This is an application for directions in the execution of the provisional order.

The salient facts of the matter are that the applicant entered into a lease agreement with the respondents wherein he leased Shop Number 10 Njube Trading in 2003 and another shop in 2005 known as Jika Jika Bar, Restaurant and Grocery.

At the beginning of 2008, a rent dispute arose which resulted in this application.

I granted the provisional order on 5 January 2009 and the Deputy Sheriff effected service on both respondents. On 6 January 2009, the respondents filed a notice of opposition and served it on the applicants' legal practitioners on 7 January 2009. On the same day, the 7th day of January 2009, the respondents filed a notice of appeal to the Supreme Court appealing the interim relief.

On the advice of their legal practitioner that the appeal to the Supreme Court suspended the provisional order, the respondents disregarded the provisional order.

Upon receipt of this information, the applicants' legal practitioners contacted the respondents legal practitioners on the 12th day of January 2009 in an attempt to resolve the misconception regarding the effect of their “appeal”.

It is conceded by counsel for the respondents that he undertook to counsel for the applicant that the Deputy Sheriff would be advised to proceed with the removal of the respondents on the property thereby giving the applicant vacant possession. Counsel for the applicant had brought to his attention that he was due to leave the country on the 13th day of January 2009. Counsel for the respondents wrote a letter to counsel for the applicant's legal firm, the contents of which are as follows:-

“13 January 2009

Messrs Dube-Banda, Nzarayapenga and Partners
Legal Practitioners
Bulawayo

Dear Sirs

RE: GREENFIELD NYONI VS MRS. L. P EMISSIRY AND ANOTHER HC02/09, SC02/09 AND HC32/09

We are of the view that you used the wrong procedure in obtaining a hearing date for HC02/09. Your application was for directions yet your intention and draft order was to anticipate the matter. Be that as it may, the matter did not take off on the said date.

We are also of the view that if you are aggrieved with the Notice of Appeal filed by ourselves, you will have to file a separate application challenging it. It is our respectful view that the said Notice of Appeal cannot be dealt with within HC02/09.

We filed our Notice of Opposition in HC02/09. If the matter is to continue, we believe you should file you answering affidavit. However, in our view, until the appeal is dispensed with, it is not possible for HC02/09 to be heard.

If you believe our client is in contempt of court, we believe you know the procedure.

Yours faithfully

(signed)
CHEDA AND PARTNERS”

Counsel for the applicant has urged the court to give a directive in view of counsel for the respondents conduct as he has assisted his client to be in contempt of court. The said contempt is based on the following facts which are not in dispute:-

1. The appeal is a nullity.

2. The order he appealed against is not appealable without the leave of the court.

3. Did not approach him for a set down date as per the court order.

4. To date he has not taken steps to prosecute the appeal.

5. He has not paid the security costs.

6. His clients remain in defiance of a court order.

7. He has remained defiant up to date.

In response to this, counsel for the respondents initially became defiant until, at a later stage of the proceedings, when he admitted that he did not act properly as he misled his client and consequently expressed sorrow for what he did.

The fact that the respondents are in contempt of court admits of no doubt. The law is clear in this point; a person who is in contempt remains so until he purges that contempt. Such a person cannot be heard until the contempt is purged.

Counsel for the applicant has urged the court to find counsel for the respondents guilty of misconduct.

In my view, the misconduct complained of was wilful.

In Lewis v Great Western Railway Company BRAMWELL LJ (1877) 3 QBD 195…, defined it as follows:-

“'Willful misconduct' means misconduct to which the will is a party, something opposed to accident or negligence; the misconduct, not the conduct, must be willful. It has been said, and that, I think, correctly, that, perhaps, one condition of 'wilful misconduct', must be that the person guilty of it should know that mischief will result from it.”

The golden rule for misconduct for all legal practitioners is clearly set out in Legal Ethics, E.A.L. LEWIS…, where the learned author states:-

“A practitioner must avoid all conduct which, if known, could damage his reputation as an honourable citizen.”

A legal practitioner has a duty to act honestly and fairly at all times. In addition to this, he must always be truthful and candid in all his dealings.

Counsel for the respondents was not honest with his colleague when he misled him into believing that he would implement the agreement; that he would advise the Deputy Sheriff to execute the provisional order. In fact, all the complainants listed by counsel for the applicant (supra) are correct.

All I can say, without more, is that this type of conduct is deplorable and reprehensible.

Legal practitioners are warned to desist from this type of conduct lest their professional careers stand the risk of being brought to a complete halt. Lawyers, as officers of the court, have an unfailing duty to obey court orders and should not be seen to be assisting litigants in the said disobedience.

I find that counsel for the respondents actively and persistently assisted his clients to do so.

Counsel for the applicant has urged the court to award costs against counsel for the respondents de bonis propiis in view of his misconduct.

I find favour in this submission.

Infact, counsel for the respondents, at a very late stage of the proceedings, conceded that he had ill-advised his clients to disobey the court order.

I am of the opinion that this is an appropriate case for costs of this nature in order to show the court's indignation for such wilful misconduct by a legal practitioner.

The following order is made:-

(1) The provisional order issued by this court on the 15th day of January 2009 should be executed within 48 hours of this order; and

(2) Mr. Mangena should pay costs of today's hearing de bonis propriis.

After being evicted for the second time, the applicant obtained a writ from the Magistrates Court restoring her possession of the property.

The writ is allegedly not based on any court order issued by the court and served on the other parties.

Two preliminary issues were raised by the first respondent. Firstly, it was contended that the applicant adopted the wrong procedure as it should have resorted to interpleader proceedings in terms of the Rules of Court.

Counsel for the applicant did not make any submissions on the procedure adopted in this matter.

I agree that this is a matter that should have been dealt with by way of Interpleader Notice in terms of Order 30 of the High Court Rules. On the face of it, one cannot fault the third respondent if account is taken of GILLESPIE J's remarks in the case of Doelcam (Pvt) Ltd v Pichanick and Others 1999 (1) ZLR 390 (H) in which..., he had this to say -

“The Messenger of Court who seizes and sells the property of another is protected from the consequences of his act by the authority of the court he serves. What would otherwise be a wrongful and intentional invasion of another's rights of property has the element of wrongfulness removed by the existence of a valid warrant of court. The warrant permits not only the removal of the judgment debtor's goods, but also the removal from the judgment debtor's possession of goods of third parties provided that no notice of the third party claim is given to the Messenger. That property is deemed to be that of the debtor. Where such notice is given, then attachment is unlawful; interpleader proceedings must be instituted.”

The applicant and Noah Taguta have been quarrelling over the High Priesthood of Marange Apostolic Church of St. Johanne for some years now. Each is now leading a faction. The fight for the right to inherit priestly regalia has been ongoing for some time. This case, HC11783/11, and case no. HC11782/11 mirror the extent to which the fight has evolved. Though both cases were placed before me for hearing I decided to issue separate judgments in view of the specific issues in each case. This judgment pertains to the issues in HC11783/11.

