Court name
Harare High Court
Case number
HC 5537 of 2010

Nhliziyo v Greys Services Station & Ors (HC 5537 of 2010) [2010] ZWHHC 194 (15 August 2010);

Law report citations
Media neutral citation
[2010] ZWHHC 194

MANDLENKOSI NHLIZIYO

versus

GREYS SERVICES STATION

and

HILLARY NDEBELE

and

THE DEPUTY SHERIFF

 

 

HIGH COURT OF ZIMBABWE

MAWADZE J

HARARE, 16 August 2010

 

Urgent Chamber Application

 

J Sande, for applicant

H. Mutasa, for 1strespondent

No appearance for 2ndrespondent

No appearance for 3rdrespondent

 

 

            MAWADZE J:   This is an urgent chamber application for a provisional order whose interim relief sought is stated as follows:-

            “Interim relief sought/granted

  1. Pending the determination of this matter, the respondents be and are interdicted 

            from removing the property listed in Annexture A”.

 

            The terms of the final order sought are couched as follows:-

           

            “Terms of final order sought

           

            The respondents should show cause why a final order should not be made in the following terms:

 

  1. The respondents be and hereby interdicted from removing the property listed in Annexture ‘A’ pending the determination of the matter in case HC 5098/10

 

  1. The costs of suit shall be borne by the respondents if they oppose this application”.

 

The salient facts of this case can be summarised in the following manner;

 

On 30 June 2010 the first respondent obtained an order from this court against the second

respondent who owed the first respondent a certain amount of money. In pursuance of that order a warrant of writ was issued on 20 July 2010.

            On 23 July 2010 the third respondent on the instructions of the first respondent and in execution of the said order issued a notice of seizure and attachment of goods itemised in Annexture ‘A’ and placed them under judicial attachment. Annexture ‘A’ include the following:-

“1 x leather lounge suite, a x 3 piece sofas, 1 x JVC 42” LCD, 1 x 3 piece coffee table, 10 piece dining room suite, 1 fridge master d/door, 1 Toyota 2,8 (4 x 4 ) Reg. No. ABC 6738, 1 x Isuzu ABE 6077 pick-up” .

 

            All the goods listed in Annexture ‘A’ were at No 20 Babbacomb Road Mandara, Harare, Apparently the applicant and the second respondent share this same residence. The applicant contends that property listed in Annexture ‘A’ belong to the applicant and not the judgment debtor the second respondent. On 27 July 2010 the applicant instituted inter-pleader proceedings case no HC 5098/10 in which the applicant is cited as the claimant and the first to third respondents are as in casu. This matter is pending before this court. The applicant alleges that the issuance of inter-pleader proceedings did not deter the first and third respondents who have threatened to proceed with the sale of goods in Annexture ‘A’. This development is the reason upon which the applicant has approached this court on a certificate of urgency seeking the provisional order referred to supra. Applicant’s fear is that if the first and third respondents are allowed to have their way the inter-pleader proceedings pending before this court would be rendered meaningless if the disputed goods listed in Annexture ‘A’ are disposed of before finalization of case No. HC 5098/10. The second respondent filed a supporting affidavit in which the second respondent alleges that the property listed in Annexture ‘A’ belongs to the applicant and not to the second respondent and that the first and third respondents have not respected the inter-pleader proceedings as they have continued to threaten to proceed with the seizure and sale of the goods belonging to the applicant. This application is opposed.

            At the hearing of this application Mr Mutasa for the first respondent raised three points in limine. I propose to deal with these points in limine first.

            Points  in limine

  1. Mr Mutasa raised the point that the certificate of urgency filed of record and attested by to by a legal practitioner Mr Wellington Thomas Pasipanodya of Messrs Manase and Manase is improperly before the court. In argument Mr Mutasa stated that in the main matter involving the first respondent against the second respondent Case No. HC 1876/09 Mr Wellington Thomas Pasipanodya represented the second respondent and unsuccessfully opposed the granting of judgment in favour of the first respondent. Mr Mutasa’s contention is that Mr Wellington Thomas Pasipanodya has an interest in this matter and would do all he can to frustrate the first respondent in executing the judgment issued in case No. HC 1876/10. Mr Mutasa submitted that it is logical that Mr Wellington Thomas Pasipanodya because of his vested interests would fight in the corner of the second respondent and that he has done so by his certification of this matter as urgent. On the other hand Mrs Sande for the applicant submitted that there is no conflict of interest at all in Mr Wellington Thomas Pasipanodya attesting to the certificate of urgency as he is not representing the applicant in this case. Mrs Sande further argued that the law firm representing the applicant in this case, that is Mupawaenda Sande is different from the one under which Mr Wellington Thomas Pasipanodya practices that is Manase and Manase. Mr Mutasa cited the case of Chafanza Edgars Stores and Anor 2005(1) ZLR 301 (the case however is on pp 299 to 301).

