MUTEMA J: This is an
urgent chamber application for a provisional order whose interim
relief sought was couched in these terms:
“1. That the second respondent
be and is hereby ordered to stay ejectment of
applicant from the premises known as 93 Coventry Road, Harare pending
the hearing of this urgent application for stay of execution.
2. In the event of the second
respondent having ejected applicant from the premises known as 93
Coventry Road Harare, he is hereby directed temporarily to return
possession of the premises to applicant pending the outcome of the
application for stay of execution.”
The terms of the final order
sought include inter
alia;
“That second respondent be and
is hereby ordered to stay execution permanently against applicant
pending the outcome of the Civil Appeal 251/10 ref CIV “A”
423/10.”
The background of the matter is briefly as follows:
Applicant and the first respondent entered into a lease agreement in
respect of 93 Coventry Road wherein applicant was the lessee.
On 9 September 2009, the first respondent's estate agents, Guest
and Tanner invited applicant to come and discuss an increase in fair
rental from $1,200 per month. First respondent's representatives
went for the discussion but the estate agents' representative
missed the appointment and consequently no discussion about the issue
was ever held.
Subsequently applicant offered to increase the rental to $2,400 per
month which was accepted by the first respondent. The estate agents
communicated acceptance of the offer by a letter dated 21 October
2009 wherein they also gave applicant a six month notice to vacate
the premises on the ground that the first respondent required the
premises for its own use. The notice period endured up to 30 April
2010.
Came 30 April, 2010, the applicant did not vacate the premises.
On 17 May, 2010 the first respondent filed an application for
eviction of applicant in the magistrates' court. On 7 June, 2010
the magistrates' court granted the application. On 8 June 2010,
the applicant noted an appeal in this court against the order for its
eviction. Since the noting of the appeal had the effect of
suspending the judgment appealed against, the first respondent filed
an application for leave to execute pending the appeal.
That application was granted.
Applicant again noted an appeal against the order granted to the
first respondent to execute pending appeal. Thereafter the applicant
filed this urgent chamber application for the provisional order. The
chamber application was accompanied by a certificate of urgency.
At the hearing Mrs Wood
raised the following points in
limine:
(1) the application lacks urgency
in that six months notice to vacate was given. Applicant sat back
and it was only on 28 April 2010 (two days before expiry of the
notice to vacate that the applicant in vain attempted to cajole the
first respondent into signing an agreement it had drafted to have the
notice period extended.
(2) If relief to stay the
execution is granted, this would be tantamount to this court
overruling the magistrate's decision to execute pending appeal.
Effectively the applicant was asking this court to determine the
appeal when it is not sitting as the appeal court.
(3) The court should determine
whether there is a valid appeal against the magistrate's decision
to grant leave to execute pending appeal. There is no appeal in this
respect because that order to execute pending appeal is not a final
or definitive one. It is merely an interlocutory order and such an
order is not appeallable. Over and above that, the notice of appeal
pertaining to that order is fatally defective in that it falls foul
of R7 of the Supreme Court Miscellaneous appeal and Reference Rules
1975 by not stating all the aspects required in a notice of appeal.
In the event, so the argument went, there is no appeal that was noted
and the applicant has no basis to come before this court.
Mr Warhurst
in response contended
that the matter was urgent in that the applicant believed that
instead of the matter being brought by way of application, it should
have been brought by way of summons since there existed a dispute of
fact, viz whether the first respondent required the premises for its
own use. Further, the urgency arises because of the first
respondent's insistence on eviction before applicant's appeal is
heard.
Regarding the point that if relief to stay execution is granted, this
would amount to overruling the magistrate's decision, he said it is
interwoven with the one whether the judgment being appealed against
is final or not. He submitted that the judgment is final in that
once the applicant is evicted, the purpose of its appeal is
frustrated.
On whether the notice of appeal
is fatally defective, he denied that the same rules are applicable.
Even if they are, the notice is sufficiently clear on the papers
regarding which judgment is being appealed against, the second one
granting leave to execute pending appeal. He submitted that the
prayer that the judgment of the court a
quo be reversed is the
standard practice in this regard.
Let me now advert to the points
in limine
that were raised.
1. Is the application urgent?
Mr Warhurst
contended that the urgency itself only arises because of first
respondent's insistence on evicting applicant before the latter's
appeal has been heard.
I am unable to subscribe to this submission.
The basis for so holding hinges
on the validity or otherwise of the applicant's appeal which issue
I shall deal with when unraveling the third point in
limine, viz whether
the appeal against the magistrate's decision to grant leave to
execute pending appeal is valid.
At this stage, it behoves me to look at the issue of urgency
visa-a-vis the facts of this mater.
