when should execution appeal be granted https://old.zimlii.org/taxonomy/term/10982/all en Humbe v Muchina And 4 Others (SC 81-21, Civil Appeal No. SC 373/20) [2021] ZWSC 81 (01 July 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/81 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Judgment No. SC 81/21</p> <p>Civil Appeal No. SC 373/20</p> <p> </p> <p><strong>REPORTABLE</strong>        <strong>(78)</strong></p> <p><strong>FRANK     HUMBE</strong></p> <p><strong>V</strong></p> <ol> <li><strong>    DESMOND     MUCHINA     (2)     SPARKLES     SERVICES     (PRIVATE)     LIMITED     (3)     GODFREY     MUNYAMANA     (4)     THE     SHERIFF     OF     ZIMBABWE     (5)     FADZAYI     MUNYAMANA</strong></li> </ol> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>BHUNU JA, MATHONSI JA &amp; KUDYA AJA</strong></p> <p><strong>HARARE: 10 MAY 2021 &amp; 01 JULY 2021.</strong></p> <p> </p> <p><em>T. S. T. Dzvetero </em>with Ms<em> T. M. Dzvetero, </em>for the appellant.</p> <p><em>E. K. Muhlekiwa, </em>for the second, third and fifth respondents.</p> <p>                   <strong>MATHONSI JA:      </strong>The appellant brought an urgent chamber application in the High Court for a stay of the execution of a judgment obtained by the first respondent against the second and third respondents on 12 February 2018 in the sum of US$352 851,30 together with interest and costs of suit.</p> <p>                   By judgment delivered on 21 August 2020, the High Court dismissed the application with costs.  This appeal is against that judgment dismissing the appellant’s urgent application.</p> <p><strong>THE FACTS</strong></p> <p>                   The third and fifth respondents, who are husband and wife, hold title to Stand 67 Guildford Estate Township of Subdivision H of Guildford of Borrowdale Estate, also known as No 67 Guildford Crescent, Borrowdale Harare, (the house) by Deed of Transfer Number 1447/2009.  On 15 November 2013 they entered into a deed of sale in terms of which they sold the house to the appellant for US$380 000.00 payable in certain instalments from 30 November 2013 to 30 June 2014.</p> <p>                   There is no convergence between them <a name="_GoBack" id="_GoBack"></a>as to whether the full purchase price was paid.  The appellant alleges having paid part of the purchase price through the sale of his own neighbouring house through the agency of the second respondent and part of it through the sale to the third respondent of his Mercedes Benz S Class motor vehicle.</p> <p>                   The appellant alleges further that although he failed to pay the cash balance of the purchase price in accordance with the agreement, he has however paid it in full.  On the other hand the third and fifth respondents’ position is that the appellant defaulted in his payments and after giving him the requisite 30 days notice in terms of the deed of sale, they duly cancelled the agreement.</p> <p>                   Notwithstanding such cancellation the appellant still sued the second, third and fifth respondents in case number HC 11367/15, which was filed on 20 November 2015, for an order compelling transfer of the house to himself and for their eviction from it.  The summons action in question was defended and does not appear to have been prosecuted with any zeal thereafter.</p> <p>                   Meanwhile the second and third respondents were sued by the first respondent in case number HC 11601/17 which summons action was filed on 14 December 2017. He obtained judgment against them on 12 February 2018 in the sum of US$352 851.30 plus interest and costs of suit aforesaid.  A writ was thereafter issued which the fourth respondent was instructed to execute.  In pursuance whereof the house in dispute was placed under judicial attachment.</p> <p>                   Following the attachment, the appellant lay a claim to the house motivating the fourth respondent to institute interpleader proceedings under case number HC 7525/19.  By judgment delivered on 9 June 2020 in <em>The Sheriff for Zimbabwe v Humbe &amp; Anor</em> HH 378/20, CHINAMORA J dismissed the appellant’s interpleader claim and declared the house executable.  The judgment remains extant and has not been appealed against.</p> <p>                   Instead, the appellant filed a further application on 21 July 2020 under case number HC 3805/20.  He sought an order setting aside the writ of execution in terms of which the house was attached.  The basis of the application was that the Sheriff was enjoined by r 326 of the High Court Rules to first diligently pursue the attachment of a debtor’s movable property before going against immovable property. In addition, the appellant took the view that the house could not be the subject of execution as it was <em>res litigiosa</em> having been the subject of litigation in HC 11367/15.</p> <p>                   In the same application the appellant also sought a declaration that his rights in the house “preceded” those of the first respondent.  He also sought an order that the house be transferred to him.  This, the appellant sought, in spite of the judgment of CHINAMORA J issued on 9 June 2020 which, as I have said, remains extant.</p> <p>                   At the same time that the appellant filed the court application in case number HC 3805/20, he also filed the urgent chamber application for interim relief of a stay of execution which is the subject of the present appeal.  The application was opposed by the first, second, third and fifth respondents.  The stay of execution was sought pending the finalisation of his claim in HC 11367/15 and his application for a declaratory order and the setting aside of the writ which is case number HC 3805/20.</p> <p> </p> <p><strong>DECISION <em>A QUO</em></strong></p> <p>                   The court <em>a quo</em> found that the appellant had failed to pay the full purchase price for the house in terms of the deed of sale.  In doing so the court <em>a quo</em> was fortified by the fact that the deed of settlement signed by the appellant and the third respondent on 12 December 2017 which, although later repudiated by the third respondent as having been procured by duress, acknowledged that there was still an outstanding sum of US$50 000.00.</p> <p>                   The court <em>a quo</em> recognised that both rules 326 and 327 of the High Court Rules provide for options to a party which applied for the issuance of a writ.  They do not provide a remedy to the appellant.  After criticizing the interim relief sought by the appellant which was the same as the final order sought, the court <em>a quo</em> wondered how the appellant could have filed further applications in the face of the judgment of CHINAMORA J which I have alluded to above.</p> <p>                   It was the court <em>a quo</em>’s finding that given that the house was registered in the names of the third and fifth respondents they hold real rights over the house.  The appellant never acquired any real rights over it.  The attachment of the house by the Sheriff in pursuance of a writ of execution gave the first respondent, as the judgment creditor in whose favour the writ was issued, a <em>pignus judiciale </em>on it created by the attachment.  That is to say an attachment creates a judicial mortgage on the property so attached.</p> <p>                   The conclusion of the court <em>a quo</em> was that the appellant failed to establish a <em>prima facie</em> right over the house as would entitle him to a stay of execution.  His claim through interpleader proceedings having failed and the house declared executable, the appellant was seeking “to mount a second bid based on essentially the same facts.”  He was precluded from doing so because the court <em>a quo</em> had already pronounced itself on the issue.</p> <p> </p> <p>                   Overcome by grief as a result, the appellant launched this appeal on grounds set out below:</p> <p> </p> <p><strong>GROUNDS OF APPEAL</strong></p> <ol> <li>The court <em>a quo</em> erred in fact and grossly misdirected itself in finding that the appellant breached the contract of sale by failing to pay the full purchase price by the date that the price was due.</li> <li>The court <em>a quo</em> erred in fact and grossly misdirected itself in finding that the appellant caused the arrest and prosecution of the fifth respondent on fabricated allegations of fraud and coerced the third respondent to sign the deed of settlement using the fifth respondent’s arrest.</li> <li>The court <em>a quo</em> erred at law and grossly misdirected itself in finding that the dispute between the parties in the instant matter is <em>res judicata</em>.</li> <li>The court <em>a quo</em> erred at law and grossly misdirected itself in disregarding that the property in dispute is <em>res litigiosa</em> and in further failing to give any reasons for such discount.</li> <li>The court <em>a quo</em> erred at law and grossly misdirected itself in disregarding that the application was an application for stay of execution pending a court application in terms of r 340 of the Rules of the High Court and in failing to give any reasons for such discount.</li> <li>The court <em>a quo</em> erred at law and grossly misdirected itself in determining that the interim relief was the same as the final relief and as such the relief could not be granted when in fact the interim and final reliefs were different and even if the reliefs were the same, the court could and it ought to have granted it either way even if it were to be found to be the same.</li> <li>The court <em>a quo</em> erred at law and grossly misdirected itself in exercising its discretion without addressing the requirements of and purpose for proceedings for stay of execution.</li> <li>The court <em>a quo</em> erred at law and grossly misdirected itself in finding that r 326 of the High Court Rules can only be invoked by a person who applied for the writ of execution.</li> </ol> <p> </p> <p><strong>ISSUE FOR DETERMINATION</strong></p> <p>             Clearly the grounds of appeal stray from the field of discourse.  They seem to attack every pronouncement in the judgment <em>a quo</em> without identifying the <em>ratio decidendi</em>.  The court <em>a quo</em> dismissed the application because it made a finding that the appellant failed to prove a <em>prima facie</em> right over the house.  This was more so regard being had that the same court had already pronounced itself when it declared the house executable.</p> <p>             In that regard, only one issue commends itself for determination in this appeal.  It is whether the court <em>a quo</em> erred in dismissing the application for stay of execution.</p> <p><strong>THE LAW</strong></p> <p>             The appellant approached the court <em>a quo</em> for a stay of execution pending the prosecution of a summons claim to compel transfer of the house to himself, which by then had been pending for 5 years, and a court application which seeks both a declaratory order that he possesses superior rights in the house and that the house be transferred to him.  The court application also seeks the setting aside of a writ issued in favour of the first respondent against a house not registered in the appellant’s name but those of the judgment debtors in that suit.</p> <p>             The execution of a judgment is a process of the court.  The court therefore retains an inherent power to manage that process having regard to the applicable rules of procedure.  What is required for a litigant to persuade the court to exercise its discretion in favour of granting a stay in the execution of the court’s judgment has been stated in a number of cases.</p> <p>             In <em>Mupini v Makoni</em> 1993 (1) ZLR 80(S) at 83 B–D this Court stated the position of the law quite clearly:</p> <p>“In the exercise of a wide discretion the court may, therefore, set aside or suspend a writ of execution or, for that matter, cancel the grant of a provisional stay.  It will act where real and substantial justice so demands.  The onus rests on the party seeking a stay to satisfy the court that special circumstances exist.  The general rule is that a party who has obtained an order against another is entitled to execute upon it.  Such special reasons against execution issuing can be more readily found where, as in casu, the judgment is for ejectment or the transfer of property, for in such instances the carrying of it into operation could render the restitution of the original position difficult.  See <em>Cohen v Cohen</em> (1) 1979 ZLR 184(G) at 187C, <em>Santam Ins Company Limited v Paget </em>(2) 1981 ZLR 132(G) at 134 G–135B; <em>Chibanda v King</em> 1983(1) ZLR 116(H) at 119 C-H; <em>Strime v Strime</em> 1983 (4) SA 850(C) at 852 A.”</p> <p>                   It is settled in this jurisdiction that a judgment creditor is entitled to attach and have sold in execution the property belonging to the judgment debtor.  This is so even in a situation where a third party has a personal right against such a debtor in respect of the same property.  The position is the same even where the personal right of the third party preceded the attachment of the property.  See Herbstein and Van Winsen, <em>Civil Practice of The Superior Courts in South Africa</em> 3 Ed at p 597 (quoted with approval in <em>Maphosa &amp; Anor v Cook &amp; Ors </em>1997 (2) ZLR 314 (H) at p 316 G).</p> <p>                   To that should be added the hallowed principle of our law that the conveyance of ownership in immovable property from person to person is achieved through the registration of transfer at the deeds registry.  Real rights in an immovable property are held only by registration at the deeds registry.  This was underscored by this Court in the seminal remarks made in <em>Takafuma v Takafuma</em> 1994 (2) ZLR 103(S) at 105 G-106A;</p> <p>“The registration of rights in immovable property in terms of the Deeds Registries Act [<em>Chapter 20:05</em>] is not a mere matter of form.  Nor is it simply a devise to confound creditors or the tax authorities.  It is a matter of substance.  It conveys real rights upon those in whose name the property is registered.  See the definition of ‘real right’ in s 2 of the Act.  The real right of ownership, or <em>jus in re propria</em>, is ‘the sum total of all the possible rights in a thing’ – see Wille’s <em>Principles of South African Law </em>8 ed p 255.”</p> <p>                   A party which lays a claim to property which has been placed under judicial attachment by the Sheriff in the discharge of his or her duties as the executive of the court, has remedies provided for in the rules of court.  Such a party is required to submit a claim to the Sheriff in order to trigger the institution by the latter of interpleader proceedings in terms of Order 30 of the High Court Rules.</p> <p>                   The court resolves the conflicting claims of parties in interpleader proceedings by either upholding the claimant’s claim or dismissing it. Where it finds the claimant’s claim to be without merit, the court, in addition to dismissing the claim, ordinarily declares the property under attachment executable. The result is the opposite where the claim is upheld.</p> <p> </p> <p>                   In the present case, after raising essentially the same arguments as in the urgent chamber application the subject of this appeal, the appellants’ interpleader claim was dismissed by the court <em>a quo</em>.  It declared the house executable at the instance of the first respondent.</p> <p> </p> <p><strong>APPLICATION OF THE LAW TO THE FACTS</strong></p> <p>                   The first respondent has an extant judgment in his favour issued against the second and third respondents.  The judgment is sounding in money and it was in pursuance of it that a writ of execution was issued against the house.</p> <p>                   The house is registered at the Deeds Registry in the name of one of the judgment debtors.  It is the same house which the appellant lays a claim to by virtue of a deed of sale which ran into turbulence.  The dispute between the appellant and those of the respondents who sold the house to him had not been resolved by the courts at the time that the first respondent instructed the Sheriff to attach the house for sale in execution.</p> <p>          On the authorities that I have made reference to above the judgment creditor, who is the first respondent, was entitled at law to have attached and sold in execution, the house which is registered in the name of his debtor.  The appellant is a third party who only has personal rights exercisable against the debtor in respect of the ownership and possession of the house.  As much as those personal rights came about prior to the attachment, or may have arisen prior to the first respondent’s cause of action that is of no moment in law.</p> <p>                   The court <em>a quo</em> cannot be faulted for its finding that the attachment of the house in execution created a judicial mortgage or <em>pignus judiciale</em>.  The appellant’s situation is exacerbated by the failure of his interpleader claim and the prior declaration made by the court <em>a quo,</em> that the house was executable in favour of the first respondent.</p> <p> </p> <p>                   In dismissing the appellant’s claim to the same house CHINAMORA J, who determined the interpleader, relied on a line of authorities to the effect that where the house is registered in the name of the judgment debtor, he or she remains the owner of the property.  For that reason it is susceptible to execution.  The learned Judge concluded:</p> <p>“In <em>casu</em>, the judgment debtor has title to the property.  It is indeed immovable property.  However I propose to equate possession in the case of movable goods to title in respect of immovable property.  To the extent that possession and title raise a rebuttable presumption of ownership, the principle in <em>Zandberg v Van Zyl</em> (1910 AD 258 at 272) applies to immovable property.  The starting point is to examine the legal implication of title.  Title confers real rights in immovable property.  It cannot be gain said that a title deed is <em>prima facie</em> proof that a person enjoys real rights over the immovable property defined in the deed.”</p> <p> </p> <p>                    (The Sheriff for Zimbabwe v Humbe and Another, <em>supra</em>).