CHIWESHE JP: The applicants seek an order declaring the
respondent liable for contempt of court.
It is proposed that the respondent be committed to prison for a period
of thirty days wholly suspended on condition that the respondent and all those
claiming through her shall within twenty four hours of this order vacate stand
1089 Tynwald, Harare.
The
background facts to this application are as follows. The first applicant and the respondent
entered into an agreement in which the first applicant leased stand 1089
Tynwald to the respondent. At some stage
during or after the subsistence of the lease, the first applicant sought to
evict the respondent from this property.
The respondent approached the Magistrates Court and obtained an order
interdicting the first applicant from unlawfully evicting her pending the
termination of the lease agreement. All
the applicants were ordered not to disturb the respondent's peaceful possession
and use of the property.
Displeased
with that turn of events, the applicants filed an appeal challenging the
magistrate's decision. The notice of
appeal was served on the respondent's legal practitioners. There are two irreconcilable versions of
events that took place after the filing of the notice of appeal. The applicants state that the respondent then
forcibly reoccupied the property. This
according to them amounted to contempt of court as the appeal so noted would
have suspended the magistrate's decision.
It is for this reason that the applicants have filed the present
application for contempt of court.
On
the other hand the respondent avers that she was always in occupation of the
property. The applicants would have
evicted her but for the intervention of the Magistrates Court. She denies having abandoned the property let
alone using force to reoccupy the same.
She states that she was a lawful tenant occupying on a rent to buy
basis. She had previously bought other
properties from the first applicant on a similar rent to buy basis.
These
two versions disclose serious disputes of fact which cannot be resolved on the
papers as they stand. In that regard the
present application is ill conceived. It
should have been brought by way of action.
In
any event I would expect that a reasonable magistrate would have been satisfied
before issuing the order that there was an agreement of lease or at least that
the respondent was in peaceful and undisturbed possession of the property. Her removal under such circumstances would
have required her consent or an order of court.
From the papers it is clear that the applicants neither obtained her
consent nor a court order. The
magistrate's order did not determine the rights of the parties - those she
clearly said should be determined in a different forum in terms of the lease
agreement, if any. On paper, I cannot
find fault with her reasoning.
There
being no other court order to fall back on, what would the parties' rights be
pending appeal? If the respondent was
in occupation she would be entitled to remain in occupation pending disposal of
that appeal. She would not be held to be
in contempt of court.
However,
the applicants aver that she had abandoned the property at the time the magistrate
issued the interdict against them. As
already stated the resultant dispute of fact between the parties cannot be
resolved on the papers.
The
applicant has also detailed the manner in which it is alleged the respondent
breached the lease agreement. The
respondent does not agree with those factual averments. In any event such averments would be irrelevant
to the present application which hinges solely on whether the respondent was in
contempt of court in view of the pending appeal against the magistrate's
decision.
As
already pointed out this application cannot succeed. The factual disputes cannot be resolved
without hearing viva voce evidence.
In
the result it is ordered that the application be and is hereby dismissed with
costs.
F.M.
Katsande & Partners, applicants' legal practitioners
Warara & Associates, respondent's legal
practitioners
