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:
- Case
No. HC 612/09 be and is hereby dismissed for non-prosecution.
………
ALTERNATIVE RELIEF
1. 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.
2. 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
