TAFIREYI NYIKADZINO
versus
JOHN CAMERON ASHER
and
MINISTER OF LANDS & RURAL RESETTLEMENT
and
THE DEPUTY SHERIFFF
HIGH COURT OF ZIMBABWE
MUTEMA J
HARARE, 20 July, 2011
Urgent Chamber Application
T. Dzvetero, for the applicant
B. Diza,for the 1st respondent
E. Sumowah,for the 2nd respondent
No appearance for the 3rd respondent
MUTEMA J: On 12 June, 2007 the applicant was lawfully offered by way of an offer letter subdivision 8 of Welston Farm. Prior to its acquisition by the second respondent the farm used to belong to first respondent. Despite the gazetting of the farm, the first respondent did not vacate the farm after the expiry of the periods set out in the law.
On 5 February, 2009, the applicant, in the company of others took occupation of the farm in the absence of the first respondent. It was on this basis that the first respondent, in case number HC 612/09, on 18 February, 2009 applied for a spoliation order which he was granted by CHATUKUTA J on 26 February, 2009, in the form of a seeming provisional order.
On 3 March, 2009 applicant noted an appeal to the Supreme Court against the grant of the spoliation order of 26 February, 2009, challenging the correctness of the said provisional order. The applicant, in that appeal, was of the view that the provisional order was in the nature of a final order and hence the provisions of the law requiring leave to appeal against an interlocutory order did not apply. Notwithstanding the noting of the appeal, the first respondent instructed the Deputy Sheriff to enforce the provisional order restoring possession of the farm to him. He was advised that the appeal was a nullity for want of leave to appeal against the interlocutory order.
Unhappy with this turn of events the applicant filed an urgent chamber application under case number HC 1020/09 seeking stay of execution of the provisional order pending determination of the appeal. MAKARAU JP (as she then was) heard the application on 12 and 13 March, 2009 and dismissed it with costs on the main basis that the order issued by this court on 26 February, 2009 was an interlocutory matter and that this court was still seized with the matter.
The papers before me do not ventilate what happened between 13 March, 2009 and 6 July, 2011 when the first respondent issued a writ of ejectment which was set to be executed on 13 July, 2011. This is what galvanised the applicant to come out of limbo and file the current urgent chamber application for stay of execution. The relief being sought is in two alternatives. The first is that the execution of the “default judgment of this court under case number HC 612/09 being for spoliation and restoration of status quo ante of the first respondent shall be stayed pending determination of the application, for setting aside of that judgment filed simultaneously with this application under case number HC………./11”. The other alternative is that “any execution of the default judgment of this court granted under case number HC 612/09 being for spoliation and restoration of status quo ante of the first respondent shall be stayed pending determination” on the return day “why an order in the following terms should not be granted:
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Case No. HC 612/09 be and is hereby dismissed for non-prosecution.
………
ALTERNATIVE RELIEF
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The Registrar of the High Court be and is hereby directed to set down the Confirmation or Discharge of the Provisional Order issued in Case No. HC 612/09 on the opposed role (sic) on an urgent basis.
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The Registrar of the High Court be and is hereby empowered and authorised to do everything or take all the necessary steps to expedite the setting down of the Confirmation or Discharge of the Provisional Order issued in Case No. HC 612/09 on the opposed role (sic) on an urgent basis”.
I must say from the outset that I find this application legally untenable
both adjectival law-wise and in terms of substantive law.
It is common cause that on 3 March, 2009 the applicant noted an appeal against CHATUKUTA J’s order of 26 February, 2009 in case number HC 612/09. This was done without first obtaining leave to appeal. First respondent deemed that appeal defective and instructed 3rd respondent to execute the order of 26 February, 2009. When the applicant lodged an urgent chamber application before MAKARAU JP (as she then was) to stay the execution that effort came to nought on the ground that the order was provisional and as such leave to appeal was required. Applicant did not challenge the latter judgment.
