Sports / Soccer
Dynamos might still lose its name and logo to Qotho Finance
15 Apr 2013 at 04:20hrs | Views
Dynamos Football Club might, after all, still lose its name and logo to Qotho Finance, despite furnishing the Messenger of Court on Friday with a rescission order granted in September last year, but could still kill the case simply by paying the sum demanded and associated costs.
The rescission order was granted against a default judgment granted in favour of Qotho Finance, after Dynamos said it needed to defend itself but ever since the order was granted, Dynamos has done nothing to defend itself.
Under normal circumstances Dynamos was supposed to file its pleadings within three weeks of the order rescinding the default judgment.
The court can decline to hear Dynamos' case citing time lapse should the football club seek condonation to file its papers out of time.
Qotho Finance, has indicated that it will apply to have Dynamos barred from resuscitating the case, citing the lapse of the stipulated time as proscribed by the law.
Dynamos allegedly owes Qotho Finance US$4 900 and the company is seeking to strip the Harare football club of its trade name and logo, until the alleged debt is paid although this action is more of applying pressure to settle the debt.
Lawyers representing Dynamos furnished the Messenger of Court with an order from a Magistrates' Court showing that indeed there was a rescission of an earlier order granted in default- directing Dynamos to pay Qotho Finance the outstanding amount.
Yesterday, the Harare giants did not show evidence that it pursued the case after it had been thrown a lifeline, leaving it exposed to the risk of really losing its name as part of efforts to enforce the court judgment.
The letter written by lawyers representing Dynamos makes reference to the rescission of judgment but was silent on what legal steps it took to defend the lawsuit against it.
"We refer to our letter today, as per our earlier undertaking, attach hereto copy of the order issued by the magistrate court on September 2012 effectively confirming the rescission of the Default judgment No 5449/12.
"Having now furnished you with the relevant Court Order, we do not expect that your office will continue with the enforcement of a default judgment in question for the simple reason that the writ of execution in question was improperly issued by Qotho Finance," read the letter.
But a legal source close to the saga said Qotho Finance could still enforce the judgment because Dynamos should have filed papers defending the lawsuit.
"In the absence of demonstratable evidence that Dynamos filed their papers to allow the case to proceed and be heard then the Messenger of Court can proceed to enforce the judgment.
"The purpose of a rescission of judgment is to afford another party to be heard, and in this case Dynamos approached the court asking to be heard which was duly granted; God knows if they subsequently filed papers.
"The defendant was given a platform to defend its case but in this case no such evidence was shown to the Messenger of Court to warrant him to hold in abeyance the enforcement of the court judgment," said the source.
According to the court records, Dynamos was granted condonation to file their papers out of time.
"It is ordered that the Applicant (Dynamos) be and is hereby granted condonation for late noting of the Application for Rescission of the Default judgments granted under Number MC5449/12 and MC 5450/12," read the order.
"The default judgment granted against Dynamos football club in Case Number MC5449/12, MC5450/12 be and is hereby rescinded."
Last week, the popular club had poured cold water on the claim, saying it obtained a court judgment last year rescinding the order..
Lawyers representing Dynamos have written to the Messenger of Court, who was enforcing the judgment, alleging that the writ of execution attaching the club's trade name and logo was obtained improperly.
"We bring to your attention that a default judgment on the basis of which the said attachment is purported to be effected had been rescinded on September 25, 2012," said the lawyers, Gill Godlonton and Gerrans.
Lawyers for the popular Harare giants had indicated that they would advise their client to make a police report for fraud.
"We have already brought to the attention of the applicant in this matter that its conduct in causing the clerk of court to issue a writ of execution when it was very well aware of the fact that the judgment in question had been rescinded is quite clearly fraudulent and therefore criminal," said the club's lawyers.
The rescission order was granted against a default judgment granted in favour of Qotho Finance, after Dynamos said it needed to defend itself but ever since the order was granted, Dynamos has done nothing to defend itself.
Under normal circumstances Dynamos was supposed to file its pleadings within three weeks of the order rescinding the default judgment.
The court can decline to hear Dynamos' case citing time lapse should the football club seek condonation to file its papers out of time.
Qotho Finance, has indicated that it will apply to have Dynamos barred from resuscitating the case, citing the lapse of the stipulated time as proscribed by the law.
Dynamos allegedly owes Qotho Finance US$4 900 and the company is seeking to strip the Harare football club of its trade name and logo, until the alleged debt is paid although this action is more of applying pressure to settle the debt.
Lawyers representing Dynamos furnished the Messenger of Court with an order from a Magistrates' Court showing that indeed there was a rescission of an earlier order granted in default- directing Dynamos to pay Qotho Finance the outstanding amount.
Yesterday, the Harare giants did not show evidence that it pursued the case after it had been thrown a lifeline, leaving it exposed to the risk of really losing its name as part of efforts to enforce the court judgment.
The letter written by lawyers representing Dynamos makes reference to the rescission of judgment but was silent on what legal steps it took to defend the lawsuit against it.
"We refer to our letter today, as per our earlier undertaking, attach hereto copy of the order issued by the magistrate court on September 2012 effectively confirming the rescission of the Default judgment No 5449/12.
"Having now furnished you with the relevant Court Order, we do not expect that your office will continue with the enforcement of a default judgment in question for the simple reason that the writ of execution in question was improperly issued by Qotho Finance," read the letter.
But a legal source close to the saga said Qotho Finance could still enforce the judgment because Dynamos should have filed papers defending the lawsuit.
"In the absence of demonstratable evidence that Dynamos filed their papers to allow the case to proceed and be heard then the Messenger of Court can proceed to enforce the judgment.
"The purpose of a rescission of judgment is to afford another party to be heard, and in this case Dynamos approached the court asking to be heard which was duly granted; God knows if they subsequently filed papers.
"The defendant was given a platform to defend its case but in this case no such evidence was shown to the Messenger of Court to warrant him to hold in abeyance the enforcement of the court judgment," said the source.
According to the court records, Dynamos was granted condonation to file their papers out of time.
"It is ordered that the Applicant (Dynamos) be and is hereby granted condonation for late noting of the Application for Rescission of the Default judgments granted under Number MC5449/12 and MC 5450/12," read the order.
"The default judgment granted against Dynamos football club in Case Number MC5449/12, MC5450/12 be and is hereby rescinded."
Last week, the popular club had poured cold water on the claim, saying it obtained a court judgment last year rescinding the order..
Lawyers representing Dynamos have written to the Messenger of Court, who was enforcing the judgment, alleging that the writ of execution attaching the club's trade name and logo was obtained improperly.
"We bring to your attention that a default judgment on the basis of which the said attachment is purported to be effected had been rescinded on September 25, 2012," said the lawyers, Gill Godlonton and Gerrans.
Lawyers for the popular Harare giants had indicated that they would advise their client to make a police report for fraud.
"We have already brought to the attention of the applicant in this matter that its conduct in causing the clerk of court to issue a writ of execution when it was very well aware of the fact that the judgment in question had been rescinded is quite clearly fraudulent and therefore criminal," said the club's lawyers.
Source - TH
