Trust Zhou v Tinotenda S Moyo

### Preamble
1
HB 226/20
HC 1295/20
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TRUST ZHOU

Versus

TINOTENDA S MOYO

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 2 & 22 OCTOBER 2020

Urgent chamber application

T. Ndebele, for the applicant

Respondent in person

DUBE-BANDA J:	This is an urgent application. This application was filed on the 6 August 2020, when this court was on vacation. On the 7th August 2020, the duty Judge then, endorsed that the matter could not be set-set down for hearing due to lack of time. It was then rolled over to the next duty Judge. On the 21 August 2020, the next duty judge endorsed that the respondent was not in attendance. She was admitted in hospital with the baby, the matter was again rolled over to the next duty Judge. On the 24 August 2020, when I started my vacation duty, this matter was placed before me, again I was informed by applicant’s legal practitioners, that the respondent was still in hospital, and the court will be advised when the matter should be set-down for hearing. Finally the matter was set-down for the 2nd October 2020. I heard the application and reserved judgment. On the 5th October 2020, I started Circuit Court in Hwange, and returned to Bulawayo High Court on the 19 October. This explains the delay in having this matter finalised.

Respondent appeared in person. She indicated that she intends to withdraw the maintenance as it was causing her challenges. She wants to leave the country for the purposes of looking for employment and support the baby, which is subject to this application. Notwithstanding this intimation by the respondent, applicant insisted on proceeding with this application. I then asked applicant to argue both the issue of agency and the merits of the matter. If I find that the matter is not urgent, the matter will end there, however if I find it is urgent I will proceed to determine the matter on the merits.

The brief background of the matter is that on the 1st July 2020, respondent sued out a summons out of the Maintenance Court, Bulawayo. On the 14 July 2020, the Maintenance Court, granted an order in the following terms:

Application for maintenance and lying in expenses is granted in the following terms:

Respondent shall contribute the sum of $26 760 as lying in expenses. The money shall be paid in 4 instalments with effect from 21 July 2020. He shall pay a ¼ of the amount every Tuesday until he pays off the amount on the 1 August 2020.

Respondent shall contribute the sum of $5000 per month for the maintenance of the minor child with effect from 31 August 2020. The money shall be deposited into applicant’s ZB Bank Account number 4307558512-200 every month end until the minor child attains the age of 19 or becomes self-supporting, whichever comes first. The order shall remain in force until varied or discharged by a competent court.

In this urgent camber application, the applicant seeks an order drawn in the following terms:-

Terms of the final order sought

The decision ordering Applicant to pay lying expenses in the sum of $ 26 670 and maintenance in the sum of $5 000.00 per month towards the maintenance of the minor child, be and is hereby suspended, pending review of the matter under Case No. MC 205/20

Pending review, Applicant be and is hereby ordered to:-

Pay maintenance of ZW $1500. 00 towards the upkeep of the minor Child.

Respondent be and is hereby ordered to bear the costs of this application, should she oppose the same.

Interim relief granted

The Respondent be and is hereby temporarily suspended from executing the order under Case No. M 205/20, pending the review of the matter under Case No. H.C

Service

This order, together with a copy of the urgent application shall be served on the Respondent by the Sheriff or his Deputy.

In the certificate of urgency, signed by a legal practitioner in terms of rule 242 (2) (b) of the High Court Rules, 1971 (Rules) it is alleged that:

I have perused Applicant’s Founding Affidavit, and the application for review, and am satisfied that the Applicant herein has a good case on the merits, as it is my respectful view that the proceedings and the decision in the Court a quo were grossly irregular. In that regard, it is pertinent that Applicant obtains urgent relief from this Honourable Court, pending the review, for reasons appearing hereunder.

Pursuant to the Maintenance Court ordering that Applicant pays maintenance on 14th July 2020, the Respondent has applied for the arrest of the Applicant. The Applicant will be arrested should he not pay the sum of $26 760 any day from Thursday the 6th of August 2020.

With the impeding threat of arrest the Applicant despite paying part of the money he is meant to pay, Applicant can only approach this Honourable Court for urgent relief to have the maintenance order suspended, pending the determination of the application for review-which will properly determine matters on the merits.

By the time of the review, Applicant will most probably be in prison in the absence of obtaining interim relief from this Honourable Court. Applicant is not in position to pay the sums ordered by the Court a quo.

Applicant will suffer not only financially but also psychologically should he be arrested for not paying what the Court ordered he should pay without considering his personal circumstances.

Applicant is not in a financial position to pay the sums ordered by the Court a quo.

Notwithstanding the fact that Applicant has paid less than what he was ordered to pay within a very short space of time,  Applicant has put this Honourable Court into his confidence and shown good faith by willing to submit to an order of this Honourable Court to pay maintenance and provide for the minor Child, pending the determination of the review, which is commendable.

Should it be that the Respondent will not oppose the application for review, Applicant will continue paying the sum of $1500.00 per month towards the maintenance of the minor Child.

No other remedy exists for Applicant.

No prejudice will be suffered by Respondent, in the event of a provisional order being granted in this case, as she will be given an opportunity to oppose confirmation order should she wish to.