In December 2006, the applicant obtained a default judgment against the first respondent. The first respondent, through Noah Taguta, applied for the rescission of the default judgment. That matter was placed before me and I granted the application for rescission on 14 May 2011. My order read as follows:-

1. The default judgment which was granted in case no.HC2716/05 on 13 December 2006 be and is hereby rescinded.

2. The applicant be and is hereby granted leave to file its opposing papers in case no. HC 2716/05 within 10 days from the date of this order.

3. The costs of this application and HC742/07 shall be borne by the first respondent and Mr. Musemburi of T. K. Hove and Partners on an attorney client scale, jointly and severally, the one paying the other to be absolved.”

The original result slip bears my signature and is dated 14 May 2007. The signature and date against that signature were indeed authored by me. Subsequent to that, another result slip with four clauses was authored. The fourth clause on this result slip reads as follows:

'Pending the final determination of case number HC2716/05, the first respondent shall restore to Noah Taguta the goods which were seized by the Deputy Sheriff for Mutare on 13 February 2007.'

A perusal of reference file HC489/07 shows that the fourth clause may have been imposed after a letter by the first respondent's legal practitioners dated 30 May 2007 to the Registrar wherein the legal practitioner stated what he believed was the correct order as pronounced in court. He went on to ask the Registrar to correct the order in these words:

“Please could you urgently revisit the full text of his lordship's judgment and have the order corrected soon.”

In his letter dated 9 November 2011 to the applicant's legal practitioners, the first respondent's legal practitioner confirms that the four clause order was issued on 1 June 2007. Thus, as from 1 June 2007 the file for case no. HC489/05 now had two result slips and court orders that were not the same.

The first respondent sought to enforce the order with four clauses as it is the one with a clause requiring the applicant to restore to Noah Taguta all the goods that had been removed by the Deputy Sheriff in pursuance of a default judgment.

It is common cause that the first respondent's attempt to obtain a writ of execution were unsuccessful. The Assistant Registrar who handled the case indicated that he did not issue the writ because of the two contradictory orders. He advised the first respondent's legal practitioners' that he needed to investigate the issue first. The first respondent's legal practitioner confirmed that the Assistant Registrar refused to grant the writ of execution - albeit he stated different reasons for such failure.

Having failed to obtain the Writ of Execution, the first respondent's legal practitioner went ahead and executed the order. According to his version, he provided the Deputy Sheriff with the following documents -

(i) The court order with four clauses;

(ii) Two affidavits of persons who knew the location of the goods and who took him there;

(iii) Applicant's affidavit;

(iv) A request for police officers to assist him in the execution;

(v) A previous return of service.

There was no Writ of Execution. Execution nevertheless took place on 24 June 2011.

The applicant not being happy with the outcome has approached this court seeking an order that:-

1. The first respondent shall return the entire goods attached and removed from applicant's place on 24 June 2011 as listed in the Notice of attachment of 24 June 2011;

2. No further attachments shall be done in the absence of an order for contempt of court and until the application for reinstatement of Case No. HC2716/05 has been heard and determined.

3. The first respondent and Mr Muchandiona to pay costs on a client-attorney scale.”

The first respondent opposed the application. The respondent contended that the correct order is the one with four clauses.

As regards execution of the order without a Writ of Execution, the first respondent confirmed just as much when the deponent to the opposing affidavit, Noah Taguta, confirmed the failure to obtain a Writ of Execution and the fact that they nevertheless proceeded to instruct the Deputy Sheriff to execute.

The main issue discernible from the documents filed of record pertains to the validity of the execution without a writ of execution. It is, however, pertinent to also consider the issue of the two court orders attached as annexure A1 and A2 to the applicant's founding affidavit….,.

The applicant's allegation that the execution was done without a writ of execution is common cause. The respondent contended that in the circumstances of this case there was no need for a writ of execution.

Rule 322 of the High Court Rules states that:-

“The process for the execution of any judgment for the payment of money, for the delivery up of goods or premises, or for ejectment, shall be by writ of execution signed by the registrar and addressed to the sheriff or his deputy, in accordance with one or other of Forms Nos. 34 to 41.”

The Rule seems clear that it applies in respect of 'any judgment for the payment of money, for the delivery of goods or premises, or for ejectment.'

In Mhlanga v Sheriff of the High Court 1999 (1) ZLR 276 (H)…, GWAUNZA J emphasized the requirement when she said that:-

“In as much as the Deputy Sheriff cannot attach property in execution unless there is a judgment that has to be satisfied, he cannot attach the property in question without a writ of execution.”

The respondents' counsel contended that in as far as the order in question required the applicant to perform an act, to do something and not to pay anything, it was thus an order ad factum praestandum. The respondent was thus at liberty to enforce by way of writ, at its own risk, or by other lawful means, including contempt of court.

Counsel's argument in this regard appeared misplaced. The authorities cited tend to confirm this.

In Coetzee v Government of South Africa & Others 1995 (4) SA 631…, SACHS J said the following:-

“In respect of contempt of court, the common law drew a sharp distinction between orders ad pecuniam solvendam, which related to the payment of money, and orders ad factum praestandum, which called upon a person to perform a certain act or refrain from specified action. Failure to comply with the order to pay money was not regarded as contempt of court, whereas disobedience of the latter was. Thus civil imprisonment for failure to pay a debt was a remedy in its own right, not dependent on proof of contempt of court. Conversely, contempt of court proceedings were not used against defaulting judgment debtors.”

In casu, the order was for the delivery of goods. The respondent sought to send the Sheriff to attach and remove the goods. It is that form of execution that requires a Writ of Execution. This is not a case whereby the respondent sought to effect the delivery through contempt proceedings. The respondent attempted to have the Registrar sign a writ of execution but the Registrar would not.

I am of the view that counsel for the respondent should have paid heed to the Registrar's caution. The Registrar's refusal was based on the existence of two orders that were not the same. That issue had to be clarified before execution could take place. As I have already made a finding that the order with four clauses was done later and without following the proper procedure for correction or amendment, it follows that that order cannot stand. Any purported enforcement of that order is null and void….,.

Accordingly, it is hereby ordered that:-

1. The first respondent shall return all the goods attached and removed from the applicant's place on 24 June 2011 as listed in the Notice of Attachment of 24 June 2011.

Background

It is essential to briefly outline the background of this matter before dealing with the issues raised in the Urgent Chamber Application. On 16^th June 2011, the respondent obtained default judgment against nine defendants under case number HC851/11. In that matter, the first and second defendants are the Co-Ministers of Home Affairs, the third defendant is the Commissioner General of Police, the fourth defendant is Superintendent Pilate Moyo (Officer Commanding Camps, Bulawayo), the fifth defendant is Chief Superintendent Nkomo (Criminal Investigation Department, Bulawayo), sixth defendant is Detective Inspector Jefias Sibanda, the seventh defendant is Detective Assistant Inspector Sibanda, eighth defendant is Detective Constable Mugabe and the ninth defendant is cited as Constable Shoko.

