Lifebrand Agriculture and Ngoni Mnangagwa v Millicent Tendai Muganyi and The Sheriff of High Court

### Preamble
1
HH 499-18
HC 6408/18
---------


LIFEBRAND AGRICULTURE

and

NGONI MNANGAGWA

versus

MILLICENT TENDAI MUGANYI

and

THE SHERIFFF OF HIGH COURT

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE, 13,16 July 2018 & 22 August, 2018

Urgent application

M.M. Ndebele, for the applicants

B Maruva, for the 1st respondent

No appearance for the 2nd respondent

CHITAPI J: This is an application for an interdict in the form of an order for a stay of execution of the order of this court granted in case No. 1824/18.

The background to the application is that on 9 May, 2018 Phiri J granted a default judgment on the unopposed motion roll in favour of the first respondent against the first and second applicants as more fully set out in the terms of the order as captured in Case No. HC 1824/18. I do not propose to set out the terms verbatim as they are clear on reference to the order itself which the parties are fully conversant with. For the convenience of the reader who may not be party to the application, the upshot of Phiri J’s order was to confirm the cancellation of a lease agreement between the first respondent as lessor and the first and second applicants as lessee in respect of Stand 225-108 Harare Drive, Marlborough Township, Harare. Additionally, Phiri J ordered the eviction of the first and second applicants together with any persons claiming occupational rights through them. The learned judge authorised the second respondent to execute the order in the event that it was not complied with within 48 hours of service of the same. The first and second applicants were jointly and severally, the one paying the other to be absolved, ordered to pay arrear rentals, holding over damages and costs, amongst other relief granted.

The first respondent caused the issue of a writ of execution by the Registrar in order to enforce the order of Phiri J aforesaid. The writ of execution was issued on 6 July, 2018. On 10 July, 2018, the second respondent acting by virtue of the writ of execution attached a number of vehicles and accessories at 108 Harare Street, the property previous leased to the first and second defendants. The attachment was ancillary to the eviction and intended to realize the monetary relief and costs granted by order of Phiri J. The second respondent indicated on the attachment notice that removal of the goods and the eviction would be carried out on 13 July, 2018.

The first and second applicants filed this urgent chamber application on 11 July, 2018. The application was placed before me on the same date and after perusing it, I directed the Registrar to set it down for hearing on 13 July, 2018 at 10:00am and to serve the parties with notices of set down accordingly. I reached the prima facie view that the matter was urgent because the gravamen of the applicant’s contention was that the execution was being pursued on the strength of a judgment which had been erroneously granted in that the first and second applicants had entered appearance to defend and that the first respondent should not therefore not have been granted the relief of a default judgment, the subject of the writ of execution.

When the parties appeared before me for the scheduled hearing, Mr Musoni for the first and second applicants submitted that the parties were in discussion to resolve the dispute. He said that the only outstanding sticky point was for the parties to agree the date by which the applicants should vacate the premises. The applicants wanted to move out by 30 August, 2018 whilst the first respondent was not prepared to allow the applicants continued occupation beyond 31 July, 2018.

Mr Musoni requested for a postponement of the matter to 16 July, 2018. He submitted that there were other related litigations between the parties which were still pending before the court like case Nos HC 2218/16 and HC 803/16. He took the view that allowing parties further time to negotiate would dispose of the pending matters as well. Mr Maruva after taking instructions from the first respondent who did not appear keen to agree to a postponement reluctantly acceded to the postponement. This followed my pointing out to him to advise his client properly on the advantages of having all outstanding matters being resolved as it benefitted the elderly first respondent who was finding herself perhaps unnecessarily in the courts over disputes surrounding the renting out of her property instead of enjoying the fruits of the same whilst resting at home given her advanced age. Further Mr Maruva indicated that he had prepared an opposing affidavit of the first responder but that it was still to be issued. The court did not therefore have the benefit of considering the first respondent’s position on the dispute.

