on fellow legal practitioners in their quest to build a good case in favour of their clients or sometimes in a desperate effort to attract the court’s sympathy. It is unethical as it is inconsistent with the rules of practice.

The applicant’s counsel put up quite a persuasive argument that it is his understanding that in order for a notice of set down to be valid, there must always be a formal notice of set down. His argument was that the notification to his law firm of the trial date of 24 November 2008 remained invalid as long as there was no formal notice of set down emanating from the Registrar’s office.

This argument was premised on the provisions of order 31 r 215² which provides among other things as follows:

“215 (2) Once a date becomes available for the hearing of a case placed on the list in terms of r 214, the Registrar shall allocate a date for the case to be heard and shall give the parties notice of the date”.

BEADLE J (as he then was) had occasion to deal with an almost similar situation in the case of Le Roux v Le Roux³, In that case the learned judge held that oral notification of the defendant for a trial date by a plaintiff was not sufficient notice as such an approach did not satisfy the requirements of the Rules of the Court.

It should be noted that in the Leroux case supra the learned judge was dealing with a matter which was coming to court for trial for the first time.

However, in the instant case this case had had its first abortive trial date followed by subsequent numerous postponements which culminated in a further postponement of trial to 24 November 2004,

I am of the firm view that the written notification of the trial date on 16 September 2008 by the first respondent’s counsel whose receipt was acknowledged by the applicant’s law firm would suffice for purposes of full compliance with r 215 (supra). I am satisfied that the applicant’s counsel’s interpretation of the same rule would be a skewed one.

The thrust of the applicant’s case is that the parties entered into an agreement and some property which was already mortgaged by Barclays Bank and that such an agreement was unenforceable. The respondent denied this position and maintained that at the time the sale transaction was concluded the property had not been mortgaged and that in any event the law does not prohibit the sale of mortgaged property, the only hindrance being that such property cannot be transferred without the consent of the mortgager. I agree because in general terms the mortgager would not refuse transfer if the mortgage bond has been fully serviced.

In conclusion I am more than satisfied that whichever way one looks at the filed application, that application cannot be sustained.

Accordingly the application is dismissed with costs.

Mutamangira & Associates, applicant’s legal practitioners

Kantor & Immerman, first respondent’s legal practitioners