In the current application for stay the applicant’s counsel passionately argued that the two judgments by CHATUKUTA J and MAKARAU JP (as she then was) were erroneously decided. He relied on the ratio in Nyasha Chikafu v Dodhill (Pvt) Ltd & 2 Ors SC 28/09 whose facts seem to fall on all fours with the applicant’s case wherein CHIDYAUSIKU CJ on 7 May, 2009 decided that:
“…… a proper reading of the judgment of the court a quo reveals that it interdicted Chikafu from occupying the farm until Dodhill had been removed from the farm in terms of the Act. The judgment is not interlocutory, it is definitive in which case Chikafu is entitled to appeal as of right …. Although the learned Judge has labelled his order as a provisional order, the judgment has all the hallmarks of a final order”.
Whether CHATUKUTA J’s judgment was interlocutory or final is now neither here nor there. On 16 October, 2009 the registrar of the Supreme Court wrote to the applicant’s legal practitioners, Antonio Mlotshwa and Company in this vein:
“Civil Appeal: Tafirei Nyikadzino v John Cameron Asher & Another
I refer to my letter dated 31 August, 2009, in which you were called upon to file Heads of Argument. To date, no Heads of Argument have been received. The appeal is therefore deemed to have been abandoned, and is accordingly dismissed. By copy of this letter the records of appeal are being returned to court of origin to enable the respondent to execute judgement appealed against”.
By inviting the applicant to file Heads of argument the implication is that the Supreme Court had deemed that no leave to appeal was required. The appeal having been dismissed it meant that there was no longer any appeal pending that had the effect of suspending execution of the judgment that had been appealed against viz CHATUKUTA J’s order of 26 February, 2009. Procedurally therefore, the first respondent was perfectly entitled to instruct the third respondent as he did, to execute that judgment.
So from October, 2009 the applicant was aware that first respondent was at liberty to execute his eviction from the farm. What then did he do? Nothing for about 1½ years until he got a notice of removal advising that he would be ejected on 13 July, 2011 when he filed the current application on the date of reckoning – 13 July, 2011.
No explanation is proffered, either in the certificate of urgency or in the founding affidavit, giving any reasons for the delay. In the event, is the matter urgent? On what constitutes urgency, it was held in Kuvarega v Registrar General & Anor 1998(1) ZLR 188 (HC) at 193 that what constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent if at the time the need to act arises, the matter cannot wait. Urgency stemming from a deliberate or careless abstention from action until the deadline draws close is not the type of urgency contemplated by the rules. It necessarily follows that the certificate of urgency or the supporting affidavit must always contain an explanation of the non-timeous action if there has been a delay. In casu no such explanation was ever attempted. The alleged urgency is therefore self-created and not the type contemplated by the rules of this court.
To now argue that the threatened execution be stayed pending determination of an application filed simultaneously with this one to have the two judgments by CHATUKUTA J and MAKARAU JP (as she then was) corrected in terms of r 449 some 2½ years later is idle to say the least. Why was that application not made within a reasonable time? No explanation therefor has been given.
To also now argue, as the applicant does, that the provisional order by CHATUKUTA J be dismissed for want of prosecution or that it be set down urgently for a return day is both idle and contradictory. For more than 2½ years if first respondent failed to set the matter down why did the applicant fail to either have it set down himself or apply for its dismissal for want of prosecution? How has it now transformed from being a final order as argued initially? It has been said time without number that the law assists the vigilant and not the sluggard! The applicant in casu has been most sluggard. It matters not that there is now in existence the case of Commercial Farmers Union & Ors v The Minister of Lands and Rural Resettlement & Ors SC 31/10 upon which on the merits the applicant has prospects of success. We are talking procedural law at this juncture and not substantive law.
In view of the foregoing the application is devoid of urgency and in the result it is dismissed with costs.
Antonio& Associates, applicant’s legal practitioners
Musunga & Associates,1st respondent’s legal practitioners
Civil Division of the Attorney General’s Office, 2nd respondent’s legal practitioners
