BISSY BEE (PVT) LTD
GRAIN MARKETING BOARD
BRUKMARK MICROFINANCE (PVT) LTD
HIGH COURT OF ZIMBABWE
HARARE, 13, 16 and 20 July 2010
Urgent Chamber Application
W. Mugiya, for the applicant
G. H. Muzondo, for the first respondent
Second respondent in default
Third respondent in person
MUSAKWA J: The applicant is seeking a stay of execution of a judgment granted in default on 31 May 2010.
Summons that gave rise to the default judgment were served on the second respondent whose address of service was cited as Stand 223 Makoni Shopping Centre, Chitungwiza. However, the writ of execution, notice of seizure as well as notice of removal give the second respondent’s address as stand number 20924 Unit ‘G’ extension Shopping Centre.
In a founding affidavit deposed to on behalf of the applicant by its managing director, Irene Kandawasvika it is stated that she was served with a notice of removal dated 30 June 2010 on 5 July 2010. Thereafter a notice of seizure was completed. In the notice of seizure some assets of the deponent were then listed. The assets in contention comprise a computer, printer, television set and a Peugeot 306 motor vehicle. The motor vehicle is said to belong to Irene Kandawasvika’s cousin. Although Irene Kandawasvika purports to represent the applicant one wonders why the proceedings were instituted in the applicant’s name if some of the assets belong to her. Under such circumstances if the goods belong to Irene Kandawasvika then she should have instituted the proceedings in her name.
Two preliminary issues were raised by first respondent. Firstly, it was contended that the applicant adopted the wrong procedure as it should have resorted to interpleader proceedings in terms of the rules of court. Secondly, it was contended that the matter lacks urgency. This is premised on the argument that the applicant was served with the notice of seizure on 30 June 2010 and yet the present application was only filed on 9July 2010. The delay in making the application is not explained.
Mr Mugiya for the applicant submitted that the matter is urgent as the applicant is likely to lose its property including the vehicle which belongs to an uncle of the deponent to the founding affidavit. He also submitted that there is no justification why execution was being carried out at a different address from the one where summons were served.
On the other hand Mr Muzondo submitted that there is no proof that the seized property belongs to the applicant. He also contended that if the motor vehicle belongs to an uncle of Irene Kandawasvika as was now being submitted, then there is no legal basis for her to institute proceedings on behalf of the uncle. He further submitted that the proper way of determining this matter is by way of interpleader proceedings. Regarding urgency he referred to the case of Kuvarega v Registrar General and Another 1998 (1) ZLR 188(H). His contention was that there was no need to wait until 9 July when the need to act arose on 30 June.
The third respondent deposed to an affidavit in which he explained the circumstances under which he executed the judgment. Basically he states that the goods in question were identified to him by a director of second respondent. At the hearing of this matter he wanted to submit additional evidence not canvassed in his affidavit.
On the basis of urgency alone, the application would fail. Although counsel for the applicant sought to highlight that the matter is extremely urgent it is apparent that the conduct of the applicant does not underlie such urgency. No explanation is given in the founding affidavit why no action was taken at the earliest opportunity when notice of seizure was served on 30 June. On what constitutes urgency this is what CHATIKOBO J had to say in Kuvarega’s case at p. 193-
““There is an allied problem of practitioners who are in the habit of certifying that a case is urgent when it is not one of urgency. 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 dead-line 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.”
A delay of one week may ordinarily not be said to be inordinate but where it occurs it has to be explained. This is especially so when it is claimed that a matter is extremely urgent. In the present matter the goods were to be removed on 9 July and such coincidence with the date of filing of the application reinforces the conclusion that the applicant was lethargic in its handling of the matter.
I am also of the view that the applicant lacks the locus standi to institute the proceedings. This is because the goods are said to belong to Irene Kandawasvika and her uncle or cousin. Therefore the applicant, being a separate legal personality has no legal interest to protect. It is not clear why the proceedings were instituted in the applicant’s name. In one breath, Irene Kandawasvika claims ownership of all the attached goods, but elsewhere in the founding affidavit she sates that the motor vehicle belongs to her cousin. It just serves to show how lackadaisical the applicant has been in preparing this matter.
Counsel for the applicant did not make any submissions on the procedure adopted in this matter. I agree that this is a matter that should have been dealt with by way of interpleader notice in terms of Order 30 of the High Court Rules. On the face of it one cannot fault the third respondent if account is taken of GELLESPIE J’s remarks in the case of Doelcam (Pvt) Ltd v Pichanick and Others 1999 (1) ZLR 390 (H) in which at p. 398 he had this to say-
“The messenger of court who seizes and sells the property of another is protected from the consequences of his act by the authority of the court he serves. What would otherwise be a wrongful and intentional invasion of another’s rights of property has the element of wrongfulness removed by the existence of a valid warrant of court. The warrant permits not only the removal of the judgment debtor's goods, but also the removal from the judgment debtor's possession of goods of third parties provided that no notice of the third party claim is given to the messenger. That property is deemed to be that of the debtor. Where such notice is given, then attachment is unlawful; interpleader proceedings must be instituted.”
In the circumstances the application is dismissed with costs.
Mupindu Legal Practitioners, for applicant
Garabga, Ncube & Partners, first respondent’s legal practitioners