My view is that while it is correct that Mr Wellington Thomas Pasipanodya has an interest in these proceedings arising from his role in case No. HC 1876/10 representing the second respondent, the nature of his interest is clearly distinguishable from the concerns raised by the learned judge in Chafanza case supra. I would agree with Mrs Sande that there is no conflict of interest in Mr Wellington Thomas Pasipanodya attesting to the certificate of urgency. I therefore find nothing inherently irregular about the certificate of urgency filed of record and would find no merit in the submission that the certificate of urgency is improperly before the court.

  1. The second point in limine raised by MrMutasa is that the applicant has not complied with the mandatory requirement of R 241(1) and on that basis alone this application should fail.

Rule 241(1) provided as follows:-

“241 Form of chamber applications

(1)  A chamber application shall be made by means of an entry in the chamber book and shall be accompanied by Form 29B duly competed and, except as provided in subrule (2) shall be supported by one or more affidavits setting out the facts upon which the applicant relies"

 Form 29B provides that the grounds upon which the application is based must be set

out in that form.

            I understand Mr Mutasa’s argument in its regard to be two fold. Firstly in that this application is not accompanied by Form 29B and secondly that the facts or grounds upon which this application is based are not set out in the format provided for under R 241(1). It is correct that this application is not accompanied by Form 29B and that on p1 of the application which should be in the format of Form 29B the grounds upon which the application is based are not set out.

            Mrs Sande countered that the applicant complied with the requirements of R 241(1) as the applicant has proceeded to set out the grounds upon which the application is based in the founding and supporting affidavits.

            I am not persuaded by Mrs Sande’s argument. Rule 241(1) clearly provides for two requirements, which are that the application shall be supported by one or more affidavits and secondly be accompanied by Form 29B. The grounds upon which the application is based should be stated both in the supporting affidavits and in Form 29B. This would imply that the setting out of the grounds upon which the application is based in the supporting affidavit would not obviate the need to attach Form 29B duly completed (which entails setting out the facts upon which the application is based).  Indeed this may sound redundant and unnecessary but the requirements set out in R 241(1) are clear. In casu the applicant has partially complied with the mandatory requirements of R 241(1) by setting out the grounds upon which the application is based in the supporting affidavits (founding affidavit).

            Mr Mutasa referred to the case Inyanga Downs Orchards v Edward Buwu HH 108-2010 in which MUSAKWA J in dealing with the effect of non compliance with the requirements of the rules inclusive of R 241(1) extensively referred to the case of Forestry Commission v Moyo 1997 (1) ZLR 254(S) (and an earlier decision by MALABA J (as he then was in the same case). I do not share the view that in Inyanga Downs Orchards v Edward Buwu case supra MUSAKWA Jdismissed the urgent chamber application solely on the basis of  non compliance with R 241(1) specifically failure to attaché Form 29B. In that case MUSAKWA J considered a number of points in limine raised by the respondent and arrived at the following decision captured on p 8 of the cyclostyled judgment;

“From a consideration of the points in limine I come to the conclusion that the application cannot be entertained. Therefore the application is dismissed with costs”. 

 

            My view is that Mrs Sande should have sought condonation for the failure to fully comply with R 241(1). The remarks by GABBAY CJ (as he then was in Forestry Commission v Moyo supra at pp 259-260 are pertinent;

“I entertain no doubt that, absent an application it was erroneous of the learned judge to condone what was on the face of it, a grave non compliance with R259. For it is making of the application that triggers the discretion to extend time. In Matsambire v Gweru City Council S-183-95 (unreported) this court held that where proceedings by way of review were not instituted within the specified eight week period and condonation of the breach of R259 was not sought, the matter was not properly before the court. I can conceive of no reason to depart form that ruling. One only has to have regard to broad factors which a court should take into account in deciding whether to condone such non compliance, to appreciate the necessity for a substantive application to be made”.

