Court name
Supreme Court of Zimbabwe
Case number
SC 7 of 2007
Civil Application 290 of 2005
Civil Application 171 of 2006

Chipendo v Nyamupanda and Another (290/05, 171/06) (SC 7 of 2007, Civil Application 290 of 2005, Civil Application 171 of 2006) [2007] ZWSC 7 (27 March 2007);

Law report citations
Media neutral citation
[2007] ZWSC 7
















Judgment No. SC. 7/07


Civil Application Nos.
290/05 & 171/06








KILLIAN
CHIPENDO v (1) GUTSIKANAYI NYAMUPANDA (2)
THE DEPUTY SHERIFF








SUPREME COURT OF
ZIMBABWE


HARARE, MARCH 28, 2007








The applicant in person





No appearance for the
respondents






Before: MALABA JA, In
Chambers in terms of r 34 (5) of the Supreme
                                                                   Court
Rules









The two applications which have been considered together are for
reinstatement of a lapsed appeal in case SC 290/05 and noting
of an
appeal in case SC 171/06.





The first respondent
bought a house which formed part of the applicant’s late father’s
estate. The purchase of the immovable
property, stand No 2 Umguza
Close, Willmington Park, Cranborne by the first respondent in
November 2002 was in terms of an agreement
of sale entered into with
the executor dative of the deceased estate. He had been authorized
by the Master by letter dated 29 October
2001 to sell the property
otherwise than by public auction. Transfer of the property into the
first respondent’s name was effected
on 6 March 2003.





It appears from the
papers that the immovable property was sold at the instigation of
some of the applicant’s siblings who were
beneficiaries of the
deceased estate. They wanted the proceeds from the sale of the
property distributed amongst the beneficiaries
including the
applicant. The applicant opposed the proposed sale. The executor
dative gave the applicant an option to buy out the
other
beneficiaries in order to acquire ownership of the house. The
applicant admits that he was given the option. He said that
the time
within which he was expected to exercise the option was too short.
He failed to raise the money to buy out the other beneficiaries
until
the property was sold to the first respondent who then took transfer.





When the first
respondent sought to take occupation of the house the applicant
refused to vacate the same, forcing the first respondent
to apply to
the High Court in Case HC 3967/03 for an eviction order. Meanwhile
the applicant had instituted action in the High Court
in Case HC
7963/03 challenging the validity of the sale of the property to the
first respondent.





On 14 September 2005
the High Court granted the first respondent an order of eviction
against the applicant and all those claiming
right of occupation
through him. In granting the eviction order the learned Judge said:






“The applicant by virtue of the transfer of the property to him is
the holder of real rights in the property. He is therefore
entitled
to enforce those rights against anyone. The respondent merely
occupied the premises as a child of the deceased. He had
no real
rights in the property. He has not proffered a defence to the claim
for eviction in the application.”









On 16 September 2005 the applicant noted an appeal to the Supreme
Court against the order of eviction in case SC 290/05. On 17
November he successfully applied to the High Court for an interim
interdict restraining the first respondent from executing the
eviction order pending the determinations of the appeal by the
Supreme court.





On 12 April 2006 the
applicant was given notice by the Registrar of the High Court of the
fact that the appeal noted by him in case
SC 290/05 had lapsed for
failure to comply with the requirements of Rule 34(1) of the Supreme
Court Rules. The applicant had not
deposited with the said Registrar
the estimated cost of the preparation of the record in the case
concerned at the time of noting
of the appeal.





The effect of the
lapse of the appeal was that there was no appeal pending before the
Supreme Court. The basis of the interim interdict
was removed by
operation of the law and the way for the enforcement of the eviction
order opened.





Sensing that the
execution of the eviction order was imminent, the applicant made an
urgent chamber application to the High Court
on 27 April 2006 for a
stay of his eviction from the house. He was nonetheless evicted on
the day the application was lodged with
the High Court. At that time
no application for reinstatement of the appeal had been made to the
Supreme Court.





On 9 May 2006 the
applicant filed an application for reinstatement of the appeal in
case SC 290/05. On 6 June 2006 the High Court
dismissed with costs
the application made on 27 April 2006 in case HC 2346/06. The
applicant was in contempt of court in that, after
having been evicted
from the house in terms of the court order, he had forced his way
back into occupation at the time the application
was heard and
determined.





In dismissing the
application the learned Judge said:



“The appeal that was filed by the applicant has lapsed. He has
filed an application to have it reinstated but until that is done
there is no appeal pending. … As the appeal is no longer pending,
the applicant is not entitled, in my view, to have the ejectment
stayed”.









On 29 June 2006 the applicant noted an appeal in case SC 171/06
against the judgment of the High Court in case HC 234/06. There
was
in effect no appeal because the fifteen days from the date the
judgment was delivered within which the Rules require a valid
appeal
to be noted had expired. On 18 July 2006 the applicant made an
application for condonation of the late noting of the appeal.
There
was no application for the extension of time within which to note the
appeal. The founding affidavit made no mention of prospects
of
success on appeal.





The position of the
applicant at the time the two applications were heard and determined
is set out in the first respondent’s heads
of argument:






“(1) The appellant is
appealing against the order of the High Court which
         authorized
his
eviction from house No. 2 Umguza Close, Wilmington
         Park,  Cranborne,
Harare. The appeal has been overtaken by events in the
         sense that the
order
of the High Court has already been executed. The
         Applicant
   was
evicted by the second respondent on 15 March
2007 and          vacant possession
of the property was handed over to the first respondent.          An
order in   an
application for reinstatement of the lapsed
appeal or even          the
appeal itself which
is meant to prevent the applicant’s
eviction will be a           brutum
fulmen
  because the harm which applicant seeks to
prevent has           already
occurred.





(2)    The
Applicant was lawfully evicted after he unsuccessfully tried to block
          his
eviction through various urgent chamber applications he had made in
          which
he
was seeking an order to be restored into the property after
          realizing
that it had no merit. The withdrawal was made before the
          Honourable
Justice Guvava on 19 March 2007 and surely in light of these
         developments
the
essence of the application or pursuing the appeal against
          eviction
cannot
be understood. To appeal against the order of the High
          Court
authorizing
eviction is just an academic exercise meant to achieve
          nothing
at the
end of the day.”










At the time the eviction of the applicant was carried out, there was
no appeal against the order of eviction pending before the Supreme
Court. The eviction was lawfully carried out and the writ of
execution satisfied. There is no legal ground on which the applicant
can claim a right to be placed in occupation of the house which no
longer belongs to the deceased estate. The house now belongs
to the
first respondent, who alone has the right to decide who should
occupy it.





The appeals had been
noted for the purpose of retaining occupation of the house pending
their determination. The lawful eviction
of the applicant from the
house removed any prospects of success on the appeals. The eviction
confirmed the fact that the learned
Judge was correct in holding that
the first respondent was entitled to vacant possession of the house.
That conclusion is, on the
facts of the case, unassailable. After
all the first respondent is the registered owner of the house. He
was entitled to evict
the applicant from its occupation.





The applications are
dismissed with costs.