Judgment No. 45/14
Case No. HC 322/14
X REF HC 312/14 & HC 60/14
CBZ BANK LIMITED
PHILLIP NDLOVU N.O.
NATIONAL SOCIAL SECURITY AUTHORITY
AFRASIA BANK ZIMBABWE LIMITED
MBCA BANK LIMITED
FAWCETT SECURITY (PVT) LTD
DHL INTERNATIONAL ZIMBABWE
SUPASWIFT ZIMBABWE (PVT) LTD t/a FEDEX
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 20 JANUARY & 6 MARCH 2014
T. Magwaliba for applicant
T. Cherry with Mr Bryce for 1st respondent
N. Ndlovu for 3rd respondent
J. James for 4th respondent
No appearance from the four respondents
Urgent Chamber Application
KAMOCHA J: This application was filed on a certificate of urgency. The applicant was seeking the following order:
“It is ordered that:-
(1) The meeting of creditors set for the 28th February, 2014 at 9:00 am at the Bulawayo High Court be and is hereby stayed pending determination of the application filed under case number HC 312/14;
(2) The cause filed under case number HC 312/14 shall be heard on an expedited basis in connection with which
(a) 1st respondent shall file his opposing papers in that matter within 3 days of the date of this order
(b) Applicant shall thereafter file its answering papers and heads of argument within 5 days of service upon its legal practitioners by 1st respondent of his opposing papers
(c) The assistant registrar is directed upon receipt of applicant’s heads of argument to set the matter under number HC 312/14 on the earliest available court date
(3) The meeting of creditors shall be held in terms of the order of MUTEMA J after determination of the court application referred to above.
(4) Costs of this application shall be in the cause of the application under HC 312/14”
After hearing the parties on whether or not this matter was urgent the court held that it was not urgent and did not merit to jump the queue. Accordingly the application was dismissed and I indicated to the parties that my reasons would follow in due course. These are they
On 4 April, 2011 Archer Clothing Manufacturers (Pvt) ltd – “Archer” was placed under judicial management. A final order was granted and Phillip Ndlovu the first respondent in this matter was appointed the Judicial Manager. On 15 January, 2013 it was placed under provisional liquidation and Phillip Ndlovu was appointed provisional liquidator.
According to the provisional liquidator the applicant had always been treated as a creditor of Archer albeit as an unsecured creditor but applicant had never raised any objection to the claim being accepted as an unsecured claim. The applicant was aware that the validity of the mortgage bond was put into question since such a mortgage bond was registered in favour of the applicant over Lasker Brothers property not Archer property. The mortgage bond was not a surety mortgage bond and therefore could not be used as security for Archer’s debts to applicant.
The applicant was aware of the issue relating to the mortgage bond in question as far back as 2009. Applicant should have sought to rectify the said bond by registering it as a surety bond. Applicant had been advised by letter from the provisional liquidator that its bond was invalid.
The deficiencies relating to the applicant’s security were highlighted at a creditors meeting. One such meeting was held on 20 August 2013 at which the provisional liquidator was actually tasked to investigate the validity of the said bond. The second such meeting was on 28 November 2013 whereat the invalidity of the applicant’s security was highlighted.
The applicant should have acted urgently a long time ago but did not. The urgency is self created. Applicant had been classified as an unsecured creditor for quite some time and was aware of that. It had only been spurred by the meeting of 28 February, 2014 to file this application on a certificate of urgency.
That is not the urgency contemplated by the law. A matter is urgent if it cannot wait. The application in casu did not deserve to be accorded the status of an urgent application and was accordingly dismissed ipso facto.
Mawere & Sibanda applicant’s legal practitioners
Webb, Low & Barry, 1st respondent’s legal practitioners
Cheda & Partners, 3rd respondent’s legal practitioners
Mhishi Legal Practice, 4th respondent’s legal practitioners