Daniel Nemukuyu Senior Court Reporter
The High Court has suspended the attachment and execution of property belonging to Seke legislator Cde Phineas Chihota pending determination of his application for rescission of judgment.
Cde Chihota, the director of Wallace Laboratories, had his property attached by a former employee over an alleged unpaid debt, but he contested the case on the basis that the default judgment relied upon was fraudulently obtained.
The former employee, Mr David Mabuwa, applied for default judgment, arguing that Cde Chihota had not filed his plea but the court, without pre-empting the judgment on the rescission application, hinted that Cde Chihota had properly and timeously filed his plea.
Justice Hlekani Mwayera provisionally set aside the writ of execution on the basis that Cde Chihota’s challenge had high prospects of success.
“In any event, given that the applicants filed their plea timeously, there are reasonable prospects of success in the application for rescission,” ruled Justice Mweyera.
“Clearly, the applicants filed their plea timeously. The default judgment granted on the basis of there being no plea is likely to be rescinded and the matter delved into, to its logical conclusion on merit.”
To that end, Justice Mwayera ordered stay of execution.
“The writ of execution issued by this Honourable Court on December 9 2015 under case number HC5319/10 be and is hereby stayed.”
Cde Chihota and his co-director in Wallace Laboratories were served with summons for a claim of $30 000 by Mr Mabuwa on August 2, 2010.
The two entered an appearance to defend and filed their plea within the stipulated times.
While the pair was waiting for further processes, they were surprised to learn that a default judgment had been granted against them.
They filed an application for rescission of the judgment and filed a separate urgent chamber application to stay execution.
The Sheriff, on the basis of the contested default judgment, wanted to attach Cde Chihota’s vehicle and an assortment of household goods.