</p> <p>                    It is against the foregoing background that the appellant approached the court <em>a quo</em> for the second time, seeking a stay of execution to enable him to pursue the determination of the parties’ rights in the house all over again.  Those rights had already been determined by the same court in a judgment that was not impugned and remains extant.</p> <p>                    In my view the court <em>a quo</em> cannot be faulted for coming to the conclusion that after the appellant had chosen to pursue interpleader proceedings, which failed, he could not mount a second bid in the same court based, essentially, on the same facts.  It is true that the court <em>a quo</em> had already pronounced itself on the status of the house having declared it executable.  It is not the number of times that a litigant approaches the court seeking recourse which determines a matter in the litigant’s favour, but the existence of a sustainable cause of action.  In this case there was none.</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>                   I have set out what an applicant for a stay of execution is required to establish in order to motivate the exercise of the court’s discretion in his or her favour, namely that special circumstances exist for the court to halt its own execution process.</p> <p>                   The appellant dismally failed to discharge that onus.  This is a case in which the same property had been declared executable by judgment of the same court.  He had not appealed that judgment leaving it binding against the parties.  It would have been extremely incompetent for the court <em>a quo</em> to grant a stay of two judgments of its own definitively settling the rights of the parties.</p> <p>                   In addition, the house lawfully registered in the name of a judgment debtor had been placed under attachment in execution of a valid judgment.  The appellant only possessed personal rights against the debtor which could not override real rights in law.  There was no legal basis for a stay and certainly no special circumstances as would invite the court to grant it. </p> <p>                        I do not agree with Mr <em>Muhlekiwa’s</em> submissions that the appropriate order should have been the striking off of the application from the roll.  The reasons advanced for that proposition are clearly wrong.  The application was determined on the merits, the court having found that it lacked merit.  It could only be disposed of by its dismissal.</p> <p>                   Regarding the question of costs, this is an ill-conceived appeal, wholly without merit and predicated on extraneous grounds.  I see no reason why costs should not follow the result.</p> <p> </p> <p>                   In the result it be and is hereby ordered as follows:</p> <ol> <li>That the appeal is dismissed.</li> <li>That the appellant shall bear the costs.</li> </ol> <p>                </p> <p><strong>BHUNU JA:</strong>                                I agree</p> <p><strong>KUDYA AJA:</strong>                             I agree</p> <p><em>Antonio &amp; Dzvetero, </em>the appellant’s legal practitioners.</p> <p><em>Muhlekiwa Legal Practitioners, </em>the 2nd, 3rd and 5th respondent’s legal practitioners.</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="Microsoft Office document icon" title="application/msword" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/81/2021-zwsc-81.doc" type="application/msword; length=75264">2021-zwsc-81.doc</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/81/2021-zwsc-81.pdf" type="application/pdf; length=460360">2021-zwsc-81.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/civil-matter-appeal">Civil matter (Appeal)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/stay-execution-pending-appeal">Stay of execution pending appeal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/immovable-property">IMMOVABLE PROPERTY</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/personal-right-respect-immovable-property">Personal right in respect of immovable property</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rights-and-immovable-property">Rights in and to immovable property</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/execution-practice-and-procedure">Execution (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/stay-execution">stay of execution</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-should-execution-appeal-be-granted">when should execution appeal be granted</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/s">S</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/sale">SALE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/immovable-property-sale">Immovable property (SALE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/instalment-sale-immovable-property-sale">instalment sale (Immovable property (SALE))</a></li></ul></span> Wed, 14 Jul 2021 12:49:02 +0000 Sandra 10079 at https://old.zimlii.org Mutongwizo v Nyamutswa (HH 625-20, HC 5091/20) [2020] ZWHHC 625 (22 September 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/625 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>WASHINGTON MUTONGWIZO</p> <p>versus</p> <p>GIBSON NYAMUTSWA</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>ZHOU J</p> <p>HARARE, 16, 17 &amp; 22 September 2020</p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p> </p> <p><em>L Chimuriwo, </em>for the applicant</p> <p><em>J Koto</em>, for the respondent</p> <p> </p> <p> </p> <p>            ZHOU J: This is an urgent chamber application for stay of execution of the judgment granted in case No. HC 4225/18 pending determination of an application for rescission of the said judgment. The application for rescission of judgment is filed under case No. HC 4936/20. The application <em>in casu</em> is opposed by the respondent. The material background facts to this application are as follows:</p> <p>            The applicants purchased the immovable property known as an undivided 2.380952381 percent being Share No. 3 in a certain piece of land situate in the District of Salisbury called Stand 3084 Glen Lorne Township in 2013. Applicants state that they paid the full purchase price and took occupation of the property in 2016. Arrangements were made for the applicants to get ownership registered in their names, including obtaining the Capital Gains Tax Clearance Certificate. However, transfer had not taken place because it turned out that the same property had been registered in the name of the respondent. It was no longer in the name of the original owner, Freewin Investment (Pvt) Ltd, which had sold the property to the applicant.</p> <p>            Applicants state that they had a caveat placed on the property by order of this court granted in Case No. HC 9955/16. They also instituted proceedings to compel the seller to transfer the property to them. These proceedings were instituted under case No. HC 2658/17. It is common cause that the application was granted on 23 August 2017. However, as it turned out, the property had already been registered in the name of the respondent in terms of the Deed of Transfer No. 4561/2016. The respondent had purchased the property at a sale conducted by the Sheriff.</p> <p>            Having obtained title, the respondent instituted proceedings by way of summons for the eviction of the applicants from the property. After the applicants had contested the claim the respondent made an application for summary judgment which was granted in default of the applicants on 4 February 2019. In August 2019, the respondent caused a writ of ejectment to be issued. In September 2020 the applicants were given 48 hours notice to vacate the property. The notice was pursuant to the writ of ejectment.</p> <p>            It is common ground that there are proceedings for the setting aside of the default judgment granted against the applicants. There are also proceedings for the setting aside of the sale of the property to the respondents which are pending.</p> <p>            Execution is a process of the court. This court therefore has a discretion to set aside or stay or suspend execution of any judgment in the exercise of its inherent power to control its own process. The approach of the court is set out in the case of <em>Mupini</em> v <em>Makoni 1993</em> (1) ZLR 80 (S) at 83B – C as follows:</p> <p>            “Execution is a process of the court, and the court has an inherent power to control its own process           and procedures, subject to such rules as are in force. In the exercise of a wide discretion the court          may, therefore, set aside or suspend a writ of execution or, for that matter, cancel the grant of a             provisional stay. It will act where real and substantial justice so demands. The onus rests on the    party seeking a stay to satisfy the court that special circumstances exist. The general rule is that a     party who has obtained an order against another is entitled to execute upon it. Such special reasons             against execution issuing can be more readily found where, as <em>in casu,</em> the judgments is for          ejectment or the transfer of property, for in such instances the carrying of it into operation would render the restitution of the original position difficult. See <em>Cohen</em> v <em>Cohen</em> (1) 1979 ZLR 184 (G) at 187 C: <em>Santam Ins Co. Ltd</em> v <em>Paget</em> (2) 1981 ZLR 132 (G) at 134 G – 135B; <em>Chibanda</em> v <em>King</em>     1983 (10 ZLR 116 (H) at 119C – H; <em>Stime</em> v <em>Stime</em> 1983 (4) SA 850 (C) at 852 A.”</p> <p> </p> <p>            In this case not only is the judgment which is being sought to be enforced the subject of an application but the sale is also the subject of another application. If eviction is granted and the applicants succeed in having the application set aside, restoration of the applicant’s occupation will be difficult as it will require fresh proceedings to be instituted. On the other hand, if the application for rescission of judgment fails the respondent can always proceed with execution. I have taken note of the fact that the judgment which is being sought to be enforced through eviction of the applicants was granted on 6 August 2019. The respondent did not seek to enforce it until more than a year later in September 2020. There is therefore no greater prejudice which can be occasioned now than what has obtained in the thirteen months that the respondent sat on the judgment and writ of execution instead of enforcing them. In the circumstances of this case, therefore, it is clear to me that real and substantial justice demands that execution be stayed pending determination of the application filed in case No. HC 4936/20.</p> <p>            In the result, the provisional order is granted in terms of the draft thereof.</p> <p> </p> <p><em>Lawman Law Chambers</em>, applicant’s legal practitioners</p> <p><em>Koto &amp; Company</em>, respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/625/2020-zwhhc-625.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=17673">2020-zwhhc-625.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/625/2020-zwhhc-625.pdf" type="application/pdf; length=111263">2020-zwhhc-625.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/immovable-property">IMMOVABLE PROPERTY</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/personal-right-respect-immovable-property">Personal right in respect of immovable property</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rights-and-immovable-property">Rights in and to immovable property</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/default-judgment">Default judgment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/execution-practice-and-procedure">Execution (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/stay-execution">stay of execution</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/when-should-execution-appeal-be-granted">when should execution appeal be granted</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/provisional-order">Provisional order</a></li></ul></span> Mon, 19 Oct 2020 12:41:10 +0000 Sandra 9876 at https://old.zimlii.org Oozing Mining Syndicate v Tamuzi Mining Syndicate & Anor (HH 609-20, HC4996/20) [2020] ZWHHC 609 (25 September 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/609 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>OOZING MINING SYNDICATE</p> <p>versus</p> <p>TAMUZI MINING SYNDICATE</p> <p>and</p> <p>THE MINING COMMISSIONER N.O.</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAFUSIRE J</p> <p>HARARE, 21 &amp; 25 September 2020</p> <p> </p> <p><strong>Urgent chamber application</strong></p> <p> </p> <p>Date of <em>ex tempore</em> ruling: 21 September 2020</p> <p>Date of written judgment: 25 September 2020</p> <p> </p> <p>Mr<em> T.S. Mujungwa</em>, with him, Mr <em>S. Machingauta</em>, for the applicant</p> <p>Mr<em> K. Maeresera</em><em>, </em>for the first respondent</p> <p>No appearance for second respondent</p> <p>MAFUSIRE J</p> <p>[1]        This is an urgent chamber application for interim relief. The applicant and the first respondent are mining syndicates. They are fighting over the rights of ownership, control and the enjoyment of a certain mine called Chigwell 56 (“<strong><em>Chigwell</em></strong>”), located in the Chegutu area of Zimbabwe. The applicant, Oozing Mining Syndicate, applies on an urgent basis for two remedies, one in the main, and the other as ancillary relief. The main relief is a stay of execution of a certain order of this court in HC 279/20, dated 2 September 2020. The ancillary remedy is for the restoration of occupation of Chigwell to the applicant. Verbatim, the relevant portion of the draft order reads:</p> <p>“<strong>TERMS OF THE INTERIM RELIEF GRANTED</strong></p> <p>Pending the return date in this matter, the following interim relief be and is hereby granted: -</p> <p>a)         The order issued under HC 2791/20 be and is hereby stayed pending the finalisation of the application for rescission filed under HC 4976/20.</p> <p>b)         The respondents be and are hereby ordered to restore occupation of mining location Chigwell 56 of Chigwell Farm, Chegutu to the applicant upon service of this order until HC 4976/20 is finalised.</p> <p>c)         The respondents to bear costs of suit of this application.”</p> <p>[2]        The order of this court on 2 September 2020 aforesaid, per PHIRI J, was issued at the instance of the first respondent herein, Tamuzi Mining Syndicate, which was the applicant therein. It was granted in default of appearance by the applicant, which was the respondent therein. The court issued two declaratory orders—</p> <ul> <li>cancelling the applicant’s mining licence (in respect of Chigwell), and</li> </ul> <p> </p> <ul> <li>declaring the first respondent the rightful owner of Chigwell.</li> </ul> <p> </p> <p>[3]        Verbatim the operative part of that order reads:</p> <p>“<strong>WHEREUPON</strong>, after reading documents filed of record, and hearing Counsel</p> <p><strong>IT IS ORDERED THAT </strong></p> <p>1.         1st Respondent’s Mining Licence Number 15965 be and is hereby cancelled.</p> <p>2.         Applicant be and is hereby declared the rightful owner of Chigwell 56.”</p> <p> </p> <p>[3]        In these proceedings, it is that order of 2 September 2020 the execution of which the applicant seeks a stay. It is said the stay is sought pending the determination of the application for rescission of judgment that the applicant has launched simultaneously with these proceedings. The grounds for relief alleged by the applicant in these proceedings are these. Until about May 2014 the first respondent was the registered owner of the mining rights over Chigwell. However, those rights were forfeited, following due process. Subsequently, the applicant successfully applied for the registration of the same rights in its name. But the first respondent, without a proper service of process, and surreptitiously, obtained those declaratory orders aforesaid. Afterwards, on the strength of that court order, and by means of self-help, the first respondent has seized control of the mining location and placed security guards to prevent the applicant from accessing the mine. Thus, the applicant concludes, it has “essentially” been evicted by the first respondent from the mine. The first respondent is now busy helping itself to some 30 tonnes of gold ore which belong to the applicant and which were awaiting milling and smelting. It is on that basis that the applicant seeks urgent relief as set out above.</p> <p>[4]        The first respondent opposes the application. It says the relief being sought is incompetent. It says the applicant should have proceeded by way of a court application for an interdict. On the merits, the first respondent denies the applicant’s allegations of spoliation and maintains that the applicant is still in occupation of the mine even despite the applicant’s knowledge that it no longer has any rights over it. The first respondent accuses the applicant’s deponent to the founding affidavit, one Margret Hlanganiso (“<strong><em>Margret</em></strong>”), of fraudulent concealment of material facts allegedly relating to the fraudulent manner in which she purported to acquire the mining rights over Chigwell, in the name of the applicant. The first respondent’s deponent to the opposing affidavit, one Jonathan Munemo (“<strong><em>Jonathan</em></strong>”), says he and others, including Margret’s late husband, and then subsequently herself, got together as a syndicate in the form of the first respondent to run Chigwell. The first respondent was the registered owner of the mining rights. Margret was responsible for the payment of the inspection licences. At some stage, the second respondent wrongfully ordered the forfeiture of the first respondent’s mining licence. Margret did not disclose this development to the rest of the members of the first respondent. Instead, she went on to apply for the same mining rights, in the name of the applicant. Jonathan says there is a criminal case pending at the police against Margret over her conduct.</p> <p>[5]        On the first day of argument I queried how the applicant could possibly seek a stay of execution of a mere declaratory order. Mr <em>Mujungwa</em>, for the applicant, readily conceded the irregularity, admitting that the main relief was incompetent. He abandoned it and amended the draft order to make the ancillary relief the main and sole relief sought. The interim relief sought in the amended draft order now read as follows:</p> <p>“Pending the return date in this matter, the following interim relief be and is hereby granted:-</p> <p>a)         The respondents be and are hereby ordered to restore occupation of mining location Chigwell 56 of Chigwell Farm, Chegutu to the applicant upon service of this order until matter under HC 4976/20 is finalised.