Judgment No. HB 68/06
Case No. HC 1130/06
X-Ref HC 1865/05; 2378/05; 1155/06
HOLGATE FORESTRY INDUSTRIES
MRS A T NCUBE
THE DEPUTY SHERIFF
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 7 JUNE AND 6 JULY 2006
Advocate P Dube,for first and second applicant
M Ncubefor first respondent
NDOU J: This is an application for stay of execution. It is common cause that following a judgment of this court entered in default against the applicants herein on 6 April 2006, a writ for the ejectment of the applicants was issued. Second respondent gave notice that the writ would be executed on 29 May 2006. It is common cause that on 29 May 2006, and despite a copy of the current application being brought to his attention, second respondent executed the writ, and ejected the applicants from the property. The provisional order sought in this application did provide, however, for restoration of the applicants to the property, in the event that, as happened the eviction would have been carried out at the time of arguing this application. Applicants’ prayer, therefore is now for restoration to the property, pending the outcome of this application for
rescission of judgment, and of the main matter, should rescission of judgment be granted. An application for rescission has already been filed of the record under case number HC 1155/06.
That this court has power to suspend execution of its own judgment is trite law – Cohen v Cohen 1979(3) SA 420 (R) and Mupini v Makoni 1993(1) ZLR 80(S). The court has wide discretion in such matters – Santam Ins Co Ltd v Paget (2) 1981 ZLR 132 (G) at 134-5; Chibanda v King 1983(1) ZLR 116(H) at 119C-H and Strime vStrime 1983(4) SA 850(C) at 852A. From the papers it is evident that there is real hardship to the applicants. First, the property has been used as a residential property for second applicant, a director of first applicant. There is clear prejudice to him if the eviction is allowed to remain final pending the outcome of the application for rescission. Second applicant remains without a residence, and damage to his household furniture and effects is likely.
Second, first respondent, who lives in Bulawayo, does not appear to have personal need of the property, which is in an up market residential area in Harare. There is a high demand for residential properties in Harare. Therefore, it is not likely that first respondent will keep the property vacant pending the outcome of the application for rescission of judgment. If another tenant is, as is highly probable, placed in the property, it would be very difficult to restore applicants to the property should the rescission of judgment be granted. Where such likelihood of real hardship is demonstrated, the court is likely to exercise its discretion in favour of the granting of the stay of execution.
Further, the founding affidavits in both this application and the cross-referenced application for rescission of judgment show that applicants have seemingly good bona fide defence to first respondent’s claim for eviction and ancillary relief. From the papers it would appear that the factual allegations upon which first respondent’s claims for eviction are based have been disputed. The alleged damage to the property has been denied. First respondent had alleged damage to both the interior and the exterior of the property by the applicants. These allegations met not only with unequivocal denials, but also with evidence in rebuttal. A sworn statement has been placed before this court, from a neutral party, being the estate agent.
Further, failure or default in payment of rentals, another ground upon which first respondent sought eviction, has also been denied. Applicants have demonstrated that there was no refusal to pay rentals. Some rentals were paid to first respondent’s agent. This agent, at some point, failed to account to his principal. The result of that was not a default by the applicants in the payment of rentals. Further, applicants demonstrated that, following the clear breakdown of civil relations between the parties, particularly second applicant and first respondent, first respondent refused to accept rental payments. Cheques issued and mailed by the first applicant in payment of rentals have not been banked by the first respondent.
On the default, the papers show that the applicants’ legal practitioner was away writing examinations when the first respondent’s
heads of argument were served. The applicants’ heads were filed out of time by a single day out of the ten day period stipulated in Rule 238(2a). In the circumstances, there cannot be drawn an inference that applicants were in wilful default – V Saitis & Co v Fenlake (Pvt) Ltd 2002(1) ZLR 378(H) ZIMBANK v Masendeke 1995(2) ZLR 400 and Hutchinson v Logan 2001(2) ZLR 1.
Accordingly, there is a good chance that the application for rescission of judgment will be granted. In that event, applicants would have suffered prejudice and injustice in that it would be hard, if not impossible, to, after the rescission of judgment, restore them to the premises. The applicants have made a prima facie case for the granting of the provisional order.
Accordingly, I grant the provisional order in terms of the draft.
Ben Baron & Partners,applicants’ legal practitioners
Cheda & Partners, first respondent’s legal practitioners