Judgment record
Star Africa Corporation (Private) Limited v Broadhaven Manufacturing (Private) Limited and The Sheriff (Harare)
HH 151-18HH 151-182018
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1
HH 151-18
HC 4045/16
Ref Case No. HC 4045/16
Ref Case No. HC 4041/16
Ref Case No. HC 10793/14
STAR AFRICA CORPORATION (PRIVATE) LIMITED
versus
BROADHAVEN MANUFACTURING (PRIVATE) LIMITED
and
THE SHERIFF (HARARE)
HIGH COURT OF ZIMBABWE
TSANGA J
Harare, 27 February 2018 & 20 March 2018
Opposed Application
T Mutema, for the applicant
R Nyapadi, for the 1st Respondent
No appearance, for the 2nd respondent
TSANGA J: Following an urgent chamber application for stay of execution, the
applicant and first respondent had entered into a deed of settlement on 24 May 2016 in which
the Applicant (as then first respondent), agreed to stay execution on account that the 1 st
Respondent (as then Applicant), paid an amount of $40 345.45 owing to it as rentals in
monthly instalments of $6000.00 starting 30 May 2016 and thereafter on the 24 th day of every
new month for a further period of 7 months until the debt was extinguished. What was
indisputable in this application was that the first respondent herein made the first payment on
2 June with difficulty as only US$4000.00 was paid instead of the agreed US$6000.00. It was
also not in dispute that it was the only and ever payment made under the Deed. As such,
applicant sought to enforce its rights for the payment of what remained owing, namely,
US$36 345.45. It also sought that the first respondent be forthwith evicted from Stand
371-275 Mubaira Growth Point, Mhondoro.
The first respondent sought to challenge the applicant on several grounds. Firstly, it
was argued that in terms of the Deed of Settlement the applicant should have written to it
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HH 151-18
HC 4045/16
Ref Case No. HC 4045/16
Ref Case No. HC 4041/16
Ref Case No. HC 10793/14
confirming the stay and that as it had not done and it was therefore approaching the court
with dirty hands.
Clause 3a of the Deed of Settlement in question read as follows:
3. It shall be a further condition that upon the signing of this deed that:
a) The applicant shall withdraw its application for rescission of judgment
under case no. 4014/16 and that the applicant undertakes not to file any
subsequent application in this matter seeking either a stay of execution or a
rescission of judgment in this matter and that;
b) first respondent … shall not execute and /or enforce the judgment under
HC 10793/14 and shall forthwith instruct the second respondent (sheriff) in
writing to unconditionally stay the execution of the judgment under
HC 10793/14 and immediately furnish proof of same to applicant through its
legal practitioners of record.
It was however not in dispute that the Applicant effectively instructed the Sheriff to
stay execution in HC 10793/14 and that following the signing of the agreement in that no
attempt was ever or has ever been made to execute. The applicant’s heads made it clear that
pursuant to the deed of settlement the applicant had instructed the Sherriff at Chivhu to stay
execution of HC 10793/14 which execution was accordingly stayed on 26 May 2016.
Respondent’s gripe was therefore simply that despite these realities on the ground, proof had
not been furnished to it.
What the first respondent sought to rely on was therefore no more than a technical
argument in saying that the stay should have been communicated to it in writing in order for
it to pay what it owed. As Applicant rightly argued, no prejudice had befallen the 1 st
Respondent since the Applicant had in practical terms stayed the execution. This court
therefore dismissed this argument in the absence of a compelling reason why the 1 st
Respondent had not paid the instalments due.
Secondly, the first respondent argued that the relief sought was not in the Deed of
Settlement and that in terms of the deed, what applicant should have done was to seek to have
the Deed registered as an order of the court.
Clause 4 of the Deed read as follows:
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HH 151-18
HC 4045/16
Ref Case No. HC 4045/16
Ref Case No. HC 4041/16
Ref Case No. HC 10793/14
4. In the event that applicant fails to comply with any of the above clauses, this order
shall be registered as an order of court and the full amount owing at that time and
eviction shall immediately become due and payable to the first respondent and such
balance shall be executable.
Applicant explained that the terms of draft order were as per the initial court order in
HC 10793/14. In any event, what was sought in the event of non-payment was as per Deed of
Settlement, namely, the balance of what was owing and eviction, which order would become
executable upon being granted. Again, there was also no merit in this additional argument.
The first respondent’s final objection was to the form of application used. It argued
that the applicant had not followed r 241 in terms of using the appropriate Form given that
the application was to be served on an interested party.
R 241 clearly states that:
“A chamber application shall be made by means of an entry in the chamber book and
shall be accompanied by Form 29B duly completed and, except as is provided in sub
rule (2), shall be supported by one or more affidavits setting out the facts upon which
the applicant relies.
