Arosume Property Developments (Private) Limited & Witness Mudungwe & Nyarai Mudungwe v Rhodian Photo & The Minister of Local Government and Public Works

### Preamble
1
HH 475-21
HC 4152/21
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AROSUME PROPERTY DEVELOPMENTS (PRIVATE) LIMITED

and

WITNESS   MUDUNGWE

and

NYARAI MUDUNGWE

versus

RHODIAN PHOTO

and

THE MINISTER OF LOCAL GOVERNMENT AND PUBLIC WORKS

HIGH COURT OF ZIMBABWE

ZHOU J

HARARE, 23 & 26 August 2021

Urgent Chamber Application

G Madzoaka, for the applicants

Mrs R Mabwe, for the respondents

ZHOU J: This is an urgent chamber application in which the applicants essentially seek stay of execution on of the order granted in case No. HC 2258/21 pending determination    of a court application for the rescission of that order. The court application is yet to   be filed. The application for rescission of  judgment  could not  be filed prior to or  at the time of the filing of the  urgent chamber application owing  to the   Covid  19 induced lockdown  and the Practice  Direction  issued  pursuant  thereto. The  interim  relief  sought  is for first respondent to be  interdicted   from  interfering   with  second  and   third  applicants’ occupation of Stand No 194 of Carrick Creagh Estates, and  for an order  that the  applicants file their application  for rescission  of judgment  within  three days after  the  High  Court  resumes the  normal  operations or within three  days  after Practice  Direction  Number  7 of  2021 has come to an end  whichever  occurs  earlier .

The application is opposed by the first respondent which in addition to contesting the merits of the application, has raised different preliminary objections. These objections,  which will be  considered first,  are that (a)  the   application  is  not  urgent;   (b) there  is material     non-disclosure which warrants the  dismissal of the  application  (c) the second    and  third   applicants  are  not  properly before the   court and; (d)  the  relief  sought   is defective .

A matter is  urgent if at the  time of the  filing the matter cannot  wait to be dealt with as an ordinary court application, either  owing  to the  risk of perverse  conduct on the  part  of the  respondents or some other  factors  which  would  result in  irreparable  harm  to the  applicant if   the matter is  not  dealt with  urgently .  In determining whether a matter is urgent each case must depend on its own facts. The court   considers  among  other   things , not just   the harm that   would   be   occasioned  to the  applicant  if the   matter  is not  heard  urgently,   but also  whether  the applicant  has acted  expeditiously having  regard to  when  the  need to  act arose.

The respondent   states that the  need  act    arose on   7  June 2021   when  the  applicants  were  served  with the  provisional  Order in HC 2258/21. But the  provisional order, in particular, the  interim   relief  thereof  contained no provision  which   is the    subject of  the relief which is   being  sought   in  the present application. The need   to act only arose after the confirmation of the provisional order. It is common cause that the provisional order was confirmed on 21 July 2021.The applicants state that they only became aware of the default judgment confirming the provisional order on 11 August 2021. This factual averment   has not been challenged. Instead the first respondent’s contention which is different from the initial position is that the need to act arose on   22 June 2021 which was the   dead-line for them to file opposing papers in HC2258/21.   There was the suggestion that there can be  no urgency  because the  order  in  HC 2258/21 does not threaten the  applicants in  particular the  second and third applicants with eviction from the  property  in dispute. The   order  not only nullifies the  second  and  third applicants’ lease  agreement which is the  basics  of   their occupation, but also  enjoins the second  respondent  herein to ensure that a lease  agreement is signed in favour of  the first respondent. The applicants have no control over when that lease agreement will be signed.  If they waited for it to be signed then their conduct would   constitute the typical case of waiting for the arrival   of the day of reckoning. For these reasons l come to the conclusion that the matter is urgent. The objection that the matter is not urgent is therefore dismissed.

The objection that  there was material   non – disclosure is  based on  the allegation that  applicants failed to  disclose that the   judgement   in  HC 2258 /21 was   granted in  default following  their failure to  file  opposing  papers. This information is contained in the supporting   affidavit of applicant’s legal practitioner, Stanslaus  Munyaradzi   Bwanya   which is annexed to the  applicants’ papers. Mrs Mabwe for the first respondent submitted that the information must not be given weight   because it is not in the founding affidavit. The submission is unsound, because the affidavit in question is part of the founding   papers since it is annexed to the founding affidavit. The objection that there was non-disclosure of material facts is therefore meritless and ought to be dismissed.

