1

HH 314-15

HC 2386/15

TAWANDA HWARIVA

versus

YAMBUKAI HOLDINGS (PRIVATE) LIMITED

and

RESIDENT MAGISTRATE PABWE B. NO

and

MESSENGER OF COURT - HARARE

and

PAINOS MAHACHI

and

REGISTRAR OF DEEDS

HIGH COURT OF ZIMBABWE

MAFUSIRE J

HARARE, 19 & 26 March 2015

Urgent Chamber Application

S. Mugadza, for the applicant

F. Rudolph, for the first respondent

MAFUSIRE J: The applicant was a self-actor when he filed this urgent chamber application. However, at the hearing he was now represented. The first respondent raised a point in limine that the matter was not urgent. Following a thorough ventilation of the background to the application, and certain concessions made by applicant’s counsel, I ended up removing the matter from the roll for urgent matters on the basis that it was not urgent. The applicant had failed to act when the need to do so had arisen; see Kuvarega v Registrar General & Anor[1]. I granted costs on the ordinary scale. The applicant had declined to tender them. The first respondent had not only insisted on its costs, but also it had wanted them paid on the higher scale.

The urgent chamber application had sought an order to restrain the messenger of court for Harare, the third respondent herein, from transferring a certain immovable property from the applicant to the fourth respondent, pending the determination of the applicant’s appeal against the decision of the magistrate, the second respondent herein, confirming the sale of that property by auction.

Virtually all the material facts were common cause. Sometime in 2014 the first respondent had obtained from the magistrates’ court a judgment against the applicant for the payment of a certain sum of money. The applicant had appealed against that judgment. The first respondent had successfully applied to execute pending the determination of the applicant’s appeal. Following the order of execution pending appeal, the messenger of court had proceeded to attach the property on 13 August 2014. That was some seven months before the urgent chamber application. There followed a sale by public auction. On 5 December 2014 the fourth respondent was declared the highest bidder. That was some three months before the urgent chamber application.

On 15 December 2014 the applicant filed an application with the magistrate court for the setting aside of the sale on the basis that the price realised was unreasonably too low. On 30 December 2014 the second respondent had confirmed the sale. Meanwhile there were some hitches in getting the applicant’s objection to the confirmation heard. It was finally heard on 27 January 2015. The second respondent dismissed it. That was one and half months before the urgent chamber application. On 11 February 2015, i.e. fifteen days after the dismissal of his objection, the applicant filed an appeal to this court against the dismissal of his objection. At the time of the hearing of the urgent chamber application, that appeal was still pending. So was the original appeal against the original judgment.

On 26 February 2015, after all the procedures for the notification of an attachment of a “dwelling”, as provided for in Order 26 r 8 of the Magistrates Court (Civil) Rules, had been exhausted, the messenger of court submitted to all interested parties his notice and plan of distribution of the sale proceeds. For the applicant, the notice was received by his legal practitioners on 2 March 2015. That was fifteen days before the urgent chamber application.

Incidentally, the process of notification of the attachment of a “dwelling” in accordance with the rules aforesaid entails, among other things, the messenger of court writing to a magistrate notifying him of the attachment (this was done on 29 September 2014); the magistrate notifying the Secretary to the Ministry of Local Government, Public Works & National Housing (this was done on 9 October 2014);  the Ministry writing back to the magistrate (in this case, confirming that there were no plans to stop the sale); the magistrate notifying the messenger of court of the response from the Ministry and, in this case, authorising the messenger of court to proceed with the auction (this was on 3 November 2014); and the messenger of court, in turn, giving notice of the auction sale to interested parties (this was done on 19 November 2014). The messenger of court’s notification of the sale was copied to, among others, the applicant. That was some four months before the urgent chamber application. As previously stated, the fourth respondent was confirmed the highest bidder on 5 December 2014. The messenger of court’s notice and plan of distribution was on 26 February 2015 which the applicant’s legal practitioners received on 2 March 2015.

A consequence of the order sought by the applicant in his urgent chamber application would be the stopping or suspension of the distribution of the sale proceeds pending the determination of his appeal. Apparently what had triggered the urgent application was the messenger of court’s letter of 26 February 2015 aforesaid. Mr Mugadza, for the applicant, argued that the critical date on which the clock for urgency started ticking against the applicant was 2 March 2015, i.e. the date that the messenger of court’s notice and plan of distribution had been served on the applicant’s lawyers. He said given that when the applicant had eventually filed his urgent chamber application, he was unrepresented, and that, at any rate, only a period of fifteen days had elapsed from the date of that notice, the court should be lenient with the applicant and find that the delay was not in any way inordinate. Mr Mugadza further submitted that the fact that the applicant, who was a self-actor and would therefore not have fully appreciated the intricacies of the rules on urgency, was a reasonable enough explanation for the fifteen days’ delay.

