NDOU J: The
applicant seeks a provisional order in the following terms:
“Final order granted
(i)
Execution
of the interim relief in HC 2187/11 and other related matters thereto be stayed
permanently.
(ii)
No
order as to costs.
Interim relief granted
Pending the determination of this application, the applicant
is hereby granted the following relief:
(i)
That
the interim relief granted to respondent under HC 2187/11 and the writ of
execution thereof be and is hereby stayed.
(ii)
The
Deputy Sheriff or Messenger of Court are hereby interdicted and prohibited from
executing the writ of execution.”
The salient facts of this matter are the following. On 4 August 2011 1st and 2nd
respondents obtained a provisional order for the vacation within 48 hours by
the applicant of the premises known as Elons Court, 3rd Avenue and
Main Street, Bulawayo. The applicant did
not vacate and the Deputy Sheriff attempted to evict the applicant on 30 August
2011 but was apparently met with strong resistance up to a point that the
Deputy Sheriff had to enlist the assistance of members of the Zimbabwe Republic
Police, namely Superintendent Ndlovu.
The latter invited the parties to meet in Bulawayo Central Police
Station. At Central Police Station all
parties' lawyers were present and one Chief Inspector Mandere directed the parties
to the Deputy Registrar of this court.
The latter advised the applicant's legal practitioner that applicant was
in contempt of court and should vacate the premises. The applicant evidently did not accept such
counsel and instead filed this application under a certificate of urgency. The respondents have raised two points in limine i.e. the applicant is
approaching the court with dirty hands and further that this matter is not
urgent.
I propose to consider these issues in turn.
“Dirty hands issue”
As alluded to above, the order required the applicant to
vacate the premises within 48 hours. The
order was served on the applicant by the Assistant Deputy Sheriff on 19 August
2011. This application was only filed on
31 August 2011. Despite having known as
at 19 August 2011 of the order granted under HC 2187/11 demanding that he
vacates his premises within 48 hours, the applicant defiantly did not
vacate. The applicant's hands are dirty
and he cannot be heard. The issue was
clearly stated by CHIDYAUSIKU CJ in Assd Newspapers of Zim (Pvt)
Ltd v Min of State for Information
& Publicity & Ors 2004 (1) ZLR 538 (S). At page 548B-E the Chief Justice stated:
“This court is a court of law, and as such, cannot connive at
or condone the applicant's open defiance of the law. Citizens are obliged to obey the law of the
land and argue afterwards. …
For the avoidance of doubt the applicant is not being barred
from approaching this court. All that
the applicant is required to do is to submit itself to the law and approach
this court with clean hands on the same papers. …
The applicant is operating outside the law and this court
will only hear the applicant on the merits once the applicant has submitted
itself to the law.”
This rule applies to the facts of this case – see also S v
Neil 1982 (1) ZLR 142 (H) and S v Nkosi 1963 (4) SA 87 (T). The court will
not grant relief to a litigant with dirty hands in the absence of good cause,
being shown or until such defiance or contempt has been purged – Hoffman La Roche v Secretary of State for Trade & Industry [1975] AC 295; [1974] 2
ALLER 1128 (HL). In casu, the applicant has neither shown good cause nor purged the
defiance or contempt. In the result the
point taken in limine succeeds. The applicant is in defiance of the order of
this court and this court will only hear applicant on the merits and the other
issue raised once the applicant has submitted himself to the law. The applicant will bear costs of this
application.
Mudenda Attorneys, applicant's legal practitioners
Cheda & Partners,
respondents' legal practitioners
