Ismail Moosa Lunat vs Mohamed Zakariya Patel and The Deputy Sheriff, Bulawayo N.O

### Preamble
1
HB 272/20
HC 701/20
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ISMAIL MOOSA LUNAT

Versus

MOHAMED ZAKARIYA PATEL

And

THE DEPUTY SHERIFF, BULAWAYO N.O

HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 22 SEPTEMBER AND 19 NOVEMBER 2020

Urgent Chamber Application

K Nxumalo, for the applicant

E R Samukange, for the respondents

MAKONESE J:	This is an urgent application for stay of execution.  The matter is opposed.  The order sought in the Draft Order is in the following terms:

“INTERIM RELIEF GRANTED

1.	Pending the return date, 2nd respondent be and is hereby interdicted from disposing of applicant’s assets taken in execution of the judgment debt in HC 196/19 by sale or otherwise.

TERMS OF THE FINAL ORDER SOUGHT

1.	That it be declared that the debt owed by the applicant to 1st respondent denominated in United States Dollars being USD384 177 (as represented by the acknowledgment of debt signed by the applicant on 11 January 2019) is valued in RTGS $ on a one and one rate by operating of law as per s 4 (1) (d) of Statutory Instrument No. 33 of 2019 and s 22 (1) (d) of the Finance Act No. 2 of 2019.

2.	That it be and is hereby declared that the payment of the sum of RTGS $384 177 by the applicant through his attorneys of record to the 1st respondent’s attorneys fully settles applicant’s indebtedness to 1st respondent in accordance with s. 22 (1) (d) of Finance Act No. 2 of 2019.

3.	It be and is hereby declared that the High Court judgment issued under cover of HB 196-19 to the extent that it ordered applicant to pay a sum of USD 384 177 or its equivalent at the interbank rate be considered to have been overturned by the judgment of the Supreme Court of Zimbabwe in Zambezi Gas Company (Pvt) Ltd v NR Barber (Pvt) Ltd SC 3-20.

4.	As a consequence of (3) above the judgment of this Honourable Court in the case under cover of HB 196-19 be and is hereby declared incapable of execution by 2nd respondent.

5.	The 1st respondent’s attorney Mr E R Samukange be and is hereby ordered to pay costs of this application on a punitive scale, de bonis propriis.”

Background

The facts giving rise to this application are largely common cause and not contested.  On the 11th January 2019, applicant acknowledged his indebtedness to the 1st respondent in the sum of USD $384 177.  Applicant was sued for the payment of the debt.  He defended the action arguing that he had been forced to sign the acknowledgment of debt.  1st respondent filed an application for Summary Judgment.  The application was opposed.  On 12th December 2019 this court granted an order for Summary Judgment in terms of the summons.  Applicant lodged an appeal against the judgment of this court (HB 196-19).  The appeal in the Supreme Court was launched under case number SCB 48-19.  On 7th July 2020 the appeal was deemed to have lapsed for failure to comply with Rule 46 Sub-rule (1) of the Supreme Court Rules, 2018.  1st respondent caused a writ of execution to be issued out of this court for payment of the judgment debt.  Applicant’s movable assets were attached and removed for sale in execution by 2nd respondent.  This urgent application was filed on 18 September 2020.  On 28th May 2020 I ordered that the matter be heard on the merits and dismissed the preliminary points that had been raised by 1st respondent.

