MAVANGIRA
J: This is an application for leave to
execute a judgement of the High Court granted on 26 November 2010 HC 5332/06
pending an appeal noted in the Supreme Court by the respondent on 14 December
2010.
The
facts presented by the applicant are as follows:
The
respondent was a tenant of the late Eunice Taylor who was the owner of the
property Lot 5 of Lot 18 and 19 Parktown Extension. The late Eunice Taylor had
through public auction sold the property to the applicant. She had not accepted
an offer made by the respondent to acquire the property. The applicant then
gave the respondent notice to vacate the premises but the respond did not
vacate and from March 2007 the respondent was in occupation of the premises
without paying rent. Consequently the applicant issued summons in the High
Court for the eviction of the respondent. The applicant subsequently withdrew
the summons after becoming aware that the respondent had filed a suit against Eunice
Tayler in which he was seeking the setting aside of a sale to any other party
and that the property be sold to him. The applicant was joined as a party to
those proceedings and she filed a counter-claim for the eviction of the
respondent and for holding over damages. During the trial of that suit the
respondent withdrew the issue that he had the right of first refusal thus
leaving only one issue for the determination of the trial court, namely, that
relating to offer and acceptance.
The
respondent's claim against Eunice Taylor was dismissed at the close of his
case. The court made an order to the
effect that the respondent and all those claiming through him were to vacate
the property in issue herein, being Lot 5 of Lots 18 and 19 Parktown Extension
of Upper Waterfalls by 31 December 2010. By consent of the parties the
respondent was to pay the applicant the sum of US$ 380-00 per month as holding
over damages for the period calculated from 1 February 2009 to date of
vacation. The respondent was to pay the accrued holding over damages for the
period from 1 February 2009 to 30 November 2010 failing which the applicant
herein could execute the consent order to recover the said amount. The
respondent was also to pay all outstanding utility bills for the property in
issue on or before 31 December 2010. The respondent was also to pay costs of
suit.
On
14 December 2010, the respondent noted an appeal against the said judgement.
Three grounds of appeal are given herein. The first is that the court a quo erred in denying the appellant the
chance to reopen his case to adduce evidence to prove that he believed that his
offer had been accepted by the late Eunice Taylor through her agent. Secondly,
that the court a quo erred in finding
that the (appellant) respondent herein was no longer protected at law as a
statutory tenant when it was the applicant herein who was refusing to accept
rentals from him. Thirdly, that the court a
quo in failing to consider the extent of improvements done by the
respondent herein on the property in dispute and failing to set off the same
from the amount claimed as arrear rentals and holding over damages thereby
resulting in an unjust enrichment on the
part of the applicant to the prejudice of the respondent.
The
applicant bases the justification for this instant application on three main
grounds. The first is that in the circumstances of this case irreparable harm
and prejudice will be suffered by the applicant if execution is suspended
pending the determination of the appeal. In the second place, that the
respondent's prospects of success on the appeal are extremely slim. Thirdly,
that the respondent is merely on a deliberate mission to frustrate the
applicant and delay the day of reckoning.
In
opposing the application in casu the
respondent disputes the factual background given by the applicant. His version
is that the late Eunice Taylor, through her agents, clandestinely sold the
property in question to the applicant notwithstanding the fact that his offer
to purchase the same had also been accepted. He contends that the two later
connived to frustrate him. The respondent also states that he was seriously
aggrieved by some parts of the judgement of this court that was granted and he
thus filed an appeal challenging those parts of the judgement that aggrieve
him; a procedure, he says, that he is perfectly entitled to take or follow. He
denies that his appeal was noted merely to frustrate the applicant and to buy
time. As far as he is concerned, his appeal is meritorious and the balance of convenience
favours that execution be suspended pending final determination of his appeal.
In Net
One Cellular (Pvt) Ltd v Net One Employees & Anor 2005 (1) ZLR 275 (5) at 280 D - 281 D
CHIDYAUSIKU CJ stated:
"...The
employees after registering the arbitrator's award with the High Court, should
have applied for leave to execute after the noting of an appeal. In this regard
CORBETT JA in South Cape Corporation
supra at pp 544H -545H had this
to say:
'Whatever the true position may have
been ..., it is today the accepted common law rule of practice in our courts
that generally the execution of a judgment cannot be carried out and no effect
can be given thereto, except with the leave of the Court which granted the judgment.
