MATHONSI
J: The
magistrates court sitting at Hwange granted summary judgment for the
eviction of the present applicant from premises known as No. 730
Mpumalanga, Hwange which belong to the first respondent, on a date
which is not apparent from the papers before me. The applicant made
an application before that court for the rescission of the summary
judgment order.
On
22 March 2016 the magistrates court directed that the application for
rescission of judgment be heard in the normal way on the set down
date of 7 April 2016. The applicant would have none of it. He
immediately noted an appeal to this court on 24 March 2016 against
the directions of the magistrates court which notice of appeal he
then used as a weapon to ward off eviction from the premises,
supremely confident that the noting of an appeal had suspended the
summary judgment for his eviction. He had not reckoned on the
predatory instincts of the first respondent who immediately
instructed the messenger of court to proceed with eviction and the
recovery of the sum of $754-00 representing arrear rentals and
execution costs.
Acting
by virtue of a writ of eviction and execution, the messenger of court
evicted the applicant from the premises on 1 April 2016 casting aside
the notice of appeal which the applicant wielded as defence against
eviction. As he closed in on the applicant's property to recover
the outstanding money, the applicant quickly capitulated and paid the
required sum of $754-00.
Distraught
and obviously with wounded pride having been outplayed at his game
the applicant looked up to this court launching an urgent
“application for spoliation arising out of the respondent's
conduct.” The application is anchored on the fact that the
respondents have taken the law into their hands by executing a
judgment which has been appealed against. The appeal suspended that
judgment and as such the eviction was unlawful and constituted an act
of spoliation entitling the applicant to restoration of the status
quo ante.
On
those facts the applicant has moved for a provisional order in the
following terms:
“TERMS
OF THE FINAL ORDER SOUGHT
That
you show cause why an order in the following terms should not be
granted:
-
The
execution of the judgment granted in favour of first respondent by a
magistrate at Hwange on the 22nd
of March 2016 under case number Gt27/16 should not be stayed pending
the final determination of the appeal lodged by applicant in this
court number HCA 29/16.
-
That
the 1st
and 2nd
respondents bear the costs of this application.
INTERIM
RELIEF GRANTED
Pending
return date, applicant is granted the following relief;
-
The
1st
and 2nd
respondents are ordered to restore applicant into undisturbed
occupation of House No. 730 Empumalanga, Hwange.
-
All
the goods attached and/or cash paid in lieu thereof on the 1st
of April 2016 be and are hereby restored to applicant.”
It
is significant that the applicant has not attempted to set out any
basis for contesting his eviction from the premises, content to only
rely on the noting of an appeal, an appeal noted not against the
eviction order but ostensibly against the dismissal of his
application for rescission of judgment when in fact the magistrate
had only issued directions. That is exactly where the applicant has
missed the point as Mr Mguni
who appeared on his behalf, to his credit, conceded. First there
was the order for eviction, then there was the order dismissing the
application for rescission of judgment.
In
fact, the applicant's situation became even more untenable when Ms
Sarimana
for the first respondent made her submissions. She painted a grim
picture of the applicant as an unrepentant dismissed employee whose
forte of late has been to file endless unreasonable applications out
of the magistrates court in Hwange which applications he has not
bothered to prosecute.
According
to Ms Sarimana,
the applicant filed two applications for stay of execution and two
applications for rescission of judgment which he set down for hearing
in April and May 2016 clearly intending to delay the day of
reckoning. Inexplicably he then demanded to be heard by a magistrate
on an urgent basis on 22 March 2016, when his were ordinary
applications which could not be entertained on an urgent basis. When
the magistrate gave directions that the matters be dealt with on the
set down date, that is 7 April 2016, the applicant seized that
opportunity to note an appeal against that directive which could not
possibly be appealed against.
It
is that appeal which the applicant later sought to rely upon to ward
off execution. Surprisingly when the date of hearing (7 April 2016)
came, the applicant did not bother to attend court and his
applications were systematically dismissed.
