Golden Reef Mining (Pvt) Ltd & Anor v Mnyiya Consulting Engineers (HC 7834 of 2015) [2015] ZWHHC 722 (7 September 2015)

1 HH 722-15 HC 7834/15 GOLDEN REEF MINING (PRIVATE) LIMITED and FERBITT INVESTMENTS (PRIVATE) LIMITED versus MNYIYA CONSULTING ENGINEERS (PTY) LIMITED and THE SHERIFF-GWERU NO and THE SHERIFF-MT DARWIN NO HIGH COURT OF ZIMBABWE MANGOTA J HARARE, 31 August, and 7 September, 2015 Urgent Chamber Application J. Chikomwe, for the applicants L. Madhuku, for the respondents MANGOTA J: Following a default judgment which was entered in its favour under case number HC 11024/14, the first respondent issued a writ of execution against the applicants’ property. Reference is made in this regard to Annexure B which the applicants attached to their urgent chamber application. As a reaction to the default judgment which had been entered against them, the applicants filed two applications with the court. They applied for: (a) rescission of the default judgment – and (b) stay of execution of the writ which the first respondent issued. They applied that the writ be stayed pending the determination of their application for rescission. The two applications were respectively filed under case numbers HC 1921/15 and HC 1922/15. Tagu J dismissed the application for rescission of judgment on 5 August, 2015. The applicants filed an appeal with the Supreme Court against Tagu J’s judgment. They did so on 14 August, 2015 and under case number SC 472/15. Their appeal is pending before the Supreme Court. The applicants served on all the respondents their notice of appeal against the dismissal of their application for rescission of judgment. HH 722-15 HC 7834/15 Their knowledge of the pending appeal notwithstanding, the respondents made every effort to place the movable goods of the applicants under the hammer. The third respondent, the applicants alleged, stated that he would proceed to auction the applicants’ property. The applicants attached to their application Annexure F. The annexure is an advertisement which the third respondent placed in “The Herald” of Saturday 15 August, 2015. The advertisement showed that the third respondent would auction the applicants’ property on 22 August, 2015. The applicants said they became aware of the advertisement on 17 August, 2015. The advertisement, the applicants stated, prompted them to file the present urgent chamber application. They moved the court to interdict the respondents from auctioning their property on the basis of the default judgment which the court granted to the first respondent under case number HC 11024/14 until the Supreme Court has determined their appeal. They submitted that they would suffer irreparable harm if the court dismissed their application. The first respondent opposed the urgent chamber application. The second and third respondents did not appear in person or through legal representation. They were cited in their official capacities. The court remains of the view that they will abide by its decision. The first respondent which had a substantial interest in the application raised two preliminary matters. It then proceeded to address the court on the substantive aspects of the application. The in limine matters which it raised were that: (a) the court did not have jurisdiction over the matter - and (b) the certificate of urgency which supported the application was not bringing out the urgency of the application. Before I consider the merits and demerits of the application, it is pertinent for me to make some comments in regard to the temporary interdict which I imposed on the respondents on 20 August, 2015. The comments run as follows: The registrar referred the urgent chamber application to me on Thursday, 20 August 2015. I went through the application. I observed that the auction which the applicants feared would effectively dispose of their property was scheduled to take place on Saturday, 22 August 2015. I remained alive to fact that the application had to be served on all the parties who would appear and present, as well as argue, their respective cases before me. The second and third respondents were many kilometres away from Harare, the seat of the court. The second respondent’s address of service was given as number 34, Lobengula HH 722-15 HC 7834/15 Avenue, Gweru. The third respondent’s address of service was stated as Rushinga Co- operative Building, Hospital Road, Mt Darwin. It was in view of the distances which were involved that I scheduled the hearing of the urgent chamber application to take place at 1200 hours of Thursday, 24 August 2015. My intention was that all the parties should be afforded an opportunity to be served with, and notified of the date and time of the hearing of, the application. I remained alive to the fact that the auction which was slated for 22 August, 2015 would have come and gone bye at the time that I hear the application. I realised that no purpose would have been served by hearing the application when the goods which were, or are, the subject of the application would have been disposed of at the auction. I was aware that, in applying as they did, the applicants were moving the court to stop the auctioning of their goods pending their appeal against the dismissal of their application for rescission of judgment. In an effort to arrest the situation and allow the parties who were due to appear before me on Monday 24 August 2015 to ventilate their respective cases, I imposed a temporary interdict on the respondents. I restrained them from auctioning the applicants’ goods pending the hearing and determination of the present application. The temporary interdict was meant to, and it did actually, serve two important purposes namely: (a) to allow the situation which prevailed between the parties to remain undisturbed until the parties’ respective cases were properly, unhastily and impartially argued as