</p> <p>b)         The respondents to bear costs of suit of this application.”</p> <p>[6]        The final order sought on the return date was couched as follows:</p> <p>“a)       The respondents be and are hereby ordered not to evict the applicant from mining location Chigwell 56 of Chigwell Farm, Chegutu without a valid court order for eviction through self-help (<em>sic</em>).</p> <p>b)         The respondents shall pay costs of suit.”</p> <p>[7]        I dismissed the application with costs soon after argument. It was incompetent. An order of spoliation is a final order. It is not interlocutory in nature: see <em>Mankowitz </em>v <em>Loewenthal</em> 1982 (3) SA 758, at 767F – H, and SILBERBERG &amp; SCHOEMAN’S <em>The Law of Property</em>, 5th ed., para 13.2.1.3 at p 292. So, the draft order, as amended, was defective in elementary respects.</p> <p>[8]        That the applicant’s draft order, as amended, was defective in elementary respects was not the only problem. In fact, it was hardly the main problem. In appropriate circumstances a draft order can always be amended or corrected. The major problem with the application, and which was the main reason for my dismissing it, was that spoliation was not proved. With spoliation, the applicant has to prove the two basic elements, namely, peaceful and undisturbed possession of the object, and the illicit deprivation of that possession by the respondent. The standard of proof is higher than that required for a temporary interdict. The standard of proof should be on a balance of probabilities. For an interim interdict, all that is required to be proved is a <em>prima facie</em> case. This is elementary.</p> <p>[9]        Spoliation is about the protection of possessory rights. Ownership does not come into consideration. Yet the averments in the founding affidavit were predominantly about proof of ownership of the mining rights over Chigwell: how initially those rights had been in the name of the first respondent; how the first respondent got to lose them, and how they had ended up being in the name of the applicant. At the hearing, Mr <em>Mujungwa</em> was clutching at straws. He failed to appreciate that the defect that I had raised concerning the impropriety or incompetency of seeking a stay of execution against a mere declaratory order could not be cured simply by dropping that remedy and pursuing spoliation. The requirements are different. The whole application had been premised on a stay of execution, which is a species of an interdict. The application was completely silent on <em>when</em> exactly the applicant had been illicitly deprived of possession and control of Chigwell. It was silent on who exactly was there at the mine at the time of the alleged eviction? Who for the respondent did it? How did he or she or they do it?</p> <p>[10]      At the hearing, we spent some appreciable time sifting through the averments in the founding affidavit in an effort to find the answers to the questions above. But there was nothing. Mr <em>Machingauta</em>, Mr <em>Mujungwa’s</em> principal with whom he sat, tried to intervene, encouraged by myself. The two had been wasting time, with Mr <em>Mujungwa</em> having to pause and defer to his principal who would whisper something into his ear each time I asked a question. But the intervention was no better. A concession could have preserved integrity. The sum total of Mr <em>Machingauta’s</em> submissions on intervention was that where the founding affidavit said Margret was a member of the applicant, and where the supporting twin affidavits by Njabulo Ndhlovu and Stanley Mlotshwa said they also are members of the applicant, I must read that to mean they are the people who were in possession at the time of the alleged spoliation! I was also urged to construe the date of the order by PHIRI J, namely the 2nd of September 2020, as the date when the alleged spoliation took place!     </p> <p>[11]      I could not grant spoliatory relief under such circumstance, especially given that the respondent vehemently denied that it had taken over the running of the mine. The respondent maintained the applicant was still there. In the end I dismissed the application with costs.</p> <p> </p> <p>25 September 2020</p> <p> </p> <p><em>Tavenhave &amp; Machingauta,</em> applicant’s legal practitioners</p> <p><em>Mangwiro Law Chambers, </em>first respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/609/2020-zwhhc-609.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=66847">2020-zwhhc-609.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/609/2020-zwhhc-609.pdf" type="application/pdf; length=419972">2020-zwhhc-609.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/m">M</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/mines-and-minerals">MINES AND MINERALS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rights-mines-and-minerals">Rights (MINES AND MINERALS)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/execution-practice-and-procedure">Execution (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/stay-execution">stay of execution</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/when-should-execution-appeal-be-granted">when should execution appeal be granted</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/s">S</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/spoliation">SPOLIATION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/order-spoliation">Order (SPOLIATION)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/possession-protected-spoliatory-remedies">Possession protected by spoliatory remedies</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/what-spoliation">What is (SPOLIATION)</a></li></ul></span> Fri, 09 Oct 2020 09:52:23 +0000 Sandra 9866 at https://old.zimlii.org Nyoka v Ncube & Anor (HB 16-20, HC 112/20) [2020] ZWBHC 16 (06 February 2020); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2020/16 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>METHUSELI NYOKA</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>MLULEKI NCUBE</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>THE SHERIFF OF THE HIGH COURT OF ZIMBABWE</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>KABASA J</p> <p>BULAWAYO 24 &amp; 30 JANUARY &amp; 6 FEBRUARY 2020</p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p> </p> <p><em>M. Mahaso, with T. Muganyi</em> for the applicant</p> <p><em>K. Ngwenya</em> for the 1st respondent</p> <p>No appearance for the 2nd respondent</p> <p>            <strong>KABASA J:   </strong>This is an urgent chamber application for stay of execution.  The applicant seeks to have his eviction from mining claims, known as Godwin N held under registration number 48981 and which extend into a certain piece of land in Umzingwane District, being a remainder of Bushy Park, Umzingwane District owned by one Freda Khumalo but being leased to the fist respondent, stayed, pending the finalisation of an application for rescission of judgment.</p> <p>            The background to the matter is this.  The applicant was granted mining rights by the Ministry of Mines and Mining Development in April 2019.  The mining rights cover a block constituting of ten gold reef claims called Godwin N.  The claims allegedly extend into a piece of land, being the remainder of Bushy Park in Umzingwane District.  The land is owned by a Freda Khumalo who is leasing it to the first respondent.</p> <p>            On 5th August 2019 the first respondent issued summons under case number HC 1856/19 seeking the eviction of the applicant and six others from this piece of land.  The summons were served on a E. Ncube who was said to be the applicant’s employee and the Deputy Sheriff’s return of service shows that this was done on 14th August 2019.  The action was not defended and as a result, on 12th September 2019 default judgment was granted against the applicant.  The court order reads:</p> <p>            “It is ordered that:</p> <p> </p> <ol> <li>1st, 2nd, 3rd, 4th, 5th, 6th and 7th defendants, and all those claiming occupation through them are evicted from a certain piece of land situate in the District of Umzingwane being a remainder of Bushy Park, Umzingwane District (commonly known as the remainder of Plot 10 Bushy Park, Esigodini, Umzingwane).”</li> </ol> <p>A writ of ejectment was subsequently issued on 23rd October 2019.  On 15th January 2020 the applicant was duly served with a copy of the writ of ejectment and notice of removal.  This led to the filing of the urgent chamber application on 17th January 2020.</p> <p>The application is opposed.  In opposing it the first respondent raised points <em>in limine</em>.  At the hearing of the application the parties addressed me on the points <em>in limine</em> as well as the merits.</p> <p>            Counsel for the first respondent argued that the application is improperly before the court.  That being so because it is premised on an application for rescission which was filed out of time.  The judgment sought to be rescinded was granted on 12th September 2019 and in terms of Order 9 Rule 63(1) of the High Court Rules 1971, the applicant was supposed to file the opposition for rescission “not later than one month after he has had knowledge of the judgment.”  In terms of Rule 63(3)</p> <p>“Unless an applicant for the setting aside of a judgment in terms of this rule proves to the contrary, he shall be presumed to have had knowledge of the judgment within two days after the date thereof.”</p> <p>            It is counsel’s argument that the applicant ought to have filed the application for rescission by 17th October 2019.  The application was filed on 17th January 2020 without an application for condonation having been filed and granted.  The application is therefore doomed to fail and the same fate befalls the urgent chamber application upon which it is premised.</p> <p><em>Mr Mahaso</em> for the applicant countered this argument and argued that the court is not seized with the merits or demerits of the application for rescission and should be concerned with whether the applicant has established a <em>prima facie</em> case to be entitled to the interim relief sought.</p> <p>Counsel referred to MAfUSIRE J’s decision in <em>Magarita</em> v <em>Munyuki and 2 others</em> HMA-44-18 in support of this proposition arguing that the court therein found that it was not seized with the application for rescission and proceeded to grant the interim relief after holding that the applicant had established a <em>prima facie </em>right.  Whilst in the <em>Magaritha </em>case (<em>supra</em>) the urgent chamber application was also meant to stop the eviction of the applicant pending the determination of the applicant’s application for rescission of judgment which he had filed five days before, there was no issue of such application for rescission having been filed out of time.  The point <em>in limine</em> raised therein was that the matter was not urgent; a point the learned judge dismissed and proceeded to hear the matter on merit.</p> <p>            The learned judge considered the argument proffered by the first respondent’s counsel in opposing the urgent chamber application and also made reference to the application for rescission of judgment which counsel had argued was doomed to fail because it had no prospects of success.</p> <p>            I do not intend to go into detail in looking at the <em>Magarita</em> case <em>(supra)</em> as I do not deem it necessary for purposes of the matter I am seized with.  Suffice to say the learned judge dismissed the argument that the failure by counsel for the applicant to appear on the date of hearing due to a mis-diarisation of the date was supposed to be held against the applicant and therefore allow that to determine the fate of “a case of such importance to the parties.”  Nowhere in that judgment does the learned judge state that because he was not seized with the application for rescission the court would not consider counsel’s submissions.</p> <p>Turning to the facts <em>in casu</em>, the applicant filed the application for rescission on 17th January 2020, the same day the urgent chamber application for stay of execution was filed and just 2 days after the writ of ejectment and notice of removal was served.  The applicant explained in the founding affidavit that he only got to know of the judgment on the day he was served with the writ of ejectment.</p> <p>            Whilst I am not seized with the application for rescission but this explanation addressed the failure to file the application for rescission within a month and equally addresses the presumption in Rule 63(3).  Whether the judge who will hear the application for rescission will be satisfied that such explanation sufficiently discharges the onus on the applicant “to prove to the contrary” the deeming provision in Rule 63(3) is not, in my view, an issue this court has to determine for the purposes of the matter before me.  What is clear however is that the applicant’s explanation successfully addresses the import of the point <em>in limine</em>.  An application for condonation would only be necessary in the event that the judge seized with that application rules the applicant’s application as falling short of “proving to the contrary” the deeming provision in rule 63(3).</p> <p>            That said, I am not persuaded to hold that the application for rescission “is improperly before the court without an application for condonation having been filed.”</p> <p>            The point <em>in limine</em> therefore lacks merit and is dismissed.</p> <p>            Counsel for the first respondent had raised as points <em>in limine</em> the alleged failure by the applicant to prove the requirements for the granting of an interim relief for stay of execution.  The nature of the points <em>in limine</em> was such that even in making their submissions, both counsel inevitably addressed the court on the merits.  I will take a cue from them and proceed to look at the merits.</p> <p>            The requirements for an interim interdict are well settled.  In <em>Magarita </em>v <em>Munyuki (supra)</em> MAFUSIRE J enumerated them thus;</p> <p>            “The requirements for an interim interdict are:</p> <p>           </p> <ul> <li>A <em>prima facie</em> right, even if it be open to some doubt</li> <li>A well-grounded apprehension of irreparable harm if the relief is not granted</li> <li>The balance of convenience</li> <li>The prospects of success in the main matter</li> <li>No other satisfactory remedy.”</li> </ul> <p>(See also <em>Enhanced Communication Network (Pvt) Ltd</em> v <em>Minister of Information, Posts and Telecommunications</em> 1997(1) ZLR 342 (HC); <em>Setlogelo</em> v <em>Setlogelo</em> 1914 AD 221)</p> <p>            I also find the remarks by MAFUSIRE J in the <em>Magaritha</em> case <em>(supra)</em> instructive:-</p> <p>“These requirements are considered conjunctively, not disjunctively. Some of them may assume greater importance in some cases than do others in other cases, whilst a stay of execution is a species of an interdict, there is, in my view a slight difference.  In a broader sense, most orders of courts are interdicts; either prohibitory or mandatory.  But in an application for a stay of execution the broad requirements for relief are real and substantial justice.  The premise on which a court may grant a stay of execution is the inherent power reposed in it to control its own process.”</p> <p>            In <em>Mupini</em> v <em>Makoni</em> 1993 (1) ZLR 80 (SC), GUBBAY CJ had this to say:-</p> <p>“Execution is a process of the court, and the court has an inherent power to control its own processes and procedures; subject to such rules as are in force.  In the exercise of a wide discretion the court may, therefore, set aside or suspend a writ of execution, or, for that matter, cancel the grant of a provisional stay.  It will act where real and substantial justice so demands.  The onus rests on the party seeking a stay to satisfy the court that special circumstances exist.  The general rule is that a party who has obtained an order against another is entitled to execute upon it.  Such special reasons against execution issuing can be more readily found where as <em>in casu,</em> the judgment is for ejectment or the transfer of property for in such instances the carrying of it into operation could render the restoration of the original position difficult.”</p> <p>            With this in mind I turn now to consider the requirements to be met in an application of this nature.</p> <ol> <li><strong><em>Prima facie</em></strong><strong> right, even if open to some doubt</strong></li> </ol> <p>The applicant’s contention is that he holds mining rights at Godwin N which extends into the land the first respondent seeks to evict him from.  The claim is supported by a certificate of registration issued by the Ministry of Mines on 17th April 2019.</p> <p>Whilst such certificate is not disputed, counsel for the first respondent argued that such certificate does not on the face of it show that these 10 claims extend into the first respondent’s land and therefore bestow a right on the applicant to be within that land.</p> <p><em>Mr Mahaso</em> conceded that he could have obtained an affidavit from the Ministry of Mines to that effect.  Counsel explained that efforts to secure the affidavit were frustrated by the Provincial Mining Director who directed counsel to Harare.  Due to the urgency of the matter counsel opted to file the urgent chamber application without obtaining the confirmatory affidavit.  Whilst it may be argued that the decision was unfortunate, sight should not be lost of the fact that this application is for a provisional order and the requirement is to prove a <em>prima facie</em> right, even though open to some doubt.</p> <p>The only issue here is whether the certificate of registration which bestows ownership of a block consisting of the gold reef claims allows the applicant to be in that part of the first respondent’s leased property.  This is not an issue where a party is claiming entitlement without any documents to show for it.  