Provided that, where a chamber application is to be served on an interested party, it
shall be in Form No.29 with appropriate modifications.”
A stringent approach has often been taken by our court to the failure to use the
appropriate form, often justifying the removal of a case from the roll under various
circumstances of non-compliance. See Nyamhuka and Anor v Mapingure and Ors HH 29-17;
Justice Zvandasara ZRP High School & Anor HH 63-17; The Trustees Of The Apostolic
Faith Mission Of Africa v Zulu Rosewell & Ors HH 158-17; David Jack and Others v Lloyd
Mushipe and Others HH 318/15. Applicant’s chamber application was essentially in Form
29B which sets out the grounds for the application in summary form. On the other hand Form
29A, as has been observed in Marick Trading P/L v Old Mutual Life Assurance Company P/L
and the Sheriff for Zimbabwe 2015 (2) ZLR 341at p 345 E, which is used where there is an
interested party, notifies the respondent of the right to oppose the application among other
rights. As observed in Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 the use of
Form 29 instead of 29B or vice versa is not in itself detrimental in terms of constituting a
sufficient ground to dismiss an application. There must be some prejudiced suffered. This
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HH 151-18
HC 4045/16
Ref Case No. HC 4045/16
Ref Case No. HC 4041/16
Ref Case No. HC 10793/14
case before was certainly not one where a completely different format was used from the
authorised ones.
The court was in agreement that the first respondent had not in any way been
adversely affected by the Form used particularly in terms of responding to that application.
The chamber application was made on 24 August 2016. Regardless of which form has been
used, the general practice is to serve notice of a chamber application on the other side save in
exceptional ex parte applications. Granted where from 29B has been used, problems do
sometimes arise where the chamber application is placed for the judge’s attention without
giving the other side the requisite time to respond. In this instance, this was not the case. The
certificate of service that was attached showed that the chamber application was served on 25
August 2016 on the first respondent as the interested party albeit Form 29 applicable where
there is an interested party was not the one used.
The Registrar’s date stamp on the certificate of service was reflected as 1 September
2016. The first respondent, as an interested party, then filed its notice of opposition on 21
September 2016. Furthermore, the first respondent thereafter filed all necessary papers and
heads of argument in accordance with requisite timelines. There was therefore no prejudice
that was occasioned by failure to use the relevant form, being Form 29.
Whilst indeed adherence to rules allows for uniformity and coherence, clearly the
reasoning behind the use of the form should not be lost sight of in any particular case.
Granted lawyers ought to be chided for failure to observe rules, but it is equally vital that
technical rules that have caused zero prejudice should not be allowed to form the basis of
needless points in limine. There is a need to remain alive to the court’s ultimate role of
resolving disputes on their merits. I can put this no better than was stated in the case of Yost
v. Alderson, 58 Miss. 40
“But when the neglect is in the mere conduct of a suit, and its consequences do not
operate injuriously, its condonation by the judge can do no harm except to deprive the
adverse party of an advantage which he has secured in virtue of such neglect, and in
that case the party guilty of the neglect should not on that account alone be deprived
of the means and opportunity of maintaining or defending his rights. The object of the
institution of courts is to administer justice according to law, and lawsuits are allowed
for that purpose alone. Rules of procedure regulating the conducting of business in
courts are instituted solely to facilitate these ends. They are necessary, and their due
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HC 4045/16
Ref Case No. HC 4045/16
Ref Case No. HC 4041/16
Ref Case No. HC 10793/14
observance should be enforced by the courts. But it should not be forgotten that they
are aids to secure the administering of justice, not shackles to bind courts to the
perpetration of wrong. When their non-observance is in a trivial matter, working no
injury to the adverse party and not materially impeding the due progress of the cause,
the fault should be corrected...."
In this instance there was clearly no prejudice in terms of the filing of a response as
the first respondent in any event filed well in excess of the normally stipulated days for a
court application. There was therefore zero prejudice in the filing of its opposition arising
from the non-use of the stipulated form. There was nothing to be corrected and nothing to be
condoned as the first respondent had in fact had more than ample time to file its response.
What the justice of the case required was that the first respondent be held accountable for
what it owed instead of clinging to unstainable technicalities. It was never the first
respondent’s argument at any point that it was holding the Applicant’s monies and ready to
pay. It simply raised technicalities which were unstainable in light of the facts to avoid
payment.
It was for the above reasons that I granted the order sought by the Applicant and
indicated that I would reduce my oral reasons in writing.
Sawyer and Mkushi, applicant’s legal practitioners
Muza and Nyapadi, 1st respondent’s legal practitioners