well as determined- and (b) to protect the second and third respondents who are officers of the court from being compelled to act against the directive of the court by the first respondent which might have, out of impatience, insisted that they should proceed with execution of the writ as there was no court order which prevented them from doing so. I have, prior to this application, come across situations where a party makes an application of the present nature, the court gives directions to the registrar to set the matter down for hearing as well as to serve the application on all the parties whom the applicant(s) has or have cited. An unscrupulous legal practitioner, I have noted, has acted contrary to the directions of the court and instructed the sheriff to proceed with the execution of the writ. The legal practitioner’s argument has, under the stated circumstances, been that what the court has given was a directive which was not binding on anyone, let alone his client. The sheriff has, more often than not, been placed into a very invidious position which conflicts with the directive of the court. It was and is, therefore, important that the sheriff should HH 722-15 HC 7834/15 remain protected against acting contrary to the principles which govern and guide the courts’ practices and procedures by the issuance of such temporary orders as the one which was issued on 20 August, 2015. Such orders are and should, in my view, come into existence in the interest of the parties’ cause. They aim at the attainment of real and substantial justice. They restrain one party from taking an unfair advantage over the other party on the basis of some technicality which, on the face of it, is operating in its favour. The above stated matters suffice as an explanation for the temporary interdict which was issued on 20 August, 2015. The applicants stated that they learnt of the intended auctioning of their property on 17 August, 2015. They filed the present application with the court on 19 August, 2015. They, in that regard, complied with r 244 of the rules of this court. The first respondent stated, as its first preliminary matter in opposition to the application, that the court did not have jurisdiction over the present application. It developed its argument around that preliminary issue along the following lines. It said the urgent chamber application for stay of execution involved an assessment of the applicants’ prospects of success on appeal. It stated that the Supreme Court, and not this court, has the jurisdiction to make the assessment. It, on that basis, insisted that the applicants’ application was in the wrong forum. It submitted that the urgent chamber application should have been filed with the Supreme Court and not this court. The applicants stated to the contrary in their response to the first respondent’s above mentioned in limine matter. They stated that the court does have jurisdiction to hear and determine their application. They, in this regard, made reference to s 171 (1) of the Constitution of Zimbabwe. They said the section confers jurisdiction on the court to entertain the application. The section reads: “171 JURISDCTION OF HIGH COURT (1) The High court- (a) has original jurisdiction overall civil and criminal matters throughout Zimbabwe; (b) …….; (c) …….; and (d) ……….”[emphasis added]. The applicants submitted that the application which was before the court was a civil matter. They insisted that the application was, therefore, properly before the court. A reading of s 171 (1) of the constitution shows in a clear and unambiguous manner that the court has the necessary jurisdiction to hear as well as determine the application. HH 722-15 HC 7834/15 The first respondent’s assertions on the issue of the court lacking the jurisdiction to hear the application was, to a large extent, misplaced. That is so because, while it is accepted that an application for stay of execution pending the hearing of an appeal does involve an assessment of the applicant’s prospects of success, the court’s ability to make the assessment is not excluded. At any rate, the assessment is not the only factor which determines the propriety or otherwise of the application. Other matters come into play. Amongst such matters are the interests of justice as between the parties. An application for stay of execution does, by its nature, fall into the area of equity reliefs. Where, therefore, equity demands that it be granted in the interests of justice, the court hearing the application is, as a general principle, enjoined to consider and, where appropriate, grant it. The applicants referred the court to s 176 of the Constitution of Zimbabwe. They argued, and correctly so, that the section confers power on the court to regulate its processes as well as to develop the common law or the customary law taking into account the interests of justice. The position which the applicants stated is in sinc with the remarks of Gubbay CJ who, in Mupini v Makoni, 1993(1) ZLR 80(s) said: “Execution of a judgment is a process of the court and the court has an inherent power to control its own processes and procedures, subject to such rules as are in force. In the exercise of a wide discretion, the court may set aside or suspend a writ of execution or cancel the grant of a provisional stay. It will act where real and substantial justice so demands. The onus rests on the party seeking a stay of execution to satisfy the court that special circumstances exist. Such special circumstance can be readily found where the judgment is for ejectment or the transfer of property, because the carrying into operation of the judgment could make restitution of the original position difficult”. The parties are, in this regard, referred to the following case authorities where the cited principle was also enunciated: Cohen v Cohen 1979 (1) ZLR 184 (G), Santam Ins