Afrochine Smelting (Pvt) LTD V AVIM Investments (Pvt) LTD & THE Sheriff OF THE HIGH Court

### Preamble
1
HB 186/20
HC 523/20
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AFROCHINE SMELTING (PVT) LTD

Versus

AVIM INVESTMENTS (PVT) LTD

And

THE SHERIFF OF THE HIGH COURT

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 11 MARCH & 10 SEPTEMBER 2020

Urgent Chamber Application

R. F. Mushoriwa with M. Mahaso for the applicant

T. Zishiri for the 1st respondent

No appearance for 2nd respondent

MABHIKWA J:	This is an urgent chamber application for stay of execution in terms of Order 32 Rule 244 of the High Court Rules, 1971.

The terms of the final order sought were that:

Execution be stayed pending the determination of the application for rescission of the default judgment under HC 522/20.

There be no order as to costs.

In the meantime, applicant sought the following interim relief;

That pending determination of the matter under HC 522/20, the Sheriff be directed to stay execution of the order made under HC 349/20.

That the 2nd respondent be ordered to forthwith release into the applicant’s custody at no cost to the applicant the following property; trucks and trailers bearing the registration numbers AEZ 2824, AEZ 3504, AEU 3442, AEU 4308, AEZ 1459, 7062.

Further, that the provisional order be served on the respondents by the Sheriff or his lawful deputy, or by applicant’s legal practitioners.

After hearing both parties, I granted the order sought.  Below are my reasons for the interim relief.

It was the applicant’s contention that the cause of action arose on the 26th of February 2020 when it learnt for the 1st time that default judgment had been granted in favour of 1st respondent in HC 394/20.  Qedisani Mlambo who deposed to the applicant’s founding affidavit states that on Wednesday the 26th February 2020, 1st respondent advised that it had obtained the default judgment referred to above.  Apparently, 1st respondent was already in possession of a bond of security and a writ of execution.  1st respondent then left a copy of the said judgment at applicant’s plant in Selous, near Chegutu.  Qedisani states that the applicant’s officers were shocked, they were neither aware of any proceedings against them nor the existence of the default judgment.  They also had problems understanding why the matter was filed in Bulawayo.  They then instructed their legal practitioners to look into the matter.

I must say that there is a lot of argument as to what was discussed the following day the 28th of February 2020 and thereafter.  There are arguments also as to what was promised or paid  and under what circumstances.  I notice though that such arguments and disputes are largely not for the current application but for a different forum altogether.

Applicant complains that after a long search, the correspondent lawyer in Bulawayo from Messrs Tanaka Law Chambers, obtained what they termed a “strange” application for default judgment for case number HC 394/20 wherein the said default judgment was granted.  Applicant explained that they call the matter “strange” because judgment was granted under a different case number from the summons under which default is alleged to have occurred. The application for default allegedly had the reference number HC 1575/18.  The said application for default judgment, with the said “incorrect” reference was in fact obtained and marked annexure “D”.  1st respondent did not dispute that fact.

It was applicant’s contention that the proceedings or papers in HC 1575/20 showed that it (applicant) was never served with the summons.  I in fact note that the return of service by the Sheriff which is at page 23 of the bound papers and marked “E” shows the case number as HC 1575/18.  It further shows that the summons were served at number 143 King George Road Avondale, Harare, by affixing at the gate after “unsuccessful diligent search” on 16-06-18.  I notice also that the  default judgment granted on 20 February 2020 attached and marked annexure “B” found at both pages 14 and 22 of the bound papers also bears the same case number HC 1575/18.  That is the judgment or order sought to be rescinded and which is sought to be stayed herein.

Applicant also avers that it used to occupy the said address (No. 143 King George Road, Avondale) as a tenant but the lease expired in 2017.  It then leased number 67 Kew Drive, Highlands, Harare.  Both these agreements are attached and marked “F” and “G” respectively.  Both lease agreements were not entered into as between the parties in this matter.  Avim Investments (Pvt) Ltd which is 1st respondent herein was not party to the two leases.  To that extent, though used persuasively by plaintiff, the domicilium citandi et executandi shown therein would not help much in terms of evidential value.  In fact a closer look reveals that the applicant perhaps erroneously filed two copies of the same lease agreement.  The domicilium citandi et executandi is number 67 Kew Drive, Highlands, Harare.

