Ramwide Inv. (Pvt) Ltd v Rondebuild Zimbabwe (Pvt Ltd. & Ors (HC 7927 of 2015) [2015] ZWHHC 757 (23 September 2015)

1 HH 757-15 HC 7927/15 RAMWIDE INVESTMENTS (PRIVATE) LIMITED versus RONDEBUILD ZIMBABWE (PRIVATE) LIMITED and MESSENGER OF COURT MATEBELELAND NORTH PROVINCE and WILLIAM MAKUSHU HIGH COURT OF ZIMBABWE DUBE J HARARE, 28 August, 2 & 8, 23 September 2015 Urgent Application Adv. T. Zhuwara with B. Mataruka, for the applicant T. Moyo with J Bamu, for the 1st respondent Ms R Muchenjefor the 2nd respondent Ms R Mutindindi for the 3rd respondent DUBE J: In this urgent application, the applicant seeks an order stopping the execution of a writ issued at the Magistrates Court under MC 259/14 pending a review of the decision of the court dismissing the applicant’s exparte application for stay of execution of the sale of the applicant’s assets. The applicant seeks an order on the following terms: “INTERIM RELIEF SOUGHT 1. The sale in execution of the applicant’s goods under case No. MC 259/14 be and is hereby stayed pending the hearing of the applicant’s application for review 2. The 2nd respondent be and is hereby interdicted from removing the applicant’s assets and delivering same to the purchasers. 3. The 2nd respondent be and is hereby authorised to keep the Applicant’s attached assets in his possession pending the hearing of the applicant’s application for review. 4. The 2nd respondent be and is hereby ordered to conduct a valuation of the applicant’s attached assets within 48 hours of this order and submit such valuation to the Registrar of this court to form part of the record. HH 757-15 HC 7927/15 5. The 2nd respondent be and is hereby temporarily interdicted from attaching any of the applicant’s assets pursuant to the order issued under MC 259/14 until the determination of the application for review filed in HC 7926/15. 6. The 1st respondent be and is hereby ordered to advise the 2nd respondent of the correct amount that it is owned by the applicant forthwith”. The brief background to this application is as follows. The applicant is a company in the construction and civil works business. The first respondent obtained an order against the applicant and caused the sale of the applicant’s assets through a writ of execution issued in its favour. The second respondent is the Messenger of Court for Matebeleland North Province. He was involved in the execution of the applicant’s property. The third respondent was a participant at the sale and bought a bulldozer at the auction. He is the first respondent’s technical manager on a consultancy basis. The applicant avers that its vehicles, plant and machinery was sold by the second respondent at an auction and is currently being transferred to third parties. The third parties were at the time of the filing of this application unknown to the applicant save for the third respondent. The applicant avers that the sale of the applicant’s property on 19 August 2015 was irregular in that the amount sought to be recovered by the second respondent was incorrect as it was a lot more than what was owed by the applicant and hence the applicant challenges the amount claimed in the writ. The applicant states that the writ of execution issued on 20 March 2015 claimed payment of the sum of $126112-59 yet by this time,the capital debt had been reduced to $115 112-83 and that this amount was subsequently reduced to $98 712-83. The applicant states that it got to know of the existence of the writ on 14 July 2015 when it was served with the writ. Since then, the parties have been engaged in negotiations in a bid to settle the matter. It was surprised on 9 August 2015 when it saw an advert in the newspaper for the sale of the assets and that is when it became apparent that the negotiations had failed. The applicant wrote to the first respondent on 14 August 2015 requesting that the first respondent advises the second respondent of the correct amount outstanding. The first respondent refused to heed the call and instructed the second respondent to proceed with the sale to recover an amount that was not due. The sale took place on19 August 2015. The applicant filed this application on 22 August 2015. The applicant avers that the sale is tainted with illegality. It submitted that the applicant stands to be severely prejudiced if the sale is allowed to continue on a writ which HH 757-15 HC 7927/15 represents an incorrect amount. Further that the second respondent sold the applicant’s plant and machinery and recovered $100 200-00 and hence some of the assets were unnecessarily sold in so far as it sought to recover amounts that were not due. On 20 August 2015, the second respondent advised the applicant to immediately pay the balance of the debt in the sum of $26 212-73 failing which he would proceed to attach and sell more of the applicant’s assets. The applicant contends that the second respondent cannot be allowed to perpetuate an illegality in circumstances where all parties are fully aware that the first respondent seeks to recover more than what is due to it. The applicant argues that the conduct of the first respondent in refusing to amend the writ is not only illegal but further severely prejudicial to the applicant who has no other remedy to protect its rights. The applicant also challenges the sale on the basis that the second respondent failed to comply with the peremptory provisions of the rules. It was alleged that the second respondent merely attached the goods and disposed of the goods without carrying out a proper valuation of the goods and that the law specifically requires valuation of the goods to be sold to be carried out