Metallon Gold Zimbabwe Private Limited t/a Mazowe Mine and Shamva Mine v The Sheriff of Zimbabwe N.O. and Zimbabwe Electricity Transmission Distribution Company Private Limited

### Preamble
1
HH 568-25
HC 11857/18
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METALLON GOLD ZIMBABWE PRIVATE LIMITED

t/a MAZOWE MINE AND SHAMVA MINE

and

THE SHERIFF OF ZIMBABWE NO

and

ZIMBABWE ELECTRICITY TRANSMISSION

DISTRIBUTION COMPANY PRIVATE LIMITED

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE; 3 June 2022 and 26 September 2025

Opposed Application-condonation

N. Chidemo, for the applicant

B. Mahuni, for the second respondent

CHITAPI J:  The applicant is a duly incorporated company according to the laws of Zimbabwe. The first respondent is the Sheriff for Zimbabwe whose duties include inter-alia the execution of orders and judgments of this court. The second respondent is Zimbabwe Electricity Transmission Distribution Company (Private) Limited, a duly incorporated company whose main business is the supply of electricity in Zimbabwe. It sells electricity to registered customers.

The applicant approaches the court for a declaratory order. The details of the relief sought are set out in the draft order which is couched as follows:

The application for a declaratory order is hereby granted.

It is hereby declared that the attachment in execution of the applicant’s assets appearing in the notice of attachment dated the 28th of September 2018 be and is hereby declared a nullity.

Any acts following such attachment and transfer of ownership of any of the attached assets be and are hereby set aside.

Consequently, the first respondent be and is hereby ordered to restore possession of all the attached assets to the applicant within 48 hours of this order. In the event that any of the assets is nolonger returnable to the applicant, the first respondent be and is hereby ordered to pay to the applicant the agreed values or as determined by the court.

The costs of this application on an attorney and client scale and any costs arising in respect of the recovery of the attached assets or their values shall be borne by the first respondent.

The background facts to this application are not complex. This court somewhat set them out in the judgment of matanda-moyo J in judgment in case no HC 10919/18 dated 17 December 2018 involving the same parties. In that case the applicant petitioned the court on an urgent application seeking in the interim inter-alia the suspension of in execution of a judgment granted under case number HC 1655/18. On the return date, the applicant was seeking inter-alia an order that the proposed sale in execution of the applicant’s goods which were in the nature of its gold processing plant should be declared to be null and void. The urgent application was struck off the roll of urgent matters in consequence of the learned judge having ruled that the application was not urgent.

To briefly recap on the facts, they can be stated as follows. The second respondent successfully sued the applicant in case number HC 1655/18 for payment of money. The court granted the second respondent judgment in the sum of US$ 2 772 689.18. In an effort to realise the judgment the second respondent caused a writ of execution to attach for sale, the goods of the applicant. The first respondent proceeded to execute on the writ of execution. In that regard the first respondent attached the applicant’s goods on 29 September 2018 and sold them on 16 November 2018. The goods were resold on 28 November 2018 in a second sale which was necessitated by the default of the successful bidders to pay for the goods they had bid for on the first sale.

The bone of contention which grounds this application is narrow. The applicant challenges the propriety of the sale of its gold processing plant. Again, the basis for challenging its sale is a narrow one. The first respondent on the notice of seizure described the gold processing plant simply as “gold processing and all its ….(copy unclear)”. He also placed a value estimate of US$ 800 000.00 for the plant. The first respondent also described other attached goods as “all office furniture”, “all desktop computers”, “all printers in all offices”, “main plant”, “sand plant”. Value estimates were placed on the broadly described attached goods.

In its own words and in paragraph 12 and 13 the applicant circumscribed its contentions as follows:

“12. As can be seen from the notice of attachment, the first respondent does not describe the goods and the gold processing plant to its full extent thereby failing to entice the public to consider putting in a bid. The description in the advert does not even alert the public to the magnitude and attendant value of the processing plant.