The basis of the respondent's claims against the nine defendants arose out of incident which occurred around 10^th March 2010 at Criminal Investigation Department Homicide, Bulawayo. The respondent's version of events, as set out in his declaration, is that on or about the 10^th March 2010 he and other police officers, acting on the instructions of their superiors, were instructed to cover up a murder case involving a suspect which occurred at Criminal Investigation Department Homicide. The respondent states that they were instructed to go and stage manage a shoot out of two suspected armed robbers who had died in police custody. As a result of the death of the suspects an inquest was opened. On the 9^th of July 2010, and at Tredgold Building, in the Bulawayo Magistrate Court, the respondent testified during the inquest and gave details regarding the stage-managed shoot-out. Soon after giving evidence, the respondent was approached by five police officers, including the 8^th and 9^th defendants referred to above, who assaulted him in public before handcuffing him. The respondent was taken into police custody from the 9^th to the 12^th July 2010 and charges of perjury were laid against him. The respondent was released on bail on 14^th July 2010. The respondent was then immediately evicted from his police living quarters. The respondent was discharged from the police force.

It is common cause that the defendants did not enter an appearance to defend the respondent's claims and judgment was accordingly granted by the Honourable KAMOCHA J on the 16^th June 2011, in the following terms:

“IT IS ORDERED THAT:

(a) Payment of US$6,400= being legal costs incurred in trying to find justice in his matters.

(b) Payment of US$50,000= being general damages for pain, shock and suffering and contumella, depreciation of liberty, mental trauma, assault and humiliation plaintiff suffered as a result of the malicious arrest detention, prosecution and unlawful eviction.

(c) Interest at the prescribed rate from date of issue of summons to date of final payment.

(d) Costs of suit.”

In a bid to enforce the default judgment and recover the sums of money awarded to him, the respondent issued a Writ of Execution against immovable property on the 21^st December 2011. It is the enforcement of this Writ of Execution which has resulted in what can only be described as a cat-and-mouse game between the respondent and the applicant and his officers.

On 29^th November 2011, almost five months after the default judgment was granted, the applicant filed an Application for Rescission of Judgment under case No.HC3527/11. The application was opposed on the basis that it was filed way out of time and there was no application for condonation for the late filing of the application for rescission of judgment. It would seem that the applicant has still not pursued the application for rescission of judgment for reasons that are not entirely clear.

On the 8^th of May 2012, the respondent filed an application seeking an order for contempt of court. In his founding affidavit, the respondent avers that on the 10^th January 2012 the Deputy Sheriff had proceeded to Number 208 L.Takawira Avenue, being the residence of Superintendent Pilate Moyo, where he had placed under judicial attachment several of his movables in terms of the Writ of Execution. The date of removal was set for the 13^th January 2012. On the 15^th February 2012, the Deputy Sheriff's assistants returned to Superintendent Pilate Moyo's residence to remove the attached property. The removal was abortive and Superintendent Pilate Moyo threatened to kill the Deputy Sheriff's assistants. The respondent complained, in his founding affidavit, that the conduct of Superintendent Pilate Moyo and the other defendants was a flagrant disregard of a court order and contemptuous of this court. Further, attempts to execute the court order against the other defendants cited on the Writ of Execution was also met with resistance and there was violent obstruction of the Deputy Sheriff and his assistants in the execution of his duties. The respondent, therefore, sought an order declaring, the defendants to be in contempt of court and that they be logged at the nearest prison for a period not exceeding 90 days or until such time as they purge their contempt. On the 7^th February 2013 the Honourable CHEDA J issued the following order:

“IT IS ORDERED THAT

1. 1^ST Respondent be and is hereby declared to be in contempt of court.

2. The Deputy Sheriff be and is hereby authorised and directed to apprehend the 1st Respondent, Superintendent Pilate Moyo, with the assistance of Senior Assistant Commissioner Mutamba, the Officer Commanding, Bulawayo Province or his Assistant and lodge him to the nearest prison and this shall be your warrant.

3. The officer-in-charge of the Prison shall detain the 1^st Respondent for a period not exceeding (90) ninety days on until such time they purge their contempt and this shall be his warrant.

4. The 1^st Respondent pay costs of this application on an attorney and client scale.”

Armed with Honourable CHEDA J's court order dated 7^th February for contempt of court, the respondent made an attempt to enforce the said order. What transpired thereafter is best summarised by a letter from the respondent's legal practitioners, dated 22 February 2013, and addressed to Senior Assistant Commissioner Mutamba. The contents of the letter are as follows:

The Senior Assistant Commissioner S. Mutamba

Officer Commanding Bulawayo Province

Provincial Headquarters

Bulawayo

Dear Sirs,

RE: COMPLAINT: DENIAL OF THE DEPUTY SHERIFF AND OURSELVES FROM ENTRY INTO ROSE CAMP PROVINCIAL HEADQUARTERS

On Tuesday the 19^th of February 2013 the Deputy Sheriff called at your office in a bid to serve you with a court order. The said court order has directed you or your Assistant to assist in the apprehension of Superintendent Pilate Moyo for contempt of court. You were said not to be in the office. The deputy Sheriff was told to call back later. The Deputy Sheriff could not come back on this day. We accompanied the Deputy Sheriff and got to your office some few minutes after eight in the morning of the 20^th of February 2013.  The Chief Clerk, who identified himself as Inspector Charles Machingura, advised that you were out and had gone to Harare on duty. We requested to see your Assistant, Assistant Commissioner Gora, who was present. We were advised by the same Chief Clerk that he was in a briefing which was to take about an hour. We waited to the Chief Clerk's full knowledge. We noted that we had been ignored as none was informing us of what was happening. We then checked with the Chief Clerk who this time told us that Assistant Commissioner Gora finished briefing and had gone for sports and that we were not going to see him. The Deputy Sheriff and ourselves would not understand it. The Chief Clerk simply told us to come back at 14:00 hours. The Deputy Sheriff requested if he could go and see him from the grounds next to your offices. He was told that that was not possible.

This is the time our Mr Bukuta called you on your cellphone for assistance. For sure, there was slight movement. After talking to you, the Chief Clerk emerged from his office to which he repeated that Assistant Commissioner Gora was still not in but had requested that he (Chief Clerk) read the contents of the court order to him (the Assistant Commissioner) over the phone. Though the Deputy Sheriff and ourselves suspected that the Assistant Commissioner was simply trying to avoid us, the Deputy Sheriff gave the Chief Clerk a copy of the court record. He came back later saying Assistant Commissioner Gora insisted we should see him at 14:00 hours. We all knew that the Chief Clerk only wanted to take photocopies from the record. This is not an issue as the court order, even without taking a photocopy from the Deputy Sheriff, is in the public domain. The court record from which we uplifted a copy from the High Court is a public record. Whilst we were still waiting at your office we actually saw Superintendent Pilate Moyo driving in a not so good looking official Mazda pickup truck. He emerged from his office, drove down into the residential area, round the flats, to the road on the eastern side of your driving school yard out of the gate and turned left into Basch Street. As he was avoiding us by the main parking. We were back at your office at 14:00 hours to see Assistant Commissioner Gora as he had promised. To our surprise, him, together with the Chief Clerk, were said to be away on sports. Though we queried as to why Assistant Commissioner Gora, with full knowledge that we were coming with the Deputy Sheriff decided to go away. We drove out briefly and our Mr. Muganyi phoned and spoke to Assistant Commissioner Gora on his cellphone. Assistant Commissioner Gora promised to phone back shortly. We decided to wait for Assistant Commissioner Gora's call at his office.

