Before:
CHIDYAUSIKU CJ, In Chambers
This
is an urgent chamber application seeking the stay of execution of a
High Court judgment pending an appeal noted under SC255/14. When this
matter was set down before me on 12 June 2014 I dismissed the
application with costs and intimated to the parties that the reasons
would follow in due course. These are they.
The
background of the dispute is as follows.
The
applicant has been a lessee of the first respondent since 9 October
1978. The first respondent and Greatermans Stores (Rhodesia) Limited
entered into a notarial deed of lease agreement in 1968, which lease
was renewed from time to time. Greatermans Stores (Pvt) Ltd then, by
notarial deed, assigned the lease to the applicant, who then became
the first respondent's tenant. There has been litigation between
the parties before. Suffice it to say that, in terms of an arbitral
award dated 18 June 2009, the lease between the parties was to end on
28 February 2014.
On
1 October 2010 one of the applicant's directors wrote to the first
respondent, indicating that it would not contest the first
respondent's right to take back the premises at the expiry of the
lease, that is on 28 February 2014. On 29 January 2014 the
applicant's lawyers wrote to the first respondent's lawyers,
indicating that the letter of 1 October 2010 did not have the effect
of waiving its right to occupation of the premises beyond 28 February
2014. The first respondent responded by informing the applicant that
it had always been the understanding between the parties that the
premises would be vacated by 28 February 2014 and that the applicant
had actually allowed the first respondent's personnel to visit the
premises in 2013 to prepare for the restructuring and refurbishment
of the premises. The parties could not agree and the applicant stated
that it would remain in occupation of the premises as a statutory
tenant.
On
3 March 2014 the first respondent issued summons for ejectment out of
the High Court and served the summons on a receptionist in the
applicant's employ at Jaggers Msasa, along Mutare Road. The
receptionist refused to accept service and a copy was left on her
desk. The applicant did not defend the matter and default judgment
was entered against it on 6 May 2014. The allegation is that there
was no proper service on it of the summons and it did not know that
it was being sued for eviction. A writ of execution was drawn up and
the applicant was evicted by the second respondent on 16 May 2014.
The
applicant proceeded to file an application for rescission of judgment
under HC4562/14 and filed an urgent chamber application for stay of
execution under HC4018/14. The application for stay of execution was
dismissed by the High Court and the applicant noted an appeal before
this Court under SC255/14. That appeal is yet to be heard. The
applicant has filed this application for stay of execution pending
the hearing of that appeal.
The
applicant needs to lay a strong case for the grant of the relief
sought. The summons was served on one Nancy Mazodze, who refused to
accept service. The applicant has tried to disown this version of
events, as detailed by the second respondent.
The
law is settled that in order to disprove the contents of a return of
service prepared by the Sheriff, there is need for positive evidence
to rebut the presumption of regularity of a return of service which
is in the prescribed format.
In
Gundani
v Kanyemba
1988 (1) ZLR 226 (S) Gubbay
JA (as
he then was) had this to say at 230E-231A:
“I
am satisfied, therefore, that the Messenger's return, stating as it
did that personal service of the summons had been effected on 9
February 1985, cast the onus
upon the appellant to prove, by the adduction of clear and
satisfactory evidence, that the return was wrong. In other words, it
was for the appellant to rebut the presumption of personal service
arising from what was contained in the Messenger's return.
It
was Mr Rajah's alternative contention that the appellant's bald
allegation that the summons was not served upon him was sufficient to
discharge the onus
or rebut the presumption. I am unable to agree. The appellant did not
claim to be at his place of employment on the morning of Saturday, 9
February 1985. Nor did he even profess an inability to remember
precisely where he was or what he was doing. But assuming he suffered
a lapse of memory (which would be understandable for the summons in
question was allegedly served nine months before the civil
imprisonment summons), he could nonetheless have given some
indication to the court, supported by the affidavit of a third party,
of how he normally spends his Saturday mornings. For instance,
whether he usually goes shopping, plays sport, visits relatives, or
takes the children to the park. No attempt was made to say where he
thought he may have been on the morning in question.”