13. I am advised that descriptions such as “all office furniture”, “all desktop computers”, “all printers in all offices”, “main plant”, “sand plant”, “gold processing plant” are irregular hence the execution and the attendant sale cannot stand. The applicant therefore seeks a declarator from this Honourable Court that due to the defective description of the goods, the attachment and attendant sale are therefore a nullity at law.”

The applicant also alleges that it could not join interested parties because the first respondent did not release the name of the highest bidders who purchased the goods at the auction.

It is therefore apparent that the applicant was dissatisfied with property or goods descriptions given on attachment notices. The applicant was of the view that more flesh or detail ought to have been added to the descriptions so that the would-be bidders are fully informed of the minute details of the goods on sale. The applicant considered the descriptions used by the first respondent to be irregular at law and therefore a nullity.

It is however common cause that the attached property was in fact sold on 28 November 2018 using the impugned descriptions. To all intent and purposes therefore the applicant in effect files this application to challenge the propriety of the sale.

The first respondent did not file any opposing papers. There is however a report dated 29 November 2018 which was filed in case no HC 10919/18 which case as noted was adjudged not urgent and removed from the roll. For the record case no HC 10919/18 was deemed abandoned and dismissed because following its removal from the roll for lack of urgency, it was not then prosecuted by the applicant within three months as required by the rules.

The second respondent opposed the application and filed its opposing affidavit. The highlights of the opposing affidavit were that the application was lis pendens in case no HC 10919/18 in which the applicant sought the same or materially similar relief in the aborted urgent application. It is however common cause that case no HC 10919/18 was and is not pending before the court following its non-prosecution after it was adjudged not to be urgent. Whether or not in such circumstances lis pendens arises is a matter to be addressed in substance. This judgment as will be noted concerns a peripheral matter of the application of the second respondent of condonation for a late filing of heads of argument.

On the substance of the matters in relation to which I do not pronounce at this stage, the second respondent averred that the applicant’s complaints on the propriety of the sale were without substance.  The second respondent denied the applicant’s contention that the value of the gold processing plant was US$20 000 000.00 (twenty million United States dollars) The second respondent also noted that since the applicant was contending in the founding affidavit that the ownership of the plant was vested in Old Mutual Company with the applicant not becoming owner until it had discharged a debt due to Old Mutual and secured by a notarial covering bond passed in favour of Old Mutual, the applicant had no locus standi to sue and seek the setting aside of the sale. The second respondent averred that on the of the facts pleaded by the applicant, Old Mutual ought to have filed an interpleader to claim the processing plant.

The second respondent averred that upon the failure of the applicant to stay the sale or challenge it in consequence of case no HC 10919/18 not having been heard on the urgent basis, the first respondent was entitled to proceed with distributing the sale proceeds. The second respondent contended that to reverse the sale would undermine the process of the auction system and kill the public confidence in that type of enforcement system. The second respondent also contented that the purchasers were interested persons who ought to have been cited and/or served with the application. The second respondent noted that the applicant did not provide concrete details on how it intended to settle the debt. The second respondent noted that the horse had already bolted in that this application was coming late in the day because with the urgent interdict application having been abandoned by operation of the law, the sale had been completed and proceeds distributed.

The applicant in the answering affidavit averred that it had locus standi to pray for the relief sought because Old Mutual was only a secured creditor with the owner remaining the applicant. The applicant averred that it could not identify the alleged purchasers of the property and that resultantly it could not join them. The applicant also averred that the parties with an interest could themselves apply to be joined in the proceedings. The applicant averred that there had been no delivery made yet of the processing plant to the purchasers and new ownership had not passed. Lastly the applicant averred that the “notice of seizure and attachment was not valid thus rendering the sale a nullity. The deformity or defect complained of as a ground of invalidity thereof was an “irregular and improper” and “insufficient description” of the nature and extent of the applicant’s property”

The parties filed heads of argument. The applicant on 22 March 2019 and the second respondent on 4 March 2022. The second respondent’s heads were therefore filed some 3 years later. The second respondents’ heads sought not have been accepted for filing by the Registrar since there was an automatic bar operating against the second respondent which it had not filed its heads of argument within 10 days of the filing of the applicants heads of argument.

