Mupfumira v Delta Beverages (Pvt) Ltd & Anor (Ref HC 5914 of 2012) [2015] ZWHHC 156 (17 February 2015)

1 HH 156-15 HC 1126/15 Ref HC 5914/12 MICHAEL TIGERE MUPFUMIRA versus DELTA BERVERAGES (PVT) LTD and PASSION AND DREAMS (PVT) LTD HIGH COURT OF ZIMBABWE TAGU J HARARE, 13 and 18 February 2015 Urgent Chamber Application B Ngwenya, for applicant Z T Zvobgo, for first respondent No appearance, for second respondent TAGU J: The applicant has approached this court on an Urgent basis seeking the following relief- “TERMS OF THE FINAL ORDER 1. That you show cause to the Honourable Court, if any, why a final order should not be granted in the following terms: (a) That the use of the Applicant’s title deeds by the 1st Respondent in transacting with the 2nd Respondent without the consent of the Applicant be and is hereby declared unlawful. (b) That the Applicant’s immovable property being stand 2169 Mabelreign, Township measuring 981 square metres be and is hereby released from execution. Interim relief sought Pending determination of this matter, the Applicant is granted the following relief: (a) That the order to stay execution of Case No. HC 5914/12 be and hereby granted pending finalization of rescission of judgment in case HC 1122/15. (b) Costs on a higher scale be borne by the 1st and 2nd Respondent jointly and severally. Service of the provisional order HH 156-15 HC 1126/15 Ref HC 5914/12 This provisional order may be served on the Respondents or their legal practitioners by an employee of the Applicant’s legal practitioners or the Deputy Sheriff.” At the hearing of the application Mr Z . T. Zvobgo for the first respondent raised two points in limine. The points were that- (a) The applicant’s matter is not urgent; (b) The applicant’s certificate of urgency is materially defective. I will deal with the points one by one. Mr Zvobgo submitted that the applicant avoided to explain why he did not have sight of the first respondent’s Summons instituted in the action proceedings under case HC 5914/12. According to Mr Zvobgo the Summons as well as the notice of attachment of the applicant’s property were served at the same address, which is the applicant’s immovable property. No explanation was proffered from the applicant’s tenants why they did not bring the Summons to the attention of the applicant. More importantly, the applicant’s son one Milton Mupfumira has been aware of the existence of the court order in case HC 5914/12 since the 13th of October 2014 and has been making efforts to come up with a payment plan to pay off the amount owed to the first respondent. In fact the reason why it was taking him long to come up with the payment plan was because he was consulting with the rest of his family, the applicant included. Reference was made to annexure 3, 4, 5 and 6. It was Mr Zvobgo’s contention that the applicant cannot hide behind, and blame his tenants for not bring the court processes to his attention. Further to that, Mr ZVOBGO referred to annexures 7, 8, 9 and 10. These referred to a string of email exchanges between the said Milton Mupfumira and the first respondent’s legal practitioners. For avoidance of doubt I will quote the relevant annextures. Annexures 1 and 2 are the Deputy Sheriff’s returns showing that the processes were being served at the applicant’s residence since the 14th of June 2012. The parties involved in those processes were Delta Beverages (Pvt) Ltd), (the plaintiff), Passion and Dreams (Pvt) Ltd (1st defendant) and Michael Tigere Mupfumira (2nd defendant). Applicant’s explanation is that he was away in Mhondoro. Annexure 3 is an email dated 17 October 2014 sent by applicant’s son Milton Mupfumira to first respondent’s legal practitioners. It read as follows- HH 156-15 HC 1126/15 Ref HC 5914/12 “Re: Delta Beverages v Passion and Dreams P/L Michael Tigere Mupfumira Goodmorning Sir. Thank you for your email received and noted. I am currently based in South Africa and was wondering if I could submit a proposal here via email. I would also appreciate the opportunity to call you if you could advise when you are available. Kind regards M T Mupfumira” When Mr M T Mupfumira sent the above email he was responding to an email dated 13th October 2014, sent by the first respondent’s legal practitioners which was couched in the following words – “Dear Mr Mupfumira We refer to the above matter. We attach hereto