May Tshuma and Ndabezinhle Tshuma and Ricnob Suppliers (Private) Limited v Mike Mandizera and The Provincial Mining Director N.O. Matebeleland South and The Sheriff of the High Court

### Preamble
1
HB 308/20
HC 2112/20
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MAY TSHUMA

And

NDABEZINHLE TSHUMA

And

RICNOB SUPPLIERS (PRIVATE) LIMITED

Versus

MIKE MANDIZERA

And

THE PROVINCIAL MINING DIRECTOR N.O.MATEBELELAND SOUTH

And

THE SHERIFF OF THE HIGH COURT

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 16 DECEMBER 2020 AND 5 JANUARY 2021

Urgent application

T.S.T. Dzvetero, for the applicants

V. Chivore, for the 1strespondent

DUBE-BANDA J: 	This is an urgent application for stay of execution of a writ of ejectment and execution against moveable property issued on the 12 November 2020. The title of the application is “urgent chamber application for stay of execution pending an application for rescission of default judgment and application for condonation for late filing of plea and upliftment of bar made in terms of rules 241, 244, 247 of the rules of the High Court, 1971.” The parties are presently in litigation on several fronts.  In his oral submissions, Mr Chivore, counsel for the 1st respondent said there are currently five matters pending between the parties. I informed counsel, that I will call and peruse the court files in respect of the other matters pending between the parties. A court is entitled to refer to its own records and proceedings and to take note of their contents.  See: Mhungu v Mtindi 1986 (2) ZLR 171 (SC) at 173A-B.

In this urgent application, applicant seeks a provisional order couched in the following terms:

Terms of the final order sought

That you show cause why an order in the following terms should not be granted; pending determination of the court application for recession of default judgment simultaneously filed with this extant application and an application for condonation for the late filing of plea and upliftment of bar under HC 983/20.

The interim relief granted by the court on the …………… day of …………… 2020, be and is hereby confirmed.

Pending  determination of the court application for recession of default judgment obtained by 1st respondent under HC 57/29, and an application for condonation for the late filing of plea and upliftment of bar under HC 983/20, it is hereby ordered that execution of the default judgment be and is hereby stayed.

The 1st respondent shall bear the costs of this application.

Interim relief sought

Pending the determination of this matter on the return date, it is hereby ordered as follows:

The execution of the judgment obtained by the 1st respondent under HC 57/19 against applicants be and is hereby stayed.

The execution of the writ of ejectment issued by the 3rd respondent against applicants on the 12 November 2020, and a notice of removal issued out on 7 December 2020, be and is hereby stayed.

Service of the provisional order

Applicant’s legal practitioners shall be and are hereby granted leave to serve this provisional order upon the respondents.

The application is opposed by the 1st respondent. The 2nd and 3rd respondents did not participate in these proceedings. 2nd and 3rd respondents have obviously taken a position that they will abide by the order of this court. For ease of reference and to avoid confusion, applicants will be referred to as “applicants” or “defendants” as the contexts permits, and 1st respondent will be referred to as “1st respondent” or “plaintiff” as the contexts permits.

The background

The historical facts of this dispute are largely common cause and they acuminate to this:1st and 2nd applicants are the registered owners of a piece of land known as Wallington A situate in the district of Insiza measuring 946, 4524 hectares (Wallington Farm). 3rd applicant, by agreement with 1st and 2nd applicants, mines quarry on 78 hectares of Wallington Farm. 2nd respondent granted, first a prospecting licence, a then a mining certificate to 1st respondent in respect of part of Wallington Farm.

On the 11 January 2019, 1st respondent caused a summons under cover of case HC 57/19 to be issued against the applicants, claiming:

An order for eviction against 1st and 2nd defendants, their officials, agents, assigns and all those claiming occupation through them forthwith from mining claim registered as 17466BM, Block 21 Scheelite named Croft situate on a farm commonly known as Wallingford A Farm.

An order interdicting 1st and 2nd defendants, their agents, assigns and all those claiming occupation through them forthwith from barring plaintiff from undisturbed use and access of mining claim registered as 17466BM, Block 21 Scheelite named Croft situate on a farm commonly known as Wallingford A Farm.

A claim for damages against the 1st and 2nd defendants for loss of income calculated from 6 June 2018 to date of eviction at the rate of US$50 000.00 per month.

Interests of 5% per annum on the amount claimed, calculated from the 6 June 2018 to the date of full payment.

Costs of suit on a legal practitioner and client scale.

A notice of appearance to defend was entered on 24 January 2019, and a notice to plead and intention to bar was filed on the 11 April 2019. Applicants filed their plea with this court on the 25 April 2019. A replication was filed on the 14 May 2019. On the 14 May 2019, 1strespondent caused to be issued out a notice to make discovery and filed his own discovery affidavit. On the 17 May 2019, 1strespondent filed a memorandum of issues; a synopsis of evidence and an application for a pre-trial conference date. On the 16 October 2019, the litigants attended a pre-trial conference, and filed a joint pre-trial conference memorandum on the 22 January 2020. 1st respondent applied for a set-down date for trial. The matter was set down for the 16 June 2020 for trial. On the trial date the matter was struck off the roll. The parties are agreed, that the reason of striking the matter off the roll, was that the applicants’ plea of the 25 April 2019, was filed out of time allowed by the rules of this court.