APPLICANT’S CASE

Applicant avers that the judgment of this court under HB 196-19 was obtained by certain misrepresentations to the court.  It is argued on behalf of the applicant that all debts and liabilities (debts) owing before the promulgation of Statutory Instrument 33/2019 could not be determined in United States Dollars.  The interpretation given by the applicant is that the acknowledgment of debt executed on the 11th January 2019 constitutes the judgment debt.  Applicant contends that by operation of law the sum of USD 384 177 was converted to RTGS$ 384 177 and that it was therefore the amount due and owing to 1st respondent.  Applicant extends his argument, pointing out that by operation of law payment in RTGS dollars was sufficient to extinguish the judgment debt.  Further, the Supreme Court decision of Zambezi Gas Company (Pvt) Ltd v NR Barber (Pvt) Ltd SC 3-20 settled the issue of settlement of debts incurred before the 22nd February 2019.  Applicant contends that none of the parties appearing in this court in the application for Summary Judgment had drawn the court’s attention to the provisions of SI 33/19 or indeed the Finance Act No. 2 of 2019 since the matter had been argued before the enactment of the Finance Act No. 2, of 2019.  Applicant contends that 1st respondent misled the court and obtained a judgment for payment of the debt in United States Dollars or its equivalent at the prevailing bank rate.  The precise argument raised by the applicant is therefore, that in the light of the provisions of SI 33/19 and the Finance Act No. 2 of 2019 all the assets and liabilities denominated in United States owing immediately before the 22nd February 2019 were automatically valued in RTGS $ on a one to one rate.  Applicant contends that the acknowledgment of debt was executed on 11th January 2019 and consequently the 1st respondent is not entitled to recover the outstanding debt in United States Dollars or its equivalent at the inter-bank rate.  Applicant argued forcefully that the provisional order ought to be granted and that a story of execution is merited.  No serious effort was made to address the requirements for the granting of an interim interdict.  A close examination of the terms of final order sought indicate that the applicant is in fact seeking a decleratur.  In the event that the interim were granted this would mean that the applicant would seek confirmation of relief that is not pleaded in the Founding Affidavit.  The final order seeks a declaration that the judgment of this court in HB 196-19 be declared incapable of execution by 2nd respondent.  This argument was essentially premised on an appeal filed in the Supreme Court under case number SCB 48-19.  That appeal was deemed to have lapsed and to have been abandoned on 7th July 2020.  In effect the applicant seeks this court to review its own judgment and declare it unenforceable.  This approach is without precedent.  There is no application to rescind the order of the court on the basis of fraud or mistake as provided in Rule 449.  The Founding Affidavit does not speak of an error or mistake in the granting of the order.

1ST RESPONDENT’S CASE

1st respondent argued that the application for stay of execution has no merit.  1st respondent contends that applicant has no right to protect in terms of the law.  Applicant noted an appeal against the judgment of this court under HB 196-19.  An attempt was made to challenge the findings of this court by the noting of an appeal.  Applicant failed to pursue the appeal.  The appeal lapsed and was deemed abandoned.  1st respondent contends that the debt sought to be recovered in execution is the judgment debt.  It is an extant judgment of the court.  It has not been set aside.  The debt ought to be reckoned from the 12th of December 2019 and not before.

A debt is defined in the Finance Act No. 2 of 2019 as follows:

“Judgment debt” means a decision of a court of law upon relief claimed in an action or application which, in the case of money, refers to the amount in respect of which execution can be levied by the judgment creditor; and, in the case of any other debt, refers to any other steps that can be taken by the judgment creditor to obtain satisfaction of the debt but does not include a judgment debt that has prescribed, been abandoned or compromised.”

The 1st respondent argued that the provisions of SI 33/19 and the Finance Act No. 2 of 2019 find no application in the determination of this matter.  The applicant is obliged to settle the judgment debt as expressed in the judgment of this court under HB 196-19.  The execution that is sought to be enforced is not in terms of the acknowledgment of debt but rather the judgment of the court.  1st respondent makes the point that in the absence of an appeal in the Supreme Court against the judgment under HB 96-19 it is inconceivable that this court can be called upon to set aside its own judgment via an urgent chamber application.  The application before the court is clearly not in terms of Rule 449.  In any event, no material has been placed before the court to form a basis for interference with its own decision.  The relief sought by applicant cannot be afforded to the applicant as it has no basis at law.

CONCLUSION

It is trite that Supreme Court decisions bind the High Court and all lower courts.  Applicant’s indebtedness does not fall under the scenarios covered by the Zambezi Gas case (supra).  The judgment debt sought to be enforced was delivered on 12th December 2019.  When the parties argued the application for Summary Judgment there was no issue raised regarding the currency set out in the summons.  The 1st respondent obtained a judgment in United States Dollars or its equivalent at the prevailing interbank rate.  Applicant has tendered payment in RTGS $.  1st respondent rejected this tender of payment and insisted on payment in terms of the order of this court.  Applicant has not sought a variation or rescission of that judgment.  The application before me is not made in terms of Rule 449.  The Founding Affidavit does not raise mistake or fraud or the basis of staying execution.  In any event, the applicant has not even satisfied the requirements for an interdict asset out in case law.  In Zesa Staff Pension Fund v Mushambadzi SC 57-2002 ZIYAMBI JA stated at page 5 of the cyclostyled judgment as follows:

“With regard to a temporary interdict, the following must be established:

1.	a right, 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.”

In this matter the applicant does not attempt to satisfy the grounds for the granting of an interdict.  No prima facie right has been established.  It is clear that applicant’s bid to appeal to the Supreme Court was not successful.

The order of this court in HB 196-19 is extant and has not been set aside.  The applicant has not established a right that warrants protection by this court.  This application was made for the sole purpose of delay.  The relief sought by applicant has no legal basis nor foundation.

In the result, and accordingly, the application is dismissed with costs.

Ncube Attorneys, applicant’s legal practitioners

Samukange Hungwe Attorneys, 1st respondent’s legal practitioners