MUSAKWA
J: This is an application for stay of execution of the judgment granted in case
number HC 6541/09 on 5 January 2010.
The
background to this matter is that Fangudu farm was acquired from respondents by
the fourth respondent. A portion of the farm was allocated to applicant. Whilst
a dispute regarding the acquisition was still going on applicant moved onto the
farm. Applicants sought a spoliation order by way of urgent chamber application
and this was granted in case number HC 7170/06. This provisional order was
confirmed by PATEL J in judgment number HH 128/09 which was handed down on 21
December 2009. The order by PATEL J was declaratory in nature.
After
the granting of the provisional order in case number HC 7170/06 it is accepted
that applicant moved out of the farm in compliance. Subsequently, persons
acting on the authority of the applicant reoccupied the farm, thereby giving
rise to another spoliation order granted by KARWI J on 5 January 2010.
In
his founding affidavit applicant contends that process that gave rise to the
second spoliation order was not served on him. Process was served on the second
respondent. This is despite the fact that he is currently based in Tanzania in his
capacity as Zimbabwean ambassador to that country. The second respondent had no
mandate to accept service on his behalf.
As
regards prospects of success, applicant's contention is that the issue hinges
on a point of law. Essentially, it is contended that in view of the divergence
of opinion on whether illegality constitutes a defence to a charge of
spoliation applicant has prospects of success in seeking a rescission of the
default judgment.
In
his submissions Mr Mlotshwa pointed
out no opposing papers were filed in answer to non-service of the application
and notice of set down on applicant. Whilst it is not a requirement in urgent
matters to file opposing papers, it was his submission that the inescapable
conclusion is that what is alleged by applicant stands unopposed. He further
highlighted that when the parties appeared before KARWI J Mr Mutsonziwa made it clear that he was
representing the Minister of Lands and Rural Resettlement and Minister of
Foreign Affairs only. It was incumbent on Mr Drury to have sought a postponement in order to effect service on
applicant. He also submitted that Mr Drury
was aware that his firm was representing the applicant. That is why they sought
to serve the papers on his firm albeit under the caveat of abundance of caution.
Mr
Mlotshwa also submitted that
different judgments have emanated from this court regarding occupation of
gazetted land. The divergence of opinion was noted by CHIDYAUSIKU CJ in the
case of Nyasha Chikafu v (1) Dodhill
(Private) Limited (2) Simon Donald Keevil (3) The Minister of Lands and Rural
Resettlement SC 28/09. At the very least applicant's prospects of success
are balanced because of the uncertainty that has emerged in the law.
On
the other hand Ms Mahere submitted
that a stay of execution may be granted where real and substantial justice so
demands. In support of this proposition she cited the case of Mupini v Makoni 1993 (1) ZLR 80. An
applicant for stay of execution has to establish that injustice and irreparable
harm will be occasioned if such relief is not granted. She also referred to the
case of Santam Insurance Company Limited
v Paget 1981 ZLR 132 which is cited in the Mupini case.
On
the aspect of real and substantial justice Ms Mahere referred to the judgment by PATEL J supra. It was her
contention that the judgment sets out the respective rights of the parties.
Most importantly, it was pronounced that applicant has no right to occupy the
farm in question. In such a case real and substantial justice demands that due
process be followed before applicant occupies the land. She pointed out that
there is nowhere in applicant's papers that he has addressed the requirement of
real and substantial justice. This is particularly so taking into account
applicant's self-help conduct as shown by his negation of due process. In
addition, there is no demonstration of how applicant will suffer irreparable
harm.
On
irreparable harm, Ms Mahere cited the
case of Chibanda v King 1983 (1) ZLR
116. In this regard she submitted that it is not enough for applicant to allege
hardship. The only hardship applicant may suffer relates to his employees.
However, the employees occupied the farm after the judgment by PATEL J had been
handed down.
Ms
Mahere also submitted that applicant
enjoys limited prospects of success in light of the judgment of PATEL J.
Applicant did not oppose the particular application and as at the date of
hearing of the present application, it was submitted on respondents' behalf
that there was no indication that applicant had appealed against that judgment.
On
service of the application in case number HC 6541/09 Ms Mahere submitted that applicant's address for service in Harare was not known.
That is why the application and other process was served on the Ministry of
Foreign affairs. The Ministry accepted service and there was no indication that
they would not notify applicant. Out of abundance of caution counsel for
respondents attempted to serve the papers on applicant's legal practitioners
but the offices were closed. However, there had been no indication from
applicant's counsel that he had instructions to accept service.
Ms
Mahere also submitted that applicant
had not filed any opposing papers to the provisional order that was granted on
5th January 2010. In respect of the draft provisional order to the
present application paragraph (b) was said to be incomprehensible. This is
because Police and the Deputy Sheriff cannot be expected to attend to the
execution of an order of stay of execution as sought. Finally, it was also
submitted that applicant had an alternative remedy as he could have filed
opposing papers and anticipated the return day.