This is the time when all hell broke loose. Our efforts to drive back to your office to see Assistant Commissioner Gora was thwarted by Seargent Major Zhou L. Who seemingly was waiting for us. He told us that we were not allowed in to your offices, Provincial Headquarters, Bulawayo Province. No satisfactory explanation was given. There we were the Deputy Sheriff and ourselves got stuck and had to leave. We could not force our way through the gate. The court order, as you are now fully aware, copy attached, is for you or your Assistant to assist the Deputy Sheriff to apprehend Superintendent Pilate Moyo for contempt of Court. The Deputy Sheriff was refused entrance or access to your offices. We view this as a flagrant and brazen disregard of a court order and an obstruction of the Deputy Sheriff from carrying out his lawful duties as mandated by the High Court of Zimbabwe. This is therefore our official complaint to you as the most Senior Police officer who is commanding Bulawayo Province. You are required to assist not only as the most senior officer, but as directed by the Honourable Court.

On this note we ask for an immediate appointment to see you in connection with this matter. In the event that we do not manage to meet you by close of business on Monday the 25^th of February 2013 then it is our client's conclusion that no help is going to come from your office. Our client will be left with no choice but to approach your superiors and/or approach the Honourable Court on an urgent basis for an appropriate order against whoever we think is denying him justice, and whoever is harbouring Superintendent Pilate Moyo, Officer Commanding Camps and against all those who still believe that the police is above the jurisdiction of the High Court jointly and severally in their personal capacities. The treatment your office gave displays the highest levels of unprofessionalism. The same conduct that led to this order we seek to enforce was the conduct your good offices displayed.

We await to hear from you shortly.

Yours faithfully

(signed)

Dube-Banda, Nzarayapenga and partners

c.c The Registrar

High Court

Ref (HC 1444/12).”

On 26^th February 2013, the applicant in the present application, the Commissioner General of Police, filed an Urgent Chamber Application seeking the following relief:

“(a) TERMS OF FINAL ORDER SOUGHT

That you should show cause to this Honourable Court why a final order should not be made in the following terms:

(i) Execution of judgment handed down in case No.HC851/11 be and is hereby stayed until finalisation of the application for rescission which is still pending under case No.HC851/11.

(b) INTERIM RELIEF GRANTED

(i) Pending finalisation of this matter, the writ of execution granted, dated 21 December 2001, be and is hereby rescinded.”

The urgent application for stay of execution was filed by the Commissioner General of Police as the applicant. He avers that he is vicariously liable for actions of his officers, which actions are done during the course of employment. He further avers that the respondent should have sought recourse against the Commissioner General in his official capacity instead of executing it against a mere police officer who is executing his duties. The applicant seeks an order staying execution and “rescinding the Writ of Execution.”

When the court reconvened at 4:30pm of Friday 28 March 2014, the first respondent handed in the report which he had prepared on the matter and so did the second respondent who handed in her opposing papers. The papers in question gave a graphic history of how the second respondent acquired title in the applicant's property which is the subject of the present application. The court was satisfied that her right and title to the property was, or is, unassailable although it is, in the applicant's view, this same acquisition which the applicant is contesting in some case, or cases, which are before this court. The contest in question caused the applicant to appeal against the eviction order of 13 March 2014. The first respondent carried out the eviction on the basis of the court order of 13 March 2014.

The applicant argued that the eviction was unlawful on the basis that the first respondent continued with the eviction when his attention had been drawn to the fact that the court order which he was then enforcing had been appealed against. During the Friday 4:30pm hearing of the application, the court was confronted with a dispute of fact which could not be resolved on the papers. The dispute centred on the time which the first respondent received the applicant's appeal papers as measured against the time that the eviction process was concluded. The court and the parties agreed that the hearing remained postponed to the date and time which had originally been agreed upon to enable them to conduct an inquiry which was aimed at resolving that dispute of fact. The court relied on Rule 4C of the Rules of this Court when it decided to go into the inquiry which was conducted and concluded on 31 March 2014. The inquiry showed, in clear terms, that the first respondent became aware of the appeal which the applicant filed with the Supreme Court when the eviction, which his personnel was conducting at the applicant's house, was still in progress.

The report which the first respondent handed into court and distributed to the parties was prepared by him on Friday 28 March 2014. The report reads, in part, as follows:

“The Sheriff's Office received Notice and Grounds of Appeal in terms of Rule 32 of the Supreme Court of Zimbabwe Rules and advised that at 12:29pm on the 26^th of March and the additional Sheriff had already finished removing property from the house.

It was the locksmith who was now in the process of changing the key.”

In stating as he did, the first respondent was desirous of convincing the court that the applicant's appeal had been overtaken by events, and, so it would appear, the appeal which had been lodged with the Supreme Court could not be invoked to suspend an act which, in the first respondent's view, had been lawfully executed.

The court remains of the view that execution was not complete until all the processes which went into it had been dealt with to their final conclusion. The locksmith, who was to change the keys to the house and possibly the gate which leads into the premises, did not call at the property on his, or her, own accord. The first respondent hired him with a view to having the processes completed. He did so because if he left the gate and the house unlocked, the applicant would have had the easiest of tasks. He would simply have returned his household goods and his family into the house with little, if any, difficulty. On a proper interpretation of the word “execution”, therefore, the locksmith was part of the Sheriff's team. It follows from the foregoing that the first respondent's conduct, which, all along, was lawful became unlawful when his attention was drawn to the fact that an appeal against the eviction order had been noted and he, that matter notwithstanding, allowed the locksmith, who was part and parcel of his eviction team, to change the keys to the house and the gate.

It is this aspect of the first respondent's conduct which the applicant described as having been an unlawful one and the court agrees with the applicant in this mentioned regard.

The unlawful aspect of that part is based on the accepted principle of law which is that an appeal properly noted suspends the operation of the judgement of the court a quo. There are a number of case law and other authorities which support the stated position. Amongst those authorities is the case of Wood N.O. v Edward & Anor 1966 ZLR 336 which the court has had an occasion to read as well as analyse to its total satisfaction.

It is on the basis of the above observed set of circumstances that it cannot be said that the applicant was not despoiled of his occupation of the property which is the subject of this application. He applied for the relief of mandament van spoliae. The requirements of that relief are simple and straight forward. They are that the possessor:

(a) Was in peaceful and undisturbed possession of the property; and

(b) He had unlawfully been deprived of such possession.

