Brian Davies v The Messenger of Court, Bulawayo N.O and Floyd Ambrose

### Preamble
1
HB 104-19
HC 858/19
XREF HCA 11/19
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BRIAN DAVIES

versus

THE MESSENGER OF COURT, BULAWAYO N.O

and

FLOYD AMBROSE

HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 11 APRIL 2019 AND 4 JULY 2019

Urgent Chamber Application

J Tshuma for the applicant

No appearance for the 1st respondent

Miss D Ncube for the 2nd respondent

MABHIKWA J:	This matter came to me as an urgent chamber application set for hearing on 17 April 2017.  The matter was indeed heard on that day. However, the parties sought to and the court allowed them to, file further written submissions and/or heads of arguments.

Applicant filed his Heads of argument on 29 April 2019.  1st respondent did not file any submissions whilst 2nd respondent filed his “written submissions” on 3 May 2019.  Thereafter, applicant filed a response to 2nd respondent’s written submissions on 10 May 2019.  On 16 May 2019 the applicant wrote a letter to enquire as to whether in light of the 17 April 2019 hearing plus the filed written heads and submissions, it was still necessary for the parties to appear again in chambers or the judge would make a determination based on the record and submissions.  I decided, and both parties were duly advised that there was no longer need for them to appear but that a determination would be made basing on the record and the further submissions made.  Hereunder is the judgment.

The brief facts of this matter is aptly captured and laid out in the preamble to 2nd respondent’s submissions filed on 3 May 2019.

Floyd Ambrose (2nd respondent herein, sued Brian Davies (applicant) for eviction from subdivision 15 Tabas Induna Farm in the magistrate’s court.  Judgment was granted in his favour on 15 January 2019.

Following the judgment, respondent sought to and commenced the process of execution by causing the issuance of a warrant of ejectment on 13 February 2019.

On 15 February 2019, applicant noted an appeal against the said judgment of the magistrate’s court.

Further on 18 February 2019, applicant made an application for stay of execution pending appeal in terms of section 40 (3) of the Magistrate’s Court Act [Chapter 7:10].  The application was dismissed on 28 March 2019.

Following the dismissal of applicant’s application 2nd respondent instructed 1st respondent to continue with execution.  1st respondent gave notice to the applicant that eviction would be carried out on Monday 15 March 2019 and this prompted the applicant to make this present application which, needless to say, 2nd respondent vigorously opposed.

From the onset, it is pertinent to quote the said section 40 (3) of the Magistrate’s Court Act [Chapter 7:10] which is at the core of the argument in this matter and was referred to repeatedly by counsel.  It provides thus;

“Where an appeal has been noted the court may direct either that the judgment shall be carried into execution or that execution thereof shall be suspended pending the decision upon the appeal or application.”

Having listened to, and having read the documents filed of record by both counsel, the parties’ respective positions on the matter can best be summarized as follows.

The applicant’s position is that on a proper interpretation of section 40 (3) of the Magistrate’s court Act [Chapter 7:10] and the ratio decident in the case of Ritenote Printers (Pvt) Ltd v Adam and Co and another -2011 (1) ZLR 521 (S), a party wishing either to execute pending an appeal or to stay execution pending appeal must first make an application to the magistrate for him to exercise his discretion in its favour either allowing or denying execution pending appeal.

Mr Tshuma for the applicant argues in effect that, that application must be made whether or not the other party has already made its own application.  Mr Tshuma further argues that 2nd respondent has, in arguing his position in opposition of the application, relied on an obita dicta in Ritenote’s case to support the view that the dismissal of a stay of execution by the Magistrate in one party’s application amounts to an automatic granting of leave to execute to the opposing party.  That, he argues, is an erroneous interpretation of section 40 (3) of the Magistrate’s Court Act as well as the ratio decidendi in the Ritenote Printers case.

In casu, it is common cause that the applicant made an application for stay of execution pending appeal, which process of execution had in any event commenced before the noting of appeal.  The application was dismissed and 2nd respondent instructed 1st respondent to proceed with the execution.

The 2nd respondent’s position therefore, as argued by Ms Ncube, is that once one party in this case the applicant had made an application for stay of execution pending appeal and was unsuccessful, there would be no need for the other party (2nd respondent in this case) to re-approach the same court with his own application for leave to execute pending appeal.  This according to 2nd respondent is tantamount to asking the same court to again pronounce itself on an issue it has already determined.  Secondly she argues that such an application would be a duplication of proceedings in that the same court would have to reconvene to hear and determine the same issue it has already heard and determined between the parties.

