1

HH 830-22

HC 7432/22

ZUWA DAMSON

versus

LOVEMORE DZIPANGE

and

ELINAH DZIPANGE

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE, 8 November & 16 November 2022

Urgent Chamber Application for Stay of Execution

Applicant in person

Respondents’ in person

            CHITAPI J:  The two respondents in this application are the biological parents of the applicant who is an adult and is self-supporting and living independently of the respondents.  The parents appeared before this court in case number HC 5592/22 which was determined by Chirawu-Mugomba J on 21 October 2022. In that matter the respondents herein were the applicants and the applicant the respondent.  In case number HC 5592/22 the respondents herein sought a declaration conjoined with an interdict against the applicant.  The dispute concerned the rights of occupation and control of a farm called Subdivision Z of Lot 1 of Marivale situated in Mazowe District. The respondent also sought a prohibitory interdict to prohibit the applicant and all those claiming through her from occupying the farm in whole or in part.  Chirawu-Mugomba J issued an order as follows:

            “DISPOSITION

            1.  The 1^st and 2^nd applicant being the rightful holders of the offer letter for a piece of land                                  called Subdivision 2 of Lot 1 of Marivale in Mazowe District are entitled to all rights and                                    interests on the property. 

            2.   Consequently

                  (a)     The respondent and all those claiming title are prohibited from occupying the said                                      piece of land partly or wholly.

                  (b)     The respondent be and is hereby interdicted from interfering with the enjoyment,                                        use and occupation of the said property by the 1^st and 2^nd applicants.

            3.   There shall be no order as to costs.”

            The applicant as respondent was in default when the judgement was delivered by Chirawu‑Mugomba J.  The learned judge thankfully provided written reasons for the judgement.  

            On 28 October 2022 the applicant under case number HC 7337/22 filed an application for rescission of the judgement of Chirawu-Mugomba J.  The application is pending before the court.  On 2 November 2022, the applicant filed the current application.  She seeks a provisional order which she couched as follows:

            “TERMS OF FINAL ORDER SOUGHT

            That the respondent should show case to this Honourable Court why:

                        a)    Execution of the judgement obtained by the respondents against the applicant in                                       case number HC 5592/20 be and is hereby permanently stayed.

                        b)    Respondents shall pay cost of suit in the event that they opposes this application.

            INTERIM RELIEF GRANTED

            Pending the determination of the application for rescission of judgement filed by the applicant     under case number HC 7537/22 applicant is granted the following relief:

                        a)    The respondents be and are hereby ordered not to interfere with applicant’s property                                 from Subdivision 2, Lot 1 of Marivale, Christon Bank.

                        b)    The respondents are ordered to return all the properties they have taken between the                                  21^st and the 30^th of October 2022 from the applicant’s residence.

                        c)    To restore all the irrigation pipes, sprinklers, borehole control box and the roof they                                  removed from the employees’ cottages and also the tanks and the tank stands.

                        d)    The respondents are barred from taking the matter into their own hands by evicting                                  the employees and the applicant without a court order.”

            Both the applicant and the two respondents were self-actors.  I allowed the respondents to make oral submissions as they had not filed any papers in opposition.  It took a lot of effort on my part to make the respondents appreciate the nature of the application, being that the applicant wanted the enforcement of the order of Chirawu‑Mugomba J stayed pending the determination of the application for rescission of judgement filed under case number HC 7337/22. The respondents who contended that they had not yet been served with the application for rescission of judgment were upon my direction given a copy of the application by the applicant and they perused the application.  Despite confirming that they appreciated the nature of the application and the relief sought, the respondents remained adamant that all that they desired was for the order of Chirawu-Mugomba J to be given effect. They did not want to see the applicant at the farm.  So fierce was the respondents’ opposition to the applicant occupying part of the farm in question that I asked the parties whether they had even greeted each or acknowledged each other upon meeting at court that day.  They both stated that they had not greeted each other and had no wish to do so nor to reconcile.  The respondents kept stressing that the applicant should leave them at peace at the farm and stay at her property which they described as an “upstairs in Zimre Park”.  In the gallery were a brother and a sister to the applicant who were hostile to the applicant. As the judge has a discretion in an urgent application to receive information or evidence from any person whom in the judge’s opinion may assist in the determination of the matter, I allowed the siblings to speak.  They both stated that the applicant was not welcome at the farm and that she was a trouble causer.  I make no finding in relation to the accusations. However what emerged was clear evidence of a family which is fragmented and at loggerheads with the applicant.  The issue of the applicant and the respondents living in disagreeable proximity under a strained relationship not currently showing signs of resolving into normalcy is relevant to the issue of determining whether real and substantial justice would be achieved by granting a stay of execution. 