He is, therefore, asserting that he must be restored to the status quo ante or the position in which he was before he was despoiled. The applicant's argument in this mentioned regard is unassailable.

The salient facts of this matter are the following.

On 4 August 2011, the first and second respondents obtained a provisional order for the vacation within, 48 hours, by the applicant of the premises known as Elons Court, 3^rd Avenue and Main Street, Bulawayo. The applicant did not vacate and the Deputy Sheriff attempted to evict the applicant on 30 August 2011 but was apparently met with strong resistance up to a point that the Deputy Sheriff had to enlist the assistance of members of the Zimbabwe Republic Police, namely, Superintendent Ndlovu. The latter invited the parties to meet in Bulawayo Central Police Station. At Central Police Station all the parties' lawyers were present and one Chief Inspector Mandere directed the parties to the Deputy Registrar of this Court. The latter advised the applicant's legal practitioner that the applicant was in contempt of court and should vacate the premises. The applicant evidently did not accept such counsel and instead filed this application under a certificate of urgency. 

The respondents have raised two points in limine:

(i) The applicant is approaching the court with dirty hands; and

(ii) That this matter is not urgent.

The background of this matter is that sometime in March 2011, the first respondent caused an attachment of the applicant's vehicles in pursuance of a judgment debt against N & S Properties (Pvt) Ltd. The vehicles in question were at the time being used by Mr & Mrs Masuku of the applicant. The attached vehicles are:

(1) A Mitshubishi Pajero;

(2) A Toyota Vigo Single Cab; and

(3) A Mercedes Benz S350.

The said motor vehicles are registered under Alpha Motors who furnished proof of ownership and/or registration books to the second respondent. In addition to this proof, the applicant filed two interpleader affidavits and a letter advising the second respondent that the motor vehicles did not belong to N & S Properties (Pvt) Ltd. The second respondent, however, proceeded to attach them in execution of the said judgment debt.

The second respondent totally ignored the inter pleader affidavits and letter advising him of the applicant's claim on the attached property.

An inter-pleader is where a person faced with an adverse claim to property, wherein, he claims no interest, but is at the time in possession, seeks to compel the warring parties, that is, the plaintiff and the defendant to settle their dispute without involving him/her in that dispute hence its claim of the attached property.

The second respondent totally ignored advice from the applicant not to proceed with the attachment and proceeded to advertise the sale in execution of a Toyota Vigo in the Chronicle of the 11^th May 2011. The second respondent should not have proceeded to advertise the property as soon as he became aware of the applicant's claim.

Despite the existence of a lawful consent court order barring the respondent from disconnecting water services from the applicant's premises until the finalisation of this application, the respondent still went ahead and defiantly disconnected water services from the applicant's premises with impunity without any Court order or  legal justification.

In spite of the applicant's pleas pointing out that the respondent was in contempt of court it insolently refused to reconnect water supplies to his premises. It had, again, to take the intervention of this Court and threats of imprisonment for contempt of court for the City Council authorities to restore water to the applicant's premises….,.

I must, however, commend counsel for the respondent, Mr. Kwaramba, for taking prompt and appropriate action to avert a nasty standoff between the respondent and the Court in which someone was likely to emerge badly bruised as the courts derive their authority from the people of Zimbabwe in terms of section 162 of the Constitution of Zimbabwe and to that extent court orders must be honoured and respected. They can only be defied at one's peril because they have the full support of the State's entire enforcement machinery.

In his counter urgent chamber application, the first respondent sought the following relief:

“IT IS HEREBY ORDERED THAT

1. That the undertaking provided by the 1^st respondent with respect to security de restituendo in terms of a letter dated 23 April 2014, be and is hereby deemed sufficient for purposes of Rule 31 and Rule 32.

2. Costs to be borne by the party opposing this counter-application.”…,.

This brings me to the issue of the Counter Urgent Chamber Application.

The first respondent's contention is that the decision taken by the Registrar to withdraw the writ was unlawful. The first respondent now seeks an order that the undertaking it provided with respect to security de restituendo, in terms of a letter dated 23 April 2014, be deemed sufficient for purposes of Rule 31 and Rule 32 of the High Court Rules, 1971.

The applicant, on the other hand, countered that argument by saying that the order obtained by the first respondent, being provisional sentence, the first respondent did not give or tender any security de restituendo before issuing out such writ in compliance with the peremptory provisions of Order 4 Rule 31(a) of the High Court Rules; meaning to say, no hearing for the determination of such security de restituendo was ever conducted. It was the Registrar who had the power of setting the security.

The provisions of Order 4 Rule 31 and Rule 32 are very clear and unambiguous. The Rules say:-

“31. Cases where plaintiff must give security

The plaintiff shall give security de restituendo in the following cases -

(a) When he desires to issue a writ of execution against the defendant and before its issue;

(b) Against payment by the defendant who demands security.

32. Security to be fixed by registrar

The nature of the security and the amount thereof shall be fixed by the registrar with leave to either party to appeal against his decision to the court.”

In casu, the first respondent, who is the plaintiff in case HC2601/14, did not give security de restituendo before the writ in question was issued. Rule 32 provides for an appeal against the decision of the Registrar. In my view, it is not proper for the first respondent to proceed by way of counter urgent chamber application against the decision of the Registrar. The courses open to the first respondent is to either give a proper security de restituendo to the Registrar so that a new writ is properly and lawfully issued, or, alternatively, to appeal to this court against the decision of the Registrar.

Accordingly, the counter urgent chamber application is dismissed with costs.

The appellant was convicted by the Regional Mmagistrate's Court in Hwange of one count of stock theft in contravention of section 114 of the Criminal Law Code [Chapter 9:23]….,.

The State case is that the appellant was employed by the Ministry of Justice as the Messenger of Court for Hwange. One Mackenzie Ndebele had a dispute with his wife, Sibusiso Ndlovu, after the latter had sold certain matrimonial property pursuant of a court order granted in her favour by the Magistrates Court. Mackenzie Ndebele obtained a High Court order for the return of the property in question, which included a scotch cart box in the custody of the complainant, Mike Ndlovu, who had bought it from Sibusiso Ndlovu. The High Court order was to the effect that each of the parties was to bear its own costs. By letter dated 12 February 2007 (exhibit 1), Cheda and Partners, the legal practitioners representing Mackenzie Ndebele, instructed the appellant to proceed to recover their client's property in terms of the court order. The letter reads in part as follows:

“The Messenger of Court

P O Box 99

Victoria Falls

Dear Sir

RE: MACKENZIE NDEBELE VS SIBUSISO NDLOVU: CASE NO.1539/05

We refer to the above matter and attach hereto copy of a court order directing your office, under paragraph 1b, to recover all the property taken away from our client under case number CC13/03.  Such property includes certain cattle which our client has managed to locate. To that end, we attach hereto for your reference copies of the application for review and advise that our client will accompany you to recover certain head of cattle which belong to him and are in the custody of other people following distribution by Sibusiso Ndlovu.