Following the striking from the roll of HC 57/90, applicants on the 24th June 2020, filed a chamber application for condonation for the late filing of a plea and upliftment of bar in case number  HC 983/20. The application is still pending finalisation. While this application for condonation was pending, 1strespondent applied for a default judgment in HC 57/19. The application for default judgment was set down for the 20 August 2020, and was granted by this court. On the 9 December 2020, applicant filed with this court, an application for recession of judgment, seeking to rescind the order granted in HC 57/19. Such application is pending under cover of case number HC 2108/20. Notwithstanding the pending application for rescission of judgment, respondent has caused a writ of ejectment & execution against movable property to be issued, and instructed the 3rd respondent – the Sheriff of the High Court – to execute against the applicants. This urgent application is aimed at staying such execution, pending the conclusion of the application for condonation and the application for rescission of judgment.

The law

This case has to be determined in terms of the traditional approach where the applicants have to establish a prima face case.Whilst a stay of execution is a species of an interdict, there is a slight difference. In an application for a stay of execution the broad requirements for relief are real and substantial justice. The premise on which a court may grant a stay of execution is the inherent power reposed in it to control its own process.  I also find the remarks by MAFUSIRE J in the Magarita v Munyuki and 2 others HMA-44-18,instructive:-

These requirements are considered conjunctively, not disjunctively. Some of them may assume greater importance in some cases than do others in other cases, whilst a stay of execution is a species of an interdict, there is, in my view a slight difference. In a broader sense, most orders of courts are interdicts; either prohibitory or mandatory. But in an application for a stay of execution the broad requirements for relief are real and substantial justice. The premise on which a court may grant a stay of execution is the inherent power reposed in it to control its own process.

In Mupini v Makoni1993 (1) ZLR 80 (SC), GUBBAY CJ had this to say:-

Execution is a process of the court, and the court has an inherent power to control its own processes and procedures; subject to such rules as are in force. 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 the 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 special reasons against execution issuing can be more readily found where as in casu, the judgment is for ejectment or the transfer of property for in such instances the carrying of it into operation could render the restoration of the original position difficult.

In considering whether applicants have made out a case for a stay of execution, I factor into the equation, amongst others, whether the application for rescission of judgment in HC 2108/20, and the application for condonation in HC 983/20 have prospects of success.

The law and the facts

Applicants contend that they have prospects of success in the application for rescission of judgment, and the application for condonation, which prospects warrants a stay of execution. They rely, amongst others, on the following facts: that they were only alerted at the commencement of trial that their plea was filed out of time; that HC 57/20 was struck off the roll, and there was no court order sanctioning its reinstatement; that the default judgment was applied for and granted when the application for condonation was still pending; that the decision of the 2nd respondent registering mining claim 17466BM in the name of the 1st respondent is being challenged in this court; and that the land that is in dispute, could not at law have been granted to 1st respondent, when 3rd applicant is carrying quarry miming thereat. Applicants contend that they were served with the writ on the 7 December 2020, and that is when they became aware of the existence of the default judgment.

Mr Chivore, counsel for 1st respondent, contends that 1st respondent is the registered as owner of the mining claim, namely; 17466BM, Block 21 Scheelite, situate at Wallingford Farm. It is submitted that the mining claim was registered in 1st respondent’s name on the 5 June 2018, since then he has been denied access to such claim. The record shows that he was once arrested, tried, convicted and sentenced for malicious damage to property in respect of the Wallingford Farm. This court in Ricnob Suppliers (Private) Limited and Alfred Chinanayi v Mike Mandizera and the Minister of Mines and Mineral Development HB 262/18, ordered that:

Applicants, and all those claiming possession through them, are hereby declared to have peaceful and undisturbed possession on part of seventy eight hectares of land commonly known as Wallingford Farm, situate in the District of Insiza measuring 946. 4524 hectares.

First respondent (Mike Mandizera) and those claiming occupation through same are hereby ordered to return applicants status quo ante prior to this spoliation such that applicants are returned their peaceful and undisturbed possession, occupation and use of seventy eight hectares of land commonly known as Wallingford Farm, situate in the District of Insiza measuring 946. 4524 hectares.

The first respondent shall pay the costs of suit. Wallingford Farm, situate in the District of Insiza measuring 946. 4524 hectares.

I take the view that applicant cannot raise his failure to access and work the mining claim as a basis of opposing this application. On the facts of this dispute, 1strespondent has been lawfully denied access to the Farm. His exclusion from the Farm has been sanctioned by the law. First his conviction by a court of law, and second by this court in Ricnob Suppliers (Private) Limited and Alfred Chinanayi v Mike Mandizera and the Minister of Mines and Mineral Development.

