REPORTABLE ZLR (4)

Judgment No SC 54/07

Civil Appeal 209/06

LONGMAN ZIMBABWE (PRIVATE) LIMITED v J

MIDZI AND FIVE OTHERS

SUPREME COURT OF ZIMBABWE

SANDURA JA, GWAUNZA JA & GARWE JA

HARARE, MAY 7, 2007 & MARCH 11, 2008

T Biti, for the appellant

P C Paul, for the respondents

GARWE JA: The facts of this case are to a large extent common cause. The appellant is the registered owner of the immovable property known as Paternoster Court situate at 157 Josiah Chinamano Avenue, Harare. The respondents are statutory tenants at the property. On 27 May 2003 the appellant gave two months notice to the respondents to vacate the property on the basis that certain internal and external structural renovations were to be effected on the property. Thereafter on 20 August 2003 the appellant further advised the respondents that it wished to repossess the premises for use by its own members of staff and further that the occupation by its members was to be preceded by structural renovations. In that notice the appellant also gave the respondents two calendar months to vacate the premises. In the meantime an application had been lodged with the Rent Board for the ejectment of the respondents. The application was heard by the Board in June 2004. The Rent Board, satisfied that the appellant wanted the premises for use by its own employees and further that due notice had been given to the respondents, granted the application on 18 June 2004. On 21 June 2004 the Board further issued a certificate permitting the ejectment of the respondents. The respondents did not move. Instead they appealed against the decision of the Board to the Administrative Court. The appellant then instituted an action in the High Court seeking the ejectment of the respondents as well as holding over damages. The action in the High Court was predicated on the notice given by the appellant to the respondents on 20 August 2003 as well as the individual certificates of ejectment issued by the Rent Board on 21 June 2004. The respondents opposed the relief sought on four bases. These were, firstly, that the letters purporting to give two months notice were not proper notices in terms of the Rent Regulations; secondly, that the appellant did not require the flats for use by its own employees; thirdly, that a company cannot give a valid notice in terms of s 32(c) of the Rent Regulations; and fourthly, that the certificates of ejectment were not issued in terms of s 30 of the Regulations.

At the hearing of the matter before the High Court, the trial Judge found that the notice given by the appellant to the respondents was defective in that it did not specify for whose personal occupation the premises were required. However, he also came to the conclusion that the effect of the noting of the appeal by the respondents against the certificate of ejectment was to suspend the decision of the Rent Board. On that basis he dismissed the appellant’s claim with costs.

It is against the decision of the High Court dismissing its claim that the appellant has appealed to this Court. In its heads of argument, the appellant submits that the main issue is whether or not the court a quo was correct in finding that the notice of appeal had the effect of suspending the ejectment order. The appellant has urged this Court to find that, except where a court enjoys original jurisdiction, the noting of an appeal against the decision of that court does not have the effect of suspending the judgment of the court.

The respondents accept that this was one of the issues for determination before the court a quo. They urge this Court to find that an appeal in these circumstances does have the effect of suspending the order. The respondents submit, however, that it is not necessary to decide this point. They argue that the notice to vacate was defective in a number of respects; it did not specify the name of the person for whose personal occupation the dwelling was required, it did not specify the nature of the reconstruction as required by s 30(3)(b) of the Regulations; it further did not specify that the premises were required for the personal occupation of the appellant’s employees but instead stated that the premises were required for the use of its employees; and lastly that contrary to s 30(4) of the Rent Regulations, no certificate has been issued by the Board to the effect that the requirement that the lessee vacate the dwelling is fair and reasonable and the date specified in the certificate for the vacation of the dwelling has passed.

The relevant provisions of the Rent Regulations are to be found under s 30 of the Rent Regulations SI 626/82. Subsections (2), (3) and (4) in particular provide as follows:

“(2) Subject to the provisions of this section, no order for the recovery of possession of a dwelling or for the ejectment of a lessee therefrom, which is based on the fact of the lease having expired, either by effluxion of time or in consequence of notice duly given by the lessor, shall be made by any court so long as the lessee continues to pay the rent due within seven days of due date and performs the other conditions of the lease, unless, in addition –

1. the lessee has done, or is doing, material damage to the dwelling; or

2. the lessee has been guilty of conduct likely to cause material damage to the dwelling or material or substantial inconvenience to occupiers of neighbouring or adjoining property or to the lessor; or

3. the lessor has given the lessee not less than two months’ written notice to vacate the dwelling on the ground that the dwelling is required -

1. by the owner; or

2. where the lessee is a sublessee, by the person letting the dwelling to the sublessee;

for his personal residential occupation or the personal occupation of his parent, child or employee; or