He shall liase (sic) directly with you concerning your fees. We await your return of service which you have to give to our client.

Yours faithfully

(signed)

CHEDA AND PARTNERS”

In pursuance of those instructions, and in execution of the court order, the appellant demanded that Mackenzie Ndebele pay him ZS$8 million and 60 litres of fuel to cover his execution costs. When that was done, he, in the company of Mackenzie Ndebele, proceeded to Lusulu, Binga, to recover property from villagers who had it, including the complainant from where he intended to recover the scotch cart box. He did not recover the scotch-cart box as the complainant insisted on being refunded the purchase price he had paid to Mackenzie Ndebele's wife.

Sometime in June 2007, the appellant made another trip to Lusulu with Mackenzie Ndebele but before doing so, he charged him another 60 litres of fuel and Z$4million as his costs. The appellant told Mackenzie Ndebele that he wanted to punish all the people who had resisted with the property by charging them a beast each.

Upon arrival in Lusulu, the appellant gathered people, including the Veterinary Officer and some police officers, at the complainants homestead. Unfortunately, both the complainant and his wife were away from home. They had left three (3) children, the oldest of whom was aged 13, looking after the home. The appellant demanded an unspecified sum of money as his execution costs and when none was given, he directed that the cattle be penned. Whereupon he selected “a very fat heifer” which he said was equivalent to Z$15 million. It was unprocedurally cleared for slaughter.

After the heifer was slaughtered, the appellant took it in his car without skinning it and left for Hwange.

In his defence, the appellant stated that although the complainant was not a party to the proceedings between Mackenzie Ndebele and his wife and there was no order for him to pay the execution costs; he had to slaughter the heifer to recover his costs of travelling to Lusulu on two occasions. He did not explain why this was necessary when he had already levied the costs of execution against Mackenzie Ndebele.

The court a quo found that the State had proved its case beyond a reasonable doubt and having failed to find special circumstances as would entitle the appellant to a sentence other than the mandatory one, it sentenced him aforesaid.

The appellant was not happy with the decision of the court a quo and launched this three-pronged appeal.

In respect of conviction, counsel for the appellant submitted that the seizure and slaughter of the complainant's beast did not constitute theft as defined in section 114(2)(a) of the Criminal Law Code [Chapter 9:23] as the circumstances under which the beast was taken, in execution of a court order, transformed the actus reus from unlawful to lawful. He went on to argue that the appellant lacked the requisite mens rea in that he subjectively believed that he was entitled to recover execution costs from the judgment debtor. He took the view that the fact that the appellant observed all the formal requirements for slaughtering a beast by involving the Village Head, the veterinary service and the police shows that the appellant subjectively believed that he was acting lawfully and this entitled him to the defence of “claim of right.”

I do not agree.

Section 114(2) of the Criminal Law Code [Chapter 9:23], under which the appellant was charged, provides;

“(2) Any person who –

(a) Takes livestock or its produce -

(i) Knowing that another person is entitled to own, possess or control the livestock or its produce or realising that there is a real risk or possibility that another person may be so entitled; and

(ii) Intending to deprive the other person permanently of his or her ownership, possession or control, or realising that there is a risk or possibility that he or she may so deprive the other person of his or her ownership, possession or control; or

(b) …,.; or

(c) …,.; or

(d) …,.

Shall be guilty of stock theft and liable -

(e) If the stock theft involved any bovine or equine animal stolen in the circumstances described in paragraph (a) or (b), and there are no special circumstances in the particular case as provided in subsection (3), to imprisonment for a period of not less than nine years or more than twenty-five years.”

In casu, the appellant knew that the complainant was entitled to own, possess and control the heifer.  Notwithstanding such knowledge, and intending to permanently deprive the complainant, proceeded to take the beast using his position as the Messenger of Court. This was done in the absence of the complainant. In my view, the actions of the appellant fell within the provisions of section 114 of the Criminal Law Code [Chapter 9:23]. The appellant was armed with a court order in which only Mackenzie Ndebele and Sibusiso Ndlovu were parties. That court order specifically provided that “there shall be no order as to costs;” meaning that neither of the named parties was to bear the other's costs. What is more, the complainant was not a party cited in the court order he was executing and neither was he directed to bear the costs of execution. Indeed, the appellant went on to issue a Notice of Attachment (exhibit 2) in which, not only was the complainant's name conspicuous by its absence, but the property being attached was a scotchcart.

That notwithstanding, the appellant inexplicably proceeded to attach, slaughter and take away the complainant's heifer. The appellant did not even take away the heifer for sale by public auction, as would be expected of a Messenger of Court executing a writ. According to the appellant's own witness, Andrew Chihembekedza, who was driving the appellant, they took the carcass straight to the appellant's home - even as it had not been skinned. We can only speculate what happened to the carcass thereafter.

There can be no worse case of impunity by a court official.

Here is an official of the court who has no less than 13 years experience, who should be taken to know pretty well that he cannot just seize people's property without the authority of the court, and has been paid anyway, but who decides that he would arrogate to himself the power of the court and award himself costs he scarcely deserved. The appellant was a law unto himself when he got to Lusulu on that assignment. It was for this reason that he blissfully told Mackenzie Ndebele that he would appropriate a beast each from those villagers who resisted his overtures.

In doing so, he was acting outside the law and nothing can turn this unlawful misadventure into a lawful one as counsel for the applicant would want the court to believe…..,.

BERE AJA: I have had the privilege of going through the elaborate and exhaustive judgment by UCHENA JA with which I am in total concurrence.

I make the observation that the attachment and the subsequent disposal of the property in this case, by the second respondent, was outrageous and clearly calculated to inflict maximum damage to the appellant and thereby running down its operations.

If the second respondent had done a simple valuation of the attached property, as dictated by Rule 335, she would have ascertained, even before the sale had been conducted, that the disposal of a single item would have been sufficient to satisfy the judgment debt. The second respondent was evidently vindictive in her approach and acted in the most unprofessional conduct in the discharge of her duties.

Such conduct calls for censure from this court.

If the second respondent's conduct was prompted by the alleged obstruction of her sale in execution of judgment by the conduct of the appellant's employee, as alleged in her heads of argument (paragraph 5.2), surely the remedy did not lie in conducting a vindictive sale but rather in invoking the criminal machinery that has been put in place to deal with the situation that confronted her. The second respondent could have easily invoked the provisions of section 22 of the High Court Act [Chapter 7:06] in dealing with the errant individual. For the avoidance of doubt, the section is framed as follows:

“22 Offences relating to execution

(2) Any person who -

(a) Obstructs the Sheriff or a Deputy Sheriff or his assistant or a Sheriff's agent in the execution of his duty;

(b)…,.

(c)…,.

(d)…,.

shall be guilty of an offence and liable to a fine not exceeding level five or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment.”

