Wicknell M. Chivhayo v Five Chisholme Road Freeholder (Private) Limited and The Sheriff of the High Court

### Preamble
1
HH 688-18
HC 9648/18
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WICKNELL M. CHIVHAYO

versus

FIVE CHISHOLME ROAD FREEHOLDER (PRIVATE) LIMITED

and

THE SHERIFF OF THE HIGH COURT

HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 23 & 24 October 2018

Urgent Chamber Application

S Hashiti with K Kachambwa, for applicant

K T Madzedze with Ms M Shumba, for 1st respondent

2nd respondent, in default

TAGU J: The applicant approached this Honorable Court on an urgent basis seeking the following relief as per the provisional order:-

“TERMS OF THE FINAL ORDER SOUGHT

The writ of ejectment dated 1 October 2018 be and is hereby set aside.

Ejectment of the Applicant from Flatlet at Number 4 Rikitayi Villas, 5 Chesholme Road Ballantyre Park Harare be and is hereby stayed.

Respondents shall pay costs of suit.

INTERIM RELIEF GRANTED

The writ of ejectment dated 1 October 2018 be and is hereby suspended.

The Notice of removal dated 16 October 2018 against Wicknell Chivhayo under case No. HC 6435/18 be and is hereby set aside.

Ejectment of the Applicant from Flatlet at Number 4 Rikitayi Villas, 5 Cheholme Road Ballantyre Park Harare be and is hereby stayed pending application for rescission of default judgment under cover of case NO. HC 9647/18.

If the eviction and ejectment has already been carried out, that status quo ante be restored pending the application for rescission of default judgment under cover of case No. HC 9647/18

SERVICE OF THE ORDER

This provisional order shall be served by the Sheriff /his deputy or the Applicant’s Legal 	Practitioners.”

On the 19th of October 2018 the Sheriff of the High Court who is cited as the second respondent in this matter filed a report in which the Sheriff indicated that they are not interested parties and shall abide with the outcome of the Court’s determination. They said they have been instructed by Mawere and Sibanda to execute an order in the matter between Five Chisholme Road Freeholder Private Limited v Wicknell Chivhayo HC 6435/18 and the ejectment was done on the 19th of October 2018. They only prayed for no costs to be levelled against their office as their action in the matter are guided by this Honourable Court.

The first respondent opposed the application. In its Notice of Opposition the first respondent had taken a point in limine that the application did not comply with Rule 241 (1) of the High Court Rules 1971 in that the applicant had used Form 29B instead of Form 29 with appropriate modifications. At the hearing of the matter the first respondent indicated to the Court that it was abandoning the preliminary point and decided to deal with the merits of the application.

The brief facts are that on the 21st May 2018 an arbitral award was awarded by the Honourable Arbitrator David Whatman in favour of the first respondent which award was against the applicant. Aggrieved by the arbitral award which the applicant felt offended the public policy of Zimbabwe the applicant through his erstwhile legal practitioners Mambosasa Legal Practitioners filed a Court Application for setting aside of the arbitral award in terms of Article 34 (2) of the Model Law as contained in the Arbitration Act [Chapter 7:15] on the 15th of June 2018. The application was served on the first respondent’s legal practitioners Mawere Sibanda on the same day. On the 11th July 2018 despite that the applicant had filed a Court Application for setting aside of the Arbitral award, the first respondent proceeded to seek the registration of the arbitral award before this court which request was granted in default. This default judgment is now subject of contest in an application for rescission in HC 9647/18 filed on the 18th October 2018. The applicant avers that the first respondent has commenced execution process and intends to evict the applicant on the 19th of October 2018. The applicant contends that he only became aware of the default judgment and the execution on the 16th October 2018. It was his submission that for reasons known to his erstwhile legal practitioners, they did not advise him of the application for registration of the award and they did not take any action until a default judgment was granted. He submitted that what the first respondent did was to snatch at a judgment and that irreparable harm may occur if execution is carried out before he is afforded an opportunity to be heard. Reference was made to Article 36 (2) of the Arbitration Act which says-

“If an application for setting aside or suspension of an award has been made to a 	court 	referred to in paragraph (1) (a) (v) of this article, the court where recognition or 	enforcement is sought may, if it considers it proper, adjourn its decision and may also, on 	the application of the party claiming recognition or enforcement of the award, order the 	other party to provide appropriate security.”

The applicant submitted that the first respondent should not have proceeded to apply for the registration of the award.  On the contrary he has made an undertaking to make good any sums that may be due to the first respondent in the event he successfully resists the first respondent’s application.

The first respondent argued that it is not interested in the undertaking made by the applicant. All it requires is to have its premises back. The first respondent argued further that Article 36 (2) gives the court a discretion to register or not to register the award hence it proceeded to apply for registration despite the fact that applicant had made a court Application to have the award set aside on the basis that it is against public policy of Zimbabwe. Besides the first respondent submitted that the applicant has no prospects of success in the application to set aside the award as well as the application for rescission. See Diocesan Trustees For the Diocese of Harare v The Church of the Province of Central Africa SC-9-2010 where it was held that the lawyer should have filed an affidavit explaining the default in the event the lawyer was the one at fault.

Relying on the case authorities such as (1) Shaun Evans (2) Paul Friendship v (1) Yakub Surtee (2) Collin Macmillan (3) Rodney Finnigan (4) Across Enterprises (Pvt) Ltd SC-4-2012; Butchart v Burtchart 1997 (4) SA 108 and Holbud Limited v Grain Marketing Board HH 384/18 the counsel for the applicant demonstrated that the applicant had prospects of success on both applications.

Having considered the impressive submissions by counsels for the parties, the court agreed with the counsels for the applicant that in an urgent chamber application a prima facie case has to be established which is arguable on the return date. In arriving at this decision the court is cognizant of the fact that it is not being called to decide whether or not the Arbitrator‘s decision offends public Policy of Zimbabwe or not or whether the application for rescission has merit or not. Other courts will determine those issues. See Zimbabwe Mining Company (Private) Limited v (1) Outsource Security (Private) Limited (2) Deputy Sheriff Gwanda (3) Willem Smit (4) S. Dhliwayo (5) A.P. Gledening SC 50/16.

In casu the applicant realized that his erstwhile legal practitioners had let him down hence he engaged the current legal practitioners. In the result I will grant the following provision order.

IT IS ORDERED THAT

TERMS OF THE FINAL ORDER SOUGHT

The writ of ejectment dated 1 October 2018 be and is hereby set aside.

Ejectment of the Applicant from Flatlet at Number 4 Rikitayi Villas, 5 Chesholme Road Ballantyre Park Harare be and is hereby stayed.

Respondents shall pay costs of suit.

INTERIM RELIEF GRANTED

The writ of ejectment dated 1 October 2018 be and is hereby suspended.

The Notice of removal dated 16 October 2018 against Wicknell Chivhayo under case No. HC 6435/18 be and is hereby set aside.

Ejectment of the Applicant from Flatlet at Number 4 Rikitayi Villas, 5 Chesholme Road Ballantyre Park Harare be and is hereby stayed pending application for rescission of default judgment under cover of case No. HC 9647/18.

If the eviction and ejectment has already been carried out, that status quo ante be restored pending the application for rescission of default judgment under cover of case No. HC 9647/18.

SERVICE OF THE ORDER

This provisional order shall be served by the Sheriff/his deputy or the Applicant’s Legal 	Practitioners.

Munangati And Associates, applicant’s legal practitioners

Mawere Sibanda, 1st respondent’s legal practitioners