The
maxim omnia
praesumuntur rite esse acta
applies to a return of service effected by the Messenger of the
Court; Gundani
v
Kanyemba
supra.
The
applicant's version is that the summons was never served on it. It
said that the receptionist, on whom the second respondent says it
served it, was not authorised to accept service of legal process.
There is no affidavit from the applicant explaining who was
authorised to accept service on behalf of the applicant. In the
absence of such an explanation, there is no reasonable explanation to
disprove the version of events as stated by the second respondent.
The
applicant in its founding affidavit alleged that the application was
for stay of execution pending the appeal noted under case number
SC255/14. There is an apparent defect on the notice of appeal. It
does not state the court which gave the judgment appealed against.
This is a fatal defect incapable of amendment. The authorities are
clear on this. The attempt by the applicant's counsel to file an
amendment is at best regrettable. This does, however, create an
insurmountable problem for the applicant. The application is
predicated on the validity of that notice of appeal. The notice of
appeal, defective as it is, makes it difficult for the applicant to
move its application because it has no founding basis at all. The
application can be disposed of on this point and on other points as
well.
I
now move on to the other aspects of the application. In Zimbabwe
Open University
v
Magaramombe and Anor
2012 (1) ZLR 397 (S), I had occasion to comment as follows at 402A-E:
“In this Chamber application,
as I have already stated, the University seeks the relief that the
appeal be set down on an urgent basis and that the execution of the
arbitral award be stayed pending the hearing of the appeal. Two
issues fall for determination in this Chamber application –
(1) whether or not this matter
should be set down on an urgent basis; and
(2) whether or not the University
is entitled to the interim relief of a stay of execution of the
arbitral award pending the determination of the appeal.
I will deal with the second issue
first, namely, the entitlement of the University to the interim
relief of a stay of execution.
The factors to be taken into
account in considering the grant of interim relief are now well
settled. These are –
(1) whether or not the party
seeking the relief has a prima
facie right, in
casu, whether the
University has a prima
facie right to stay
the execution of the sale of the attached property pending the
determination of the appeal;
(2) whether or not the applicant,
in this case the University, will suffer irreparable harm if
execution of the arbitral award is not stayed and the appeal
succeeds; and
(3)
the balance of convenience.”
The
first aspect would relate to the presence or otherwise of a prima
facie
right.
The
writ in question, as already noted, was issued pursuant to a default
judgment. There is no reasonable explanation for the default in the
application before me. The relationship between the applicant and the
first respondent was governed by a lease which terminated by
effluxion of time on 28 February 2014. The prima
facie
right can only arise if there was some right for the applicant to
stay on the first respondent's premises beyond 28 February 2014.
The
applicant claims it became a statutory tenant after 28 February 2014.
The first respondent claims that the applicant could not have become
a statutory tenant because there was a prior agreement that the
applicant would vacate its premises on 28 February 2014 and that
there would be no renewal of the lease. There is, therefore, a need
to look at the circumstances surrounding the interactions of the
parties to get to understand the true nature of the relationship
between the parties.
On
1 October 2010 one B J Beaumont wrote to the first respondent on
behalf of the applicant, indicating that it would not contest the
first respondent's right to take back its premises upon the expiry
of the lease, that is on 28 February 2014. The subsequent letters by
the applicant's legal practitioner to the first respondent,
indicating that the applicant would not vacate the property, are
clearly at variance with the position indicated on 1 October 2010.
The first respondent strenuously resisted the applicant's claims
that there would be a lease beyond 28 February 2014. In light of the
indications made in 2010 and in light of the first respondent's
resistance of a further lease, whether by way of statutory tenancy or
otherwise, the only reasonable conclusion is that there was an
understanding between the parties that their relationship would end
on 28 February 2014. That being the case, the applicant had no right
to occupy the premises post the expiry of the lease on 28 February
2014.
