Vearnacy (Private) Limited AND Bhikhubhai Vallabhidas Nagar AND Nitesh Bhikhubhai Nagar V Interfin Banking Corporation Limited T/a Interfin BANK (Under Curatorship) AND THE Sheriff OF Zimbabwe

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HH 469-13
HC 9657/13
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VEARNACY (PRIVATE) LIMITED

and

BHIKHUBHAI VALLABHIDAS NAGAR

and

NITESH BHIKHUBHAI   NAGAR

versus

INTERFIN BANKING CORPORATION LIMITED

t/a INTERFIN BANK (under curatorship)

and

THE SHERIFF OF ZIMBABWE

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE, 15 November and 20 November and 2 December 2013

Urgent Chamber Application

H. Mutasa, for the plaintiff

Advocate L. Uriri, for the defendant

MANGOTA J: The present application was set down for hearing on 15 November 2013. On the mentioned date, both parties appeared and, by consent, sought a postponement of the hearing to 2.30 pm on Wednesday 20 November 2013. The postponement aimed at affording the parties an opportunity to discuss the case amongst, and between, themselves with a view to arriving at a settlement. The postponement was premised on the following two conditions which were that:

during the period of the postponement, the parties continue to observe and respect the status quo -  and

the applicants pay the costs of the day’s hearing.

At 2.30 pm of the day to which the case had been postponed, the parties appeared and sought a further postponement. The second postponement was necessitated by the fact that the first respondent’s legal practitioner, Advocate Uriri, was unavailable as he was said to have been tied down in a matter which he was dealing with at the Supreme Court. The hearing was, accordingly, postponed subject to the conditions that:

the first respondent would file its opposing papers with the court upon, or before, close of business on Friday 22 November, 2013 and serve the same on the applicants upon, or before, close of business on Monday, 25 November, 2013,

the applicants would file with the court their answering  papers upon, or before, close of business on Wednesday, 27 November, 2013,

the parties continue to observe and respect the status quo of the case - and

the first respondent pays the costs of the day’s hearing in the sum of $300-00.

The first respondent did not file its opposing papers on the day which the parties and the court agreed that it would do so. It did not, on the mentioned day, profer any explanation for its inaction. It simply remained silent about that matter much to the displeasure of the court and the applicants who had filed their application with the court on an urgent basis.

At 2.15 pm on Tuesday, 26 November 2013 the registrar placed before me a letter which the first respondent’s legal practitioner addressed to the registrar on Friday 22 November 2013. The letter in question reads, in part, as follows:

“........... please, be advised that Advocate Uriri has requested additional time to finalise and file the first respondent’s submissions on this matter. He has advised that the submissions will be filed on Monday, 25 November 2013...........”

The letter which the first respondent’s legal practitioners wrote to the registrar was copied to the applicants’ legal practitioners presumably for the information of their clients and themselves. On the date which the first respondent’s legal practitioners advised that the first respondent’s submissions will be filed, the court received nothing. It gave the first respondent another chance within which it would file its submissions. It, accordingly, waited until close of business on Tuesday, 26 November 2013 when the court, once again, received nothing in the form of submissions from the first respondent. It is, on the basis of the foregoing breaches by the first respondent of agreed, and requested, time lines that the court will proceed to treat the present case as falling under an unopposed application where the court remains at large to decide the matter as it considers to be just and equitable.

The history of this application commenced on 25 March 2013 when the first respondent caused to be issued out of this court a provisional sentence summons. It claimed from the applicants, jointly and severally, provisional sentence in the sum of $142 620-01 with interest thereon of 20% per annum from 14 March 2013 to the date of payment in full.

The applicants who are a duly incorporated company and its two directors opposed the claim of the first respondent. The first respondent filed its answering affidavit as a result of which the matter was argued in court. After hearing the parties, the court granted provisional sentence to the first respondent.

