HH 240-18 KENNETH SCHOFIELD versus FBC BANK LIMITED and Anor

KENNETH SCHOFIELD

versus

FBC BANK LIMITED

and

THE SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O

 

 

 

HIGH COURT OF ZIMBABWE

CHIKOWERO J

HARARE 2, 3 & 4 May 2018

 

 

Urgent Chamber Application

 

H. Mutasa, for the applicant

Advocate T Zhuwarara, for the 1st respondent

2nd respondent in default

 

 

CHIKOWERO J: On April 27th 2018 applicant filed an urgent chamber application for suspension of a sale in execution of a dwelling in terms of Rule 348A (5b) of the High Court Rules, 1971.

In line with rule 348A (6) l treated this matter as urgent. I caused it to be set down for May 2nd at 2.30pm for hearing as soon as it was allocated to me.

Opposing papers were duly filed on April 30th 2018, and served. The parties and their legal practitioners appeared before and, by consent, the matter was postponed to May 3rd 2018 at 9.00am to enable the applicant’s legal practitioner to reconsider whether to proceed with the application. This was occasioned by the points in limine raised in 1st respondent’s opposing affidavit.

I also took the opportunity to point out to both parties to consider whether the matter was properly before me in view of this court’s decision in Masimbe v Rainbow Tourism Group 2016 (1) ZLR 367. I pause to remark that when l was preparing this judgment l noted that the application was meant to be brought under rule 348A (5a) and not (5b).

Rule 348A (5b) provides for the form in terms of which the application in terms of 348A (5a) must be brought. The form is provided in the rules as Form no. 45b. The citation of the incorrect subrule prejudiced no one. I ignored it.

 

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2018