Ngoni Mazango and Gary Robert Brown v Michael Strydom and Gregory Strydom and Sheriff of the High Court

### Preamble
1
HB 7-19
HC 3314/18
XREF HC 2119/14
XREF HC 2998/13
XREF HC 2446/13
XREF HC 3478/12
XREF HC 3471/12
XREF HC 2525/12
XREF HC 1494/12
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NGONI MAZANGO

and

GARY ROBERT BROWN

versus

MICHAEL STRYDOM

and

GREGORY STRYDOM

and

SHERIFF OF THE HIGH COURT

HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 21 JANUARY 2019 AND 24 JANUARY 2019

Urgent Chamber Application

N T Mashayamombe for the applicants

S Chamunorwa for the 1st & 2nd respondents

3rd respondent in default

MABHIKWA J:	It is trite that urgent chamber applications should be shown, both on the certificate of urgency and on the applicants’ founding affidavit to be urgent more particularly in that;

a)	There is primarily no dispute of facts in the matter and the law relating to the matter is clear and undisputed.

b)	That there is irreparable harm that will be occasioned to the rights of applicant.  Indeed the applicant must show that he has a prima facie right that has been or about to be infringed.

c)	That should the matter not be treated as urgent the harm to that right is irreparable and there is no alternative remedy.

Applicant sought an interdict through an (application filed on 13 December 2018) seeking the suspension of a sale in execution of No. 5 of Lot 63A Hillside a.k.a 63A Percy Avenue, Bulawayo pending the finalization of the application for re-instatement of appeal in the Supreme under reference SC 962/18.

Further that in the event that the sale in execution has been conducted at the time of granting the order such sale should be declared null and void and be set aside.

The sale in fact had been scheduled for 14 December 2018 (a day after the filling of the application).  The sheriff, by way of practice, suspended the sale after receipt of the application.

At the initial appearance and hearing on 17 December 2018, the court gave certain directions after making observations.  I have commented that applicants do not appear to have taken their own matter seriously and as urgent and this lack of urgency manifested itself again after filing the application on 13 December 2018, managing technically to stall the sale in execution on 14 December 2018.

Be that is it may- the court had reservations of the fact that there was in fact an appeal before the Supreme Court.  On the 17th of December 2018, Mr Mashayamombe had given the impression that there was in fact an appeal in that the CHIEF JUSTICE had confirmed so and that the Registrar’s office at the Supreme Court had admitted that the dismissal of the appeal on 23 November 2013 was an error on their part and that confirmation to that effect would be filed.

The applicants now concede that there is in fact no appeal before the Supreme Court since the confirmation by the Registrar of the Supreme Court could not be obtained and in fact the applicants are still seized with an application for re-instatement of the said appeal.

Secondly, the applicants concede that in any event, the said appeal even if it is eventually re-instated has nothing to do with the judgment in case No. HC 1494/12 subject of the sale execution.

Thirdly, counsel for the applicants accepts that the court or a judge in chambers has no discretion to suspend a judgment that remains extant such as in case number HC 1494/12.

I agree with counsel for the respondents that the application is fatally defective for the above reasons.

I agree also that as already stated above issues of irreparable harm to applicants’ rights and interests as well as the lack of an alternative remedy should the matter be made to wait, are at the core of an urgent chamber application.  The application stands on the articulation of those issues and facts on the founding affidavit.  They cannot wait to be articulated on the answering affidavit.

The judgment in this case has remained extant for seven (7) years since 2012.  To try to capitalize and throw in belatedly non-compliance with rule 352 of order 40  of the High Court Rules, 1971 is not in the interests of justice in this case as it would simply mean therefore that the urgency is self-created. 	In any event, it is the court’s finding that the application is replete with disputes of fact such that it cannot be decided on the papers on an urgent chamber basis.

In addition, the court’s finding is that the application is fatally defective by reason of non-compliance with Order 32 Rule 241 of the High Court Rules, 1971.  In Marick Trading (Pvt) Ltd –v- Old Mutual Life Assurance Company of Zimbabwe and Another –HH 667/15, my brother MAFUSIRE J lamented thus:

“I observe in passing that the format of the application used by the applicant seems so popular among legal practitioners in this jurisdiction.  I do not know where it comes from.  But all that is required of litigants is simply to copy and paste either Form 29B or Form 29, the latter with modifications.  If the application is a chamber application -----.  The courts both in this jurisdiction and elsewhere have repeatedly drawn attention to the need to follow the rules on this.”

See also Jambo v Church of the Province of Central Africa and Others –HH 329/13 and Zou v Mazombwe 2009 (1) ZLR 101.

Although in appropriate cases and on good cause shown, the courts have at times condoned non-compliance with the rules of court mainly in the interests of justice, the court may not condon such non-compliance by those who make it their hobby to flout the rules of court.

As already shown above, just the judgment alone that is sought to be stalled by this application, was granted 7 years ago.  The history of this case, apart from other sluggish acts by the applicants including the said controversial notice of appeal at the Supreme Court reveals a tendancy by the applicants to ignore court rules until the day of reckoning.

The court will not encourage the growing tendency by legal practitioners and their clients, to ignore court rules only to jerk and abuse the court and the other party by then purporting to make a verbal application for condonation of the non-compliance and only because the other party or the court have raised the issue of non-compliance.

Similarly, the court cannot encourage a systematic non-adherence to the rules of court with the ultimate effect, whether intended or not intended, of clogging courts with applications and counter applications leading to the delay in justice delivery for years.

The court however does not believe that the respondents were deliberately being dishonest with the court on the issue of the notice of appeal at the Supreme Court.  In my view it may have been a mistaken view, or understanding on the appeal laws/rules and the extent to which they would affect the judgment in case number HC 1494/12.

For that reason, the court will not impose punitive costs of whatever kind.

Accordingly, the application is dismissed simply with costs on an ordinary scale.

Mashayamombe and Company Attorneys, applicant’s legal practitioners

Calderwood, Bryce Hendrie & Partners, 1st & 2nd respondent’s legal practitioners