Stuttafords Removals (Pvt) Ltd v Zimbabwe Asset Management Corporation (Pvt) Ltd and YCOB Investments (Pvt) Ltd

### Preamble
1
HH 494-18
HC 6072/18
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STUTTAFORDS REMOVALS (PVT) LTD

versus

ZIMBABWE ASSET MANAGEMENT CORPORATION (PVT) LTD

and

YCOB INVESTMENTS (PVT) LTD

HIGH COURT OF ZIMBABWE

CHIKOWERO J

HARARE, 15 & 21 August 2018

Application for leave to appeal

B Diza, for the applicant

O T Sanyika, for the 2st respondent

R F Mushoriwa, for the 2nd respondent

CHIKOWERO J: After hearing oral argument on 15 August 2018 I dismissed this application for leave to appeal with costs. I indicated that my reasons would be availed in writing.

These are the reasons.

The applicant filed a written application for leave to appeal my judgment under HH 417/18 wherein I found its urgent chamber application as not urgent. I ordered that it be removed from the roll of urgent matters. I also ordered that the applicant pays the first and second respondents’ costs on the higher scale.

The facts of the matter are set out in my judgment under HH 417/18.

The determining factor in an application for leave to appeal is the existence of prospects of success on appeal.

This legal position is settled: S v McGown 1995 (2) ZLR 81 (S); Zimnat Life Assurance v Dikunye 2008 (2) ZLR 200 (S); Chikafu v Dodhill (Pvt) Ltd and Others 2009 (1) ZLR 293 (S) and Ngazimbi v Murowa Diamonds (Pvt) Ltd 2013 (1) ZLR 569 (S).

Where an important point of law is raised it would also be appropriate to grant leave to appeal to enable the Supreme Court to pronounce itself thereon: Zimnat Life Assurance Ltd v Dikunye (supra).

Where there is divergence of authority it is desirable that the Supreme Court settle the legal position: Chikafu v Dodhill (Pvt) Ltd and others (supra).

The applicant sought leave to appeal on the basis that there are reasonable prospects that the higher court may conclude that I erred in not finding that the matter was commercially urgent.

In seeking leave to appeal the applicant argued that the need to act arose from the time that it became able to amortise the debt and hence prevent further accrual of interest from that point onwards.

I was asked to disregard the second respondent’s interest in the matter on the basis that the second respondent was not a party to the loan agreement on which the urgent chamber application was founded.

The parties to that loan agreement were the applicant and the first respondent.

The submission was therefore made that the second respondent’s opposition to the urgent chamber application itself and the application for leave to appeal was misplaced. This was so because the rights and obligations flowing from the loan agreement concerned the parties thereto. As already pointed out, the second respondent was not privy to that loan agreement.

This submission ignores the admitted fact that the second respondent is an interested party in this matter.

It was precisely because of that interest that the applicant and the first respondent consented to the second respondent’s joinder to the urgent chamber application in the first place.

In Barclays Bank of Zimbabwe Ltd v Reserve Bank of Zimbabwe and Another 2013 (2) ZLR 459 (H) Zhou J had this to say at 462 B-C:

“It has been held that the object of the third party procedure is to avoid multiplicity of actions dealing with substantially the same subject matter and largely involving the same evidence. The inconvenience of requiring the parties to prove the same facts over again is obviated, thereby saving time and mitigating the parties’ expenses. See Building Electrical and Mechanical Corp (Salisbury) Ltd v Johnson 1950 SR 142 at 148, 1950 (4) SA 303 (SR), also Herbstein and Van Winsen, The Civil Practice of the Supreme Court of South Africa 4ed, p 165. This court has a discretion as to whether or not to order joinder. The discretion will, of course, be exercised judicially upon a consideration of the facts and circumstances of the case. The court will generally order joinder of a third party if a prima facie case is shown unless the joining of the third party will embarrass the plaintiff or there are special circumstances 	militating against such joinder: Building Electrical and Mechanical Corp (Salisbury) Ltd v Johnson (supra).”

The second respondent had on 16 March 2017, purchased from the applicant the

rights, title and interest in stand 1578 Ardbennie Township measuring 2,0371 hectares held under Deed of Transfer number 5348/2011.

The rights, title and interest in the same property were then sold by the applicant to Nyaradzo Life Assurance Company (Private) Limited (“Nyaradzo”) on 15 June 2018.