The applicant does have mining rights and the certificate of registration’s authenticity has not been challenged.  The location of the claims are indicated on the certificate of registration and all that was required was for the Provincial Mining Director to state that such “situation” as indicated on the certificate extends into the land in contention.</p> <p>It is my considered view that this is evidence that will prove a “clear right” in an application for the confirmation of a provisional order.  The phrase “even though open to some doubt” speaks to the very issue presented <em>in casu</em> where the first respondent is querying the location of the claims as depicted on the applicant’s certificate of registration.</p> <p>            Counsel for the applicant had requested the court to grant a postponement and seek such confirmation which the Ministry of Mines would readily give upon such request by the court.  I was not persuaded to grant the postponement for the simple reason that the application seeks a provisional order as opposed to a final order.</p> <p>            The <em>prima facie</em> right arises from the applicant’s entitlement to mine on the 10 claims shown on the certificate of registration and although open to some doubt as to the exact location extending into the first respondent’s leased property, the fact still is that such <em>prima facie</em> right has been established.</p> <ol> <li><strong>Apprehension of irreparable harm</strong></li> </ol> <p>The applicant filed this application in the face of an impending eviction.  Filed with the application are “Bullion Purchase Statements” showing the gold sold to Fidelity Printers and Refinery on 27th May 2019, 4th June 2019, 8th June 2019, 1st August 2019 and 10th October 2019.  Counsel for the first respondent argued that such statements do not necessarily show gold mined from the claims the applicant has at Godwin N.  The applicant’s contention is that infrastructure has been set up and employees engaged to work at the site.</p> <p>It cannot be disputed that a forced eviction invariably comes with casualties.  An evictee who voluntarily packs their belongings and evacuates from premises does so with some degree of care that does not necessarily extend to those who carry out evictions in compliance with a court order.</p> <p>The applicant submitted in the founding affidavit that a hammer mill, illution plant, staff quarters, an office, a toilet and a perimeter fence have been set up at considerable expense.  It is therefore not fanciful to entertain apprehension of irreparable harm.</p> <p>      As GUBBAY CJ stated in <em>Mupini</em> v <em>Makoni (supra)</em></p> <p>“Such special reasons against execution issuing can be more readily found where, as in casu, the judgment is for ejectment or the transfer of property, for in such instances the carrying of it into operation could render the restitution of the original position difficult.”</p> <p>            There is therefore real apprehension of irreparable harm should the eviction be carried out.</p> <p> </p> <p>3.         <strong>Balance of convenience</strong></p> <p>            Whilst the applicant stated what prejudice he stands to suffer should the eviction take place, the first respondent does not state what harm will befall the leased premises should the eviction be stayed.  This is not an issue where the parties are contesting the same mining rights. Where that is so, a party is entitled to fear substantial loss of the precious mineral, given that gold is a finite resource.  The court has not been told of any interference with agricultural activities and the extent of such if there is such interference.</p> <p>            It is therefore not easy to say with certainty where the greater or lesser prejudice lies.</p> <p>            I am therefore inclined to hold that the balance of convenience favours the restoration of the status quo pending the finalisation of the main matter.</p> <ol> <li><strong>Prospects of success  </strong></li> </ol> <p>The applicant seeks to vacate a judgment which was granted in default.  Counsel argued that had the applicant been aware of the litigation he would have defended it as he is a holder of a valid registration certificate and so entitled to carry out mining activities.</p> <p>It is a given that in any default judgment only one side is ‘heard’. There is hardly any testing of the evidence as the other party’s side of the story is not ventilated.</p> <p>Whilst the Deputy Sheriff’s return of service is <em>prima facie</em> proof that service was effected in the manner therein stated and that;</p> <p>“The law is settled that in order to disprove the contents of a return of service prepared by the Sheriff, there is need for positive evidence to rebut the presumption of regularity of a return of service which is in the prescribed format” per CHIDYAUSIKU CJ in <em>TM Supermarkets (Private) Ltd</em> v <em>Avondale Holdings (Private) Ltd and Another</em> SC-37-17, it is equally important not to overlook the wide discretion the court has in applications for rescission of judgment.</p> <p>            In <em>Dewaras Farm (Pvt) Ltd and Others</em> v <em>ZIMBANK</em> Ltd 1998 (1) ZLR 368 (S) the Supreme Court had this to say:</p> <p>“… good and sufficient cause is the basis of rescission of judgment.  This gives the court a wide discretion and it is not possible to provide an exhaustive definition of what constitutes sufficient cause to justify the grant of indulgence, even where there has been willful default there may still sometimes be good and sufficient cause for granting rescission.  The good and sufficient cause, for instance, might arise from the motive behind the default.”</p> <p>            I do not lose sight of the fact that the opposing affidavit avers that the applicant was aware of the summons and tried to engage the deponent over the eviction but the fact still stands that at the hearing of the application for rescission the applicant may very well succeed in persuading the court to exercise its wide discretion in the applicant’s favour and allow the applicant to be heard on the merits.</p> <p>            The issue is whether the applicant’s gold claims extend to the leased property and such an issue is easily resolved by reference to the locations as depicted on the certificate of registration.  The Ministry of Mines official should therefore be able to put the matter to rest, allowing a resolution of the matter in a manner that accords with real and substantial justice.</p> <p>It can therefore not be said the application for rescission of judgment is doomed to fail.</p> <ol> <li><strong>No other satisfactory remedy</strong></li> </ol> <p>The contention by the first respondent is that no irreparable harm which cannot be compensated by damages has been established.  In other words should eviction go ahead and the applicant is vindicated in the main matter, whatever harm suffered as a result of the eviction can be compensated by an award of damages.</p> <p>I can do no more than agree with MAFUSIRE J when he said:</p> <p>“In any given case, that there may be no other satisfactory remedy is sometimes a question of degree.  In the Dube case above I said money covers a multitude of sins.  It is altogether difficult to imagine a wrong or harm or prejudice that may not be compensated by an award of money as damages.  In some cases, money will be adequate.  But in others, it may not be.  It cannot buy everything.  There are certain wrongs that no type of scale can measure or no amount of money may buy.”</p> <p>            The impact of the eviction on the applicant’s mining activities, the effect it will have on the employees and their families, the possible damage to the machinery and the general disruption to the applicant’s business venture may not be easily quantified in terms of a monetary award.</p> <p>            Sometimes it is really the loss of an opportunity that matters, a loss that is not easily recoverable, if at all it can be recovered.</p> <p>Ultimately as was stated in <em>Cohen</em> v <em>Cohen</em> 1979 (3) SA 420 (R);</p> <p>“Circumstances can arise where a stay of execution as sought here should be granted on the basis of real and substantial justice. Thus, where injustice would otherwise be caused, the court has the power and would, generally speaking, grant relief.”</p> <p>            Whilst the facts in <em>Cohen </em>v <em>Cohen (supra)</em> are very different to the ones <em>in casu</em>, the overriding factor of ensuring real and substantial justice is achieved persuades me to grant the relief sought in casu.</p> <p>            Let the applicant be allowed to have his day in court, be heard, and a decision made.  Execution can then follow or not depending on the outcome of the application for rescission.</p> <p>            In the result I make the following order:</p> <ol> <li>Pending the finalisation of the application for rescission of judgment filed under HC 108/20, applicant’s eviction by 2nd respondent at the behest of the 1st respondent be and is hereby stayed.</li> <li>Each party is to bear its own costs.</li> </ol> <p> </p> <p><em>Tanaka Law Chambers</em>, applicant’s legal practitioners</p> <p><em>T. J. Mabhikwa &amp; Partners</em>, 1st respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2020/16/2020-zwbhc-16.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=28261">2020-zwbhc-16.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2020/16/2020-zwbhc-16.pdf" type="application/pdf; length=167816">2020-zwbhc-16.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/execution-practice-and-procedure">Execution (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/stay-execution">stay of execution</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-should-execution-appeal-be-granted">when should execution appeal be granted</a></li></ul></span> Tue, 30 Jun 2020 10:40:11 +0000 Sandra 9740 at https://old.zimlii.org Mujeyi v Afrasia Bank Zimbabwe Limited & 3 Others (HH 202-20, HC 1644/19) [2020] ZWHHC 202 (04 March 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/202 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>ABIATHER MUJEYI                                                                                  </p> <p>and</p> <p>AFRASIA BANK ZIMBABWE LIMITED</p> <p>and</p> <p>COLBRO TRANSPORT (PVT) LTD</p> <p>and</p> <p>THE SHERIFF OF ZIMBABWE</p> <p>and</p> <p>REALGATE PROPERTIES</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUNANGATI-MANONGWA J</p> <p>HARARE, 4 June 2019 and 4 March 2020</p> <p> </p> <p> </p> <p><strong>Opposed matter</strong></p> <p> </p> <p><em>J. Dondo</em>, for the applicant</p> <p><em>D. Tivadar</em>, for the 2nd respondent</p> <p> </p> <p>            MUNANGATI-MANONGWA J:The applicant herein was the owner of a property known as Stand 73 Chicago Township of Lot 12 of Chicago Kwekwe (hereinafter referred to as “the property”) which was sold in execution in pursuance of a court order granted in favour of 1st respondent Afrasia Bank Zimbawe Limited in case No HC1765/14. In that case the 1st respondent got an order for the payment of US$396 782-00 interest and costs against the Applicant, one Robert Brian van Rensburg and Marlbereign Drive In Cinema jointly and severally the one paying the other to be absolved. The applicant’s property was sold to the 2nd respondent by the 4th respondent an estate agent on instructions of 3rd respondent the Sheriff of Zimbabwe. The applicant is challenging the said sale and seeks that the sale be set aside and costs. Only the 2nd respondent, the purchaser is opposing this application.</p> <p>            Prior to instituting his application the applicant had approached this court seeking the setting aside of the sale relying on the provisions of Order 40 r359 of the High Court Rules 1971. The second respondent had opposed the matter and raised a point <em>in limine</em>. Makoni J (as she then was) upheld the raised point and dismissed the application on the basis that the application was not properly before her. The applicant appealed to the Supreme Court and that court upheld Makoni J’s judgment. <em>In casu</em> the 2nd respondent raised a point that the matter is <em>res judicata</em>. I dismissed the point on the basis that the application had not been determined on merits, the court simply held that the application was not properly before the court and further, the grounds or cause of action is now different. The application now relies on common law grounds to challenge the sale.</p> <p>            The brief history of the matter is as follows: The 4th respondent upon being instructed to sell the property by 3rd respondent, valued the property and indicated the market price as US$65000-00 and the forced sale value at US$39000-00. An attempt to sell the property by public auction on 4 November 2016 yielded no results as there were no bids received. Fourth respondent was then authorised to sell the property by private treaty and the property was then duly advertised for sale on 24 November 2016. The 2nd respondent put in a bid for US$39000-00, the Sheriff accepted the offer. On the 7th February 2017 the 3rd respondent wrote to Sawyer &amp; Mkushi the judgment creditor’s legal practitioners d<em>eclaring and confirming </em>the second respondent to be the purchaser. The letter stated that the purchase price had to be paid into the Sheriff’s account within 7 days of the date of receipt of the letter failure of which the sale was to be deemed cancelled. The letter was copied to the estate agent the fourth respondent, the purchaser 2nd respondent and one of the judgment debtors Robert Brian van Rensburg, and the applicant was not copied. On the 13th March 2017 the third respondent wrote to second respondent cancelling the sale and indicated that the property is to be put back on public auction with instructions from the instructing attorneys. Once again this letter was not copied to the applicant but was copied to the aforementioned previous recipients. On the 29 March 2017 the 2nd respondent paid the purchase price.</p> <p>            The applicant has approached court on grounds he says are common law based. He avers that the sale was done behind his back and he only became aware that his property had been sold by private treaty in March 2017, thus he was never given an opportunity to object to the sale. He could thus not invoke his right given under Rule 359 of the High Court Rules 1971. He further submitted that apart from an offer made through an email by a party known and sharing the same address as the 4th respondent the estate agent, for an amount of $39000-00 exactly what the estate agent had indicated as the forced sale value no other offers have been produced so as to validate the claim that the offer was reasonable. Collusion could also not be ruled out. That the third respondent being the Sheriff had written to the purchaser cancelling the sale on the 13th March 2017 and not opposed the setting aside of the sale in his report of the 27th March 2017, to then allege in a letter of 22nd February 2019 that the sale was not cancelled shows the impropriety on the Sheriff’s part. It is the applicant’s case that a purchase price of US$39000-00 is grossly low given that when the property was rendered as security, Afrasia Bank Zimbabwe the 1st respondent, valued the property at US$300 000-00 in April 2016. The applicant had also found a buyer who had offered US$350 000-00. The applicant placed before the court a valuation report by Fitz &amp; Des Real Estate placing the market value at US$101 500-00 and the forced market value at US$60 000-00.</p> <p>The respondent sets his response in 5 paragraphs which averages 3 sentences per paragraph. In essence, the 1st respondent refers to his opposing affidavit in HC2474/17 which application was dismissed. The 1st respondent further refers to the hearing of the supreme court which of course is long since passed and the Supreme court as previously referred to upheld Makoni J (as she then was)’s judgment that dismissed the applicant’s previous application as not being properly before  the court. Basically the facts of the case are not contested by the 1st respondent as the sale is documented from the time that the 1st respondent was advised that its bid had been accepted. It is when the applicant became aware that the 1st respondent avers that given that the property was being advertised it could not be that the applicant became aware of the sale on the 3rd March 2017. The 2nd respondent contends in the incorporated affidavit that the purchase price of US$39 000-00 is not grossly and unreasonably low given the current economic conditions in Zimbabwe. The 1st respondent submitted that the grounds pleaded by the applicant do not suffice to have the sale set aside in that there was reference in the initial application of common law grounds hence this was piecemeal approach to litigation. Further that the amount should have been US$60 000-00 is not sufficient.</p> <p>            It is now established that at common law any person interested in a sale in execution has an elective right to apply to court to have the sale set aside on good cause shown although courts are reluctant to set aside a sale which has been confirmed. The courts are even more reluctant to set aside a sale where transfer of the immovable property has been effected. See <em>Garati </em>v<em> Mudzingwa &amp; Ors</em> 2008 (2)ZLR 88 at 94. It is also an entrenched rule that “under common law immovable property sold under judicial decree cannot after transfer has been passed, be impeached in the absence of an allegation of bad faith, or knowledge of the prior irregularities in the sale by execution, or fraud” per Gubbay CJ in <em>Mapedzamombe </em>v<em> Commercial Bank of Zimbabwe &amp; Another</em> 1996(1)ZLR 257 (S) at 260 F-G. Thus once the sale has been confirmed and transfer effected it is near impossible to have that sale reversed save in the limited instances referred to above. However for this to apply it is my view that the sale must be properly advertised and properly conducted. There must be no irregularities or bad faith characterising the sale.