Lawrence Phiri v Chikumbirike & Associates and Deputy Sheriff

### Preamble
1
HH 291-13
HC 7184/13
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LAWRENCE PHIRI

versus

CHIKUMBIRIKE & ASSOCIATES

and

DEPUTY SHERIFF

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 10 September 2013

URGENT CHAMBER APPLICATION

Applicant in person

T.M. Kanengoni., for the 1st respondent

2nd respondent in default

MATHONSI J:  The applicant is said to be a law officer at the Attorney General’s Office who has approached this court as a self-actor seeking a provisional order for a stay of execution of an order this court, per MAFUSIRE J, granted against him on 1 July 2013 in case number HC 6783/12, pending the determination of a rescission of judgment application he has filed in case number HC 7183/13.

Historically, the first respondent, through its curator bonis, Francis Chirimuuta, sued the applicant for payment of legal fees due for services rendered to him, in the total sum of US$20 881,67.  When the applicant entered appearance, the first respondent made an application for summary judgment which the applicant again opposed.

The summary judgment application was set down on the opposed roll before MAFUSIRE J on 1 July 2013 with the notice of set down for that date being served upon “Lawrence Phiri ‘son’” of the applicant on 24 June 2013 at 11;18 hours.  Despite such service the applicant did not attend court on 1 July 2013, resulting in judgment being entered in default.

It is that judgment which the applicant would like to have rescinded and whose execution he seeks to stay.  The first respondent has taken a number of points in limine namely that the present application and that for rescission of judgment are defective in that they have not been made in Form 29B or Form 29 as provided for in r 241.  The founding affidavit is not divided into paragraphs numbered consecutively as required by r 227 (1) (b) of the High Court of Zimbabwe Rules, 1971.  The founding affidavit is not signed in breach of r 227 (2) (b).

I must state that the original affidavit filed in the record was signed by the applicant before a commissioner of oaths on 3 September 2013.  Therefore nothing turns on that objection.  While the other points taken by the first respondent in limine have merit and point to an application that is already on its knees owing to defects, it is the question of urgency which has informed my decision.

The applicant was served with a notice of set down for the hearing of 1 July 2013 through his son.  He did not attend court and did not do anything to find out the outcome of that hearing.  He only says in his founding affidavit that he was away from Harare before 1 July 2013 and only returned 8 days later.  He goes on to say he only became aware of the default judgment when a writ of execution was served upon him on 2 September 2013.

The applicant has not addressed the certificate of service showing that the notice was served on his son on 24 June 2013 only electing to be vague about his whereabouts at the time and silent on what he did upon service of the notice.  The only inference to be drawn is that he was aware of the court date and chose not to attend.

What this means therefore is that he should have known that an outcome existed  from 1 July 2013 but even after his return 8 days later he did nothing.  He was content with doing nothing only to be awakened by an attachment of property.  Only then did he see the need to approach the court, albeit 2 months later.  In my view, that is self- created urgency not contemplated by the rules.  It is urgency which stems from a deliberate inaction until the day of reckoning is nigh: Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H) 193 G; Mariyapera v Eddies Pfugari Properties (Pvt) Ltd & Anor HH 203/13.  This matter therefore cannot be dealt with as urgent.

I am fortified in that position by the fact that not only is the application riddled through and through with defects, the application for rescission of judgment the applicant wishes to prosecute appears to lack merit and will give the applicant a difficult time indeed especially as he signed away this right to a taxation.  I agree with Mr Kanengoni for the first respondent that the applicant has displayed a cavalier attitude towards the matter.

Accordingly, I refuse to deal with the matter as urgent as it is not entitled to jump the queue.

Chikumbirike & Associates, 1st respondent’s legal practitioners