Mbada Diamonds (Private) Limited v Pungwe Mining (Private) Limited and Others

The applicant signed an acknowledgment of debt in favour of the first respondent on 28 January 2014 for $3,603,986.84. The first respondent obtained an unopposed provisional sentence order against the applicant on 27 May 2015 for $3,188,787.09 under HC 3964/15. The first respondent issued a writ of execution on 28 August 2015 and a notice of seizure on 29 March 2016, resulting in attachment and removal of two vehicles. The sale in execution was advertised for 23 April 2016. The second respondent also obtained a provisional sentence order under HC 2012/15 and attached the same property on 30 March 2016. The Sheriff directed that the executions be joined under Order 40 r 331. On 23 April 2016 (the day of the sale), the applicant filed an urgent application to stay execution. The applicant claimed that ZIMRA had issued a tax directive on 30 May 2014 against the first respondent for $2,119,768.77, which should have reduced the amount owed, and filed applications for rescission of the provisional sentence order and cancellation of the writ on 21 April 2016. The applicant had acknowledged the debt in writing on 9 August 2015 and paid $70,000 towards it on 12 August 2015.

• Whether the matter was properly brought on an urgent basis
• Whether the applicant provided a valid certificate of urgency
• Whether the applicant's delay in bringing the application was adequately explained
• Whether the joinder of the second respondent to the execution was proper under Order 40 r 331
• Whether the application constituted an abuse of court process

The matter was removed from the roll as not urgent. The applicant was ordered to pay the costs of the application.

An applicant seeking urgent relief to stay execution must demonstrate that: (1) it treated the matter as urgent by acting when the need to act arose; (2) the certificate of urgency adequately explains any delay in bringing the application; (3) irreparable harm will occur if the matter is not dealt with urgently; and (4) the urgency is not self-created. A party who is aware of grounds to challenge a judgment or writ but fails to act timeously when the writ is issued, when property is attached, or when property is removed, cannot obtain urgent relief on the date of sale merely because execution is imminent. Self-created urgency does not entitle an applicant to preferential treatment ahead of other matters on the court roll. Under Order 40 r 331(1), where property belonging to a judgment debtor has been seized in execution and another creditor proves entitlement to share in the proceeds, the Sheriff may direct that the execution be joint and the proceeds be shared between creditors, and such joinder applies to both movable and immovable property.

The court observed that it has become "stylish for legal practitioners to try and stop sales in execution on the ground that the order obtained comprises of tax dues." The court noted that the same rules employed in determining urgency apply to such challenges, and parties cannot wait a year after a tax directive to challenge an order on the eve of sale. The court remarked that the applicant's conduct was "most undesirable" and that the applicant was "clearly employing delaying tactics to avoid payment of debts lawfully determined." The court indicated that if the applicant had genuine concerns about the amount granted, it would have taken positive action earlier rather than waiting until 21 April 2016. The court suggested that had it been necessary to deal with other preliminary points raised, the point regarding urgency alone disposed of the application.

This case is significant in Zimbabwean law (also relevant to South African jurisprudence given similar procedural rules) for establishing important principles regarding urgent applications to stay execution. It emphasizes that: (1) mere labelling of an application as urgent and attaching a certificate of urgency does not render a matter urgent; (2) applicants must act when the need to act arises, not wait until the date of sale; (3) a valid certificate of urgency must adequately explain any delays in bringing the application; (4) matters do not become urgent simply because tax obligations exist or because property is advertised for sale; (5) courts will not countenance abuse of process where applications are filed at the 11th hour to frustrate legitimate execution proceedings; and (6) the principles in Kuvarega v Registrar General regarding urgency apply equally to applications to stay execution. The case also clarifies the operation of Order 40 r 331 regarding joinder of multiple creditors in execution proceedings over the same property.