David Victoria Kilpin v Themba Nleya and The Sheriff of the High Court, Bulawayo (No) and The Registrar of Deeds, Bulawayo (No)

### Preamble
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HB 107/19
HC 1003/19
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DAVID VICTORIA KILPIN

Versus

THEMBA NLEYA

and

THE SHERIFF OF THE HIGH COURT, BULAWAYO (NO)

And

THE REGISTRAR OF DEEDS, BULAWAYO (NO)

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 8 MAY & 18 JULY 2019

Urgent Chamber Application

E. Mandipa with C. Makwara for the applicant

N Mazibuko for the 1st respondent

MAKONESE J:	 This is an urgent chamber application for the upliftment of  caveats. The application is opposed.  The relief sought by the applicant is in the following terms:

“Interim Relief Granted

Pending the return day, this provisional order shall serve as an interim order directing that:

The applicant’s properties being Lot 1 of Umsungwe Block, Gwelo and stand number 1014 of Gwelo Township be and are hereby discharged from judicial attachment.

Terms of final order

The 1st respondent be and is hereby ordered to instruct the 2nd respondent to uplift caveat 35/2019 pertaining to stand number 1014 of Gwelo Township forthwith.

In the event that 1st respondent fails to abide by the terms of paragraph 1 above, the 3rd respondent be and is hereby ordered to uplift caveat 35/2019 pertaining to Lot 1 of Umsungwe Block, Gwelo and caveat 36/2019 pertaining to stand number 1014 of Gwelo Township forthwith.

1st respondent be and is hereby ordered to pay costs of suit on a legal practitioner and client scale.”

Brief background

The applicant is the registered owner of Lot 1 Umsungwe Block, measuring 40, 4705 hectares and stand 1040 Gwelo Township, Gwelo, measuring 2838 square metres.  The applicant is a land developer selling stands to individuals and companies.  The applicant undertook subdivision of various stands sometime between 2012 and 2013.  Applicant entered into a written agreement of sale with 1st respondent in respect of stands number 166, 167 and 177 of Lot 1 Umsungwe Block, Gweru.  In 2016, 1st respondent approached this court seeking cancellation of the agreement of sale and refund of the amounts he had paid together with damages, under case number HC 3148/16.  Applicant and 1st respondent reached a settlement in respect of these claims and a Deed of Settlement was entered into.  In terms of the Deed of Settlement applicant agreed to refund the 1st respondent the sum of US$20 818,25 together with interest thereon at the rate of 12% per annum calculated from May 2014 to date of final payment.  The applicant further agreed to pay a further sum of US$10 000 as consequential damages together with interest thereon at 12% per annum calculated from May 2014.  The Deed of Settlement was reduced into an order of this court dated 15th March 2018.  The defendant was required to pay these amounts as ordered by the court at the rate of US$5 000 per month respectively, on or before the last day of the months of March 2018, April 2018, May 2018 and June 2018, with the balance  outstanding being paid in full by the 31st July 2018.  1st respondent obtained a warrant of execution against applicant’s immovable properties.  On 11th April 2019 2nd respondent attached applicant’s property pursuant to the writ.  Applicant purported to effect payment of the total amount owing by effecting a bank transfer into 1st respondent’s legal practitioners trust account.  Immediately after making those payments applicant informed 1st respondent’s legal practitioners indicating that he had effected full payment of the amounts owing and requesting the upliftment of the caveats which had been placed against the title deeds.  1st respondent’s legal practitioners responded indicating that execution could not be stayed pending confirmation from their client whether the RTGS payment in the local currency was accepted and in compliance with the order of the court.  1st respondent took the position that in terms of the court order, payment had to be made in United States dollars.  In essence the 1st respondent did not accept payment by way of RTGS in local currency as this was not in accordance with the terms of the court order.  It is clear that a dispute has arisen regarding the issue of payment and the method of payment.  1st respondent argues that payment by way of RTGS in local currency, did not comply with the order of the court, consequently there was no basis for demanding the upliftment of the caveats.

The application before this court which has been made under a certificate of urgency has been lodged on the premise that 1st respondent has been paid in full.  The application seeks to stop the 1st respondent from proceeding with the sale in execution of the attached properties, and to have the caveats which have been placed over the immovable properties uplifted.

1st respondent raised certain points in limine, which have to be resolved before dealing with the merits of the case.

Whether the procedure adopted by the applicant complies with the Rules

1st respondent contends that the applicant was not justified in proceeding with this application on an urgent basis.  It is argued that the applicant ought to have proceeded by way of an ordinary application as there is no immediate danger to the applicant for these reasons:

There is no date of execution which has been fixed as yet.  In terms of the Rules execution can only occur after certain formalities have been complied with.  In this matter, the formalities in issue which have not been complied with, include payment of the deposit for the appointment of auctioneers and subsequent advertisement of the property for sale by public auction.

Whilst it is correct that transfer cannot be effected whilst a caveat is in place, the sale of stands may nonetheless be concluded by applicant in respect of the stands on offer for sale.

The matter is not urgent as the dispute between the parties has been outstanding for some time prior to the filing of this application.

The interim relief sought is final in nature.

I shall deal with these preliminary issues.  This application clearly reveals deep disputes of facts surrounding the mode of payment made by the applicant in compliance with the court order.  The major dispute of fact is whether the RTGS payment effected by applicant settled the amounts outstanding.  This dispute is not capable of resolution by way of an urgent chamber application.  The procedure adopted by the applicant is clearly incorrect as the disputes were apparent at the time of filing this application.  There was no justification for this matter to be brought to court under a certificate of urgency.  It is a principle that is well settled in our law that where a material dispute exists prima facie, the matter should proceed by way of action procedure.  See; Mashingaidze v Mashingaidze 1995 (1) ZLR 219.

On this point alone, this matter is not properly before the court and must be dismissed on the grounds that it is improperly before this court.

The second issue to consider is whether the matter is urgent.  There is no imminent sale in execution. The date of execution has not been fixed as yet. The Rules provide an elaborate procedure for the sale of immovable properties.  No sale in execution has been initiated and the application is clearly speculative in nature.  No auctioneer has been nominated. There is clearly no urgency in the matter.  A matter is deemed urgent if at the time of filing the application it cannot wait.  See Kuvarega v Registrar General &Anor 1998 (1) ZLR 188.

This dispute has been ongoing since April 2019 when applicant effected payment of the amounts due to the 1st respondent by way of RTGS transfer.  1st respondent took the position that the order of this court specifically directed that payment must be in United States dollars.  That dispute is not before this court in this application. That dispute must be resolved in separate proceedings.  The urgency contemplated by the rules does not arise by the applicant merely declaring that a matter is urgent.  The requirements for urgency have been well established in a number of cases.  See;

The third preliminary issue taken by the 1st respondent is that the order sought in the provisional relief is final in nature.  In the event that this interim relief is granted the applicant will have no cause to pursue confirmation of the provisional order.  1st respondent would in that event not be protected and may suffer prejudice in that applicant would have obtained a final order without proving his case against 1st respondent.  The granting of interim relief that is final in nature is not desirable. In the event that the interim relief is granted, the caveats placed against the title deeds would be uplifted without a proper ventilation of the issues.

On the basis of the aforegoing, the matter is not properly before the court and is deemed not urgent.  There is no need to delve into the merits of the matter. Further, the applicant has adopted the wrong procedure.

In the result, the application is dismissed with costs.

Mutatu & Mandipa Legal Practitioners, applicant’s legal practitioners

Calderwood, Bryce Hendrie & Partners, 1st respondent’s legal practitioners