Legal practitioners should keep abreast with, and heed pronouncements from the courts. It is a duty. The determination of cases on the merits should not be impeded or stalled unnecessarily for failure to follow the Rules.

This was the case in this matter.

From the papers filed by both parties, the merits appeared well set out. But, the case could not proceed. A technical objection taken by the respondent, in limine, blocked it.

I reserved judgment to think through it properly. Now, here is my judgment on the point.

In December 2014, this court granted a provisional order by consent. This followed an urgent chamber application by the applicant. The interim relief was a stay of execution of the applicant's goods, pending the confirmation or discharge of the provisional order. The final relief sought was for the first respondent (“the respondent”) to show cause why its writ in the main action, under HC3268/12, should not be set aside, and why its legal practitioner of record should not pay the costs of the application personally, or, in the alternative, why the respondent should not pay those costs on the higher scale.

The facts were simple.

The parties had once been landlord and tenant; the applicant being the tenant, and the respondent the landlord. There was a dispute over the proper level of rentals to be paid with the advent of the multi-currencying system introduced in this country in 2009. The dispute was taken to arbitration. An award was made in favour of the respondent. The award was registered as an order of this court under HC3268/12.

A writ of execution was issued.

But, the applicant claimed it had since paid all the arrear rentals. It accused the respondent and its legal practitioner of improper conduct by improperly trying to use the rent writ to recover operating costs and interest over which the respondent had no judgment.

Certainly, the respondent had no judgment for the operating costs and the interest on the rentals. It had issued summons under HC8399/14 to claim these....,.

So, basically, the applicant's case was, that, for the respondent to try and use the rent writ to recover disputed operating costs and interest was an extreme form of abuse of the court process. It prayed that its lawyer, allegedly the architect of the abuse, be mulcted in costs.

Of course, the respondent denied any wrongdoing.

This matter was placed before me on a certificate of urgency in terms of Rule 242 of the High Court Rules as amended. I dismissed the application with costs because of the preliminary issues raised. The applicant has requested written reasons for my decision.

These are they.

The applicant filed an urgent application for stay of execution. The interim relief is in the following terms:

(a) The 1st, 2nd, and 3rd respondents be and are hereby ordered to stay eviction and removal of the applicant from No. 2 Daramombe High School.

(b) The 1st and 2nd respondents shall bear the costs of this application on a legal practitioner client scale.”

The facts of the matter, as set out in the applicants founding affidavit, may be summarized as follows.

The applicant is employed as a Boarding Master at Daramombe High School. The first respondent is the Church of the Province of Central Africa, a registered religious organization. The second respondent is the Anglican Dioceses of Masvingo, a division of the first respondent. The third respondent is the Deputy Sheriff, cited in his official capacity. On 26 April 2000, the applicant was appointed as the Boarding Master of Daramombe High School. He was furnished with a house, being House No.2 Daramombe Mission. On or around 4 May 2000 to February 2009, the applicant was demoted to the post of Caretaker and transferred to St Michaels Secondary School near Dorowa Mine in Buhera. The applicant challenged his demotion and an arbitral award was made in his favour on 9 July 2009 and he was reinstated back to the post of Boarding Master at Daramombe High School. On 12 December 2012, he was served with an order for his eviction from House Number 2 Daramombe Mission and to hand over all the mission property in his possession to the first respondent.

The warrant of ejectment which was attached to his Notice of Ejectment does not cite the applicant as a party to the proceedings. 

The applicant claims that there is no basis to evict him as there is no order against him. He also states that the Supreme Court judgment, SC48-12, does not cite him as a party and he does not claim occupation of the property through the Diocesan Trustees for the Diocese of Harare.

The application was opposed by the first and second respondents.

This was an urgent chamber application to stop an eviction on the grounds that the second respondent, the Messenger of Court, allegedly, on the back and call of an official from the Ministry of Lands, was straying outside the four corners of the court order that defined the premises the applicant, and all those claiming occupation through him, had to be evicted from.

The applicant said the Messenger of Court, in executing the warrant of ejectment, was to strictly confine himself to such premises as were mentioned in the judgment of the court a quo, namely, the homestead on Lot 21A of N.R.A., measuring +/- 224m² [emphasis by applicant]. Instead of doing that, the Messenger of Court, at the back and call of the Ministry of Lands official, was bent on evicting the applicant, and those claiming occupation through him, particularly his workers and manager, not only from the homestead, but also from the adjacent, stand-alone buildings or developments or structures that comprised a coldroom, a butchery, a workshop, five servants' quarters, a manager's house, some twelve feed rooms and an abattoir.

The first respondent opposed the application. The Messenger of Court appeared at the hearing to explain what he was doing on the ground.

The first respondent raised three points in limine.

(i) The first was that the matter was not urgent.

(ii) The second was that the interim relief was exactly the same as the final order sought.

(iii) The third, and last, was that the applicant was non-suited by reason of the non-joinder of the Ministry of Lands, the acquiring authority, and therefore the true owner of the land in question….,.

Both the first and second respondents denied that the second respondent had strayed outside the four corners of the Court Order. They admitted that the ejectment was meant to cover the structures mentioned by the applicant, save for the manager's house. This was some appreciable distance from the rest of the buildings. The applicant concurred the manager's house was a considerable distance away from the rest of the structures.

The respondents argued that the homestead, as identified by the Court Order, comprised the main dwelling or farmhouse and its adjacent buildings such as the workers' quarters, the butchery, abattoir, workshops, and all the rest of them in the applicant's papers. The first respondent argued that the 'homestead' from which eviction was sought, had been canvased and resolved in the court a quo. He said this “homestead” was not to be identified merely by reference to the area, i.e. +/- 224 square metres, but also by reference to a map that depicted the actual homestead and the extent of the land covered. That map had been produced during the eviction proceedings.

After submissions, I dismissed the application and said written reasons would follow.

The background of this matter is that the second applicant has been rocked by several problems where the authority to run the church has been fought over by two different camps, one led by the first applicant and the other led by Reverend Tonny Tshuma. There have been numerous applications before this court, even as far as the Supreme Court.

I am advised that some of the matters are still pending before the Supreme Court.

It would appear, by virtue of the order granted in HC2700/14, the Sheriff then handed the Temple in Victoria Falls, which is the subject matter of this dispute, to the first applicant. It would appear though that the other group, led by Tonny Tshuma, appealed that decision. The first applicant then obtained leave to execute the judgment in HC2700/14 pending appeal. Such leave was granted in HC1669/15.

The relevant clause in the order granted in HC2700/14 is paragraph (3) which reads as follows:

“The first and second respondents and their agents are ordered to release and return the control of the sixth applicant's properties wherever situate to the applicants and to surrender the sixth applicant's affairs and activities to the applicants forthwith. The sixth applicant's properties shall include but not limited to those listed on the order granted by this court on HC2166/14”.

In essence, the applicants seek an order for spoliation in that the respondents took the law into their own hands and forcibly took occupation of Stand 5563 Mkosana Township in Victoria Falls.

