Elina Chasi v Nyirenda Cuthbert Tamuka and The Sheriff of the High Court of Zimbabwe and Registrar of Deeds

### Preamble
1
HH 626-18
HC 8680/18
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ELINA CHASI

versus

NYIRENDA CUTHBERT TAMUKA

and

THE SHERIFF OF THE HIGH COURT OF ZIMBABWE

and

REGISTRAR OF DEEDS

HIGH COURT OF ZIMBABWE

MUZOFA J

HARARE, 26 September 2018 & 10 October 2018

Urgent Chamber Application

T. E Mudambanuki, for the applicant

Z. T. Zvobgo, for the 1st respondent

MUZOFA J: This is an urgent chamber application wherein the applicant seeks the following relief;

‘TERMS OF FINAL ORDER SOUGHT

That you show cause to the Honourable Court why a final order should not be made in the following terms—

That the third respondent be and is hereby directed to cancel the Deed of Transfer passed in favour of the first respondent over a certain 300 square metres of land called stand 10346 Kuwadzana Township of Fountainbleu Estate situate in the district of  Salisbury.

That the party opposing to bear the costs of this application on the higher scale of attorney and client.

INTERIM RELIEF

Pending determination of this matter applicant is granted the following relief:

The first respondent be and is hereby interdicted from alienation, transferring or use of the one half share over a certain 300 square metres of land called stand 10346 Kuwadzana Township of Fountainbleu Estate situate in the district of Salisbury’.

The background to this case is not in dispute. Applicant and her husband were co-owners

of a property known as stand 10346 Kuwadzana Township, Fountainbleu Estate ‘the property’. The husband mortgaged his 50% share in the property in favour of Agricultural Bank of Zimbabwe. Upon default, the bank followed due process and eventually sued a writ of execution against the 50% share of the husband in the said property. The second respondent in executing the judgment sold the whole property including the 50% share of the applicant. The first respondent bought the property. When the applicant discovered that the property had been sold, she filed an application seeking nullification of the sale under HC 4395/18.Despite the pending application, title was transferred to the first respondent.

The certificate of urgency filed of record sets out the genesis of the matter and emphasizes that despite the application to nullify the sale pending a caveat being p[laced on the title deed the second and third respondents proceeded to transfer the applicant’s half share and right without her consent. It also certifies that the first respondent is enjoying bad title and must therefore be interdicted from alienating, selling or transferring the property.

The first respondent deposed to an affidavit which raises issue in the preliminary that the matter is not urgent. According to the first respondent, the applicant was given indulgence to secure a purchaser on the open market after a request was made by her legal practitioners. The purchaser was not secured. The sale in execution proceeded albeit for the whole property and not 50% and first respondent was declared the highest bidder on 14 May 2018. On 18 May 2018 applicant’s legal practitioners were advised by the first respondent’s legal practitioners that execution would proceed, however in the event that they can secure a buyer on the open market before confirmation of the auction applicant can still be entertained. The applicant did not secure a purchaser. Applicant was also advised to object to the confirmation of the sale but she did not. The sale in execution was not stayed therefore the applicant was aware that transfer of property was inevitable it was just the imminent arrival of the day of reckoning the  applicant should therefore not be heard on an urgent basis.

In addition it was stated that in the application for the nullification of the sale the applicant has not diligently prosecuted her matter. The first respondent has applied for its dismissal in terms of r 236 (3) (b) of the Rules under case HC 6230/18.

What constitutes urgency depends on the circumstances of the case; the applicant must demonstrate that the matter was treated with some urgency. It has been held that

“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 deadline draws near is not the type of urgency conte4mplated by the rules.”

See Kuvarega v Registrar General & Anor 1998 (1) ZLR 189

In this case I have to consider when the need to act arose in order to determine if there is urgency in this matter. The basis of the urgency should be set out in the certificate of urgency. Rule 244 of the rules deals with urgent applications and provides

“Where a chamber application is accompanied by a certificate from a legal practitioner in 	terms of paragraph (b) of subrule (2) of rule 242 to the effect that the matter is urgent, giving 	reasons for its urgency, the registrar shall immediately submit it to a judge, who shall consider 	the papers forthwith.”

A certificate of urgency therefore has a twofold purpose, to set out the reasons for urgency and for administrative purposes. A legal practitioner who prepares such a certificate should therefore be careful to set out the reasons for the urgency. It has been stated in numerous occasions that legal practitioners should desist from calling any matter urgent without reason. As an officer of the court a legal practitioner should assist the court in making a decision on urgency through the certificate of urgency. A court looks no further than the certificate of urgency to determine whether a matter is urgent see German Mushonga v Fidelity Life Asset Management and Another HH 848/17

The certificate of urgency in this case is a narrative of the events. There is no indication when the applicant’s half share was sold without her consent. Dates are an integral part of a certificate of urgency for they inform the court as to when the need to act arose. In this case the need to act should have arisen at the time when the first respondent was declared the highest bidder for the sale of the whole property. This is not in the certificate of urgency.

Even if I were to look beyond the certificate of urgency, the applicant’s founding affidavit is mute on the dates. There is no indication about the issue.

It was submitted that the need to act arose on 19 September the date first respondent advised the applicant that transfer of the property had been effected. It is my considered view that is incorrect considering the documents filed of record. According to the first respondent, which fact was not disputed by the applicant when the sale took place on 14 May 2018 the applicant was advised through her legal practitioners by the first respondent’s legal practitioners by letter dated 18 May 2018 about the sale. At that point she became aware that her 50% share had been sold. This is the time that the need to act arose to protect her interest. An auction sale by the second respondent has two critical stages, the first stage is the sale and the second stage is the confirmation of the sale. From the papers filed by the applicant there is no evidence that she objected to the confirmation of the sale.

It is my view that the applicant did not act when the time to act presented itself on 14 May 2018 if not at least by the 18th of May she was aware of the sale. It is not in dispute that an urgent chamber application for stay of execution was filed and withdrawn on 10 May 2018. This initial urgent chamber application had nothing to do with the sale because it was before the sale, its cause was on the writ of execution. In relation to the sale of 14 May 2018 applicant sat until all due process took place. For the applicant to allege that the fact of the transfer is cause for urgency is misleading. When the sale took place and no objection was filed with the second respondent the natural consequence of a transfer of title in the property was inevitable. In the absence of a stay of execution, a writ of execution for the sale of property in such circumstances naturally ends with transfer.

The applicant did not treat her case as urgent therefore the court cannot be expected to treat is as such. Where a litigant delays in taking action, it is upon the litigant to give a reasonable explanation why it did not act when the need to act arose. It is within the court’s discretion to make a determination on the reasons set out for the inaction see Econet Wireless (Pvt) Ltd v Trusco Mobile (Proprietary) Ltd and Anor SC 43/13.

Nowhere in the certificate of urgency or even the founding affidavit is it indicated why the applicant, after her knowledge of the sale she did not act. The applicant decided to register a caveat and a receipt was attached as proof of payment for the caveat to be registered. The deed of transfer filed of record did not show the caveat. It was unclear whether the caveat was in respect of her 50% share or the whole property that as it maybe the fact remains that, if the applicant believed the matter was urgent she should have approached the court as far back as May she did not and no explanation was given for the inaction. Clearly there is no urgency in this matter.

Accordingly, there being no urgency in the matter, the matter be and is hereby struck off the roll of urgent matters with costs.

Jarvis Palframan, applicant’s legal practitioners

Dube, Manikai & Hwacha, 1st respondent’s legal practitioners