NDOU J: This
is a court application for execution of judgment pending appeal. On 4 November 2010, the applicants obtained a
judgment in their favour in this court under HB-136-10. The judgment was in respect of two matters,
namely HC 1583/07 and HC 2747/07 which had been consolidated. The effect of this judgment was to confirm
the provisional order granted to applicants under HC 1583/07 (for inter alia, the eviction of the
respondents and all those claiming through them from number 70 Jason Moyo
Street, Bulawayo and to dismiss the application by the respondents under HC
2747/07).
On 24 November 2010, the respondents
noted an appeal against this judgment to the Supreme Court and said appeal is
pending under SC 284/10. The respondents
have remained in occupation of the property on the basis of the appeal. This application is opposed. It is trite that this court has a discretion
to grant an application for leave to execute pending appeal. In exercising its discretion the court takes
into account what is just and equitable in the circumstances and particularly
the following considerations:
(a)
The
potentiality of irreparable harm and prejudice to the appellant if leave to
execute is granted;
(b)
The
potentiality of irreparable harm and prejudice to the respondents on appeal if
leave to execute is refused;
(c)
The
prospects of success on appeal including the question as to whether the appeal
is frivolous and vexatious or appeal has been noted not with the bona fide intention of seeking to
reverse the judgment but for some other purpose such as to gain time or to
harass the other party.
(d)
If
the competing interests are equal, then the balance of hardship to the other
party – South Cape Corporation v Engineering Management Services 1977 (3)
SA 534 (A); Ardes (Pvt) Ltd v Guthrie Holdings (Pvt) Ltd 1989 (1) ZLR
152 (H); Zaduck v Zaduck (2) 1965 RLR 635 (G), 1966 (1) SA
550 (SR); Masulame v Mbona & Anor 2003 (1) ZLR 412 (H); Dabengwa & Anor v Minister of Home Affairs & Ors 1982 (1) ZLR 223 (H); Van T' Hoff v Van T' Hoff & Ors 1988 (1) ZLR 335 (H) and Zimbabwe Distance Correspondence Education College (Pvt) Ltd v Commercial Careers College (1980) (Pvt ) Ltd
1991 (2) ZLR 61 (H).
I propose to consider these issues in turn.
Prospects
of success on appeal
HC
1583/07
In this case the court confirmed the
provisional order and upheld the applicants' rights to the ownership of the
property in terms of the earlier Supreme Court judgment and thus ordered
eviction of the respondents. In terms of
section 26 (1) of the Supreme Court Act, a judgment of the Supreme Court is
final and cannot be revisited. By
refusing to move out after the Supreme Court judgment, the respondents were
arrogantly defying the judgment of the Supreme Court.
A closer examination of the grounds
of appeal will show that they do not address any issued in respect of the part
of the judgment pertaining to HC 1583/07.
This is notwithstanding the fact that the notice of appeal purports to
be in respect of the whole of the consolidated judgment – see Rule 29 (d) and
(e) of the Supreme Court Rules. There is
also no relief that is sought in the prayer in respect of this part of the
judgment. There is no reason why the
applicants should continue to suffer deprivation of this property and it is
therefore just and equitable that the applicants be allowed to execute the
judgment pending appeal.
HC
2747/07
The court dismissed the respondents'
application on the grounds that they were seeking relief on a matter which had
already been dealt with by the Supreme Court and was therefore res judicata – A reading of the draft
order under HC 2747/07 will show that the respondents sought to alter paragraph
by paragraph the relief that was granted to the applicants when the Supreme
Court confirmed the provisional order by its judgment under SC 140-05. By asking the High Court to deal with the
matter for the second time, the respondents were asking the High Court to alter
the judgment of the Supreme Court. It is
trite law that the High Court is bound by decision of the Supreme Court – Ethnomusicology Trust v Deputy Chairman Labour Relations 1997
(2) ZLR 207 (H); Ex parte Jones 1929
CPD 134 at 137 and Hahlo & Khan – The
South African Legal System and its Background.
In Ex parte Jones, supra, at page 137 GARDNER JP observed –
“Stare decisis is
to my mind a good practical maxim. It is
better that the law should be unsound historically than that it should be
uncertain. Laymen in their usual
commercial transactions wish to have a certain rule of law which they may be
guided, and care not whether it can be supported by the niceties of legal
argument. To them what matters is that
the law has been laid down in a certain way; once it has been so laid down they
must follow it. But it concerns them not
at all whether it is a correct interpretation of Voet or Averanius.”
The Supreme Court upheld the
applicants' right of first refusal.
Respondents are occupying the property in defiance of the above
mentioned Supreme Court order. The
respondent are litigants with dirty hands and their appeal is affected by that
fact – Scheelite King Mining P/L v Mahachi 1998 (1) ZLR 173 (H) and Deputy Sheriff, Harare v Mahleza & Ors 1997 (2) ZLR 425
(H).
Prejudice
to the applicants
The applicants have never had access
to the premises. The respondents simply
refuse to move out. This is
notwithstanding the fact that the Supreme Court made a final determination on
the matter on 13 November 2006. The
Supreme Court's judgment confirmed the provisional order which had been granted
three years earlier on 18 August 2003 and confirmed on 24 April 2005. As the respondents continue to occupy the
premises the occupational considerations that they owe to the applicants
continue to accumulate. Such costs will
be substantial considering the fact that they have accumulated over a long
period of time. The prospects of
recovering the true value of their damages are virtually non-existent. The harm to them is therefore irreparable.
Prejudice
to the respondents
The respondents on the other hand
stand to suffer no prejudice or harm if leave to execute is granted. The judgment is not one sounding in money and
the respondents are, therefore not being called upon to pay any sums of money
which they are not likely to recover if paid over to the applicants.
The balance of hardships best favour
the applicants. A case has been made by
the applicants for the granting of the application in accordance with demands
of the preponderance of equities.
Accordingly it is hereby ordered
that:
- The applicants be and are hereby
granted leave to execute the judgment of this court under HB-136-10
pending the appeal by the respondents to the Supreme Court.
- The respondents pay the costs of
this application jointly and severally the one paying the other to be
absolved on an attorney and client scale.
Joel Pincus, Konson & Wolhuter, applicants' legal practitioners
Cheda & Partners,
respondents' legal practitioners