2nd respondent argues that the applicant’s position in this matter and the interpretation of section 40 (3) of the Magistrate’s Court Act, leads to an absurdity that could not have been intended by the legislature.  Ms Ncube argues that simple logic and reasoning shows that there was no need for the 2nd respondent to make his own application on the issue of execution once applicant’s application had been dismissed as the issue would have been canvassed in applicant’s application for stay of execution.

Second respondent went on to cite the case of Hale vs Hale -2014 ZLR (1) which was an application in terms of section 39 (3) of the Magistrate’s Court but also touched on section 40 (3) of the same Act particularly the part in the judgment that;

“On the applicant, it would have made no sense for her to re-approach the same court to make yet another determination on the very point it had already canvassed. This would have been tantamount to asking it to reverse its decision.”

Second respondent therefore argues that though the two matters are different in that the Hales case involved an application in terms of section 39 (3), by parity of reasoning, it follows that in the present case, there was no need for 2nd respondent to make his own application following the dismissal of applicant’s application.

Ms Nucbe went on to argue vigorously, that there is a material distinction between the Ritenote’s case and the present one in that in Ritenote Printers case, the application was dismissed on the Magistrate’s erroneous view that the noting of an appeal had automatically suspended her judgment and so it would have been superfluous to grant an order for stay of execution in respect of a judgment already stayed by the noting appeal.  Her argument was that in casu, the application by the applicant was dismissed on the merits hence her reliance on the obiter in the Ritenote Printers case that;

“If the learned magistrate had dismissed the application on the basis that the appeal had no merits of success, which appears to be her view, I would have no problem with that ruling.  However, a proper reading of her judgment clearly suggests that she dismissed the application because she was of the erroneous view that the noting of the appeal automatically suspended her judgment. --- Adam & Co would probably not have needed to apply if the learned magistrate had dismissed Ritenote’s application on the basis that Ritenote’s appeal had no prospects of success.”

It appears to me that whilst acknowledging that her position in this matter is based on obiter dicta, 2nd respondent argues that that dicta is more persuasive than applicant’s argument and thus should form the ratio decidendi of this case.

I must state at this stage that Ms Ncube’s reasoning in this matter raised some interesting points and was to a great extent plausible.  That is probably the reason why at page 4 of the unreported judgment in Ritenote’s case, the learned CHIEF JUSTICE CHIDYAUSIKU then, stated thus

“In my view, section 40 (3) leaves a lot to be desired. ----.”

On the face of it, it surely appears strange as argued by Ms Ncube that a party be expected to make its own application when the opposing party has already had its application dismissed leaving the decision in that other party’s favour.

As stated above, I will herein under analise section 40 (3) as read with the ratio decidendi in Ritenote’s case.

In Ritenote’s case, the learned chief Justice as referred to above, the full quotation reads:

“In my view, the wording of s40 (3) of the Act leaves a lot to be desired, but a proper reading of the section reveals that it confers on the magistrate the power to stay execution despite noting of an appeal.  The section also confers on the magistrate, the power to order execution despite noting of an appeal.  It follows therefore that for the magistrate to exercise the discretion in terms of s40 (3), of the Act, the party seeking to have the discretion exercised in its favour has to make an application.  Upon the making of such an application, the magistrate exercises the judicial discretion and makes a proper determination.” (emphasis is mine)

Further at page 6 of the same judgment, the learned Chief Justice said this

“Secondly, s40 (3) of the act regulates the issue of execution upon the noting of an appeal.  It confers on the magistrate’s court the discretion to authorize either.  That discretion is a judicial discretion to be exercised upon the making of an application by either party.  Thus a party, in this case Adam and Co., that wishes to execute despite the noting of an appeal, has to apply to the magistrate for the magistrate to exercise the discretion in its favour, before it can execute the judgment.  Adam and Co. made no such application and in my view cannot execute without an order authorizing execution from the magistrate.  Equally if the losing party, in this case Ritenote Printers, wishes to stay execution despite the noting of an appeal, it has to apply for such relief.” (underlining is mine)

At page 7, the court held

“As I have already indicated, Adam & Co. cannot, in terms of section 40 (3) of the Act, execute until it has applied in terms of that section to execute its judgment and that application has been successful.  It has not made such application.  Consequently, in my view, it cannot be enlisted to execute.”

It appears to me from the above, that an application must or has to be made.  There is no room for assumption, surmise or “taking advantage” of the other party’s failed application.

It appears therefore to me, that rare and strange as it may appear to be, the correct position is in fact that once a party decides that it either wishes to execute pending appeal or wishes to have execution stayed pending appeal, it has to make an application and satisfy the strict requirements of an application for execution pending appeal first.

I agree with Mr Tshuma therefore that leave to execute pending appeal is a very rarely granted remedy in that it has the potential to limit he rights of an appellant as granted by section 40 (2) of the Magistrate’s Court Act, and vitiate the entire appeal proceeding by rendering them  merely academic.  It is true that particular circumstances must exist and be proven in order for a magistrate to exercise the discretionary power to grant or refuse execution pending appeal.