In the circumstances, I am persuaded that it would be in the interests of justice that Applicant be granted the Order sought.

Urgency

The threshold the applicant has to cross is to show that this matter is urgent. This Court enjoys a discretion in urgent applications to authorise a departure from the ordinary procedures that are prescribed by its Rules. It is usually hesitant to dispense with its ordinary procedures, and when it does, the matter must be so urgent that ordinary procedures would not suffice.

In the ordinary run of things, court cases must be heard strictly on a first come first serve basis. It is only in exceptional circumstances that a party should be allowed to jump the queue on the roll and have its matter heard on an urgent basis. The onus of showing that the matter is indeed urgent rests with the applicant. An urgent application amounts to an extraordinary remedy where a party seeks to gain an advantage over other litigants by jumping the queue. And have its matter given preference over other pending matters. This indulgence can only be granted by a judge after considering all the relevant factors and concluding that the matter is urgent and cannot wait. See Kuvarega v Registrar General and Another1998 (1) ZLR 188.

The leading case within this jurisdiction in relation to urgency is Kuvarega v Registrar General & Anor (supra), a judgment by CHATIKOBO J. The learned judge had the following to state at p 193F-G.

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 arises, 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 rules. It necessarily follows that the certificate of urgency or supporting affidavit must always contain an explanation of the non-timeous action if there has been any delay.

In assessing whether an application is urgent, this Court has in the past considered various factors, including, among others: being whether the urgency was self-created; the consequence of the relief not being granted and whether the relief would become irrelevant if it is not immediately granted. To pass the urgency test, applicant must show that there is an imminent danger to existing rights and the possibility of irreparable harm. See General Transport & Engineering (Pvt) Ltd & Ors v Zimbank 1998 (2) ZLR 301.To pass the test, good cause must be shown for the applicant to dislodge other litigants who are in the queue.

Applicant has not paid maintenance in terms of the maintenance order. In the certificate of urgency, it is alleged that applicant will suffer not only financially but also psychologically should he be arrested for not paying what the court ordered he should pay without considering his personal circumstances.  In his founding affidavit, he avers that his arrest will be effected on the 6 July 2020. He contends that his arrest will be prejudicial to him. He says he is not in a financial position to pay the sums ordered by the court a quo.  I take the view that applicant has defaulted in maintenance payments, and an arrest is imminent. He seeks the protection of this court from a lawful arrest.

If he is not in a financial position to comply with court order, he may proceed in terms of section 27 (3) of the Maintenance Court Act.Applicant says section 27 (3) of the Maintenance Act speaks to an ‘appeal’ and not a ‘review.’ It is then argued that what he has filed with this court in case number HC 1287/20 is an application for review, hence section 27 (3) does not apply. This is just a distinction without a difference. The reason for bringing proceedings under review or appeal is usually the same, to have the judgment set aside. Applicant seeks to have the judgment of the court a quo set aside. Pending his application for review, the maintenance court has jurisdiction to order the whole or any portion of the maintenance be paid to or for the benefit of the dependant concerned; or the whole or any portion of the maintenance be paid into court; or payment of the whole or any portion of the maintenance be suspended for such period as the court may specify.

The noting of an appeal does not suspend the decision appealed against, unless the aggrieved litigant applies to the Maintenance Court in terms of section 27 (3). This is for a sound reason that the minor child be provided for pending the appeal. The minor child must be provided for, notwithstanding whether the decision is attacked by way of appeal or review. It is the Maintenance Court that must hear and determine an application in terms of section 27 (3). To argue that this is a court of inherent jurisdiction, therefore it can entertain such an application is incorrect. This court cannot order applicant, pending review, to pay     ZW$1500,00 towards the upkeep of the minor child. It has no evidence upon which to make such a decision. It is the Maintenance Court, that has the record of proceedings, which contains the material upon which it can make a decision whether applicant should pay pending review, and if so, the amount to be paid.

Applicant has failed to pay in terms of the court order, and as a result a process of his arrests has been initiated in terms of section 23 of the Maintenance Court Act, this cannot be a basis for urgency. It is alluded in the certificate of urgency that respondent has applied for the arrest of the applicant, and his arrest is pending. Applicant has not complied with the maintenance order, he seeks this court to intervene and protect him from a lawful arrest. This is a court of law, it cannot aid a litigant to defy law and cannot stop a lawful arrest. See Airfield Investments (Pvt) Ltd v The Minister of Lands, Agriculture and Rural Resettlement & Others 2004 (1) ZLR 511 (S) 518 A-B.  Under the interim relief sought, applicant seeks an order temporarily suspending the execution of the maintenance order pending the determination for the review application. Suspending the execution of the maintenance order, will amount to protecting applicant from a lawful arrest, this court cannot act outside the law.

This application amounts to a text-book case of an abuse of the process of this court. This is also an indictment on the legal practitioner who signed the certificate of urgency, alleging that this matter is urgent.

Disposition

In the result, I order as follows: this application is not urgent and is accordingly struck off the role of urgent matters, with no order of costs.

Lazarus & Sarif, applicant’s legal practitioners