Michael Kutsoko and Antrobus Enterprises (Pvt) Ltd v Samuel Huchu and Sheriff of the High Court

### Preamble
1
HH 726-17
HC 9924/17
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MICHAEL KUTSOKO

and

ANTROBUS ENTERPRISES (PVT0 LTD

versus

SAMUEL HUCHU

and

SHERIFF OF THE HIGH COURT

HIGH COURT OF ZIMBABWE

ZHOU J

HARARE, 26 & 30 October 2017

Urgent chamber application

J Mudimu, with him C Guvi, for the applicants

Ms T Chiminya, for the first respondent

ZHOU J: This is an application for stay of execution of a judgment granted in chambers in case No. HC 6501/13 on 28 May 2014. The draft provisional order, the terms of which are recited herein for reasons that are discussed later in this judgment, are as follows:

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should (not?) be made in the 	following terms:

The application for stay of execution is hereby granted.

The 1st and 2nd respondents be and are hereby ordered to stay execution of Number 7619 Tynwald Township 13 of Lot 1A, Tynwald South, Harare (sic)

TERMS OF THE INTERIM RELIEF GRANTED

Pending the hearing of the Urgent Chamber Application and return date, it is hereby ordered that:-

The 1st and 2nd respondents be and are hereby ordered to stay execution of Number 7619 Tynwald Township 13 of lot 1A, Tynwald South, Harare (sic)

SERVICE OF THE PROVISIONAL ORDER

The provisional order shall be served by any member (sic) of the Sheriff of Zimbabwe or by the applicant’s legal practitioners.”

The application is opposed by the first respondent who, in addition to contesting it on the merits, took the point in limine that the matter is not urgent and must be dismissed on that account. Although nothing turns on the submission that the application must be “dismissed” on the basis that it is not urgent, it is pertinent to say that the appropriate relief where a matter is found not to be urgent is not to dismiss it but to remove it from or strike it off the roll of urgent matters.

The background to the application is as follows. On 28 May 2014 the first respondent obtained a default judgment against the two applicants for payment of a sum of US$20 401-00, together with interest thereon and costs of suit. On 24 October 2016 the first respondent caused a writ of execution to be issued to enforce the judgment. The Sheriff attempted to attach the applicants’ movable property on 14 June 2017. The applicants state that that is the day on which they became aware of the default judgment. On 30 June 2017 the applicants filed a court application for the rescission of the default judgment. On 25 September 2017 the first respondent caused the Sheriff to attach the applicants’ immovable property which is described in the draft provisional order. That attachment triggered the filing of the instant application.

On the question of urgency, I am prepared to accept the applicants’ explanation that after filing the application for rescission of judgment they did not believe that there was imminent danger to their property. That explanation is, of course, very weak because the application for rescission of judgment does not suspend enforcement of the judgment. However, it is not an unreasonable explanation especially if a party is misled by the inaction of the legal practitioner as probably happened in casu. I have also considered that the first respondent took more than three months after being served with the court application for the settling aside of the default judgment to cause the attachment of the immovable property. According to the certificate of urgency filed in this application the applicants only became aware of the attachment on 18 October 2017 when it was brought to their attention by the persons who are in occupation of the attached property. For the above reasons, I am prepared to deal with the matter on an urgent basis.

On the merits of the application, the onus is on the applicants to show that real and substantial justice demands that execution be stayed. That is the settled position of the law, See Mupini v Makoni  1993 (1) ZLR 80 (S). An application for the setting aside of the default judgment has been instituted which would be rendered academic if execution is allowed to proceed. The explanation given by the applicants about the circumstances in which the default judgment was obtained are compelling, in that the applicants have attached to the papers in casu a notice of appearance to defend and have referred to correspondence from the registrar regarding the presence in the record of that appearance to defend. The appearance to defend was filed on 28 August 2013. The summons in case No. HC6501/13 had been served on 13 August 2013. The parties did not debate the question of whether the appearance to defend was timeously filed. The first respondent’s position was that he was unaware of it and was not served. That is a matter which is better left to the court when it considers the application for rescission of judgment. For the purposes of the instant application the papers reveal that there was indeed an appearance to defend which had been filed. If the applicants ultimately succeed in persuading the court that the judgment was granted in error they would be irreparably prejudiced by the sale of the immovable property if the relief being sought herein is not granted. Real and substantial justice therefore dictates that execution be stayed. After all, at this stage the court is only concerned with prima facie proof of such prejudice as the parties can file further papers for the purposes of confirmation or discharge of the provisional order.

The drafting of the terms of the provisional order does not reflect application of mind by the applicants’ legal practitioners. Notwithstanding the view expressed in judgments of this court that it is undesirable to seek interim relief which is the same as final relief, the draft provisional order in casu seeks precisely that kind of relief. Also, the final relief sought makes no reference to the application for rescission of judgment. The effect of that is that even if the application for rescission of judgment fails the first respondent would still be precluded from enforcing the order. Even the case number of the order the execution of which is sought to be stayed is not mentioned in the provisional order. Under the interim relief, there is very little effort to comply with the form as contained in Form 29C of the rules.

The tardiness reflected in the formulation of the draft provisional order was not the only matter of concern. The level of advocacy exhibited by both legal practitioners in the presentation of their submissions is worrisome. While it is accepted that for most legal practitioners in this jurisdiction English is a second language, the failure to articulate the submissions in simple and comprehensible language justifies a recommendation to reflect on continuing legal education even for those practitioners who are already practising as principals. The legal practitioners involved in this matter are the senior partners of their law firms, and the firms bear their names. If they find it challenging to articulate their clients’ cases in understandable language it is difficult to understand how they can train a junior professional to do the work. The responsible authorities such as the Law Schools, the Council for Legal Education and the Law Society of Zimbabwe may have to consider introducing a compulsory English language course to equip practitioners with basic communication skills. Litigants are entitled to expect advocacy at the level of superior courts to meet certain minimum standards.

The applicants have not sought costs in the draft provisional order under the terms of the final order sought. I accept, however, that on the papers filed the applicants are entitled to the provisional order sought subject to amendments as endorsed on the draft order filed of record.

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

Mudimu Law Chambers, applicants’’ legal practitioners

Chiminya and Associates, 1st respondent’s legal practitioners