Lovemore Ruvengo v Christine Nembaware and Sheriff of the High Court N.O.

### Preamble
1
HB 300/20
HC 1872/20
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LOVEMORE RUVENGO

Versus

CHRISTINE NEMBAWARE

And

SHERIFF OF THE HGH COURT N.O.

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 4 NOVEMBER & 24 DECEMBER 2020

Urgent Chamber Application for stay of execution

Ms R. Munemo & W. T. Davira for the applicant

J. Sibanda for 1st respondent

MABHIKWA J:	The applicant in the matter filed an urgent chamber application for stay of execution seeking the following interim relief that:

Pending the return date, the 1st and 2nd respondents be ordered to suspend execution of the court order obtained by the respondent under case number HC 1416/20.

The 1st respondent pays the costs of this application.

I must state from the onset that the court took note in this case that the application could have been overtaken by events.  That is to say;

According to the certificate of urgency, the eviction was scheduled for 24 October 2020.

The application was itself filed with the Registrar on 28 October 2020.

It was received by the judge on 30 October 2020 and was immediately set down for hearing on 4 November 2020.

Indeed Mr Sibanda for the 1st respondent advised the court on that day that the application had long been overtaken by events.

The applicant contended that the 1st respondent made an application to evict him under case number HC 1416/20.  He says that in the application, 1st respondent allegedly used the names Lovemore Fambisai.  He says that though not his surname, that is in fact the name he is popularly known with.  The court therefore sees no issue with the citation in that fashion and applicant has not persued or complained about it.

The applicant claims that the application in case number 1416/20 had been set down for hearing before Honourable KABASA J at 1200 hours on 3 September 2020, he was only served with the notice of set down for the same hearing at 1600 hours of the same date.  So according to him, when he was served with the notice of set down, the application had already been heard and judgment against him granted some 4 hours earlier.  He states that he was surprised and sent his legal practitioners of record to find out.  They in turn sent their Bulawayo correspondent lawyers.  The lawyers only managed to get the record on 9 September 2020.  They discovered that an eviction order had been granted against him in default.

The applicant states that the basis for the application for rescission in case number HC 1416/20 is that the order granted therein had the effect of a final one, that is, eviction.  He claims that on 21 October 2020 he had filed a notice of opposition to the urgent chamber application filed in that case.  He had also filed an urgent chamber application for stay of execution pending rescission of judgment.  He admits that he filed a notice of withdrawal of both the application for rescission of judgment and the urgent chamber application for stay of execution.  He states that he did so because the “impression” given by the 1st respondent was that he would not be evicted from the property in question pending the return date.  However, on 24 October 2020, notice of eviction was served giving him 48 hours to vacate the property.

On urgency, applicant states that he has brought the matter on an urgent basis because 1st respondent has already obtained an order for eviction against him which is to be executed on the 28th of October 2020.  I must reiterate at this stage and as observed above that the matter may have long been overtaken by events when the application was filed on 28 October 2020 and received by the judge on 30 October 2020.

Applicant also claimed that he was in imminent danger of being evicted form the plot that he has occupied and developed for the past eight (8) years at any time and being left homeless. Further, he stated that the eviction itself posed a danger of destroying some of his belongings.  He claims that he had been under the impression that 1st respondent would wait for the return date for him to argue the matter and challenge the granting of the provisional order.  He argued that he stood to suffer irreparable harm if evicted from the property.  He said he had been in occupation since 2012 and had drilled a borehole and constructed a road to the plot among other developments.  He argued that he had cattle therein and crops that are yet to be harvested.

Finally he argued that he had prospects of success if given a chance to argue his application for the rescission case.  He argued that he had no other remedy than to apply for the urgent stay of execution and that the balance of convenience favours that it be granted.

The 1st respondent vigorously opposed the application.  The 1st respondent urged the court to dismiss the application on the issue of urgency alone as it is not urgent at all and that the alleged urgency is not the type of urgency anticipated by the court rules.