</p> <p> </p> <p><em>In casu</em> the applicant has raised the complaint that the sale was carried out behind his back. He alleges that he became aware of the sale on the 3rd March 2017 when the property had been sold by private treaty in November 2016. Applicant does not dispute that the sale had to be carried out, it is the manner that the sale was conducted that he impeaches. The applicant avers that he never received any communication from any of the respondents pertaining to the sale by private treaty. There is an averment that the sale was advertised in November 2016 but the advertisement itself has not been produced or placed before the court. That aside only one offer which was made by way of an email on behalf of the 2nd respondent is on record. The 2nd respondent’s offer came through an estate agent to the auctioneer and the offer of US$39000-00 was made. The applicant made an averment that the fact that the 2nd respondent the purchaser and the 4th respondent the auctioneer share the same address being Shop 3 Tshaka Centre Fife Street &amp; 11th Avenue, Bulawayo which address the 3rd respondent used to communicate with them. This has not been denied by the concerned respondents. The applicant submitted that this, coupled by the fact that the 2nd respondent offered the exact amount that the 4th respondent had indicated as the forced sale value is curious. The court finds it difficult to assume that the offer was coincidental in the circumstances especially given the casual manner in which the offer was made which clearly indicates familiarity. See Annexure “D” the email on p20.</p> <p>It is common cause that there is no evidence from the Sheriff as regards any other offers he received since the Sheriff did not oppose this application. Suffice to state that where the conduct of the Sheriff is being challenged, it is imperative that that office shed light on the occurrences pertaining to the disposal of the property. That certainly assists the court in determining whether or not there are any irregularities that might vitiate the sale</p> <p>It is on record that on 29  November 2016 the Sheriff wrote to the 1st respondent’s legal practitioners, the creditors legal representative advising them that on that very date he had declared the 2nd respondent the highest bidder to be the purchaser of the property. In the same vein, the letter called for objections to be made in writing to him within 15 days from the date the highest bidder was declared. Of note is the fact that the letter was only copied to 2nd respondent the purchaser, 4th respondent the auctioneer and one of the debtors Mr Brian van Rensburg. Hastening to add that the said Mr van Rensburg could not be served as his address could not be located as per the endorsement on the letter by the 3rd respondent. The applicant was not copied this crucial letter despite the fact that he was an interested party as the asset being disposed belonged to him. The said letter appears as Annexure “C” on p 20 of the consolidated record. Given this position, this renders credence to the applicant’s explanation as to why he was unable to raise objections as per the rules as he was unaware of the sale. The second respondent seeks to say that the fact that the 1st respondent did not object to the sale shows that the judgment creditor accepted the purchase price as reasonable. The court is not convinced that this is the position because even as of this date the 1st respondent did not oppose the application it might as well be a case of an indifferent judgment creditor. As no objections were received the Sheriff confirmed the sale. </p> <p>On the 7th February 2017 the Sheriff wrote to the 1st respondent’s legal practitioners Sawyer &amp; Mkushi advising that he had confirmed the 2nd responded as the highest bidder and hence purchaser of the property at the sum of US$39000-00. The letter further reads:</p> <p>“The full purchase price MUST be deposited into the Sherriff’s CBZ Account number 02123886430057 within seven days from the date of this letter of confirmation. Failure tom do so the sale shall be deemed cancelled.” See Annexure “A” on p13-14</p> <p> </p> <p>Again this correspondence was not copied to the applicant but to the aforementioned respondents who were initially copied the letter of 29 November 2016. Crucial are the conditions of sale imposed by the 3rd respondent. The purchase price had to be paid within a specified period of 7 days. This did not happen as no payment was made by that date. On the 13th March 2017 the third respondent wrote directly to the 2nd respondent referring to its letter of the 7th February 2017. The letter went on to state that:</p> <p>“As earlier advised by previous correspondence, we do hereby cancel the sale in terms of Rule 357 of the High Court Rules 1971.</p> <p>The property is to be put back on public auction with instructions from the instructing attorneys.” See Annexure “G” p33.</p> <p> </p> <p>The letter was copied to the 1st respondent’s legal practitioners, the 4th respondent, the purchaser itself and Mr Van Rensburg, once again the applicant was left out. The effect of this letter was to cancel the sale agreement. It is thus inconceivable how the 3rd respondent then accepted the purchase price from the 2nd respondent on the 29th March 2017 for the purchase of the property when the sale agreement itself has been cancelled on the 13th March 2017. The cancellation was unequivocal and the Sheriff rightly took the decision to put the property back on public auction. It remains a mystery why the property was then not placed back on public auction.  It is the subsequent revival of the sale by way of accepting payment which constitutes a great irregularity. From the moment the Sheriff indicated that the sale was cancelled he became <em>functus offici</em>o. There was no sale in existence by the time the 2nd respondent made a payment on the 29th March 2017, hence there was no reason for payment.</p> <p>            The court is aware that after the initial appeal had been argued at the Supreme Court the 2nd respondent then wrote a letter Annexure J to the Registrar of the Supreme Court. The contents thereof read:</p> <p>“The sale of the above property was not cancelled as per Mr Nzvere’s letter dated 13 March 2017, since payment of the full purchase price by Colbro Transport was done on 23 March 2017 and receipted by the Sheriff on 29 March 2017.”</p> <p> </p> <p>This letter does not salvage the situation. The contract was already cancelled and properly so. The fact that payment was made after the cancellation is of no legal significance there was nothing to buy. Of note is the fact that this is just a letter and not an affidavit hence its evidential value is minimal however it shows the double standards that the Sheriff exercises. Two points emerge out of this conduct being: ignorance of the law of contract and or lack of integrity in the office of the sheriff. Legally there is no sale agreement of the property as the transaction that followed is null and void. It is fortuitous that no transfer ensued from the purported sale. Most pertinent is the fact that the 3rd respondent in his report filed of record on the 27th March 2020 does not oppose the setting aside of the sale, this could only be because of its appreciation of the inappropriateness of its conduct.</p> <p>The court notes that the 1st respondent being the judgment creditor has not opposed the application. The second respondent has not denied any of the improprieties by the Sheriff or that it shares the same address with the auctioneer. The condemned acts of the Sheriff were specifically mentioned and the 2nd respondent did not and could not deny them particularly failure to advise the applicant about the sale and subsequent proceedings as shown by failure to copy applicant the mentioned letters. The failure of the Sheriff to advise the applicant an interested party about the sale of the property, failure to advise him when he called for objections is in itself conduct which is deplorable and prejudicial to the applicant. To then cancel the agreement and purport to revive it by accepting payment puts the death knell to the whole matter. The disposal of the property cannot stand as the sale was cancelled. The above taken in conjunction constitute in the court’s view good cause to have the sale set aside.</p> <p>            The applicant has urged the court to consider that there was collusion between the auctioneer fourth respondent and 2nd respondent the purchaser. It has not been denied that the 2nd and 4th respondent share the same address. The manner the offer was made clearly shows familiarity and this coupled by the fact that the amount offered by the 2nd respondent is exactly the amount that the 4th respondent had indicated to be the forced sale value creates great suspicion. However that alone cannot be reason for vitiating a sale. However when this is taken in conjunction with the fact that the Sheriff made sure that all the pertinent information was not being copied to the applicant, bad faith and connivance cannot be ruled out. The applicant can be said to have established this on a balance of probabilities.</p> <p>            Advocate <em>Tivadar</em> submitted on behalf of the 2nd respondent that what the applicant was alleging is insufficient to satisfy the burden that lies on applicant which is very high. He highlighted that the valuation which the applicant relies on is not sworn hence not much weight can be placed on it. Equally, a theoretical valuation should not be preferred over the actual offers received. He submitted that there should be a demonstration by way of evidence of any persons willing to pay the expected amounts which has not been done by the applicant. In that regard he referred to <em>Austerlands (Pvt) Ltd</em> v<em> Trade and Investments Bank Limited and Others</em> SC92/05. For that reason the applicant failed to establish that the property was sold for an unreasonably low price. Whilst the valuation placed before the court is not a sworn one, the court cannot turn a blind eye to the fact that when the property was rendered as security it was valued at US$300 000-00 and sold in 2016 at US$39000-00. Most pertinent the record does not refer to any offers which aspect the Sheriff should have clarified on given that the offer made by the 2nd respondent is the one whose casual nature has been questioned. At the same time the court cannot ignore the fact that the applicant’s own valuation reflects the forced sale value as US$60 000-00. This information is such that the court cannot readily rely on it in determining the issue of the price being unreasonably low.</p> <p>It has been argued on behalf of the 2nd respondent that it must be considered that it is an innocent purchaser hence for public policy reasons the sale must not be set aside. The sale is not clean, it is tainted by irregularities which points to bad faith or bias, that being so the purchaser cannot escape the consequences. Mr<em> Tivadar</em> submitted that the applicant must have guarded his own interests. It must be noted that the Sheriff was to conduct a sale by private treaty. It is upon declaring a purchaser the highest bidder that objections could kick in, in terms of Rule 359. Deliberately omitting to inform the applicant of the sale and calling upon him to lodge objections if any, points to bad faith. The applicant cannot be said to have failed to guard his interests when no correspondence or information on developments was not being supplied. The court thus dismisses that argument.</p> <p> The court is alive to the fact that courts should not readily set aside sales in execution under Order 40 for it affects the efficacy of the sales and erodes public confidence in sales in execution as expounded in <em>Lalla</em> v <em>Bhura</em> 1973(2) ZLR 280 (CD). Public policy considerations cannot be ignored. However the sales in execution themselves must be above board, the sale must be properly conducted. This is not the case herein. The outlined facts no doubt put the Sherriff’s office into disrepute. The debtor’s rights have to be considered hence the rules provide an opportunity for any interested party to be given an opportunity to challenge the sale within a number of given days. Equally, the Sheriff’s conduct must be transparent in the interests of justice and for the integrity of the office. The court found that the conduct of the 3rd respondent fell far short of what is expected of such an office. The mandate given to the Sheriff’s office to dispose off assets to satisfy judgments demands utmost transparency, fairness and adherence to rules for it to maintain its integrity. If these are found lacking the courts will always be inundated by complaints and applications due to suspect conduct of the Sheriff’s officials. That the 2nd respondent later wrote a letter to the Supreme Court that the sale was not cancelled is an aside issue. That was not the issue before that court, the court just enquired in passing as a matter of interest. Nothing much turns on that.</p> <p>Mr <em>Tivadar </em>argued that the applicant was approbating and reprobating and had brought piecemeal applications before the court hence was abusing the court. The court finds that this is not the matter. In the initial application the applicant sought to rely on the rule 359 subr 8 of the High Court Rules. The court found that the application was not properly before it as there was no decision made by the Sheriff such as to warrant a review by this court. The applicant cannot be penalised that he returned to court seeking to rely on common law grounds. That avenue being available to him it cannot be said that he sought piecemeal adjudication of applications as the grounds could not be combined in the court’s view.</p> <p>            The decision herein is thus anchored not on the prejudice arising from the sale price but the manner in which the sale was conducted. It also being noted that no transfer had taken place which, if it were so the considerations would have been stringent. It is due to the aforegoing that this court finds merit in the application. Accordingly it is ordered:</p> <ol> <li>The purported sale of Stand 73 Chicago Township of Lot 12 of Chicago, Kwekwe to the second Respondent by fourth Respondent be and is hereby declared null and void.</li> <li>The second respondent shall pay costs of this application.</li> </ol> <p> </p> <p> </p> <p><em>Dondo and Partners</em>, applicant’s legal practitioners</p> <p><em>Messrs Webb, Low &amp; Barry</em>, 2nd respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/202/2020-zwhhc-202.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=29218">2020-zwhhc-202.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/202/2020-zwhhc-202.pdf" type="application/pdf; length=247023">2020-zwhhc-202.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/execution-practice-and-procedure">Execution (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/sale-execution">sale (Execution)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-should-execution-appeal-be-granted">when should execution appeal be granted</a></li></ul></span> Thu, 19 Mar 2020 10:36:02 +0000 Sandra 9571 at https://old.zimlii.org Ndlovu v CABS & 2 Others (HB 39-20, HC 1701/19) [2020] ZWBHC 39 (27 February 2020); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2020/39 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>THABANI NDLOVU</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>CENTRAL AFRICA BUILDING SOCIETY</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>OBEY MAHWEKWE</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>SHERIFF OF HIGH COURT</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>MOYO J</p> <p>BULAWAYO 3 &amp; 27 FEBRUARY 2020</p> <p> </p> <p><em>I.  Mafirakureva</em> for the applicant</p> <p><em>N. Mangena</em> for 2nd respondent</p> <p> </p> <p><strong>Opposed application</strong></p> <p><strong>            MOYO J:       </strong>This is an application wherein the applicant seeks to set aside a sale in execution.  The facts of this matter are that applicant’s immovable property namely stand number 131 Douglasdale Township 3 of subdivision 1 of Douglasdale situate in the District of Bulawayo wherein the property was sold by the Sheriff for a sum of $310 000,00</p> <p>            Applicant avers that the price was unjust, inequitable and unreasonable for the Sheriff to have sold the immovable property in question at a value of $310 000.  Applicant based his contention on 2 valuation reports which put the open market value of the property at $566 387,50 and $480 578,00  respectively.  The evaluation reports are annexed to the application. Applicant therefore avers that the sum of $310 000,00 is unreasonable low.  In paragraph10 of his objection affidavit applicant seeks to be allowed to look for potential buyers and that the property be sold by private treaty or still that he be allowed to pay the debt off should he raise the requisite amount before the private sale is finalised.  In his founding affidavit, the applicant in fact avers that as at that date he had since paid off the judgment debt and therefore no longer owes anything.  It would appear from applicant’s papers that the basis for this application is firstly, that the sale was at an unreasonably low price, and that the debt has since been paid in full.  2nd respondent has opposed the application primarily on the basis that applicant has not made a case for setting aside the sale.  Applicant’s counsel argued that on the basis of the evaluation report, the sum for which the property was sold is unreasonably low warranting that the sale be set aside.</p> <p>            Respondent’s counsel argued that it is trite that sales in execution will not be set aside easily upon every complaint and that the court will only interfere in justified circumstances, respondent’s counsel argued further that applicant’s case is not justified.  At the hearing of the matter, the 2nd respondent’s counsel raised issues on the valuation reports, that is to say they were identical in form especially even in relation to the grammatical errors in paragraphs 2 and 3 at page 25 of the bound record and at the top paragraph on page 26.  Such information together with the grammatical errors is identical to the information in the other valuation report at page 14 paragraphs 2 and 3 as well as the paragraph immediately before the opinion of the Valuer.  This brings to question if the valuation reports can be relied on.  Whilst there could be similarity in style or wording and whilst it can be acceptable that certain professionals word their documents in a similar way, it is the grammatical errors that create discomfort.  For the grammatical errors lead to a suspicion that one report was copied and pasted with slight modifications to the other report just to add weight.