MATHONSI J: This is
an urgent application in which the applicant seeks an order for stay of
execution of an eviction order granted by the magistrates' court sitting in
Bulawayo pending appeal against that order as well as the hearing of an
application for a declaratory order filed by the applicant and 3 other people
in this court under case number HC 2157/10.
The background of the matter is that
the applicant and the 1st respondent entered into a lease agreement
on 1st December 2004 in terms of which the 1st respondent
let out to the applicant a flat known as number 14 Bertha Court, Bulawayo. The said lease agreement expired on 31
December 2005 but the applicant remained in occupation as a statutory tenant in
terms of the provisions of Rent Regulations Statutory Instrument 32/2007.
Somewhere along the line a dispute
arose between the parties over payment of rent which led to the parties
referring the matter to the Western Region Rent Board which fixed the rent and
recurrent expenses payable by the applicant for the premises. Despite the fixation of the amount payable
the applicant did not pay according to that arrangement as a result of which
the 1st respondent approached the Rent Board and obtained a
certificate of eviction which for some unclear reason has not been produced
even as the applicant seeks to attack its validity.
Although the applicant argues that
the certificate of eviction was effective from 31 July 2010, a point he
strongly relies upon in attacking the proceedings in the magistrates' court,
the certificate he has annexed to the application is that of Mr Chatora of flat
number 1 Bertha Court issued on 4 May 2010.
Be that as it may, on the 10th June 2010 the 1st
respondent instituted summons action in the magistrates' court seeking, inter alia, arrear rentals of US630,00,
recurrent expenses of US$1 134,00 and the ejectment of the applicant from the
premises.
As applicant had entered appearance
to defend, the 1st respondent filed an application for summary
judgment which the applicant again opposed.
In that action 1st respondent alleged that the parties had
not only agreed on monthly rent of $70,00 but had also reached an agreement
before the rent board for applicant to pay recurrent expenses relating to
rates, common lighting and the caretaker's wages, which presumably had been
confirmed by the rent board. Alleging
breach by failure to pay in terms of such agreement, 1st respondent
sought an eviction order.
The applicant in his opposition
denied the breach and went further to aver that even if an agreement was
“reached before the rent board” it was not binding on him as “what is binding
are the terms of the lease agreement” which had expired. The magistrate was not swayed by that
argument and granted summary judgment.
Although none of the parties has seen the wisdom of submitting the
record of proceedings in that court or even the court order. Applicant does
confirm in his founding affidavit in paragraph 7 that “judgment was entered in
favour of the 1st respondent in terms of the draft order” which
included arrear rent of US$630,00, recurrent expenses of US1 134,00 and
eviction.
Aggrieved with that decision that
applicant noted an appeal to this court prompting the 1st respondent
to make an applicant for leave to execute the judgment pending appeal. The magistrate granted that leave on the 1st
September 2010 and on the same day he filed an appeal against that order. It is not clear what the applicant did about
that order as it was not until the 24th November 2010, almost 3
months later, that he launched an ex
parte application in the magistrates' court seeking a stay of execution
pending appeal and the hearing of a court application for a declaratory order
he had filed in this court on 18 October 2010 under case number HC 2157/10.
That application did not find favour
with the magistrate who took the view that having granted leave to execute
pending appeal she was functus officio. It is only then that the applicant filed this
urgent application for a stay of execution on the 25th November
2010, the same day that he was evicted.
When the application was placed before me on 26th November
2010 it was not brought to my attention that the applicant had already been
evicted and that the order he was seeking had already been overtaken by events,
so to speak.
I could not grant the relief sought
as I queried how the applicant had appealed against the court a quo's order for leave to execute pending appeal
which was clearly interlocutory and therefore not subject to appeal. South
African Druggists Limited v Beecham
Group PLC 1987 (4) SA 876 (T) and Masedza
& Ors v Magistrate, Rusape &
Anor 1998 (I) ZLR 36 (H). I was
proceeding on vacation and the matter was then placed before another judge who,
for some reason did not dispose of it until my return more than a month later.
Meanwhile, the applicant conceded in a letter dated 8
December 2010 that the appeal against the interlocutory order was ill advised
but hoped to keep the application alive on the basis of the pending application
for a declaratory order.
At the commencement of the hearing
Mr Dube-Banda for the 1st
respondent took some points in limine namely,
that:
(a) The
applicant could not appeal against the order for leave to execute pending
appeal which is interlocutory in nature.
(b) As
the same application was made without success in the court a quo, it was improper to bring it before this court. The remedy available to the applicant was to
seek an appeal on review.
(c) There
is an appeal pending before this court seeking the same relief.
(d)
The
applicant is aware that after his eviction on 25 November 2010, a new tenant
moved into the premises and as such he should have joined that tenant by the
name of Mandlenkosi Dube, in these proceedings; and
(e) There
is no urgency in this matter and the applicant is not entitled to be heard on
an urgent basis given that not only did he await the deadline before taking
action but also that following his eviction, the matter has ceased to be urgent
at all.
I do not think the first 3 points in limine have any merit at all.
The issue of the appeal against the order for leave to execute pending
appeal was abandoned by Mr Mazibuko
for the applicant who conceded that the appeal was ill-conceived. He, however, relies on the application for a
declaratory order to seek a stay of execution.
The fact that the applicant tried
his luck at the magistrates' court seeking the same relief does not oust his
right to approach this court as the magistrate merely denied him audience but
did not determine the matter. The same
goes for the pending appeal as what is sought in this application is an interim
relief pending the determination of the matter by this court.
