MATHONSI J: The applicant seeks, by urgent application, a
review of the proceedings and decisions of the Magistrates Court sitting in
Masvingo which ordered the eviction of the applicant from No 2 Chiora Flats,
Jason Moyo Avenue Masvingo. Subsequent to that eviction order which was granted
on 14 May 2014, the applicant noted an appeal to this court against the
eviction which propelled the first respondent to seek leave to execute pending
appeal. Again the Magistrates Court granted leave to execute. As a
result the applicant's property was placed under attachment and execution is
imminent.
I must point out that the notice of set down for today's hearing was not served
at the address of service given by the applicant in this application, being 63
Mwamuka Road, Mbare National Harare. According to the Sheriff's return an
attempt to serve the notice was made on 13 June 2014 at that address. The
Sheriff remarked:
“Attempted service. Could not locate the defendant (sic)
on the address of service. The residents on the address proclaimed they have
never met nor do they know the defendant. (sic)”
After noting the contents of the return of service, I
directed my Clerk to contact the applicant on the cellphone numbers that he
gave on the application in order to appraise him of the date of set down. I
received a report that indeed the applicant was contacted on cell phone number
0773 547 663 but it was answered by his brother who was advised of the set
down. That notwithstanding the applicant has not attended court and I
therefore propose to deal with the merits of the application even in the
applicant's absence given that this is an urgent application. At the hearing of
the matter, the applicant's cousin, Lovemore Madziwa, appeared on his behalf
and indicated that he was coming to observe the proceedings in order to advise
him of the outcome. Mr Madziva is not a legal practitioner and has no
capacity to represent the applicant.
Mr Dodo, who appeared on behalf of the first
respondent also had difficulties in that he had not secured his clients full
instructions and indicated that having read the papers, he formulated the
impression that the applicant had a point in that the first respondent was not
properly cited. He submitted however that he could not appear to advance
the applicant's case and had nothing further to say that could assist me in
determining the matter.
In my view the application is woefully without merit and is
replete with procedural irregularities. The applicant cannot seek review by way
of urgent application. Even if he could, the application does not comply with
the court rules relating to review applications. A litigant seeking a
review of proceedings of inferior tribunals is required to proceed in terms of
Order 33 of the High Court of Zimbabwe Rules, 1971.
In terms of r 256;
“Save where any law otherwise provides, any proceedings to
bring under review the decision or proceedings of any inferior court or of any
tribunal, board or officer performing judicial, quasi-judicial or
administrative functions, shall be by way of court application directed and
delivered by the party seeking to review such decision or proceedings to the
Magistrate, presiding officer or chairman of the court, tribunal or board or to
the officer, as the case may be, and to all other parties affected.”
Rule 257 requires that the court application should state
shortly and clearly the grounds for review and the exact relief prayed for,
while r 260 provides that the record of proceedings in the inferior court
should be submitted to this court.
The applicant has proceeded by urgent chamber application
instead of court application in breach of r 256, which rule is of peremptory
application. He has not set out shortly and clearly the grounds for review in
violation of r 257. There is no record of the proceedings in the
Magistrates' Court other than the judgements of that court. These
irregularities are so fundamental, they go to the very root of the application.
As if that was not enough, the applicant appears to have
followed the wrong procedure. He has appealed against the judgement of
the Magistrate's Court granting eviction. He should pursue that appeal if
he entertains a hope of its success. Instead he has now taken a detour,
again returning to this court seeking a review of the same judgement he has
appealed against. He cannot have it both ways and is best advised to make
up his mind.
I am also mindful of the fact that at no point during the
proceedings in the Magistrate's Court did the applicant present any defence on
the merits which include the fact that he has not been paying rent, a point in
which the Magistrate made a finding. He was content to fashion a defence
merely on the single point that the first respondent was not properly cited,
the plaintiff having been cited as the Ministry as opposed to the Minister.
Surely that is as trivial an argument as it is an exercise in futility.
The court would have been entitled to condone that little error and that still
left the applicant, a civil servant based in Bulawayo who wants to continue
occupying government property located in Masvingo without paying rent, still
without a defence.
I am therefore satisfied that this application cannot
succeed. It is accordingly dismissed with costs.
Civil
Division Office, 1st respondents' legal
practitioners
