Court name
Supreme Court of Zimbabwe
Case number
SC 54 of 2007
Civil Appeal 209 of 2006

Longman Zimbabwe (Pvt) Ltd. v Midzi and Others (209/06) (SC 54 of 2007, Civil Appeal 209 of 2006) [2008] ZWSC 54 (10 March 2008);

Law report citations
Media neutral citation
[2008] ZWSC 54






REPORTABLE ZLR (4)





Judgment No
SC 54/07


Civil
Appeal 209/06








LONGMAN
ZIMBABWE (PRIVATE) LIMITED v J


MIDZI
AND FIVE OTHERS








SUPREME COURT OF
ZIMBABWE


SANDURA JA, GWAUNZA JA
& GARWE JA


HARARE, MAY 7, 2007 &
MARCH 11, 2008








T Biti, for the
appellant





P C Paul, for
the respondents









GARWE JA: The facts of this case are to a large extent common
cause. The appellant is the registered owner of the immovable

property known as Paternoster Court situate at 157 Josiah Chinamano
Avenue, Harare. The respondents are statutory tenants at the

property. On 27 May 2003 the appellant gave two months notice to the
respondents to vacate the property on the basis that certain
internal
and external structural renovations were to be effected on the
property. Thereafter on 20 August 2003 the appellant further
advised
the respondents that it wished to repossess the premises for use by
its own members of staff and further that the occupation
by its
members was to be preceded by structural renovations. In that notice
the appellant also gave the respondents two calendar
months to vacate
the premises. In the meantime an application had been lodged with
the Rent Board for the ejectment of the respondents.
The application
was heard by the Board in June 2004. The Rent Board, satisfied that
the appellant wanted the premises for use
by its own employees and
further that due notice had been given to the respondents, granted
the application on 18 June 2004. On
21 June 2004 the Board further
issued a certificate permitting the ejectment of the respondents.
The respondents did not move.
Instead they appealed against the
decision of the Board to the Administrative Court. The appellant
then instituted an action
in the High Court seeking the ejectment of
the respondents as well as holding over damages. The action in the
High Court was predicated
on the notice given by the appellant to the
respondents on 20 August 2003 as well as the individual certificates
of ejectment issued
by the Rent Board on 21 June 2004. The
respondents opposed the relief sought on four bases. These were,
firstly, that the letters
purporting to give two months notice were
not proper notices in terms of the Rent Regulations; secondly, that
the appellant did
not require the flats for use by its own employees;
thirdly, that a company cannot give a valid notice in terms of s
32(c) of the
Rent Regulations; and fourthly, that the certificates of
ejectment were not issued in terms of s 30 of the Regulations.







At the hearing of the matter before the High Court, the trial Judge
found that the notice given by the appellant to the respondents
was
defective in that it did not specify for whose personal occupation
the premises were required. However, he also came to the
conclusion
that the effect of the noting of the appeal by the respondents
against the certificate of ejectment was to suspend the
decision of
the Rent Board. On that basis he dismissed the appellant’s claim
with costs.







It is against the decision of the High Court dismissing its claim
that the appellant has appealed to this Court. In its heads
of
argument, the appellant submits that the main issue is whether or not
the court a quo was correct in finding that the notice
of appeal had the effect of suspending the ejectment order. The
appellant has urged this
Court to find that, except where a court
enjoys original jurisdiction, the noting of an appeal against the
decision of that court
does not have the effect of suspending the
judgment of the court.







The respondents accept that this was one of the issues for
determination before the court a quo. They urge this Court to
find that an appeal in these circumstances does have the effect of
suspending the order. The respondents
submit, however, that it is
not necessary to decide this point. They argue that the notice to
vacate was defective in a number
of respects; it did not specify the
name of the person for whose personal occupation the dwelling was
required, it did not specify
the nature of the reconstruction as
required by s 30(3)(b) of the Regulations; it further did not specify
that the premises were
required for the personal occupation of the
appellant’s employees but instead stated that the premises were
required for the
use of its employees; and lastly that contrary to s
30(4) of the Rent Regulations, no certificate has been issued by the
Board
to the effect that the requirement that the lessee vacate the
dwelling is fair and reasonable and the date specified in the
certificate
for the vacation of the dwelling has passed.







