Bayrich Inv. (Pvt) Ltd v XGMA Zimbabwe (Pvt) Ltd & Anor (Ref HC 7669 of 2013) [2015] ZWHHC 173 (16 February 2015)

1 HH 173-15 HC 1356/15 Ref HC 1180/15 Ref HC 7669/13 BAYRICH ENTERPRISES (PVT) LTD versus XGMA ZIMBABWE (PVT) LTD and THE SHERIFF HIGH COURT OF ZIMBABWE MATHONSI J HARARE, 17 February 2015 Urgent Chamber Application Ms L. Dzumbunu, for the applicant J. Samukange, for the 1st respondent MATHONSI J: Wonders never cease in the practice of law. As to how and indeed why the applicant would deem it fit to prepare and file 2 applications worded almost the same and seeking what is in essence the same relief, is difficult to fathom. The same could be said about the dusting and refiling of an application that was dismissed. On 10 February 2015 the applicant filed an ordinary court application for stay of execution in HC 1180/15 in which it sought the following relief: “IT IS ORDERED THAT: 1. The 1st and 2nd respondent(s) are hereby ordered not to sell the property of applicant save by private treaty. 2. The 1st respondent to pay costs of suit on the attorney and client scale”. In the founding affidavit deposed to by the Truman Joma, its company secretary, the applicant stated that it had entered into an agreement with the first respondent in terms of which it had taken delivery of equipment with the purchase price of such equipment being paid from income derived from the business it was engaged in. Due to harsh economic conditions prevailing in the country its business ran into trouble resulting in the first respondent taking judgment against it. Joma went on to say that following negotiations the parties reached a further agreement in terms of which the applicant pledged and surrendered its movable property to the first respondent as security for the faithful payment of the debt owed to the first respondent. In pursuance thereof, the applicant HH 173-15 HC 1356/15 Ref HC 1180/15 Ref HC 7669/13 attempted to liquidate the debt and succeeded in paying a sum of $160 000-00 towards settlement of the debt. This however did not stop the first respondent instructing the second respondent, the Sheriff, to execute against the applicant’s property to satisfy the judgment debt. The applicant became aware of the sale date, 14 February 2015, on 6 January 2015. The applicant maintained that this was in breach of the agreement of the parties to the effect that the pledged property would be returned to the applicant upon payment of at least half of the purchase price and that if the sale was to occur it would be “by private treaty”. For that reason the applicant sought an order for stay of execution aforesaid. It however did not produce the alleged agreement of the parties recording those terms relying only on letters authored on its behalf by its own legal practitioners with no corresponding commitment from the first respondent. What is more, the applicant did not show that it paid at least half of the purchase price given that the purchase price was $416 712.39, the judgment debt, when it only paid $160 000.00. On 13 February 2015 filed another application, this time on a certificate of urgency, in HC 1356/15 (which is the application before me), on virtually the same facts (in fact the founding affidavit is a regurgitation of the one founding the court application in HC 1180/15) seeking the following interim relief: “INTERIM RELIEF Pending the finalisation of the proceedings in HC 1180/15 the 2nd respondent be and is hereby ordered to: 1. Return all the goods of the applicant attached in consequence of the writ issued in HC 7669/13, to the applicant pending the final resolution of case HC 1180/15. 2. Stay all execution proceedings related to HC 7669/13 until the finalisation of the case in HC 1180/15”. I have said that the relief sought in both matters is the same. It is not clear why the applicant has made two different applications seeking virtually the same thing. Even more baffling is why the applicant, which says it became aware that its property would be sold on 14 February 2015 as far back as 6 January 2015 not only did not do anything until the day of reckoning but also elected to proceed by ordinary application on 10 February 2015. If the above stated scenario is a strain to the mind, then the fact that this urgent application is being made for the second time in as many days is remarkably disheartening. I say this because on 10 February 2015, the applicant filed the same urgent application is HC 1216/15 on the same set of facts, the same founding affidavit and the same annexures which it merely photocopied for HC 1356/15. In short the applicant issued the same application HH 173-15 HC 1356/15 Ref HC 1180/15 Ref HC 7669/13 twice after the first one was set down before Uchena J on 13 February 2015 at 10 am and the learned judge issued an order dismissing the application with costs on an attorney and client scale. What we therefore have here is an application that has been dismissed with costs on an adverse scale being reinstituted and placed before me when the order of dismissal remains extant. Its simply not possible because it was dismissed and cannot be revived. How such a simple and straight forward procedural fact could have escaped the gaze and understanding of the applicant’s counsel is difficult to comprehend. What I find even more disturbing is that the applicant did not see the need to disclose to the court that its application has already been dismissed by this court, per Uchena J, and did not find it necessary to even append HC 1216/15 as a cross reference for the ease of the court. There is little doubt that there was an attempt to pull the wool over the court’s eye which conduct should be frowned upon. This is particularly so when the applicant is represented by counsel who is an officer of this court. As if that was not bad enough as it is, the application itself is legendary by its lack of merit. On 25 March 2014 this court, per Mangota J, granted an order in favour of the first respondent in HC 7669/13 for payment of the sum of $416 712-39 together with interest at the prescribed rate from the date of issue of the summons, being 18 September 2013, to date of payment and costs of suit on a legal practitioner and client scale. That court order is still extant and no attempt has been made to challenge it meaning that the applicant has to satisfy it or face execution against property. The applicant claims to have paid only $160 000-00 towards the judgment debt which is not even half the judgment debt. If we were to assume in the applicant’s favour that there exists an agreement in terms of which its goods would be saved upon payment of half what it owes, the applicant would still be without such remedy as it has not paid half what is owed. In addition, I have already alluded to its failure to prove the existence of what it prefers to refer to as “an interpartes bilateral stay of execution”, whatever that is. What remains therefore is a judgment that has not been fully satisfied entitling the judgment creditor to execute against the judgment debtors property in order to recover what is owed. There is no basis whatsoever for a stay of execution in the circumstances of the case. HH 173-15 HC 1356/15 Ref HC 1180/15 Ref HC 7669/13 The application itself is a serious abuse of process and may have been brought in this manner in order to defeat the due process of execution that had been set for Saturday 14 February 2015. This is because upon this matter being referred to me on Saturday morning, the Sheriff agreed to postpone the sale pending the determination of this application, an application which was non-existent, it having been dismissed the previous day. There is need for admonition because such abuse cannot be allowed to perpetuate in our courts. Legal practitioners have been warned repeatedly against the kind of conduct undertaken by the applicant’s counsel who, although it should have been apparent from the very beginning that the applicant had no case, she proceeded notwithstanding even when she knew that that the order dismissing the application remained effectual: See Moyo & Anor v Hasbro Properties & Anor 2010 (2) ZLR 194 (H) 197 C; Hughber Petroleum (Pvt) Ltd & Anor v Nyambuya & Anor HH78/14; Macro Plumbers (Pvt) Ltd v Sheriff of Zimbabwe N. O & Anor HH 57/15. The only way to bring legal practitioners to line is to strike at their pockets so that in future this will not be repeated. Accordingly I make the following order, that: 1. The application is hereby dismissed with costs on the scale of legal practitioner and client. 2. Such costs shall be borne by the law firm of Takawira Law Chambers de bonis propriis. 3. The law firm of Takawira Law Chambers shall not recover any fees for this application. Takawira Law Chambers, applicant’s legal practitioners Ventures & Samukange, 1st respondent’s legal practitioners