            In relation to requirements for an application of stay of execution Mafusire J stated at p 3 of the cyclostyled judgement in Rushwaya v Bvungo & Anor HMA 19/2017 –      

            “In Golden Reef Mining (Pvt) Ltd & Anor v Majeya Engineers (Pty) Ltd & Anor HH 631/15, I said           and application a stay of execution was a ……of an interdict.  In my view, there is some difference    between an ordinary, typical or orthodox interdict with a stay. With an ordinary interdict the    applicant must show a clear right in his favour, or, in the case of an interim interdict, a prima facie         right having been infringed, or about to be infringed an apprehension of an irreparable harm if the          interdict was not granted, a balance of convenience favouring the granting of the interdict and the absence of any other satisfactory remedy.  See Setlogelo v Setlogelo 1914 AD 221; Tribac (Pvt)      Ltd v Tobacco Marketing Board 1996 (1) ZLR 289 (SC); Hix Networking Technologies v System             Publishers (Pty) Ltd 1997 (1) SA 391 (A); Flame Lily Investments Company (Pvt) Ltd v   Zimbabwe Salvage (Pvt) Ltd and Anor 1980 ZLR 378 and Universal Merchant Bank Zimbabwe        Ltd v The Zimbabwe Independent & Anor 2000 (1) ZLR 234 (H).

            On the other hand, in a stay of execution, the requirement is simply real and substantial justice.  See             Cohen v Cohen 1979 (3) SA 420 (R); Chibanda v King 1983 (1) ZLR 116 (SC); Mupini v Makoni           1993 (1) ZLR 80 (S) and Muchapondwa v Madake & Ors 2006 (1) ZLR 196 (H).  The premise on        which a court may grant a stay of execution pending the determination of the main mater or of an     appeal is the inherent power reposed in it to control its process.  In Cohen’s case above, Goldin J           said at p 423 B – C:

                        ‘Execution is a process of the court and the court has an inherent power to control its own                        process subject to the rules of Court.  Circumstances may arise where a stay execution as                         sought hence should be granted on the basis of real and substantial justice.  Thus where                           injustice would otherwise be caused, the court has the power and would generally speaking                      grant relief.’”

            Whether real and substantial justice is served in any case depends on the facts and circumstances of the individual case.  It follows that the phrase is not capable of precise definition.  To attempt to define it would amount to an act of folly.  The determination of what amounts to real and substantial justice in a given case is therefore a value judgement exercised in the discretion of the judge or court.  The converse of whether it is in the interests of real and substantial justice to grant a stay must in my view be, whether real and substantial justice will be realized if a stay of execution is not granted in the particular case.

            In the case of Tonderai Katsa v Samuel Goredema & Messenger of Court HH 09/22.  Deme J in a judgement in which he referred to various authorities noted that the principle applicable to deciding whether or not to grant stay of execution were the same as those which are considered when deciding an application for leave to execute pending appeal.  I would add that the principles are the same mutatis mutandis in that in an appeal, the appellant by seeking a stay would be praying that execution of the judgement be stayed pending adjudication by an appeal court, whereas with a stay pending rescission, the applicant would be praying that execution is stayed pending the re-opening of the case determined in default of the applicant, by the same judge or court that granted a default judgment.  In the case of an appeal, the trial court would have completed the matter with all the parties involved having had their say.  With rescission, the applicant would be praying that he or she be allowed to participate and advance his or her case before the court gives a fresh decision.

             It therefore appears to me that where an application for stay pending rescission is determined and in considering the question of real and substantial justice, it becomes significant to consider that the applicant who applies for rescission of judgment founded upon a default will in effect be asking the court to accord him or her the right to be heard.  In everyday parlance, the audi alteram partem right is a principle of fairness and natural justice that provides that an administrative authority including courts should not make a decision adverse to a person without affording that person the chance to air or present his or her side of the story. The rule ensures that the administrative authority gives a fair and balanced decision and in this way the public will have confidence in the justice system. See M & J Morgan Investments (Pvt) Ltd v Pinetown Municipality 1997 (4) SA (SCA).  The nature of the default will have to be considered and its impact on the judgment examined.  Some defaults are technical without real impact on the judgement like in application where for example the court decides the matter on affidavits filed and the default arises from a failure by a party to appear for judgement or where the court even in the absence of affidavits will have heard the parties present their side of the story and has reserved judgement.  The examination of the prospects of success of the person seeking a stay pending rescission thus takes into account whether the default impacted on the judgment substantially in that it did not take account of the applicant’s side of the story.

            Without limit, other factors which are considered as noted by Takuva J in Never Changwenda v SMM Holdings (Pvt) Ltd & the Administration & the Sheriff HH 98/18, in case quoted by Deme J in the Katsa case (supra) would be:

1. The right of the applicant to seek rescission of the default judgment
2. Execution before the determination of the rescission application would render the rescission application academic
3. The bona fide intention of the applicant to have judgment rescinded as opposed to             a desire to buy time or harass the successful party.
4. that lack of prospects of success should not be the only consideration if the whole object of the application is defeated … execution to proceed.

