Nhachi v A B Mining & Equipment (Pvt) Ltd (HB 52 of 2006) [2006] ZWBHC 52 (31 May 2006)

Judgment No. HB 52/06 Case No. HC 920/04 X Ref HC 2635/01 CLIVE ROBERT TERRY Versus COMMERCIAL BANK OF ZIMBABWE IN THE HIGH COURT OF ZIMBABWE NDOU J BULAWAYO 4 APRIL 2005 AND 1 JUNE 2006 D M Campbell, for the applicant M Munjanja, for the respondent Opposed Application NDOU J: On 4 July 2005 I granted an order in the following terms: “It is ordered that: 1. 2. Respondent be, as it hereby is found guilty of contempt of this honourable court and fined the sum of $100 000,00. Respondent pay the costs of this application on a scale between legal practitioner and own client” I gave brief reasons at the time the order was granted. The respondent has noted an appeal against the said order and I have been requested to furnish full reasons. These are the reasons. The salient facts of this matter are that in April 1989 applicant bound himself as surety for overdraft facilities granted by respondent to Trust Insurance Brokers (Pvt) Ltd and mortgaged his immovable property as security for his obligation. In November 2001 applicant offered to pay respondent an amount to free himself from his obligation and secure for himself cancellation of the mortgage bond and the return of his title deeds. The offer was accepted HB 52/06 by respondent in February 2002 and the amount was paid on 15 March 2002. Despite this agreement between the parties and the payment of the amount agreed upon respondent failed, neglected or refused to clear applicant’s title deed and return it to him claiming it had lost the title deed. The respondent eventually secured relief in terms of an order of this court granted on 25 July 2003 in case HC 2635/01. The said order provides, inter alia, the following terms: “1. … 2. That respondent be, as it hereby is, ordered to cancel the mortgage bond passed in its favour by applicant on 20 November 1989 (registered number 5528/89), and return to applicant his title deed in respect of the property hypothecated under the said bond within 90 days of service of this order.” This order was granted in the presence of the respondent’s legal practitioner. Despite this and the expiry of the 90 day time limit imposed therein respondent had not complied as at April 2004, that is, some nine months later. The applicant felt that he was left with no option but to bring this application. The respondent argued that the time limit imposed was too short to enable it to comply with the court order, and that it was acting as expeditiously as it can to comply. As alluded to above, the respondent was represented when the order was made in court and made no objection to the time limit imposed therein at that time nor has it asked, even informally of the applicant, for any extension thereof. Although strictly speaking the time limit was to run from the date of service of the order (20 August 2003), one might have expected an honourable and conscientious 52/06 HB respondent to set in motion the necessary proceedings the moment the order was granted on 25 July 2003 (in presence of its legal practitioner). Instead the respondent’s legal practitioners wrote a misleading letter to the applicant’s legal practitioner on 30 July 2003. In the said letter they purported to have noted an appeal against the order of this court in HC 2635/01, supra. They also somewhat insolently suggested that the respondent may or may not “choose to supply” the title deeds. There was no such notice of appeal filed with the Supreme Court. The respondent did nothing until publication of an advertisement in the Government Gazette on 5 December 2003 for the issue of a copy of a lost title deed. This was well after the expiry date allowed by the court for the completion of the entire exercise. No publication was made in a local newspaper as required by section 22 of the Deeds Registries Regulations 1977 (RGN 249/1977) until 6 February 2004, nor was the necessary application or solemn declaration called by section 20(4) of the Regulations submitted to applicant for signature until 12 March 2004. Respondent offered no one word of explanation or excuse for these delays and it is apparent that it was not in the least concerned to ensure that it obeyed the court order. Further, in the founding affidavit reference is made to possibility of the mortgage bond itself having been lost as well as the title deed. No answer is made to this possibility in the respondent’s papers, but if the mortgage bond is also lost then the special procedure prescribed in Part VII of the regulations, supra, must be followed, and nothing yet seems to have been done in this regard. It is clear that the respondent is not HB 52/06 prepared to comply with the order unless pushed to do so by the applicant. It has to be inferred that the respondent is in wilful default of the court order – Macheka v Moyo HB-78-03 and Lindsay v Lindsay (2) 1995 (1) ZLR I (S). It is for these reasons that I granted the above order. Calderwood, Bryce Hendrie & Partners, applicant’s legal practitioners Cheda & Partners, respondent’s legal practitioners