The courts therefore always stress the basic and important tenet of our law that confers the right of appeal on a litigant, and that it should not be rendered nugatory and abrogated without due process, and due process requires that a matter proceeds to its final and logical conclusion.

The court notes that in a litany of judgments, executing a judgment pending appeal has generally been considered undesirable.  In Nzara v Tsangamu and Others 2014 ZLR 674 (H) Honourable MATHONSI J held that it is our important legal position that appellant has a legal right to test the correctness of a judgment before being called upon to satisfy the judgment that is being appealed against.  The execution therefore of the judgment of the lower court before the determination of the appeal negates the absolute right to appeal and is generally not permissible.

It is for the above reasons that authorities clearly establish that at common law a decision of a lower court in respect of which an appeal has been noted cannot be executed upon.  It can only be executed upon in exceptional cases and after leave to so execute has been granted.  The court to which application for leave to execute pending appeal is ready has a general wide discretion to grant or refuse leave.  If leave is to be granted, the court also determines the conditions upon which the right is to be exercised.  The discretion would obviously have to be exercised judiciously and with caution.

In NetOne Cellular (Pvt) Ltd vs NetOne Employees and Another 2005 (1) ZLR 275 (S) 2 page 281 B-D the court went on to state that;

“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:

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

(3)	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 to 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.”

It appears undesirable to me, that a court entertains and grants leave to execute pending an appeal when the application is made solely on the basis that the appellant has no prospects of success on appeal, especially when the whole purpose of the appeal will be defeated if execution were to proceed.

As already stated above, the instances where application for execution or stay thereof are granted pending appeal are very.  But one such case is that of Edgars Stores Ltd vs Ranson (Pvt) Ltd and Others [2010] JOL 26022 (ZH), where indeed the appellant made an application for stay of execution pending dismissal.  Although the magistrate dismissed the application on the grounds that there were no prospects of success and that the application was solely for the purposes of delay.  Respondent still went on to make its own application for leave to execute some two (2) days later.

To that extent and as shown in the reasoning in Ritenote (supra), the position that dismissal of an application for stay automatically grants to the other party, leave to execute pending appeal, though seemingly plausible, is incorrect in my view.

To show further that the intention and correct interpretation of section 40 (3) of the Magistrate’s Court Act is that there always must be an application wherever a party desires that the magistrate exercises his/her discretionary power to grant stay of execution pending appeal, one must read section 40 (3) together with section 40 (4) of the same Act.

The section provides as follows:

(4)	“A direction in terms of subsection 3 shall be made upon terms, if any, as the court may determine as to security for the due performance of any judgment which may be given upon the appeal or application.”

So, apart from the requirement to apply in terms of section 40 (3), section 40 (4) requires that whereupon applicant the magistrate directs that execution be carried out despite the noting of appeal, the magistrate shall so direct upon terms if any, as the court may determine as to the security for the due performance of any judgment--.”(underlining is mine)

It follows that where a successful party executes without it making an application to execute, section 40 (4) cannot be complied with.

As regards the matter being improperly before the court, it is the court’s finding that once it is established that 2nd respondent had to make his own application and that the dismissal of applicant’s application by the magistrate did not automatically equate to a granting to the 2nd respondent, leave to execute pending appeal, then this application is not at all about the magistrate’s decision, but simply an application against 2nd respondent’s unlawful execution of a judgment pending appeal without obtaining leave to do so.

To that extent, the instant application is not challenging the magistrate’s decision at all and is therefore properly before this court.  The court finds that 2nd respondent had to make his own application before executing on the judgment.

As shown above, this matter was very genuinely well-argued by both counsel.  The position taken by 2nd respondent in my view, is a genuinely mistaken position that many erroneously believe.  It was not in my view, a frivolous opposition to the application.  For that reason, costs will remain costs in the cause.

Accordingly, I would grant the application and make the following order.

1.	The execution of the writ of ejectment issued by the Clerk of Civil Court, Magistrates Court, Bulawayo, on the 13th of February 2019 under case number 7600/19, without an order of execution granted by the trial Magistrate, is ultra vires section 40 (3) of the Magistrates Court Act and therefore unlawful.

2.	The 1st and 2nd respondents be and are hereby interdicted from executing on the writ of ejectment issued on the 13th of February 2019 under case number 7600/19 pending the appeal under HCA 11/19.

3.	Costs in this application will be cost in the cause.

Webb, Low and Barry, applicant’s legal practitioners

Messrs Job Sibanda and Associates, 2nd respondent’s legal practitioners