NDOU J: The
applicant seeks a provisional order in the following terms:
“Final order sought
1.
The
1st respondent be and is hereby interdicted from evicting the
applicant from number 4 Gannet Close, Burnside, Bulawayo until the finalization
of case number 607/11, or until the payment of the sum of US$33 000,00 less
expenses as advised by the court in case number HC 2309/10.
2.
The
1st respondent to pay costs on an attorney-client scale.
Interim relief granted
Pending confirmation or discharge of this provisional order
the applicant is granted the following relief;
1.
The
1st and 2nd respondents be and are hereby interdicted
from evicting the applicant from number 4 Gannet Close, Burnside, Bulawayo,
using the writ of ejectment under case number HC 2309./10 until case number HC
607/11 is finalized.
2.
In
the event that eviction has been carried out after the granting of this
provisional order, the 1st and 2nd respondents be and are
hereby ordered to return vacant possession and occupation of number 4 Gannet
Close, Burnside, Bulawayo to the applicant and those claiming through her or
her duly authorized agent.”
The background facts of this matter are the following. On 19 May 2010 applicant and the 1st
respondent entered into an agreement in terms of which the 1st
respondent sold to the applicant the above-mentioned property. The applicant made some payments towards
liquidating the purchase price.
Somewhere along the line the applicant had problems in paying the balance
of the purchase price resulting in 1st respondent instituting
proceedings under HC 2309/10. The result
of that case was an order against the applicant in favour of the 1st
respondent couched in the following terms:-
“It is ordered that:
(a)
The
agreement of sale entered into by and between applicant [i.e. 1st
respondent in casu] and the first
respondent [i.e. applicant in casu] …
on the 19th May 2010 be and is hereby cancelled on the basis that
the first respondent has fundamentally breached clauses 1, 5 and 8 of the
agreement of sale.
(b)
Applicant
refunds first respondent all monies paid by first respondent towards the
purchase price less expenses charged for rates, electricity, water and legal
costs duly taxed and allowed by the Deputy Registrar of the High Court in
Bulawayo.
(c)
…
(d)
…
(e)
First
respondent and all those who claim occupation of house number 4 Gannet Close,
Burnside, Bulawayo through first respondent be and are hereby ordered to vacate
house number 4 Gannet Close, Burnside, Bulawayo within 7 days of service of
this order on first respondent failing which the Deputy Sheriff, Bulawayo be
and is hereby directed to evict the first respondent and all those who claim
occupation of house number 4 Gannet Close, Burnside, Bulawayo through first
respondent.
(f)
…
(g)
…
(h)
…”
This order was granted on 27 January 2011. The 1st respondent did not execute
this judgment from January until September 2011. The parties had, after the granting of this
order, reached an agreement that the property be sold and the applicant be
refunded the deposit of US$31 000,00 that she paid less expenses like rentals,
electricity and water and legal costs.
In pursuant to this latter arrangement the 1st respondent
referred prospective buyers to view the said property but the applicant or
those claiming through her told them the property was not for sale. This conduct on applicant's part made the 1st
respondent resolve to execute the above-mentioned judgment under HC 2309/10
about eight (8) months after it was granted.
This is what prompted this application under a certificate of urgency. The applicant now seeks stay of execution of
a judgment it was aware of for such a long period of time. She has not shown how she will suffer
irreparable harm in light of the protection of her interest in the property in
paragraph (b) of the order granted under HC 607/11 which she has not bothered
to prosecute. She is not in a hurry to
pursue her application for rescission and summons matter under HC 2107/10
because she is in occupation of the said property. The applicant is not paying the agreed rental
of US$250 per month. Applicant is
clearly abusing court process and there is nothing urgent about this
application. The day of reckoning has
arrived.
Accordingly the application is dismissed with costs on legal
practitioner and client scale.
Cheda & Partners, applicant's legal practitioners
Sansole & Senda, 1st
respondent's legal practitioners
