Kudakwashe Allan Murape and Marbel Tarubva Zvinaiye Murape v Muchaneta Chatambudza and The Sheriff of Zimbabwe

### Preamble
1
HH 729-18
HC 7166/18
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KUDAKWASHE ALLAN MURAPE

and

MARBEL TARUBVA ZVINAIYE MURAPE

versus

MUCHANETA CHATAMBUDZA

and

THE SHERIFF OF ZIMBABWE

HIGH COURT OF ZIMBABWE

CHIKOWERO J

HARARE, 31 October 2018 & 7 November 2018

Application for Leave to Execute Pending Determination of Appeal

D Sadoera, for applicants

Professor L Madhuku, for 1st respondents

No appearance for 2nd respondent

CHIKOWERO J: This is an application for leave to execute pending determination, by the Supreme Court, of the appeal against this court’s judgment under HH 339-18.

In a nutshell, applicants seek leave to evict the first respondent and all persons occupying the immovable property in question through her pending determination of the appeal.

The first respondent is not in occupation. She has rented out the property, and has been receiving rentals, for the past ten years.

The facts of the matter, together with the reasons for judgment, are set out in this Court’s judgment under HH 339-18. I shall not regurgitate the same.

The principles applicable in an application of this nature are settled. See Masimbe v Masimbe 1995 (2) ZLR 31 (s); Econet (Pvt) Ltd v Telecel Zimbabwe (Pvt) Ltd 1998 (1) ZLR 149 (H); ZDECO (Pvt) Ltd v Commercial Careers College (Pvt) Ltd 1991 (2) ZLR 61 (H)

I now proceed to determine this matter in light of those principles, exercising the discretion reposed in me.

THE PROSPECTS OF THE APPEAL SUCCEDING

All the grounds of appeal attack the court’s factual finding that the first respondent had the requisite mental capacity at the time that she contracted to sell her rights and interest in the property to the applicants. Put differently, the first respondent seeks to overturn the factual finding that she was not insane at the material time.

Now, the approach of the Supreme Court in an appeal where factual findings of a trial court are challenged was recently restated by Ziyambi JA in Chioza v Siziba 2015 (1) ZLR 252 (s), at 258 D- 259 A, as follows:

“The Court a quo made factual findings in this regard. The general rule regarding factual findings made by a trial court is that they will not be upset by an appellate court unless there has been such a gross misdirection by that court on the facts so as to amount to a misdirection in law in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the conclusion reached by the lower court. As it was put by Korsa  ja in Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (s) at 670A:

“……There can be a misdirection as to the law applicable to the case being tried; and there can be  misdirection on the evidence, the nature and circumstances of the case must be such that it is reasonably probable that the tribunal would not have determined as it did had there been no misdirection. In other words, that the determination was irrational……

The general rule of the law, as regards irrationality, is that an appellate court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of  logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion: Bitcon v Rosenberg 1936 AD 380 at 395 -7; Secretary of State for Education and Science v Metropolitan Borough of Tameside [1976] 3 All ER 665 (CA) at 671 E – H; CCSU v Minister for the Civil Service, supra, at 951 A-B; PF Zapu v Minster of Justice (2) 1985 (1) ZLR 305 (S) at 326 – E - G”

In the absence of such a misdirection (and none has been alleged by the appellant), it is not open to this court on appeal to substitute its own findings of fact for that of the trial court”

I do not believe this threshold has been reached when regard is had to the judgment under appeal and the single factual foundation on which the appeal is predicated.

It was common cause, for example, that numerous material witnesses who could have shed light on first respondent’s alleged mental incapacity at the material time were not called to testify. These included the first respondent’s own estate agent, the persons who signed the agreement of sale as her witnesses to that agreement and her neighbours as well as persons, if any, who stayed with her at the time when she instructed the estate agent to advertise the property for sale and sold the property.

Her own conduct of facilitating cession and withdrawing part of the purchase price, as well as personally writing a letter of cancellation, and copying it to the relevant Ministry creates in my view difficulties in persuading the appellate court to overturn the judgment in question.

