The facts of this case are common cause.
They are as set out in the founding affidavit to this application and
aptly summarised in the judgment of the learned Judge in the court a quo. They are as follows:-
The first respondent (hereinafter referred to as "Adam &
Co") instituted an action in the High Court for the eviction of Ritenote
Printers from two premises it had leased to Ritenote Printers. Adam &
Co also sought the payment of arrear rentals from Ritenote Printers.
This was done in two separate actions.
The first action was referred to trial and a trial date was
set. The other action was still at the pre-trial conference stage. At
that stage, Adam & Co withdrew its actions in the High Court and then
instituted the same proceedings in the Magistrates Court. Adam & Co
was successful in the Magistrates Court and the Magistrates Court ordered the
eviction of Ritenote Printers as well as the payment of arrear rentals.
Dissatisfied with the magistrate's judgment, Ritenote Printers appealed
against it to the High Court.
Ritenote Printers, most probably because of the wording of section 40(3)
of the Magistrates Court Act [Chapter 7:10]
("the Act"), concluded that the noting of the appeal would not
suspend the order of the Magistrates Court. Ritenote Printers accordingly
filed an application in the Magistrates Court for the stay of execution pending
the determination of that appeal.
Section 40(3) of the Magistrates Court Act [Chapter 7:10] provides as follows:
"40 Appeals
(1)…,.
(2)…,.
(3) Where an appeal has been noted, the court may direct either that the
judgment shall be carried into execution or that execution thereof shall be
suspended pending the decision upon the appeal or application."
That application was dismissed by the magistrate on the ground that the
magistrate was of the view that she could not grant such relief, as the noting
of the appeal had suspended the operation of the magistrate's order. The
following is the magistrate's ruling:
"This is an application for
stay of execution by the applicant who is the respondent in the main
matter.
The applicant appealed against
the decision of the court a quo,
which appeal automatically suspended the operation of the judgment. The
applicant is now applying again for stay of execution…, which is vague and
embarrassing since execution has been stayed already by the appeal.
However, the applicant has no
prospect of success at the High Court and (the) balance of convenience favours
the respondent who is the applicant in the main matter.
Accordingly, the
application for stay of execution is dismissed with costs."
If the learned magistrate had dismissed the application on the basis
that the appeal had no prospects of success, which appears to be her view, I
would have no problem with that ruling.
However, a proper reading of her judgment clearly suggests that she
dismissed the application because she was of the erroneous view that the noting
of the appeal automatically suspended her judgment. This is not what section 40(3)
of the Magistrates Court Act [Chapter 7:10]
provides. What happens upon the noting of an appeal against the
magistrate's judgment is governed by section 40(3) of the Magistrates
Court Act [Chapter 7:10]. Adam
& Co would probably not have needed to apply if the learned magistrate had
dismissed Ritenote Printers's application on the basis that Ritenote's appeal
had no prospects of success.
In my view, the wording of section 40(3) of the Magistrates Court
Act [Chapter 7:10] leaves
a lot to be desired, but a proper reading of the section reveals that it
confers on the magistrate the power to stay execution despite the noting of an
appeal. The section also confers on the magistrate the power to order
execution despite the noting of an appeal. It follows, therefore, that for
the magistrate to exercise the discretion in terms of section 40(3) of the
Magistrates Court Act [Chapter 7:10],
the party seeking to have the discretion exercised in its favour has to make an
application. Upon the making of such an application, the magistrate
exercises the judicial discretion and makes a proper determination.
In casu, Ritenote Printers applied
for the stay of execution of the order pending the determination of the
appeal. The learned magistrate dismissed that application on the erroneous
basis that her judgment had been suspended by the noting of the appeal. In
effect, her ruling was that her judgment cannot be executed because it had been
suspended by the noting of an appeal.
That determination, though based on a misdirection, is extant.
Adam & Co did not apply for leave to execute the judgment in its
favour despite the noting of an appeal.
As I have said, my reading of section 40(3) of the Magistrates
Court Act [Chapter 7:10]
is that if Adam & Co wished to execute despite the noting of an appeal it
had to apply for such leave. In casu,
Adam & Co would probably not have needed to make the application
if the learned magistrate's ruling had not been predicated on a serious
misdirection. Adam & Co simply instructed the Messenger of Court, the
second respondent, to evict Ritenote Printers and attach its property, which
the Messenger of Court duly did.