It was the 1st respondent’s contention that the applicant is abusing the court as he has always known of the eviction judgment and its consequences from the day it was granted on 3 September 2020. 1st respondent contends that the result of all that transpired is that there is no urgency at all.  Any perceived urgency is self-created and not the one contemplated by the rules.  She denies ever telling or giving the impression to the applicant that she would wait for the return date in the “main matters”.

From the papers before me, what appears to have transpired in short is the following.

The 1st respondent filed case number HC 1416/20 seeking eviction and other ancillary relief.

On 3 September 2020, in applicant’s default, an order was granted in the interim.  Inter alia, it was ordered that applicant personally, or through his agents should not to interfere with or harass the applicant or her agents in the occupation of the farm known as subdivision 117, Central Estates, Umvuma,

Applicant was also ordered, together with all those occupying through him to vacate the portion of the 1st respondent’s farm which they had occupied illegally.  It was also ordered that should they not comply with the order within the stipulated period, the Deputy Sheriff for Gweru was authorized to seek the assistance of the officer in charge of any nearest police station to evict the then respondent and all those who claimed occupation through hm.

On 14 September 2020, the applicant filed an application for the rescission of judgment of case number HC 1446/20.  The application for the rescission matter was endorsed case number HC 1557/20

On the same day and possibly at the same time on 14 September 2020, the applicant filed case number 1556/20, being an application for stay of execution pending rescission of judgment.

I must say firstly that the application for rescission should have been endorsed as case number HC 1556/20 whilst the one for stay of execution should have been endorsed case number HC 1557/20, not the other way round.  Instead of handing to the Assistant Registrar the rescission application first, the applicant must have handed the one for stay of execution, or, instead of handing the application in their proper order for stamping and endorsement, the applicant perhaps just handed the whole bunch of copies of two applications and the Assistant registrar just chose which to stamp first.

3.	On 20 October 2020, the applicant filed notices of withdrawal of both cases numbers HC 1557/20 and 1556/20 and tendered wasted costs.

Surely, the applicant knew the consequences of such withdrawals.  In fact, the 1st respondent argues so and that the only explanation for the withdrawals is that he knew he would not succeed.  1st respondent argues that the applications were withdrawn voluntarily by the applicant on the day case number HC 1556/20 was to be heard.  She says she had opposed the application and had appeared in court to have the matter argued.  She denies ever giving any impression, as claimed by the applicant that the parties would wait for the return date in case number HC 1416/20.

Indeed, it is clear that apart from the applicant’s say so, there is nothing shown and there is no basis to claim that an impression was given that the parties would await the return date.  As the court sees it, if the parties had wanted to await the return date, they would have agreed and an order by consent would have been made to the effect that the parties agree to wait and argue the eviction issue on the return date of case number HC 1416/20.  In fact the consent order would have specifically mentioned that the eviction itself would also await such return date.

In the case of Kuvarega vs Registrar General & Anor 1988 (1) ZLR 188 (H) quoted over and over again in these cases, it was stated that an urgent matter is one that cannot wait to jump the queue of other matters and it is one which applicant himself has treated as urgent and that certain actions lead to self-created urgency that is not the sort of urgency contemplated by the rules of court. The case in casu is one such case.

Also in Amalgamated Rural Teachers Union of Zimbabwe & Anor vs ZANU (PF) & Anor HC 263/18 MAFUSIRE J stated the point that some orders may, in certain instances grant the same relief both in the interim and on the return date.  He said this was so in interdicts for example.  In casu, whether correctly or erroneously granted, the applicant knew that the order granted was to restrain him and all those occupying though him from harassing the 1st respondent in her occupation of the farm and also to evict him, even before the return date.  So he knew the consequences of his withdrawals on 22 September 2020.  He could not be seen and be heard on 28 October 2020 to file an urgent chamber application, almost the same that he had filed two (2) months earlier and withdrew.  To him, the urgency only came in when he was evicted.  He waited to be evicted first.  That is against case law and is certainly not the urgency envisaged by the rules.  It is self -created urgency.