      The list is not conclusive since the court has a discretion to grant or refuse the application.  It can take into account any other factors which in its view are proper to take into account depending on the peculiar circumstances of the case.  In the case Frank Humbe v Desmond Maduna and 4 Others SC 81/21, Mathonsi JA stated at page… of the cyclostyled judgment.

“the execution of a judgment is a process of the court.  The court therefore retains an inherent power to manage that process having regard to the applicable rules of procedure.  What is required for a litigant to persuade the court to exercise its discretion in favour of granting a stay in the courts in the courts judgment has been stated in a number of cases.”

            In Mupeni v Makoni 1993(1) ZLR 80(S) at 83 B-D this court stated the position of the law clearly:

“In the exercise of a wide discretion the court may, therefore, set aside or suspend a writ of execution, or, for that matter, cancel the grant of a provisional stay.  It will act where real and substantial justice so demands.  The onus rests on party seeking a stay to satisfy the court that special circumstances exist.  The general rule is that a party who has obtained an order against another is entitled to execute upon it.  Such reasons against execution issuing can be more readily found where, as in casu, the judgment is for ejectment or transfer of property for in such instances the carrying of it into operation could render the restitution of the original position difficult.  See Cohen v Cohen (1) 1979 ZLR 184(a) 187C, Santam Investment Company Ltd v Preget (2) 1981 ZLR 132 (G) at 134G-135B; Chibanda v King 1983 (1)           ZLR 116 (H) at 119 C-H; Strime v Strime 1983 (4) SA 850(C) at 852 A”.

The reference to special circumstance brings in a different dimension.  In my view nothing is to be read into the words special circumstances as importing anything more than that the applicant must and I would say in the case of a stay pending rescission advance such facts as would convince the court that real and substantial justice will be served were a stay to be granted or refused as the case may be.  Should I be wrong in my reasoning, I would note that Mathonsi JA was not dealing with a stay of execution pending an application for rescission of default judgment but for a stay of execution pending an appeal pending in the Supreme Court.  What however is not unclear is that whatever decision the court reaches must be one which can be sustained on the basis that it accords with real and substantial justice.

            The facts of the matter are straight forward. I summarized them at the beginning of the judgment.  The facts are fully set out in the judgment of Chirawu- Mugomba J already referred to.  The applicant and the respondents are biological daughter and parents respectively.  They fight over the occupancy of an immovable property called Lot 1 of Marivale in Mazowe District.  The land is held under an offer letter moved under the Land Reform and Resettlement Programme (Model A2 Phase 11).

            The offer letter is in the joint names of the respondents. It was accepted that there were protracted legal battles which the respondents went through involving challenges to their regrets to the property.  The applicant claimed to have been central in moving the court process that in 2014 culminated in the dispute over the offer letter being resolved.  She claimed to have inter-alia paid legal fees albeit receipts were issued on the names of the respondents as they were the clients of the legal firm handling the matter.

            The applicant averred that for her efforts in fighting for the right to the land aforesaid, she was promised and allocated 15 hectares of land on which to settle, occupy and carry out her farming activities.  Other siblings were allocated 3 hectares each but she received a bigger share.  The respondents denied that the applicant paid the legal fees claimed nor that they allocated the applicant the 15 hectares, per her word.  The issue which  Chirawu –Mugomba J had to decide was whether or not the applicant had legal ground to refuse to be ordered to vacate the piece of the property which she occupied and be interdicted from interfering with the respondents’ occupancy of the property.

            In determining the application Chirawu-Mugomba J, the learned judge first dealt with the matter on 11 October, 2022 on which date she postponed the matter to 21 October, 2022.  The applicant as respondent had submitted that there was a pending eviction action in the magistrate’s court in case number 4546/20.

            The record was called from the magistrate and the learned judge indeed noted the existence of that case.  It was pending hearing.  The applicant did not however turn up for the hearing on 21 October 2022. The learned judge then considered the papers filed of record and prepared her judgment on the merits.  It was the finding of the court that the respondents had real rights enforceable against the whole world over the land covered by the offer letter.  Authority for that proposition was founded on the Supreme Court judgment in CFI & Ors v The Minister of Lands & Ors 2010 (1) ZLR 576 (5).  Further relying on the judgment of the Supreme Court in the case Humbe v Muchini & Ors SC 81/21, the learned found that the claim by the applicant to resist the claim for the eviction from the property which she based on compensation for improvements which she allegedly made on the property (an improvements lien) could not as a personal right claim override the real rights which the respondents had to the property by virtue of the offer letter.  The learned judge recognized that an improvement lien is part of our law and referred to the case of Wynland Construction v Ashley Smith en Andoere 1985(3) SA 798(A) in that regard.  She however expressed a reservation on whether an improvement lien would apply in circumstances where the land rights were governed by an offer letter.

