Court name
Supreme Court of Zimbabwe
Case number
SC 57 of 2002
Civil Appeal 278 of 2001

Zesa Staff Pension Fund v Mushambadzi ( 278/2001) (SC 57 of 2002, Civil Appeal 278 of 2001) [2002] ZWSC 57 (07 August 2002);

Law report citations
Media neutral citation
[2002] ZWSC 57


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 13th
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 17th
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 9th
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 4th
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.









  1. irreparable injury actually
    committed or reasonably apprehended; and









  1. 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:









  1. the absence of any other remedy









  1. 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