An application to execute
notwithstanding the filing of a notice of appeal to the Constitutional Court.
Before GARWE JA, in chambers.
In a matter involving the same
parties, this Court in SC 43/14 (per Gowora JA, with Malaba DCJ and Garwe JA
concurring) allowed with costs the appeal noted by Streamsleagh Investments
(Pvt) Ltd (“the applicant”), set aside the judgment of the court a quo
and in its place issued the following order:
“(a)
The eviction order granted by the Magistrates Court Harare, in the matter
between Autoband Investments (Private) Limited t/a Trauma Centre v African
Medical Investments Plc under Case No. MC 16435/11 be and is hereby
declared to be of no force, effect and application as against the applicant.
(b)
It is ordered that the applicant be and is hereby restored to possession and
occupation of premises known as Stand 2924 Salisbury Township of Salisbury
Township Lands situated at Number 15 Lanark Road Belgravia, Harare.
(c)
It is ordered that the respondent pays the costs of this application on a legal
practitioner client scale.”
Following this order, the applicant issued a writ for the ejectment of Autoband
Investments (Pvt) Ltd (“the respondent”) from the premises known as Stand 2924
Salisbury Township of Salisbury Township Lands, also known as number 15 Lanark
Road, Belgravia.
However on 18 June 2014, i.e. a day after the handing down of the Supreme Court
judgment, the respondent, acting in terms of s 167 (5) of the Constitution of
Zimbabwe, filed a notice of appeal to the Constitutional Court of Zimbabwe
against the whole judgment of the Supreme Court. The grounds contained in
the notice of appeal are:
- The Supreme Court erred in determining the merits of an
appeal that is pending before the High Court, and in so doing infringed
the appellant's right to the equal protection and benefit of the law
protected and guaranteed under section 56 (1) of the Constitution of
Zimbabwe.
- The Supreme Court denied the appellant the protection
of the law in granting a substantive constitutive order, and not a purely
declaratory order which had been prayed for.
- To the extent that the appellant's principal
shareholder is the beneficial owner of the immovable property in question
and to the further extent that an incident of ownership is the right to
occupation, and to the even further extent that the effect of the Supreme
Court judgment is to order the ejectment of the owner of the property, the
appellant was deprived of the property rights protected and guaranteed
under section 71 of the Constitution of Zimbabwe.
In its prayer the respondent seeks a
declarator that its right to the protection of the law and to its proprietary
rights has been infringed. It further seeks an order setting aside the
judgment of the Supreme Court and in its stead substituting it with an order
dismissing with costs the appeal noted to the Supreme Court.
Following the filing of the notice
of appeal to the Constitutional Court by the respondent, the issue became moot
whether in terms of the law such appeal had the effect of suspending the
judgment of the Supreme Court. Indeed the Sheriff wrote to the
applicant's legal practitioners on 20 June 2014 advising that his understanding
was that the appeal had such an effect. The Sheriff was no doubt correct
in his understanding of the law – see South Cape Corp v Engineering
Management Services 1977 (3) S.A. 534, 544 H-545 A.
Faced with this development, the
applicant filed, under a certificate of urgency, a chamber application seeking
an order declaring the notice of appeal filed by the respondent with the
Constitutional Court to be declared invalid and for execution to proceed
notwithstanding the noting of that appeal.
The urgent applicant was heard by
the Honourable Chief Justice in chambers and determined on 24 July 2014.
In his determination the Chief Justice directed that the issues raised in the
application be referred for determination by the full bench of the Constitutional
court. However, he directed that the issue whether the respondent should
be evicted from the premises, being urgent, be referred for determination on
the same papers by any one of the Judges who heard the matter in the court a
quo. Consequent to that directive, the matter was then referred to
me. What I am asked to determine is whether the respondent should be
evicted from the premises notwithstanding the appeal it has launched in the
Constitutional Court. It is also common cause that the respondent has
filed another application with the Constitutional Court in which it cites
itself and the present applicant as co-applicants.
