Before GWAUNZA JA, in chambers in terms of r 5 of the Rules of The Supreme
Court, 1964.
This is an
application for condonation of the late filing of, and extension of time within
which to note, an appeal against a decision of the High Court, Harare.
The impugned decision ordered that the eviction
of the applicant and all those claiming occupation through him, from a part of the
land in question, which was allocated to the respondents by the Government
under the land reform programme. In
addition, the applicant was:
i)
ordered to return certain
farming equipment to the respondents;
ii)
ordered to surrender a portion of the
respondents' farm that he “unlawfully took” and
iii)
interdicted from going to
the respondent's two plots of land.
The disputed
premises include a farm house, other structures like barns, and some farming
equipment.
The factual background to the matter
is as follows:
The respondents were allocated Plot numbers 15 and 16 at
Earling Farm, Mvurwi in 2001 and 2009 respectively. The plots were consolidated and the respondents
are now holders of a 99 year lease in respect of the consolidated plots. The applicant was allocated Plot number 19 on
the same farm, that is, Earling Farm. Although
the disputed farmhouse and premises are situated on a piece of land which the
applicant calls 'the communal land' it is now common cause that the house is located on the respondents' plot of land. A bitter struggle ensued between the parties
over access to and control over this property. This resulted
in numerous court actions and applications with both sides seeking to secure
the right to occupy and use the house, structures and equipment in dispute. In 2014 the respondents sued the applicant for
eviction from the farm house and its premises on the basis that it was located
on their plot and therefore belonged to them. They also claimed tractors and equipment which
were on the same land. The applicant having filed an appearance to defend the
action, the respondents proceeded to apply for summary judgment against him. The application was determined in their favour.
Upon the realisation that the Sheriff
was going to evict him from the disputed premises and that he was out of time in
terms of noting an appeal against the order which the Sheriff meant to execute
on the respondents' behalf, the applicant filed the present application. This was on the 1 September 2015. As he was waiting for the set down of this
application, he made an urgent chamber application before this court for stay
of execution in a bid to stop the eviction. The urgent chamber application was placed
before Chidyausiku CJ, who dismissed it, with the result that there remained no
legal bar to the respondent's execution of the order of eviction against the
appellant. Accordingly the
respondents proceeded to instruct the Sherriff to execute the order.
At the hearing
before me, the respondents raised a point
in limine, to the effect that the appellant should not be heard, since he was
approaching the court with dirty hands. This was because, they allege, the applicant
had failed, refused and/or neglected to comply with a lawful order of the court
and had on several occasions successfully resisted the execution of the same
order by the Sheriff. Realising that the
applicant was being obstinate by resisting the Sheriff's efforts to execute the
eviction order and interdict, the respondents filed an application before the
High Court seeking an order directing the relevant police authorities to assist
the Sheriff in executing the order in question. They were successful in this application,
which was granted by Makoni J under case no. HC 4585/16. The respondents submit that when the Sheriff
went back to execute the order, the applicant and his agents again resisted his
efforts, prompting the Sheriff to seek the assistance of the police, as ordered
by the High Court. The police for some
unknown reason, refused to offer the assistance sought. The respondents submit that to date the
applicant has not complied with the order of the court of the 22 January 2015. They charge that instead, he has been in and
out of court trying to find legal ways to justify his failure to comply with
the court order. He filed an urgent
chamber application before the High Court under case no. HC 10414/15 and the
matter was held not to be urgent. As if
that was not enough the applicant filed another urgent chamber application under
case no. HC 3648/16 which was dismissed by Mafusire J on the basis that he had
dirty hands after failing to comply with a lawful order of the court through
resisting execution of the order by the Sheriff. The respondents aver that even though the applicant was ordered to purge his contempt by
complying with the order of the court, he remains obdurate to this day.
The applicant does
not deny that he has not complied with the order of eviction as alleged, although
before me, his counsel Mr Chimwarombe,
submitted that his instructions were to the effect that the applicant had, that
very morning, vacated the house and premises in question. However, his workers were still there working
at and around the premises. Besides this
averment being vehemently disputed by the respondents, it also clearly amounts
to an admission that, even if he himself had truly vacated the farm house, he
had still not fully complied with the order. The order of eviction compelled both
the applicant and “all those claiming occupation through him” to vacate the
premises. His workers clearly fall into
this category.
The applicant contents
that the doctrine of dirty hands was inapplicable in this matter because there was
no law which required him to comply with an order of the court before
approaching the court for redress. This
contention in my view is fallacious, besides being devoid of any legal basis. As indicated above, the effect of Chidyausiku
CJ's dismissal of the applicant's application for stay of execution pending the
appeal in question, was to remove any legal barrier to the execution of the
impugned High Court decision notwithstanding the pending appeal. To the extent that a court order has the force
of law, it is the 'the law' that requires the applicant to comply with the
order in question before approaching this court for the type of release that he
seeks.
Accordingly, the
failure of the applicant to comply with or allow the Sheriff to fully enforce a
lawful order of the court has the effect of tainting his hands with legal dirt.
Such dirty hands can only be cleansed upon his compliance with the court order
in question. It hardly needs emphasizing that, even if one may not agree with a
court order and as long as it is extant, and execution thereof has not been
stayed, one is obliged to comply with it before seeking to pursue other legal
remedies. This is a point emphasized in the
case of Econet Wireless (Private) Limited
v The Minister of Public Service Labour and Social Welfare and Others, where
Bhunu J (as he then was) correctly explained the rationale for a party to obey
the law (court order) pending the determination of its validity. It is simply that the impugned court order
enjoys a presumption of validity until declared otherwise by a competent court
of law. This has not happened in casu. Further rationale for applying the dirty hands
doctrine is succinctly articulated by Chidyausiku CJ in Associated Newspapers of Zimbabwe (Pvt) Ltd v Minister of State for
Information and Publicity & Ors, as follows:
“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 submit itself to the law and approach this court
with clean hands on the same papers.” (my emphasis)
The same principle
is persuasively stated thus, albeit
in different words, in the case of Naval
Phase Farming (Pvt) Ltd and Ors v Min of Lands and Rural Resettlement and Ors:
“….
(the dirty hands principle) … is a principle that people are not allowed to come
to court seeking the court's assistance if they are guilty of a lack of probity
or honesty in respect of the circumstances which cause them to seek relief
from the court. The kind of conduct
which the court penalizes by withholding its protection is conduct involving
moral obliquity……” (my emphasis)
I find all these statements
of the law to be eminently apposite to the circumstances of this case. The applicant has openly and with impunity
demonstrated disdain for the High Court and the order it made against him. Directly or through the assistance of others
like the police, he has thus openly subverted due process of the law. Despite this, he has the temerity to turn to
this court for relief that would result in the court effectively 'condoning' or
turning a blind eye to this open defiance of an order of the court. The appellant's conduct in my view smacks of
double standards as it amounts to an attempt by him to close the door to
justice against his opponents, while expecting the same door to be opened
widely for him. It is in short, and on
the basis of the authorities cited above, conduct that attracts serious censure
from this court.
Against this
background, I find that the doctrine of dirty hands was properly invoked
against the applicant. This Court accordingly
withholds its jurisdiction until such time as the applicant has purged his
contempt by submitting himself to the law, in this case, the High Court order
in case no. HC 14342/12.
It is in the
result ordered as follows;
1. The
point in limine raised by the
respondents be and is hereby upheld.
2. The
application be and is hereby dismissed with costs.
Mberi
Chimwamurombe, applicant's legal practitioners
Mugiya & Mucharaga, respondent's legal
practitioners
