Tachi v Shamuyarira (HC 432 of 2017; HH 81 of 2017) [2017] ZWHHC 81 (1 February 2017)

1 HH 81 - 17 HC 432/17 BLESSED TACHI versus LYNET SHAMUYARIRA HIGH COURT OF ZIMBABWE ZHOU J HARARE, 23 & 25 January 2017 & 1 February 2017 Urgent Chamber Application Miss K. Jambwa, for the applicant Applicant in person ZHOU J: The applicant is the father of a minor child born out of a relationship with the respondent. On 15 December 2016 the respondent was granted a default judgment against the applicant by the Magistrates Court at Harare sitting as a maintenance court. In terms of the judgment the applicant was ordered to pay a sum of US$250.00 per month in respect of maintenance for the minor child. The applicant states that he became aware of the judgment on 19 December 2016. On 6 January 2017 he instituted an application in the same Magistrates Court seeking the rescission of the default judgment. That application is still pending and is due to be heard on 13 March 2017. After filing the application for rescission of judgment the applicant prepared an application which he sought to be heard on an ex parte basis. In that application the applicant was seeking a suspension of the order for him to pay US$250.00 per month, and proposed that pending the determination of his application for rescission of judgment he be directed to pay a monthly sum of US$100.00. When he presented the application for filing at the Magistrates Court the clerks there, apparently on the advice of the Magistrate, declined to accept or issue the application. On 12 January 2017 the applicant’s legal practitioners addressed a letter to the “Resident (sic) Magistrate” in which they drew attention to the refusal to accept the filing of the HH 81 - 17 HC 432/17 ex parte application. The Magistrate responded to the letter by making handwritten inscriptions on the copy of the letter in the following words: “Refer to section 13 of the Maintenance Act. It does not provide for this procedure you have undertaken. We are creatures of statute.” Miss Jambwa for the applicant advised that she was invited and given the letter with the above-quoted statements on 17 January 2017. On 18 January 2017 the applicant instituted the instant application under a certificate of urgency seeking the following provisional order: “TERMS OF FINAL ORDER SOUGHT 1. The execution of default judgment obtained by the respondent in Case No. M5021/16 be and is hereby stayed in part pending the determination of the application for rescission of default judgment. 2. The applicant be and is hereby ordered to pay the sum of US$100.00 per month pending the determination of the application for rescission of judgment. 3. Costs in the cause. TERMS OF INTERIM RELIEF GRANTED That pending the determination of this matter on the return day, the applicant be and is hereby granted the following relief: 1. That the execution of default judgment granted against the applicant and in favour of the respondent in Case No. M5021/16 be and is hereby stayed pending determination of this application (sic). 2. That the applicant be and is hereby ordered to pay the sum of US$100.00 per month pending the determination of this application for stay of execution of part of the judgment granted in default (sic). SERVICE OF THE PROVISIONAL ORDER 1. Leave is hereby granted to the applicant’s legal practitioners to serve a copy of this provisional order upon the respondent.” The matter was initially set down for argument on 23 January 2017. However, during argument by the respondent it became clear that she needed to file an affidavit to raise the issues which she was stating in her submissions. The matter was accordingly postponed to 25 January 2017 on which day the respondent filed her opposing affidavit. The respondent objected in limine to the hearing of the matter on the merits on two grounds. The first ground of objection was that the matter is not urgent. That ground can be easily disposed of. The relief which is being sought is the suspension of the order of the Magistrates Court. That order is now effective. The applicant approached the Magistrates Court for relief but the relief was declined without the matter being placed before the Magistrates at all. Thereafter he sought audience by letter dated HH 81 - 17 HC 432/17 12 January 2017. He filed the instant application on 18 January 2017, just a day after the meeting with the Magistrate. He therefore did all that he could without waiting for the day of reckoning to arrive. For those reasons, I am prepared to deal with the matter on an urgent basis. The second ground of objection is that the applicant is inviting this court to determine an appeal against the Magistrates Court’s refusal to grant stay of execution. The Magistrates’ Court did not refuse to grant a stay of execution because that matter was never placed before a Magistrate. Instead, there was refusal to issue the applicant’s application. The procedure whereby clerks or officers of court or even Magistrate decline to have an application filed is grossly irregular. The question of whether the Magistrates Court has jurisdiction to hear a matter cannot be determined by clerks or other officers of the Magistrates Court but by a Magistrate who is seized with a matter after it has been filed. It is not open to the officers of that court, whether acting mero motu or upon the instruction of a Magistrate to decline to issue an application on the basis of a belief of want of jurisdiction. The question of whether the court had jurisdiction could only be determined after the application had been filed. That is not what happened in the present case. The respondent is therefore mistaken in submitting that the application in casu is an appeal. The proceedings, which were in the form of a meeting, at which the Magistrate responded to the letter from the applicant’s legal practitioner cannot be elevated to a determination of the matter because there was no matter which was pending before the Magistrate when he commented in his handwritten notes referred to above. The Magistrate was essentially responding to a letter and not making a determination on the issue of jurisdiction. Having declined to issue the application, the issue of the stay of execution was never placed before the Magistrates Court. There was therefore no judgment which the applicant could appeal against. For the above reasons, too, the objection is without merit. On the merits, it is common cause that the applicant has instituted an application for the setting aside of the judgment given in default. He has no remedy available to him to secure the suspension of the order or a portion of it pending the determination of that application given the refusal by the officers at the Magistrates Court to have the application filed. The issue of the merits of the application for rescission of judgment is for the Magistrates Court to determine. This court’s concern is only on whether real and substantial justice demands that the order for the applicant to pay a monthly sum of US$250.00 be suspended pending the determination of the HH 81 - 17 HC 432/17 application for rescission of the judgment given in default against the applicant. See Mupini v Makoni 1993 (1) ZLR 80(S) at 83 B-C; Chibanda v King 1983 (1) ZLR 116(H) at 119 C-H; Santam Insurance Co Ltd v Paget (2) 1981 ZLR 132 (G) at 134 G-135 B. Although the order which is sought to be suspended in the present case is that of the Magistrates Court, the door has been shut to the applicant in such a way that he has no way of seeking recourse in that Court. It would be an injustice for this court to leave him without a remedy. The applicant will be arrested and, possibly, incarcerated if he fails to pay the amount awarded by the Magistrates Court. On the other hand, the respondent will not be irreparably prejudiced by the provisional order being sought as the order for maintenance can still be enforced in its present form if the applicant’s application for rescission of judgment fails. Real and substantial justice therefore dictates that the relief being sought be granted. In the result, relief is granted in terms of the draft provisional order as amended. Magwaliba & Kwirira, applicant’s legal practitioners