ROSE ELLEN MBANJE
versus
CHARTER PROPERTIES (PVT) LTD
and
UBUNTU INVESTMENTS (PVT) LTD
and
CHARELS PHILLIP TAPIWA MBANJE
and
THE DEPUTY SHERIFF
HIGH COURT OF ZIMBABWE
MUTEMA J
HARARE, 17 June 2011
Urgent Chamber Application
T.B. Ndoro,for the applicant
T. Nleya,for the 1st respondent
No appearance for the 2nd, 3rd,and 4th respondents
MUTEMA J: This matter came before me via the chamber book. The application was filed on 13 June, 2011 and was scheduled to be heard on the 16th of June, 2011. Because the opposing papers were filed and served upon the first respondent a few minutes before the scheduled hearing, the applicant requested that the hearing be postponed to either 20 or 21 June, 2011 to enable her to file an answering affidavit. But since the applicant’s immovable property was set to be auctioned at 10 a.m. on 17 June, 2011 I directed that the hearing be postponed to 9 a.m. on 17th June, 2011. However, by the time the hearing was concluded, well after 11 a.m. when judgment was reserved, the auction had gone through.
The bare bones of the dispute are summarised hereunder:-
On 9 October, 2006, third respondent, acting as second respondent’s agent in his capacity as the latter’s managing director via a board resolution to that effect, concluded a lease agreement with first respondent in terms of which second respondent occupied premises known as 16th floor, ZB Life Towers, 77 Jason Moyo Avenue, Harare. Third respondent is applicant’s son and applicant is also a director in second respondent company. The lease was to endure until 31 October, 2008 in terms of clause 1.5 of the agreement. However, in terms of clause 2.3 of the lease agreement, the parties agreed to an automatic renewal of the lease in the event that the lessee would have failed to give notice of its intentions to vacate the premises at least three calendar months prior to the date of termination. The lessee did not give such notice and remained in occupation of the premises thereby giving birth to a tacit relocation of the lease on the same terms and conditions other than the rent payable subject to two months written notice of termination on either side being given.
When the lease agreement was concluded on 9 October, 2006, three directors of second respondent, viz the applicant, third respondent and one Alfred Tawanda Mupereri bound themselves as surety and co-principal debtor jointly and severally for the due and faithful performance by the second respondent of all obligations imposed in terms of the lease agreement in question. They also renounced the legal exception beneficium ordinis seu excussionis (the defence by a surety when sued by the creditor that the principal debtor be pursued first).
After the tacit relocation of the lease the second respondent breached the agreement by incurring rent arrears ever a period of time. First respondent as the plaintiff sued second and third respondents and the applicant as defendants in that chronology under case number HC 6322/09 for inter alia eviction and payment of the arrear rentals. Messrs Kantor & Immerman were engaged by third respondent to enter appearance to defend the suit on behalf of all the three defendants. When the matter got to Pre-Trial Conference stage Kantor & Immerman renounced agency for non-payment of fees.
Thereafter, as can be gleaned from the papers filed of record, Messrs Mbidzo, Muchadehama and Makoni were engaged to represent second and third respondents and the applicant and on 1 October, 2010 Mr Nleya for the plaintiff and MrMbidzo appearing on behalf of the three defendants had an order by consent granted by Chiweshe JP in the following terms:-
“WHEREUPON, after reading documents filed of record and hearing counsel;
IT IS ORDERED BY CONSENT THAT:
-
First defendant, its subtenants, assignees, invitees and all those claiming occupation through it shall vacate the plaintiff’s premises being 16th floor ZB Life Towers 77 Jason Moyo Avenue, Harare on or before the 18th of October, 2010;
-
In the event that the first defendant together with its subtenants, assignees, invitees and all those claiming occupation through it failing to vacate the plaintiff’s premises in terms of para (1) above, the Sheriff of this Honourable Court or his lawful deputy be and is hereby authorised to evict the first defendant together with its subtenants, assignees, invitees and all those claiming occupation through it from the plaintiff’s premises being 16th floor ZB Life Towers, 77 Jason Moyo Avenue;
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First, second and third defendant shall jointly and severally, the one paying the others to be absolved, pay to the plaintiff the sum of US$156 652-10 in instalments as follows:-
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US$4 500-00 per month for the period of October, 2010 up to December 2010.
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US$10 000-00 per month for the period January 2011 up to November 2011.
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US$33 152-10 in December 2011.
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First, second and third defendants shall jointly and severally, the one paying the others to be absolved, pay the plaintiff’s agreed costs in the sum of US$1800-00, plus VAT, on or before 31 January, 2011.
-
In the event that the defendants fail to make any payment on due date, the Sheriff of this Honourable Court or his lawful Deputy be and is hereby authorised to attach the defendants’ property to satisfy the balance due to the plaintiff.
-
Should the plaintiff proceed in terms of para (2) and (3) above defendants shall, jointly and severally the one paying the others to be absolved, pay the plaintiff’s costs on the legal practitioner and client scale”.
