NDOU J: The
applicant seeks a temporary interdict to stop the execution of a judgment
granted against him in favour of the 1st and 2nd
respondents granted in case number HC 2301/10.
Alternatively, if the order has already been executed, his reinstatement
into the premises subject matter of these proceedings being shop number 5, 105
George Silundika Street, Bulawayo. The
facts of this matter are the following.
The applicant was a tenant of the 1st respondent at the
abovementioned premises. At the stage
where he owed the 1st respondent arrear rentals the sum of US$8 000,
the latter issued summons under HC 2301/10 to recover the same. In the fullness of time, the 1st
defendant applied for and obtained default judgment on 24 February 2011. In April 2011 the Deputy Sheriff served a
writ of execution upon the applicant and applicant approached the 1st
and 2nd respondents' legal practitioners with an objective of having
an amicable settlement. The applicant
made certain specific representations regarding how he proposed to settle the
matter to avoid execution of the above-mentioned judgment of this court. He made an undertaking to pay off the
judgment debt from the proceeds of the sale of his house. He explained to the said legal practitioners
that the conveyancing lawyers, Messrs Webb, Low and Barry were holding the
purchase price in trust pending the transfer of title. 1st and 2nd
respondents' legal practitioners asked the applicant to put the undertaking in
writing, which the applicant did. The
letter of undertaking only covered monetary aspect of the court order under HC
2310/10. It did not cover the eviction
and hence the Deputy Sheriff was never instructed to stay the eviction process. The applicant says the acceptance of his
payment plan constituted a compromise of the order under HC 2301/10. This is hotly disputed by the 1st
and 2nd respondents. At the
time this application was launched, the applicant had been evicted from the
premises although some of his property remained in the premises. What is clear is that the above-mentioned
writs were not withdrawn by the 1st and 2nd respondents.
The first issue I propose to deal
with is whether there was a compromise.
The definition of compromise will resolve this issue. Compromise or transactio, is the settlement by agreement of disputed
obligations, whether contractual or otherwise.
The obligations novated here must previously have been disputed or
uncertain - The Law of Contract in
South Africa – R H Christie at 448-9. In casu, there are no disputed or
uncertain obligations. The applicant did
not defend the matter under HC 2301/10 so there is no dispute of
obligations. Even in his papers he does
not dispute that he owes arrear rentals of US$8 000. Because applicant is alleging compromise he
bears the onus of proving the existence of compromise – The Torch Marderne Binnehuis Vervaardiging
Venn (Edms) Bpk vs Husserl 1946
CPD 548. He has not discharged this
onus. Because this application was for
stay of execution pending applicant's declaration of compromise, once he fails
to establish the compromise, it should fall away because he has failed to
establish a right or a prima facie right.
More importantly though is the fact
that when I heard the application the applicant had been fully evicted from the
premises. All that he seeks in effect is
his reinstatement into the premises. But
can reinstatement be granted via an interdict?
In casu, the applicant seeks
to delay the enforcement of a legal right to which the court has found the 1st
respondent entitled. There is no
statutory authorization of such delay.
The applicant does not even challenge the existence of such a right as
he does not at all challenge the finding of the court on the existence of such
right made under case number HC 2301/10.
This court has no competence to do so in such circumstances – Potgieter v Van der Merwe 1949 (1) SA 361 (A) at 374 and Lovius and Shtein v Sussman
1947 (2) SA 241 (O) at 243-4. On this
point alone this application should fail.
However, there is a further problem
in the applicant's case. As alluded to
above when the application was filed, the applicant had already been
evicted. Part of his property still
remained in the 1st respondent's premises though when I heard the
application even the latter property had been removed. Basically what is sought is restoration of
occupation. It is trite law that an
interim interdict is not a remedy for past invasions of rights and will not be
granted to a person whose rights in a thing have already been taken from him by
operation of law at the time he or she makes an application for interim relief – Meyer v Meyer 1948 (1) SA 484 (T); Stauffer Chemicals v Monsanto Co 1988
(1) SA 805 (T) at 809F-G and Airfield
Investments (Pvt) Ltd v Minister of
Lands & Ors 2004 (1) ZLR 511 (S) at 517E-H.
From the foregoing there is,
therefore, no merit in the application.
It is accordingly dismissed with costs.
Calderwood, Bryce Hendrie &
Partners,
applicant's legal practitioners
Cheda & Partners, 1st
and 2nd respondent's legal practitioners
