Songore v Nene and 2 Others (239 of 2023) [2023] ZWBHC 3 (17 November 2023)

1 HB 239/23 HC 1340/23 X REF HC 1299/23; UCA 82/23 KERINA NAOME SONGORE Versus ZEDIAS NENE ADDITIONAL SHERIFF OF THE HIGH COURT OF ZIMBABWE THE REGISTRAR OF THE HIGH COURT OF ZIMBABWE IN THE HIGH COURT OF ZIMBABWE NDLOVU J BULAWAYO 6 JULY & 17 NOVEMBER 2023 Application for a Stay of Execution. Mr. V. Mkwacharia for the Applicant. Mr. I. R. Mafirakureva with B. C. Dube for the 1st Respondent No Appearance for the 2nd and 3rd Respondents. NDLOVU J: This is an urgent chamber application for a stay of execution of a default judgment order granted under HC157/23 by this court on the 4th of May 2023. FACTS The Applicant and the 1st Respondent are engaged in a mining dispute. The default judgment order was served on the Applicant on the 13 of June 2023. She contends that, that is the first day and time she first knew of the matter under HC157/23. As soon as she became aware of the Default Judgment order she mounted an application for the rescission of that judgment under case number HC 1299/23 in this court. HB 239/23 HC 1340/23 X REF HC 1299/23; UCA 82/23 1st RESPONDENT OPPOSITION The 1st Respondent took some preliminary points in this matter and they are; - Urgency - Material non-disclosure - Non-existence of the Application for rescission for failure to comply with Rules 15(8) & (9) of the Rules of this court in HC1299/23. THE HEARING At the hearing, Mr. Mafirakureva somehow went soft on urgency and material non-disclosure but was very strong on the non-compliance with Rules 15 (8) & (9), arguing that there is no valid application before me. Rule 15 (8) provides as follows:- “At any time of filing an …….application……a party shall deposit with the Sheriff an amount determined by the Sheriff for costs of service of all notices of set down.” Rule 15 (9) reads as follows:- “A copy of the receipt of such deposit shall be furnished to the registrar by the party within (5) days of filing the ….application…….failing which the……application…… shall be regarded as abandoned and, in the event of an ……application shall be deemed to have been dismissed.” [my emphasis] It is common cause that the application for rescission matter HC 1299/23 did not comply with the peremptory provisions of Rules 15 (8) & (9), after it was filed on 23 June 2023. The net effect of that is the reality that at the time of hearing this application for stay of execution there was no application for rescission of the default judgment order before the court because, in terms of Rule 15 (9), that application for the rescission of the default judgment order was by operation of the law deemed to have been dismissed, meaning that it is not before the court. HB 239/23 HC 1340/23 X REF HC 1299/23; UCA 82/23 Farai Zizhou v The Sheriff of Zimbabwe & Others HH 201/23 The above finding is decisive for this application. There being no application for the rescission of the default judgment order, which found this application for a stay of execution, ordering a stay of execution in the circumstances would be akin to giving an order to the 1st respondent with the right hand and taking it away with the left. The attempt by the applicant to move this court to condone her omissions in HC 1299/23 is without basis or merit. There is nothing to condone in the first place. Case number HC 1299/23 is the one afflicted by procedural deficiencies and is not before me. For the avoidance of doubt, the point in limine that this matter is not urgent is without merit. Generally, a stay of execution of a judgment is a matter of inherent urgency as the other party will be legitimately armed to execute and most of the time to the detriment of the applying party. The argument that the matter is not urgent is therefore dismissed. The same goes for the purported non-disclosure by the Applicant of the PMD’s order against the Applicant. That point is a matter for the merits and it is equally dismissed for want of merit. DISPOSITION This application is improperly before this court. ORDER The application for the stay of execution of the Default Judgment Order in HC157/23 be and is hereby struck off the roll with costs on an ordinary scale. T. H. Chitapi & Associates Legal Practioners, applicant’s legal practitioners Messrs. Moyo and Nyoni Legal Practitioners, 1st respondent’s legal practitioners.