In the case of Mupini v Makoni supra GUBBAY CJ had this to say on stay of
execution, at p 83:-
“Execution
is a process of the court, and the court has an inherent power to control its
own process and procedures, subject to such rules as are in force. In the
exercise of a wide discretion the court may, therefore, set aside or suspend a
writ of execution or, for that matter, cancel the grant of a provisional stay.
It will act where real and substantial justice so demands. The onus rests on
the party seeking a stay to satisfy the court that special circumstances exist.
The general rule is that a party who has obtained an order against another is
entitled to execute upon it. Such special reasons against execution issuing can
be more readily found where, as in casu, the judgment is for ejectment or the transfer
of property, for in such instances the carrying of it into operation could
render the restitution of the original position difficult. See Cohen v Cohen
(1) 1979 ZLR 184 at 187C; Santam Ins Co Ltd v Paget (2) 1981 ZLR 132 (G) at
134G-135B; Chibanda v King 1983 (1) ZLR 116 (H) at 119C-H; Strime v Strime 1983
(4) SA 850 (C) at 852A.”
In
the earlier case of Santam Insurance Co.
v Paget supra GUBBAY J (as he then was) had this to say at p 134:-
“I turn now to a
consideration of the merits of the application. As observed by GOLDIN J, as he
then was, in Cohen v Cohen (1), 1979 RLR 184 (GD); 1979 (3) SA 420 (R) at
423B-C, the court enjoys an inherent power, subject to such rules as there are,
to control its own H process. It may, therefore, in the exercise
of a wide discretion, stay the use of its process of execution where real and
substantial justice so demands. See also Graham v Graham, 1950 (1) SA 655 (T)
at 658. The onus rests on the party claiming this type of relief to satisfy the
court that injustice would otherwise be caused him or, to express the
proposition in a different form, of the potentiality of his suffering irreparable harm or prejudice.”
The
applicant has averred that the application and notice of set down leading to
the default judgment were not served on him in accordance with the rules of
court. The papers were served on the Ministry of Foreign Affairs. An attempt
was made to serve applicant's legal practitioners but it seems no return of
service was ever filed with the court. Order 5 Rule 39 (2) of the High Court
Rules provides that:-
“ (2) Subject to
this Order, process other than process referred to in subrule (1) may be served
upon a person in
any of the
following ways—
(a) by
personal delivery to that person or his duly authorized agent;
(b) by
delivery to a responsible person at the residence or place of business or
employment of the person on
whom service is
to be effected or at his chosen address for service;
(c) in
the case of process other than a summons or an order of court, by delivery to
that person's legal
practitioner of
record;
(d)……………
(e)……………
(f)……………”
It is clear from
a reading of the above rule that the application in issue was not properly
served on applicant. I am sure service of the application on applicant's employees
at the farm would have sufficed. That is why the provisional order was served
at the farm.
The
applicant has also brought up a different argument on the subject of
spoliation. This is in the wake of the judgment in the case of Nyasha Chikafu v (1) Dodhill (Private)
Limited (2) Simon Donald Keevil (3) The Minister of Lands and Rural
Resettlement supra. In that case
which was an application for leave to appeal CHIDYAUSIKU CJ granted the
application after noting that there was a divergence of decided cases on
spoliation within this jurisdiction. At p 7 of the cyclostyled judgment the
learned Chief Justice had this to say:-
“Can
unlawful occupation constitute a defence to a claim for mandament van spolie?
It is quite clear that the authorities are divergent on this issue. One line of
authorities, which includes judgments of the High Court of Zimbabwe, supports
the contention that unlawful occupation can be a defence; while other
authorities that include High Court of Zimbabwe judgments as well, are to the effect
that unlawful occupation is irrelevant. Given this situation, whichever party
lost in the High Court had prospects of success as its contention is supported
by a line of decided cases.”
In
light of the sentiments expressed in the above cited case, it cannot be said
that applicant has no prospects of success in his intended application for
rescission of the default judgment. It means that the rights of the parties to
the farm in question are evenly balanced. Accordingly, the application is
granted as follows:-
INTERIM
RELIEF
Pending
the determination of this matter, the applicant is granted the following relief:-
(a) The
operation of and execution of the default order handed down by Honourable
Justice Karwi in case number HC 6541/09 be and is hereby stayed.
(b) The
applicant shall file his application for rescission of judgment granted in case
number HC 6541/09 within seven days of the granting of this order.
GN Mlotshwa
& CO,
applicant's legal practitioners
Gollop
& Blank,
first, second, third and fourth respondents' legal practitioners
