Routetoute BV and Peninsula Plantation (Private) Limited and Matanuska (Private) Limited and Brightside Farm (Private) Limited v Minister of Lands and Rural Resettlement and Minister of Foreign Affairs N O and Ambassador Edzai Chimonyo and The Attorney General N O

### Preamble
HH 52-10
HC 1294/10
ROUTETOUTE BV
and
PENINSULA PLANTATION (PRIVATE) LIMITED
---------


==============================

ROUTETOUTE BV
and
PENINSULA PLANTATION (PRIVATE) LIMITED
and
MATANUSKA (PRIVATE) LIMITED
and
BRIGHTSIDE FARM (PRIVATE) LIMITED
versus
MINISTER OF LANDS AND RURAL RESETTLEMENT
and
MINISTER OF FOREIGN AFFAIRS N O
and
AMBASSADOR EDZAI CHIMONYO
and
THE ATTORNEY GENERAL N O

HIGH COURT OF ZIMBABWE
OMERJEE J
HARARE, 10 March and 24 March 2010

Urgent Chamber Application

L Uriri for the applicants
G Mlotshwa, for the third respondent
No appearance for the 1st, 2nd and 4th respondents

OMERJEE J: The applicants seek a declaratory order in this matter in the following terms as appears at p 53 of the record as follows:

1. That it be and is hereby declared that the stay of execution of Honourable Mr Justice T KARWI’s provisional order under case number HC 6541/09 obtained by the third respondent as the applicant under case number HC 128/2010 (HH 16-2010) has lapsed for want of prosecution of an application for rescission of judgment within the time limits ordered and directed by Honourable Justice MUSAKWA under case number HC 128/2010 (HH 16-2010).

2. That it be and is hereby ordered that the applicants are authorized and empowered forthwith to attend to the execution and implementation of the interim relief as provided for under case number HC 6541/09.

3. It be and is hereby ordered that any purported noting of an appeal against this order shall not have the effect of staying or suspending the execution of the interim relief granted under HC 6541/09.


4. That the third respondent, in the event of opposition, pay the costs of this application.

The relief sought is opposed by the third respondent. There was no appearance on behalf of the first, second and fourth respondents respectively. The first respondent filed a document stating that the first respondent will abide by the decision of the court.

The factual background relevant and of essence to the determination of this matter and which is not in dispute is as follows:

In proceedings in case number HC 6541/09 the present applicants filed an urgent chamber application in which they sought and were granted a provisional order of spoliation, against the present third respondent on 5 January 2010. (Pages 33 – 35 inclusive of the record refer). The present third respondent then filed an urgent chamber application in proceedings filed under case number HC 128/10 seeking a stay of the spoliation order granted by KARWI J This court having considered the application issued a judgment and granted interim relief (as appears at p 42 of the record) on 26 January 2010 as follows:

INTERIM RELIEF

Pending the determination of this matter, the applicant is granted the following relief:

(a) The operation of and execution of the default order handed down KARWI J in case number HC 6541/09 be and is hereby stayed.

(b) The applicant shall file his application for rescission of judgment granted in case number HC 6541/09 within seven days of the granting of this order.

It is clear from the interim order issued by MUSAKWA J that he granted the present third respondent, a stay of execution.

The third respondent was directed to file an application for rescission within a period of seven days of the date of the grant of the order which was 26 January 2010.

The third respondent submitted that in proceedings under case number 128/10 he had filed an application for rescission. The final order sought in those papers, was one of rescission of the interim order granted in default by KARWI J. A perusal of the papers filed under case number HC 128/10 confirms this to be the position.

The relief sought by the present applicants is misplaced, given the presence of an application for rescission which is pending. The complaint by the present applicants is understandable. It should not have taken more than fourteen days for the present respondent to have enrolled this matter on the opposed roll for hearing on notice to the present applicants. That was not done.

Under the circumstances the relief sought cannot be granted. In order that this matter is finalised, it is proposed to grant the following directions:-

1. The papers filed under case number HC 128/10 shall stand as the application for rescission.
2. The present applicants shall within seven days of the date of this order file their opposing papers.
3. The parties shall file their heads of argument within the time limits as stipulated within the High Court Rules and obtain a date of set down for the hearing of the application for rescission on the opposed roll.
4. Costs shall be costs in the cause.

*Gallop & Blank, applicants’ legal practitioners*
*G.N. Mlotshwa, and Co, 3rd respondent’s legal practitioners*
--- END OCR FALLBACK ---