1st respondent’s contends that he is the registered owner of the mining claim, and the applicants are sought to be evicted not from the whole Wallingford Farm, but from the mining claim. It seems to me that the dispute turns on the seventy eight hectares of land, this is the land where 3rd applicant, by agreement with 1st and 2nd applicants, is said to be mining quarry. This is the land where and 2nd respondent granted, first a prospecting licence, and then a mining certificate to 1st respondent. Surely, if 3rd applicant is indeed mining quarry on this seventy hectares of land, on what basis at law could the same piece of land be granted as a mining claim to 1st respondent? I hold the view that this is a critical issue that has to be adjudicated in HC 57/19. Again, the mining registration certificate in favor of 1st respondent is subject to litigation before this court in HC 3400/18. My view is, on these facts, applicants have established, on a prima facie basis, a meritorious case.

Again, on the 16 June 2020, this court struck off the roll case HC 57/19. The court ruled that this “matter is struck off the roll with no order as to costs as plaintiff submits that all the defendants are barred for failure to file their pleas on time.” The matter was subsequently set down on the 20 August 2020, in the unopposed motion court, which is the date the default judgment at the center of this application was granted. Mr Dzvetero, counsel for the applicants, submits that once a matter is struck off the roll, it cannot be re-set without a court order. Practice Directive 3 /2013 provides as follows:

Stuck off the roll

The term shall be used to effectively dispose of matters which are fatally defective and should not have been enrolled in that form in the first place.

In accordance with the decision in Matanhire v BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S) and S v Ncube 1990 (2) ZLR 303 (SC), if a court issues an order that a matter is struck off the roll, the effect is that such a matter is no longer before the court.

Where a matter has been struck off the roll for failure by a party to abide by the Rules of Court, the party will have thirty (30) days within which to rectify the defect, failing which the matter will be deemed to have been abandoned.

Provided that a Judge may on application and for good cause shown, reinstate the matter, on such terms as he deems fit.

It must be stated upfront that interpretation is about the court trying to ascertain the intention of the rule maker. This is achieved by, first, looking at the words used. If words employed are clear and unambiguous, then they must be given their ordinary grammatical meaning. In the present instance, I find that the words deployed by the rule maker are clear and unambiguous. Accordingly, no absurdity or hardship arises from attributing the ordinary, grammatical meaning of the words utilised by the rule maker. See: Mofuka vs Bank Windhoek Limited (I 2508/2012)[2019]NAHCMD 200 (20 June 2019);Zambezi Gas Zimbabwe (Private) Limited v N.R. Barber (Private) Limited and the Sheriff for Zimbabwe SC 3/20; Chihava and Others v The Provincial Magistrate Francis Mapfumo N.O and Another 2015 (2) ZLR 31 (CC) at pp 35H-37B.  Paragraph 4 of the Practice Directive says if a court issues an order that a matter is struck off the roll, the effect is that such a matter is no longer before the court.  The Practice Directive explains in the footnote, how such a matter may find its way back to the court roll, i.e. it can only be re-enrolled following an application for which an appropriate court order is issued. It directs the Registrar not reset the matter without a court order. The word ‘shall’ is used, and such a word is peremptory.

In casu, on the 16 June 2020, case HC 57/19 was by order of this court struck off the roll. Without an application for reinstatement, without a court order, it was brought back to the court roll. Mr Chivore, contends that it was not necessary for the 1st respondent to seek and obtain a court order to reinstate case HC 57/19. I do not agree. I hold the view that case HC 57/19 must not have been set-down without a court order sanctioning its restatement.

Finally, 1st respondent submits that the draft interim relief sought by the applicants is defective, in that it is a final order disguised as interim. I do not agree. The interim relief sought is clear, it says ‘pending the determination of this matter on the return day, it is hereby ordered that,” meaning the interim relief sought shall be valid pending discharge or confirmation on the return date. Criticism of a draft order must not be escalated to a point where form is elevated over substance. There is nothing irregular about the draft order in this application.

The test to be applied in determining whether a court should grant the relief sought by the applicants has been set in Mupini v Makoni1993 (1) ZLR 80 (SC); Magarita v Munyuki and 2 others HMA-44-18, and other cases. I hold the view that, on the fats of this case, the court application for condonation HC 983/20 and the application for recession of judgment HC 2108/20 have prospects of success. Real and substantial justice requires that the provisional order sought in this application be granted.

Disposition

I am satisfied, that at this stage of the proceedings, applicants have established a prima facie case, which entitles them to the interim relief sought in this application.  In the result, I make the following order: the provisional order is and hereby granted in terms of the draft order.

Antonio & Dzvetero, applicants’ legal practitioners

Chivore Dzingirai Group of Lawyers, respondent’s legal practitioners