Benjamin Sibanda v Obadia Sibanda and 6 Others

### Preamble
1
HH 198-21
HC 835/21
REF CASE NO. HC 2980/18
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BENJAMIN SIBANDA

versus

OBADIAH SIBANDA

and

NATHAN SIBANDA

and

CHARLES SIBANDA

and

JOHN SIBANDA

and

MISHECK SIBANDA

and

JELITHA SIBANDA N.O. (Executor, Estate Late Cornelius Sibanda)

and

THE SHERIFF OF THE HIGH COURT

HIGH COURT OF ZIMBABWE

MANZUNZU J

HARARE, 1 & 22 April 2021

Urgent Chamber Application

F Mahere with N G Maphosa, for the applicant

E Mubaiwa with T Hove, for the 1st – 6th respondents

MANZUNZU J: This application was filed on urgency on 19 March 2021 and was placed before me initially on 24 March 2021. At the hearing it turned out that there was a similar application pending before this court involving the same parties, seeking the same relief under Case number HC 608/21 (the first urgent application.) The first urgent application was filed on 16 March 2021 and was placed before my brother MUSAKWA J who struck it off the roll for applicant’s failure to use the correct form.

At the initial hearing of 24 March 2021, a preliminary point of lis pendens was successfully raised by the 1st to 6th respondents (the respondents.) The result was that the matter was struck off the roll.

Thereafter applicant filed a withdrawal of HC 608/21 and then asked for the reinstatement of this application the hearing of which was on 1 April 2021. There was a fight over its reinstatement but the court ruled in favour of the applicant.

The battle for preliminary points did not end there. There was an attack by the respondents from two fronts; that the matter was not urgent and secondly that the certificate of urgency was invalid for its failure to conform to the requirements of such a certificate. The applicant maintained that this was a proper case for urgency and that the certificate of urgency was proper.

The applicant prays for the following order;

“Final Order Sought:

That the 1st to 7th  respondents show cause to this Honourable Court why a final Order should not be made on the following terms:-

It is hereby declared the payment of ZW10 122 RTGS dollars made by the applicant to the respondent’s lawyers on the 19 November 2020 was in full and final settlement of the taxation debt dated 16 November 2020 given under Case No. HC 2980/18.

That the attachment of the applicant’s cattle and the intended sale in execution of same in situ is unlawful, null and void.

The 7th respondent be and is hereby directed to release the seized cattle from attachment forthwith.

That the 1st to 6th respondents pay the costs of suit on a legal practitioner and client scale.

(b) Interim Relief Granted:

Pending the return date and the final determination of this matter, this Order shall operate as a temporary order directing the respondents to stay the execution of the writ of execution in matter HC 2980/18 and the notice of seizure and attachment dated 15 December 2020.”

URGENCY:

The Law

The law is now settled as to what constitutes urgency.  In  Kuvarega v Registrar-General & Anor 1998 (1) ZLR 188 (HC), the authority relied upon  by both counsels has this to say; “What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent, if at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the dead-line draws near is not the type of urgency contemplated by the rules.”

In Mushore v Mbanga & 2 Others HH 381/16 the court held that there are two paramount considerations in considering the issue of urgency, that of time and consequences. These are considered objectively. The court stated; “By ‘time’ was meant the need to act promptly where there has been an apprehension of harm. One cannot wait for the day of reckoning to arrive before one takes action… By ‘consequences’ was meant the effect of a failure to act promptly when harm is apprehended. It was also meant the effect of, or the consequences that would be suffered if a court declined to hear the matter on an urgent basis.”

In summary, the applicant must act promptly when the need to act arose and must show that if the court does not hear the matter urgently he/she will suffer irreparable harm. Where the applicant fails to act timeously, he/she has a duty to give a reasonable explanation for the delay. In my view, it is insufficient to merely show that irreparable harm will be suffered. The applicant must treat the matter as urgent and this can be discerned from the action taken vis-à-vis the time when the apprehension of harm is realized.

b) Factual background

The background to this matter is largely common cause. The genesis of the matter started with the taxation of a bill of costs on 16 November 2020. The taxed bill in the sum of US$10 122 was in favour of the respondents. The respondents’ lawyers then wrote a letter dated 16 November 2020 to applicant’s lawyers attaching the taxed bill asking that the amount be paid within 48 hours in United States dollars or in RTGS at the prevailing inter-bank rate. On 19 November 2020 the applicant proceeded to pay ZWL10 122 into the bank account of the respondents’ lawyers. Proof of such payment was attached to a letter of 19 November 2020 by the applicant’s lawyers to the respondents’ lawyers indicating the payment was in full and final settlement of the taxed bill.

On 20 November 2020 the respondents’ lawyers wrote back refuting that the applicant had settled the bill in full. They further threatened in the same letter to execute for the recovery of their client’s costs once the awaited writ of execution from the High Court was received. Indeed the writ of execution against the applicant’s movable property was issued on 20 November 2020.