</p> <p>            What further complicates applicant’s case with regard to the valuation reports which have glaring similar errors, is that they were not sworn to.  This affects their probative value especially where the 2nd respondent has raised a red flag with regard to their propriety.  In the Supreme Court case of <em>Zimunhu</em> vs <em>Gwati &amp; Others</em> SC-43-02 the Supreme Court dismissed an appeal against the decision of the High Court dismissing an application to set aside a sale in execution.  In that case a valuation report was used which the Supreme Court refused to accept for 3 reasons one of which was that the valuation was not made under oath and that it did not show the qualifications of the person who carried out the valuation report.  The Supreme Court in that case, further stated that in any event a valuation is an opinion of the person who made the valuation and one opinion does not constitute market value.  The Supreme Court further quoted with approval the case of <em>Estate Hemaj Mooljee</em> v <em>Seedat</em> 1945 NPD 22 at 24 where SELKE J after saying that a price realised in open competition is properly to be regarded as indicating the market price said;</p> <p>“But however, that may be, the opinion of Mr Mallisa though possibly entitled to some weight, is, after all, merely the opinion of a valuation and must it  seems to me, be of considerably less value than definite information about the price actually offered for the property in bona fide competition at an auction, after due and proper advertisement.”</p> <p>            In that Supreme Court case, the property had been sold for $1 050 000,00 and the appellant in that case had submitted a valuation report that the forced sale value was $2 325 000,00 and that the market value would be $3 100 000,00.  Of course one of the reasons why the Supreme Court rejected the valuation report was that it had been obtained 12 months down the line.  Be that as it may, the issue of the weight I attach to the valuation reports before me, especially given their suspicious nature, not sworn to, and with no qualifications of the people preparing same, the Supreme Court held in that case that with such a valuation an application should be held to have failed to establish that the property was sold for an unnecessarily low price.  In that case the Supreme Court further stated that a debtor who fails to manage his affairs will find himself in the position of the applicant in that case.  The Supreme Court referred to the case of <em>Morfopoulos</em> vs <em>ZIMBANK</em> 1996 (1) ZLR 626 (H) at wherein GILLEPSIE J said;</p> <p>“All too frequently, however, the debtor finds himself in an invidious position relating to the loss of his home precisely because of his own failure to address the problem efficiently at an early stage.  Where his own tardiness or evasion has contributed to his problems, a debtor cannot hope to persuade the court that equitable relief is due.”</p> <p>            The judge further stated thus;</p> <p>“Finally, I wish to say that generally speaking, courts should not readily interfere in sales in execution.”</p> <p>            I accordingly, as analysed herein find that the applicant has not made a case for the setting aside of the sale in execution and I accordingly find no reason to exercise my discretion in his favour and set aside a seemingly proper sale for such relief shall not be given to an applicant for their mere asking.  A strong case has to be made for the setting aside of a sale in execution as such sales shall evidently not be set aside as a matter of course.  An applicant in such a case must present cogent circumstances that pass a certain threshold, facts that will be enough to tilt the scales heavily in favour of setting aside.  Such is not the case with the facts before me.</p> <p>            I accordingly, dismiss the application with costs for reasons stated herein.</p> <p> </p> <p> </p> <p> </p> <p><em>Messrs Moyo &amp; Nyoni</em>, applicant’s legal practitioners</p> <p><em>Messrs Coghlan &amp; Welsh</em>, 2nd respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2020/39/2020-zwbhc-39.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=18429">2020-zwbhc-39.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2020/39/2020-zwbhc-39.pdf" type="application/pdf; length=126674">2020-zwbhc-39.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/execution-practice-and-procedure">Execution (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/sale-execution">sale (Execution)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/stay-execution">stay of execution</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/when-should-execution-appeal-be-granted">when should execution appeal be granted</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2002/43">Zimunhu v Gwati and Others (SC43/02 ) [2002] ZWSC 43 (12 June 2002);</a></div></div></div> Tue, 10 Mar 2020 10:29:24 +0000 Sandra 9542 at https://old.zimlii.org Mutize v FMC Financial Services (Pvt) Ltd & 5 Others; Nyahasha v Mutize (HH 10-20, HC 10930/18; HC 505/19) [2020] ZWHHC 10 (08 January 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/10 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>1.ABIGAIL MUTIZE                                                                                                            HC 10930/18                                                                                                           </p> <p>versus</p> <p>FMC FINANCIAL SERVICES (PVT) LTD</p> <p>and</p> <p>REVESAI TABETH NYAHASHA</p> <p>and</p> <p>SHERIFF OF THE HIGH COURT</p> <p>and</p> <p>REGISTRAR OF THE HIGH COURT</p> <p>and</p> <p>REGISTRAR OF DEEDS</p> <p>and</p> <p>POWER BREEZE ENGINEERING (PVT) LTD</p> <p> </p> <p>2.REWESAI TABETH NYAHASHA                                                                      HC 505/19</p> <p>versus</p> <p>ABIGAIL MUTIZE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>TAGU J</p> <p>HARARE, 24 July 2019 &amp; 8 January 2020</p> <p> </p> <p> </p> <p><strong>Consolidated opposed applications</strong></p> <p> </p> <p><em>N Musuba</em>, for applicant (HC 10930/18)</p> <p><em>E Mubaiwa</em>, for respondents</p> <p> </p> <p><em>F Moyo</em>, for applicant (HC 505/19)</p> <p><em>N Musviba</em>, for respondent</p> <p> </p> <p>             TAGU J: There is an order of this Court consolidating the two matters in HC -10930/18 and HC- 505/19 for hearing. The matters speak to each other particularly because the title sought to be enforced in HC- 505/19 is also being impugned in HC-10930/18. It is necessary to set out the facts in each case.</p> <p>In Case No. HC 10930/18 the applicant ABIGAIL MUTIZE is applying for setting aside a sale in execution by public Auction in terms of the common law of Zimbabwe. The applicant as the one of the directors of, and on behalf of the 5th respondent pledged her house, which is a certain piece of land situate in the district of Salisbury, being Stand 659 Mabelreign Township, measuring 1163 square meters (the property) as collateral for the money borrowed from the 1st respondent, by the 5th respondent. The 5th respondent defaulted in its payments and the 1st respondent obtained a judgment against the applicant under Case Number HC 7340/11. The property was attached and sold in execution by public auction by the 3rd respondent. The 2nd respondent was duly declared the highest bidder and purchaser of the said property for $115 500.00 on the 19th of March 2018 and the sale was confirmed on the 31st May 2018. Efforts by the applicant to challenge the confirmation were unsuccessful. The terms of the sale set by the 3rd respondent were that the purchase price was to be paid in full within 7 days after confirmation and failure to do so would result in the sale cancelled. The applicant alleges that the 2nd and 3rd respondents breached the terms of the sale in that payment was made after seven days. The 3rd respondent is accused of having passed transfer to the 2nd respondent before full purchase price was paid. She therefore submitted that the manner in which the Sheriff handled this sale is opaque and suggestive of bad faith or mischief on the part of the purchaser or the Sheriff or both of them. The relief being sought by the applicant is as follows-</p> <p>“1. The Deed of transfer registered in favor of the second respondent in respect of the property in dispute be and is hereby cancelled.</p> <p>2. The Deed of transfer No. 8554/89 registered in the name of the applicant on the 12th day of September 1989 be and is hereby revived.</p> <p>3. The third respondent be and is hereby directed, in respect of the relevant documents, to make the endorsements and entries necessary to give effect to paragraph 2 of this order.</p> <p>4. The sale by public auction concluded between the second and third respondents on the 19th of March 2018, in respect of Stand 659 Mabelreign Township, Harare, measuring 1163 square meters, be and is hereby set aside.</p> <p>5. The second respondent shall pay the costs of this application.”</p> <p> </p> <p>The applicant (Rewesai Tabeth Nyahasha) in Case No. HC-505/19 is that she is applying for the eviction of the respondent, (Abigail Mutize) her invites, occupants, employees and any other person claiming occupation at her behest from a certain piece of land situate in the district of Salisbury called Stand 659 Mabelreign Township measuring 1163 square meters held under deed of transfer 5886/2018 also known as No. 9, 27th Avenue Haig Park, Mabelreign, Harare. (the stand). Facts in respect of Case No. HC 505/19 are that the applicant in or around the 28th September 2018 became the legal owner of the said stand. Transfer from the respondent arose following a Sheriff’s sale by way of public auction held under SS16/18 to which she successfully tendered the highest bid and was consequently confirmed by the Sheriff of Zimbabwe as the purchaser in and around the 31st of May 2018. She claims to have title to the property and is being deprived of possession and all the rights which flow from ownership by the respondent’s conduct of refusing to vacate the property despite demand. She now prays for an order in the following terms-</p> <p>“1. The eviction of the Respondent and all those claiming through her from the premises known as No. 9, 27th Avenue, Haig Park, Mabelreign, Harare within 7 days of being served with this Order failing which the Sheriff of the High Court of Zimbabwe is hereby authorized to evict the Respondent and all those claiming occupation through her.</p> <p>2. Costs of the suit on a legal practitioner and client scale.”</p> <p><strong>CASE HC -10930/18</strong></p> <p>Several preliminary objections were raised by the second respondent. These have to be dealt with first. The first point <em>in limine</em> is that there are material disputes of facts. The contention by the second respondent is that at the time of issuing this application the immovable property had already been transferred to the 2nd respondent as evinced by Annexure “D”. She said not only does the applicant need to prove that the conduct of the 3rd respondent fell below the standard expected of him but she must also address the issue of ownership which facts form triable issues that cannot be dispensed solely on the papers filed of record. Counsel for the applicant submitted that there are no disputes of facts because there is a balance of $500.00 that needs to be paid. In response the counsel for the second respondent produced receipt number 0984015 which proved that the amount of $ 500.00 was paid on the 13th of November 2018. A perusal of the papers indeed shows that this court application was filed on the 27th of November 2018 well after the balance had been paid. Therefore it is not correct that an amount of $500.00 is outstanding. Therefore this point <em>in limine</em> has merit.</p> <p>The other point <em>in limine</em> is that the application is <em>lis pendens</em> under Case No HC 5402/18. The court indeed had sight of the file referred to by the second respondent. I agree with the counsel for the applicant that the case referred to does not apply in that while some parties are mentioned the case involves some totally different parties. This point <em>in limine</em> is therefore dismissed.               </p> <p>The other point <em>in limine</em> is that of res judicata. This submission is based on a letter of compromise made at the time the applicant was not aware of the bad faith she referred to. Besides in my view this letter is not a court order. I cannot uphold this point <em>in limine</em>. See <em>Wolfenden</em> v <em>Jackson</em> 1985 ZLR (2) 313 (S).</p> <p>One point <em>in limine</em> was that the applicant failed to comply with Rule 257 of the Rules of this Honourable Court in that the Form No. 29 which the applicant used neither specifies the grounds upon which application is brought nor states the relief sought. She said these infractions render the application fatally defective. See<em> Moyo</em> v <em>Forestry Commission </em>1997 (2) ZLR 254 (S). The counsel for the applicant argued that since the application is one made under common law there was no need to comply with the Rules. The Form used by the applicant reads as follows-</p> <p>“TAKE NOTICE that the applicant intends to apply to the High Court at HARARE for an Order in terms of the Draft Order annexed to this notice and that the accompanying affidavit and documents will be used in support of the application”</p> <p> </p> <p>Rule 257 reads as follows-</p> <p><strong>             “257. Contents of notice of motion</strong></p> <p>The court application shall state shortly and clearly the grounds upon which the applicant seeks to have the proceedings set aside or corrected and the exact relief prayed for.”</p> <p> </p> <p>A reading of the Form used by the applicant in this case does not contain the particulars referred to in by the Rule. It is therefore fatally defective. This point <em>in limine</em> is upheld.</p> <p>The other point <em>in limine</em> was failure to apply for condonation. The second respondent submitted that the applicant was out of time and should have applied for condonation or at least explain why this application was brought out of time. Again the counsel for the applicant submitted that since this is an application under common law there was no need to apply for condonation. This was disputed by the counsel for the second respondent.</p> <p>I tend to agree with the counsel for the second respondent who submitted that a perusal of the applicant’s papers suggest that the motion before this court is actually an application in terms of Rule 359 of this Honourable Court. In particular Rule 359(8) provides that a person aggrieved by the Sheriff’s decision may within 1 month after notification apply to the Court by way of Court application to have the decision set aside. The applicant in her papers at paragraph 23 admits to filling her papers out of time all the while being economical about the truth as to why she filed her application out of time. She merely said-</p> <p>“further, she did not file this application sooner in terms of rule 359 of the High Court Rules, because she was not informed despite all her numerous requests from the Sheriff if the full purchase price had been paid. She was only advised that the full purchase price had not been paid through Annexure B supra, on the 6th of November 2018, hence bringing this application in terms of the common Law.”</p> <p>Realizing that she was out of time this is what the applicant should have said in an application for condonation. The applicant should have first sought condonation from this Honourable Court highlighting the reasons for late filing and seeking the court’s pardon to file the present application. I therefore uphold this point <em>in limine</em>.</p> <p>Finally, the last point <em>in limine</em> is that the applicant lacks <em>locus standi</em> to found a cause on the decision by the Sheriff to not cancel the agreement of sale. The second respondent submitted that the authorities are clear that the effect of the confirmation of a sale in execution is to bring about a contract between the Sheriff as the seller and the purchaser. Applicant is therefore not privy to the contract and has no relationship to the Sheriff’s right to elect to abide the contract. She has no locus standi to seek to enforce sanctions on the exercise of contractual rights of other persons. The counsel for the applicant conceded that the Sheriff had discretion but argued that it was exercised in bad faith.</p> <p>In the case of <em>Allied Bank Limited</em> v <em>Dengu &amp; Anor</em> SC- 12-2016 it was held that-</p> <p>“It is quite clear that the question of locus stand does not arise in the present case for the following reason. The principle of locus standi is concerned with the relationship between the cause of action and the relief sought. Once a party establishes that there is a cause of action and that he/she is entitled to the relief sought, he or she has locus standi. The plaintiff or applicant only has to show that he or she has direct and substantial interest in the right which is the subject –matter of the cause of action.”</p> <p> </p> <p>In the present case if the purchaser of the property in question had not complied with the terms of sale set by the Sheriff it was the Sheriff himself/herself who had a direct interest/ cause and not the judgment debtor and he had the right to extent the time within which the purchaser could make good the payment and not for the judgment debtor to bring an application for cancellation of the sale. I therefore agree with the second respondent that the applicant does not have <em>locus standi</em>. I uphold the point <em>in limine</em>.</p> <p>On the basis of the points <em>in limine</em> that I upheld the applicant’s application is dismissed without dealing with the merit of the application with costs.</p> <p><strong>CASE HC- 505/19</strong></p> <p>This an application for eviction of the respondent, her invites, occupants, employees and any other persons claiming occupation at her behest from a certain piece of land situate in the district of Salisbury called Stand 659 Mabelreign Township measuring 1163 square metres held under deed of transfer 5886/2018. (also commonly known as No. 9, 27th Avenue, Haig Park, Malbereign, Harare). It is common cause that the applicant has title to the said property. The respondent lost title to the property when it was sold in execution by the Sheriff.  