Florence Pambukani (Nee Behani) v Deputy Sheriff and Crowhill Farm (Private) Limited

### Preamble
1
HH 755-18
HC 10100/18
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FLORENCE PAMBUKANI (NEE BEHANI)

versus

DEPUTY SHERIFF

and

CROWHILL FARM (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE

MANZUNZU J

HARARE, 2, 7 & 15 November 2018

Urgent application

K. Kachambwa with G.R.J. Sithole, for the applicant

T Magwaliba with T.R. Tanyanyiwa, for the 2nd respondent

MANZUNZU J: The applicant filed this application on urgency seeking the following order:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to the Honourable Court why a final order should not be made in the following 	terms-

The writ of execution issued out by the 1st  respondent pursuant to the court order granted in 	case number HC 8457/17, be and is hereby permanently stayed pending the finalisation of the ownership wrangle in case number HC 2427/18.

The 2nd respondents shall pay costs of suit for this application.

INTERIM RELIEF GRANTED

Pending the return date, the applicants are granted the following relief.

The application for stay of execution of the order issued under HC 8487/17 be and is hereby granted.

The respondents or any of his officers or agents be and are hereby ordered to forthwith desist any and all execution processes pursuant to any writ of execution sued out under case number HC 8487/17.”

The 2nd respondent said the application was not urgent because of two reasons:

That the application is characterised by non-disclosure of material facts.

That the applicant failed to act when the need to act arose.

The brief background to the matter is that the applicant and second respondent are embroiled in a dispute over a piece of land. It shall not be necessary to bring forth the entire history of the dispute over this land except to say on 20 September 2017 the second respondent obtained an order in its favour against the applicant in Case HC 8487/17 for a spoliation order. The interim relief which was granted carry the following wording.

“INTERIM RELIEF GRANTED

That pending the return day, it is hereby ordered that:-

The respondent or any of her agents and/or employees, or anyone acting on her behalf is ordered to vacate Chirika Extension of Borrowdale Estate measuring 121, 4029 Hectares Lot J of Borrodale Estate measuring 724,0475 hectares immediately upon service of this order, failing which the Sheriff of Zimbabwe be and is hereby directed forthwith to eject the respondent or any of her agents and/or employees, or anyone acting on her behalf from occupation thereon.

The respondent, or any of her agents and/or employees, or anyone acting on their behalf is hereby ordered to remove all equipment, material and/or weapons of any kind there upon service of this order, failing which the Sheriff of Zimbabwe be and is hereby directed forthwith to remove any equipment, material and/or weapons from thereon.”

Aggrieved by the order, the applicant, then respondent in that case, appealed to the Supreme Court under case No. SC 723/17. The appeal was struck off the roll on 21 June 2018 for being fatally defective according to the second respondent.

The applicant then refiled another appeal under case No. SC 548/18 after condonation. The appeal was however on 19 October 2018 dismissed.

It is settled that an appeal suspends the execution of the judgment of the trial court.

Non –Disclosure of material facts

The second respondent said the applicant in her narration of events was economic with the truth. This is because the applicant in her founding affidavit, commenting about her appeal with the Supreme Court had stated,

“I appealed against the judgment and it was heard on the 19th October 2018. Justice 	Garwe advised that we were to go to the High Court to deal with the ownership and that 	was 	the basis for the withdrawal. I withdrew the case with the belief that the parties were 	going to deal with the issue of ownership.”

The second respondent said that statement was misleading because the truth of the matter was that the appeal was dismissed. A copy of the order of the Supreme Court was attached which reads; “the appeal be and is hereby dismissed with each party praying its own costs.”

Both parties argued over the issue of “dismissal” and “withdrawal” with the aim to justify their positions. As a matter of fact, the appeal was dismissed. Whatever reason influenced the dismissal the applicant had a duty to disclose the pronouncement of the Supreme Court. Applicant should not have highlighted the aspect of withdrawal to the extent of overshadowing dismissal. She had a duty to tell the court that the appeal was dismissed and then explain the surrounding circumstances leading to dismissal. To that end she was bent on misrepresenting the true facts. The Supreme Court order need no interpretation, the appeal was dismissed and not withdrawn. The order for dismissal was pronounced in the applicant’s presence.

I agree with the sentiments expressed in Centra Pvt Ltd v Pralene Moyas & Anor HH 57/12 by Bere J, as he then was, when he said,

“The issue of urgency can never be pinned on or founded upon incomplete disclosure. My 	view is 	that a matter ceases to be urgent if it is founded upon deliberate 	misrepresentation or 	the holding back of vital information.”

The position of the courts has not changed from what was stated in the Centra case (supra) that:

“it is the accepted position that courts detaste or frown on those litigants or legal practitioners who desire to derive the sympathy of the court by deliberately withholding vital information which has a bearing on the very matter that the court is called upon to determine.”

The second respondent also alleged misrepresentation by the applicant by bringing in people who were not affected by the eviction. Applicant said there were three groups of people who were going to be affected by the eviction that is people she sold stands to, her employees and herself.

However, the other alleged people are not parties to these proceedings neither has anything been exhibited to show that they have authorized applicant to represent them.

Acting when the need to Act arose:-

It is an agreed position that the second respondent could not execute on the spoliation order because an appeal had been noted. It is also common cause that the spoliation order was obtained through an urgent application. It is also common cause that applicant’s appeal was dismissed on 19 October 2018.

There is now a plethora of case law on the issue of urgency. The case of Kuvarega v Registrar General & Another, 1998 (1) ZLR 188 Chatikobo J, as he then was, set the tone by saying, “what constitutes urgency is not only imminent arrival of the day of reckoning; a matter is urgent, if at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules.”

The question is, when did the need to act arise? The applicant says on 31 October 2018 when applicant was served with writ of ejectment. Second respondent says the need to act arose when the appeal was dismissed on 19 October 2018 and the 31st October 2018 was the day of reckoning.

The applicant’s argument is that the need to act would only arise where there is a reasonable apprehension of danger per Econet Wireless P-L v Trustco Mobile Ltd & Anor, SC 43/2013 @14. Prima facie one will say the reasonable apprehension of danger arose when the shield to execute the spoliation order was removed on 19 October 2018 by the dismissal of the appeal. But the applicant says she entertained a reasonable apprehension that second respondent would not seek eviction. The reason for entertaining that belief was the manner in which the Supreme Court appeal was handled. She said it was withdrawn to pave way for the case on ownership to be dealt with. Given the history of the conflict between the parties was such a belief reasonable. I will say it was not given the fact that the appeal was dismissed, the spoliation order was obtained through an urgent application which shows the urgency with which the second respondent wanted restoration, there is other litigation pending between the parties and more so the applicant did not see it fit to confirm her so called reasonable belief with the respondent before she decided to sit on her laurels.

The need to act indeed arose on 19 October 2018 and the applicant acted on 1 November 2018 in a matter where she ought to have immediately filed this application as soon as she left the Supreme Court. She did not do so and has no reasonable explanation for the delay. In an effort to clutch at a straw the applicant stretched her argument to an order of this court in HC 2656/18 which is not related to the spoliation. If she had genuine belief that order could suspend the spoliation order she would not have made any effort to file an appeal.

In the result, the matter cannot enjoy the fruits of urgency as it does not deserve preferential treatment. Despite the absence of urgency, I do not think the applicant must be visited with punitive costs.

Accordingly,

IT IS ORDERED THAT:

The application is struck off the roll of urgent matters with costs.

Samundombe and Partners, applicant’s legal practitioners

Pfigu Tanyanyiwa Gapare Attorneys, 2nd respondent’s legal practitioners