Sithokozile Ndlovu v Shadreck Ndlovu & 4 Ors

### Preamble
1
HB .200/20
HC 1515/20
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SITHOKOZILE NDLOVU

Versus

SHADRECK NDLOVU

And

MAION ALICE BHILA

And

ANGELINE BELINDA SUNGA

And

CITY OF BULAWAYO

And

THE SHERIFF OF THE HIGH COURT

OF ZIMBABWE N.O.

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 11 & 24 SEPTEMBER 2020

Urgent Chamber Application

N. Sibanda for the applicant

T. Gamure`, for 2nd respondent

MOYO J:	This is an application whereby the applicant seeks the following interim relief.

“Pending finalisation of this matter, the applicant be and is hereby granted the following relief:

The execution of the warrant issued by this court under cover of HC 1525/19 be and is hereby temporarily stayed pending the return date of this matter.”

The facts of this matter are that applicant is married to 1st respondent and the marriage still subsists.  Sometime in 2011, applicant sought and got a provisional order barring 1st and 4th respondents from selling the parties’ matrimonial home namely stand C55 Njube Township in Bulawayo.  1st respondent however, later got into debt resulting in a judicial sale of the property wherein the property was sold resulting in it moving from 1st respondent to a 3rd party.  In paragraph 12 of the founding affidavit the applicant avers that in 2016, 2nd respondent tried to evict her via the Magistrates’ Court but failed.  In paragraphs 13 and 14 of the founding affidavit applicant avers that 4th and 5th respondents transferred the property despite the existence of a court order prohibiting transfer of the property.  She further avers that the agreement of sale between 2nd and 3rd respondents was confirmed by the court under HC 1525/19 and that it is the execution of that order that now seeks to eject her from her home.

Curiously though, the applicant does not tell this court a crucial point as to when she became aware of the transfer alleged in paragraph 13 of the founding affidavit.  She also does not tell the court when she became aware of the court order in HC 1525/19.  Such information was crucial because applicant is aware that 2nd respondent has raised a point in limine in regard to urgency claiming that this matter is not urgent at all.  The 2nd respondent alleges that applicant was aware of the judicial sale in execution that was held way back in 2012 and she did nothing.  That applicant was aware of the change of name and title in the property since the rates account showed that.

Applicant has not filed an answering affidavit to rebut the claims that she was aware of the public auction that was conducted disposing of the property way back in 2012 and she did nothing.  Applicant has not filed an answering affidavit to rebut the allegation that she was aware of the change of name of the property title through the City of Bulawayo rates account.  Applicant has not herself been specific as to how she got to know about the sale in execution, about the transfer of the property and about the court order in HC 1525/19.  She has decided to remain mum on the dates relating to her knowledge of such issues and has chosen not to answer by way of an answering affidavit even after a challenge on urgency and her knowledge has been mounted by the 2nd respondent.  That which is not rebutted in litigation wherein one party alleges it, means that it is not contested.

Accordingly, it is not contested that applicant has known of the judicial sale for 8 years now, and that she has known about the change of ownership all along and she sat back and did nothing.

An urgent matter cannot wait unattended.  A matter is not only urgent when the day of reckoning arrives.  A matter is urgent when things start going wrong with an untenable outcome.  Like in this case, applicant was expected to act as a matter of urgency the day she learnt that an auction had been conducted disposing of the property against which she had a provisional order.  Applicant should also have acted when an attempt to evict her was made because then she became aware that behind her back, the property had since changed hands.  She became aware that 3rd parties were laying claim on the property and that her eviction was inevitable.  An urgent occurrence is the realization that things are no longer flowing normally and that an applicant is facing an uncertain future, prompting them to act and protect their rights if any.  It cannot be urgent, that an eviction is looming yet the property was sold long back to applicant’s knowledge, eviction attempts made and change of title effected and yet applicant sat back for years and did not do anything to protect her rights.

Having known about the sale and the resultant change of name, applicant should have been prompted to act as she ought to have appreciated that in that situation an eviction was inevitable.  She must have been propelled by such knowledge into action in a bid to protect her rights.  At this moment there is no urgency at all.  Applicant left obvious matters until too late and has thus failed to establish any basis for jumping the queue.  Applicant certainly no longer has the remedy of urgency in such circumstances, she left the situation until too late.  Refer to the case of Kuvarega v Registrar General 1998 (1) ZLR 188.

I accordingly, uphold the point in limine raised by 2nd respondent on urgency.  It will not be necessary to deal with the issues raised by 2nd respondent on the issue of the certificate of urgency as the lack of urgency itself is sufficient to dispose of the matter.

I accordingly make the following order.

The matter is struck off the roll of urgent matters with applicant paying the costs of suit.

Mathonsi-Ncube Law Chambers, applicant’s legal practitioners

Mabundu & Ndlovu Law Chambers, 2nd respondent’s legal practitioners