The postponement of any matter before the court is an issue for the judicious exercise of discretion by the court. In exercising the discretion, the court adopts a holistic approach in considering the reasons given by the applicant who seeks the postponement of a set down matter. The Supreme Court in Apex Holdings (Pvt) Ltd v Venetian Blinds Specialists Ltd SC 33/15 noted that an application for a postponement is in the nature of an indulgence which the judge or court will either grant or refuse in the exercise of a discretion. Such discretion will be informed by a consideration of such factors as the reasons given for seeking the postponement and the likelihood of prejudice to the parties if the postponement is refused. Postponements are in practice normally granted where the reasons given for seeking a postponement are meritorious. I have thus stated that the court or judge must approach the application for a postponement holistically taking into account the circumstances of the case and the parties as a whole.

I determined in casu that the interests of justice would be best served by the grant of a postponement not only because the parties had engaged each other and thus it made sense to encourage and give their dialogue a chance, but also because I needed to have the benefit of considering the first respondent’s answer to the worrisome allegation by the first and second applicants that the first respondent and in particular her legal practitioner had snatched on a judgment and gone on to execute on it. The first respondent’s opposing affidavit as already indicated was not yet filed or before me. I accordingly postponed the application as prayed for by the applicant and ordered a stay of further execution pending my determination of the application.

On 16 July, 2018, the parties again appeared before me. The first and second applicants had changed legal practitioners.  Mr Ndebele now appeared for them but without the representative of the first applicant. The second applicant was also not in attendance. Mr Ndebele indicated that he had been advised in his brief that the parties had settled and that all that was left was for the parties to execute the deed of settlement.  His brief was to ask for a further postponement to conclude the Deed of settlement. Mr Maruva submitted that there had been no such settlement and that the main application should therefore be argued. Mr Ndebele responded that he was not in a position to present informed argument owing to his limited mandate which was to seek the court’s  indulgence for further time to be afforded the parties to execute a deed of settlement which he was made to believe had been agreed to. Having noted that parties were clearly not agreed on a settlement, I postponed the application to the following day, the 17 July, 2018 and directed that it be argued on the merits.

On 17 July, 2018 the application was argued. I reserved judgment. My reasons for judgment or order which I will grant are as hereinafter set out. The applicants in their provisional order seek the following relief:

“TERMS OF THE FINAL ORDER SOUGHT

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

Respondent be and are hereby ordered to permanently stay execution against applicant’s property.

The matter to proceed on the merits.

Each party to bear its own costs.

INTERIM RELIEF GRANTED

Respondent be and is hereby ordered to stay execution against applicant’s property.

Costs be in the cause

SERVICE OF PROVISIONAL ORDER

Service of this provisional order is to the effected by applicant’s illegal practitioners.

In regard to service of the provisional, the applicant through an obvious typographical error describes his legal practitioners as “…. applicant’s illegal (sic) practitioners. It is seldom that a judge finds time to smile to himself or herself when writing a judgment. I must confess that I found the typographical error rib-tickling and hilarious in its reference to “illegal practitioners”. On a serious note however, I remind legal practitioners to be more circumspect when preparing their clients’ pleadings. Proof reading the prepared texts cannot be overemphasized especially so with application procedure where parties stand or fall on their papers filed in support of the application or in defence thereof as the case may be.

The provisional order itself prays for similar relief both interim and final. The terms of the order as set out in para (s) 2 of the final order and (i) of the interim order are worded the same. Curiously, the interim order prays for costs to be in the cause whilst the final order prays that each party should bear its own costs. I could not understand what the “cause” for which costs had to part of was. In para 3 of the final order, the applicants pray that the “matter” proceeds on the merits. The question is, what matter must proceed on the merits? There is nothing in the applicant’s papers to indicate that there is a pending matter which must be allowed to go its course to final determination by issuing a provisional order to regulate the dispute.