I must say that Mr Job Sibanda for the 1st respondent also argued as an addition in court that the return of service from the Sheriff’s office showed that the applicant had been rude and unco-operative and refused to move out of the farm when he was being evicted.  Mr Sibanda thus urged the court not to hear the applicant as he was in contempt of court.  He should first purge his contempt.

Quite surprisingly, Mr W. T. Davira responded that on the issue of the said arrogance claimed, he disagreed because the applicant himself was not at the property and in fact does not live there.  Mr Davira claimed that it was in fact the applicant’s brother’s wife who was evicted.  She only went back there because cattle had returned.  She had gone to collect them, not to stay.  This apparently was in contradiction to applicant’s own founding affidavit particularly at paragraph 23.  He had claimed in that paragraph that he was in imminent danger of being evicted from the farm anytime rendering him homeless with the risk of his possessions being damaged plus the loss of some of his property in the process.

It appears to me from that argument by his counsel that the applicant made this application well knowing that he does not even reside at the farm, but his brother’s wife and cattle.  He therefore had obviously no reason to make this applicant at all.  There was no urgency, even a created one in this matter.

Finally, the court noted that there was so much dispute on the alleged proof of service on applicant for the hearing of matter number 1416/20 on 3 September 2020 at 1200 hours before Hon. KABASA J.  The applicant, though not present argued through his lawyers Miss Munemo and Mr W. T. Davira that he only received the notice of set down at 1600 hours on 3 September 2020 for a matter that had already been heard some four (4) hours earlier on the same day.  That in fact was one of his main arguments for the stay of execution.  Naturally, he had to produce the copy of the return of service.  He even argued that the notice of set down was in fact served by the police on his cousin at Umvuma, not the Deputy Sheriff.  There was none.  On further probing by the court, Ms R. Munemo commendably admitted that even the lawyers themselves had not seen the proof of service of the notice of set down to ascertain the veracity of applicant’s claims.

Out of abundance of caution, this court allowed time and directed the applicant to file proof that he was served with the application and particularly the notice of set down for the case number HC 1416/20 at 1600 hours on 3 September 2020.  Only thereafter would the court consider judgment.  On 5 November 2020, applicant’s lawyer wrote the letter copied verbatim below.

“5th November 2020

The Judge’s Clerk

Justice Mabhikwa

High Court of Zimbabwe

Cnr 8th Ave/Herbert Chitepo Street

BULAWAYO

Dear Sir

Re: Lovemore Ruvengo vs Christine Nembaware Case No. HC 1872/20; X REF 1416/20

Reference is made to the above and Justice Mabhikwa’s direction that the Applicant should file its proof that it was served with the Chamber Application in the main matter Case No. 1416/20 on the 3rd September2020 at or after 15:44 hrs when the main matter had already been heard at 1200 hrs by Justice Kabasa.

We are forever indebted to the court for its indulgence in this matter.  However, our client has failed to provide us with the proof of such service as agreed.  For clarity and transparency before the Judge, we have attached hereto the copy of Notice of Set Down stamped 1st September 2020 which our client’s explanation to is that, that was the time the Sheriff received the same but he was only served on the 3rd September 2020 around 1600 hrs.

In light of the foregoing, the court may proceed and make its ruling.

Yours faithfully,

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GUNDU, DUBE & PAMACHECHE

CC. THE REGISTRAR OF HIGH COURT –CIVL DIVISION”

The copy attached to the letter is of no evidential value at all.  It is clear to me that the applicant had misled, not only the court but his lawyers as well.  The court will not visit his lawyers but him with punitive costs of suit.

I accordingly order as follows, that:

The matter is not urgent.

The application is removed from the roll of urgent matters.

Applicant pays costs of suit on an attorney and client scale.

Gundu Dube & Pamacheche, applicant’s legal practitioners

Job Sibanda & Associates, 1st respondent’s legal practitioners