Ref HC 8886/14
CHRISTOPHER FRANK BATCHELOR
CLARE ELIZABETH BATCHELOR
THE SHERIFF, HARARE N.O
HIGH COURT OF ZIMBABWE
HARARE, 12 March 2015
Urgent Chamber Application
C.N Dube, for the applicant
P Makuwaza, for the 1st and 2nd respondents
3rd respondent in default
MATHONSI J: This is one of several such matters, in vogue at the moment, where litigants will simply not accept execution of orders of this court but would rather fight with anything they have got, even when they are left with nothing. They would rather crawl to the war front panting, perspiring and fatally wounded.
The applicant was served with a writ of execution against property, a writ of ejectment and a notice of removal as well as ejectment notice on 3 March 2015 in HC 8886/14. He was notified that removal and ejectment would be carried out on 6 March 2015. On the very day of his eviction he filed this urgent application seeking the following relief:
“TERMS OF THE FINAL ORDER SOUGHT
That you show cause to this Honourable Court why a final order should not be made on the following terms:
- The execution of the court order obtained under case number HC 8886/14 on 4 February 2015 be and is hereby stayed pending the finalisation of the application for rescission of judgment.
- The 1st and 2nd respondents be and are hereby ordered to pay costs of suit on an attorney-client scale.
INTERIM RELIEF GRANTED
- That respondents be and are hereby interdicted from evicting the applicant or any person claiming through the applicant from number 207 Hartley Township, Chegutu.
- In the event that the dispossession and eviction has taken place the applicant be restored to undisturbed possession and control of House Number 207 Hartley Township, Chegutu.
- The 3rd respondent be and is hereby interdicted from removing the attached movable property from the applicant’s possession”
It turns out that the applicant was indeed evicted as notified but he persists with the
application. He is himself not a stranger to this court as the history of the matter will show.
In HC 9411/10 he was sued by one Graham Lewis Thompson who obtained an order for his eviction from Number 11 Wood Close Chisipite Harare, a house he was renting and for payment of $8 500-00 in arrear rentals and holding over damages of $1 500-00 per month from 1 December 2010 to date of eviction and costs of suit. The order was granted on 2 March 2011. Execution of that order led to the sale of his house in Chegutu to the first and second respondents.
The Sheriff notified him of the sale by letter dated 7 November 2012 which states in pertinent part thus:
“If no objections are made in writing to the Sheriff within 15 days from the date the highest bidder was declared to be the purchaser in terms of r 356 or the date of the sale in terms of r 358 of the High Court Rules, 1971 the Sheriff will confirm the sale”.
The applicant did not object within the time prescribed by the Sheriff in terms of the rules only succeeding in doing so on 30 November 2012 by letter from Messrs Musarira Law Chambers, his then legal practitioners. The Sheriff was not obliged to act upon the objection in question it having been made out of time. As the sale was confirmed, the first and second respondents moved to take transfer of the property and did so on 21 January 2013 by Deed of Transfer Number 168/13.
The applicant then launched a volley of applications aimed at upsetting the apple cart. In HC 757/13 he filed a chamber application for the suspension of the sale. It was opposed by Thomson. It came to naught. In HC 2970/13 he filed a court application for a review of the Sheriff’s decision to confirm the sale on the basis that there were irregularities in the proceedings. The application was opposed and when he failed to prosecute it, this court dismissed it for want of prosecution on 27 August 2013, per Mwayera J. The applicant did not do anything about that dismissal which remains extant.
In HC 2971/13, the applicant came to court on a certificate of agency seeking inter alia to interdict the current first and second respondents from selling the property and from disturbing his peaceful possession of the property. The court, per Mawadze J, refused the application as the certificate of urgency was defective and urgency was not established. This was on 19 April 2013.
In HC 8427/14 the applicant made an application for condonation of the late filing of a review application. He still wanted to review the Sheriff’s decision to confirm the sale. The applicant was forced to withdraw that application with costs, per Dube J, on 1 October 2014. He has done nothing about lack of condonation of the late filing of the review application. He has not even filed a review application but claims in his founding affidavit in the present application to have filed a rescission of judgment application.
If indeed the applicant has sought rescission of the judgment entered in default of a plea in HC 8886/14 on 4 February 2015, per Mtshiya J, he is effectively saying he wants to defend that claim for eviction and holding over damages. The question which arises is whether there would be merit in that endeavour in light of the background of the matter as I have outlined above. Me thinks not.