At the hearing of the application, counsel for the second respondent following objection by the applicant’s counsel that the second respondent was barred, sought to make an oral application for upliftment of bar. Rule 39 (4) of the High Court Rules 2021 provides that

“(4) A party who has been barred may—

(a) make a chamber application to remove the bar; or

(b) make an oral application at the hearing, if any, of the action or suit concerned;

and the judge or court may allow the application on such terms as to costs and otherwise as the judge or court, as the case may be, considers fit.”

I was not inclined to allow the second respondent’s counsel to make an oral application for reasons I will extrapolate. I instead granted the second respondent leave to file a supplementary or additional affidavit to deal with the issue of upliftment of bar. I also gave leave to the applicant to file an opposing supplementary affidavit if advised and that both parties should file their heads of argument to address the issue of condonation. The court would therefore hear the parties on the upliftment of bar. The parties duly complied.

Before dealing with the supplementary affidavits and prayer for upliftment of bar I must give brief reasons why I was not inclined to agree to the second respondent making an over the bar oral application. An application to uplift bar involves the adduction of facts or evidence to explain inter alia reasons for default in complying with the rules. From both parties heads of argument and the authorities which they stated, the requirements to be satisfied by an applicant seeking the courts discretionary indulgence to uplift bar are as follows and should be cumulatively considered:

The extent of and a reasonable explanation for the delay

The application must be bona fide and not made with the intention to delay relief to the other party or to prejudice the other party’s claim or defence

The applicant must not be guilty of recklessness or intentional disregard of the court’s rules

The applicants case of defence as the case may be should not be without substance or foundation ‘

The other party should not be prejudiced to an extent which cannot be rectified by a suitable order as to costs.

As quoted by counsel see Chapfika v CABS HH2/18 quoting with approval Smith NO v Brummer NO and Anor 1954 (3) SA 352 (0) at p 358

It is evident that the court must receive evidence or facts which explain the delay and reasons therefore. Further the court must consider facts on the veracity of the claim or defence as the case may be. The court is only able to do so where the facts grounding the defence are adduced. The adduction of evidence cannot be done orally by the legal practitioner speaking over the bar. If for example the legal practitioner is the one with knowledge of the facts, he or she must file a sworn statement or affidavit or be sworn in to give evidence, otherwise the party concerned is the one that must adduce the facts. The rule maker therefore deliberately provided for the making of a chamber application to uplift bar in the first instance because in terms of rule 60 (1) of the High Court Rules, a chamber application “shall be supported by one or more affidavits setting out the facts upon which the applicant relies”

The judge will in chamber applications consider the sworn facts in determining the application. The alternative of seeking the upliftment of bar through the making of an application must be invoked where there is no contest between the parties on the upliftment of bar. Oral applications in practice are sparingly resorted to and recourse should be had to chamber applications. The procedure I adopted was informed by the consideration to expeditiously deal with the matter in substance.

In the supplementary affidavit to move the court to uplift bar, the second respondent averred that no proceedings could be continued against the applicant because the applicant was under corporate rescue during the period 20 February 2020 to 7 October 2021. It was correctly averred by the second respondent and not contested otherwise by the applicant that no proceedings could be continued during this period by reason of the provisions of the Insolvency Act [Chapter 6.07] which in s 126 therefore place a moratorium on litigation involving a company placed under corporate rescue.

Regarding the post corporate rescue period and the second respondent’s inaction, the second respondent averred that the applicant revived this application in December 2021 when it filed heads of argument. The correct position from the papers is that the applicants heads of argument were filed on 22 March 2019 followed by supplementary heads filed on 7 December 2021. The latter heads of argument were served on the second respondent on 14 December 2021 at its head office at Electricity Centre, 25 Samora Machel Avenue, Harare.

