Urgent
Chamber Application
NDOU
J:
The
applicant seeks stay of execution of the order of this court granted
on 16 February 2012 under case number HC3351/11.
The
background facts of the matter are the following.
Under
HC3351/11, the 1st
respondent obtained an order against the applicant for the payment of
US$9,099,00 arrear rentals (plus interest on the said amount),
cancellation of lease agreement between the applicant and the 1st
respondent and eviction of the applicant from rented property, being
112A Fenleigh Building, Fife Street, Bulawayo. This order was granted
by default on 16 February 2012 after the applicant had been barred on
30 January 2012.
What
is apparent from the papers is that the summons were served on the
applicant on 2 November 2011. The applicant entered an appearance to
defend on 5 December 2011. The applicant did not file the plea.
Consequently, on 20 January 2012, the 1st
respondent filed a notice of intention to bar and served it on the
applicant's legal practitioners the same day. Still no plea was
filed. As a result, the applicant was duly barred on 30 January 2012
leading to the application of the above-mentioned default judgment.
Under
HC551/12 the applicant filed an application for rescission on 21
February 2012. This application is opposed by the 1st
respondent. The answering affidavit and heads of argument have been
filed in the latter application. That matter is awaiting set down.
The major hurdle facing the applicant is that this urgent application
was filed after the Deputy Sheriff had acted pursuant to writs issued
under HC3351/11. The applicant seeks in essence the return of the
attached property and reversal of the writ of ejectment filed on
pages 12 and 13 of this application.
It
is trite law that an interim interdict is not a remedy for past
invasions of rights and will not be granted to a person whose rights
in a thing have already been taken away from him by operation of law
at the time he or she makes an application for interim relief. An
interdict is sought to protect rights in property. An application for
interim interdict for property already taken away from the applicant
may not be granted –Meyer v Meyer 1948 (1) SA 484 (T); Stauffer
Chemicals v Monsanto Co 1988 (1) SA 805 (T) at 809F-G; and Airfield
Investments (Pvt) Ltd v Minister of Lands & Ors 2004 (1) ZLR 511
(S) at 517F-H.
For
this reason alone the application should fail. Accordingly, the
application is dismissed with costs.
Moyo
& Nyoni, applicant's legal practitioners
Danzinger
& Partners,1st respondent's legal practitioners