A party, whose ejectment from rented premises is imminent maybe
excused in entertaining the belief that his/her matter is urgent for
he/she has an understandable apprehension of fear of the threatened
eviction.
However, this should not be accepted at face value.
There is need to follow the spoor, in a manner of speaking, leading
up to the threatened eviction on the facts.
In the instant case applicant was given six months notice to vacate
the premises. It was content to sit back, blissfully hoping that
first respondent was bluffing. It was only two days before the notice
period was up that the applicant attempted to engage the first
respondent in an endeavour to have the notice period extended by a
month.
Applicant, in the draft agreement which the first respondent refused
to sign, agreed to vacate at the end of the extra month but set
certain conditions for its vacation from the premises.
If therefore the applicant was
willing to vacate the premises on or before 31 May, 2010 one can
safely conclude that the applicant had alternative premises to go to.
That date has passed and the applicant is still in
situ fighting to
remain there.
In view of the foregoing the urgency of the matter has been grossly
eroded. I would hold that the application is not urgent.
2. Would granting of the
relief to stay execution amount to overruling the magistrate's
decision and also amount to determining the appeal when this court is
not sitting as an appellate court?
I think it would and this would set a bad precedent.
If granted, the relief sought would reinstate the effect of the
noting of the appeal. There is no way this court can upset the
magistrate's decision without delving into the merits of the appeal
yet the court will not be sitting as an appellate court. In any
event, and more importantly, the so called appeal's validity is
being impugned and no legal basis for its validity has been
established, the very issue I will advert to next.
3. The validity of the appeal against the magistrate's decision
to grant leave to execute pending appeal
The issue for resolution here is whether an order granting leave
pending appeal to execute a judgment is interlocutory or final.
It is settled law that if it is final it is subject to appeal and if
merely interlocutory then it is not appeallable.
Let me turn with profit to the
case of Gillespies
Monumental Works (Pvt) Ltd v Zimbabwe Granite Quarries (Pvt) Ltd
1997 (2) ZLR 436 (HC).
In the case, the parties had a dispute regarding mining rights over a
certain piece of land. The dispute resulted in an order that
GILLESPIES vacate the area. GILLESPIES noted an appeal against the
order granted. Zimbabwe Granite filed an urgent chamber application
seeking an order that leave to execute the order be granted
notwithstanding the filing of the notice of appeal. The order applied
for was granted. GILLESPIES then filed an appeal against the order,
and applied for an order that Zimbabwe Granite vacate the area
concerned pending the outcome of the two appeals. The application was
dismissed with costs.
SMITH J, after considering a series of decisions of the Appellate
Division of South Africa and Jones and Buckle: The Civil Practice of
the Magistrates Courts in South Africa Vol. 1 8ed. at p.330 regarding
the meaning of the terms 'interlocutory order' and 'interlocutory
judgment', concluded that his order granting leave to execute
pending appeal did not have a final or definitive effect on the main
suit.
In other words, it was an interlocutory order and could only be
appellable with leave of the court.
He held that in the absence of
such leave, the noting of the appeal was invalid and hence there was
no basis for the application by GILLESPIES. See also, Econet
v Telecel Zimbabwe (Pvt) Ltd 1998
(1) ZLR 149 (H); Faye
Trust v Moses Zhanje and Anor
HH57-2002.
It is pertinent to point out the distinction that while leave of the
High Court is required before making an appeal to the Supreme Court
against an interlocutory order or judgment, in the magistrate's
court the situation is different.
Subsection (2) of s40 of the
Magistrates Court Act, [Cap
7:10] does not provide
for the court's leave to appeal.
Appeals are by choice of the appellant but limited to judgments,
rules, orders or decisions covered by paras (a), (b) and (c) of the
subsection. The common thread running through those provisions is
that the judgment, rule, order or decision being appealed against
must have 'the effect of a final and definitive judgment'.
It follows therefore that those orders or judgments which are of a
purely interlocutory nature are not appeallable.
It having been established that an order granting leave to execute
pending appeal such as the one exitant in the instant case is purely
interlocutory and thus not having the effect of a final judgment, on
the main suit despite causing inconvenience to the applicant it is to
all intense and purposes not subject to appeal.
In the result, the noting of the appeal by the applicant against the
magistrate's order granting leave to execute pending appeal was
invalid and there was no basis for this application. The bringing of
the application could be described as analogous to shutting of the
stable door after the horse had bolted.
Accordingly, the urgent chamber application is hereby dismissed with
costs.
Matizanadzo & Warhurst, applicant's legal practitioners
Venturas & Samkange, respondent's legal practitioners
