Into-Africa Hotels And Resorts (Private) Limited v National Handicraft Centre and Deputy Sheriff

1
                                                                             HH 44-2012
                                                                             HC 1154/12
                                                                        Ref: HC 6648/10
                                                                             HC 1135/12


INTO-AFRICA HOTELS AND RESORTS
(PRIVATE) LIMITED.
versus
NATIONAL HANDICRAFT CENTRE
and
DEPUTY SHERIFF


HIGH COURT OF ZIMBABWE
BHUNU J
HARARE, 7 February 2012


Urgent Application

Mrs N.P. Goneso, for the applicant
S. Kamupira, for the 1st respondent


       BHUNU J: This is an urgent application for stay of execution. The applicant and
the first respondent concluded a lease agreement in respect of premises situate at Number
4 Grant Street Kopje, Harare where the applicant runs a restaurant.
       On 9 November 2011 the first respondent obtained default judgment against the
applicant under Case Number 6648/10 in the following terms:

       “IT IS ORDERED THAT:

       (1)     The lease agreement made and entered into and between the plaintiff and
               the defendant on 12 March 2010 be and is hereby cancelled.
       (2)     The defendant be and is hereby ejected from Number 4 Grant Street,
               Kopje, Harare together with all persons claiming occupation through the
               defendant.
       (3)     The defendant be and is hereby ordered to pay the plaintiff an amount of
               US$5 000-00 in respect of arrear rentals as at 31 August, 2010.
       (4)     The defendant be and is hereby ordered to pay the plaintiff damages at the
               rate of US$66-67 per day calculated from 1 September, 2010, to the date
               of ejectment.
       (5)     The defendant be and is hereby ordered to pay operational costs
               apportioned on the leased premises calculated from 12 March, 2010 to the
               date of ejectment.
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                                                                                HH 44-2012
                                                                                HC 1154/12
                                                                           Ref: HC 6648/10
                                                                                HC 1135/12

       (6)     An order be and is hereby given for attachment of the defendant’s goods
               situate at the premises.
       (7)     The defendant pays interest on the amounts claimed herein at the
               prescribed rate of 5% per annum calculated from the date of summons to
               the date of payment.
       (8)     The defendant pays costs of suit.”

       The defendant has since applied for rescission of the default judgment claiming
that the judgment was issued in error in that it was not notified of the hearing date, it was
therefore not in willful default. It also states that it has an arguable defence to the first
respondent’s claim.
       The applicant does not however, deny that it has not been paying rentals in terms
of the lease agreement and that it has fallen into arrears with its rentals. Its argument is
that it is singularly paying for operational costs such as water bills and security when
these were supposed to be shared equally by the parties. It claims that it was owed US$2
750-00 in this respect as at November 2010 which amount has since ballooned to US$11
340-00.
       In the same vein the first respondent alleges that to date the applicant owes it an
amount in excess of US$21 000-00.
       The applicant does not dispute owing such amount to the first respondent but
seeks to set off the two amounts against each other and then making a payment plan to
liquidate the balance of US$10 000-00 in three months time, an offer that was rejected by
the first respondent.
       What this means is that the applicant is seeking stay of execution in circumstances
where it admits being indebted to the judgment creditor in the amount alleged.
       The law regarding the pertinent considerations in applications of this nature was
well articulated in the head note to the case of Chibanda v King (1) ZLR 116. In that case
DUMBUTSHENA AJP held that:
       “In an application for stay of execution of a judgment, it is not enough for the
       applicant to merely allege hardship. He must satisfy the court that he may suffer
       irreparable harm or prejudice if execution is granted. One way of doing this would
       be to adduce evidence that he now has sufficient means to make payment on due
       date; but he must have strong evidence to present to the Court. It must also be
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                                                                               HH 44-2012
                                                                               HC 1154/12
                                                                          Ref: HC 6648/10
                                                                               HC 1135/12

         borne in mind that if the Court were to extend mercy, it will be doing it at the
         expense of a litigant who has already established in Court his right and title to
         what is being claimed. Such mercy should rather be sought in the action itself,
         before judgment is given, and not afterwards.”

         In this case the applicant does not deny being indebted to the first respondent. It
merely seeks the court’s indulgence to enable it to work out a payment plan.
Unfortunately, it ought to have negotiated a payment plan before coming to court and in
any case before judgment had been entered against it. To make matters worse the
applicant’s business is not operational and it has not suggested any viable alternative
means of effecting payment in terms of the admitted amounts. That being the case the
application for stay of execution can only fail.

         It is accordingly ordered that the application be and is hereby dismissed with
costs.




Goneso Attorneys, c/o Sande & Associates, applicant’s legal practitioners
Chinamasa, Mudimu & Dondo, 1st respondent’s legal practitioners