The applicant temporarily allowed the respondent to stay in the property. Now the applicant wants to take possession of her property she lawfully bought at a public auction. The sale has since been confirmed by the Sheriff. All attempts to set aside the sale made by the respondent for one reason or another have hit a brick wall.</p> <p>This application is premised on the law of <em>rei vindicatio</em> and right to uninterrupted ownership. It is trite that in order for the applicant to succeed in a motion for <em>rei vindicatio</em>, it is incumbent upon the applicant to prove the following-</p> <ul> <li>That the immovable property vests in her;- <em>Savanhu</em> v <em>Hwange Colliery  Co.</em> SC -15-08;</li> <li>That the immovable property in dispute exists and is clearly identifiable;-<em>Sorvaag </em>v <em>Prettersen &amp; Ors</em> 1954 (5) SA 636;</li> <li>That at the time of issuing these motion proceedings, the respondent and those claiming occupation through her were in continued occupation at the premises.-<em>Chetty</em> v <em>Naidoo </em>1974 (3) SA 13 (H)</li> </ul> <p>In the authority of <em>Pretoria Standard</em> v <em>Ebrahim</em> 1979 (4) SA 193 (T) cited by the applicant it is put forward that ejectment of an occupier of land can be obtained by the registered owner of the immovable property. This applies mutandis mutatis to this case.</p> <p>The first requirement in my view has been satisfied by the applicant who provided the title deed to the immovable property despite the challenge by the respondent. The second requirement has also been satisfied as the property in question is in existence and is clearly identifiable. Equally the final requirement has been met as can be manifested from the respondent’s opposing papers filed of record wherein she admitted to having been in continuous occupation of the premises at the time proceedings were instituted.</p> <p>On the premise of the <em>nemo plus iuris</em> rule the remedy of <em>rei vindicatio</em> entitles the owner to exclusive possession and the applicant having met the requirements at law, the onus shifts to the respondent to prove that a right exists to her continued occupation at the premises. See <em>Muriwa &amp; Others</em> v <em>Noxon Investments &amp; Ors</em> HH-17-27.</p> <p>In deciding whether the respondent discharged the onus on her the court has to have regard to the following-</p> <ul> <li>Documentary evidence that the applicant is not the owner of the immovable property;</li> <li>That the immovable property is no longer identifiable or does not exist;</li> <li>That the respondent’s continued occupation of the immovable property is not unlawful; or</li> <li>That the respondent is no longer in physical control of the premise.</li> </ul> <p>Having considered the submission made before the court and the documentary evidence the court is of the view that the respondent, despite the spirited challenges she made failed to discharge the onus on her and her defence is dismissed with costs. The applicant managed to prove her case.</p> <p>IT IS ORDERD THAT</p> <ol> <li>The application in HC 10930/18 be and is hereby dismissed with cost on a legal practitioner and client scale.</li> <li>The application in HC 505/19 be and is hereby granted.</li> </ol> <ul> <li>The eviction of the Respondent and all those claiming through her from the premises known as No. 9, 27th Avenue, Haig Park, Mabelreign, Harare within 7 days of being served with this Order failing which the Sheriff of the High Court of Zimbabwe be and is hereby authorized to evict the Respondent and all those claiming occupation through her.</li> <li>Costs of suit on a legal practitioner and client scale.</li> </ul> <p> </p> <p> </p> <p><em>Donsa Nkomo &amp; Mutangi</em>, applicant’s legal practitioners (HC- 10930-18)</p> <p><em>Scanlen and Holderness</em>, 2nd respondent’s legal practitioners</p> <p> </p> <p><em>Scanlen &amp;Holderness</em>, applicant’s legal practitioner (HC-505-19)</p> <p><em>DNM Attorneys</em>, respondent’s legal practitioners</p> <p>     </p> <p>               </p> <p>        </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/10/2020-zwhhc-10.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=25698">2020-zwhhc-10.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/10/2020-zwhhc-10.pdf" type="application/pdf; length=319655">2020-zwhhc-10.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/condonation-practice-and-procedure">Condonation (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-condonation">application for condonation</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/condonation-non-observance-any-time-limit">condonation of non-observance of any time limit</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/dispute-facts-practice-and-procedure">Dispute of facts (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/execution-practice-and-procedure">Execution (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/sale-execution">sale (Execution)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-should-execution-appeal-be-granted">when should execution appeal be granted</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/locus-standi-0">Locus standi</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/property-and-real-rights">PROPERTY AND REAL RIGHTS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/ownership-0">Ownership</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/actio-rei-vindication">actio rei vindication</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2016/52">Allied Bank Ltd. v Dengu &amp; Another (52/2016 Civil Appeal No. SC 503/15) [2017] ZWSC 52 (30 June 2016);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2014/8-0">Savanhu v Hwange Colliery Co. (Civil Appeal No. SC 473/13) [2015] ZWSC 08 (29 May 2014);</a></div></div></div> Tue, 18 Feb 2020 07:42:07 +0000 Sandra 9486 at https://old.zimlii.org Amalgamated Rural Teachers Union of Zimbabwe & Another v ZANU PF & Another (HMA 37-18, HC 297/18) [2018] ZWMSVHC 37 (17 July 2018); https://old.zimlii.org/zw/judgment/masvingo-high-court/2018/37 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>AMALGAMATED RURAL TEACHERS UNION OF ZIMBABWE[2]</p> <p>and</p> <p>OBERT MASARAURE                                           </p> <p>versus</p> <p>ZIMBABWE AFRICAN NATIONAL UNION [PATRIOTIC FRONT]</p> <p>and</p> <p>MINISTER OF PRIMARY AND SECONDARY EDUCATION</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAFUSIRE J</p> <p>HARARE, 16 &amp; 17 July 2018</p> <p> </p> <p> </p> <p><strong>Urgent chamber application – leave to execute</strong></p> <p> </p> <p>Mrs <em>B. Mtetwa, </em>for the applicants</p> <p>Mr <em>N. Mushangwe, </em>for the first respondent</p> <p>Mr <em>T. Undenge</em>, for the second respondent</p> <p> </p> <p>MAFUSIRE J</p> <p>[1]        This is an application for leave to execute pending appeal. On 28 July 2018 I granted an interim interdict in the following terms:</p> <p> </p> <p>“Pending the final determination of this present case and/or the conclusion of the 2018 election cycle, including any run-off election, whichever comes first, it is hereby ordered:</p> <p> </p> <ul> <li>The first respondent is interdicted and restrained from asking, encouraging or forcing children at schools to attend or to participate in political rallies or activities or causing the closure of schools for any of its political rallies or activities.</li> </ul> <p> </p> <ul> <li>The first respondent is interdicted and restrained from compelling teachers to attend political rallies, wear party regalia, prepare performances for children to deliver at rallies or make contributions towards rallies whether in cash or kind.</li> </ul> <p> </p> <ul> <li>The first respondent is interdicted and restrained from using school property including school premises, buses, furniture, classrooms or any other property that belongs to the school, the Government or School Development Associations for any political rally or any other political purpose.</li> </ul> <p> </p> <ul> <li>The second respondent and/or any employees of his Ministry are interdicted and restrained from assisting the first respondent to do any of the restrained activities above or allowing the first respondent to use schools for political purposes.”</li> </ul> <p> </p> <p>[2]        The first respondent is the ruling party in Zimbabwe. The second respondent is a minister of government in charge of primary and secondary education. He is a member of the first respondent. The first applicant is a trade union of primary and secondary school teachers in rural Zimbabwe. The second applicant is a teacher. He is the current president of the first applicant.</p> <p> </p> <p>[3]        The first respondent appealed against the interdict in its entirety. It is pending that appeal that the applicants have sought leave to execute.  Just as in the original application, the second respondent does not oppose the application and he seeks to abide by the decision of the court. On the other hand, the first respondent does oppose it vigorously.</p> <p> </p> <p>[4]        An application for leave to execute is available because by operation of the law, an appeal automatically suspends the decision appealed against and so it cannot be carried into execution. But if despite the appeal the successful party wants to execute the judgment in the interim, he has to seek the leave of the court that granted the judgment.</p> <p> </p> <p> [5]       The application is premised on the principle that the court has an inherent power to control its own process. The overriding principle is the need to achieve real and substantial justice: see <em>Santam Insurance Company Ltd v Paget [2]</em>. In such an application, the court is guided by the following factors, which it considers cumulatively:</p> <p> </p> <ul> <li>The preponderance of equities: that is to say, the potentiality of irreparable harm and prejudice to the applicant if leave to execute is granted, or the potentiality of irreparable harm and prejudice to the respondent on appeal if leave to execute is refused.</li> </ul> <p> </p> <ul> <li>The prospects of success of the appeal: that is to say, whether the appeal is frivolous or vexatious or has been noted, not with the genuine intention of correcting a perceived wrong, but merely in order to buy time;</li> </ul> <p> </p> <ul> <li>If the competing interests are equal, then the balance of hardship to either party;</li> </ul> <p> </p> <p>see <em>Zaduck </em>v<em> Zaduck [2] </em>1965 RLR 635 [GD]; 1966 [1] SA 550 [SR]; <em>Graham </em>v <em>Graham</em> 1950 [1] SA 655 [T]; <em>South Cape Corporation v Engineering Management Services</em> 1977 [3] SA 534 [A]; <em>Fox &amp; Carney (Pvt) Ltd </em>v<em> Carthew – Gabriel [2]</em> 1977 [4] SA 970 [R]; <em>Arches [Pvt] Ltd </em>v<em> Guthrie Holdings [Pvt] Ltd </em>1989 [1] ZLR 152 [H]; <em>ZDECO [Pvt] Ltd v Commercial Carriers College [1980] [Pvt] Ltd </em>1991 [2] ZLR 61 [H]; <em>Econet [Pvt] Ltd </em>v<em> Telecel Zimbabwe [Pvt] Ltd 1998 [1] ZLR 149 [H]</em>;</p> <p> </p> <p>[6]        Invariably, the decision whether or not to grant an application for leave to execute turns on the relative strength or weakness of the appeal. This necessarily entails ploughing substantially the same field as done at the original hearing. It also entails the court peeking into an appeal that is pending before the superior court and, in some way, pronouncing a verdict on it. That is one of the shortcomings of this type of application. Mr <em>Mushangwe</em>, for the first respondent, argues that this in fact, amounts to a usurpation of the functions of the superior court. That seems true, but to a very limited extent.</p> <p> </p> <p>[7]        In an application for leave to execute it is necessary to weigh the relative strength or weakness of an appeal to guard against frivolous and vexatious appeals that are noted purely to buy time and not for any genuine intention to correct a wrong by the lower court.  Each case depends on its own facts. Some factors relevant to the determination of this type of application may assume greater or lesser importance in some cases than do others in other cases.</p> <p> </p> <p>[8]        In the present case, I have considered that I can decide the matter without making a pronouncement on the prospects of success of the appeal. Some other factors have assumed greater importance. I have been informed that once the appeal was filed, the Supreme Court has already set down the appeal for hearing on 27 July 2018. That is eleven [11] days away, and just three [3] days before the general election on 30 July 2013.</p> <p> </p> <p>[9]        In <em>Engen Petroleum [Pvt] Ltd v Infrastructure Development Bank of Zimbabwe</em> I declined an application for leave to execute pending appeal when it was brought to my attention that the appeal had been set down for hearing in the Supreme Court in just a month’s time. I regarded it would be more prudent, more expedient, more practical and less disruptive to allow the appeal to be heard without upsetting the status <em>quo</em>. That would avoid a potentially embarrassing situation where I would grant the application only for the Supreme Court to overturn my judgment in a month’s time, probably after the Sheriff had attached and possibly removed assets.</p> <p>  </p> <p>[10]      However, in the present case, the term “<strong>execution</strong>” is hardly being used in the literal sense. It is hardly meant to refer to the situation of the Sheriff going after the respondents with some form of writ. What the applicants seek to achieve is basically to ensure that my order of 28 June 2018 remains operative despite the appeal.</p> <p> </p> <p>[11]      The applicants justify the granting of such an order on an urgent basis and with costs on a punitive scale on the grounds that even after the order was granted, the first respondent has with impunity persisted with the prohibited conduct. The applicants have detailed instances of the first respondent, through several functionaries, including some of its aspiring members of parliament in several parts of the country, ordering teachers and school children to attend its campaign rallies. They have attached pictures of school children and school buses draped in the first respondent’s colours at the first respondent’s rallies. Some parents of school children have submitted sworn statements confirming the forced attendance of their children at the rallies.</p> <p> </p> <p>[12]      Mrs <em>Mtetwa</em>, for the applicants, has argued that the first respondent’s conduct is extremely disruptive of school life, particularly at this time of the year when most schools are conducting mid-year examinations. She says there is a real fear of physical injury being caused to the children given that the first respondent’s rallies not infrequently turn violent. The damage is also psychological. Vulgar conduct, inflammatory language and other anti-social activities are all part and parcel of the first respondent’s rallies. Despite the first respondent’s appeal having been set down for hearing on an urgent basis, the need to protect children remains ever urgent. The damage being meted out to them is irreversible. This is against the background that the second respondent, the custodian of government policies on children, has not only refrained from appealing against the interdict, but also has, as he did in the original application, undertaken to abide by the decision of the court.</p> <p> </p> <p>[13]      The first respondent does not dispute the urgency of the matter. However, it stresses that the appeal having been set down for hearing in the next 11 days, there is no compelling reason for granting the order sought. It is more expedient to leave everything to the Supreme Court to give a final determination on the whole matter.</p> <p> </p> <p>[14]      The first respondent argues that the application is predicated on bald allegations that have remained unsubstantiated. It denies being involved in any of the wrongful activities chronicled by the applicants. It has argued that the order sought severely prejudices it. Among other things, the election campaign by all parties has entered a decisive phase. The first respondent cannot be seen to be switching the venues for its rallies some of which comprise school grounds. It denies using these premises, or the school buses and other assets by force and says it pays for them or utilises them with the consent of the relevant school authorities or parents’ bodies.</p> <p> </p> <p>[15]      Mr <em>Mushangwe</em>, for the first respondent has drawn particular attention to paragraph 3 of the interim interdict. Unlike paragraphs 1 and 2 that make it clear that what is prohibited is the conduct of the first respondent in compelling or coercing school children and their teachers to attend rallies or to contribute towards the cost of holding them, paragraph 3 is cast in very wide terms. It is a blanket prohibition against the use of school property regardless of whether the first respondent pays for it or not, or regardless of whether it secures the consent of the relevant school authorities. Such a prohibition is so harmful to the first respondent’s interests that it must remain suspended by the pendance of the appeal.</p> <p> </p> <p>[16]      Mr <em>Mushangwe</em> has a point. Paragraph 3 of the interdict is couched in very wide terms. It clearly was unintended that the first respondent should be prohibited from using the school premises and other assets where it has the agreement of the relevant authorities. Mrs <em>Mutetwa</em> agrees that this is not what the applicants intended. Both parties have agreed that this particular concern can easily be addresses by a simple amendment to paragraph 2[c] of the draft order sought in the current application, by the addition of the words, “… <strong>without the consent of the school development committees or associations</strong> …” so as to make it clear that what is being prohibited is the first respondent’s use of force. Of course, the first respondent does not concede that the order sought is warranted.</p> <p> </p> <p>[17]      But beyond its concern on the wording of paragraph 3 of the interdict as aforesaid, the first respondent really has no good reason to resist the order being sought in the present application. No reasonable person can genuinely have any serious objections to such a progressive order that merely seeks to protect a vulnerable section of society such as school children. Even the first respondent itself is not saying that such an order is a bad thing. It is simply saying it is not doing the acts complained of.