The position is now settled that the
court to which application for leave to execute is made has a wide discretion
to grant or refuse leave. This discretion is part and parcel of the
inherent jurisdiction which the court has to control its own judgments.
Further, in the exercise of such discretion, the court should determine what is
just and equitable in all the circumstances and in doing so would normally have
regard to the following factors:
- The potentiality of irreparable harm or prejudice being
sustained by the appellant on appeal if leave to execute were to be
granted.
- The potentiality of irreparable harm or prejudice being
sustained by the respondent on appeal if leave to execute were to be
refused.
- The prospects of success on appeal including more
particularly the question as to whether the appeal is frivolous or
vexatious or has been noted not with the bona fide intention of
seeking to reverse the judgment but for some indirect purpose e.g. to gain
time or harass the other party; and
- Where there is the potentiality of irreparable harm or
prejudice to both appellant and respondent, the balance of hardship or
convenience, as the case may be.
The authority for the above
proposition, if any is required, is South Cape Corp v Engineering Management
Services (supra), at 545 D-G.
It seems to me appropriate, for
reasons that will become apparent shortly, that the prospects of success of the
respondent on appeal before the Constitutional Court be determined first.
In order to do so it is necessary to consider the findings made by this Court
in arriving at the decision now the subject of the constitutional appeal.
The events that took place and gave
rise to the present proceedings were predicated on an order made by the
Magistrates Court. It was on the basis of that order that the applicant
was evicted from the premises. After considering the various submissions
made by counsel and documents produced in the Court a quo, this Court
formed the view that the critical issue that required resolution was whether or
not it was AMI Plc or Streamsleagh (Pvt) Ltd (the current applicant) which was
in occupation at the time eviction was ordered by the Magistrates Court and,
secondly, whether spoliation had been proved. At page 9 of the judgment,
this Court remarked:
“Where an act of spoliation has been
alleged, it is trite that the act of spoliation has to be proved. The
respondent did not state when such act occurred or by whom it was
perpetrated. In his founding affidavit Dr. Solanki refers in general
terms to “robbery, theft, corruption and fraud” as constituting the act of
spoliation. It cannot be gainsaid that robbery, theft, corruption and
fraud are different and distinct species of criminal offences …. The
respondent does not, in the affidavit of Solanki, give details on each of the
alleged offences nor does he state how each of these acts which are alleged to
constitute spoliation were effected, when they occurred or by whom they were
perpetrated. In short, the affidavit is devoid of any specifics on the
act of spoliation in terms of which the order was premised. It is lacking
in detail and substance as to how the respondent was illegally dispossessed of
occupation.”
At page 11 of the cyclostyled
judgment, the court continued:-
“It was necessary, in my view, for
the respondent to have shown that it was in occupation of the premises in
question and further to that it was, in fact, the appellant, as opposed to AMI
Plc that caused its unlawful dispossession from the premises. It did not
establish that it was in peaceful and undisturbed possession and that it was
despoiled by the appellant. Consequently, there is no substance to the
allegation by the respondent that it had been unlawfully dispossessed of
occupation of the hospital premises by the AMI Plc against which it took no
action.
I therefore conclude that the
learned Judge misdirected himself in accepting the finding by the magistrate
that the respondent had been unlawfully removed from the premises by AMI Plc.”
At page 13 this Court continued:
“Apart from the bald allegation that
it was in possession, the respondent did not, before the magistrate or the High
Court, establish proof of its occupation of the disputed premises. The
affidavit from Solanki suggests that he occupied No. 15 Lanark Road in his
personal capacity, which, given the documents in the record, is an obvious
lie. He was not in occupation, but was on the premises pursuant to the
management agreement that got terminated, which termination he accepted.”
This Court also accepted that although aware that the applicant was in
occupation of the hospital, the respondent had deliberately not cited the
applicant but instead cited AMI Plc, a separate legal entity. This is
what this Court said at page 12 of the judgment:
“Apart from the urgent chamber
application referred to above, the parties also filed documents under Case No.
