1
HB 143-15
HC 1669-15
XREF HC 2700-14, HC 2092-14
XREF HC 704-14, 580-14 & HC 994-14
REVEREND CLEMENT NYATHI
and
REVEREND JAMES F. MORRIS
and
REVEREND JOSEPH MATONGO
and
REVEREND ABEL MEPHULANGOGAJA
and
REVEREND PHIBION T. MANYOWA
and
APOSTOLIC FAITH MISSION OF AFRICA
versus
TONY TSHUMA
and
ELLIOT NCUBE
and
THE CHIEF REGISTRAR
and
THE SHERIFF OF THE HIGH COURT OF ZIMBABWE
HIGH COURT OFZIMBABWE
MAKONESE J
BULAWAYO 30 JUNE AND 9 JULY 2015
Urgent Chamber Application
Mr N. Mugiya for the applicants
Mr V. Majoko for the respondents
MAKONESE J: At the hearing of this matter I remarked that it would seem that every other judgment that has been handed down in this matter has been appealed against. Whilst it is a right of any litigant to lodge an appeal where a party is not satisfied with the outcome of any proceedings, it would seem that it has become fashionable to delay the enforcement of any order of the court by noting an “appeal”, and then seek an order to stay execution pending appeal. It is the duty of the court to exercise its inherent discretion to decide whether any legal basis does exist before the court stays the execution of its own orders.
The brief background to this matter is that on 11 June 2015, MOYO J, issued the following order against the respondents in default.
“IT IS ORDERED THAT:
- The first and second respondents as well as their agents be and are hereby interdicted from interfering, visiting and or using the sixth applicant’s properties wherever situate without the express authority and or consent from the applicants.
- First and second respondents as well as their agents are barred from presenting or purporting to act as the sixth applicant, either to the sixth applicant’s members or to the members of the public.
- The first and second respondents and their agents are ordered to release and return the control of the sixth applicant’s properties wherever situate to the applicants and to surrender the sixth applicant’s affairs and activities to the applicant’s forthwith. The sixth applicant’s properties shall include but not limited to those listed on the order granted by this court on HC 2166/14.
- The first and second respondents are ordered to pay costs of suit on an attorney-client scale.”
In paragraph 10 of the Founding Affidavit, the applicant states the basis of this urgent application as follows:
“After realizing their tricks to obstruct the course of justice in the enforcement of the order on HC2700/14 has failed, the first and second respondents decided to do the unthinkable that is filing an appeal on the order on HC 2700/14 which order is a default and which is not applicable (sic) at law according to the advice I was given by my legal practitioner which advice I believe to be true and correct.”
In response to the said averments, the first respondent states in paragraph 10 of the Opposing affidavit as follows:
“The applicants assumed they were, to put it literally, home and dry, when they moved a bar against us. Then, to use their words, “the unthinkable” happened when we appealed.
As I have said whether an appeal lies against a default judgment is what is now before the Supreme Court, and I am not keen to argue a matter which is before one court in a different court…”
What clearly comes out of the first respondent’s response is that there is no absolute denial that the appeal that has been filed in the Supreme Court under case number SC 351/15 is an appeal against a judgment obtained in default. On 25 June 2015, the first respondent obtained a letter from the Sheriff of the High Court addressed to the Additional Sheriff, Bulawayo in the following terms:
“The above matter refers.
I write to advise you that the respondents have filed a Notice of appeal in the above matter with the Supreme Court. The appeal case number is SC 351/15.
You are therefore urged to stay execution forthwith. Find attached the Notice of Appeal.”
It is not clear why the first respondent obtained this letter whose effect is essentially to order that execution be stayed. The tone of the letter is obviously in the form of a court order. It is my view that it is neither appropriate no desirable for the Sheriff to issue letters that have the effect of staying court orders. That prerogative lies with the court. Of note is that the judgment which is being appealed against was delivered on 11 June 2014. There is no indication from the papers before me whether leave was sought and granted to file an appeal out of time. It would have been prudent for first applicant to obtain an order from the court staying the execution of the judgment.
I do observe that on the 25 June 2015, KAMOCHA J dealt with an application brought by first applicant under case number HC 133/15, wherein first applicant sought an order suspending the operation of the orders under case number HC1552/15 and HC 2700/14. The learned judge dismissed the application in a written ruling. The conduct of the first applicant clearly shows that any decision that goes against him is wrong and ought to be challenged. Regrettably the justice system would grind to a halt if parties were to operate on the basis that any decision of the court that is not favourable must be be appealed against. While it is noted that an appeal has been noted under case number SC 351/15, I cannot ignore the clear position that what is essentially being challenged is an order granted in default. The applicants referred me to the case of Zesa Pension Staff Fund v Mushambadzi 2002 (2) ZLR 205, as authority that no appeal may be brought against a default judgment. I have examined that case but that case does not deal with that aspect of the law. The other matter referred to me by respondent’s legal practitioner is also not of any assistance to this court. It is the duty of legal practitioners to cite relevant case law. It is misleading and unethical to cite cases that are not relevant or that do not exist at all.
In the case of Devine Homes (Pvt) Ltd v The Sheriff and 2 others HH 145/2004, BHUNU J, stated the position at page 1 of the cyclostyled judgment as follows:
“It is correct to say that the noting of an appeal suspends the operation of the decision appealed against. See Founders Building Society v Mazuka 2000 (1) ZLR 528. This is however not an immutable rule of law but a general rule of practice subject to the court’s discretion.”
See also the case of Vengesai and others v Zimbabwe Glass Industries 1998 (2) ZLR 593 (H) at page 598 where GILLESPIE J, observed that:
“In stating the common law CORBETT JA, referred to the automatic stay of execution upon the noting of an appeal as a rule of practice. That is not a firm rule of law, but a long established rule of practice regarded as generally binding, subject to the court’s discretion.”
In the present case there can be no doubt that after the respondents had done everything in the book to delay, frustrate, postpone and prevent the execution of the order in case number HC 2700/14, the only ace up their sleeve was to note an appeal. Having done that, their stance now is that his court has no jurisdiction to entertain matters that are before the Supreme Court. I am in no doubt that applicants are entitled to the enforcement of an order lawfully obtained. The filing of the appeal made at the eleventh hour is meant to delay the day of reckoning. There has been no attempt by respondents to convince the court that a valid notice of appeal has been filed in the Supreme Court. The notice and grounds of appeal are not before this court. The respondents had ample time to file supporting documents to prove that such an appeal is pending. This court cannot ascertain whether a genuine and meritorious appeal has been noted against the order sought to be enforced. The respondents have not been candid with the court. It seems that the respondents will stop at nothing to prevent the enforcement of any order of this court. The court does have a discretion in the matter, and in the exercise of its discretion, the court will make the following order, in terms of the Draft order:
- First and second respondents and their agents be and are hereby ordered to vacate and hand over control of all the premises which applicants took control of on 25 June 2015.
- The applicants be and are hereby allowed to execute the order under case number HC 2700/14 pending the purported appeal under case SC 351/15.
- Fourth respondent is ordered to proceed and enforce the terms of the order under case number HC 2700/14 and if necessary to secure the assistance of the Zimbabwe Republic Police to give effect to the order.
- The first and second respondents are ordered to pay the costs of suit.
Mugiya and Macharaga Law Chambers’ applicant’s legal practitioners
Messrs Majoko and Majoko, 1st and 2nd respondents’ legal practitioners