 

            The remarks by the learned CHIEF JUSTICE (as he then was) in my view state the basic principle that where there is non compliance with the mandatory requirements of the rules, such an omission should, as a matter of principle, be cured by making a proper application for condonation. In casu no such application was made. However as already stated applicant has partially complied with the requirements of R 241(1). I am not persuaded that despite such partial compliance I should still dismiss the application on the basis that it is fatally defective. In my view proper and relevant arguments need to be made in that regard before this court can pronounce itself with finality on that issue.

  1. The third point in limine raised by the Mr Mutasa is that this matter is not urgent and that on that basis I should decline to hear the merits of the case. In the case, of Kuvarega v Registrar General & Anor 1998(1) ZLR 188 CHATIKOBO J aptly dealt with what constitutes urgency in an application of this nature. NDOU J in discussing the question of urgency in the case of Mathias Madzivanzira and 2 Ors v Dexprint Investments (Private) Limited and Anor HH 145-2002 at pp2-3 also referred to the remarks by PARADZA J in the case of Dexprint Investments (Pvt) Ltd v Ace Property and Investment Company HH 120-2002 which remarks are captured as follows:-

“For a court to deal with a matter on an urgent basis, it must be satisfied of a number of important aspects. The court has laid down the guidelines to be followed. If by its nature the circumstances are such that the matter can not wait in the sense that if  not dealt immediately irreparable prejudice with result, the court can be inclined to deal with that on an urgency basis. Further, it must also be clear that the applicant did on his own part treat the matter as urgent. In other words if an applicant does not act immediately and waits for doomsday to arrive and does not give a reasonable explanation for that delay in taking action, he cannot expect to convince the court that the matter is indeed on that warrants to be dealt with on an urgent basis”.    

 

            Mr Mutasa submitted that there is no urgency in this matter because the goods were attached on 20 July 2010 and the applicant only made this urgent chamber application after 16 working days and that no explanation has been proffered for this delay. The correct sequence of events of this matter does not at all support the argument advanced by Mr Mutasa.  The writ was indeed issued on 20 July 2010 but the notice of seizure and attachment of goods was issued by the third respondent on 23 July 2010.  It is not correct that after being served with the notice of seizure on 23 July 2010 the applicant took no action until 13 August 2010 when this application was made. The applicant issued inter-pleader proceedings on 27 July 2010 which was only after the expiry of one working day from 23 July 2010 as 24 and 25 July fell on a weekend. Applicant therefore within a day took steps to try and prevent the disposal of these goods in issue.

            The applicant in para(s) 7 to 8.4 of the founding affidavit explained that both the first and third respondents were determined to proceed with the disposal of the goods in Annexure ‘A’ despite the issuance of inter-pleader proceedings. It is allegedthey continued to approach the second respondent and the applicant then proceeded thereafter on 13 August 2010 to file this urgent chamber application in a bid to protect his interests in the property listed in Annexture ‘A’. The facts of the case clearly show that the applicant acted with due diligence and that the matter is indeed urgent.

            All in all I therefore find no merit in the points in limine raised by Mr Mutasa.

I now proceed to deal with the merits of this application.

            The interim relief or provisional order sought by the applicant is premised on the grounds that proper inter-pleader proceedings have been filed in this court under case no. HC 5098/10. However a perusal of the record in case no HC 5098/10 clearly shows that the so called inter-pleader proceedings filed by the applicant are  so defective to such an extent that there are no any valid inter-pleader proceedings pending before this court. The applicant totally failed to comply with the provisions of Order 30 and specifically Rules 205A to 208 which outline the procedure to be followed in instituting inter-pleader proceedings. Mrs Sande conceded that she had no meaningful submissions to make in that regard. I share the difficulty she had. In my view there is therefore no basis for this court to grant the provisional order in the absence of proper and valid inter-pleader proceedings before this court. There are no such proceedings pending before this court. On that point alone the applicant’s case cannot succeed. I therefore find no need to deal with other issues raised by Mr Mutasa save the question of costs.

            My view is that this is a proper case to award costs on a higher scale. Applicant failed to comply with elementary procedure in instituting inter-pleader proceedings and has proceeded to make a fatally defective urgent chamber application.

            I accordingly make the following order:-

            1.         The application is dismissed.

            2.         The applicant shall pay costs on the legal practitioner client scale.

 

 

 

 

 

Mupawaenda Sande, applicant’s legal practitioners

Gill, Godlonton & Gerrans, first respondent’s legal practitioners