The
applicant has not shown a prima
facie
right to protect here. It needed to show that, on the face of it, it
was entitled to occupation of the premises beyond 28 February 2014.
Assuming that the applicant had indeed turned to being a statutory
tenant, it would have no right at all to be reinstated into the
premises since it had lost possession of the premises. This point
will be dealt with below. All this goes to show that the applicant
has no prima
facie
right to protect, whichever way one looks at the matter.
The
law is settled that an application is decided on the basis upon which
it is made. It stands or falls on its founding affidavit. In Muchini
v
Elizabeth Mary Adams and Others
2013 (1) ZLR 67 (S) Ziyambi
ja
opined at 70A-E:
“It
is trite that an application stands or falls on the averments made in
the founding affidavit. See Herbstein & van Winsen, Civil
Practice of the Superior Courts in South Africa
3ed p80 where the authors state:
'The
general rule, however, which has been laid down repeatedly is that an
applicant must stand or fall by his founding affidavit and the facts
alleged therein, and that although sometimes it is permissible to
supplement the allegations contained in that affidavit, still the
main foundation of the application is the allegation of facts stated
therein, because these are the facts which the respondent is called
upon either to affirm or deny. If the applicant merely sets out a
skeleton case in his supporting affidavits any fortifying paragraphs
in his replying affidavits will be struck out'.
This
was the principle applied by the court a
quo.
It said:
'In
his founding affidavit, the appellant submitted that the sale should
be upheld because the widow or first respondent 'had ostensible
authority to dispose of the property by virtue of being the surviving
spouse of the late Alvin Roy Adams.' Now, in law, the applicant's
case falls or stands upon what is said in the founding affidavit. It
cannot be propped up by what may chance in the respondent's
opposition. However, the issue of ostensible authority seems to have
been abandoned during the proceedings in the court a
quo.
It certainly is not part of the grounds of appeal. On this basis
alone, the conclusion would have been inescapable that the sale of
the property fell foul of the peremptory provisions of section 21 of
the Administration of Deceased Estates Act [Chapter
6:01].'
In
my view, the stance adopted by both courts below is unassailable.”
Applying
this principle to this case, in light of the facts of this case, the
applicant would be treading on thin ice indeed. The application, by
the applicant's own words, is one for stay of execution pending the
determination of an appeal. The execution has already taken place.
The applicant in its founding affidavit conceded that execution has
already taken place and it has been ejected. At any rate, the first
respondent, in its notice of opposition, confirmed this position and
attached various pictures which show that the applicant is no longer
in possession of the premises.
In
the light of the fact that execution has already taken place and that
this is an application for stay of execution, there can be no prima
facie
right to protect because the “right” to occupy the premises was
already interfered with by a lawful process of court. There can be no
stay of something that has already happened.
The
applicant knew, at the time the application for stay of execution
pending the application for rescission was filed, that it had already
been evicted. It knew as at that point that execution could not be
stayed. In fact, its founding affidavit also shows that the applicant
pursued the wrong relief in the court a
quo
as well.
The
applicant's right to occupy the premises would have had to be based
on a lease with the first respondent. The lease in question was due
to end on 28 February 2014, by virtue of effluxion of time. The
applicant wrote to the first respondent, unequivocally confirming
that it would vacate the premises on 28 February 2014 should the
first respondent wish to repossess it.
The
applicant alleged that it had become a statutory tenant and therefore
protected by sections 22 and 23 of the Commercial Premises (Rent)
Regulations 1983 SI 676/1983 (“the Regulations”). Section 22(2)
of the Regulations provides as follows:
“22.
Limitation on ejectment
(2)
No order for the recovery of possession of commercial premises or for
the ejectment of a lessee therefrom which is based on the fact of the
lease having expired, either by the effluxion of time or in
consequence of notice duly given by the lessor, shall be made by a
court, so long as the lessee -
(a)
continues to pay the rent due, within seven days of due date; and
(b)
performs the other conditions of the lease;
unless
the court is satisfied that the lessor has good and sufficient
grounds for requiring such order other than that -
(i)
the lessee has declined to agree to an increase in rent; or
(ii)
the lessor wishes to lease the premises to some other person.”