On the 15th December 2020 the Sheriff attached the applicant’s ten head of cattle and endorsed on the notice of seizure and attachment that the removal date was 18 December 2020. In the meantime the applicant’s lawyers wrote a letter to the Sheriff on 16 December 2020 claiming the taxation debt was paid in full as exhibited in their letter to the respondents’ lawyers of 19 November 2020. They implored the Sheriff to cancel the attachment. The letter was neither copied to the respondents nor their lawyers. The Sheriff’s response of 21 December 2020 was to the point, in that, he advised the applicant’s lawyers to converse with the instructing lawyers to the execution.

On 5 February 2021 the applicant’s lawyers further engaged the Sheriff insisting that the proof of payment was a bar for his office not to execute. This communication was also not copied to the respondents’ lawyers. Out of courtesy, I can only assume, the Sheriff wrote a letter to respondents’ lawyers on 3 March 2021 and attached for their comments applicant’s letters of 16 December 2020 and 5 February 2021. On 8 March 2021 the respondents’ lawyers wrote to the Sheriff explaining why they considered the debt unpaid and further instructed the Sheriff to proceed with execution. On 10 March 2021 the Sheriff wrote to the auctioneers to proceed with the sale of the attached cattle. The letter was copied to both parties’ lawyers.

c) Analysis

The golden question to answer is, when did the need for the applicant to act arise?

Mr Mubaiwa who represented the respondents, after taking the court through the chronology of events, said the need to act arose on 15 December 2020 the date of attachment of the cattle.

Ms Mahere on the other hand said the need to act arose on 9 March 2021 when it became apparent the Sheriff was proceeding with the execution. It was argued for the applicant that the communication with the Sheriff was necessary because the Sheriff has a duty to act lawfully and that there was need to place the Sheriff in mora. I do not agree with this line of argument given the circumstances of this case as outlined above. Firstly, I do not understand why the Sheriff had to be placed in mora. The Sheriff‘s office is a public office whose functions are akin to those of an agent. The Sheriff invariably if not always acts according to instructions by litigants and/or their lawyers and sometimes by the court. This is not to say that he will blindly carry out instructions without looking at the lawfulness or otherwise of the instructions. The Sheriff’s powers are limited and cannot go beyond that which is set out by the law.

The respondents’ intention to execute was something expressed to the applicant right from the beginning. In the letter of 16 November 2020 respondents’ lawyers were clear that they were demanding USD$10 122 or RTGS equivalent at inter-bank rate, failing which they threatened to execute. When applicant paid this sum as RTGS he knew he had not met the demand by the respondents. In their letter of 20 November 2020 it stated in part; “As we indicated to you via email we are simply awaiting receipt of the writ of execution from the High Court to enable us to execute the same against your client’s property to satisfy the said costs. You shall not hear from us again on this issue.” There can be no clearer warning of one‘s intention than this. The need to act actually arose on 20 November 2020 although Mr Mubaiwa was generous enough to say it arose on the date of attachment which was 15 December 2020.

On the basis of the letter of 20 November 2020 a diligent litigant would have woken up and rushed to court to stop the respondents from proceeding with execution. Assuming the applicant did not take the respondents’ threats seriously, why would he continue to be in deep slumber after the notice of attachment of 15 December 2020? Despite the notice having a date of removal of the 18 December 2020 the applicant was not shaken, instead he decided to engage with the Sheriff behind the respondents’ back.  This is what was described in the Kuvarega case, supra, as “…a deliberate or careless abstention from action until the dead-line draws near.” The applicant, was at all times legally represented, and his legal advisors in these circumstances fell short of competently advising him. At the hearing Advocate Mahere found herself in a situation of a good lawyer pursuing a bad case. The date of 9 March 2021 advanced as the date when need to act arose can only best be described as “the imminent arrival of the day of reckoning.” In any event the Sheriff’s letter of 21 December 2020 to the applicant’s lawyers was clear that the Sheriff was proceeding with the execution in the absence of contrary instructions from the respondents’ lawyers. The applicant sat on his laurels and only woke up on the day of reckoning. This is not the “type of urgency contemplated by the rules,” per Kuvarega case. The point in limine succeeds.  As it is often said that justice is not for the sluggards.

Having found no urgency in this matter it is not necessary to examine the validity or otherwise of the certificate of urgency.

The respondents asked for costs in the event that this application is struck off the roll. I find it appropriate that the applicant be ordered to pay such costs mainly because the applicant has insisted with an application which borders on abuse of court process. The absence of urgency in this matter is so apparent for any legal mind to see.

Disposition

The matter is struck off the roll of urgent matters.

The applicant shall pay the 1st to 6th respondents’ wasted costs.

Sawyer and Mkushi, applicant’s legal practitioners

Hove Legal Practice, 1st - 6th respondents’ legal practitioners