Mr
Mguni
conceded that the applicant could not appeal against the directions
issued on 22 March 2016 as if they were a definitive determination of
the matter. Clearly therefore if ever there was a suspension of an
order by the noting of an appeal, it was the directive in question, a
patently meaningless exercise. It was a useless appeal meant to
accord the applicant a weapon to delay eviction but spectacularly
misplaced leaving him exposed in respect of the eviction order which
remains effectual and binding. This is a classic case of closing the
back door while leaving the front door open and the applicant very
wide open for a sucker punch.
This
is an application for a mandament
van spolie.
The purpose of such remedy is to preserve law and order and to
discourage persons from taking the law into their own hands no matter
how much of a right they have in the property possessed by another.
See Chisveto
v Minister
of Local Government and Town Planning
1984 (1) ZLR 240 (H) 250 A – D. While it is true that when
inquiring into whether spoliatory relief should be granted or not,
the lawfulness or otherwise of the applicant's possession does not
come into it, it is also a fact that in order to succeed the
applicant for such relief must establish that dispossession was done
forcibly or that there was wrongful interference with possession of a
thing. See Hortbac
(Pvt) Ltd t/a Little Flower Enterprises
v Officer
in Charge ZRP Goromonzi and Others
HH 569/15.
It
is the last leg of that inquiry which brings this application to its
knees. The applicant was evicted by virtue of a court order. It is
trite that a lessor who cannot obtain ejectment by process of law
cannot be allowed to take the law into his own hands and secure
possession which could not be obtained in law. But that is as far as
it goes and not further. Even where the applicant was a statutory
tenant, a situation which may not obtain in this case where
apparently there were rent arrears, if he has lost possession he does
not have the right to regain it merely because he has appealed. This
is because the eviction was obtained through a lawful court order.
The
situation of restoration of the status
quo
in cases of wrongful eviction through a court order appealed against
but reversed on appeal was discussed extensively by GUBBAY
CJ in
Delco
(Pvt) Ltd v
Old
Mutual Properties and Another 1998 (2) ZLR 130
(S) where at 134 B – C the learned Chief Justice pronounced:
“Both
majority judgments (By BARRY
JP and
DE VILLIERS J in
Makhebedu
& Another v
Ebrahim
1947(3) SA 155 (T)) approved the proposition enunciated by CLAYDEN
J
that a statutory lessee who had been evicted by process of law is not
entitled to be given possession of the premises against the lessor
who has re-occupied if it is subsequently shown that the process of
law was based on a wrong judgment (see respectively at pp160 and
169)”
Let
me point out here for completeness that where an evictee has lost
occupation of the premises by virtue of a judgment which was a
nullity he or she is entitled to reinstatement because such an
evictee may be regarded as being still in possession as the process
was a nullity. See Maisel
v Camberleigh
Court (Pty) Ltd
1953 (4) SA 371 (C) (quoted with approval in Delco
(Pvt) Ltd, supra)
To
that should be added the proposition that where the evictee has
appealed against the eviction order such an appeal would suspend the
operation of that eviction order thereby preserving the right of
occupation. To the extent that execution of a suspended order would
itself be a nullity one could safely say that the evictee under those
circumstances would be regarded as being still in possession and
therefore entitled to restoration.
Unfortunately
that is not the case with the present applicant. True enough he
appealed but not against the eviction order. He only appealed
against directions given by a magistrate which were merely
interlocutory and not definitive in determining the matter. That
appeal left the eviction order intact, lawful and binding. Its
execution was therefore proper and lawful. This application has
therefore been an exercise in futility and completely misplaced.
Ms
Sarimana
asked for costs on a punitive scale because of the applicant's
reprehensible conduct which dates back a long time.
He
has been filing applications he has not prosecuted and also filed a
meaningless and unnecessary appeal. I agree that there must be
consequences dire to a litigant who thinks he can abuse the process
of the court to avoid the inevitable. Not only was this application
a sheer waste of time, the applicant has been shown to be a litigant
that wants to play football with the court.
Accordingly
the application is hereby dismissed with costs on the scale of legal
practitioners and client.
Dube,
Mguni & Dube Legal Practitioners,
applicant's legal practitioners
Coghlan
& Welsh,
1st
respondent's legal practitioners
