Brian Davies v Floyd Ambrose and The Officer Commanding Zimbabwe Republic Police – Matabeleland North Province

### Preamble
1
HB 78/21
HC 306/21
---------


BRIAN DAVIES

Versus

FLOYD AMBROSE

And

THE OFFICER COMMANDING

ZIMBABWE REPUBLIC POLICE –

MATABELELAND NORTH PROVINCE

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 10 APRIL & 20 MAY 2021

Urgent chamber application for leave to execute pending appeal

J. Tshuma for the applicant

Mahaso for the 1st respondent

No appearance for the 2nd respondent

TAKUVA J:	This is an urgent chamber application for leave to execute the judgment in case number HC 24/21 handed down by MOYO J on the 3rd of March 2021 pending the appeal filed in the Supreme Court by the 1st respondent under cover of case number SCB-09-21.

Facts

It is an understatement to say that this case has a chequered history.  The applicant is a former owner of a farm that was gazetted in terms of the Land Acquisition Act and offered to numerous beneficiaries with applicant occupying the remaining extent.  The 1st respondent was offered sub-division 15 by the State.  Instead of carrying out farming activities like other beneficiaries, 1st respondent decided voluntarily to enter into “deals” with the applicant resulting in the so-called “swop agreement” wherein 1st respondent would vacate his plot and occupy the applicant’s home i.e the remaining extent and applicant to occupy sub-division 15.  They swopped plots for mutual benefits that occurred to both of them for years.

Later, 1st respondent claimed to have “seen Damascus” and started alleging all sorts of defects in the swop agreement.  Chief among which was that the agreement was illegal in that it had not been approved by the Minister of Lands, Land Reform and Resettlement.  The 1st respondent tried unsuccessfully to evict the applicant from the Chief’s Lodge” within Lot 15 of Tabas Induna.  The parties started suing each other right, left and centre both in the Magistrates’ Court and this Court.  When 1st respondent lost the legal battle it became fashionable for him to peddle a lie to whoever cared to listen that the applicant and whoever dared to support him, wish to “reverse or defeat the land reform programme”.  He makes that allegation in paragraph 12 of his opposing affidavit filed with his notice of opposition to this application.

I now set out the relevant events in their chronological order.

On 9th of February 2021, the 1st respondent forcibly occupied applicant’s family home and lodge being Lot 15 Tabas Induna Farm, Umguza.  Applicant and his family had been in peaceful occupation of the premises ever since the conclusion of a swop agreement between the applicant and the 1st respondent.

The unlawful occupation followed the granting of an order by this court interdicting 1st respondent from executing on a writ of ejectment against the applicant under case number HB-104-19.  The 1st respondent lost and was not amused by it.  Instead of abiding by this judgment the 1st respondent took the law into his own hands and forcibly occupied the property.

On 25th of February2021and under cover of case number HC 24/21, the applicant approached this court for a spoliation order which was granted on the 3rd of March 2021 in wilful default of the 1st respondent.

Instead of applying for rescission of the judgment as a defaulting litigant in terms of the rules, the 1st respondent despite being legally represented curiously filed a purported appeal against that order under SCB-03-21 – see notice of appeal on page 27 dated 5 March 2021.

When the Sheriff attempted to evict that 1st respondent from the premises, he was then served with the above mentioned notice of appeal.  The Sheriff also observed ten men wielding axes evicting the applicant from the premises by dumping his property outside the gate.

In view of the fact that an appeal to the Supreme Court automatically suspends the execution of a High Court judgment, the applicant sought leave to execute pending appeal under case number HC 105/21.  Leave was duly granted on 25th March 2021.

On 29 March 2021, the 1st respondent instituted another purported appeal under SC-09-21 against the decision of this court in HC 105/21.

On 8 April 2021, the applicant filed the present application on the following grounds;

The matter is very urgent in that the 1st respondent remains occupying Chief’s Lodge in defiance of this Court.

The applicant’s property has been placed outside the gate unsecure and susceptible to theft.

