URGENT
CHAMBER APPLICATION
CHIWESHE
JA:
In this urgent chamber application the applicants seek a provisional
order couched as follows:
“TERMS
OF THE FINAL ORDER SOUGHT
That
you show cause to this Honourable Court why a final order should not
be made in the following terms:
(1)
That a stay of execution of the order given in CHN 286/19 be granted
pending application in the High Court for condonation for late filing
of leave to appeal.
(2)
In the event that this matter is opposed, that the Respondents be and
are hereby ordered to pay costs.
INTERIM
RELIEF GRANTED
Pending
finalisation of this matter an interim order is hereby granted in the
following terms:
IT
IS ORDERED THAT:
1.
This application succeeds and a stay of execution of the judgment in
the Chinhoyi Magistrates Court under case number CHN 286/19 be and is
hereby granted to the applicants pending application in the High
Court for condonation for late filing of leave to appeal to the
Supreme Court.”
FACTUAL
BACKGROUND
In
early 2000, at the height of the land reform programme, the
applicants and many others moved to occupy Heydon Farm on the
outskirts of Harare. They proceeded to build family homes and to
engage in agricultural activities. Subsequently the whole of Heydon
Farm was compulsorily acquired by the State and a notice to that
effect was published in the Government Gazette in terms of the Land
Acquisition Act [Chapter
20:10].
Contrary
to their expectations none of the occupiers were favoured with either
offer letters, permits or lease agreements which documents would have
regularised their stay at Heydon Farm. Instead part of the farm was
subdivided into residential stands with title deeds and sold to
various persons. This formalised part of the farm is referred to as
Heydon Township.
The
respondents who are husband and wife bought one of these residential
stands described as Stand 2915 Haydon Township, measuring 2193 square
metres and received title.
It
is common cause that at the time of sale and transfer the applicants
were resident at what became the respondents residential stand. It is
also common cause that the applicants have no legal basis to occupy
Heydon Farm in general or the respondents stand in particular.
In
order to assert their proprietary rights, the respondents approached
the Magistrates Court at Chinhoyi seeking an eviction order against
the applicants. Their application succeeded and an order for the
eviction of the applicants from Stand 2915 Haydon Township was
granted under case number CHN 286/19.
Aggrieved
with that outcome the applicants noted an appeal with the High Court
(the court a
quo).
The court a
quo
dismissed
the appeal and confirmed the eviction order granted by the
Magistrates Court.
The
respondents then noted an appeal with this Court under case number
SC277/20 which appeal suspended the order of the court a
quo.
Undeterred,
the respondents filed an application for leave to execute pending
appeal. The application was granted by CHITAPI J under case number
HC3097/20.
The
applicants noted an appeal against that judgment under case number
SC441/20. The appeal was struck off the roll on the grounds that
leave to appeal ought to have been sought in the court a
quo.
In
the meantime, pursuant to the order by CHITAPI J, the applicants were
served with a notice of attachment and eviction from the respondents
stand. The notice is dated 28 February 2022.
It
is that notice that has triggered the present urgent chamber
application wherein stay of execution is sought.
The
application is opposed.
The
respondents have raised two preliminary issues, namely that the
matter is not urgent and that the application has since been
overtaken by events on the ground.
It
is argued that the urgency is self-created as the applicants failed
to act when the need to act arose on 15 February 2022 when the
applicants appeal under case number SC441/20 was struck off the roll.
The
applicants should have known that as a result the respondents would,
in the absence of a pending appeal, proceed with eviction.
Instead
of acting there and then the applicants waited till they were served
with the notice of attachment and eviction dated 28 February 2022,
thirteen days after SC441/20 was struck off.
I
am of the view that the criticism levelled against the applicants in
this regard is not warranted. A delay of thirteen days cannot, in the
circumstances of this case, be regarded as inordinate.
The
applicants had been to this Court on appeal. They were not sitting on
their laurels. The appeal was not dismissed but struck off the roll
on a technicality. They are attending at the High Court seeking leave
to appeal.
Whilst
awaiting the results they were served with the notice of eviction.
They
have reacted swiftly to that notice by filing the present
application. I would for those reasons dismiss the preliminary issue
and hold that the matter be treated as urgent.
However,
the second preliminary issue has merit and is dispositive of the
application.
The
respondents contended that the applicants have been evicted from
their stand in terms of an extant eviction order.
Mr
Biti,
for the applicants, has not denied that his clients have been
evicted.
Instead
he sought to
argue
that the eviction was not effectively carried out as the Messenger of
Court only threw out the applicants property but left the dwelling
shack intact.
The
implication being that the applicants, having been evicted returned
to occupy the shack.
It
would be remiss of this Court to run along with Mr Biti's
suggestion
and reverse an eviction properly executed in terms of a court order
on the grounds that the Messenger of Court ought to have destroyed
the dwelling shack.
What
was to be evicted are the applicants and not their shack.
I
hold therefore that the eviction was effected and that the applicants
return to the stand is in direct disregard of a lawfully given court
order.
This
Court cannot condone their contemptuous conduct.
I
agree with the respondents that in view of the applicants eviction
this application has been overtaken by events and has thus been
rendered moot.
It
cannot succeed.
As
the applicants are indigent there shall be no order as to costs.
It
is ordered as follows:
“The
application be and is hereby dismissed with no order as to costs.”