Co Ltd v Paget, 1981 (1) ZLR 132 (S) and Chibanda v King 1983 (1) ZLR 116 (H) wherein Dumbutshena AJP stated that the applicant: “must satisfy the court that he may suffer irremediable harm or prejudice if execution is granted.” The writ which the first respondent seeks to execute is a process of this court. It was issued by the first respondent following the default judgment which the court entered in its favour under case number HC 11024/14. On the strength of s 176 of the constitution of Zimbabwe as read with Gubbay CJ’s dictum in Mupini v Makoni (supra), therefore, the court HH 722-15 HC 7834/15 has every right and every authority to control that writ in the interests of the attainment of real and substantial justice. The first respondent’s second line of argument in opposition to the application was that, whilst the principle which states that an appeal suspends execution of a judgment appealed against was or is a correct reflection of the law, the intended appeal was aimed at the dismissal of the application for rescission of judgment and not at the default judgment itself. It submitted that the default judgment was not disturbed by the appeal which the applicants filed with the Supreme Court. It said the default judgment remained intact. It stated that what was suspended by the appeal which the applicants noted was Tagu J’s judgment. It, therefore, insisted that execution should proceed. The applicants appeared to have missed the first respondent’s argument on this matter. They did not address the court in respect of it. They remained disturbingly mute. It requires little effort to observe that the dismissal of the application for rescission terminated the order for stay of execution which the court granted to the applicants on 21 April, 2015 under case number HC 1922/15. As of 5 August, 2015, therefore, the order of Mtshiya J [case number HC 11024/14] once again became executable. The appeal which the applicants noted does have a substantial bearing on the default judgment which the court entered in favour of the first respondent. Where the Supreme Court dismisses the appeal, the default judgment remains undisturbed and, therefore, enforceable. However, where the Supreme Court upholds the appeal, the default judgment cannot be enforced as it would have been rescinded by an order of that court. The parties would, in that regard, have reverted to their status quo ante which prevailed before the default judgment was granted to the first respondent. There is no doubt that the appeal is inter-linked to both the dismissal of the application for rescission and the default judgment itself. The Supreme Court’s determination of the appeal is a sine qua non of the enforceability or otherwise of the default judgment. It follows, from the foregoing, that the applicants’ appeal to the Supreme Court suspends both the dismissal of the application for rescission and the default judgment which the court entered in favour of the first respondent. Whether or not the court is functus officio in regard to the present application does, by and large, depend on the circumstances of this case. The first respondent stated that, in dismissing the application for rescission of default judgement, the court pronounced itself on HH 722-15 HC 7834/15 the point that the applicants were in wilful default. It submitted that the court cannot, under the circumstances, re-visit the same matter. The applicants argued to the contrary. They submitted that the court was not functus officio. They, in that regard, referred the court to the case of Nasasa Cellular (Pvt) Ltd v South African Post Office Limited [57471/07 (2010) Zagpphc] 90 wherein the requirements of the common law term functus officio were articulated as being: (i) (ii) the same parties (idem actor) the same cause of action (eadem petendi causa)- and (iii) the same thing (relief) demanded (eadem res). It is evident, from the foregoing, that whilst the parties to the present application are the same, the cause of action is not the same. Nor is the relief which the applicants are seeking in casu the same as the relief which they sought when they appeared before Tagu J. When the parties appeared before Tagu J, the cause of action was the default judgment. The relief which the applicants moved the court to consider in their favour was a rescission of that judgment. The application for stay of execution pending appeal is a new matter. That matter was not before Tagu J when he made a determination of the applicants’ application for rescission of default judgment. I, in this regard, associate myself fully with Mafusire J who, when dealing with the same parties and on an application of a similar nature under case number HC 6407/15, aptly defined the term functus officio as follows: “In the context of legal proceedings, to be functus officio is to lack legal competence to adjudicate on the proceedings because one would have disposed of them previously. To be functus officio is to have discharged one’s office”. The court is satisfied, on the basis of the foregoing, that it is not functus officio in so far as the application which is before it is concerned. The first respondent’s submission which was to the effect that it was fuctus officio was, therefore, misplaced. The first respondent’s second in limine matter related to the certificate of urgency. It stated that the legal practitioner who prepared the certificate appeared to have entertained the view that the applicants were confident that the Supreme Court would rule in their favour. It submitted that the legal practitioner did not appear to share the applicants’ confidence in the appeal which they filed with the Supreme Court. It criticised the legal practitioner for having made what it termed a bold assertion which was to the effect that the applicants would suffer irreparable harm. It said the legal practitioner did not