</p> <p> </p> <p>[18]      To my question what prejudice the first respondent will suffer if the order is granted, Mr <em>Mushangwe</em> retorts by a counter question: what prejudice do the applicants themselves suffer if the status <em>quo </em>remains until the appeal is determined in a mere 11 days’ time?</p> <p> </p> <p>[19]      In my judgment in the original application, I made a positive finding that the respondents were guilty of flagrant abuse of the rights and freedoms of the school children; their schools and their teachers as was set out in that application. I found that the respondents’ conduct infringed on a number of the children’s rights as set out in the Constitution, such as the following:</p> <p> </p> <ul> <li>the right to education [s 75 and s 81(1)(<em>f</em>)];</li> </ul> <p> </p> <ul> <li>the right not to be compelled to take part in any political activity [s 81(1)(<em>h</em>)];</li> </ul> <p> </p> <ul> <li>the right not to perform work or provide services that are inappropriate for the children’s ages [s 19(3)(<em>b</em>)(i)];</li> </ul> <p> </p> <ul> <li>the right not to perform work or provide services that place at risk the children’s well-being, education, physical or mental health or spiritual, moral or social development [s 19(3)(<em>b</em>)(ii)];</li> </ul> <p> </p> <p>[20]      I also found that the respondents’ conduct infringed on the rights of the applicants’ members as set out in the Constitution, such as the following:</p> <p> </p> <ul> <li>the right to freedom of assembly and association, and the right not to assemble or associate with others [s 58(1)];</li> </ul> <p> </p> <ul> <li>the right not to be compelled to belong to an association or to attend ameeting or gathering [s 58(1)];</li> </ul> <p> </p> <ul> <li>[in relation to school premises and assets under their occupation, custody or control] the right to hold, occupy and use property, and the right not to be compulsorily deprived of same [s 71(2) and (3)].</li> </ul> <p> </p> <p>[21]     On such findings I held that any breach of the rights accorded by the Constitution should not be allowed to subsist for any day longer. It is when such allegations are made that the court, as the upper guardian of all minor children, should be moved to set aside all its other non-urgent business to attend to the urgent matter.</p> <p> </p> <p>[22]      <em>In casu</em>, I have considered that the preponderance of equities favours the granting of the application. If it were an application for leave to execute an ordinary judgment sounding in money, as was the case in the <em>Engen Petroleum</em> case referred to above, then it would probably have been more expedient to leave everything for the Supreme Court which is set to determine the appeal in the next eleven days. But this is not an application for leave to execute an ordinary judgment sounding in money. <em>Engen Petroleum</em> is distinguishable.</p> <p> </p> <p>[23]      Both parties agree that campaigning for votes in the forthcoming election on 30 July 2018 has entered the home stretch. Political parties are leaving no stone unturned. There is heightened political activity. More rallies have been lined up. It is probably now, more than ever, that school children and their teachers in particular, require greater protection from some excesses by political parties. Examinations should not be disrupted. Every day counts. Eleven days is such a long time, especially given that one of the applicants’ fears is that of physical violence.</p> <p> </p> <p>[24]      The first respondent’s concerns are more to do with what it considers to be negative publicity generated by the interdict. But it is up to it to desist from the conduct complained of. At any rate, that kind of prejudice is incomparable to that being suffered by the school children. The evidence placed before me shows that the first respondent has continued with the prohibited conduct even after the granting of the interdict.  </p> <p> </p> <p>[25]     In the premises the application for leave to execute is hereby granted in the following terms:</p> <p> </p> <p>i/          The application for leave to execute the judgment of this court granted on 28 June 2018 in Case No. HC 263/18 pending the appeal against that judgment noted by the first respondent under SC 513/18 is hereby granted.</p> <p> </p> <p>ii/         Thus, the respondents, their employees, members and/or agents are, notwithstanding the appeal, interdicted and restrained from:</p> <p> </p> <ul> <li>asking, encouraging or forcing children at schools to attend or participate in political rallies or activities or causing the closure of schools for any of its political rallies or activities;</li> </ul> <p> </p> <ul> <li>compelling teachers to attend political rallies, wear party regalia, prepare performances for children to deliver at rallies, or to make contributions towards rallies whether in cash or kind;</li> </ul> <p> </p> <ul> <li>using school property including school premises, buses, furniture, classrooms or any other property that belongs to the schools for any political rally or any other political purpose without the consent of the relevant school authorities.</li> </ul> <p> </p> <p>iii/        The first respondent shall pay the applicants costs for this application.</p> <p> </p> <p> </p> <p>17 July 2018</p> <p> </p> <p><em>Mtetwa &amp; Nyambirai, </em>legal practitioners for the applicants</p> <p><em>Mushangwe &amp; Company</em>, legal practitioners for the first respondent</p> <p><em>Civil Division of the Attorney-General’s Office, </em>legal practitioners for the second respondents</p> <p>1981 ZLR 132, at p 134 – 135</p> <p>HH 270-17</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2018/37/2018-zwmsvhc-37.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=59665">2018-zwmsvhc-37.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2018/37/2018-zwmsvhc-37.pdf" type="application/pdf; length=250130">2018-zwmsvhc-37.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/appeal">Appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/civil-matter-appeal">Civil matter (Appeal)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/execution-practice-and-procedure">Execution (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/pending-appeal-execution">pending appeal of execution</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/when-should-execution-appeal-be-granted">when should execution appeal be granted</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2017/270">Engen Petroleum (Pvt) Ltd. v IDBZ (HH 270-17 HC 8588/16 Ref Case No. 4095/11) [2017] ZWHHC 270 (03 May 2017);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Tue, 07 Aug 2018 10:22:30 +0000 admin 9087 at https://old.zimlii.org Zimbabwe United Passenger Company v Gift Investments (Private) Limited & Another (HH 4-18, HC 5571/17) [2018] ZWHHC 4 (03 January 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/4 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>ZIMBABWE UNITED PASSENGER COMPANY</p> <p>versus</p> <p>GIFT INVESTMENTS (PRIVATE) LIMITED</p> <p>and</p> <p>JAYESH SHAH</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>TAGU J</p> <p>HARARE, 17 November and 03 January 2018</p> <p><strong>Opposed Application</strong></p> <p><em>T Magwaliba</em>, for applicant</p> <p><em>L Uriri</em>, for 1st respondent</p> <p>No appearance for 2nd respondent</p> <p>TAGU J: This is an application for leave to execute the judgment of this Honourable Court in case number HC 5501/06 delivered under HH 238/17 dated the 12th of April 2017 pending the determination of two appeals filed by the respondents separately in case number SC 289/17 on 5 May and 9 May 2017 respectively. The operative part of the judgment in HH238/17 read as follows-</p> <p>“1.      The defendants or any person occupying the premises through them are ordered to vacate the premises known as No. 9 Hood Road, Southerton Harare.</p> <p>2.         The defendants shall pay the costs of this suit jointly and severally the one paying and the other being absolved on a legal practitioner and client scale.”</p> <p>The applicant Zimbabwe United Passenger Company (ZUPCO) in HC 5501/06 had issued summons in 2006 for the eviction of the defendants or any persons occupying the premises through them to vacate the premises known as No. 9 Hood Rd, Southerton Harare which had been leased out to the respondents by the applicant following the expiry and alleged illegal renewal of the lease agreement. The court found in favour of the applicant and granted the relief cited above. The respondents appealed against the ruling. The applicant brought this application for leave to execute the above judgment pending appeal.</p> <p>Both respondents filed notices of opposition. However, in filing its notice of opposition the first respondent mixed up the names causing the first respondent to appear as the second respondent and the second respondent as the first respondent. At the hearing of this matter it then appeared as if the first respondent had not filed its heads of argument causing counsel for the applicant to raise a point <em>in limine</em> that the first respondent was barred. A closer scrutiny of the papers showed that it was indeed the second respondent Jayesh Shah who did not file heads of argument and was therefore automatically barred in terms of the rules of this court. Jayesh Shah was called three times and was in default on the day of the hearing. It followed that judgment was entered against him.</p> <p>As regards the first respondent it must be noted that the second respondent Jayesh Shah was the Managing Director of the first respondent Gift Investments (Private) limited a company duly incorporated in terms of the laws of Zimbabwe.</p> <p>The requirements for an application of this nature were enunciated in <em>South Cape</em> <em>Corporation [Pty] Ltd</em> v <em>Engineering Management Services [Pty] Ltd</em> 1977 (3) SA 534 (A) @ 545D-F per Corbert JA (as he then was) and cited with approval by Ndou J in <em>Masukume</em> v <em>Mbona &amp; Anor</em> 2003 (1) ZLR 412 (H) as follows:</p> <p>“In the exercise of this discretion the court should, in my view, determine what is just and equitable in all circumstances, and in doing so, would normally have regard, inter alia to the following factors:</p> <ol> <li>The potentiality of irreparable harm or prejudice being sustained by the Applicant on appeal (the Respondent in the application) if leave to appeal were to be granted;</li> <li>The potentiality of irreparable harm or prejudice being sustained by the Respondent on appeal (the Applicant in the application) if leave to execute were to be refused;</li> <li>The prospects of success on appeal, including more particularly the question as to whether the appeal is frivolous or vexatious or has been noted with the bona fide intention of seeking to reverse the judgment but for some indirect purpose, eg to gain time or harass the other party; and</li> <li>Where there is the potentiality of irreparable harm or prejudice to both Applicant and Respondent, the balance of hardship or convenience as the case may be.”</li> </ol> <p><strong>THE POTENTIALITY OF IRREPARABLE HARM SUFFERED BY APPELLANT IF LEAVE IS GRANTED</strong></p> <p> In <em>casu</em> the applicant is the legal owner of the property in question. The first respondent (appellant) is occupying it illegally following some bribery paid by Jayesh Shah to some unscrupulous members of the applicant to facilitate an illegal extension of the lease agreement after the lease agreement expired. The first respondent can look for alternative property elsewhere. The respondents do not allege that there is any irreparable harm which will befall them if the application is granted. Their affidavits concern themselves with the question of the prospects of success only. The applicant whose fleet has increased is being prejudiced in that the applicant is now forced to pay rentals to other property owners in Chitungwiza to house the excess part of its fleet. The applicant being the owner of the property is entitled to possessing it from any person who occupies it without its authority. <em>In Jolly</em> v <em>Shanon &amp; Anor</em> 1998 (1) ZLR 78 (H) Malaba J (as he then was) at p 88 stated the following in regard to the position of an owner vis –a-vis his or her property:</p> <p>“The principle on which the action rei vindication is based is that an owner cannot be deprived of his property against his will and that he is entitled to recover it from any person who retains possession of it without his consent. The plaintiff in such a case must allege and prove that he is the owner of a clearly identifiable movable or immovable asset and that the Defendant was in possession of it at the commencement of the action. Once ownership has been proved its continuation is presumed. The onus is on the Defendant to prove a right of retention: <em>Chetty</em> v <em>Naidoo</em> 1974 (3) SA 13 (A) @ 20A-C, <em>Makumborenga </em>v <em>Marine</em> S130/95 p2. It follows that the action is based on the factual situation that prevailed at the time of the commencement of the legal proceedings.”</p> <p>In my view if the leave to execute is not granted there will be irreparable harm on the applicant.</p> <p><strong>THE POTENTIALITY OF IRREPARABLE HARM BEING SUSTAINED BY THE APPLICANT</strong></p> <p>The harm which is being suffered by the applicant is clearly irreparable. The respondents from the papers filed of record have been in occupation of the property in issue for a long time. Such occupation has been in excess of 13 years, 11 years of which the applicant spent in legal proceedings for ejectment of the respondents. During the period when the legal proceedings were pending the respondents did not pay any meaningful compensation to the applicant for the occupation of the property. As observed in the judgment subject to the appeals at one point the respondent paid rentals equivalent to the sum of USD 1.00. This was clearly unconscionable. The illegal occupation of the premises by the respondents is itself prejudicial to the applicant. The applicant being the legal owner is entitled to the retention of or possession of its asset given that its fleet has ballooned and have to rent premises from other property holders. Accordingly, the refusal to vacant the premises violates the applicant’s right to property which is enshrined in terms of section 71 (2) of the Constitution of Zimbabwe. See <em>Altem Enterprises P/L</em> v <em>Jones Sisk &amp; Son P/L </em>2013 (4) ZLR 125 (S) @ 131 where Garwe JA stated that:</p> <p>“The position is settled that a tenant has no right to occupy property save in return for the payment of rent and that where there is no agreement on the amount of rent payable, the lessee is liable to the lessor a reasonable amount for the use and occupation of the property, the rental value of the property in the open market being the criterion for the assessment of this amount. This would also apply to a lessee who remains in occupation after the termination of the lease whilst negotiations for a new lease are in progress.”</p> <p> In <em>casu</em> the applicant is not receiving anything meaningful for the property in question while the appeals are being processed and it is reasonable that the applicant be allowed to execute the judgment pending appeal.</p> <p><strong>THE PROSPECTS OF SUCCESS ON APPEAL BY THE RESPONDENTS</strong></p> <p>The High Court in the judgment being appealed against determined the issue before it on the basis of the illegality of the agreement. The court was presented with an affidavit attested to by the second respondent who was the Managing Director of the first respondent in which the second respondent said that he paid the sum of USD 20 000.00 to the corrupt officers of the applicant in order to induce the renewal of the lease agreement. The court rightfully found that such conduct was clearly illegal and could not result in a valid or binding lease agreement. I share the same sentiments that anything done corruptly or illegally cannot be held to valid. The reasoning of the court a quo in this regard cannot be faulted regard being had to the fact that corruption is a cancer that is difficult to eradicate in our society. The appeal court in my view would not uphold such a practice hence the prospects of success on appeal by the respondents are next to nil.</p> <p><strong>THE BALANCE OF HARDSHIP OR CONVINIENCE</strong></p> <p>In view of the fact that there is no hardship or prejudice which will befall the respondents but the applicant, the property in issue must be returned to the owner pending the determination of the frivolous and vexatious appeals which have been filed by the respondents. In the result I will grant an order for the ejectment of the respondents pending the determination of the appeals they have filed with costs on an attorney and client scale.</p> <p><strong>IT IS ORDERED THAT</strong></p> <ol> <li>Leave is be and hereby granted for the Applicant to execute the judgment of this Honourable Court in case number HC 5501/06 (HH 238/17) pending the determination of the appeals filed by the Respondents in case number SC 289/17.</li> <li>Accordingly, leave be and is hereby granted for the Applicant to issue a writ of execution for the ejectment of the Respondents or any persons claiming occupation through them from number 9 Hood Road, Southerton, Harare.</li> <li>The respondents shall pay the costs of this suit jointly and severally the one paying the other to be absolved on attorney and client scale.</li> </ol> <p><em>Magwaliba &amp; Kwirira</em>, applicant’s legal practitioners</p> <p><em>Atherstone And Cook</em>, 1st respondent’s legal practitioners                </p> <p>                 </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/4/2018-zwhhc-4.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=22463">2018-zwhhc-4.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/4/2018-zwhhc-4.pdf" type="application/pdf; length=222260">2018-zwhhc-4.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/execution-practice-and-procedure">Execution (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-should-execution-appeal-be-granted">when should execution appeal be granted</a></li></ul></span> Fri, 16 Mar 2018 06:38:48 +0000 admin 8624 at https://old.zimlii.org