David J.N. Mparuri v Rania Safwat A. Mahran and The Deputy Sheriff Harare

### Preamble
1
HH 272-12
HC 6384/12
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DAVID J.N. MPARURI

versus

RANIA SAFWAT A. MAHRAN

and

THE DEPUTY SHERIFF HARARE

HIGH COURT OF ZIMBABWE

MUTEMA J

HARARE, 20 & 21 June, 2012

Urgent Chamber Application

T. Mpofu, for applicant

A. Chagonda, for 1st respondent

MUTEMA J:  The first respondent obtained a default judgment against the applicant for want of filing a plea in case number HC 1271/12. It is not stated when that default judgment was granted or even when the applicant became aware of it. In execution of that judgment, the second respondent attached an aircraft allegedly belonging to a company called Aero-Precision in which the applicant is the principal director and shareholder. That aircraft is not registered in Aero-Precision’s name but in the name of Yankee India Syndicate.

The applicant has filed an urgent chamber application seeking stay of execution of the default judgment in the interim, and in the final order, rescission of the default judgment and leave to file his plea within 10 days.

The first respondent took the point in limine that the applicant adopted a wrong procedure of seeking rescission of judgment by way of urgent chamber application instead of via r 63. Mr Chagonda relied, for this proposition, on Wilbert Kranos Nyangari v Beverly Building Society and Deputy Sheriff Bulawayo HB 99/06 in which the court dismissed an application for rescission of a default judgment brought by way of urgent chamber application on the grounds that the procedure so adopted was clearly wrong and unjustifiable in the circumstances. In that case CHEDA J derived solace from Mlambo v City of Harare 2001(2) ZLR 545 at 547 H where SMITH J bemoaned that there was now more honour in the breach of the rules than observance.

In opposing the point in limine, Mr Mpofu contended that r 63 is permissive, that the application before the court is not one for rescission of judgment but that rescission will come later. He also argued that r 229C provides that without derogation from r 4C the fact that an applicant has instituted a court application instead of a chamber application or vice versa shall not in itself be a ground for dismissing the application unless some interested party may have been prejudiced thereby and the prejudice cannot be remedied by an order of costs.

I gave an extempore judgment on 21 June, 2012 dismissing the urgent chamber application after upholding the point in limine supra. The applicant’s legal practitioners have now written requesting “a typed copy of the judgment together with the reasons behind the dismissal of the application”. These are the reasons:-

I was not persuaded by Mr Mpofu’s argument because it is not entirely correct that the application before me is not one for rescission of the default judgment and that application for rescission is yet to follow. This is so if account is had of the terms of the final order being sought alluded to supra.

The usual procedure is to seek stay of execution pending the hearing of an application for rescission of the default judgment already filed or filed pari passu with the urgent chamber application. In casu no such application for rescission of the default judgment has been filed but rescission and leave to file a plea are, ex facie the final order sought, destined to be heard and resolved on the return day. This is clearly un-procedural and unjustified in the circumstances.

Rule 229C is meant to be invoked without derogation from r 4C which empowers the court or judge to authorise or condone a departure from the rules where such is required in the interests of justice. I was not satisfied that in casu condoning the departure from the rules would be in the interests of justice. I utter this stricture given the following:-

The applicant was legally represented from the outset. Legal practitioners are expected to know the law, including adjectival law. If the attached aircraft does not belong to the applicant but to a company – never mind that he is the principal director and shareholder of that company – the procedure adopted is again wrong. The owner of the attached aircraft and not the applicant or the applicant in his capacity as director of the company owner, should have invoked, as claimant, interpleader proceedings in terms of order 30. This procedure would achieve the same result as the interim relief being sought, viz:

“That pending the finalisation of this matter:-

The execution of the Order granted under case No. HC 1271/2012 be and is hereby stayed”.

It is pertinent to note here that that interim relief being sought is silent about

the aircraft being released from attachment hence the relief sought in it will be the same as that the interpleader proceedings would yield.  According to the applicant, the aircraft is not registered in Aero-Precision’s name but in the name of Yankee India Syndicate which might be the only party with the locus to lay claim to it.

It seems that the applicant’s legal practitioners never cease to bungle, procedural law - wise and it is therefore not surprising that after being served with a notice to plead, and instead of pleading (as is required by the rules) they wrongly filed a request for further particulars, thereby ending up being barred with the consequence of a default judgment being obtained against the applicant.

In view of the brazen and continuous disregard of the rules of this court as adumbrated above, I am constrained to associate myself with the sentiments of SMITH J, in the Mlambo case supra that there is now more honour in the breach of the rules than observance. I would add that a halt to that pernicious practice should be put to it in an endeavour to ensure the smooth running of the courts.

The foregoing are the reasons why the point in limine was upheld and the application was dismissed with costs.

G.N. Mlotshwa & Company, applicant’s legal practitioners

Sawyer & Mkushi, 1st respondent’s legal practitioners