NDOU J: The applicant seeks a provisional order in the
following terms.
“TERMS OF FINAL ORDER SOUGHT”
That you show course why a final order should not be granted
in the following terms:
1)
That
execution of the judgment granted by the Harare Magistrate Court on 28th
August 2009, be and is hereby stayed pending the finalization of the
applicant's appeal under HCA Civil “A” 411 /2009.
2)
That
the first, second and third respondents pay for the costs of application and a
legal practitioner and client scale
INTERIM RELIEF GRANTED
Pending the return date and finalization of this application
the applicant be and is hereby granted the following interim relief:
3)
The
Third respondent be and is hereby interdicted from evicting the applicant from
premises known as stand 2099A, Cameron /Bank Street, Harare and is further
interdicted from attaching and /or removing applicant's goods and /or assets at
the aforesaid premises or any other place.
4)
In
the event that by the time this order is granted, the third respondent would
have evicted the applicant from the above mentioned premises and attached and
removed applicant's goods, then the third respondent be and is hereby ordered
to restore the applicant to the premises aforesaid and to restore whatever
goods and property it would have attached and removed, into the possession of
the applicant at no cost to the applicant.”
By agreement of the parties and on account of the urgency of
the matter I heard submissions on both the points in limine raised by the 1st and 2nd
respondents and the merits of the case.
The understanding is that if I rule in favour of the points raised by
the 1st and 2nd respondents, the matter will be disposed
off without consideration of the merits.
If on the other hand I reject the points in limine I will be in a position to go straight to deal with the
matter on the merits.
Points in limine:
1.
Whether the High Court of Zimbabwe sitting in Bulawayo has jurisdiction:
The background of this point is that this matter was first dealt with by
the Harare Magistrates Court. Subsequent
to that the applicant appealed to the High Court, Harare, which appeal is
pending and yet to be heard. The cause
of action also arose in Harare as the premises subject matter of the dispute is
in Harare. The issue is whether there is
a legal bar to the applicant institution these proceedings before the High
Court sitting in Bulawayo. The short
answer is that there is no such and legal bar.
Section 13 of the High Court Act [Chapter 7: 06], provides:
“13. Original Civil Jurisdiction:
Subject to this and any other law, the High Court shall have full
original civil jurisdiction over all persons and over all matters within
Zimbabwe.”
It seems to me that there is only one High Court of Zimbabwe
with some of its judges operating from Harare and others Bulawayo. There is no law that provides otherwise. Accordingly I have the requisite jurisdiction
to entertain this application.
2.
Whether this matter was properly before this court:
The salient facts in this regard are the following. The 1st and 2nd
respondents filed a court application at Harare Magistrates Court seeking
vacation of premises that the applicant from then on or before 31 July
2009. The applicant did not instruct its
legal practitioners timeously resulting in a default judgment granted against
it on 28 August 2009. Subsequently to
the granting of the default judgment, the applicant filed an application for
rescission. 1st and 2nd respondents filed opposing papers
to the application for rescission. The
applicant filed an application for a stay of execution and a nisi rule in it
was duly granted. The application for
rescission and the application for a stay of execution were subsequently set
down for hearing and was both dismissed with costs. Aggrieved by the turn of events, the
applicant appealed against both judgments of the Harare Magistrate to the High
Court, Harare on 23 September 2009. On
25 September 2009 the 1st and 2nd respondents filed an
application for execution pending appeal.
The applicant filed opposing papers and the matter was set down for
hearing on 15 October 2009 and the Harare Magistrate granted the application
for leave to execute pending appeal. The
applicant filed a notice of appeal against the latter judgment. The issue is whether the filing of this
notice of appeal suspends the Magistrate's judgment granting leave to execute
pending appeal. The applicants case is
that, whilst an application for leave is, technically an interlocutory matter,
once it is granted, its effect is final and as such the notice of appeal would
serve to suspend that order as envisaged by the provisions of section 40 (2)
(b) of the Magistrates Court Act [Chapter 7:10]. In my view when leave to carry a judgment
into execution under section 40 (3), supra,
has been granted by a magistrate, the appellant cannot take interdict
proceedings against the execution of the judgment pending his appeal – Jasat v Moosa 1949 (1) SA 883 (N) and Sabena
Belgian World Airlines v Ver Elst
1980 (2) SA 238 (W). Such a procedure,
as adopted by the applicant in casu,
is not competent. The applicant was now
wanting from the Court what it could not get from the magistrates Court. But that power rests squarely in the
magistrates Court, it has failed there this court cannot assist it. The effect of the order sought by the
applicant is to reverse the order by the Harare Magistrate even before the
appeal is heard, that's rendering the hearing of the appeal academic. More importantly, an order granting leave to
execute under section 40 is interlocutory and accordingly not appealable – Van Leggelo v Transvaal Cellocrete (Pty)Ltd 1953 (2) SA 287 (T); South
Cape Corporation (Pty) Ltd v Engineering
Management Services (Pvt) Ltd 1977 (3) SA 534 (A) at 552 and South African Druggists Ltd v Beecham Group Plc 1987 (4) SA876 (T) –
see also Jones and Buckle - The Civil Practice of the Magistrates Court
in South Africa (8th Edition) by Erasmus at 316. In casu,
the applicant seeks stay of execution “pending appeal.” In
light of non – appealability of the order of Harare magistrate such application
is not competent and has to be refused. When one gleans through the applicant's founding
papers it is clear that what is being alleged as the basis of the appeal is gross
irregularities. Review instead of
appeal, would have been the appropriate vehicle for redress. It is trite
that in appropriate circumstances, a magistrates decision under section 40 can
be taken on review- Kuruman Cape Blue
Asbestos (Edms) Bpk. v Boshoff
1973 (2) SA 663 (NC) . In its wisdom,
the applicant chose the appeal route. I
am not dealing with the appeal but the merits of the appeal are relevant in the
determination of this application as rightly pointed out by counsel.
In light of the foregoing I
accordingly dismiss the application with costs.
Calderwood, Bryce Hendrie and Partners, applicant's legal practitioners
Messrs Manase and Manase c/o Danziger and
Partners, 1st and 2nd respondent's legal
practitioners.