However, it transpired that the real reason why the applicant, who was at all relevant times represented until the time of his urgent chamber application, had not taken action to stop the auction sale, and, in the process, arrest the inevitable consequences, was that both he and his legal practitioners had laboured under the mistaken assumption that the applicant’s appeal on 11 February 2015 against the decision of the second respondent dismissing his objection against the confirmation of the auction sale, had automatically suspended that decision in accordance with the common law rule of practice that says that an appeal automatically suspends the decision appealed against.

Mr Mugadza eventually conceded that the common law rule of practice that an appeal automatically suspends the decision appealed against applies only to superior courts of inherent jurisdiction. In my view, the concession was well made. Inferior courts or statutory tribunals have no power to regulate the execution or otherwise of their orders unless clothed with that power by the statutes creating them. The common law rule of practice aforesaid does not apply to them. That was my conclusion in the case of John Makarudze & Anor v Cosmos Bungu & Ors[2], albeit a case dealing with the effect of an appeal from the Labour Court to the Supreme Court in terms of the provisions of the Labour Act, (Cap 28:01).   

For the common law rule of practice in the superior courts that execution of a judgment appealed against is automatically suspended unless leave to execute is granted see Wood NO v Edwards & Anor[3]; Oliphant’s Tin ‘B’ Syndicate v de Jager[4]; Verkouteren v Savage[5]; Malan v Tollekin[6]; Reid v Godart[7]; Levin v Felt and Tweeds Limited[8]; Geffen v Strand Motors (Private) Limited[9]; South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd[10]; Econet (Pvt) Ltd v Telecel Zimbabwe (Pvt) Ltd [11] Vengesai & Ors v Zimbabwe Glass Industries Ltd[12], and Chematron Products (Pvt) Ltd v Tenda Transport (Pvt) Ltd & Registrar of Deeds[13].

 In terms of that common law rule, the party that succeeds in the court of first instance has to seek the leave of the court to execute the judgment whilst the appeal is pending. In Associated Newspapers of Zimbabwe v Minister of State for Information and Publicity & Ors[14] CHIDYAUSIKU CJ singled out the High Court and the Supreme Court as the superior courts of inherent jurisdiction in this country.

In South Cape Corporation, supra, CORBETT JA said[15]:

“Whatever the true position may have been in the Dutch courts, and more particularly the Court of Holland … it is today the accepted common law rule of practice in our court that generally the execution of a judgment is automatically suspended upon the noting of an appeal… The purpose of the rule is to prevent irreparable damage from being done to the intended appellant.”

In Vengesai, supra, GILLESPIE J stated[16]:

“In my opinion, the dictum of CORBETT JA, cited above and approved in the various judgments referred to, does not, and was not intended, to apply to a judgment of any court, tribunal or authority other than a superior court of inherent jurisdiction.” (my emphasis)

In Longman Zimbabwe (Pvt) Ltd v Midzi & Ors[17] GARWE JA quoted with approval[18] the further remarks by GILLEPSIE J in Vengesai, supra, as follows:

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

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

“The learned judge continued at p 599A – D:

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

Thus, in Longman, the Supreme Court, on the basis that the common law rule of practice applies to the superior courts of inherent jurisdiction only, reversed the judgment of this court that had held that the decision of the Rent Board, a quasi-judicial body established in terms of the Housing and Building Act, (Cap 22:07), had automatically been suspended by an appeal against that decision to the Administrative Court. At p 206A –B the Supreme Court said;

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

Although the remarks of the learned Chief Justice in Associated Newspapers of Zimbabwe were made in relation to a matter that had been determined by the Administrative Court, GARWE JA, in Longman, pointed out that[19] they apply with equal force to judgments and orders made by all inferior courts and tribunals.

The applicant’s case for urgency all but collapsed with Mr Mugadza’s concession aforesaid. Contrary to his original argument that the clock for urgency had started ticking against the applicant only some fifteen days before he filed the urgent chamber application, it had in fact started ticking way back when the magistrate court had given judgment in the main matter in favour of the first respondent. That date was not revealed. Nonetheless, by 13 August 2014 the messenger of court had already proceeded to execute it. The applicant’s appeal against that judgment not only would not automatically suspend that judgment, but, on the contrary, execution pending appeal had expressly been granted. But even then, thereafter there had been several other landmarks that should have nudged the applicant to act, for example, the receipt of the various notifications as the process of confirmation was underway.

But be that as it may, if the applicant’s fear of irreparable harm only stemmed from the alleged unreasonably low price fetched at the auction sale, then the need to stop the effects of the confirmation of that sale had arisen immediately after the second respondent’s decision overruling his objection. That was on 27 January 2015. But the applicant waited for some fifteen days, not to apply to stop the distribution of the proceeds, but merely to appeal the dismissal of his objection. But of course, the applicant was under some false sense of security that his appeal on 11 February 2015 had done the trick. Unfortunately for him, it had not. Thus the urgency sought to be relied upon was self-created, especially given that he was at all material times represented.

It was on that basis that I removed the matter from the roll for urgent matters.

26 March 2015

Madanhi, Mugadza & Company, applicant’s legal practitioners

Scanlen & Holderness, first respondent’s legal practitioners