The third ground of objection is  that the  second and third  applicants are not properly before the court  because, so  it was  submitted,  their  affidavits are  each  headed “third respondents  opposing  affidavit” instead of being “supporting  affidavits” . The submission that the affidavits must be described as supporting affidavits is itself incorrect. As parties to the application, they each file affidavits in their own right as applicants. Be that as it may, the patent errors in the affidavits are inexcusable as they expose the danger inattentive reliance on precedents. However, I do not believe that the defective title is fatal to the affidavit. It is a defect that I would condone in order to do justice. The parties are correctly described in both affidavits. The first two paragraphs of each of the two affidavits clearly show the capacity in which the deponents have sworn to the affidavits. For these reasons the objection must fail.

On the relief sought, the objection is that while the application is presented as one for stay of execution, the interim relief sought is in the form of an interdict. The first respondent further submitted that at the second paragraph of the interim relief sought was over-taken by events because Practice Direction 7 of 2021 had lapsed. This last point can be easily disposed of. It is incorrect that at the time of argument Practice Direction 7 of 2021 had lapsed. That Practice Direction was still extant save that it had only been amended in certain   portions thereof by Practice Direction 8 of 2021. This is clear from para 1 of Practice Direction 8 of 2021. However  I take judicial  notice of the  fact that prior to the delivery  of this  judgment  Practice Direction 9 of  2021 came into effort which  replaced the  operational instructions  announced  in Practice  Directions 6,7  and 8 of 2021. Practice Direction 9 of 2021 allows the filing and processing of new cases, processes, documents pleadings, papers and court orders, among other things. In other words it ends the prohibition of filing of court applications such as the one contemplated by the application in  casu. But its effect  is not  to render unnecessary the entire  para 2 of the interim  relief  sought in the  event  that the application succeeds.  The applicants must   still be put on   terms to file their application within a certain time. Such relief would accord with para 4 of Practice Direction 9 of 2021 .The objection is therefore  without merit insofar as it only  affects a portion of the  relief  sought  and is dismissed.

In considering the terms of the draft provisional order the application as a whole must be considered. It is clear from the application  that  the  essence  of the interdict  sought  is that   the  respondents must be  barred  from  interfering  with the  second  and third  applicants’  occupation  of the property in dispute pursuant  to the   enforcement of the    order  granted in HC2258/21. In substance, therefore, what is being sought is stay of   execution of the order in HC 2258/21 by barring reliance on the order to eject the applicants. But for the existence of that order the application would not have arisen. Therefore, the principles applicable to the resolution of this application for the purposes of considering whether the provisional order should be granted are those parting to stay of execution. These principles are set out in the case of Mupini v Makoni 1993(1) ZLR 80(C) at p 83B as follows:

“Execution is a process of the court and the court has an inherent power to control its own process and procedures, subject to such rules as are inforce. In the exercise of wide discretion the court may, therefore set aside or suspend a writ of execution or   for that matter, cancel the grant of a provisional stay. It will act where real and substantial justice so demands. The onus rests on the party seeking a stay to satisfy the court that special circumstances exist.”

In this case, the applicants intend to file an application for the setting aside of the default judgment which was granted in HC 2258/ 21.The effect  of that judgment is to nullify the  second  and third applicants’  lease  agreement and to  oblige the  second respondent to ensure that the same  property is given to the first respondent  if the stay execution  is not granted  and the  applicants ultimately succeed in having the default  judgment  rescinded. The applicants will be irreparably prejudiced, especially if they are to vacate the property after losing title to it. On the other hand,   the first respondent, apart from experiencing the inconvenience of delayed title to the property would not be irreparably prejudiced by the suspension of execution or enforcement of the order in HC 2258/21. If the first  respondent  succeeds  in  having  the applicants’  application  for rescission of judgment dismissed  them he  can  enforce the  order. Thus, there would be an injustice to the applicants if stay of execution is not granted and they are forced out of the property if they succeed in abstaining the relief for the setting aside of the default Judgment. In considering an application  of this  nature, care must  be taken to  avoid  delving  much into  the merits of the  application for  rescission  of  judgment. That application must be dealt with on its own merits. I point  out however, that the  applicants do tender an explanation  which, if proved and accepted at  the hearing of the application for  rescission  of judgment, would  amount  to a reasonable  explanation  for their default . Regarding the contest as to who has better title to the property, the applicants do advance a case which warrants investigation and should not be rejected out of hand see Mdokwani v Shoniwa 1992(1) ZLR269(S).

In all the circumstances, it seems to me that real and substantial justice favours the granting of the provisional order.

In the result, the provisional order is granted in terms of the draft thereof as amended.

Mutuso, Taruvinga & Mbiribidi, applicant’s legal practitioners

Rusinahama-Rabvukwa Attorneys, 1st respondent’s legal practitioners