The applicant did not clearly if at all explain the delay between the service of the supplementary heads of argument and its filing of heads of argument on 4 March 2021. The second respondent should not have filed its heads of argument as there was a bar operating against it. The Registrar should not have accepted and franked the barred heads of argument. The second respondent averred that its legal practitioners wrote a letter dated 7 March 2022 to the applicants legal practitioners advising that it intended to orally apply for upliftment of bar. In the absence of a consent to such application being made, it ought to have dawned on the second respondent that it would have to make a substantive application. The second respondent was advised to have filed a chamber application ahead of the hearing. Be that as it may the second respondent stated in paragraphs 10 and 11 of the supplementary affidavit as follows:

“10. ………The second respondent was not part of the Supreme Court appeal and as a result there was no way they could have known that the applicant was released from corporate rescue in October 2021. The second respondent only got to know that the matter was still pending through the filing of the applicant’s supplementary heads of argument on the 7th of December 2021. This necessitated our engagement with our current legal practitioners.

11. Upon assumption of agency and perusal of the record, our legal practitioners noted that there were no heads of argument filed in favour of the second respondent which they then immediately file (sic)”

There is however no explanation for inaction between the 7th to the 24th December 2021 and 4 March 2021 when the second respondent filed its heads. There is a period of about 4 months. It is wholly unsatisfactory for the second respondent to simply state that it consulted legal practitioners who “immediately” filed heads of argument. An action taken after an interval of four months hardly qualifies to be described as one done immediately from the date that the act to be responded to first occurred. One cannot therefore under such circumstances speak of the reasonableness of an explanation as the second respondent could not explain why the legal practitioners took four months to file the second respondents heads of argument.

On the bona fides of the application, the second respondent does not appear to have been bothered and, was lackadaisical in dealing with the issue. The application was perfunctorily dealt with as if applying for upliftment of bar is just routine yet the uplifting of the bar is not there for the giving. Despite setting out the requirements for uplifting bar which the second respondent itself outlined in paragraph 13 of the supplementary affidavit, the second respondent did not aver any facts to advance the other factors other than perfunctorily attempt to explain the delay.

The second respondent in passing averred that its defence was bona fide and not intended to delay proceedings. The basis or facts from which to find such inference were not pleaded. On likely prejudice, the second respondent averred that it filed its heads of argument “as soon as the supplementary heads were received” and that the applicant had “ample time” to peruse them. This is where the second respondent gets it wrong. The issues is not just the convenience of the other party. The issue is a non-compliance with rules of court. A party does not escape consequence of non-compliance with the rules by alleging that the other party is not prejudiced because it had enough time to read the offensive document. That document ought not to have been accepted for filing in the first place.

The applicant vehemently opposed the application to uplift bar. It noted that the second respondent did not timeously apply for upliftment of bar upon becoming aware of the filing of the applicants heads of argument. The second respondent took a gamble in adopting a course to make oral application at the hearing. The applicant noted that the second respondent did not address prospects of success. Indeed, the second respondent did not set out its defence to the application. The applicant averred that although the second respondent was blaming its erstwhile legal practitioners for inaction and a stand off between the second respondent those legal practitioners, there was no iota of evidence to suggest that there was such a standoff, not even correspondence. The best that the second respondent averred in this regard was that the dispute between it and its erstwhile was subject of arbitration. Details of the arbitration were not included.

The applicant also averred that the second respondent ought to have obtained an affidavit from its erstwhile legal practitioners to explain the inaction. It seems to me that where a legal practitioner and client relationship has broken down, it is unlikely that the legal practitioner will be inclined to assist the erstwhile client by deposing to a supporting affidavit. The likely scenario that obtains in a breakdown of legal practitioner/client relationship coupled with a renunciation of agency is that the legal practitioner simply prepares the closing account and releases the file to the erstwhile client or holds on to the file until outstanding fees are paid and then releases the file. As affidavit of the erstwhile legal practitioners may be difficult for the erstwhile client to obtain. However, the erstwhile client can still give details of the facts from which the court can reasonably infer that the legal practitioners were to blame. No such facts in that regard were not shared with the court by the second respondent.

