Willard Mazhawidza AND Dornica Mazhawidza Versus Isaya Mashayakarara

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WILLARD MAZHAWIDZA
and
DORNICA MAZHAWIDZA
versus
ISAYA MASHAYAKARARA


HIGH COURT OF ZIMBABWE
CHATUKUTA J
HARARE, 30 September 2010 & 12 January 2011


Opposed Matter


T Mpofu, for the applicant
C Chikore, for the respondent


         CHATUKUTA J: This is an application for execution pending appeal.


         On 7 October 2009 this court granted judgment in case No HC 677/09 in favour
of the applicants. The court ordered the ejectment of the respondent from a property
known as Stand Number 628 Marlborough Township also known as No. 33 Taormina
Avenue, New Marlborough, Harare (the property). Dissatisfied with the judgment, the
respondent appealed against the decision.
         Applicant contended that the appeal is frivolous and vexatious and has been noted
solely to delay finality. The appeal was noted on 27 October 2009 and only served 30
days later on 27 November 2009. Respondent had, before filing the notice of appeal,
issued summons in case No HC 4922/09 on 14 October 2009 seeking a declarator that
agreement of sale was valid and that he is the owner of the property. He claimed in the
alternative a refund of the market value of the property.
         The factors that this court need to take into account in determining whether or not
to grant leave to execute are set in South Cape Corporation (Pty) Ltd v Engineering
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Management Services (Pty) Ltd 1977 (3) SA 534 (A). CORBETT JA observed at
page 545 D-F that:


       “In exercising this discretion (to grant leave to execute pending appeal), 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:
       (1) 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;
       (2) the potentiality of irreparable harm or prejudice being sustained by the respondent on
           appeal (applicant in the application) if leave to execute was refused;
       (3) the prospects of success on appeal, including more particularly the question of
           whether the appeal is frivolous or vexatious or has been noted not with the bona fide
           intention of seeking to reverse the judgment but for some indirect purpose, eg to gain
           time or harass the other party; and
       (4) 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.” (See
           Arches (Pvt) Ltd v Guthrie Holdings Pvt) Ltd 1989 (1) ZLR 152 (HC); ANZ
           (Pvt) Ltd v Minister for Information & Anor S-111-04.)

       The applicants submitted that they are already suffering irreparable harm in that
they are behind schedule with the development of their property and the delay is causing
them financial loss. The respondent contended that he will suffer irreparable harm
because he has been in occupation of the property since the conclusion of the agreement
of sale of the property and has commenced development of the property.
       One suffers irreparable harm where there is no other practical remedy
available. It appears to me that neither the applicant nor the respondent is likely to
suffer irreparable harm.        Both parties do have recourse under the law for
compensation for any harm that they may suffer.                As rightly submitted by the
applicants, the respondent has already instituted proceedings to have the agreement
declared valid or in the alternative be awarded damages. The applicants can equally
claim damages for the financial loss that they are suffering by not developing their
property. It appears therefore that the determination of this matter rests on whether or
not the respondent has any prospects of success on appeal and the balance of
convenience.
       I perceive that the respondent raised two main grounds of appeal in the notice
of appeal. He contended that the court had misdirected itself in finding that the
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applicants had established the requirements for rei vindicatio and on that basis alone
were entitled to the order for ejectment. The court should also have considered that
he had proved that he was justified to remain in occupation because he had lawfully
purchased the property. The second ground was that there were material disputes of
fact apparent in the matter which could only be resolved after the hearing of viva voce
evidence.     The court had therefore erred by adopting a robust approach and
determining the disputes of fact on the papers.
            In case No. HC 677/09 the applicants brought an application for the
ejectment of the respondent from the property on the basis that they are the registered
joint owners of the property.      They argued that the respondent was in illegal
occupation of the property because they had not entered into an agreement of sale
with him.     In other words they disowned the agreement that the respondent alleged
they had entered into.
       The respondent opposed the application contending that he had purchased the
property from the applicants and was therefore entitled to remain in occupation. He
raised a point in limine that there were material disputes of fact that could not be
resolved on the papers. There was need to establish how he came to be in possession
of the original title deeds of the property. There was also need to establish the
validity agreement of sale and whether or it was invalid by reasons of fraud.
       The court acknowledged there were indeed disputes of fact but adopted a
robust approach and resolved the dispute on the papers. It found that the applicants’
identification documents produced by the respondent reflected totally different
persons from the documents produced by the applicants.            The applicants had
produced their passports and visa for their stay in America and a copy of their
marriage certificate. The second applicant produced her American driver’s licence
and her Zimbabwean identity card. The court made a finding that the details on the
documents relating to the second applicant were different from those on the
documents produced by the respondent.         The only difference she noted on the
documents produced in relation to the first applicant were the facial features of the
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applicants. Apart from that all the other details matched. Thereafter she concluded
that the respondent did not enter into an agreement with the respondents.
       It appears that the agreement of sale was brokered by High Rise Estate Agents.
I do not believe that the dispute as to whether or not the applicants had authorized the
estate agents to sell the property could have been resolved on the papers. It was also
necessary in my view to hear evidence as to how the respondent came into possession
of the original title deeds. The evidence would in my view have disposed of the
issues raised in the application as to the authenticity of the identity documents and the
validity of the agreement. It appears there was no evidence on record (from the travel
documents) whether or not the applicants were in the country when the contract was
concluded. Viva voce evidence would in my view have clarified the issues. It is
therefore my view that the respondent has prospects of success.
       It is not in issue that the respondent has been in occupation of the property
since October 2008. The applicants are in the United States of America, and have not
been in occupation of the property.           The balance of convenience under the
circumstances weighs in favour of the respondent.
        The right of appeal is recognized to be a fundamental right and critical to our
justice system and should be protected where necessary. It is my view that it is just and
equitable in the circumstances that the respondent’s right be protected and that he remain
in occupation until he has prosecuted his appeal.


       In the result the application is dismissed with costs




Sinyoro & Partners, applicant’s legal practitioners
Messrs C Mutsahuni Chikore & Partners, respondent’s legal practitioners
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