The attachment and the intended sale of their goods by the second respondent prompted the applicants to file this application with the court. They prayed the court to stay execution of the provisional sentence which the first respondent obtained against them. They prayed that the execution in question be stayed pending finalisation of their appeal in relation to:

the issue of security de restituendo    which the registrar of this court determined - and

their application to this court for leave to appeal to the Supreme Court against the court a quo’s  decision in which it granted provisional sentence to the first respondent.

The court which dealt with the provisional sentence summons heard the parties and delivered its judgement on the matter on 1 November 2013. It directed that execution of the provisional sentence could only be effected upon payment by the first respondent of security de restituendo    as is provided in r 31 of the rules of this court.

The High Court registrar prepared his determination in regard to the issue of security de restituendo   on 14 October 2013. He did so in accordance with r(r) 30, 31 and 32 of the rules of this court. Due to an oversight on his part, the registrar did not send the determination which he had prepared to the applicants’ legal practitioners or to the applicants themselves. These remained unaware of the registrar’s determination until on, or around, 1 November, 2013. This was after their legal practitioners had written and inquired from the first respondent’s legal practitioners as regards the existence, or otherwise, of the determination.

The applicants read the determination and noted, as part of its contents, that:

the security which the registrar determined was in the form of a bond of indemnity issued by the first respondent’s legal practitioners -  and

the security in question was set at 15% of the judgement debt.

The applicants were aggrieved by the registrar’s determination. They, accordingly, appealed against it. Their grounds of appeal were twofold and they were that:

the registrar should not have allowed security de restituendo to be filed in the form of a bond of indemnity -  and

security de restituendo should have been equal to, and not less than, the amount of the judgement debt.

The registrar, it is noted, fixed security de restituendo at 15% of the judgement debt. That percentage of the judgement debt amounts to $18 414-30.

The applicants’ appeal on the above mentioned matter is pending before this court. Their application for leave to appeal to the Supreme Court against the decision of the court a quo which granted provisional sentence to the first respondent is also pending before this court.

The appeal and the application are not the business of this court. Another court, or other courts, will deal with those two matters. The applicants made mention of them as a way of convincing the court of the fact that the matter which relates to the execution of the provisional sentence by the first respondent should not be proceeded with until the appeal and the application have been heard and /or determined.

What the court is called upon to do in casu is to decide whether, or not, the application of the applicants is urgent and, if so, whether, or not, the applicants treated their case with the urgency that it deserves.

Ex facie the papers, the application cannot be said not to be an urgent one. As has already been stated, the second respondent attached the applicants’ goods on 8 November 2013. He gave the applicants two days within which they had to act and save the situation or lose their goods which he would sell pursuant to the provisional sentence which the court had granted to the first respondent. The applicants spent the first of the two-day period which the second respondent had accorded to them drafting their application and attaching to it the necessary annexures which supported their case. They filed their application on the second day. They made every effort to remain within the two-day period which the second respondent stipulated. There is, therefore, no doubt that they treated the matter with the urgency which it deserves.  The first respondent did not oppose the application. It gave no reason at all for its lack of response within the time that it said it would respond or the time that it requested to be allowed to respond. Whatever papers which it files outside the agreed, or requested and allowed, time cannot be taken into account in the determination of the present application.

The first respondent’s conduct cannot go uncensured. That conduct, if allowed to persist, places courts in very invidious situations where they have to pander to the whims of litigants and their legal practitioners who, though they are officers of the court, show little, if any, respect to the institution upon which society thrust with the duty of meting out justice to all manner of people who approach the courts in search of it. The court’s sworn duty is to dispense justice to all people without fear or favour.

The court is satisfied that the applicants have proved, on a balance of probabilities, their case against the respondents. It is, in the premise, ordered that:

the application be, and is hereby, granted.

the first respondent pays the costs of this application on a higher scale.

Gill, Godlonton & Gerrans, applicant’s legal practitioners

Dube, Manikai & Hwacha, first respondent’s legal practitioners