Applicant claims that daily from 26 February 2020 the 1st respondent threatened execution of the judgment, promising to bring the Sheriff.  The last such threat was allegedly on 2 March 2020.  It is for that reason that applicant avers it filed this application for stay of execution simultaneously with an application for rescission of the judgment in terms of Order 49 Rule 449.

In opposition, Mr Shepherd Tundiya deposed to an opposing affidavit on behalf of 1st respondent.  His assertion is that the judgment in default was in fact granted on 20 February 2020 and he personally collected it on 24 February 2020.  He then informed applicant’s Managing Director of the default judgment via text message after failing to get him on the phone.  Mr Tundiya avers further that he returned on 26 February 2020 and met the said Director at Chegutu.  He was advised to go and discuss with applicant’s lawyer, a Mr Farai Mushoriwa in Harare.  He went there, the lawyers asked him to suspend any intended execution whilst he spoke to his clients.  He (Mr Tundiya) called Mr Benson (Managing Director) who invited him to come to their plant the following day to discuss a settlement.

The following day on 27 February 2020 he went back to the applicant’s plant and had a meeting with Mr Benson and one Henry.  They pleaded for more negotiating time.  The three (3) of them allegedly agreed to settle all his travelling costs to court and to their plant whilst they “negotiated the judgment debt”.  .

The 1st respondent attached annexures “B” and “C”.  Annexure “B” was allegedly a negotiated payment deal made on 27 February 2020.  Annexure ”C” was allegedly a part payment of RTGS$10 000,00 via eco cash plus a further RTGS$740,00, again a part  payment via eco cash from a different mobile number.  He states that he went back on 28 February 2020 and further undertakings and promises were made.  In short, the bulk of the 1st respondent’s opposition was that after default judgment was produced to them, applicant made part payments, undertakings and promises to pay.  This was also largely the 1st respondent’s argument during the hearing.  On the other hand, both on the papers and during the hearing, applicant argued, through counsel, that 1st respondent had literally no valid cause of action, that it did not owe the amount claimed.  It further argued that payment, if any, would have been made under repeated threats and duress.

In my view, these were really issues of the merits of a matter or matters that are not before me.  These were issues for the rescission matter as well as the main matter in the event that rescission is granted.  As already stated above, 1st respondent also argued correctly that the attached lease agreements showing number 67 Kew Drive, Highlands, Harare as the domiciliun citandi et executandi does not help applicant’s case much.  Be that as it may, applicant complains that at the time summons were allegedly served at number 143 King George Road, Avondale, Harare, it had long left that place as a tenant and was, for almost a year been occupying number 67 Kew Drive, Avondale.

Curiously, however, in paragraph 10, which is in response to paragraph 17-20 of applicant’s founding affidavit, Mr Tundiya states as follows:

“10.	Ad Para 17-20

I must hasten to state that 1st respondent has got nothing to do with case number HC 1575.  1st respondent is not even a party to that case.  So  whatever pleadings obtained for that matter have no bearing herein.

Summons for the case number 1575/18 was served at number 143 King George Road, Avondale, Harare.  That is the domicilium citandi etexecutandi given in the purchase contract between applicant and applicant.”

Neither parties filed a copy of the summons subject of the default.  Ultimately, it remained difficult from the papers to find, without doubt whether the summons were issued under case number HC 1575/18, HC 1575/20 or HC 394/20.  Applicant seems to say that summons were issued under HC 1575/20 and default judgment was then obtained under HC 394/20.  This is quite possible though strange, considering the reference numbers. It could also be a typing error.  Respondent however argues that the default judgment was not sought and granted under its related case number on the summons.

Secondly, 1st respondent has alleged that number 143 King George Road, Avondale is the domicilium citandi et executandi given on the purchase contract.  I will however assume that it is referring to the purchase contract document attached by applicant at page 19 of the bound papers.  In that purchase contract, the parties’ particulars, including their addresses are shown at the very beginning of the agreement in 2014.  That in law is not necessarily a domicilium citandi et executandi.  A domicilium citandi et executandi is an address for service in the event of litigation, “specifically agreed” as such in the agreement. Such agreed address of service is as shown at clause 17 of the lease agreement attached by applicant at pages 69 to 79 of the application.  The two are different.  One is simply a party’s address as at the time the purchase agreement was entered into on 20 March 2014.  It could simply be a residential or business address.   The other is a specifically agreed address for service in the event of litigation in future.

