Shah v Mugadza (HC 6899 of 2010) [2015] ZWHHC 489 (19 February 2015)

1 HH 489-15 HC 6899/10 JAYESH SHAH versus PHILLIP MUGADZA HIGH COURT OF ZIMBABWE UCHENA J HARARE, 20 February 2015 Opposed Matter I Chagonda, for the plaintiff V Mukwachari, for the defendant UCHENA J: This is an application for delivery of goods bought by the applicant from the respondent. The fact that there was an agreement of sell is not in dispute. The respondent says so and the applicant says so. Both parties signed documents proving that there was that agreement. On p 5 is a document signed by Phillip Mugadza addressed to whom it may concern where he specifically tells whoever was to be concerned that he had sold two motor vehicles, a Toyota Hilux pick up and a Mercedes Benz which he was agreeing should be transferred into the applicant’s name. On page 6, the same respondent says this note serves to confirm that I have sold my Toyota Hilux, (and he then gives the year and details of the motor vehicles), to Mr Jayesh Shah of Alshams Global. He signed that document. He also signed a document through which he was to receive money from the bank which was signed by the applicant authorising his bank to pay the respondent and the respondent counter-signed and was paid. In his defence which he called partial defence, he said all that was in issue was that he had been allowed to hold on to the motor vehicle for a while. It is now common cause that a demand has been made. An application has been made to which he has responded, feebly to the effect that he was given a bit of time to hold on to it. He does not say he did not sell it. He does not say he is to keep it forever. The purchaser to whom he HH 489-15 HC 6899/10 sold the stand and the Toyota Hilux now wants delivery. It is clear that he is entitled to specific performance. The respondent belatedly sort a postponement which was aimed at facilitating an application which would have the effect of changing the respondent’s opposition before this court. I refused to grant that application because I am firmly of the view that this is an abuse of court process. Where a party has filed documents and those documents have not been withdrawn and they remain before the court, the court is entitled to proceed on the basis of the documents before it. The court should not encourage the creation of defences or the abuse of its process by allowing frivolous postponements. It is for those reasons that I refused to grant a postponement and ordered parties to proceed with their submissions on the application before me. Mr Chagonda sought costs on a higher scale and de bonnis propiis. This is an issue I would have been inclined to seriously consider but it seems the client has chosen legal practitioners who he is possibly giving instructions to contradict what is already on record. It is only fair that the respondent himself pay costs on the high scale. In the result the applicant’s application is granted in terms of the draft order and the respondent shall pay costs on the higher scale. Uriri Attorneys-At-Law, applicant’s legal practitioners Muvingi, Mugadza & Associates, respondent’s legal practitioners