GOWORA
J: These matters were referred to me in chambers and as the parties were the
same and the issues from the matters identical I decided to hear them together.
The founding affidavit for both
matters has been deposed to by one John Kanokanga who is a director of the
applicant. The contents of both affidavits are identical, except as they relate
to the addresses of the premises that are in issue in each of the matters, and
I will therefore set out the basic facts outlined in the affidavit. The
applicant was leasing two premises from the respondent, namely 109 Leopold Takawira Street
and 147 Mbuya Nehanda Street
and Nelson Mandela Avenue
respectively. In December 2009 the respondent issued summons out of this court
for the eviction of the applicant from the premises at 147 Mbuya Nehanda Street and in April
2010 it followed suit for the eviction of the applicant from 109 Leopold Takawira Street. When both
matters reached pre-trial conference stage the respondent filed notices of
withdrawal in respect of both and instituted applications in the Magistrates Court
at Harare in
September 2010.
The
applicant opposed the applications but was unsuccessful and ultimately the
court ordered that the applicant be evicted from both premises. On 24 September 2010 the applicant appealed
against the judgment of the magistrate in both matters. It also on the same
date filed applications, ex-parte for an order staying execution of the
judgment in both matters. The applications were dismissed by the magistrate. In
the meantime pending judgment on those applications, the applicant filed these
applications under certificates of urgency for orders staying execution of the
judgments. The respondents have opposed the granting of the applications.
The
nature of the relief sought in both matters is also identical. What the
applicant seeks in the Provisional Orders, except for the description in para 4
of the premises to which the applicant seeks restoration in either of the
applications, is in the following terms:
TERMS OF FINAL ORDER SOUGHT
THAT you show cause to this
Honourable Court why a final order should not be made in the following terms:-
1
Attachment, ejectment and
execution against property carried out by 1st respondent at No 109 Leoplod Takawira Street Harare be and is hereby declared unlawful.
2
second respondent shall return to
applicant all attached property pending finalization of appeal
3
first respondent is barred from
further attaching in execution applicant's property pending finalization of appeal
4
Respondents be and are herby
ordered to restore occupation of No 109 Leopold Takawira Street.
INTERIM RELIEF
GRANTED
Pending the determination of this
matter the applicant is granted the following interim relief;-
1
Respondents be and are hereby
barred from selling in execution applicant's property which they attached which
is captured in the notice of attachment.
2
Respondents be and are hereby
ordered to restore occupation at the concerned premises to applicant forthwith
3
That this Provisional Order be
served by the applicant's legal practitioners on the respondents.
Mr Mpofu, on behalf of the applicant, submitted that the noting of the
appeal to this court against the judgment of the magistrates court, hence the
need for a judgment creditor to obtain leave to execute pending appeal. The
common law position is that superior courts have an inherent jurisdiction to
regulate their own procedures and process. A rule of practice therefore evolved
whereby the operation of the judgment of a superior court is suspended upon the
noting of an appeal against that judgment.
I
will start my discourse on this issue with an examination of the provisions of
the Magistrates Court Act [Cap …. ].
Section 40 (3) of the Magistrates Court Act [Cap 7:…] provides for the court to direct either that the judgment
be executed pending appeal or for a stay of the judgment pending the
determination of an appeal. This provision in my respectful view acknowledges
the absence of an inherent discretion within the court for the automatic
suspension of the operation of a judgment or order upon the noting of an
appeal. The subsection therefore is specifically intended to provide the court
with the power to suspend the operation of a judgment upon the noting of an
appeal.
It appears however that there is some dissent
in our jurisdiction as to the application of this rule to appeals against
judgments that do not emanate from courts of superior or inherent jurisdiction.
The notion that this rule is of general application was disabused by GILLESPIE
J in Vengesai & Ors v Zimbabwe Glass
Industries Ltd 1998 (2) ZLR 593. It was reaffirmed by MUNGWIRA J in Founders Building Society v Mazuka 2000 (1) ZLR 528
wherein she stated:
“I find that I
cannot express my view on the matter better than by making reference to the
following remarks of GILLESPIE J in the case of Vengesai & Ors v Zimbabwe Glass Industries
Ltd 1998 (2) ZLR 593 (H) at 598T:
'In stating the
common law, CORBETT J referred to the automatic stay of execution upon the
noting of an appeal, as a rule of practice. That is, not a firm rule of law,
but a long established practice regarded as generally binding, subject to the
court's discretion. The concept of a rule of practice is peculiarly appropriate
only to superior courts of inherent jurisdiction. Any other court, tribunal or
authority is a creature of statute and bound by the four corners of its
enabling legislation. Moreover, the authorities cited by CORBETT C J are authorities
relevant to appeals from superior courts”.
The
reference to this rule as a rule of practice shows the acceptance by the
learned Judge of the analysis by JANSEN
J. This analysis leads inexorably to the conclusion that the grant or
withholding of a stay of execution is, at common law, a matter of discretion
reserved to a court in which such discretion is imposed. It follows that, in
the absence of any statute specifically conferring such discretion on an
inferior tribunal or authority, or otherwise regulating the question of
enforcement of judgments pending an appeal from that authority, no such
discretion can exist. Such a court or authority can exercise only the powers
conferred by the statute. It cannot order suspension of its own judgments
notwithstanding an appeal. The only basis upon which its judgments or order can
be supposed to be stayed is where its enabling statute provides for the
situation. Therefore the grant, whether automatic or not, of a stay of
execution of a judgment pending appeal is an inseparable part of an exercise of
discretion by the court from which the appeal lies, to order the enforcement of
its judgment notwithstanding the appeal or any temporary stay. It follows that
the question of enforcement pending appeal of judgment from an inferior court
cannot possibly be regulated according to a rule of practice derived from
common law, and applicable in superior courts of inherent jurisdiction. In Chatizembwa v Circle Cement HH-121/94
(not reported) SMITH J in considering the same issue in the context of an
appeal to the Labour Tribunal by an applicant dismissed in terms of a
registered Code of Conduct stated at p4 of the judgment:
“If the legislature had intended that the
decision of the body concerned under the code of conduct should be suspended
pending an appeal, it would have said so as is done in s 113(3). In addition it
would have inserted a power enabling the Labour Relations Tribunal to declare
otherwise in appropriate circumstances. The fact that it did not make a
specific provision to that effect is a clear indication that it did not intend
the noting of an appeal to suspend the decision appealed against. The
introduction of the concept of registered codes of conduct which are binding on
employers and employees is, to my mind, consistent with principle that
determinations made in accordance with the provisions of a registered code
should have effect until such time as any appeal is determined.”