profer any explanation as to why the HH 722-15 HC 7834/15 applicants could not recover against it when it invested the sum which is the subject of the proceedings in the main case. The first respondent did not say the certificate was detective. All it said was that the author of the certificate appeared to have based his opinion of the urgency or otherwise of the application on the confidence which the applicants held in the appeal which they noted. It goes without saying that a legal practitioner who prepares a certificate of urgency bases his or her opinion on the contents of the applicant(s) founding affidavit. He or she does not base his opinion of the matter on nothing. Whether or not he expresses his independent view or he/she bases his view on the strength of the contents of the affidavit does not, in the court’s view, show the certificate to be defective. Preparation of the certificate is a matter of individual approach and style. What is important, at the end of the day, is that the certificate, as prepared, must bring out to the fore and to the satisfaction of the court, that the application is urgent. The legal practitioner who prepared the certificate did not make bold and unsubstantiated allegations. He did not state that the applicants would suffer irreparable harm if execution was allowed to proceed and left the matter at that. He stated that the applicants’ business operations would be adversely affected. He stated, further, that seeking any redress from the first respondent which is a foreign company after execution had occurred would not only be very difficult, but would also be a costly, exercise. It is not in dispute that the first respondent is a foreign company. The applicants stated in para 7 of their affidavit that the first respondent was registered in terms of the laws of South Africa. The first respondent did not controvert the applicants’ assertions on that matter. All it said was that the applicants were able to recover from it if the Supreme Court ruled in their favour when execution has already taken place. It did not state how they would do so if it packed up and left its operations in this country. The first respondent’s second preliminary matter could not hold. It raised it as a matter of course. It was, in fact, devoid of merit. The relief which the applicants moved the court to grant to them is based on principles of equity. Real and substantial justice must not only be done. It must also be seen to be done. Not granting the applicants the relief which they are seeking would, in the view which the court holds of the matter, cause them to suffer irreparable harm. They stated, and the court agrees with them, that if their application is dismissed the harm which they would suffer would be of some serious magnitude. HH 722-15 HC 7834/15 The balance of convenience, in the court’s view, favours the position that execution be stayed until the applicants’ appeal has been heard and determined. The appeal which they noted, it has been stated, suspends Tagu J’s judgment as well as the default judgment which was entered in the first respondent’s favour. The parties are, in this regard, referred to the wise words of Corbett JA who in South Cape Corporation v Engineering Management Services 1977 (3) SA 534 (A) made a definite pronouncement of the law on this aspect of the matter when he remarked as follows: “It is today the accepted common law rule of practice in our courts that generally the execution of a judgment is automatically suspended upon the noting of an appeal, with result that, pending the appeal the judgment cannot be carried out and no effect can be given thereto, except with the leave of court which granted the judgment. To obtain such leave, the party in whose favour the judgment was given must make a special application. The purpose of this rule as to the suspension of a judgment on the noting of an appeal is to prevent irreparable damage from being done to the intending appellant ...” Whilst the above cited words emanated from a court which falls outside our jurisdiction, the persuasive value of Corbett JA’s dictum cannot be taken to be without weight. It, in the court’s view, applies with equal force and weight to the circumstances of the present case. It requires little emphasis to state that a positive outcome of the applicants’ appeal would be moot and meaningless if it is delivered when their property has been auctioned. They averred, and in the court’s view correctly so, that seeking any redress from the first respondent which is a foreign company after the sale in execution has occurred would serve no meaningful purpose. There is, therefore, no doubt that a refusal of the application would visit them with serious injustice. Equity demands that they be allowed to have their day in the Supreme Court. The court’s sworn duty is to do justice and not injustice to parties who appear before it. It, to the stated extent, exhorts the parties not to take an unfair advantage over each other as that remains a recipe for a multiplicity of litigation. Parties must, at all times, respect each other’s positions and prosecute and/or defend their cases in terms of laid down principles of court’s practices and procedures. They should not be allowed to rush each other into flouting processes of the court or court orders. They must have the necessary patience to exhaust the procedures of court and, at all times, allow due process to take place before they proceed to assert what they say rightly and lawfully belongs to them. The court has considered all the circumstances of this application. It is satisfied that the applicants proved their case on a balance of probabilities. In the premise, the interim order is granted as prayed. HH 722-15 HC 7834/15 Thompson Stevenson & Associates, applicants’ legal practitioners Mundia and Mudhara 1st respondent’s legal practitioners