The remarks I have made above do not contradict the dicta of the Deputy Chief Justice malaba DCJ(as he then was) in the case Diocesan Trustees, Diocese of Harare v Church of the Province of Central Africa 2010 (1) ZLR 267 at 277-278 wherein the learned judge stated:

“It would have been after the responsible legal practitioner had filed an affidavit admitting fault and explaining in some detail what happened, that the Judge would be in a position to decide whether the respondent should not be visited with the sins of its legal practitioners․ Where no factual basis for making such a distinction of culpability has been provided, the Judge would have no right to draw it․ It must follow that without an affidavit from the person responsible for the “oversight” admitting fault and explaining the circumstances under which he or she overlooked the Rules, one is at a loss for the reason why it was found necessary to state in the opposing affidavit that an “oversight” on the part of the respondent was the cause of non-compliance․ The procedure adopted by the respondent is another example of lack of care to ensure that Rules of court were complied with․”

The applicant averred that the above dicta was authority to hold that where the conduct of a legal practitioner is given as the cause for noncompliance with rules, the alleged errant legal practitioner should adduce a supporting affidavit. Without interrogating the above authority any further than necessary, the distinction which should be made is to note that the circumstances of the legal practitioner and client relationship counts. Where the two are still in an amicable relationship, the supporting affidavit may be easy for the applicant to obtain. However, where the relationship is estranged or to put it aptly the relationship has terminated, the applicant may not easily get the cooperation of the erstwhile legal practitioner and may have to cite such legal practitioner or subpoena him or her. In the dicta aforesaid, the client and legal practitioners’ relationship was still extant.

It is evident from the papers that the second respondent did not apply for upliftment of bar the moment it realized that it was barred.  Instead, the second respondent in the full knowledge of the bar proceeded to file its heads of argument.  This is to be deprecated and is a factor tending to show the perfunctory approach adopted by the second respondent to the issue of condonation to uplift bar.

In casu I am satisfied that the second respondent has failed to advance sufficient grounds or facts to cause the court to exercise its judicious discretion in the second respondent’s favour.  Under the circumstances, the application for upliftment of bar is denied.  The second respondent remains barred and cannot be given the audience of this court.

The next issue is to decide how to dispose of the application.  Rule 59(22) of the High Court Rules provides as follows:

“ Where heads of argument that are required to be filed are not filed within the period specified in sub rule (21); the respondent concerned shall be barred and the court or judge may deal with the matter as unopposed or direct that it be set down for hearing on the unopposed roll.”

Before I attempt to interpret the above rule, a useful case to take a guide from is the judgement of makarau JA  (as then she was) in the case Lesley Faye Marsh (Pvt) Ltd and Ors v African Banking Corporation SC 4/2019. At play in the case was the interpretation to be accorded to rule 238 (2) (b) which is the predecessor to rule 59(22) in the repealed High Court Rules 1971.  The rule read as follows:

“(2b) Where heads of arguments that are required to be filed in terms of subrule (2) are not filed within the period specified in subrule (2a), the respondent concerned shall be barred and the court or judge may deal with the matter on the merits or direct that it be set down foe hearing on the unopposed will.”

There is upon comparison of the wordings in the two rules a distinction in that the repealed rule 238(2b) provided that in circumstances where a party is barred for failure to file heads of argument the court or judge had a discretion “ to deal with the matter on the merits or direct that it be set down for hearing on the unopposed roll” (own underlining).  By contrast Rule 59(22) provides in the same instance of a failure to file heads of argument that the party in defaults is barred and the court or judge may deal with the matter as unopposed or direct that it be set down on the unopposed roll”

In reference to the interpretation of rule 238 (2)(b) of the repealed rules, the learned judge in the Lesley Faye March (Ltd) Ltd case (supra) stated at para 24 as follow:

“24  It presents itself quite clearly to me that where the respondent is barred for failing to file his or her heads of argument on time, the application cannot be treated as an unopposed.  The provisions of rule 238(2)(b) which I have cited in full above are clear on that point. The provisions of the rule direct the court hearing such an application where heads have been filed out of time, to either hear the matter on the merits or to refer it to the unopposed will.  The rule does not deem the application unopposed”