This
dicta, appears in my view, to run counter to what was expressed by KORSAH JA in
Phiri & Ors v Industrial Steel Pipe
(Pvt) Ltd 1996 (1) ZLR 45 at 49D wherein he stated:
“I am of the
persuasion that, in the absence of a clear indication by the law giver to the
contrary, the common law position that the execution of all judgments is suspended
upon the noting of an appeal, is not ousted by the silence of the statutory
instrument, in terms of which the respondent's appeal to the Tribunal was
lodged upon the effect of such appeal against the order made by the Minister.”
Earlier
on in the judgment this is what the learned judge of appeal stated:
“By Roman Dutch
Law the execution of all judgments is suspended upon the noting of an appeal. Reid & Anor v Godart & Anor 1938
AD 511 at 513, per DE VILLIERS JA, cited with approval by ADAM J in Arches (Pvt) Ltd v Guthrie Holdings (Pvt)
Ltd 1989 (1) ZLR 152 (H) at 154G. DE VILLIERS JA explained that-
'The foundation
of the common law rule as to the suspension of a judgment on the noting of an
appeal, is to prevent irreparable damage from being done to the intending
appellant, whether such damage be done by levy under a writ, or by execution of
the judgment in any other manner appropriate to the nature of the judgment appealed
from.”
The
damage that was meant to have been prevented in casu has happened not because the applicant did not seek to
protect its interest, but because due to uncertainty in the law, the judgment
creditor proceeded to execute against the judgment despite the noting of the
appeal. The order from the magistrate dismissing the application came after the
process has started.
In
PTC v Mahachi 1997 (2) ZLR 71(H)
CHATIKOBO J chose to follow Phiri's case.
In Kudinga v Dhliwayo & Anor
HH 22/08 MAKARAU JP (as she was then) added her voice to those of eminent judges
who before her had expressed the fervent calls for clarity in the law relating
to the suspension of judgments from statutory tribunals or courts of inferior
jurisdiction and for the Supreme Court to revisit its decision in Phiri's case.
I respectfully agree.
I
have been urged by counsel for the applicant to exercise my discretion and
right a wrong that has been alleged to have been committed against the
applicant. This submission is premised on the view that the noting of the
appeal automatically suspended the operation of the order appealed against. In
my view the respondent, given the uncertainty in the law, may have felt
justified in its entitled to execute against the judgment in the absence of an
order from court suspending execution of the same. The law however is on the
side of the applicant in that based on Phiri's case, the noting of the appeal
by the applicant automatically suspended execution of the judgments in both
matters.
Mr
Mpofu has urged me to right the wrong
that has been done to the applicant as regards the execution of the judgments
pending appeal. He has, relying on S v
Taenda, 2000 (2) ZLR 394; S v
Chakwinya 1997 (1) ZLR 109; and S v
Ndiweni 1983 (2) ZLR 49 urged this court to exercise its discretion to
remedy the wrong to the applicant. It seems to me that the authorities cited by
counsel are of no assistance as the court in those cases, exercised the review
powers of the High Court in criminal matters. The court then invoked the
provisions of s 18 (2) of the Constitution which requires that a person charged
with a criminal offence shall be afforded a fair hearing within a reasonable
time by an independent and impartial court established by law. Counsel did not
elaborate as to how I should exercise my jurisdiction in favour of the applicant.
It seems to me that the applicant had the right either to appeal against the
ruling of the magistrate or seek a review. It chose to do neither and instead
approached this court for an order to stay execution in complete disregard of
the earlier proceedings before the magistrate.
Mr
Mupindu submitted that the applicant
was improperly before the court in that an application for a stay of execution
had been made by the applicant to the Magistrates
Court and had been dismissed. He wondered whether
the applicant was seeking a review or an appeal against the decision of the Magistrates Court.
The magistrate had apparently dismissed the application on the premise that the
noting of the appeal had suspended the operation of that judgment. Mr Mpofu, incorrectly in my view, submitted
that the applicant was not dissatisfied with that judgment as it was a correct
statement of the law. Accepting as the applicant did that it was a correct
statement of the law, the applicant would appear to have decided to approach
this court for the exact same relief denied it by the magistrate. What it has
done however is to mount the same application to this court and ignore totally
the order of the court a quo
dismissing the application for a stay of execution. The order of the court a
quo dismissing the application for a stay is still extant and in my view this
court cannot be seen to be giving an order differing from that order whilst it
is still extant. This would result in two orders from two different courts
which would be in conflict of each other. Which order would then be binding
upon the parties. To do so would constitute a clear departure from rules of
procedure and an open invitation to litigants to treat the orders of court with
contempt, because that is what my order would constitute.
In
the premises the applicant is non suited and the applications are dismissed
with costs
Hamunakwadi Nyandoro & Nyambuya, applicants' legal
practitioners
Mupindu Legal
Practitioners, first respondent's legal practitioners