It is incompetent for one to appeal an interlocutory order without first being granted leave to appeal by this court.

The notice of appeal is fatally defective.  The appeal has been noted to delay the applicant from evicting 1st respondent from the premises.

The 1st respondent must restore occupation of the farm to the applicant.  In the event that 1st respondent believes he has a lawful right to occupy the property he must prove this in a court of law.

The applicant stands to suffer irreparable harm if leave to execute is not granted in that the remedy is a spoliation which by nature requires an urgent restoration of the status quo.

Further, the 1st respondent has no prospects of succeeding on appeal in that one cannot appeal against an interlocutory order without being granted leave to appeal.

The application is strongly opposed by the 1st respondent on the following grounds;

The matter is not urgent in that the “time frame between the filing of the notice of appeal in question and the present application exposes this perchant fact”.

The present application has been overtaken by events as the “Minister of Lands, Land Reform and Resettlement has directed that the parties revert to their original allocated portions”.  The decision ordered that applicant to vacate Lot 15 Tabasinduna, Umguza and directed to occupy the remaining extent of Tabasinduna where the farmhouse is situate.

The memorandum of understanding upon which applicant sought to find “the right” to occupy Lot 15 Tabasinduna has not been approved by the Minister.  The applicant’s offer letter for the Remaining Extent is being processed.

The court might not aid the applicant to “defeat the noble land reform through the back door”.  The long running dispute between the parties has finally been “settled” by the regulatory authority.

The 1st respondent attached two letters written by officials in the Ministry of Lands.  The 1st was written by N. Dendere a director on 13 April 2021.  The 2nd dated 15 April 2021 was written by the Acting Provincial Land Officer Matabeleland North Province.

In my view the crisp issue for determination in this application is whether the applicant should be allowed to execute the order notwithstanding the appeal.  This court enjoys a wide discretion to grant or refuse leave.  However, the discretion would have to be exercised judiciously.  The principle was stated in Netone Cellular (Pvt) Ltd vs Netone Employees and Another 2005 (1) ZLR 275 (S) where the court said;

“In exercising this discretion, the court should, in my view, determine what is just and equitable in all the circumstances, and in doing so would normally have regard, inter alia to the following factors;

the potentiality of irreparable harm or prejudice being sustained  by the appellant on appeal (respondent in the application) if leave to execute were to be granted;

the potentiality of irreparable harm or prejudice being sustained by the respondent on appeal (applicant in the application) if leave to execute were to be refused.

the prospects of success on appeal including more particularly the question as to whether the appeal is frivolous or vexatious or has been noted  not with bona fide intention of seeking to reverse the judgment but for some indirect purpose, e.g. to gain time or to harass the other party; and

where there is the potentiality of irreparable harm or prejudice to both appellant and respondent, the balance of hardship or convenience, as the case may be.”

Application

On 15 April 2021, the Registrar of the Supreme Court addressed a letter to the 1st respondent’s legal practitioners in the following terms;

“Ref: Floyd Ambrose vs Brian Davies & Anor SCB 03/21

Reference is made to the notice of appeal you filed on the 03 march 2021.

It is noted that you neglected to pay costs for the preparation of the appeal record at the Registrar of the High Court within the specified time in terms of Rule 46 (1) of the Supreme Court Rules 2018.

In terms of sub-rule (5) of Rule 46 of the aforementioned rules, the appeal is deemed as to have lapsed and have been abandoned”. (my emphasis)

A week later on 23 April 2021, the same Registrar addressed a second letter to the 1st respondent’s legal practitioners as follows;

“Re: Floyd Davies and Anor SCB 07/21

Reference is made to the notice of appeal you filed on 29 march 2021.

It is noted that you did not serve the Registrar of the High Court with the notice of appeal as required by Rule 37(2) of the Supreme Court Rules, 2018.

Consequently therefore you did not comply with Rule 46(1) of the same rules to make any arrangements for the preparation of the record within the time specified in sub-rule (1) of Rule 46of the Supreme Court Rules 2018.