It appears from the papers filed of record that the defendants in case HC 6322/09
failed to fulfil their part of the consent order because the Sheriff subsequently went on to attach the applicant’s immovable property called stand 255 Quinnington Township 11 of Lot DC Quinnington, Salisbury whose sale was scheduled for 10 a.m. on 17 June, 2011. This then galvanized the applicant into action by lodging this urgent chamber application to stay execution of the judgment until the finalisation of her application for rescission of the consent judgment which she has filed under case No. HC 5516/11.
The applicant’s grounds for stay of execution are these:-
-
the lease agreement for which she stood surety expired on 31 December (sic) 2008 and she was not advised of any extension neither did she wish to extend the suretyship beyond the initial term;
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her liability in terms of the deed of suretyship was in Zimbabwe dollars and not in United States dollars;
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she was not afforded an opportunity to be heard in the proceedings in case No. HC 6322/09 on which the order of execution is premised since:
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she was not served with any court documents in respect of case No. HC 6322/09,
-
she did not attend the hearing of the matter.
-
she never engaged either Messrs Kantor and Immerman or Mbidzo, Muchadehama and Makoni to represent her interests in the matter;
-
she did not authorise any of the defendants to stand in her place and appear before the court;
-
she did not consent to the granting of the order in case No. HC 6322/09; and
-
she was unaware of the dispute until 25 May, 2011 when the deputy Sheriff served her with a notice of the sale in execution of her immovable property addressed to third respondent (her own notice was delivered the next day).
The peroration of applicant’s answering affidavit is couched in these words:-
“10. In the circumstances, I submit that the Sheriff’s sale in execution scheduled for 10:00 hours this morning be stayed pending the outcome of my application for rescission of judgment or at least to allow:
10.1 third respondent to sell his property by private treaty; and
10.2 me to sale (sic) my Mandara property by private treaty to the best advantage so that if there is to be any execution it can be in respect of any outstanding balance”.
What is common cause in this matter, in spite of applicant’s other protestations, is
that she became aware of the Sheriff’s notice of sale in execution on 25 May, 2011 and that she filed the urgent application on 13 June, 2011 – some 13 working days (or 19 days later since urgent applications can be heard on any day at any hour).
The issue which falls for determination and can dispose of the matter without being detained by unnecessary splitting of hairs at this juncture is whether the alleged urgency scales the hurdle of the type of urgency contemplated by the rules of this Court. The often cited case in determining what constitutes urgency is that of Kuvarega v Registrar General & Anor 1998(1) ZLR 188 (HC). The words of CHATIKOBO J at p 193 bear useful repetition for clarity. The learned Judge said:-
“In the present case, the applicant was advised by the first respondent on 13 February, 1998 that people would not be barred from putting on the T-shirts complained of. It was not until 20 February, 1998 that this application was launched. The certificate of urgency does not explain why no action was taken until the very last working day before the election began. No explanation was given about the delay. What constitutes urgency is not only the imminent arrival of the 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 action until the deadline draws near is not the type of urgency contemplated by the rules. It necessarily follows that the certificate of urgency or the supporting affidavit must always contain an explanation of the non-timeous action if there has been any delay. In casu, if I had formed the view that it was desirable to postpone the election I may nevertheless, have been dissuaded from granting such an order because by the time the parties appeared before me to argue the matter, the election was already under way. Those who are diligent will take heed. Forewarned is forearmed”.
The foregoing salutary warning, coupled with what GILLESPIE J said in General Transport & Engineering (Pvt) Ltd & Ors v Zimbabwe Banking Corporation Ltd 1998 (2) ZLR 301 (HC) that the extension of protection as a matter of urgency is relief available from this court as a matter of discretion and that this preferential treatment is only extended where good cause can be shown for treating one litigant differently from most litigants behoves me to exercise my discretion against the applicant. The grounds for the discretion are simply these: an application stands or falls on its founding affidavit. In casu there was a delay of 19 days after the need to act arose on 25 May, 2011. Neither the certificate of urgency nor the founding affidavit does contain an explanation for the non-timeous action. To attempt to smuggle in an explanation for the delay in an answering affidavit is non-suited. Even assuming that the applicant’s delay was occasioned by advice from her legal practitioner of record to first engage the first respondent this will simply amount to lack of diligence on the part of the legal practitioner who is presumed to know the law. It was futile for applicant to embark upon a flurry of meetings with officers of the first respondent with no tangible positive result being yielded without filing a concomitant urgent chamber application.
Even if I had formed the view that it was desirable to stay the execution I may nevertheless, have been deterred from granting such an order because while the parties were arguing the matter before me, the sale was underway. As it turned out the application was overtaken by events and the result was merely academic. Once again those who are diligent will take heed and forewarned is forearmed!
In the event the application lacks any semblance of the urgency contemplated by the rules of this court and is accordingly dismissed on that basis with costs.
Ziumbe & Mtambanengwe, applicant’s legal practitioners
Gill, Godlonton & Gerrans,1st respondent’s legal practitioners