For the applicant to succeed in interdicting the respondents from evicting him from the property, he must show that he has a prima facie right, that he has a well-grounded apprehension of irreparable injury, that there is no other ordinary remedy and that the balance of convenience favours the grant of the interdict pending the determination of his rescission of judgment application: Charuma Blasting and Earthmoving Services (Pvt) Ltd v Njainjai & Ors 2000 (1) ZLR 85 (S) 89 E-H, Sjambok & Anor v Chinyama & Anor HH 118/15.
In my view this application fails at the very first stage of the inquiry, that of a prima facie right. This is because the first and the second respondents are the registered owners of the property. Registration of title confers upon the title holder certain rights, including that of vindication against the whole world. As stated by the Supreme Court in Takafuma v Takafuma 1994 (2) ZLR 103 (S) 105 H, 106A:
“The registration of rights in immovable property in terms of the Deeds Registries Act [Chapter 139] is not a mere matter of form. Nor is it simply a device to confound creditors or the tax authorities. It is a matter of substance. It conveys real rights upon those in whose name the property is registered. See the definition of ‘real right’ in s 2 of the Act. The real right of ownership, or jus in re propria, is ‘the sum total of all the possible rights in a thing’ – see Wille’s Principles of South African Law 8 ed p 255”.
In addition to that, due process was followed when the first and second respondents
acquired the real rights in the property, they having purchased it through a public auction conducted by an officer of this court, the Sheriff, in terms of the rules. Upon being called upon to object to the sale as provided for in the rules, the applicant dilly dallied until the opportunity lapsed and the sale was confirmed paving the way for registration of title.
Once a sale has been confirmed by the Sheriff in accordance with the rules, the sale is no longer conditional and as pointed out in Mapedzamombe v Commercial Bank of Zimbabwe & Anor 1996 (1) ZLR 257 (S) 260 D-E.
“That being so, a court would be even more reluctant to set aside the sale pursuant to an application in terms of rule 359 for it to do so. See Naran v Midlands Chemical Industries (Pvt) Ltd S-220-91 (not reported) at pp 6-7. When the sale of the property not only has been properly confirmed by the Sheriff but transfer effected by him to the purchaser against payment of the price, any application to set aside the transfer falls outside, r 359 and must conform with the principles of the common law”.
See also L M S Timbers (Pvt) Ltd & Anor v The Sheriff of Zimbabwe & Ors HH
484/14; Mhlanga v Sheriff of the High Court 1999(1) ZLR 276 (H); Success Auto (Pvt) Ltd & Ors v FBC Bank Ltd & Anor HH 157/15.
The applicant tried to have the sale set aside by application made in terms of r 359 (8) of the High Court of Zimbabwe Rules, 1971, albeit more than 2 years later. That application was improperly made without even seeking condonation and it met the fate of such ill-conceived applications. He attempted to seek condonation, but withdrew the application. There can therefore be nothing going in his favour.
Judgment for his eviction was entered in default. Any effort to have that judgment rescinded under the circumstances would be a shout in the wilderness. It is not the number of approaches one makes to this court or the test for his resilience which determines the outcome but simply whether there is a legal right which the court can relate with and grant relief. In this case there is none. What is even worse is the fact that the applicant has been remiss throughout in trying to prosecute his case and cannot be allowed to continue abusing the respondents.
Mr Makuwaza for the first and second respondents submitted that in addition to all the difficulties that I have already outlined above, the applicant has already been evicted and cannot be allowed to re-enter. In Delco v Old Mutual Properties & Anor 1998 (2) ZLR 130 (S) the Supreme Court, after reviewing a number of authorities, endorsed the proposition that:
“A statutory lessee who had been evicted by process of law is not entitled to be given possession of the premises against the lessor who has re-occupied if it is subsequently shown that the process of law was based on a wrong judgment”.
In my view that pronouncement applies with equal force to any party not being a
statutory tenant, who has been evicted by process of law as in the present case. Until such time that the court order grounding the eviction has been reversed or rescinded the evictee cannot regain occupation as the eviction in the first place was not done illegally but in pursuance of a lawful order. The applicant has himself to thank anywhere for waiting until the date of eviction to come to court.
Whichever way one looks at this application, it is thoroughly without merit. It should not have been made at all except that the applicant appears to derive pleasure in filing endless applications in this court in his doomed attempt to delay the inevitable. There is only one way of reminding the applicant that the precincts of this court are not a playing ground but a place for serious litigants with genuine legal rights to protect. It is an award of admonitory costs against him so that the next time he feels inclined to make another ill-conceived approach he will proceed with solomonic wisdom and chameleonic speed in consideration of his pocket.
In the result, the application is hereby dismissed with costs on the scale of legal practitioner and client.
Cheda and Partners, applicant’s legal practitioners
Makuwaza & Associates, 1st & 2nd respondents’ legal practitioners