4. the lessor has given the lessee not less than two months’ written notice to vacate the dwelling on the ground that the dwelling is required for the purpose of a reconstruction or rebuilding scheme, and the nature of such reconstruction or rebuilding would preclude human habitation; or

3. No notice to vacate a dwelling given by a lessor for the purpose of –

1. paragraph (c) of subsection (2) shall be of any force or effect -

1. if it does not specify the person for whose personal occupation the dwelling is required; and

2. if it is given by a person who is not the owner or lessee who sublets the dwelling, unless the person giving such notice has previously been furnished with a request, in writing, to give such notice by the owner or lessee who sublets, as the case may be;

2. paragraph (d) of subs(2) shall not be of any force or effect unless it specifies the nature of the reconstruction or rebuilding scheme, the date by which it is proposed to commence the scheme and the date by which it is proposed to complete the scheme.

3. No order for the ejectment of a lessee from a dwelling shall be made on the grounds referred to in paragraph (c) or (d) of subsection (2) unless the appropriate board has, on the application of the lesser, issued a certificate to the effect that the requirement that the lessee vacate the dwelling is fair and reasonable, and the date specified in the certificate for the vacation of the dwelling has passed.”

Section 32 of the Regulations makes provision for the procedure to be followed in applying for a certificate required in terms of either subsection (2) or (4) of s 30. After hearing the application, the Board may grant or dismiss the application.

Section 35 of the Regulations makes provision for the noting of appeals by any lessor or lessee who is aggrieved by a decision of the board to the Administrative Court. In terms of s 37 the Administrative Court may inter alia confirm, vary, or reverse the decision of the Board and a decision of the Administrative Court under this section shall, for all purposes, be deemed to be the decision of the Board against whose decision the appeal was lodged.

It is clear from a perusal of s 30 of the Regulations that the order of ejectment, must, at the end of the day, be made by a court of law. For a court to make that order, however, any one of the situations stipulated in paras (a) to (e) of subs (2) must be shown to have existed. The use of the word “or” in those paragraphs is disjunctive and the clear intention was to provide a separate cause of action in respect of each of those paragraphs. The matter, however does not end there. Where a lessor has given two months’ written notice for the lessee to vacate the dwelling house in terms of subs (2) such notice shall not be of any force or effect unless it specifies the person whose personal occupation the dwelling is required for. Further where the cause of action is based on para (c) or (d) of subs 2 (i.e where two month’s notice has been given to vacate on the basis either that the lessor requires the dwelling for his personal residential occupation or personal occupation of his parent, child or employee or that the dwelling is required for the purpose of a reconstruction or rebuilding scheme), a court is not empowered to grant an order of ejectment unless a certificate has been issued by the Board to the effect that the request that the lessee vacate the dwelling is fair and reasonable and the date specified for the vacation has passed.

A number of difficulties arise owing to the manner in which this matter was handled by the court a quo. The difficulties illustrate the need in a case such as this one for a determination to be made on all the issues raised. In my view it is not proper for a court to make a decision on only one of the issues raised and say nothing about other equally important issues raised, unless the issue so determined can put the whole matter to rest.

In the present matter the trial Judge accepted that the notice did not specify the persons for whose personal occupation the premises were required and that it was therefore defective. In other words the court a quo accepted that the certificate that was issued pursuant to the notice was not valid. The trial court did not, as it should have, proceed to determine the matter on this basis. Nor did the trial court deal with the other issues raised in the pleadings and agreed to at the pre-trial conference. The issues were left hanging. The effect on the plaintiff’s claim of the trial court’s finding that the notice given was invalid was not commented upon.

There is a further difficulty. The respondents appealed against the certificate and order of ejectment issued by the Rent Board to the Administrative Court. In their notice of appeal the respondents raised virtually the same points of law which they raised before the High Court. The trial court was aware of this state of affairs. No finding was made on whether the respondents could properly raise before the High Court the very same issues forming the subject of their appeal to the Administrative Court. It is common cause that the appeal before the Administrative Court is still pending.

On the facts it seems to me that whilst the appeal before the Administrative Court remains pending, the issues raised before the High Court and thereafter before this Court are lis pendens. The Administrative Court will need to address its mind to the issues raised in the appeal and thereafter make a determination. It would therefore be premature for me to consider and determine the points of law raised in argument by the respondents.

I am inclined to agree with Mr Biti that it appears the High Court decided not to make a determination on the correctness or otherwise of the certificate that was issued by the Rent Board but instead confined its enquiry to the effect that the appeal noted by the respondents had on the order made by the Rent Board. The High Court accepted that there was such an appeal before the Administrative Court. The High Court however appears to have adopted the attitude that the validity or otherwise of the certificate issued by the Rent Board was a matter to be determined by the Administrative Court at the conclusion of the appeal. The High Court did not however say so in clear terms.

