MARATHON GROUP OF COMPANIES T/A
HARRISON AND HUGHSON (PVT) LIMITED
ALSTOM ZIMBABWE (PVT) LIMITED
THE MESSENGER OF COURT HARARE
HIGH COURT OF ZIMBABWE
HARARE, 8 July 2010
Mr Warhurst, for the applicant
Mrs Wood, for the first respondent
No appearance for the 2ndrespondent
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.
- 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:
- 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.
- 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.
- 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 R 7 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.
- 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.
- 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
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 HH 57-2002.
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 s 40 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