1st respondent has also submitted simply that “service is proper even if papers are fixed at the gate”, and that in casu, papers were affixed at the last known address.  I assume that 1st respondent argues that this was done presumably in terms of Order 5 Rule 40 of the High Court Rules, 1971. I must say that this type of service of court process has always been open to argument and at times to abuse in my view.  The summons were not handed to anyone.  The relevant rule reads as follows:

“Service where a person to be served prevents service or cannot be found.

Where any person is to be served, and

a)	the person to be served keeps his residence, place of business or employment, address for service or registered office closed and thus prevents the process from being served; or

b)	The person seeking to effect service is unable, after diligent search of the residence, place of business or employment, address for service or office of the person to be served, to find that person or responsible person referred to in paragraph (b), (d), (e) or (f) of Subrule (2) of rule 39 it shall be sufficient service to leave a copy of the process in a letter box at or affixed to or near the outer or principal door of, or in some other conspicuous position at the residence or place of business or employment, address for service or office, as the case may be.”

This kind of service has been used quite often of late.  However, in my view it is the kind of service which should be resorted to as a last option and under clear circumstances as to why.  A closer reading of that rule to me shows that the rule pre-supposes that-

(a)	The person effecting the service would have first ascertained that the “address for service” is indeed the current “residence, place of business, place of employment or registered office” of the person to be served.

(b)	the person effecting service must be satisfied that the person to be served is preventing or avoiding service.

(c)	That the person effecting the service has failed to find the person to be served after a “diligent” search.  Diligent search, not in the sense that he has thoroughly searched the surroundings of the address of service including opening doors to rooms or other buildings or structures therein but in the sense that he has attempted, at least more than once to serve the process and is satisfied from the circumstances that the person to be served is preventing or avoiding service.  Where the Sheriff or Messenger of Court has shown even briefly on the Return that after “diligent” search, he has been unable to locate the person to be served because from the circumstances, the person is preventing service of process, then there is no argument.

Secondly, the section to me obviously implies that in the case of a domicilium citandi et executandi (a prior agreed address for service by some written agreement usually included in an agreement of sale, lease etc), where the Sheriff finds the person to be served absent, he is entitled to affix the process on a door, gate, letter box etc. Without much ado. However, a situation wherein a Sheriff or Messenger of Court is simply given what is termed an address for service, and simply affixes process on an outer door should in my view should be avoided because surely for various reasons, the person to be served may no longer be resident therein, or may no longer be operating therefrom, or it may simply be a wrong address.  This kind of service is difficult to support when later challenged.

In casu the explanation by applicant that at the time of the alleged service of summons, it had long left the place is also possible.  There was no “agreed domicilium citandi et executandi” between the parties in the 2014 document.  In any event that very short “purchase contract” document does not show any anticipation of future litigation by the parties at the time. The applicant thus had no obligation to advise the 1st respondent of any change of address.

It is common cause that an application for rescission of the judgment has been filed.  From the above, I am satisfied that it was not filed in bad faith merely for the purposes of delay or to frustrate the defendant.  I am also satisfied that the applicant acted timeously when the need to act arose.  In my view the matter is urgent considering the impending execution of applicant’s trucks and trailers.  In fact, there was no argument as to the urgency of the matter although 1st respondent initially argued that the urgency was self created because of an argued difference of 2 or 4 days.  Applicant may in my view suffer irreparable loss or harm in the event that the judgment subject of the execution is later rescinded.  Conversely, respondent will not suffer any harm if judgment is ultimately not rescinded. I am inclined to agree that the balance of convenience favours the stay of execution pending the determination of the application for the rescission of judgment.  To succeed in an application to stay execution, all the applicant needs is to show that it has an arguable case or prospects of success on the application for rescission case.

Finally, the judgment sought to be rescinded is denominated in United States dollars.  That also, is subject of the rescission application concerning the country’s current fiscal laws including recent Supreme Court judgment number.

It is trite that the court in such a case has a discretion to grant or deny the stay of execution provided that such discretion is exercised judiciously of course.  It is trite also that the courts, whenever possible and in appropriate circumstances, will lean in favour of staying execution and allow all issues to be properly ventilated before a party is called upon to satisfy a judgment.

It is for the foregoing reasons that I granted the provisional order as sought in terms of the draft.

Mushoriwa Pasi Corporate Attorneys c/o Tanaka Law Chambers, applicant’s legal practitioners

Garikayi & Company c.o Moyo & Nyoni Legal Practitioners, 1st respondent’s legal practitioners