Urgent
Chamber Application
MUSAKWA
J:
This
is an urgent chamber application for stay of execution pending the
determination of action proceedings instituted by the applicant in
case number HC 3331/18.
It
is common cause that in case number SC18/18 the applicant lost in an
appeal that had been lodged with the Supreme Court by the
respondents. Judgment in case number SC18/18 was granted on 18 March
2018.
The
background to the saga is that the applicant's late husband
(Dzingai Kashumba) and the fourth respondent entered into an
agreement of sale in respect of Stand number 552 of Quinnington
Township of Subdivision A of Subdivision F of Quinnington Borrowdale
Estate. The fourth respondent instituted proceedings for confirmation
of cancellation of the agreement on the basis that Dzingai Kashumba
had not paid the purchase price in full. The applicant became a party
to those proceedings upon substitution following the death of Dzingai
Kashumba. At some stage the applicant sold a portion of the land to
one Tafirenyika Kambarami.
In
SC18/18 the Supreme Court held that title in the land had not
lawfully passed to Dzingai Kashumba and consequently, to the
applicant. As a result the applicant could not lawfully alienate the
property. It was also observed by the Supreme Court that when the
applicant disposed of the land she had misrepresented that it was
free of disputes.
Ultimately,
the Supreme Court made the following order:
1.
The Registrar was ordered to cancel the deed of transfers in favour
of Tafirenyika Kambarami and the late Dzingai Kashumba.
2.
The first appellant was entitled to keep as rouwkoop payments made to
her by the late Dzingai Kashumba.
3.
The first respondent (the present applicant) and the fourth
respondent were ordered to vacate Stands 552 and 553 Quinnington
Township of Subdivision A of Subdivision F of Quinnington Borrowdale
Estate within thirty days of the order, failing which the Sheriff or
his lawful deputy or assistant deputies were authorised and directed
to evict the respondents and all those claiming occupation through
them.
4.
The Registrar was ordered to reinstate title to the second, third and
fourth appellants (first, second and third respondents in the present
application).
In
opposing the application the respondents raised preliminary points
touching on urgency, jurisdiction and res
judicata.
The
respondents' argument concerning jurisdiction is that this court
has no authority to suspend an order of the Supreme Court.
Mr
Zhuwarara
countered this argument in a two-fold manner. Firstly, he submitted
that the High Court has power to control execution of judgments
emanating from it. In support thereof he cited the case of The
President of The Republic of Zimbabwe v
Abednico Bhebhe and Others
HH400-12. His other submission was that section 74 of the
Constitution should be respected.
In
The President of The
Republic of Zimbabwe v
Abednico
Bhebhe and Others supra
Chiweshe
JP made a distinction between a Supreme Court order which confirms
the order of the High Court and that which alters the order appealed
against materially. The Judge President further reasoned that where
the High Court order is confirmed by the Supreme Court it essentially
remains an order of the former court. Since I am not going to grant
the relief sought for other reasons I need not occupy myself with the
question of whether or not I have jurisdiction to stay the order of
the Supreme Court.
On
res
judicata
Mr Chiutsi
submitted that the relief being pursued by the applicant was
effectively disposed of by the Supreme Court when it held that the
relief of rei
vindicatio
overrides a plea for mercy. Mr Chiutsi
was emphatic that once a case of rei
vindicatio
was upheld in favour of the respondents, any occupier of the premises
must vacate them.
On
the other hand Mr Zhuwarara
submitted that the defendants' defence in the pending case is not
known. The main concern is that the applicant will be rendered
homeless if eviction is carried out. In addition to that, if the
applicant is not protected from eviction the pending case would be
rendered brutum
fulmen.
Mr Zhuwarara
further submitted that even if the applicant's late husband acted
illegally the applicant is still entitled to sue for the improvements
done to the property. As authority in support of this proposition Mr
Zhuwarara
cited the cases of Fantasie
Farms (Pvt) Ltd and Others v
(A) F.T. Manyeruke and Others (B) (1) Hippo Valley Estates Limited
(2) Triangle Limited (Additional Respondents)
SC-65-07 and Quarry
Enterprises (Pvt) Ltd v
John Viol (Pvt) Ltd and Others
1985 (1) ZLR 77 (HC).
Even
if the applicant is entitled to claim compensation for improvements,
this is not a matter for determination before me. Whether or not the
applicant has a valid claim is irrelevant. This is because the
Supreme Court ordered her eviction from the premises. That puts paid
to the applicant's claim of retention of the property pending
determination of the claim for compensation for improvements.
This
brings me to the issue of whether the matter is urgent. The applicant
claims to have become aware of eviction when notice of removal was
served her on 10 May 2018. Surely, that cannot be the time when the
need to act on her part arose.
The impression given is that the applicant was not aware of when the
Supreme Court handed down its judgment. She sought to sanitise the
purported ignorance of the order of eviction by making the following
innocuous averment in the founding affidavit -
“On
the 12th
March 2018 the Supreme Court, in SC18/18, issued out an order in
terms of which the 1st
to 3rd
respondents were adjudged to be the lawful owners of a certain
property being Stand 552 of Quinnington Township of Subdivision A of
Subdivision F of Quinnington Borrowdale Estate measuring 4,002 square
metres. Attached is a copy of the attendant determination.”
And
yet in the pending claim for compensation (HC331/18) which was filed
on 25 April 2018, the applicant made the following averment about the
Supreme Court order in her declaration -
“………….It
altered the judgment of this court and ordered the plaintiff's
vacation of the property.”
Therefore,
as of 25 April 2018 the applicant was aware of the order for her
eviction. The order for eviction was made on 12 March 2018.
Therefore, the applicant was sluggish in treating the matter as
urgent. The matter did not become urgent on account of the service of
the notice of removal on the applicant on 10 May 2018. This is a
clear case of self-created urgency.
In
the result, the matter is adjudged not to be urgent. The Registrar is
directed to remove the matter from the roll of urgent matters. The
applicant is ordered to pay the respondents' costs.
Kantor
& Immerman,
applicant's legal practitioners
P.
Chiutsi Legal Practitioners,
respondents' legal practitioners
1.
Kuvarega v Registrar General 1998 (1) ZLR 188
