CHATUKUTA J: This is an application
for execution pending appeal.
On 7 October 2009 this court granted
judgment in case No HC 677/09 in favour of the applicants. The court ordered the ejectment of the
respondent from a property known as Stand Number 628 Marlborough Township also
known as No. 33 Taormina Avenue, New Marlborough, Harare (the property). Dissatisfied with the judgment, the
respondent appealed against the decision.
Applicant contended that the appeal
is frivolous and vexatious and has been noted solely to delay finality. The appeal was noted on 27 October 2009 and
only served 30 days later on 27 November 2009.
Respondent had, before filing the notice of appeal, issued summons in
case No HC 4922/09 on 14 October 2009 seeking a declarator that agreement of
sale was valid and that he is the owner of the property. He claimed in the alternative a refund of the
market value of the property.
The
factors that this court need to take into account in determining whether or not
to grant leave to execute are set in South Cape Corporation (Pty) Ltd v Engineering
Management Services (Pty) Ltd 1977 (3) SA 534 (A). CORBETT
JA observed at page 545 D-F that:
“In exercising this discretion (to grant leave to
execute pending appeal), the court should, in my view, determine what is just
and equitable in all the circumstances, and in doing so, would normally have
regard, inter alia, to the following
factors:
(1) the potentiality of irreparable harm or prejudice
being sustained by the appellant on appeal (respondent in the application) if
leave to execute were to be granted;
(2) the potentiality of irreparable harm or prejudice
being sustained by the respondent on appeal (applicant in the application) if
leave to execute was refused;
(3) the prospects of success on appeal, including more
particularly the question of 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,
eg to gain time or harass the other party; and
(4)
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.” (See Arches (Pvt) Ltd v Guthrie Holdings Pvt) Ltd
1989 (1) ZLR 152 (HC); ANZ (Pvt) Ltd v Minister for Information &
Anor S-111-04.)
The applicants submitted that they
are already suffering irreparable harm in that they are behind schedule with
the development of their property and the delay is causing them financial
loss. The respondent contended that he
will suffer irreparable harm because he has been in occupation of the property
since the conclusion of the agreement of sale of the property and has commenced
development of the property.
One
suffers irreparable harm where there is no other practical remedy available. It appears to me that neither the applicant nor the
respondent is likely to suffer irreparable harm. Both parties do have recourse under the law
for compensation for any harm that they may suffer. As rightly submitted by the applicants, the
respondent has already instituted proceedings to have the agreement declared
valid or in the alternative be awarded damages. The applicants can equally claim damages for
the financial loss that they are suffering by not developing their
property. It appears therefore that the
determination of this matter rests on whether or not the respondent has any
prospects of success on appeal and the balance of convenience.
I perceive that the respondent raised
two main grounds of appeal in the notice of appeal. He contended that the court had misdirected
itself in finding that the applicants had established the requirements for rei vindicatio and on that basis alone were
entitled to the order for ejectment. The
court should also have considered that he had proved that he was justified to
remain in occupation because he had lawfully purchased the property. The second ground was that there were
material disputes of fact apparent in the matter which could only be resolved
after the hearing of viva voce
evidence. The court had therefore erred by
adopting a robust approach and determining the disputes of fact on the papers.
In case No. HC
677/09 the applicants brought an application for the ejectment of the
respondent from the property on the basis that they are the registered joint
owners of the property. They argued that
the respondent was in illegal occupation of the property because they had not
entered into an agreement of sale with him. In other words they disowned the agreement
that the respondent alleged they had entered into.
The respondent opposed the
application contending that he had purchased the property from the applicants
and was therefore entitled to remain in occupation. He raised a point in limine that there were material
disputes of fact that could not be resolved on the papers. There was need to establish how he came to be
in possession of the original title deeds of the property. There was also need to establish the validity
agreement of sale and whether or it was invalid by reasons of fraud.
The
court acknowledged there were indeed disputes of fact but adopted a robust
approach and resolved the dispute on the papers. It found that the applicants' identification documents
produced by the respondent reflected totally different persons from the
documents produced by the applicants.
The applicants had produced their passports and visa for their stay in America and a
copy of their marriage certificate. The
second applicant produced her American driver's licence and her Zimbabwean identity
card. The court made a finding that the
details on the documents relating to the second applicant were different from
those on the documents produced by the respondent. The only difference she noted on the
documents produced in relation to the first applicant were the facial features
of the applicants. Apart from that all
the other details matched. Thereafter
she concluded that the respondent did not enter into an agreement with the
respondents.
It
appears that the agreement of sale was brokered by High Rise Estate
Agents. I do not believe that the
dispute as to whether or not the applicants had authorized the estate agents to
sell the property could have been resolved on the papers. It was also necessary in my view to hear
evidence as to how the respondent came into possession of the original title
deeds. The evidence would in my view
have disposed of the issues raised in the application as to the authenticity of
the identity documents and the validity of the agreement. It appears there was no evidence on record
(from the travel documents) whether or not the applicants were in the country
when the contract was concluded. Viva voce evidence would in my view have
clarified the issues. It is therefore my
view that the respondent has prospects of success.
It is not in issue that the respondent
has been in occupation of the property since October 2008. The applicants are in the United States of America, and have
not been in occupation of the property.
The balance of convenience under the circumstances weighs in favour of
the respondent.
The right of appeal is recognized to be a
fundamental right and critical to our justice system and should be protected
where necessary. It is my view that it
is just and equitable in the circumstances that the respondent's right be
protected and that he remain in occupation until he has prosecuted his appeal.
In
the result the application is dismissed with costs
Sinyoro & Partners, applicant's
legal practitioners
Messrs C Mutsahuni
Chikore & Partners, respondent's legal
practitioners