Section
23 of the Regulations provides:
“23.
Rights and duties of statutory tenant
A
lessee who, by virtue of section 22, retains possession of any
commercial premises shall, so long as he retains possession, observe
and be entitled to the benefit of all the terms and conditions of the
original contract of lease, so far as the same are consistent with
the provisions of these regulations, and shall be entitled to give up
possession of the premises only on giving such notice as would have
been required under the contract of lease or, if no notice would have
been so required, on giving reasonable notice:
Provided
that, notwithstanding anything contained in the contract of lease, a
lessor who obtains an order for recovery of possession of the
premises or for the ejectment of a lessee retaining possession as
aforesaid shall not be required to give any notice to vacate to the
lessee.”
The
applicant in the same affidavit avers that it has been ejected. It
would mean at law therefore that it has no right to be reinstated
into the premises. In Delco
(Pvt) Ltd v
Old Mutual Properties and Anor
1998 (2) ZLR 130 (S), Gubbay
cj
held at 135A-D:
“The
Makhubedu
cases [1947 (1) SA 19 (W) and 1947 (3) SA 155 (T)] did not have to
decide what the position would have been if the magistrate's judgment
had been a nullity without any force and effect ab
initio
or at the time of execution. Yet, the remarks of barry
jp
at p60, in reference to Brown
v Draper
[1944] 1 KB 309, seem to indicate that in such an event the evictee
perhaps could be treated as being still in possession. Subsequently,
in Maisel
v Camberleigh
Court (Pty) Ltd
1953 (4) SA 371 (C), it was held that a statutory lessee who had lost
occupation of premises by virtue of a judgment which was a nullity
was entitled to be reinstated (see at 379, per
watermeyer
aj).
In
my opinion, the law as expounded in the Makhubedu
judgments is wholly applicable to the present matter. I perceive of
no basis upon which to adopt a different interpretation to section
22(2) as read with section 23 of the Regulations. The purpose behind
the two sets of provisions is identical. It is to protect the right
of the statutory lessee in actual physical possession of premises to
resist eviction; and not the right to regain occupation of premises
lost through ejectment under a wrong judgment or order.
The
reversal, on appeal, of the High Court order does not mean that it
was a nullity or an order given without jurisdiction. It was wrong in
the sense that the proved facts did not warrant the eviction of the
appellant from Shops 5 and 13. Nonetheless, it was an order lawful
and binding at the time.”
The
protection accorded to statutory tenants is one that is accorded to
tenants in actual possession of the premises and not those who have
lost occupation of the premises.
This,
unfortunately for the applicant, means that it has no prima
facie
right to occupation of the premises, as the authority above clearly
details. This would affect the urgency or otherwise of the matter as
well. The remedy of restoration to the premises is not available to a
statutory tenant who is not in possession of the premises. Therefore,
there would be no urgency as the other remedies available, like
damages, would not require the treatment of the matter as urgent.
There being no right to restoration to the premises, there would be
no urgency. This application is ill fated either way.
As
already noted, the applicant was ejected, so the relief it seeks is
wholly incompetent. The first order sought is for the stay of the
ejectment. This cannot be done since execution has already taken
place. The second is that, in the event execution has taken place,
the applicant be restored occupation. This is no possible, as shown
above.
It
is on the understanding of the letter of 1 October 2010 that the
eviction order, albeit granted in default, was premised. The
applicant waived any right it had to occupation of the premises
beyond 28 February 2014. One cannot, by use of stay of execution,
seek to revive a right that it gave away by lawful process.