There is upon comparison and contrasting of the rules a marked distinction.  Under the current rules and in particular in terms of rule 55(22) the court may treat the matter as unopposed or refer the matter to be disposed of on the unopposed roll.  In my respectful interpretation of rule 55(22), where a party is barred for failure to file heads of argument the errant party’s claim or defence as the case may be should not considered by the court in dealing with the matter either at the hearing or on the unopposed motion.  I venture to state that in relation to the current position the last sentence of the pronouncement by MAKARAU JA (then) in para 24 (supra) which states that:

“the rule does not deem the application unopposed” was the position before the passage of the current High Court Rules 2021.  Rule 55(22) by virtue of its wording now changes the position to that.  ‘The rule deems the application unopposed”

Further guidance was again given by the learned judge in the same case in para 25 which I reproduce for certainly.  The learned judge stated as again in relation to rule 282 (2) (b): “25.  The rule appears to me to be sound and is based on the fact that once a notice of opposition and opposing papers have been validly filed, barred heads of argument cannot automatically have the effect of negating or nullifying such filing.  The rule re-assets the common-sense position that the pleadings having been validly filed remain extant until struck off the record by a competent court order.  A referral of the matter to the unopposed roll is one such competent court order that will have the effect of nullifying or striking off the record, the otherwise validly filed pleadings.  A specific order striking off the notice of opportion and opposing affidavit is yet another competent order that can be made in the circumstances.”

The above dicta gives direction on what then must happen to the rest of the errant part’s pleading which the properly filed.  In casu it is the second’s respondents notice of opposition and accompanying documents which were validly filed.  Since rule 55(22) provides that the court may deal with the matter as unopposed or refer it to the unopposed roll, the opposing papers should be struck off or expunged from the record.  That is the only way which from renders the matter unopposed.

In the judgment of makarau JA supra, the court left it unanswered or open the question whether where the court has decided to refer the matter to the unopposed roll that court can covert itself into an ‘unopposed court” and grant the order sought.  Rule 55(22) gives the court the option to deal with the mater as unopposed or refer it to the unopposed roll.  Thus, the matter is treated as an unopposed whether it is dealt with as such at the hearing or referred to the unopposed roll. I do not find scope in the rules for the partly in favour of whom default judgment may be granted to file any further process other than for the court to consider whether or not default judgment may properly be granted on the papers.  In other words, the court must despite the struck out opposition be satisfied that a lawful cause of action for which judgment may be competently and properly granted is disclosed on the applicants founding affidavit.

It is clear therefore that should the court treat the matter and deal with it as unopposed at the hearing, the same obtains if the court refers the matter set down on the unopposed roll.  It is my respectful observation that the rule may in the discretion of the rule maker be reflected upon to consider whether if the matter is treated as unopposed, the court should not just deal with it as such and leave the option of referral to the unopposed roll unless something further would have to be filed by the applicant in order to obtain judgment as would be the case in action proceedings where in an application for default judgment in specified cases such as damages, the plaintiff is required to fill on affidavit verifying the cause of action and proof of damages.  In application proceedings the plaintiff’s case stands or falls on the founding affidavit.  The court that expunges the notice of opposition as discussed is as well equipped as will be the court sitting on the unopposed roll.  In the interests of a speedy resolution of such type applications, it is suggested that the option of referring the matter to the unopposed roll serves no useful purposes save to prolong the finalization of the case.  My views of course are an aside.  In casu, I am of the view that it is best to dispose of the application as unopposed.  The application is in the nature of a declaratur.  The applicant seeks that the notice of attachment dated 28 September 2018 issued by the first respondent is declared a nullity.  In consequence, the applicant seeks a further declaration that “any acts” following the attachment and transfer of ownership of any of the attached assets be set aside and that the said assets be restored to the possession of the applicant whilst for those assets which cannot be restored to the applicant, the first respondent (that is the Sheriff) be ordered to pay to the applicant “the agreed values or as determined by the court.”  The applicant further claims costs of suit on the legal practitioner and client scale as well as costs arising from the recovery of attached assets or their values.

