Opposed
Application
MAKONESE
J: The
respondent filed an application for Directions in terms of Order 23
of the High Court Rules, 1971.
On
26 November 2014 I directed that the Urgent Application for Stay of
Execution filed under case number HC2009/14 be set down for argument
during the first term of 2015. The matter was set down for argument
on 20 February 2015.
This
judgment deals with the confirmation or discharge of the Provisional
Order granted by this court on 28 August 2014.
Background
The
factual background to this matter is as follows:
On
28 August 2014, the respondent (as plaintiff) obtained a judgment in
the magistrates court for the cancellation of the lease agreement
between the parties signed and concluded on 30 July 2012. The
Applicant (as defendant) was also ordered to pay arrear rentals in
the sum of $2500 per month with effect from January 2013. The
applicants were ejected from shop number 2, 79A Jason Moyo, Bulawayo
and were ordered to pay collection commission together with interest
at the prescribed rate and costs of suit.
Aggrieved
by the judgment of the magistrates court, the applicants filed a
Notice of Appeal and such appeal is pending before this court under
case number HCA92/14.
Armed
with the notice of appeal, applicants approached this court, under
cover of case number HC2009/14 on an urgent basis and obtained a
provisional order whose interim provides that:
“pending
the finalization of this matter, execution of the magistrates court
judgment under case number 732/13 is stayed.”
The
respondents sought to set the matter for hearing, a move resisted by
the applicants.
This
prompted the filing of the application for directions.
I
directed the parties to file their heads of argument and present
argument on whether the application for Stay of Execution should be
confirmed or discharged.
The
first issue I must determine is whether the Notice of Appeal filed by
the applicants is valid and complies with the rules.
Rule
29 of the Supreme Court Rules, 1964 (which rule applies to appeals to
the High Court), provides that:
“Every
civil appeal shall be instituted in the form of a notice of appeal
signed by the appellant or his legal representative, which shall
state:
(a)
The date on which, and the court by which the judgment appealed
against was given;
(b)
If leave to appeal was granted, the date of such grant;
(c)
Whether the whole or part only of the judgment is appealed against;
(d)
The grounds of appeal in accordance with the provisions of rule 3;
(e)
The exact nature of the relief sought;
(f)
The address of service of the appellant or his legal practitioner.”
In
this matter, the notice of appeal does not state whether the appeal
is against both liability for arrears and ejectment from the rented
property.
This
is far short from the peremptory requirements for the rules.
Furthermore
to merely state that the appellants pray that their appeal be allowed
with costs is grossly inadequate and not in compliance with the rules
of the court.
The
Notice of Appeal, is in my view fatally defective to the extent that
it is a nullity.
There
has been no attempt to seek to amend the Notice of Appeal inspite of
the fact that the issue was raised way back in October 2014.
What
this boils down to is whether the applicants can hold on to an Order
for Stay of Execution obtained pursuant to a defective Notice of
Appeal.
I
am of the firm view that once it is established that the Notice of
Appeal is defective and a nullity, the applicant's order for stay
of execution cannot be allowed to stand.
In
the case of Jensen
v
Acavalos
1993 (1) ZLR 216, KORSHA JA, at page 220 stated the position as
follows:
“The
reason is that a notice of appeal which does not comply with the
rules is fatally defective and invalid. That is to say, it is a
nullity. It is not only bad but incurably bad, and, unless the court
is prepared to grant an application for condonation of the defect and
allow a proper notice of appeal to be filed, the appeal must be
struck off the roll with costs.”
The
next issue for determination is whether this court is the proper
court to deal with an application to stay the execution of a judgment
granted in the magistrates court.
Even
if, this court were to deal with the merits of the matter I do not
appreciate why this application was brought to the High Court in the
first instance.
No
plausible explanation has been advanced by the applicants why the
application was not brought before the magistrates court which
granted the order.
The
applicant merely states that this court enjoys wide discretion
whether or not to grant the application.
It
is further contended on behalf of the applicants that they are bright
prospects of success on appeal, and that the respondent will not
suffer irreparable harm or prejudice if execution is stayed pending
appeal.
The
Magistrates Court Act [Chapter
7:10]
provides under section 40(3) as follows:
“Where
an appeal has been noted the court may direct either that the
judgment be carried into execution or that execution thereof shall be
suspended pending the decision upon the appeal or application.”
There
is clearly no basis for the applicants to have circumvented the
magistrates court to lodge this application in this court.
It
is apposite to note that the record of proceedings which forms the
basis of the appeal is not before this court.
The
applicants expect the court to come up with a determination solely on
the basis of the judgment of the magistrates court placed before this
court.
It
is not desirable nor appropriate for this court to usurp the
functions of the magistrates court.
See
the case of Haroon
Mohamed
v Noormahomed
and Another
HH180/10. In this matter MAWADZE J, stated as follows:
“---
Firstly this court cannot meaningfully deal with the merits and
demerits of the granting of an order of ejectment by the magistrates
court on 22 June 2010 unless it is sitting as an appellate court.
That appeal is still pending before this court and cannot be
partially dealt with under the guise of an urgent chamber
application. The two records of proceedings in the magistrates court
are not even before this court.”
I
am satisfied, therefore that the applicants have failed to justify
the confirmation of the Provisional Order.
The
applicants first hurdle is to regularize their defective Notice of
Appeal. Secondly, the applicants ought not to have brought this
application to this court for the reasons outlined above.
It
is ordered as follows:
1.
The Provisional Order granted under case number 2009/14 on 28 August
2014 be and is hereby discharged.
2.
The applicants are ordered to pay the costs of suit.
T.
Hara and Partners,
applicants legal practitioners
Messrs
Dube-Banda, Nzarayapenga and Partners,
respondents legal practitioners