It is the last 2 points in limine which I find meritable and I
intend to treat them as one given their impact on the matter. The applicant is contesting the rent order
issued by the Rent Board in 2009 and the certificate of eviction presumably
issued on 4 May 2010, if it was issued at the same time as that of Mr Chotora
which has been produced. He has always
been aware of these decisions but did not do anything about them. Even when the eviction order was granted he
busied himself with other things until the eviction date came.
Indeed it was not until the date of
eviction, the 25th November 2010 that he approached this court. In the result he was evicted and a new tenant
took over the premises even before the matter was placed before me. What is also disturbing is that, despite the
knowledge of these developments, the applicant did not disclose to the court
that he had been evicted and a new tenant introduced until that was raised by
counsel for the 1st respondent during submissions.
A litigant is not entitled as of
right to have his matter heard urgently as a matter is only urgent is at the
time it is instituted the risk of irreparable damage is so great that it cannot
fproceed in the normal way – see Musunga
v Utete and Another HH-90-03 at p
2-3.
Urgency which stems from a
deliberate or careless abstention from action is not the kind of urgency
contemplated by the rules. See Ncube v Messenger of Court, Bulawayo N.O. and Another HB-146-10; Williams
v Kroutz Investments (Pvt) Ltd and Others
HB-25-06 and Kuvarega v Registrar General and Another 1998 (1)
ZLR 188 (H) where CHATIKOBO J stated at 193G:
“What constitutes urgency is not only the imminent arrival of
day of reckoning. A matter is urgent if,
at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or
careless abstention from action until the deadline draws near is not the type
of urgency contemplated by the rules.”
In
casu, the rent order
whose validity the applicant is contesting has subsisted since 2009 and the
certificate of eviction was issued on 4 May 2010. It was not until the day of eviction on 25
November 2010 that he filed this application.
No explanation has been given for non-action except that on the face of
it he appears to have taken the approach that he would only use his arguments
as a weapon of defence against eviction and no more. This, in my view is self created urgency.
What is more, at the time the matter
was placed before me, it was already fait
accompli as the applicant had already been evicted. He did not join the new tenant as a party,
which was a serious non-joinder. Neither
did he disclose that fact. In an
application of this nature the applicant is obligated to make full disclosure
of all material facts that affect the granting or otherwise of an order ex parte. The applicant owes the court the utmost good
faith. See Grospeak Investments (Pvt) Ltd v Delta Operation (Pvt) ltd and Another 2001 (2) ZLR 551 at 555C-D
where NDOU J stated that urgent applications
characterized by material non-dislcosure, mala
fides or dishonesty should be discouraged.
See also Van Den Berg v Beswick & Anor HB-129-10.
In my view this application should
fail by reason of non-urgency. In
addition to that, to hold otherwise would now unravel further litigation
involving the current tenant who moved into the premises in good faith. It is a cardinal principle of our law that there
must be finality to litigation. See Ndebele v Ncube 1992 (1) ZLR 288 (5) at 290C.
Mr Mazibuko, for the applicant asked me to consider the injustice that
has been suffered by the applicant as a result of what he views as a nullity in
the form of an order made by the Rent Board directing him to pay “recurrent
expenses” which, in his view, is beyond the power of the board given that in
terms of the Rent Regulations, it can only make a rent order. He also strongly argued that the certificate
of eviction was a nullity by reason that it did not comply with the rent
regulations. For that reason he asked me
to exercise my discretion in favour of the application to stop a glaring
injustice. He relied strongly on the
case of Musara v Zinatha 1992 (1) ZLR 9 (H).
I do not agree with counsel on that
point because it does not appear ex facie
that that rent order was a nullity nor that the certificate of eviction was
invalid. Without making a pronouncement
on that issue, the board has authority to make an order for rent and in doing
so section 19(a) allows it to take into account “recurrent expenses”. It made
that order, whether right or wrong and if the applicant was aggrieved he should
have proceeded in terms of section 35 of Statutory Instrument 32/07 to appeal
to the Administrative Court. He could
have elected to take the matter on review to this court in terms of section 26
of the High Court Act, Chapter 7.06.
Mr Mazibuko also strongly argued that the eviction order issued by
the court a quo was also a nullity by
reason that it was premised on an invalid certificate of eviction issued by the
Rent Board. He relied on Ngani v Mbanje & Anor 1987(2) ZLR 111(S); Fletcher v Three Edmunds
(Pvt) Ltd 1998(1) ZLR 257 (5) and Heating
Elements Engineering (Pvt) Ltd v Eastern
& Southern African Trade & Development Bank 2002(1) ZLR 351 (S).
I do not think those authorities
have any bearing on this case. This is
because when the 1st respondent instituted eviction proceedings in
the court a quo he did not rely on
the certificate of eviction issued by the rent board. Looking at the particulars of claim in that
matter, the eviction claim was predicated on non-payment of rent. If proved it meant that the applicant had
lost the protection accorded to him by section 30 of Statutory Instrument
32/07. In simple terms by failing to pay
rent he had lost all rights of a statutory tenant and therefore nothing turned
on the certificate of eviction.
I am therefore unable to exercise my
discretion in favour of the applicant to delve into the issues raised in the
application for a declaratory order which is currently not before me. I will therefore determine the matter on the
preliminary points raised and find that it does not pass the test of urgency.
In the result, the application is
dismissed with costs.
Calderwood, Bryce Hendrie &
Partners,
applicant's legal practitioners
Dube-Banda, Nzarayapenga & Partners, 1st
respondent's legal practitioners