in order to avoid what has happened herein. Thus, goods being sold for an unreasonably low amount and more goods than necessary being attached and sold. The applicant avers that it is likely to suffer prejudice if the sale is allowed to proceed and if the buyers obtain the machinery purchased and the sale is confirmed by the second respondent. The court was told that the applicant employs 54 workers and that they stand to lose their employment if the first respondent persists with the unlawful conduct and its business grounds to a halt. The first respondent defends the application. The respondent challenged the urgency of the matter. It was submitted on behalf of the first respondent that the applicant has been aware of the writ of execution since 14 July 2014 and became aware of the sale in execution on 9 August 2015 when it saw the advertisement of the sale in execution. The first respondent submitted that the need to act arose then. The first respondent submitted that the applicant has been aware that that the respondent was not interested in its various proposals for settlement and ought to have approached the court for redress earlier. Further, that nothing was done to avert the sale. The urgency of the matter has already fallen away since the sale has gone through and a stay of execution is no longer appropriate. The auction sale went ahead and the respective bidders paid for and collected their machinery. The mischief that this application seeks to avert has already materialised. This court cannot reverse the sale 4 days after the event and a sale in execution that is fully consummated. HH 757-15 HC 7927/15 On the merits, the first respondent challenges the relief sought on the basis that it is incompetent in that the sale has already gone through and there is nothing to stay. It was submitted on behalf of the first respondent that there is confusion over the causa for the present application. The respondent submitted that the applicant in its founding affidavit sets out the basis of the present application as seeking to stay the ongoing writ issued by the Magistrates Court pending review of the decision of the Magistrates Court dismissing the applicant’s exparte application for stay of the sale of the assets. That whilst the decision that is in issue is that of Magistrate Pabwe, the application does not mention what the decision of the magistrate was. The first respondent contends that the causa was abandoned with the applicant seeking a review of the second respondent’s actions and that it is unclear what application is before the court. The first respondent acknowledges that the amount of $98 712-00 is what is owed to it but that more than that amount was required to be recovered as the auctioneer and the second respondent are entitled to recover their costs from the sale in execution as well as interest in terms of the court order and writ of execution. The amount recovered at the sale falls short of what is due. It submitted that the third respondent purchased the machinery and has every right to participate at the sale. The second respondent filed an affidavit to explain his conduct during the attachment and the subsequent sale. He will abide by the decision of the court. He served a warrant of execution on the applicant on 14 July 2015. He took an inventory of the property that was pointed out to him. He valued it and attached what he deemed would be sufficient to satisfy the warrant. On 28 July he served a notice of the sale on the applicant and placed an advert of the sale in the paper. He sold the property on the 19th of August and gave the machinery sold at the auction to the purchasers. The third respondent submitted as follows. He bought the property in his own capacity after seeing the advert in the paper. He is not employed by the first respondent but is a consultant for the first respondent. He bought a bulldozer at the sale and paid for it. He has since taken possession of the machinery. He stands to be prejudiced if the sale is reversed as he has parted with his money. On the issue regarding the urgency of the matter, he submitted that the applicant has been aware of the imminence of the sale in execution since 9 August 2015 and he ought to have made an application staying the sale then. The applicant chose to wait for the day of reckoning. The urgency of the matter is self-created. HH 757-15 HC 7927/15 A litigant who wishes to have his matter dealt with on an urgent basis is required to show that the matter cannot wait in the sense that if the matter is not dealt with immediately he stands to suffer irreparable harm. He must also show by his conduct that he treated the matter as urgent when he became aware of the harm or danger that was imminent. See Kuwarega v Registrar General and Anor 1998 (1) ZLR 188 for this approach. The writ of execution which is the subject of this execution was served on applicant on 14 July 2015. The applicant chose to engage the first respondent and reportedly entered into negotiations with it in a bid to settle the matter. On 28 July the applicant was served with a notice of the sale by the second respondent. It was apparent at this stage that the first respondent was determined on executing the order issued in its favour. The applicant did not, despite the knowledge that the first respondent was about to execute the order, approach the courts for redress. It avers that it was still engaging the first respondent. The period taken by the applicant in negotiating was unjustifiably long. The applicant suggests that the negotiations took place between 14 July to about 9 August 2015 when the advertisement of the