Jahseed Investments (Pvt) Ltd and Impromptu Investments and Garikayi Museke v Regcs Mining Syndicate and Garikai R. Chipwanyira and Elvis Shumba and Sheriff of the High Court, Gweru, N.O and Officer-in-Charge Kwekwe Central Police Station, N.O

### Preamble
1
HB 195.19
HC 761/19
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JAHSEED INVESTMENTS (PVT) LTD

AND

IMPROMPTU INVESTMENTS

AND

GARIKAYI MUSEKE

Versus

REGCS MINING SYNDICATE

AND

GARIKAI R. CHIPWANYIRA

AND

ELVIS SHUMBA

AND

SHERIFF OF THE HIGH COURT, GWERU, N.O

AND

OFFICER-IN-CHARGE KWEKWE CENTRAL POLICE STATION, N.O

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 30 APRIL 2019 & 9 JANUARY 2020

Urgent Chamber Application

K Mahereni, for the applicants

N Hlabano, for 1st – 3rd Respondents

MABHIKWA J:	This is an application titled; “Urgent Chamber Application for stay of Execution.” – wherein the applicants sought the following relief that;

4.	“The execution of the Provisional Order obtained by the 1st, 2nd and 3rd respondents under case number HC 2974/18 be and is hereby stayed.”

On the confirmation date the applicants sought the following order that;

‘The interim relief granted be and is hereby confirmed as final.

The 1st, 2nd and 3rd respondents be and are hereby permanently interdicted from executing on the Provisional Order under HC 2974/18 pending the finalization of the proceedings under HC 980/18 and the appeal against the granting of the Provisional Order under HC 2974/18.

The 1st, 2nd and 3rd respondents to pay the costs of suit.

The respondents opposed the application on the basis that;

a)	There is no bona fide urgency in the matter and that respondents filed a null and void appeal with the Supreme, Court which was struck off the roll, and that the respondents now seek the court’s indulgence to assist them to “regularize” their “appeal” at the Supreme Court, at the same time to “jump the queue” or “leap frog” other matters.

(b)	There is no matter pending before this court in which the appellants wish to challenge the decision which the applicants wish to stay.

(c)	The applicants have made this application on the guise of wishing to regularize an appeal.  That there is in fact no appeal before the Supreme court.

(d)	The applicants want the court to take a leap in the dark and at the same time allow then to vex the respondents when in fact they should shoulder the blame for the errors of their legal practitioners in filing a void appeal.

Respondents also argued that the application was mala-fides in that although the applicants’ defective appeal was struck off the roll on 25 March 2019, the judgement whose subject matter of this application and whose reasons they seek was handed down on 19 November 2018.  The defendants contend therefore that the urgency, if any, is self created in that the applicants sat on their laurels for five (5) months before coming to court on an Urgent Chamber basis to assist them in effect in their defiance and trivialization of court processes.

After hearing submissions from both counsel, I ordered that further documents be filed including Submissions, cross-reference cases, the Supreme Court order in Civil Appeal number SC 893-18 as well as a copy of the practice direction number 3/2013.

After reading documents filed of record and hearing submissions by both counsel, the court is satisfied that the applicants in effect want the court to assist them in their failure to comply with court rules.  The practice direction cited extensively and relied upon by the applicants as the basis for making this application on the argument that its legal force means that the applicants’ appeal at the Supreme Court is pending is, in my view, misinterpreted or abused.  In my view the practice direction is indeed of legal force and should not be ignored, but it should be read together with other rules of court.  The practice direction reads,

“5.	Where a matter has been struck off the roll for failure by a party to abide by the Rules of the Court, the party will have thirty (30) days within which to rectify the defect, failing which the matter will be deemed to have been abandoned.

Provided that a Judge may on application and for good cause shown, reinstate the matter, on such terms as deems fit.”