It is evident that the application is to all intents and purposes directed at and made against the first respondent in his official capacity.  The first respondent did not file any opposing papers.  Despite the non opposition the court must consider whether a proper cause of action to support the relief sought is established in the founding affidavit.  I carefully considered the founding affidavit.  It is not clear whether the applicant bases its claims on negligence, breach of statutory duty or other cause.

The applicant in para 11 of the founding affidavit stated that its attached goods were first sold on 16 September 2018 before being readvertised for sale on 23 November 2018 and sold on 28 November 2018.  In this regard, the applicant avers that the reasons for conducting a second sale were “dodgy”.  However, the “dodgy” reasons were not outlined.  The applicants’ pliant or founding affidavit to the extent that it can be said to establish a cause of action is founded on para(s) 12 and 13 of the founding affidavit.  The applicant stated therein as follows:

“12. As can be seen from the notice of attachment, the first respondent does not describe the goods and the Gold processing plant to its fall extent thereby failing to entice the public to consider pulling in a bed.  The description in the advert does not even alert the public to the magnitude 5 and attendant value of the Processing plant.

13. I am advised that such descriptions as “all office furniture” “all desktop computer.” “all printers in all offices” “main plant” sauds plant”and gold processing plant” are irregular hence the execution and the attendant sale cannot stand.  The applicant therefore seeks a declaration from this Honourable Court that “due to the defective description of the goods, the attachment and attendant sale are therefore a nullity at law” (own emphasis).

The cause of action is not clear or is ineptly pleaded.  The applicant averred that descriptions as used by the first respondent are irregular.  The irregularity was not articulated and therefore not established.  What should be the regular description?  This was not pleaded.  The question remains, “if the descriptions given are irregular, what is the regular description and what standard is used or who determines the regular description using what criteria??

The basis for apportioning liability on the first respondent is not apparent.  The applicant was required to plead the standard or procedure which ought to have been followed by the first respondent and the basis for that standard and the set out how the first respondent breached the standard.

The applicant to its further woes did not attach a copy of the offending advertisement.  The court cannot therefore appreciate the criticism levelled on it.  The matter must to a large extent end here because the applicant bases in the main for relief a defective description of the attached goods.  This being an application the applicant cannot file additional affidavits to verify the cause of action.

A cause of action has been described in authorities as being constitutional by “the entire set of facts which give use to an enforceable claim and includes every act which is material to be proved to entitle a plaintiff to succeed in his claim.  It includes all that a plaintiff must set out in his declaration in order to disclose a cause of action” per watermeyer J in the case Abrahams and Sons v SA Railways and Harbours 1933 CID 626 at 637.  This judgment has been quoted with approval in this jurisdiction, see for example Mudhanda v Registrar of Deeds and Anor SC 5/18.

In terms of r 59(1) of the High Court rules, affidavits which ground an application must set out “the facts upon which the applicant relies.”  The applicant cannot be granted relief where the founding and supporting affidavits suffer from a kwashiorkor of material factual averments necessary to ground and verify the claim made.

The applicants’ affidavit leaves the court to speculate on what is irregular about the descriptions of goods allegedly made by the first respondent what is regular?  Where is the advert, what standards are used?  Did the first respondent commit an act of commission or omission and the basis thereof especially given that the first respondent in attaching and selling goods performs a statutory function?  It is clear that under the repealed High Court Rules 1971, the process of attachment and sale of attached goods as provided for under order 40 rules 322-367.  The founding affidavit did not relate to the procedures set out therein or base its claim upon any procedural breaches.  The court cannot under such circumstances create a case for the applicant.  I do not find that the applicant established a case for the relief sought.  I also express reservations on whether the applicant did not have other recourse in terms of the rules to challenge the sale than seek a declaratur.

In the circumstances the application must fail.  I determine it as follows:

IT IS ORDERED THAT;

The application be and is hereby dismissed.

CHITAPI J:………………………………

Kantor Immerman, applicants’ legal practitioners

Muvingi & Mugadza, second respondents’ legal practitioners