sale appeared in the paper. That is a period in excess of three weeks. It ought to have dawned on the applicant after the notice of the sale was served and especially after an advert of the sale of its property was published in the papers that the other side was desirous of proceeding with the sale. Instead, the applicant continued to try and engage the other side. The applicant ought at that stage to have approached the courts for redress. After the advert of 9 August 2015, the applicant took 5 days to write to the respondent’s legal practitioners. It only did so on 14 August 2015 when it requested the correct outstanding amount. No response came from the first respondent and the sale proceeded. There is no explanation regarding the applicant’s failure to immediately seek any redress from the courts after it failed to get a response from the first respondent. The events after the advert do not disclose that the applicant treated the matter with the urgency deserved. The applicant was negligent in this respect. Although the applicant sought to get redress by launching an exparte application seeking to stay the sale on 19 August with the Magistrates Court, it was too late. The exparte application was dismissed. That application was not well timed as the sale went through that same day. The applicant still did not assert itself timeously. The need to act arose when the applicant became aware that the applicant was desirous of executing to recover what was owed. The moment it became aware of the intended sale, that is after the notice of the sale, the applicant was required to assert itself and HH 757-15 HC 7927/15 take legal action to stop the imminent sale. The applicant foolishly chose to try and engage the first respondent instead of taking the required action. The applicant sat on its laurels and thereby failed to assert its rights. The applicant ought to have approached the courts at this stage. The concept of the need to act entails the applicant taking steps to avert the harm or danger that is imminent and in this case the sale that was imminent. The need to act entails approaching the courts for redress. A litigant faced with an execution that is imminent is expected to assert itself and approach the court timeously to get redress. Where he fails to do so and chooses instead to negotiate with the other party without approaching the courts, that litigant does so at its own peril. This is so especially where the negotiations drag on and it is apparent that the other party is unwilling to negotiate and the negotiations do not ultimately bear the desired fruit. Such period taken in negotiating is not taken into account and does not suffice as appropriate action taken to address the danger posed or avert the sale. The applicant asserts that it was surprised to see an advert regarding the sale in the Chronicle. There is proof that it was served with the notice of the sale on 28 July 2015. The applicant did not allude to this notice in its application. The applicant is not being candid with the court. Litigants who come before the courts and hide information in the hope that they will succeed in hiding information and hoodwink the courts only have themselves to blame when they get penalised for such conduct. This sort of conduct deserves to be censured. It deserves to be penalised by an order of costs on a higher scale. The applicant only lodged this application on 22 August, well after the sale. The applicant waited until the day of reckoning to take action. By the time the application was lodged, the sale had taken place four days before on 19th August 2015. The day of reckoning came and passed. The horse has already bolted out of the stables. The sale has taken place and purchasers have all taken possession of their new possessions. There are no attached goods in the possession of the second respondent. The sale has been confirmed. The applicant must live with the consequences of its inaction. This is not the sort of urgency anticipated by the rules. I view that the urgency of this matter is self-created. The certificate of urgency filed in support of this application does not explain the delays encountered in bringing this application. The certificate of urgency simply outlines the reasons why the applicant is likely to suffer irreparable harm. It makes no effort to address and outline the conduct of the applicant when it became aware of the execution that was imminent. A certificate of urgency which does not address the issue regarding whether an HH 757-15 HC 7927/15 applicant treated the matter as urgent and fails to address the delays existent on the papers is no adequate certificate of urgency and cannot be said to disclose the urgency of the matter. The only way in which a certificate of urgency can disclose if the applicant treated the matter with urgency is to outline the conduct and action taken when a litigant becomes aware of the danger that is imminent. The certificate of urgency does not disclose urgency. The harm sought to be avoided stands in money and can be cured by damages. The fact that the applicant has employees that will lose their employment should this company ground to a halt is a moral consideration. I am not satisfied that the applicant has shown that this matter deserves to jump the queue and be dealt with on urgent basis. The matter is not urgent, and is struck of the roll. The applicant is to bear the respondents’ costs on an Attorney Client Scale. Gill Godlonton & Gerrans, applicant’s legal practitioners Tamula Moyo and Partners, 1st respondent’s legal practitioners Nenjy/Nyamapfene Law Practice, 2nd respondent’s legal practitioners