Judgment No. HB 169/13
Case No. H.C 1605/13
X Ref HC 1594/13; X Ref H.C 2119/12
ABEL MUPATI
AND
ROSEMARY MUPATI
VERSUS
M.B.C.A. BANK LIMITED
IN THE HIGH COURT OF ZIMBABWE
MOYO J
BULAWAYO 5 DECEMBER 2013
Advocate L. Nkomo, for the Applicants
Mr N. Mazibuko, for the Respondent
Judgment
MOYO J: This is an application for condonation for the late noting of an application for a
stay of execution in terms of rule 348 A. In their application, the applicants explain that they
were of the view that the debt to the respondents was being serviced by the principal debtor.
They are co-principal debtors in the matter. 1st Application states that the writ of execution in
the matter was served on the 5th of December 2012 and the application for stay of execution in
terms of rule 348 was made on 2 August 2013.
In terms of the rule the application should have been made within ten days after the
service upon the execution debtor of the notice in terms of rule 347. That would mean the
application to stay execution should have been made in December 2012. The Application was
only made in August 2013. Applicant’s founding affidavit does not explain what then happened
between December 2012 and August 2013, the period of the delay, he simply states that the
principal debtor and the Respondent have always engaged each other in an attempt to solve
the matter. He also says he had always been assured by the principal debtor that the matter
was under control. He alleges that he thus did not wilfully neglect to make the application
within the prescribed time limits. Of particular importance is that nothing of substance turns
on the Applicant’s averments. The explanation for the delay must be reasonable, and
reasonableness can only be ascertained from the circumstances of the case. There is nothing
reasonable that applicant purportedly did upon being served with the notice of attachment.
From his own affidavit applicant fails to proffer a reasonable explanation for the delay. It is
trite law that in an application for condonation the court has to consider, the reasonableness of
the explanation for the delay and the defence offered on the merits of the case. Such was the
finding of the court in the case of Forestry Commission Vs Moyo, the learned Chief Justice
Gubbay as he then was stated thus:
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Judgment No. HB 169/13
Case No. H.C 1605/13
X Ref HC 1594/13; X Ref H.C 2119/12
One only has to have regard to the broad factors which a court should take into account in
deciding whether to condone such non-compliance, to appreciate the substantive application
to be made.
They are:1)
that the delay involved was not inordinate, having regard to the circumstances of the
case,
2)
that there is a reasonable explanation for the delay.
3)
That the prospects of success should the application be granted are good, and the
possible prejudice to the other party should the application be granted.
None of the above principles have been addressed in Applicant’s affidavit. Applicant
does not tell the court what precluded him from applying for the suspension of the sale in
execution from December 2012 to August 2013. Neither does he proffer a repayment plan to
convince the court that Respondent’s dues will indeed be paid so that the court can be in a
view to assess the reasonableness of the offer, as this has a bearing on applicant’s prospects of
success, as well as weighing the prejudice likely to be suffered by the Respondent. Not only
does applicant fail to explain the delay, but he further fails to make an offer towards the
liquidation of the debt to enable the court to appreciate that the applicant is indeed interested
and committed to settling the amount owing to the Respondent.
It is my view therefore that the application for condonation does not meet the test
applied in such cases and is thus devoid of merit. I accordingly dismiss the application with
costs.
Dube-Banda, Nzarayapenga & Partners, applicant’s legal practitioners
Calderwood, Bryce Hendrie & Partners, respondent’s legal practitioners
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