MATANDA-MOYO
J:
This
is an application for leave to execute pending appeal.
This
court on 5 May 2015 granted judgment in favour of the applicant in
the following;
(1)
That the respondents having been barred for failure to file heads of
argument, the notice of opposition is accordingly struck off.
(2)
Respondents' application for upliftment of bar is dismissed.
(3)
The respondents and all those who claim through them be and are
hereby ordered to vacate a certain subdivision A of Lot 16 Block B of
Avondale also known as No.50 Broadlands Road Emerald Hill, Harare
within 48 hours of being served with writ of execution.
(4)
In the event of the respondents failing to abide with para 1, the
Sheriff be and is hereby ordered to evict the respondents and all
those who claim title through them.
(5)
Respondents are ordered to pay costs of suit on a higher scale,
jointly and severally, the one paying the other to be absolved.
The
respondents noted an appeal against the above order, and such appeal
having the effect of suspending the order that brought this
application. The respondent opposed the application on the following
grounds;
(a)
That the court a
quo
is still to give its reasons for the order granted and this
application cannot proceed without such reasons having been availed;
(b)
That the court a
quo
adopted the wrong procedure in arriving at its decision. The court
proceeded in terms of Rule 238(2b) of the High Court Rules and dealt
with matter on the merits. The court was enjoined to consider
respondents case. By being barred for failure to file heads,
respondents only lost the right to make oral presentations. The court
erred in striking off the notice of opposition and proceeding to deal
with matter on merits;
(c)
That the appeal would be rendered academic should leave be granted;
and
(d)
That the balance of convenience favours the relief sought on the
basis that the respondents are currently using the premises as their
residence. Any harm suffered by the applicant could be cured by an
order for damages.
The
background to this matter has been well set out in the judgment of
this court of 5 May 2015 and I shall not repeat same.
The
applicant is the registered owner of the property in question namely
Subdivision A of Lot 16 Block B of Avondale.
Applicant
bought the property through a Sheriff's sale.
On
19 March 2013 the second respondent failed in his bid to have the
sale set aside. The sale was confirmed and the property was duly
transferred in January 2014.
After
the respondents refused to vacate the premises, applicant applied for
their ejectment. The application was granted in default, after the
court struck off respondents' opposition for failure to file heads
of argument. This resulted in the respondents noting an appeal to the
Supreme Court on the above grounds. Pending the determination of such
appeal applicant sought leave to execute.
In
assessing an application for leave to execute pending appeal the
court looks at various factors amongst them the following;
(1)
Whether irreparable harm or prejudice would be suffered by the
appellant should leave be granted.
(2)
Whether irreparable harm or prejudice would be suffered by the
respondent should leave be refused.
(3)
The prospects of success on appeal.
(4)
The balance of convenience favours the granting of the relief sought.
The
applicant submitted that should leave to execute not be granted, it
will suffer irreparable harm. The applicant submitted that it is the
registered owner of the property. As the owner, it is entitled to
enjoy the benefits of such property. As the owner the applicant is
entitled to recover full possession of the property unless the person
in possession has an enforceable right against the applicant.
Applicant
submitted that the respondents have failed to establish any such
right. The respondents have no means to settle the debt as shown by
the sale of the property in execution. There is a likelihood that the
respondents would not be able to pay holding over damages being
incurred with each extra day they are in occupation of the property.
The applicant submitted that it would suffer irreparable financial
prejudice should execution not be granted.
The
respondents on the other hand submitted that they are currently using
the property as their residence and would suffer irreparable harm
should execution be granted. It is respondents' submission that the
applicant being a corporate entity, could only incur financial harm
which can be compensated by an award of damages.
Faced
with the two competing interests of the applicant and the
respondents, I must decide on the balance of convenience. Does the
balance of convenience favour the granting of the relief sought or
not?
It
is my considered view that the harm which may occur or the
respondents only relate to finding alternative accommodation to
settle. On the other hand the respondents' property was sold due to
failure to settle a debt owed to Genesis Bank. There is no evidence
before me that the respondents are able to settle the debt in
question. Allowing the respondents to continue to incur further costs
by way of holding over damages may result in respondents continuing
to incur charges they would not be able to pay.
On
the other hand the applicant is the registered owner of the property
and the continued occupation of the property by the respondents
prejudices the applicant more. As the owner the applicant is entitled
to the enjoyment of the property. The respondents on the other hand
have not proferred any right entitling them to the property which
could not be cured by an order of damages in the unlikely event that
the respondents win the case.
This
brings me to the question of prospects of success on appeal.
The
major concern by the respondents in the appeal is that the reasons
for granting the order in favour of the applicant were not available.
At the date of hearing of the application the parties conceded such
reasons were available, thus discounting that ground.
The
respondents challenged the procedure adopted by the court a
quo
in arriving at the decision.
Whilst
that aspect is arguable – a reading of the judgment shows that the
court a
quo considered
the issues and came to a determination.
In
any case if the respondents' complaint is that a default judgement
was granted, then its recourse is to apply for rescission of
judgement. By noting an appeal the respondents have realised that the
judgement was on the merits.
I
do not share respondents' views that should execution proceed the
appeal would be rendered academic.
The
property is already in the applicant's name. All the papers reflect
applicant as the rightful owner of property and execution would not
affect that. Should the respondents win the matter, ownership would
have to be reversed and the respondents could still get the property
back.
I
am of the opinion that the appeal has been noted for purposes of
delaying the day of reckoning.
In
Econet
v
Telecel Zimbabwe (Pvt) Ltd
1998 (1) ZLR 156B at 154 F–G Smith J said:
“In
determining an application for leave to execute pending appeal, the
court must have regard to the 'preponderance of equities', the
prospects of success on the part of the appellant and whether the
appeal has been noted without the 'bona fide intention of seeking
to reverse the judgment but for some indirect purpose eg. to gain
time or to harass the other party': see Fox
and Carney (Pvt) Ltd v
Carthew-Gabriel
(2), 1997 (4) SA 970 (R) and ZDECO
(Pvt) Ltd v
Commercial Careers
College
(1980) (Pvt) Ltd 1991 (2) ZLR 61 H.”
Generally
the courts are reluctant to interfere with judicial sales in
execution, where such sale has been confirmed and where transfer has
already taken place. See Kanoyangwa
v
Messenger of Court and Others SC68/06.
For
the above reasons it is my view that the applicant has discharged the
onus on it justifying the granting of the order sought.
Accordingly
I order as follows;
1.
That the application for execution of judgment HH435/15 pending
appeal be and is hereby granted.
2.
The respondents shall pay costs of this application.
Matipano
and Matimba,
applicant's legal practitioners
Messrs
Wintertons,
respondents' legal practitioners