            The learned judge also shot down the applicant’s contention that the land which she claims was donated to her by the respondents and again referred to the Supreme Court judgment in the CFI case (supra).  The learned judge formed that because the land rights granted by the offer letter could be withdrawn by the Minister through a withdrawal of the offer letter, it rendered the rights of the conferred by the offer letter incapable of being donated.

            In respect to the grant of the interdict, the learned judge found that the respondents had established a clear right and that there was no alternative remedy to granting the interdict because the parties could not co-exist and further that there were pending criminal cases between them.  In respect to the declaratur the learned refused to grant prayer on the basis that there was no necessity for a declaratur since the offer letter was not disputed save the rights flowing from it which were contentious.

            In regard to her default which led to the default judgment, the applicant averred that she had advised the Honourable Judges Clerk on 11 October 2022 that she would not be available on 21 October 2022 for medical reasons.  On 21 October 2022 she wrote a letter, a copy of which she attached to the application for rescission of default advising of her inability to attend.  The letter was franked with the Registrar’s stamp on the date of hearing, 21 October 2022.  It is very likely that the learned judge’s attention was not drawn to the letter because the judgment makes no reference to the letter. Whether or not the default would be classified as wilful is a decision left to the court that determines the rescission application.

            In respect of whether the applicant has a bona fide defence to the claim made by the respondent. I have considered without comment to safeguard the integrity of the rescission application to be determined separately that the learned judge expressed doubt and left open the issue of whether in circumstances where land is held under an offer letter, the principle of an improvement lien applies.

            In considering whether real and substantial justice will be saved by granting a stay of execution, it is proper to take into account that the process of rescission on which the application for stay is premised is a lawful process. The application for rescission is already pending in this court. The execution if carried further many well render the rescission application an academic exercise because the applicant will have been removed from the piece of land over which she claims a lien whose existence in law was left open by the court and must in the interests of justice be answered fully and finally.

            Consideration is also taken that the applicant and respondents do not see eye to eye.  It is really unfortunate that child and parents must be at each other’s throats because of land given by Government to farm on and improve the family households.  It is however noted that the dispute relates to a specific piece of land which the applicant occupies.  She has no justification to interfere with the respondents’ occupation of the rest of the farm.

            In the draft order, the applicant prays in the interim relief that the respondents should be ordered not to interfere with “Applicants property from Sub-division 2, Lot 1 of Marivale, Christon Bank. The applicant does not and cannot own land held under an offer letter unless she is included as holder in that offer letter.  At best she can claim restoration of peaceful possession of occupation and any other claims she may wish to make other than ownership. The applicant also prays for restoration of possession of irrigation pipes, borehole central box, sprinklers, tanks and tank stands.  She also seeks an order that the respondents are barred from taking the law into their own hands and evicting the applicant or her employees without a court order.

            The application and relief sought is convoluted.  There is also no correlation between the judgement whose enforcement is sought to be stayed and the claim made by the applicant which appears to be based upon a spoliation.  The process of enforcement of a judgment of this court is provided for in r 69 of the rules of court.  Execution is levied by writ of execution issued out of this court.  The writ is addressed to the Sheriff being the officer who enforces court judgements.  The applicant ought to have cited the Sheriff because it is him that should stay executing the writ should its enforcement be sought.  I however take note that the joinder or misjoinder of a party does not defeat a cause it being left to the court on its own resolve or upon the application of any party to or with an interest in the proceedings to apply for joinder.  The court may also determine the matter as between the parties before it.  Rule 32 of the High Court Rules, 2021 deals with the issue of joinder. In casu, I am satisfied that the non-joinder of the Sheriff is not fatal to the application since execution is consequent upon the respondents lodging a writ of execution with the Registrar.  If a stay of execution is ordered, the party in whose favour judgement was granted may then be ordered not to action to enforce the judgment.

            In casu, after taking account of the factors which arise in the matter as are proper to take into account in an application for stay of execution of a judgement pending rescission of judgement I consider in the judicious exercise of my discretion that the following order will achieve real and substantive justice.  Whilst noting that most of the relief which the applicant seeks amount to new matters nor subject of the default judgement; 

            IT IS ORDERED THAT:

            Pending the determination of the rescission of judgement application HC 7337/22:

1. Execution of the judgment of Chirawu-Mugomba J dated 21 October 2022 in case    number HC 5592/20 is suspended save for para 2(b) of the order issued which reads:

            “The respondent be and is hereby interdicted from interfering with the enjoyment,                       use and occupation of the said property by the first and second applicants.”

2. For the avoidance of doubt, the applicant shall be entitled to occupy only the piece of land which she occupied on the date of the judgement being 21 October 2011.
3. No order of costs.