In terms of sub-rule (5) of Rule 46 of the aforementioned rules, the appeal is deemed as to have lapsed and have been abandoned.”  (my emphasis)

In light of these notifications, the two appeals filed by the 1st respondent have lapsed and are abandoned.  For this reason, there are no appeals pending in the Supreme Court.

Secondly, appeal number SCB 03-21 is an appeal against a default judgment, something that is unheard of in law – see Sibanda & Ors v Nkayi Rural District Council 1991 (1) ZLR 12 and Zvinavashe v Ndlovu (90/06) [2006] ZWSC 40 (06 Dec 2006)  For this reason, the appeal is not properly before the Supreme Court. It is settled law that one cannot appeal against a default judgment.

Thirdly, in SCB 09-21, the 1st respondent is appealing against an interlocutory order.  Therefore he was required by the provisions of section 43 of the High Court Act Chapter 7:06 to obtain leave of the judge who granted that judgment.  He did not bother to do so arguing that the judgment was final in nature.  Unfortunately it is not.

Section 43(2) provides;

“(2)	No appeal shall lie

(d)	from an interlocutory order or interlocutory judgment made or given by a judge of the High Court, without the leave of that judge or if that has been refused, without the leave of a judge of the Supreme Court, except in the following cases;

(i)	where the liberty of the subject or custody of minors is concerned;

(ii)	where an interdict is granted or refused

(iii)	In the case of an order on a special case stated under any law relating to arbitration.

In casu, as no application for leave had been made to the court a quo and the case does not fall within the exceptions set out above, it is my view that the notice of appeal also does not comply with r29(1)(a) of the Supreme Court Rules 1964.

It was held in Jensen v Acavalos 1993(1) ZLR 210 (S) at 220A-H that a notice of appeal which does not comply with the above rule is fatally defective and invalid.  See also (1) Mine Mills Trading (Pvt) Ltd; (2) Charles Chisango; (3) Kevin Makoni vs NJZ Resources (UK) Ltd SC 40/2014

On the hearing date, the 1st respondent argued that he has an offer letter that, authorises him to occupy the land.  This, so the argument went, coupled with the Minister’s refusal to sanction the memorandum of agreement gives the 1st respondent the right to stay put on Lot 15 Tabasinduna Farm.  It is settled law that an offer letter does not give respondent authority to evict – see Forester (Pvt) Ltd v Makurana HC 658/17; Karori & Ano v Brigadier Mujaji HC 23/2007; Root Tour & Ors v Minister of National Security & Ors HH-128-09.

In the present matter if 1st respondent believes he has the right to occupy the land he must approach the court or the State through the Gazetted Land Consequential Act to have applicant evicted.  The 1st respondent’s fresh argument on his right to occupy the farm is irrelevant for purposes of spoliation.  The relevant questions are, (1) was applicant in occupation or possession? and (2) Has the applicant been forcibly removed without his consent or court order?  On the facts of this case, the answer to both questions is in the positive.  This led to this court’s judgments against 1st respondent which judgments he has consistently defied.  For this court to entertain this argument would be to sanitise1st respondent’s defiance of court orders.

This court has a duty to discourage self-help by citizens.  To that end legal disputes must be concluded through the legal route while administrative steps are left to officials tasked to perform them.

In that regard and for the above reasons, I find that the 1st respondent has no prospects of success on appeal.  The appeal is frivolous and vexatious noted with mala fide intention to gain time to harass the applicant.

In the circumstances, it is ordered that:

The applicant be and is hereby granted leave to carry into execution the judgment of this Court granted on the 3rd of March 2021 as judgment number HC24/21 notwithstanding the noting of the appeal under SCB 09/21.

The 1st respondent shall pay the costs of this application on the legal practitioner and client scale.

Webb, Low & Barry, Inc Ben Baron & Partners, applicant’s legal practitioners

Tanaka Law Chambers, 1st respondent’s legal practitioners