The facts and evidence on record justify the finding sought to be impugned on appeal. I do not think the finding made attains the grade of “gross misdirection” or “irrationality”

Mr Sadoera, for the applicants, made the valid submission that Professor Madhuku did not argue that the appeal has reasonable prospects of success. The latter was content to remark that the issue of reasonable prospects of success on appeal is just but one of the factors for consideration in this application, and that the Supreme court may well find that this court misdirected itself. He went no further than that.

In my judgment, the first respondent has nil prospects of success on appeal.

POTENTIALITY OF IRREPARABLE HARM

It being common cause that first respondent is not in occupation of the property, the granting of the application will not render her homeless pending the determination of the appeal.

For the past ten years she has been staying elsewhere and letting the property in question.

In the event that the appeal succeeds she would resume control over the property. Granting of the application does not destroy the object of the appeal

I do not see, in these circumstances, how violence is done to the fundamental freedom from arbitrary eviction enshrined in s 74 of the Constitution of Zimbabwe Amendment (No. 20) Act, 2013.

On the other hand, should I dismiss this application and the appeal succeeds applicants will not be able to recover any value by way of either occupation of the premises by themselves or lost rentals from the date of the handing down of the judgment under HH 339-18 to the date of the handing down of the Supreme Court judgment, or even the eventual eviction of those who are occupying the property through the first respondent.

To this extent, therefore, it is the applicants rather than the first respondent who stand to be irreparably prejudiced by the dismissal of this application.

I therefore resolve this factor, as with the first, in favour of the applicants.

BALANCE OF CONVENIENCE/EQUITIES

Writing for the full court in the matter of Mr Olajide Afolabi v Federal Republic of Nigeria Community Court of Justice, Ecowas [2004 – 2009] Law Report, Honourable Justice H.N Donli said at page 12 paragraph 46:

“In Black’s Law Dictionary Seventh Edition, the word ‘equity’ is defined thus:

“1. Fairness, impartiality; evenhanded dealing….

2. The body of principles constituting what is fair and right; natural law;

3.  The recourse to principles of justice to correct or supplement the law as applied to particular circumstances. The judge decided the matter by equity because the statute did not fully address the issue….”

It being common cause that the purchase price was paid in full as way back as 2006, that the respondent has despite that fact been benefiting from renting out the property since then it is only fair in my view that I do not perpetuate this inequity. Being the beneficiary of a judgment of this court, albeit under appeal, evenhandedness demands in my view that leave to evict the occupants be granted pending determination of the appeal.

It is my finding that the balance of equities are in favour of the applicants.

WHETHER THE APPEAL HAS BEEN NOTED WITHOUT “THE BONA FIDE INTENTION OF SEEKING TO REVERSE THE JUDGMENT BUT FOR SOME INDIRECT PURPOSE EG TO GAIN TIME OR TO HARASS THE OTHER PARTY”

My earnest view, already expressed, is that the appeal is bereft of any prospects of success.

Consequently, the appeal was noted to harass the applicants and delay their enjoyment of the fruits of the judgment appealed against.

THE CONSTITUTIONAL ARGUMENTS

I have considered Professor Madhuku’s argument that in developing the common law on leave to execute pending determination of appeal, I must promote and be guided by the spirit and objectives of Chapter 4 of our Constitution. Chapter 4 is the Bill of rights. The argument is founded on ss 46 (2), 69 (3) and 74 of the Constitution.

I have already dealt with s 74 of the Constitution.

In respect of s 69 (3) as read with 46 (2) Counsel’s argument was that I should be mindful of first respondent’s right to appeal and that the Supreme Court is yet to pronounce itself on the main matter. I was urged to be cautious because, although believing that I made the right call, the superior court may find otherwise.

On the law as it currently stands, having paid due regard to the constitutional provisions, I find myself unable to withhold relief from the applicants.

This disposition of the matter, in my view, does not undermine the first respondent’s right of appeal.

Accordingly, I order as follows:

1.  The application for leave to execute the judgment in HH 339-18 pending

determination of the appeal is granted.

2.  The 2nd respondent shall proceed to eject the 1st respondent and all those claiming

through her from all occupation and use of Flat 46 Block 13 Odzi Flats, Eastlea, Harare.

3.  The 1st respondent shall pay the applicants’ costs.

Tadiwa and Associates, Applicants’ legal practitioners

Lovemore Madhuku lawyers, 1st respondent’s legal practitioners