Ritenote Printers, upon being evicted, applied to the High Court seeking
to set aside the eviction and the attachment of its property. The
application was based on two grounds;
(i) Firstly, that Adam & Co did not apply for and obtain an order to
execute the judgment of the magistrate despite the noting of the appeal, as is
required by section 40(3) of the Magistrates Court Act [Chapter 7:10]; and
(ii) Secondly, that the effect of the magistrate's ruling, cited above,
was that Adam & Co could not execute the judgment because, in the
magistrate's opinion, the noting of an appeal had the effect of suspending her
judgment.
It is quite clear that the magistrate's ruling, right or wrong, was that
Adam & Co could not execute her judgment….,.
GOWORA J dismissed Ritenote Printers' application.
In her reasons for judgment, the learned Judge analysed, in some detail,
the authorities on the doctrine of inherent jurisdiction enjoyed by the
superior courts. She concluded, quite correctly in my view, that that
jurisdiction empowers the superior courts to regulate their own process. Included
in that jurisdiction is the courts' power to order execution of their judgments
despite the noting of appeals. The learned Judge also concluded, again
quite correctly in my view, that inferior courts do not have this inherent
jurisdiction to regulate their own process. The power as to what inferior
courts can do or cannot do is to be found within the four corners of the Act
that creates them, in the present case the Magistrates Court Act, and, in
particular, section 40(3) of the Magistrates Court Act [Chapter 7:10]. The learned
Judge further concluded that the common law position that the noting of an
appeal suspends the judgment appealed against does not apply to the Magistrates
Court. Consequently, the judgment in favour of Adam & Co was not
suspended by the noting of an appeal by Ritenote Printers.
The learned Judge further reasoned that because the noting of the appeal
did not suspend the learned magistrate's judgment, Adam & Co were entitled
to execute that judgment.
In my view, this is where the learned Judge erred.
(i) Firstly, the ruling of the magistrate, that her judgment had been
suspended by the noting of the appeal, though erroneous, was extant.
While that judgment was extant, Adam & Co could not act in
contravention of it. The learned Judge did not set aside the magistrate's
ruling. There was no appeal against that ruling. The
application before the learned Judge was simply to set aside the eviction and
attachment orders. The parties simply ignored it.
(ii) Secondly, section 40(3) of the Magistrates Court Act [Chapter 7:10] regulates the
issue of execution and stay of execution upon the noting of an
appeal.
It confers on the Magistrates Court the discretion to authorise
either.
That discretion is a judicial discretion to be exercised upon the making
of an application by either party. Thus, a party, in this case Adam
& Co, that wishes to execute despite the noting of an appeal, has to apply
to the magistrate for the magistrate to exercise the discretion in its favour
before it can execute the judgment.
Adam & Co made no such application, and, in my view, cannot execute
without an order authorising execution from the magistrate.
Equally, if the losing party, in this case, Ritenote Printers, wishes to
stay execution despite the noting of an appeal, it has to apply for such
relief.
This is what Ritenote Printers did.
Regrettably, the learned magistrate dismissed the application, on the
erroneous basis that the application was superfluous as her judgment had been
suspended by operation of law.
The effect of the magistrate's ruling is that Adam & Co cannot
execute against Ritenote Printers.
As I have already indicated, Adam & Co cannot, in terms of section 40(3)
of the Magistrates Court Act [Chapter 7:10],
execute until it has applied in terms of that section to execute its judgment
and that application has been successful. It has made no such
application. Consequently, in my view, it was not be entitled to execute.
In the result, I am satisfied that Ritenote Printers has established a prima facie right, which is
likely to be confirmed on appeal to this Court, entitling it to the interim
relief that it has sought in this Chamber application. Once the interim relief
is granted, the need to hear the appeal on an urgent basis falls away.
I would therefore grant the application and make the following order;
(1) Pending the determination of the appeal, the applicant is restored
to the occupation of the leased premises, being 109 Leopold Takawira
Street and 147 Mbuya Nehanda Street, Harare.
(2) The second respondent is ordered not to sell in execution any of the
property attached by it pending the determination of the appeal.
(3) Costs in this application will be costs in the
cause.