Paragraph 12 of the founding affidavit states thus:-

“The Chief Registrar and ourselves then entered into a compromise that the temple should be locked and no one should access it until the notice of appeal against the default judgment had been disposed of in terms of the law.

Paragraph 13

I and the other applicants in the court order in HC2700/14 again approached this court with an application for leave to execute pending appeal in HC1669/15 which was granted by this court. I attach hereto a copy of the order as annexure “D”.

Paragraph 14

Armed with that judgment, I then approached the Additional Sheriff, Victoria Falls so that I and my followers could have access to the second applicant's Temple but the Additional Sheriff told me that he is still waiting for an order from the Chief Registrar who is his boss.”

These paragraphs show that the execution of the order in HC2700/14 is still pending with the Sheriff awaiting instructions from his boss, the Chief Registrar.

In other words, HC2700/14 has not been brought into effect by the Sheriff who has not executed the order in HC1669/15.

HC2700/14, paragraph 3 thereof, orders the return of the church's properties to the first applicant and four others.

Such order was interrupted by the filing of a Notice of Appeal. An order was granted in HC1669/15 for leave to execute the order in HC2700/14 pending the appeal. Paragraph 2 and 3 of that Order read as follows:

2. The applicants be and are hereby allowed to execute the order in HC2700/14 pending the purported appeal under SC351/15.

3. Fourth respondent is ordered to proceed and enforce the terms of the order under case number HC2700/14, and, if necessary, to secure the assistance of the Zimbabwe Republic Police to give effect to the order.

HC2700/14 ordered that the applicant and four others should take control of the church assets. HC1669/15 allowed the execution of that order pending appeal. It, in fact, went further and ordered the Sheriff to give effect to that order and enlist the services of the police where needed.

In my view, the applicants are seeking a solution that has already been provided by this court in HC2700/14. This application, in my view, is a duplication of proceedings for the following reasons:

1. HC2700/14 has already given the control of the Church assets to the applicants together with four others.

2. HC1669/15 has given the applicants in HC2700/14 leave to execute the judgment pending appeal.

It has gone further than that; it has ordered the Sheriff to give full effect of the Order in HC2700/14 and to enlist the services of the police where necessary.

The Sheriff has, however, not honoured the Order in HC1669/15 as it would appear that he has not given the control of the Church assets to the applicants as per HC2700/14. The applicants, in my view, are barking up the wrong tree. Instead of the applicants approaching the Sheriff so that he gives full effect of HC2700/14, so that they are given control of Stand 5563, Victoria Falls, they, instead, want to exert control over an asset they have not yet taken control of in terms of HC2700/14. The applicants are bungling in my view, and, as a result, are unnecessarily burdening the court seeking remedies which they already have.

The applicants do not state, in the founding affidavit, that they have approached the Sheriff after the unlawful invasion, to assert their rights of control, in terms of HC2700/14, so that the Sheriff hands over the control of that asset to them. As it is, clearly, the applicants have not yet assumed control of the property being the subject matter of this application. Instead of seeking to enforce HC2700/14 as read with HC1669/15, that is, getting the Sheriff to give them full control of Stand 5563, Victoria Falls, before taking control, they want to assert same through this application.

It is for these reasons that I am of the view that this application is unnecessary as the applicants should first of all execute HC2700/14 as read with HC1669/15 before they can talk of being despoiled by anyone. The first applicant should lawfully be handed over the property by the Sheriff before asserting his rights to the control of same….,.

It is my considered view that this multiplicity of actions, without following the Orders given to fruition is inappropriate and should not be allowed. The applicants should give full effect of HC2700/14 as read with HC1669/15, by getting the Sheriff to comply with clause 2 and 3 of HC1669/15 as read with clause 3 of the Order in HC2700/14…,.

If the Sheriff does not obey court orders then the applicants are within their rights to act against him.

It is for these reasons that I find that the application is without merit and I accordingly dismiss it with costs.

The Sheriff is merely an officer of the court charged with the responsibility of executing judgments.

The police denied being involved at all in the eviction of the applicant and denied posting a sentinel at the gate of the farm.

In fact, counsel who appeared for them, together with Mr. Mbara, of Police Headquarters, was emphatic that not only did the police not deploy at the farm, they are well aware that they have no power to perform any farm evictions with or without a court order.

The second respondent, as a War Veterans Association, has no locus standi to enforce the orders of this court or any other court. The Sheriff is the one who has that duty….,.

I need not emphasise that court orders are supposed to be enforced lawfully by following due process of the law.

I am inclined to agree with counsel for the third respondent, that, the third respondent, as an officer of the court, is only mandated (generally) to act on the strength of a court order.

An exception to this general rule is, as in the present case, where an Act of Parliament specifically precludes him from exercising that mandate. The Messenger of Court cannot be expected to act on the say so of one of the parties - either verbally or in writing.

See Dhlodhlo v Deputy Sheriff Marondera 2011 (1) ZLR 416…,.

On 10 May 2016 this matter was placed before me with a request that I provide reasons for an order I granted on 16 June 2015. The order I granted is in the following terms:

“Interim relief granted

This order shall operate as a temporary interdict directing 1^st and 2^nd respondents to render to the Sheriff such assistance as he may require to carry out his duties in terms of the order granted under case number HC2700/14.”…,.

I am now required to furnish reasons for the granting of the order which I now proceed to do.

Prior to the 16^th of June 2015, when I granted the interim order, the parties had filed numerous applications in this court. At least no less than eight applications had been filed in this matter prior to the granting of the order in issue. The primary cause for these applications is that serious fights were raging regarding the disputed leadership in a church known as The Apostolic Faith Mission of Africa, whose main headquarters was situated in Bulawayo. It was alleged by both sides that their leaders were legitimate and authentic. On 11 June 2015, under case number HC2700/14, MOYO J granted an order whose operative part provided, inter alia, as follows:

“1. The 1^st and 2^nd respondents as well as their agents be and are hereby interdicted from interfering, visiting or using the 6^th applicant's properties wherever situate without the express authority and/or consent of the applicants'.

2. The 1^st and 2^nd respondents as well as their agents are barred from presenting or purporting to act as the 6^th applicant either to the 6^th applicant's members or to the members of the public.

3. The 1^st and 2^nd respondents and their agents are ordered to release and return the control of the 6^th applicant's properties wherever situate to the applicants and to surrender the 6^th applicant's affairs and activities to the applicants forthwith. The 6^th applicant's properties shall include but not limited to those listed on the order granted by this court on HC2166/14.”

When the urgent chamber application was placed before me I noted that the respondents had been served with the order under case number HC2700/14 on the 13^th of June 2015. What concerned me were the comments on the Deputy Sheriff's return of service which were in the following terms:-

“Attempted execution; failed to fully execute the court order due to resistance of respondent's agents. Reported the matter to police who said cannot assist in driving the agents out because they are not cited in the court order.”