HC 619/11. Again this application is at a standstill. The
application in the Magistrates Court was filed on 28 September 2011. It
is obvious that by the time the respondent filed the application in the
Magistrates Court, it had become aware, from the documents filed in the two
High Court applications mentioned above, that the appellant was in occupation
of the hospital, yet it chose deliberately not to cite the appellant in the
application for an order of spoliation.”
The court also found that no attempt had been made by the respondent to produce
documentation to substantiate its claim that it was in occupation of the
premises whose registered owner, it was common cause, was Streamsleagh (Pvt)
Ltd, the applicant in this case. The Court further found that an order
for the eviction of AMI Plc had no effect on the applicant as these were two
distinct entities and it was not suggested that the applicant had itself
committed an act of spoliation or held the premises through AMI
Plc.
My reading of the appeal by the
respondent to the Constitutional Court does not suggest that the finding made
by this Court that the order of eviction, directed as it was against AMI Plc
but executed against the applicant, a separate legal entity, was irregular and
therefore null and void, is impugned. On the basis of the papers
presented before the Supreme Court, the position must be accepted that the
order of spoliation granted in the Magistrates Court was most irregular.
Consequently both the order of eviction itself as well as the order allowing
execution notwithstanding the noting of an appeal were therefore a
nullity. In short one must proceed on the basis that there never was a
valid order of eviction in the first instance.
As a corollary therefore, the
complaint that there was a violation of the right to the protection of the law
is not sustainable and consequently the conclusion is inescapable that the
respondent does not have any reasonable prospects of success against the
judgment of the Supreme Court, whatever its submissions may be on the other
issues raised in the application before the Constitutional Court.
Nor can the decision to re-instate
the respondent be said to be irregular or to raise any constitutional
issue. The reinstatement was a consequence of the finding that the
eviction itself was null and void. The reinstatement was a restoration of
the status quo, which this Court, in the exercise of its powers both
under s 22 and s 25 of the Supreme Court Act [Cap 7:13] is clearly
empowered to order. Section 25 (2) in particular empowers the Supreme
Court to exercise review powers at any stage whenever it comes to its attention
that an irregularity has occurred in any proceedings, including proceedings
that are not the subject of an appeal or application before it. The order
of spoliation issued by the Magistrates court was clearly irregular and more so
when regard is had to the fact that it was executed against a party not cited
in the order itself.
On
the potentiality of irreparable harm if leave to execute is not granted,
clearly the balance of convenience favours the applicant. On the known
facts, the applicant was evicted on the basis of an order which cited AMI Plc
as the party despoiling and in circumstances where such spoliation had not been
proved. The applicant was evicted in 2011 and clearly the potentiality of
irreparable harm must be obvious.
In my view, it becomes unnecessary to consider the argument advanced by the
applicant that the respondent had no right of appeal to the Constitutional
Court against the decision of the Supreme Court in the absence of the court
making findings on constitutional issues that arose before it.
In all the circumstances it appears to me that the opposition to this
application was intended merely to delay execution of the judgment of this
Court. An order of costs on the higher scale is warranted as prayed for
by the applicant.
Out of an abundance of caution, I have brought the contents of this judgment to
the attention of Malaba DCJ and Gowora JA, with whom I sat to hear the appeal
that is now the subject of the Constitutional application. Our decision
at the conclusion of the appeal was unanimous. Both have authorized me to
indicate that they are in full agreement with the conclusion arrived at in this
judgment.
Accordingly it is ordered as follows:
- The Application to execute the judgment of the Supreme
Court in SC 43/14, notwithstanding the filing of an appeal to the
Constitutional Court, be and is hereby granted.
- The respondent is to pay the costs of this application
on the scale of legal practitioner and client.
Messrs Mtetwa &
Nyambirai, applicant's legal practitioners
Venturas & Samkange, respondent's legal practitioners