The purpose of seeking a provisional order is to have the court provide an interim relief pending the final determination of the matter before it or before some other judicial bodies. The party seeking a provisional order will be asking the court to give a temporary order regulating the dispute pending the return date when full argument can be addressed by the parties and the judge sitting in open court can then deal with the matter and give a final determination.

Litigants despite a plethora of judgments of this court directing them on the proper procedure for applying for provisional orders in urgent applications continue to be found wanting. It appears to me that the confusion playing in the minds of the undiscerning legal practitioner is to think that every urgent application must be accompanied by a provisional order. This misunderstanding leads legal practitioners to find themselves in a quandary whereby they end up seeking interim orders which are similar to final orders. There is no rule which bars a party from seeking a final order by way of urgent application. Rule 244 of the High Court Civil Rules should be understood in context. It refers to a chamber application which has been certified as urgent by a legal practitioner. Such chamber application is then placed before a judge by the registrar immediately.  The judge will determine if the application is prima facie urgent. If so, the judge determines how the application should be dealt with. The general practice of this court is to set down the application for an urgent hearing although the judge can grant the provisional order without calling the parties if on the papers such a course is deemed just and equitable. There is nothing in the rule to suggest that a provisional order should form part of the accompanying documents. The applicant should, when preparing the application be informed by the circumstances of each case whether to seek an interim order or a final order. Ordinarily, interim orders are sought because there is another parallel process under way and there is need to regulate the position pending the resolution of the parallel and sometimes main process. Sometimes, the interim order is sought pending the institution of a contemplated process. Rule 246 (2) is the one which deals with applications in which a provisional order is sought. It does not provide that every urgent application should be for a provisional order.

The present application is not based on any sound legal footing. The first respondent has simply caused enforcement of a valid court order. Such a process is lawful. The court can only regulate its processes including ordering a stay of execution of its judgment for good cause shown. The applicants have laid out any sound basis to merit the relief which they seek. They complain that the judgment in case no. HC 1824/18 was obtained illegally and unethically and they submit that for this reason the execution of the same should be stayed. The applicants do not pray for a stay of execution pending any process to set aside impugned the judgment. A judgment of the court does not stand reversed merely because a party has expressed an adverse view on its validity.  A party affected by the judgment who does not want it to remain extant should seek its setting aside or rescission. The applicants in casu have in their founding affidavits given a narration of the circumstances under which the judgment was granted.

Default judgments given in this court are revisited in terms of the provisions of rules 63 and 63A. The requirements for rescission of judgments as set out in the provision of the said rules have to be satisfied before a default judgment can be set aside. In terms of rule 63; the relief of rescission of a default judgment is sought through the filing of a court application for rescission within a period of not more than a month after the applicant has had knowledge of the default judgment. In terms of rule 63A, parties to the proceedings in which a default judgment has been entered may consent to its setting aside, by filing a consent to rescission and a judge may set aside the judgment in terms of the parties’ consent. In casu, the applicants have not followed the options provided for a setting aside of default judgments in terms of either rr 63 and 63A.

In paragraph 13 of their founding affidavit the applicants state that the judgment by Phiri J was obtained illegally and unethically. The applicants’ main contention is that the first respondent’s legal practitioners snatched at a judgment purporting that the applicants had not entered appearance to defend yet appearance had been enetered and that therefore default judgment should not have been entered. The first respondent in her opposing affidavit raised some points in limine. The 1st point was that, she moved for a dismissal of the application as against the second applicant. The second applicant was in default and that he did not file any opposing papers. She also queried the authority of the deponent to the first applicant’s affidavit to represent the first applicant. The other point in limine raised by the first respondent was that the application did not comply with the format for urgent chamber applications as set out in r 241 of the High Court Rules. She also queried the propriety of the application in that there was no simultaneous or parallel application for rescission of default judgment filed by the applicants to set aside Phiri J’s judgment.

