Dr Millicent Mombeshora v Kingdom Bank Limited and The Sheriff for Zimbabwe

### Preamble
1
HH 497-13
HC 10478/13
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DR MILLICENT MOMBESHORA

versus

KINGDOM BANK LIMITED

and

THE SHERIFF FOR ZIMBABWE

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 11 December 2013

Urgent Chamber Application

J Samukange, for the applicant

F. Siyakurima, for the 1st respondent

The 2nd respondent In default

MATHONSI J: The applicant has filed this application on an urgent basis seeking a provisional order in the following terms:

“TERMS OF THE FINAL ORDER SOUGHT

Pending the determination of the application for rescission of judgment under HC 10468/13, applicant is granted the following relief:

That the first and second respondents be and are hereby interdicted from auctioning and/or selling applicant’s property being a certain piece of land situate in the district of Salisbury called Stand 110 Quinnington Borrowdale, Harare.

First respondent pays costs of suit on attorney and client scale.

INTERIM RELIEF SOUGHT (sic)

Pending determination of this matter the applicant is granted the following relief:

That the first and second respondents be and are hereby interdicted from auctioning and/or selling applicant’s property being a certain piece of land situate in the district of Salisbury called Stand 110 Quinnington, Borrowdale, Harare.

That the execution of judgement in Case No HC 3262/12 be and is hereby stayed.”

In her founding affidavit, the applicant stated that she was never served with the summons in the main action as the Sheriff’s return of service indicates that it was affixed to the gate at No. 80 Quinnington Road, Borrowdale, Harare, an address in which her family does not stay.  The first respondent served the summons at an address they knew was not her residence yet the first respondent was always aware that she is employed by Reserve Bank of Zimbabwe and should have served the summons there.  If she had received the summons, she would have defended the action because she does not agree with the claim of interest made by the first respondent.

The applicant went on to say that she has since made an application for rescission of judgment.  In its opposing affidavit, deposed to by Joel Chindabata, its Head of Recoveries, the first respondent disputed the urgency of the matter stating that the applicant has always known about the summons but chose not to contest the claim because she admitted liability in the amount claimed.  When she received the summons she approached the first respondent’s counsel and made a proposal to settle the debt in monthly instalments of $500-00.  She even paid 2 such instalments.

In addition to that, the applicant was advised by letter dated 7 July 2012, a copy at which is attached to the opposing affidavit, that default judgment had been taken against her but she did nothing about it.  As if that was not enough, according to the return of service filed of record, the applicant was served personally with a warrant of execution at No. 80 Quinnington Road, Borrowdale on 29 July 2013.  She did not do anything about the matter until her immovable property was lined up for sale in execution.

This application is punctuated by material non-disclosures and outright dishonesty.  The utmost good faith must be observed by litigants who approach this court on an urgent basis or ex parte.  The applicant must disclose all facts relevant to the matter which have a bearing on the outcome;  N & R Agencies (Pvt) Ltd & Anor v Ndlovu & Anor HB 198/11; Shungu Engineering (Pvt) Ltd v Songondimando & Anor HH 99/12; Graspeak Investments (Pvt) Ltd v Delta Operations (Pvt) Ltd & Anor 2001 (2) ZLR 551 (H).

The courts will always discourage urgent applications whether ex parte or not which are characterised by material non-disclosures, mala fides or dishonesty.  In casu, the applicant attempted to mislead the court by claiming that she was not aware of the summons when the evidence demonstrates that she received it and even responded to it by approaching representatives of the first respondent with an offer.  She was also notified in writing that judgment had been taken against her as far back as 7 July 2012.

Apart from that, she was personally served with a writ more than 4 months ago.  She therefore cannot claim that she was unaware of the summons and certainly cannot be allowed audience on an urgent basis at this stage.

Mr Samukange for the applicant has submitted that the applicant did go to the first respondent’s legal practitioners to discuss the claim, but not because she had received the summons but because she was angry that the first respondent claimed that she owed money.  He has also stated that No. 80 Quinnington Road, Borrowdale, Harare is an empty house.  That submission is not based on the evidence, because in her affidavit, the applicant states that her family does not stay at that house.  She does not say that the house is empty.

In any event, the conduct of the applicant is consistent with a person who received the summons.  I agree with Mr Siyakurima that it was not coincidental that she went to discuss the claim with Sawyer & Mkushi after the summons had been served.  We also have the Deputy Sheriff’s return of service that she was personally served at No. 80 Quinnington Road, Borrowdale, Harare with the writ of execution.  The Deputy Sheriff’s return is prima facie evidence of service of process.  I have not been shown any evidence to suggest that the return should be disbelieved.

I conclude therefore that the application is devoid of merit.

It is accordingly dismissed with costs on the scale of legal practitioner and client.

Venturas and Samukange, applicant’s legal practitioners

Sawyer & Mkushi 1st respondent’s legal practitioners