However, just as can be seen from applicants’ own submission and in fact the wording of the direction – it is a 30 day reprieve in respect of the appeal.  It does its purpose of covering that “Lacuna” in the rules in the meantime.  In my view, it does not countenance, and it is wrong to then carry it around and use it to stop other processes even in other matters such as this one.  In my view, notwithstanding the practice direction, decided cases reveal that a matter, struck off the roll is no longer before the court and should not be regarded as an appeal.  The reprieve operates generally as between the “appellant” and the Registrar’s office.

To illustrate this point, counsel for the applicants argued extensively that the practice direction has given them 30 days within which the appeal should be held in obeyance.  Throughout their argument, they say they have 30 days from the day the matter was struck off to rectify the defect in the appeal.  The appeal was struck off on 25/3/19.

If one follows the applicant’s argument, and if the court were to grant the applicants relief, one would have to grant them some relief that they did not seek or, grant them relief that is at law unenforceable.

Indeed the order that the applicants seek, both in the interim and in the final, is completely way off their argument in court.  It does not speak to the 30 days reprieve.  Even in oral argument in court, counsel eventually could not reconcile the order sought and the “30 days” reprieve.

There being no appeal before the Supreme Court, this court cannot purport to entertain an application for stay of execution on the pretext that, and as if there is an appeal.

Secondly, properly read and understood, both the interim and final order sought in this matter literally mean one and the same thing.  It is trite law that the court would be failing in its duty if it were to grant an interim order, whose effect is the same as the final one.

In Aepromm Resources (Pvt0 Ltd v Mazowe & Others 2010 (1) ZLR 281 (HH

192- 10) the court refused to grant relief in an application wherein the relief sought was the same as the one earlier prayed for.  The applicant brought an urgent application before the High Court, seeking an order declaring a notice of an extra-ordinary general meeting of the applicant, that had been called by the respondents, declared null and void.  The application also sought to have the respondents prevented from acting as the directors of the applicant.  The application was dismissed as not being urgent and the applicant noted an appeal against that ruling.  The applicant then brought an application before the High Court seeking an order interdicting the respondents from holding the meeting that had been called.

The court held that if the interdict were granted, its effect would be to reverse the court’s earlier ruling.  The court stated that whilst it was for the Supreme Court to be moved to grant an urgent hearing to an appeal already before it, what the court was being asked to do was to review its own earlier decision.  That was not permissible.

In any event, unlike in Aeromm (Pvt) Ltd, in casu, there is practically no appeal filed at the Supreme Court to speak about.

Thirdly, paragraph (1) and (2) of the founding affidavit of Garikayi Museke, at page 9 of the application in essence calls upon a Judge in chambers to review a fellow Judge’s court order, in this case Makonese J’s order of 20 November 2018.  Even the application’s prayer has the effect of reviewing and setting aside the judgement of the same court.

I wish to state at this stage also that cross-references show that initially, action proceedings were instituted in this matter.  Somewhere along the line, and instead of resolving the matter on evidence and merits as it was clearly known from the beginning that there are disputed facts, the parties allowed each other to drag the matter into chamber applications and the main matter has been sidelined and forgotten.

This in my view is a worrisome tendency by lawyers who have taken to this growing temptation to substitute themselves for their clients by testifying and arguing their clients’s cases in the guise of urgent chamber applications, only in the hope of outwitting the other side.

Regrettably as in such matters, the urge to rush, using the guised urgent chamber applications, at times chokes the parties or one of the parties.  It is in fact the duty of each party, where a matter with disputes of fact, a fortiori one already pending in action proceedings, to protest and alert the court and not to wait until the court moro motu calls for the records.  In the circumstances, the application is devoid of both urgency and merit.  It is removed from the roll of urgent matters and referred to the opposed applications.

The applicants are to pay the costs of suit on the ordinary scale.

Mutatu and Partners c/o Dube-Tachiona & Tsvangirai, applicants’ legal practitioners

Messrs Hlabano Law Chambers c/o Tanaka Law Chambers, 1st – 3rd respondents’ legal practitioners