To obtain such leave the party in whose favour the judgment was given must make
special application ... The purpose is to prevent irreparable damage being done
to the intending appellant ... The court to which application for leave to
execute is made has a wide general discretion to grant or refuse leave and, if
leave be granted, to determine the conditions upon which the right to execute
shall be exercised. ... This discretion is part and parcel of the inherent
jurisdiction which the court has to control its own judgments. ... In
exercising this discretion, the court should, in my view, determine what is
just and equitable in all the circumstances, and, in doing so, would normally
have regard, inter alia, to the
following factors:
(1) the
potentiality of irreparable harm or prejudice being sustained by the appellant
on appeal (respondent in the application) if leave to execute were to be
granted;
(2) the
potentiality of irreparable harm or prejudice being sustained by the respondent
on appeal (applicant in the application) if leave to execute were to be refused;
(3) the
prospects of success on appeal, including more particularly the question as to
whether the appeal is frivolous or vexatious or has been noted not with the bona fide intention of seeking to reverse
the judgment but for some indirect purpose, e.g. to gain time to harass the
other party; and
(4) where
there is the potentiality of irreparable harm or prejudice to both appellant
and respondent the balance of hardship or convenience, as the case may be."
At
281G the learned CHIEF JUSTICE proceeded to state:
"Authorities
clearly establish that at common law a decision of a lower court in respect of
which an appeal has been noted cannot be executed upon. It can only be executed
upon after leave to execute has been granted."
In Econet
v Telecel Zimbabwe (Pvt)
Ltd 1998 (1) ZLR 149H at 156 B - E SMITH J stated:
"In
this country, as in South Africa, the noting of an appeal in a civil case
automatically suspends the execution of any judgement or order granted by the
court of first instance. In South Cape
Corp v Engineering Management Services
1977(3) SA 534(A) CORBERTT JA (as he then was) said at 544:
'it is today the accepted common law
rule of practice in our courts that generally the execution of a judgement is
automatically suspended upon the noting of an appeal... The purpose of the rule
is to prevent irreparable damage from being done to the intending appellant.'
An
application may however be made to the trial court for leave to execute pending
the appeal and in any such application the onus is on the applicant to show
special circumstances (see South Cape
Corp supra at 545 and 548)."
In Wood
N D v Edwards & Anor 1966 RLR
336 (G); 196(3) SA 443 (R) LEWIS J (as he then was) made it clear that the
general rule as stated above, also applies in Zimbabwe and he referred with
approval to Reid v Godart 1938 AD 511 when it was
also stated that "the foundation of the common law rule ..... is to prevent
irreparable damage to the intending appellant."
In the same judgement SMITH J also
stated at 154 F - G
"In
determining an application for leave to execute pending an appeal, the court
must have regard to the "preponderance of equities", the prospects of success
on the part of the appellant and whether the appeal has been noted without "the
bona fide intention of seeking to
reverse the judgment but for some indirect purpose e g to gain time or to
harass the other party": See "Fox &
Carney (Pvt) Ltd v Carthew-Gabriel (2),
1977(4) SA 970 (R) and ZDECO (Pvt)
Ltd v Commercial Careers College (1980) (Pvt) Ltd 1991 (2) ZLR 61 (H)."
The
potentiality of irreparable harm or prejudice being sustained by the appellant
on appeal (respondent in the application) if leave to execute were to be
granted
In this regard on this aspect the
applicant's legal practitioner submitted that the respondent has not in his
opposition raised any irreparable harm or prejudice that he would suffer if
leave to execute pending appeal were to be granted. A perusal of the
respondent's opposing affidavit tends to a large extent to confirm this
submission. The respondents addresses this aspect in para 6 of his opposing
affidavit. All that the respondent merely says is that he will suffer
irreparable harm if leave to execute is granted as that would effectively
reduce his appeal as merely academic and not worth pursuing.
The
potentiality of irreparable harm or prejudice being sustained by the respondent
appeal (applicant in the application) if leave to execute were to be refused
It is the respondent's contention that
as the applicant is already armed with a judgment in her favour, she will not
suffer any irreparable harm if leave to execute pending appeal is refused. The
respondent's contention is that it is him who will suffer irreparable harm in
such circumstances in the sense that he would be ejected from the premises and
yet may then eventually succeed in his appeal after such ejectment. This then,
in my view necessitates the examination and assessment of the third factor
expounded in the Net One Cellular
case supra.