a copy of the court order which we obtained against both yourself and Passion & Dreams (Pvt) Ltd. You will note that your immovable property was declared specially executable. Unless we start receiving payments from you towards liquidating the debt of US$ 147,952.00 together with interest and our legal costs, we shall be proceeding to instruct the Sheriff to sell your immovable property. Kindly let us hear from you in the next seven business days failing which we shall be proceeding with execution. Yours faithfully Zvobgo Tawanda Zvobgo Associate Trade & Investment Unit DUBE, MANIKAI & HWACHA” Then on 28 November 2014 Milton Mupfumira sent another email to the first respondent’s lawyers worded as follows- “Re: Delta Beverages v Passion and Dreams P/L Michael Tigere Mupfumira Dear Sir. I apologise for the late response. I have been away. Please may we contact you by Tuesday afternoon. There is a lot involved here therefore it’s a family decision. Again I apologise and look forward to communicating before end of day Tuesday. Kind regards Milton” (underlining is mine). From the above correspondence there is no basis for the applicant to blame the tenants. His own son was aware of the court processes. It has not been explained why the son did not bring all this to the father since October 2014. Even if that is not enough, annexure 8 is a General Power Of Attorney purportedly signed by the applicant himself on 13 August 2011 authorising one Kefasi Machaya to use the applicant’s Title Deeds for the immovable property as a security for a debt owed to the first respondent. This power of attorney is HH 156-15 HC 1126/15 Ref HC 5914/12 buttressed by an affidavit deposed to by the applicant confirming his authority to Kefasi Machaya to use the Title Deeds. Attached to the affidavit is annexure 10, a copy of applicant’s driver’s licence. In my view, it is not correct to say the applicant only became aware of court processes on 31 January 2014. The respondent’s first point in limine has merits. In coming to this decision I am guided by what Chatikobo J said in the case of Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 at 193 where he said- “There is an allied problem of practitioners who are in the habit of certifying that a case is urgent when it is not one of urgency………. What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent, if at the time the need to act arrives, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules. It necessarily follows that the certificate of urgency or the supporting affidavit must always contain an explanation of the non-timeous action if there has been a delay.” The property in question belongs to the applicant. He apparently authorised his relatives to use his Title Deeds. The son was aware of the court processes. He clearly stated that the decision as far as the property in question was concerned was a family issue. Since the 13th October 2014 they were aware of the court order and the fact that the property in question had been declared executable. They did nothing until the day of reckoning arrived. On the basis of the above I decline to hear the matter on an urgent basis. Even if I may be wrong in declaring this matter not urgent, the respondent’s submissions in respect of the second point in limine, appears to me to be valid. The certificate of urgency was signed by one Rosewitter Madembo of Messrs Govere Law Chambers. The same Rosewitter Madembo commissioned the applicant’s founding affidavit in an application for rescission of default judgment attached as annexure D to the application. She therefore had an interest in the matter. I agree with the submissions made by Mr ZVOBGO. The position of the law was spelt out in the cases of Chifamba v Edgars Stores Limited and the Deputy Sheriff, Chinhoyi HC 27/05 and Mawere v Minister of Mines and Mining Development HH 87/14. In the Mawere case supra, Mangota J said- “the certificate of urgency was not only totally, but was incurably, defective.” I share the same sentiments. The certificate in the present application is incurably defective. HH 156-15 HC 1126/15 Ref HC 5914/12 Wherefore, I decline to hear this application on the basis that- (a) The application is not urgent (b) The certificate of urgency is incurably defective. Chinawa Law Chambers, applicant’s legal practitioners Dube, Manikai & Hwacha, 1st respondent’s legal practitioners