The
applicant seeks a provisional order in the following terms:-
“Terms
of the final order sought
That
the provisional order granted by this honourable court be confirmed in the
following manner:-
(a)
The eviction of applicant be and is hereby set aside until the review matter
under case number HC648/09 is finalized.
(b)
The respondent be and is hereby ordered to pay costs of suit if it opposes the
application.
Interim relief granted
Pending
the finalization of the matter, the applicant be granted the relief:-
1.
The eviction of applicant be and is hereby set aside until the review matter
under case number HC648/09 is finalized.”
The
salient facts of the matter are the following.
In
September 2007, the applicant's Managing Director, one Elijah Makhulumo, was
approached by his acquaintance, one Regis Sibanda. The latter informed him that
the respondent's Managing Director, Hetnesh Sunan Patel, was looking for someone
who may be interested in taking occupation of his property known as Number 49
Robert Mugabe Way in Bulawayo.
The
applicant eventually took occupation of the property.
According
to the applicant, it was given the property grantis. The property was derelict
and required improvements.
According
to the respondent, the applicant occupied the premises under a lease.
On
27 October 2008, the respondent issued summons proceedings in the Magistrates'
Court, under case number 704/08, wherein the respondent sought ejectment of the
applicant from the said disputed property. The applicant entered appearance to
defend.
The
applicant did not challenge the jurisdiction of the court at that stage.
Thereafter,
the respondent applied for summary judgment on 25 November 2008. The applicant
opposed the application for summary judgment in the following terms -
“(a)
The building was verbally given to me by the applicant.
(b)
I renovated the building to cost more than ten times that it was before (sic).
(c)
The applicant is acting in bad faith by wanting the building back because of
its new value.
(d)
I have done a lot of improvements to the building...,.
It
is very difficult for the court to just evict me when there is not even a certificate
of eviction from the Rent Board.”
Even
at this stage, the applicant did not challenge the jurisdiction of the
Magistrates, Court.
The
magistrate granted the application for summary judgment in favour of the
respondent on 11 December 2008. The application was granted by default.
On
19 December 2008, the applicant applied for rescission of the said summary
judgment.
Once
more, there were no averments challenging the jurisdiction of the court.
On
27 March 2008, the magistrate dismissed the application for rescission filed by
the applicant. The applicant filed a notice of appeal against this dismissal of
the application for rescission.
In
the notice of appeal, the jurisdiction of the Magistrates' Court was not
challenged.
The
respondent filed an application in terms of section 40 of the Magistrates'
Court Act [Chapter 7:10], on 9 April 2009, for leave to execute pending appeal.
In
opposing this application, the applicant, for the very first time, challenged
the jurisdiction of the Magistrates' Court. For the first time, the applicant
placed a value of UD$70,000= as the value of the improvements.
On
the basis of this new averment, the applicant attacks the magistrate for not
declining to hear the matter for want of monetary jurisdiction.
It
is not clear how this value was supposed to have come to the attention of the
magistrate if it was not pleaded, or averred, in the earlier proceedings...,.
The applicant did not raise the defence of lack of jurisdiction when it opposed
the summons, neither did the applicant do so during other proceedings.
On 28 April 2009, the magistrate granted the
respondent leave to execute pending the appeal. Both parties' legal
practitioners were present when the magistrate pronounced the judgment.