The
prospects of success on appeal, including whether the appeal is frivolous,
vexations or has been noted met with the bona
fide intention of seeking to reverse the judgment but for some indirect
purpose, e.g. to gain time to harass the other party
From a perusal of the judgment of the
court HH 261-10 (HC 5332/06) (UCHENA J) against which the respondent's appeal
lies, it is clear that no evidence was placed before the court to show that the
appellant's offer was accepted. Rather, what clearly emerged on the evidence
before that court was that the respondent's offer was never accepted. At p 6 of
the judgment the following appears:
"The
evidence led for the plaintiff (respondent in casu) proves he made an offer. He was then asked to wait while his
offer was being considered. He was to check after seven days. When he inquired
with the seller's agent he was told not to panic as his offer was still being
considered. It is in my view not possible to say a reasonable man would make a
mistake and find for the plaintiff that a contract of sale had been concluded
between the plaintiff and the first defendant when it is clear that the seller had
not accepted the plaintiff's offer. The plaintiff's evidence establishes that
his offer was being considered. The offer form exh 2 confirms that the offer
was not accepted. It was only signed by the buyer, while the seller's part
remained uncompleted."
In
my view the above quoted excerpt from UCHENA J's judgement exposes the fallacy
or futility of the respondent's first grounds of appeal. I agree with the
applicant's legal practitioner's submission that it is immaterial what the
respondent believed. The issue before the court then was whether there had been
an offer and acceptance and that the court's finding that there was no
acceptance of the respondent's offer is supported by the evidence on record.
Regarding
the respondent's second ground of appeal UCHENA J's judgment clearly addressed
this aspect. At p 8 of the judgement (p 15 of the record) the following was
stated:
"I
agree that failure to pay rental because of the landlord's refusal to accept
rent cannot be used to found a ground to evict the tenant from the premises.
However in the case the refusal was for the month of February 2007 and was
intended to ensure that the plaintiff vacated the premises to enable the fourth
defendant's (applicant herein) family to occupy the house. If that was the only
default I would have found that absolution from the instance should be granted
as the parties have reached a settlement on the issue of damages."
The learned judge continued at 9:
"The
plaintiff then led evidence to the effect that he offered rentals for the
following months to date. He admitted that in his plea he disputed Matekos's
title to the property and said he could not pay rentals to her. In his evidence
he again said he did not recognise Mateko's title to the property, and could
therefore not pay rentals to her. It is common cause that in terms of the
expired lease rentals should therefore in spite of the refusal of rentals for
February 2007, have tendered rentals for March 2007.
In
view of the clear findings made by the learned judge as quoted above, the
respondent's second ground of appeal also appears to me to be without merit.
Having decided not to pay rentals to the applicant herein, the respondent
cannot fault the learned judge's finding that he could not benefit from or
enjoy the otherwise automatic protection that would have been afforded to him
by virtue of the provisions of the Rent Regulations.
With
regard to the respondent's third ground of appeal I have no hesitation in
agreeing with the applicant's legal practitioner's submission that as the issue
of the improvements allegedly done by the respondent was not specifically
pleaded and was therefore not an issue before the court, the court cannot be
faulted for not considering the same nor for not setting off the value of the
same against the holding over damages and arrear rentals.
For the reasons discussed above, it is
my view that the respondent has no prospects of success on appeal. It also
appears to me that the appeal is frivolous and vexatious considering the fact
that the respondent's consent permeates material portions of the judgment. An
irresistible inference arising in the circumstances is that the appeal was
noted not with the bona fide intention
of seeking to reverse the judgment but probably to gain time to harass the
applicant. I therefore come to the conclusion that the applicant has
successfully justified his application which will thus be granted as follows:
It is hereby ordered:
1.
That
the applicant be and is hereby granted leave to execute the judgment of this
court dated 1 December 2010 in HC 5332/06 pending the appeal noted by the
respondent.
2.
The
respondent shall pay the costs of this application.
Muzangaza,
Mandaza & Tomana, applicant's
legal practitioners
Musarira Law Chambers,
respondent's legal practitioners.