Muringai v Wisrod Inv. (Pvt) Ltd. & Ors (HC 3258 of 2017; HH 268 of 2017; Ref HC 6557 of 2015) [2017] ZWHHC 268 (3 May 2017)

1 HH 268-17 HC 3258/17 Ref HC 6557/15 VERONICA NYONI MURINGAI versus WISROD INVESTMENTS (PRIVATE) LIMITED and REGISTRAR OF DEEDS N. O. and SHERIFF OF ZIMBABWE and REASON MATARUSE HIGH COURT OF ZIMBABWE TAGU J HARARE, 21 April and 3 May 2017 URGENT CHAMBER APPLICATION T Dzvetero, for the applicant W. R. Chingeya, for 1st the respondent Charles Kamba in person for 4th respondent TAGU J: This is an application brought on a certificate of urgency seeking the stay of the execution (auction of property) of an order granted by this court under case number HC 6557/15 pending the determination of an application for condonation for late filing of an application for rescission of default judgment and an application for rescission of default judgment filed simultaneously in this Honourable Court. The brief background of the matter is that the applicant entered into a loan agreement for the capital sum of US$65 000.00 (Sixty Five Thousand Dollars) on 13 March 2015. The tenure of the loan was 30 days as per the copy of the agreement filed and marked Annexure “A”. The capital sum together with interest amounted to US$71 500.00 (Seventy One Thousand Five Hundred Dollars. The loan was secured by the applicant’s immovable property, namely Flat Number 801 Warwick Flats, called Stand number 1837 Salisbury as per the copy of Deed of transfer Annexure “B”. Having failed to repay the loan in terms of the agreement the applicant was sued for the recovery of the same culminating in Deed of settlement and a consent order being executed HH 268-17 HC 3258/17 Ref HC 6557/15 between the applicant’s erstwhile legal practitioners Chadyiwa & Associates and the first respondent’s erstwhile legal practitioners J, Mambara & Partners on 3 July 2015. In December 2015 the first respondent obtained a writ of execution and the applicant’s property was then attached. After the attachment of the applicant’s property in December 2015 the applicant repaid a total of US$65 000.00 to the first respondent. Note should be taken of the fact that the repayment proved tough at times resulting in the applicant’s property being reattached in February 2016. What jolted the applicant into action now is the reattachment of her property once more on the 5th of April 2017 allegedly for interest on top of the US$$71 500.00. The applicant is now seeking to disown the Deed of Settlement and the consent order executed by his erstwhile legal practitioners in 2015 on the basis that the Deed of settlement and the consent order were executed without her authority because the first respondent did not make the said sum of US$71 500.00 available to her and that the attached property belonged to a third party one Reason Mataruse who is represented by Mr Charles Kamba through a power of attorney. At the hearing of the matter Mr Charles Kamba for the fourth respondent appeared in person and indicated that he had nothing to say. Mrs Chingeya for the first respondent took two points in limine. The first preliminary point raised by the counsel for the first respondent was that the applicant’s founding application was not properly placed before the Honourable Court because it sought rescission of a default judgment which is non-existent. According to her the applicant consented to judgment as per the attached deed of settlement and consent to judgment marked as “A’, “B” and “C” respectively. She therefore said to apply for rescission of a default judgment is mischievous and the whole application had no legal basis as it is based on wrong facts. The second point was that the matter is not urgent. She said the judgment was granted in 2015 and thereafter an execution was done and the applicant paid out part of the amount owed. The execution subject to this application is a second one and the applicant should have approached the court long time ago if she had a case against the judgment. It therefore makes no sense to rush to court to stay the execution of a judgment that she consented to. She hastened to point out that the current applicant’s legal practitioner as a reasonably qualified lawyer should have pointed this fact to his client after receiving these instructions before rushing to make an urgent chamber application without acquaintance of the subject matter. HH 268-17 HC 3258/17 Ref HC 6557/15 Hence she prayed that on this basis alone the application should fail without dealing with the merits of the application. Having heard the parties I am inclined to accept the preliminary points raised by the counsel for the first respondent. While counsel for the applicant argued that the applicant relied on dubious instructions she obtained from her former legal practitioner, it is clear that it is wrong to say that the application for condonation is being made on the basis of an a default judgment. If counsel for the applicant had perused the filed first it should have dawned to him that no default judgment was ever granted. It was a consent to judgment that was made. Be that as it may, I am also satisfied that if indeed the applicant had not received any money from the first respondent one wonders why she paid a whopping US$65 000.00 to the first respondent? She should have acted as far back as 2015 when her property was first attached. Or at least she should have acted in 2016 when her property was attached for the second time. That is the time she should have acted. The cause of action did not arise in 2017 when her property was attached for the third time. In my view this matter is not urgent at all. If ever there is any urgency in this matter it is self-created. This is not the kind of urgency contemplated by the rules. As to what constitutes urgency has been explained in a number of cases and the famous one being Kuvarega v Registrar General and Anor 1998 (1) ZLR 188 (H). It has been said time without number that the law protects the vigilant and not the sluggard. It is for this reason pointless for this court to deal with the merits of the application. In the result the application is dismissed with costs. Antonio & Dzvetero, applicant’s legal practitioners Chingeya- Mandizira, first respondent’s legal practitioners