In
Chidziva
& Ors v
Zimbabwe Iron & Steel Co Ltd
1997 (2) ZLR 368 (SC) muchechetere
ja
said at 379B-F:
“In
the present case, no real attempt was made to show that the
appellants abandoned their rights with full knowledge of those
rights. All that was submitted was that the appellants accepted the
retrenchment packages. The respondent should have gone further to
show that they did this with full knowledge that they were abandoning
their rights. On this I also cite with approval the passages at p489
of Christie's
above
cited book (The
Law of Contract in South Africa
3ed) where the learned author said:
'…
there
is ample other authority that it must be clearly proved that the
person who is alleged to have waived his rights knew what those
rights were.
A party who fails to prove this necessary ingredient of waiver may
still be able to raise the defence of estoppel against any attempt to
enforce the rights in question. When
it cannot be proved that the party alleged to have waived knew what
his rights were it may appear that his ignorance is properly
classified as ignorance of law.
It can now be regarded as settled, despite van
den Heever j's
decision to the contrary in Schwarzer
v John
Roderick Motors (Pty) Ltd
1940 OPD 170 at 185, that in this connection ignorance of the law is
excusable provided it is iustus
et probabilis'
- justifiable and probable. This is especially so since Willis
Faber Enthoven (Pty) Ltd
v Receiver
of Revenue
1992 (4) SA 202 (A) which equates mistake of fact and mistake of law
for purposes of the condicto
indebiti.
Murray
j's
words in Ex
p Sussens
1941 TPD 15 at 20 may be taken as a correct statement of law:
'The
necessity for a full knowledge of the law in the case of waiver
follows from the principle that waiver is a form of contract, in
which one party is taken deliberately to have surrendered his rights:
there must therefore be proof of an intention as to surrender, which
can only exist where there is knowledge both of the facts and the
legal consequence thereof.'
The
necessity to prove knowledge of the rights allegedly waived before it
can be said that conduct in question amounts to waiver, applies
equally to a case where the act of alleged waiver has been performed
not by the party to the contract himself but by his agent (Pretorius
v Greyling
1947 (1) SA 171 (W) at 177)' (my emphasis).”
Assuming
for a moment that the applicant had the right to stay on as a
statutory tenant beyond 28 February 2014, this right was
unequivocally waived by the contents of the 1 October 2010 letter
authored on behalf of the applicant by one B J Beaumont.
In
light of this incontrovertible fact, it becomes difficult to
understand how the applicant can assert a prima
facie
right to the relief sought. By virtue of the letter, the applicant
renounced any right it had, or could have, to the occupation of the
premises beyond 28 February 2014. The applicant simply has not shown
that it has a prima
facie
right to occupation of the premises.
I
agree with what Carlisle
j
said in Watson
v
Hunter & Another
1948 (3) SA 1106 (D & CLD) at 1114:
"Now
it seems to me that the applicant must come to Court with a very
strong case before the Court will stay the execution of its
judgment."
In
an application for stay of execution of a judgment of the Court, it
is not enough for the applicant merely to allege hardship. He or she
must satisfy the Court that he or she would suffer irremediable harm
or prejudice if execution is granted – see Chibanda
v King
1983 (1) ZLR 116 (HC).
This
is so because the grant of stay of execution denies a successful
party in a judgment the opportunity to execute that judgment, in
other words, to enjoy the fruits of that judgment.
The
applicant, in its founding affidavit, has mentioned that it has
suffered serious harm and refers to an annexure “H”, which does
not in any way detail the financial harm suffered by the applicant.
It is a collection of numbers which, unexplained, do not mean
anything. He who alleges must prove. There is no such proof in this
case. Considered from another angle, the aspect of irreparable harm
ought not to arise at all. Once the finding is made that the
applicant has no right of restoration, no harm can arise from the
non-restoration.
The
balance of convenience, therefore, lies in the dismissal of the
application. This is so because the applicant has no prima
facie
right to occupation of the property and it does not stand to suffer
any irreparable harm because it has no right to protect.
It
is for these reasons that I dismissed the application with costs.
Honey
and Blackenberg,
applicant's legal practitioners
Magwaliba
and Kwirira,
first respondent's legal practitioners