With regards the appearance to defend, the first respondent deposed that the filing of the appearance to defend was not a bar to the grant of default judgment because the applicant’s legal practitioners did not comply with r  that the appearance was not served on the first respondent’s legal practitioners as per the peremptory requirement of r 49. She argued that the failure to serve the appearance was irregular and that the provisions of r 50 should apply. Rule 50 provides that a defendant who fails to enter appearance shall be deemed barred. I also note that r 100 requires that every pleading should after filing be immediately delivered on the other party. The rules do not appear to provide for an automatic bar on account of the failure by the defendant to deliver the appearance to defend upon the plaintiff. Rule 50 appears to be specific in its wording that it postulates a situation where no appearance to defend is entered. If it was intended to cover situations where appearance is entered but a copy thereof is not served, the rule should have stated so. Rule 50 should be read as aimed at a defendant who has failed to and has therefore not entered appearance to defend. The process of entering appearance to defend is not covered in r 49 but in r 48. Rule 49 directs that the appearance entered in terms of r 48 should be brought to the attention of the plaintiff within 24 hours of entry of appearance. Rule 50 must be read as applicable where there has been a failure by the defendant to enter appearance to defend.

What the first respondent should have done following default of service of the appearance should have been to apply for the appearance to defend to be struck out for non-compliance with r 49. Where an appearance to defend has been filed and forms part of the record, the pleading cannot be ignored as if it does not exist. In Pugin v Pugin 1963 (1) SA 791, at 794 F-G stated as follows;

“Although the entry of appearance thereby have become irregular, the plaintiff cannot ignore it and proceed as if there was no appearance at all -- and while that appearance to defend stands, documents will have to be served on the defendant himself in accordance with rr 29 and 42, which give effect to the common law principle that a person who has entered an appearance to defend cannot be condemned without being heard.”

I agree with the above dicta. I am therefore not persuaded to accept as a correct exposition of the procedural law that where a defendant has filed a valid appearance to defend in terms of r 48 but through a slip has omitted to serve the appearance in terms of r 49, an automatic bar comes into operation in terms of r 50.. I equally do not agree that a default judgment should be entered against the defendant for non-compliance with r 49 without further ado. In other words, the appearance to defend cannot just be ignored but it should be properly struck out first through a chamber application served on the defaulting party.

That said, I do not propose to deal with the other points in limine for the reason that my determination of this matter is not informed by the points in limine. The determination is based on other considerations. I have already indicated that the applicants have not taken any steps to have the default judgment rescinded in terms of either rr 63 or 63A. Even in this application they do no seek such relief in their final order. There is no prayer or application either that the judgment be revisited in terms of r 449 (a). A court judgment can only be revisited in terms of the rules of court and any other law applicable. Mr Ndebele for the applicants conceded that an application to set aside the default judgment should have been filed. From the papers, there was nothing to indicate that such application was contemplated. If this had been so, a provisional order could have been sought pending the filing of an application to rescind the default judgment. The applicants in their application simply prayed for a permanent stay of execution of a judgment. I cannot grant such an order.

The other significant observation which comes out upon a perusal of the applicants’’ affidavit is that there is no denial of liability for breaching the lease agreement or payment of arrear rentals and holding over damages. A denial of liability was a necessary averment because it could have informed the judge as to the prospects of the applicants mounting an arguable defence on rescission. The only proper conclusion which was possible and which I reached was that the application for stay of execution was filed as a ploy to delay the inevitable as the applicants had no defence to the first respondent’s claim and that not filed for rescission of judgment or undertaken or undertaken to do so.

In the premises, the applicants’ application must be dismissed for want of form and in substance. The application is therefore dismissed with costs. The temporary order staying execution pending determination of this application is discharged and the second respondent is free to proceed with the execution which I temporarily arrested pending this judgment.

Zimudzi and Associates, applicants’ legal practitioners

Zuze Law Chambers, 1st respondent’s legal practitioners