The relevant provisions of the Rent Regulations are to be found
under s 30 of the Rent Regulations SI 626/82. Subsections (2),
(3)
and (4) in particular provide as follows:



“(2) Subject to the provisions of this section, no order for the
recovery of possession of a dwelling or for the ejectment of
a lessee
therefrom, which is based on the fact of the lease having expired,
either by effluxion of time or in consequence of notice
duly given by
the lessor, shall be made by any court so long as the lessee
continues to pay the rent due within seven days of due
date and
performs the other conditions of the lease, unless, in addition –







  1. the
    lessee has done, or is doing, material damage to the dwelling; or








  1. the
    lessee has been guilty of conduct likely to cause material damage to
    the dwelling or material or substantial inconvenience
    to occupiers
    of neighbouring or adjoining property or to the lessor; or








  1. the
    lessor has given the lessee not less than two months’ written
    notice to vacate the dwelling on the ground that the dwelling
    is
    required -









    1. by
      the owner; or










    1. where
      the lessee is a sublessee, by the person letting the dwelling to
      the sublessee;









for his personal residential occupation or the personal occupation of
his parent, child or employee; or







  1. the
    lessor has given the lessee not less than two months’ written
    notice to vacate the dwelling on the ground that the dwelling
    is
    required for the purpose of a reconstruction or rebuilding scheme,
    and the nature of such reconstruction or rebuilding would
    preclude
    human habitation; or








  1. …








  1. No
    notice to vacate a dwelling given by a lessor for the purpose of –









    1. paragraph
      (c) of subsection (2) shall be of any force or effect -










    1. if
      it does not specify the person for whose personal occupation the
      dwelling is required; and


    2. if
      it is given by a person who is not the owner or lessee who sublets
      the dwelling, unless the person giving such notice has
      previously
      been furnished with a request, in writing, to give such notice by
      the owner or lessee who sublets, as the case may
      be;









    1. paragraph
      (d) of subs(2) shall not be of any force or effect unless it
      specifies the nature of the reconstruction or rebuilding
      scheme,
      the date by which it is proposed to commence the scheme and the
      date by which it is proposed to complete the scheme.








  1. No
    order for the ejectment of a lessee from a dwelling shall be made on
    the grounds referred to in paragraph (c) or (d) of subsection
    (2)
    unless the appropriate board has, on the application of the lesser,
    issued a certificate to the effect that the requirement
    that the
    lessee vacate the dwelling is fair and reasonable, and the date
    specified in the certificate for the vacation of the
    dwelling has
    passed.”










Section 32 of the Regulations makes provision for the procedure to
be followed in applying for a certificate required in terms
of either
subsection (2) or (4) of s 30. After hearing the application, the
Board may grant or dismiss the application.







Section 35 of the Regulations makes provision for the noting of
appeals by any lessor or lessee who is aggrieved by a decision
of the
board to the Administrative Court. In terms of s 37 the
Administrative Court may inter alia confirm, vary, or reverse
the decision of the Board and a decision of the Administrative Court
under this section shall, for all
purposes, be deemed to be the
decision of the Board against whose decision the appeal was lodged.