The subject matter was therefore the same as the applicant, in the urgent chamber application, required that the following interim relief be granted to it:

“INTERIM RELIEF GRANTED

That pending the finalisation of this matter, it is ordered as follows:

That, the respondent be and is hereby compelled to furnish the applicant with its requirements for cancellation of Bond Numbers 4151/2013 and 2130/2014 registered in its favour on property known as a certain piece of land in the district of Salisbury called stand 1578 Ardbennie Township measuring 20471 hectares held under deed of transfer number 5348/2011.

Against payment of the value of the loan, or alternatively on applicant’s legal practitioners furnishing an irrevocable letter of undertaking to pay the loan, the respondent be and is hereby compelled to furnish the applicant with the title deed described in (1) above.

That, the respondent complies with paragraph (1) above within forty eight (48) hours of the granting of this order.”

Without doubt, the object of the interim relief sought was to enable transfer to be

registered in favour of Nyaradzo at a time that the applicant knew that the second respondent was disputing the validity of the cancellation of the agreement of sale between the applicant and second respondent.

Although the interim relief sought was final in effect that was not the reason for my determination in HH 417/18.

It was sufficient for purposes of disposing of that application that I found that the matter was not urgent.

A party can protect its economic interests though an urgent chamber application.

In other words, it is settled law that commercial urgency is a sound basis upon which a court can find that an urgent chamber application is indeed urgent.

I refer to the following cases in this regard: Silver’s Trucks (Pvt) Ltd and Anor v Director of Customs and Excise 1999 (1) 490 (H), African Tribune Newspapers (Pvt) Ltd and Ors v Media and Information Commission and Anor 2004 (2) ZLR 7 (H), Document Support Centre (Pvt) Ltd v Mapuvire 2006 (2) ZLR 232 (H) and Triple C Pigs and Anor v Commissioner-General Zimbabwe Revenue Authority 2007 (1) ZLR 27 (H).

What distinguishes these cases from the present matter is applicant’s inaction between 16 March 2017 and March 2018 when the applicant received a letter of demand from the first respondent to settle the account. The inaction is not explained by the applicant.

The applicant did not treat the matter of its agreement with the second respondent with commercial urgency at all.

Neither did it treat its payment obligations to first respondent with anything akin to commercial urgency.

The agreement of sale of 16 March 2017 provided that second respondent had to pay the balance of the purchase price, the transfer fees and agent’s commission within seven days of signing the agreement.

Despite this commercially sensible time frame the applicant did completely nothing for a whole year up to March 2018.

When applicant acted on March 2018 it was not because the matter was commercially urgent. Its action of cancelling the agreement of sale (which was disputed) was prompted by receipt of a letter of demand authored by first respondent. The correspondence required payment of the full loan account.

When applicant filed the urgent chamber application on 2 July 2017 it was not out of a realisation that the matter was commercially urgent.

The act of filing of the urgent chamber application was prompted by a telephone conversation held on 29 June 2018 wherein second respondent’s legal practitioners stated that they held instructions to file, and would be filing, a summons for a declaration of nullity of the cancellation of the agreement of sale between applicant and second respondent.

Pages 4 and 5 of my cyclostyled judgment in HH 417/18 deal with my observations regarding the telephone conversation of 29 June 2018, the non-disclosure thereof by applicant, the non-citation of second respondent in the urgent chamber application, the reason behind the non-citation and the effect of all the foregoing on the issue of urgency or more properly the absence thereof.

I did not agree that after waiting for a whole year the applicant could wake up from its deep slumber and properly petition the court to drop everything and treat its matter as urgent.

I do not understand commercial urgency to mean that merely because a matter is commercial then it is commercially urgent despite a year’s unexplained inactivity by an applicant.

I did not agree that applicant requires an expeditious resolution of the matter. The lengthy period of inactivity contradicts this.

The applicant is the author of the predicament it finds itself in. It failed to properly manage its affairs. It cannot evade the consequences of such mismanagement through an urgent chamber application.

It had seven (7) days from 26 March 2017 to manage its agreement of sale with second respondent. It had sufficient time thereafter to manage the consequences of that agreement before entering into another agreement of sale in respect of the same property with Nyaradzo.

In my judgment, it was dishonest for applicant to seek to deflect attention from its own failings by pretending that its new found ability to pay the loan account means that the matter has all of a sudden become commercially urgent.

The above are my reasons for dismissing the application for leave to appeal. I dismissed that application with costs.

Mhishi Nkomo Legal Practitioners, applicant’s legal practitioners

Matsika Legal Practitioners, 1st respondent’s legal practitioners

Mushoriwa Pasi Corporate Attorney, 2nd respondent’s legal practitioners