In the circumstance, therefore, I agree that the issue that falls for determination in this appeal is the effect the noting of an appeal has on the order of the Rent Board.

The common law position was aptly captured by CORBETT JA in South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (AD) at 544 H-545 A when the learned Judge of Appeal remarked:

“Whatever the true position may have been in the Dutch courts, and more particularly the Court of Holland … it is today the accepted common law rule of practice in our courts that generally the execution of a judgment is automatically suspended upon the noting of an appeal, with the result that, pending the appeal, the judgment cannot be carried out and no effect can be given thereto, except with the leave of the court which granted the judgment … .”

The application of this common law rule of practice has in the past not been uniform and a divergence of opinion has arisen amongst Judges in this jurisdiction, resulting in uncertainty.

In Vengesai & Ors v Zimbabwe Glass Industries Ltd 1998 (2) ZLR 593 (H) GILLESPIE J after considering a number of earlier decisions on the matter, remarked at p 598 E-F:

“In stating the common law, CORBETT JA referred to the automatic stay of execution upon the noting of (an) appeal, as a rule of practice. That is not a firm rule of law, but a long established practice regarded as generally binding subject to the court’s discretion. The concept of a rule of practice is peculiarly appropriate only to superior courts of inherent jurisdiction. Any other court, tribunal or authority is a creature of statute and bound by the four corners of its enabling legislation … .”

The learned Judge continued at p 599 A – D:

“… the grant or withholding of a stay of execution is, at common law, a matter of discretion reserved to a court in which such a discretion is imposed. It follows that, in the absence of any statute specifically conferring such a discretion on an inferior tribunal or authority, or otherwise regulating the question of enforcement of judgments pending an appeal from that authority, no such discretion can exist. Such a court or authority can exercise only the powers conferred by statute. It cannot order the suspension of its own judgment pending an appeal. It has no discretion to enforce its own judgment, notwithstanding an appeal. The only basis upon which its judgment or order can be supposed to be stayed is where its enabling statute provides for the situation.

… the grant, whether automatic or not, of a stay of execution of a judgment pending appeal is an inseparable part of an exercise of discretion by the court from which the appeal lies, to order the enforcement of its judgment notwithstanding the appeal or any temporary stay. It follows that the question of enforcement pending appeal of judgments from an inferior court or authority cannot possibly be regulated according to a rule of practice, derived from the common law, and applicable in superior courts of inherent jurisdiction.”

In the more recent Supreme Court decision in Associated Newspapers of Zimbabwe v (1) The Minister of State for Information & Publicity (2) Media & Information Commission (3) The Attorney General of Zimbabwe SC 11/04, CHIDYAUSIKU CJ remarked at p 46 of the cyclostyled judgment:

“It is quite clear from the above authorities that the power of a court to order execution of its own judgment despite the noting of an appeal is founded in the common law doctrine of inherent jurisdiction. It is trite that only the superior courts enjoy inherent jurisdiction. In this country these are the High Court and the Supreme Court. Courts created by statute do not have inherent jurisdiction and consequently do not have power to order execution of their judgment unless such jurisdiction is conferred on them by statute.”

Although the above remarks by the CHIEF JUSTICE were made in the context of a matter that had been determined by the Administrative Court it is clear that his remarks apply with equal force to judgments and orders made by all inferior courts and tribunals.

There is a presumption in our law that Parliament does not intend to alter the common law unless it does so expressly or by necessary implication. Silence by the legislature should not be taken to mean that the legislature intends to alter the common law position. If the enabling legislation is silent, then the common law position must apply – PTC v Mahachi 1997 (2) ZLR 71.

The position may now be accepted as settled in this jurisdiction that unless empowered by law to do so, an inferior court, tribunal or other authority has no power to order the suspension of its own orders or judgments and further that the noting of an appeal against the judgment or order of such a court, tribunal or other authority, in the absence of a statutory provision to that effect, does not have the effect of suspending the operation of the judgment or order that is sought to be appealed against.

The court a quo was therefore wrong in concluding that:

“The Rent Regulations are silent on the effect of noting an appeal against the decision of the Rent Board. It does not automatically follow that in the absence of a provision, then the noting of an appeal does not suspend the decision of the Board.”

By adopting such an approach the trial court was in fact contradicting various decisions made over the years by both the High Court itself and the Supreme Court.

The decision of the Court a quo cannot therefore stand. It is accordingly ordered as follows.

1. The appeal is allowed with costs.

2. The order of the High Court made on 1 March 2006 is set aside and                               the following substituted -

“An order of ejectment of the defendants be and is hereby granted with             costs.”

SANDURA JA: I agree

GWAUNZA JA: I agree

Honey & Blackenberg, appellant’s legal practitioners

Wintertons, respondents’ legal practitioners