Daniel Dube and Daniel Technologies P/L v Old Mutual Properties and Deputy Sheriff Harare

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DANIEL DUBE
and
DANIEL TECHNOLOGIES P/L
versus
OLD MUTUAL PROPERTIES
and
DEPUTY SHERIFF HARARE


HIGH COURT OF ZIMBABWE
BHUNU J
HARARE, 2nd JUNE 2O11


Mr Dube, Appeared in person.
Ms Ndawana, for the 1st respondent.


Urgent Chamber Application


       BHUNU J: The first applicant is a director of the second applicant company
Daniel Technologies P/L. The first respondent is a company in the business of letting out
properties.
       On or about July 2008 the parties concluded a written lease agreement in respect
of premises situate at 14th Floor, North Wing, Cabs Centre Stand Number 736B corner
Sam Nujoma and Jason Moyo Avenue Harare.
   The second applicant subsequently fell into arrears resulting in the parties concluding
a deed of settlement on 15 October 2009.in the following terms:

     “1.  The lessee shall settle US$12,627.09, which is part payment of the balance of
          its outstanding rent and operating costs for the leased premises for the period
          January to October 2009 not later than 31 October 2009.
       2. US$12,627.09, which is the balance of the lessee outstanding and operating
          costs for the period January to October 2009, shall be settled no later than 30
          November 2009.
       3. In the event of Breach of this Deed of Settlement the lessor shall have the
          right to immediately cancel the lease agreement and demand vacant
          possession of the leased premises.
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        4. The Lessee shall be liable for legal costs at the legal practitioner and client
           scale”

        By 3 March 2010 the lessee had made no payments at all and the amount awing
had ballooned to US$28, 198.54. As a result the 1 st respondent obtained a default order
against both applicants in the following terms:

   “a. The 1st and 2nd Respondents shall pay to the Applicant jointly and severally one
       paying the other to be absolved US$28 198, 54.

   b.      Interest thereon of 5% pre annum from November 2009 to date of payment in
           full.
   c.      Cost of suit on the legal practitioner client scale”.

   A perusal of the record of proceedings shows that the relevant notices were served on
an employee of the second applicant.
   The judgment debt not having been satisfied, the first respondent obtained a writ of
execution on 15 March 2010. On 17 May 2011 the second respondent attached and
served a notice of removal on the first applicant. This prompted him to lodge this urgent
chamber application for stay of execution pending the determination of the application
for rescission of judgment he has already lodged with this Court. In this application he
purports to represent himself and the second applicant.
   Before me the first applicant stated that he is not disputing liability but was pleading
for time to pay since he had no capacity to pay because currently he is unemployed and
the second respondent is not operating. This is what he had to say:

        “The company is currently non existent. My lease was in Zimbabwean dollars. I
        have written them a letter to say what I can afford. I do not deny liability. I do not
        deny anything. I am willing to pay.

        Right now I am not working and the company is not operational. I can’t say where
        I will get the money from because I am not working and the company is not
        operational but I will look for the money and pay them.”

        It is needless to say that the applicants have failed to put up a case showing that
they have any prospects of success in reversing the order that they want stayed. They
have also failed to establish that they have the capacity to settle the judgment debt within
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a reasonable time to warrant any leniency. That being the case, the first respondent
cannot be faulted for insisting on execution. For that reason the application for stay of
execution cannot succeed. It was a term of the written lease agreement that costs shall be
at the higher scale. The Court has a duty to honour that undertaking.
       It is accordingly ordered that the application for stay of execution be and is hereby
dismissed with costs at the legal practitioner and client scale.




Gill, Godlonton & Gerrans, 1st respondent’s legal practitioners.