It is clear from a perusal of s 30 of the Regulations that the order
of ejectment, must, at the end of the day, be made by a court
of law.
For a court to make that order, however, any one of the situations
stipulated in paras (a) to (e) of subs (2) must be
shown to have
existed. The use of the word “or” in those paragraphs is
disjunctive and the clear intention was to provide
a separate cause
of action in respect of each of those paragraphs. The matter,
however does not end there. Where a lessor has
given two months’
written notice for the lessee to vacate the dwelling house in terms
of subs (2) such notice shall not be of
any force or effect unless it
specifies the person whose personal occupation the dwelling is
required for. Further where the cause
of action is based on para (c)
or (d) of subs 2 (i.e where two month’s notice has been given to
vacate on the basis either that
the lessor requires the dwelling for
his personal residential occupation or personal occupation of his
parent, child or employee
or that the dwelling is required for the
purpose of a reconstruction or rebuilding scheme), a court is not
empowered to grant an
order of ejectment unless a certificate has
been issued by the Board to the effect that the request that the
lessee vacate the
dwelling is fair and reasonable and the date
specified for the vacation has passed.







A number of difficulties arise owing to the manner in which this
matter was handled by the court a quo. The difficulties
illustrate the need in a case such as this one for a determination to
be made on all the issues raised. In
my view it is not proper for a
court to make a decision on only one of the issues raised and say
nothing about other equally important
issues raised, unless the issue
so determined can put the whole matter to rest.







In the present matter the trial Judge accepted that the notice did
not specify the persons for whose personal occupation the premises

were required and that it was therefore defective. In other words
the court a quo accepted that the certificate that was issued
pursuant to the notice was not valid. The trial court did not, as it
should have,
proceed to determine the matter on this basis. Nor did
the trial court deal with the other issues raised in the pleadings
and agreed
to at the pre-trial conference. The issues were left
hanging. The effect on the plaintiff’s claim of the trial court’s
finding
that the notice given was invalid was not commented upon.







There is a further difficulty. The respondents appealed against the
certificate and order of ejectment issued by the Rent Board
to the
Administrative Court. In their notice of appeal the respondents
raised virtually the same points of law which they raised
before the
High Court. The trial court was aware of this state of affairs. No
finding was made on whether the respondents could
properly raise
before the High Court the very same issues forming the subject of
their appeal to the Administrative Court. It
is common cause that
the appeal before the Administrative Court is still pending.







On the facts it seems to me that whilst the appeal before the
Administrative Court remains pending, the issues raised before the

High Court and thereafter before this Court are lis pendens.
The Administrative Court will need to address its mind to the issues
raised in the appeal and thereafter make a determination.
It would
therefore be premature for me to consider and determine the points of
law raised in argument by the respondents.







I am inclined to agree with Mr Biti that it appears
the High Court decided not to make a determination on the correctness
or otherwise of the certificate that was issued
by the Rent Board but
instead confined its enquiry to the effect that the appeal noted by
the respondents had on the order made
by the Rent Board. The High
Court accepted that there was such an appeal before the
Administrative Court. The High Court however
appears to have adopted
the attitude that the validity or otherwise of the certificate issued
by the Rent Board was a matter to
be determined by the Administrative
Court at the conclusion of the appeal. The High Court did not
however say so in clear terms.







In the circumstance, therefore, I agree that the issue that falls for
determination in this appeal is the effect the noting of
an appeal
has on the order of the Rent Board.







The common law position was aptly captured by CORBETT JA in South
Cape Corporation (Pty) Ltd v Engineering
Management Services
(Pty) Ltd
1977 (3) SA 534 (AD) at 544 H-545 A when the learned
Judge of Appeal remarked:



“Whatever the true position may have been in the Dutch courts, and
more particularly the Court of Holland … it is today the
accepted
common law rule of practice in our courts that generally the
execution of a judgment is automatically suspended upon the
noting of
an appeal, with the result that, pending the appeal, the judgment
cannot be carried out and no effect can be given thereto,
except with
the leave of the court which granted the judgment … .”











The application of this common law rule of practice has in the past
not been uniform and a divergence of opinion has arisen amongst

Judges in this jurisdiction, resulting in uncertainty.







