REPORTABLE (50)

Judgment No S.C.57\2002

Civil Appeal No 278\2001

ZESA STAFF PENSION FUND v CLIFFORD MUSHAMBADZI

SUPREME COURT OF ZIMBABWE

SANDURA JA, ZIYAMBI JA & GWAUNZA AJA

HARARE MAY 16 & AUGUST 8, 2002

P. Nherere, for the appellant

C. Selemani, for the respondent

ZIYAMBI JA: The background to this matter is conveniently set out in the appellant’s heads of argument. The respondent was, at all material times, the chief executive officer of Universal Merchant Bank of Zimbabwe Limited, trading as Unibank. The appellant deposited monies with Unibank which monies were payable in June 2000. The respondent bound himself as surety for and co-principal debtor with Unibank in respect of the latter’s indebtedness to the appellant.

In June 2000, Unibank failed to repay to the appellant the sum of $13 078 406,49 and the appellant sued both the respondent and Unibank in the High Court. On the 13^th September 2000, the appellant obtained default judgment against Unibank and the respondent. No application was made to rescind the judgment.

Unibank having failed to satisfy the judgment debt and having been placed under curatorship, the appellant took out a writ of execution and, on the 17^th September 2001, movable goods belonging to the respondent were attached and removed. The respondent filed an urgent chamber application seeking the following relief:

“That you show cause to this Honourable Court why a final order should not be made in the following terms:-

(a) That the goods attached and removed under case No. 8838/00 be and are hereby immediately forthwith returned to the Applicant.

INTERIM RELIEF SOUGHT

Pending determination of this matter the Applicant is granted the following relief:

(a) That this order act as an interim interdict preventing the Deputy Sheriff of Harare from proceeding with the auction.

(b) That costs of this application be borne by the 1^st Respondent.”

It will be seen that the respondent sought as final relief, a permanent stay of execution, and as interim relief, an interdict restraining the Deputy Sheriff from selling the respondent’s goods in execution. The respondent alleged that the goods attached, being valued at $500 000, were insufficient to satisfy the debt which had now risen to $23 000 000. He alleged also that Unibank was in the process of being recapitalised and the appellant stood to benefit more from the recapitalisation of Unibank than from Unibank’s liquidation.

The learned judge granted the provisional order. It is against this judgment that the appellant now appeals with leave of this court granted on the 9^th October 2001, on grounds inter alia that the learned judge erred in granting the relief which he did.

Two errors on the part of the learned judge are immediately evident.

In the first place, no cause of action was established in the court a quo. The appellant having obtained judgment against the respondent was entitled to execute his judgment. While the High court does have the power to regulate its own process and stay execution in certain cases, this is usually done pending determination of an application for rescission of the judgment concerned or the happening of some event such as the hearing of an appeal, the bringing of an interpleader suit and so on. See: The Civil Practice Of The Supreme Court Of South Africa 4^th edition by Van Winsen Ciliers & Loots at pages 804 and 807. In the present case, no application for rescission was pending and the grant of the final order would effectively amount to a permanent denial of the appellant’s right to execute his judgment.

Further, the stay of execution is discretionary and is granted only where real and substantial justice requires such a stay or where injustice would otherwise result. In the present case, the requirements of justice do not dictate that there should be a stay of execution. If anything, an injustice is likely to result if the appellant is not allowed to execute his judgment.

As it was put by Mr Nherere, “the exercise of the Court’s discretion (in such cases) is subject to the judgment creditor’s right( to execute his judgment). It cannot override it.” See Graham v Graham 1950 (1) SA 655(T); Santam Ltd v Norman & Anor 1996 (3) SA 502 (C).

Secondly, the remedy sought by the respondent in the court a quo was an interdict. It is trite that the requirements for a final interdict are:

1. a clear right which must be established on a balance of probabilities.

2. irreparable injury actually committed or reasonably apprehended; and

3. the absence of a similar protection by any other remedy.

See Setlogelo v Setlogelo 1914 AD 221 at 227; Flame Lily Investment Company (Private) Limited v Zimbabwe Salvage (Private) Limited & Anor 1980 ZLR 378; Sanachem (Pty) Ltd v Farmers Agricare (Pty) Ltd 1995 (2) SA 781A at 789B. With regard to a temporary interdict, the following must be established:

1. a right which, though prima facie established, is open to some doubt;

2. a well-grounded apprehension of irreparable injury:

3. the absence of any other remedy

4. the balance of convenience favours the applicant

See Eriksen Motors (Welkom) Ltd v Protea Motors & Anor 1973 (3) SA 685(A) at 691; Flame Lily Investment Company (Private) Limited v Zimbabwe Salvage (Private) Limited & Anor, supra; Durma (Pvt) Ltd v Siziba 1996 (2) ZLR 636 (S) at 641.

Neither a clear right nor a prima facie right was established on the respondent’s papers which amounted to no more than a plea ad misericordiam (by a debtor who has, for over a year, avoided paying his debt) entreating the appellant to abandon its judgment and to participate in the recapitalisation scheme put forward by the curator of Unibank. There was accordingly no basis shown for the grant of the interdicts sought by the respondent.

Finally, I make the observation that many of the so-called urgent applications brought before the High Court are not urgent. In many of these cases the applicant will have created his own state of urgency by failing to take any action until the removal and sale of his property is imminent. This is precisely what happened in this case. The “urgent” application was brought more than one year after default judgment was entered. No attempt was made to rescind the judgment and no payment was made in liquidation of the debt. In such circumstances an applicant should have great difficulty in persuading any judge that his application is urgent.

It is for the above reasons that after hearing counsel we upheld the appeal and issued the following order:-

“1. That the appeal be and is hereby allowed with costs.

2. That the order of the Court a quo be and is hereby set aside and the following is substituted:-

‘The application is dismissed with costs.’”

SANDURA JA: I agree

GWAUNZA AJA: I agree

Madanhi & Associates appellant’s legal practitioners

Byron Venturas & Partners, respondent’s legal practitioners