In Vengesai & Ors v Zimbabwe Glass Industries Ltd
1998 (2) ZLR 593 (H) GILLESPIE J after considering a number of
earlier decisions on the matter, remarked at p 598 E-F:



“In stating the common law, CORBETT JA referred to the automatic
stay of execution upon the noting of (an) appeal, as a rule
of
practice. That is not a firm rule of law, but a long established
practice regarded as generally binding subject to the court’s

discretion. The concept of a rule of practice is peculiarly
appropriate only to superior courts of inherent jurisdiction. Any

other court, tribunal or authority is a creature of statute and bound
by the four corners of its enabling legislation … .”







The learned Judge continued at p 599 A – D:







“… the grant or withholding of a stay of execution is, at common
law, a matter of discretion reserved to a court in which such
a
discretion is imposed. It follows that, in the absence of any
statute specifically conferring such a discretion on an inferior

tribunal or authority, or otherwise regulating the question of
enforcement of judgments pending an appeal from that authority,
no
such discretion can exist. Such a court or authority can exercise
only the powers conferred by statute. It cannot order the
suspension
of its own judgment pending an appeal. It has no discretion to
enforce its own judgment, notwithstanding an appeal.
The only basis
upon which its judgment or order can be supposed to be stayed is
where its enabling statute provides for the situation.







… the grant, whether automatic or not, of a stay of execution of a
judgment pending appeal is an inseparable part of an exercise
of
discretion by the court from which the appeal lies, to order the
enforcement of its judgment notwithstanding the appeal or any

temporary stay. It follows that the question of enforcement pending
appeal of judgments from an inferior court or authority cannot

possibly be regulated according to a rule of practice, derived from
the common law, and applicable in superior courts of inherent

jurisdiction.”









In the more recent Supreme Court decision in Associated
Newspapers of Zimbabwe v
(1) The Minister of State for
Information & Publicity
(2) Media & Information
Commission
(3) The Attorney General of Zimbabwe SC 11/04,
CHIDYAUSIKU CJ remarked at p 46 of the cyclostyled judgment:



“It is quite clear from the above authorities that the power of a
court to order execution of its own judgment despite the noting
of an
appeal is founded in the common law doctrine of inherent
jurisdiction. It is trite that only the superior courts enjoy
inherent jurisdiction. In this country these are the High Court and
the Supreme Court. Courts created by statute do not have inherent

jurisdiction and consequently do not have power to order execution of
their judgment unless such jurisdiction is conferred on them
by
statute.”




Although the above remarks by the CHIEF JUSTICE were made in
the context of a matter that had been determined by the
Administrative
Court it is clear that his remarks apply with equal
force to judgments and orders made by all inferior courts and
tribunals.







There is a presumption in our law that Parliament does not intend to
alter the common law unless it does so expressly or by necessary

implication. Silence by the legislature should not be taken to mean
that the legislature intends to alter the common law position.
If
the enabling legislation is silent, then the common law position must
apply – PTC v Mahachi 1997 (2) ZLR 71.







The position may now be accepted as settled in this jurisdiction
that unless empowered by law to do so, an inferior court, tribunal
or
other authority has no power to order the suspension of its own
orders or judgments and further that the noting of an appeal
against
the judgment or order of such a court, tribunal or other authority,
in the absence of a statutory provision to that effect,
does not have
the effect of suspending the operation of the judgment or order that
is sought to be appealed against.







The court a quo was therefore wrong in concluding that:



“The Rent Regulations are silent on the effect of noting an appeal
against the decision of the Rent Board. It does not automatically

follow that in the absence of a provision, then the noting of an
appeal does not suspend the decision of the Board.”











By adopting such an approach the trial court was in fact
contradicting various decisions made over the years by both the High

Court itself and the Supreme Court.







The decision of the Court a quo cannot therefore stand. It is
accordingly ordered as follows.







1. The appeal is allowed with costs.



2. The order of the High Court made on 1 March 2006 is set aside
and                               the

following substituted -







“An order of ejectment of the defendants be and is hereby
granted with             costs.”



















SANDURA JA: I agree



















GWAUNZA JA: I agree



















Honey & Blackenberg, appellant’s legal practitioners



Wintertons, respondents’ legal practitioners