Penniwill (Private) Limited v The Trustees for the Time Being of Gabriel and Angels Trust and 7 Others

PENNIWILL (PRIVATE) LIMITED

versus

THE TRUSTEES FOR THE TIME BEING OF GABRIEL AND ANGELS TRUST

and

NOBERT MAVUNGA

and

CYNTHIA SITHOLE

and

TANAKASITHOLE

and

CICIL KACHAMBWA

and

JOICE POUND

and

EDITH INVESTMENTS (PVT) LTD

and

THE SHERIFF OF HIGH COURT OF ZIMBABWE N.O.

HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 21 October & 8 December, 2021 & 16 February, 2022

Urgent Chamber Application

V. Vera, for applicant

R. Mabwe, for 1st and 2nd respondents

S. Katsuwa, for 3rd, 4th, 5th and 6th respondents

tagu J:  This is an urgent chamber application, filed on a certificate of urgency, for leave to execute an order of this Honourable Court pending the determination of an appeal noted by the first and second respondents against the judgment by the Honourable Justice Kwenda handed down on 16 September 2021 under judgment number HH 505-21.

The background facts are that the applicant filed an urgent chamber application for an interdict under case number HC 3589/21. The application was struck off the roll because the relief sought by the applicant in the interim and final orders was found to be the same. Subsequent to that the applicant filed another urgent chamber application for an interdict under HC 3896/21. It is this urgent chamber application which resulted in a judgment being granted in favour of applicant on 16 September 2021, and only availed on 1 October 2021. This prompted the applicant’s legal practitioners to write to the first and second respondents’ legal practitioners on 4 October 2021 advising them of their clients’ duty to comply with the order. As is apparent from the said court order, the interim relief granted and served on the respondents is to the effect that:

first and second respondents, their assignees, agents and employees be and are hereby interdicted from continuing with their construction activities and or erection of any structures on stand numbers 2621 and 2622 of subdivision A of Subdivision H of N’thaba Glen Lorne Township.

First and second respondents shall within 48 hours of the grant of this order restore unhindered access to applicant and all parties drawing rights from stands 2619 and 2620 Subdivision A of Subdivision H of N’thaba Glen Lorne Township.

To restore unhindered access aforesaid, first and second respondents’ backfill trenches they have excavated across the access road, clear up all the rubble, soil and boulders that are currently blocking the drive way making it impassable.

The third to sixth respondents be and are hereby ordered to remove the lock that they placed on the main gate upon service of this order or in the alternative, third to sixth respondents shall upon service of this order, tender to the applicant, keys to the lock that they have placed on the main gate and refrain from changing the said lock without the knowledge and agreement of the applicant.

On 7 October 2021, first and second respondents instead of complying with the order filed an appeal in the Supreme Court under SC 376/21. The effect of the filing of the said appeal is to suspend the judgment of this Honourable Court under HC 3896/21. Applicant cannot execute the judgment granted in its favour hence the instant application was filed on 15 October, 2021 to actuate the execution of the said judgment pending appeal.

The relief sought is couched in the following terms-

“IT IS ORDERED THAT

Pending the hearing of the appeal under SC 376/21, Applicant is granted the following relief:-

Applicant be and is hereby granted leave to execute the judgment granted in its favour by the Honourable Court under case number HC 3896/21 pending the first and second respondent’s appeal noted with the Supreme Court under case number SC 376/21.

Ii is hereby ordered that the noting of an appeal against this order will not suspend the present order of execution pending appeal.

first and second respondents to pay costs of suit.”

The Respondents filed written notices of opposition to the application prompting the applicant to file an answering affidavit.

At the hearing of the matter the respondents raised four preliminary points. The first preliminary point is that the answering affidavit is improperly before the court. The second is that the matter is not urgent. The third being that of non –disclosure and the fourth being that the relief sought is incompetent. I will dispose of each of the preliminary points first before deciding to deal with the merits of the application or not.

ANSWERING AFFIDAVIT IMPROPERLY BEFORE COURT

R. Mabwe submitted that the answering affidavit should be removed from the record. Her reasons being that R 60 (5) provides that a party filing an urgent chamber application files heads of argument and our R(s) do not provide for answering affidavit. She said R 60 (6) calls for oral evidence and R 60 (5) provides that heads ought to have been filed when the application was filed. She therefore moved that the answering affidavit and the heads of argument be expunged from the record.

This is an urgent chamber application. It is not mandatory for the respondent to file written Notices of Opposition. The respondent can simply make oral submissions and would not be barred for failure to file written Notice of Opposition. In my view where the respondent opted to file a written Notice of Opposition I find nothing amiss if the applicant decides to file an answering affidavit despite the fact that the R(s) do not provide for an answering affidavit. In any case the applicant would not be barred from responding orally to the issues raised in a Notice of Opposition. I therefore find no merit in the objection raised by R Mabwe.

MATTER NOT URGENT

The contention by the respondents is that the matter is not urgent and should not be treated as urgent having regard to the time that has lapsed since the initial application was filed with the court, that is, on 13 July 2021. They said three months have since lapsed and this clearly shows that the matter is not urgent. Further, they submitted that a timeframe of 29 days has lapsed since judgment was granted by this court on 16 September 2021. They argued that if indeed the applicant was suffering irreparable harm, it ought to have filed its application for execution pending appeal earlier than 29 days.

The Applicant in opposing this point in limine submitted that the application before the court is for leave to execute pending appeal. Such an application can only be filed when the appeal has been noted. The date of appeal determines the need to act. The judgment sought was availed on 16 September 2021. A letter was then written on 4 October 2021 requesting the respondents to comply with the court order. Instead of complying they noted an appeal on 7 October 2021. There was a difference of 5 working days. This was not inordinate delay and it being a company it did not sit on its laurels. The applicant prayed for the dismissal of the point in limine.

I need not labour myself on the issue of urgency. The same point in limine was raised in the main application and it was dismissed. Suffice to say after the judgment was availed the applicant wrote a letter to the respondents to comply with the court orders. Instead of complying with the order the respondents filed a Notice of Appeal. What prompted the present application is the noting of the appeal. It was after the applicant realized that the respondents had filed a notice of appeal that jolted it into filing the present application. The need to act in this case therefore arose on 7 October 2021. Ki therefore found no merit in this point in limine and I dismiss it.

NON-DISCLOSURES OF FACTS

It was submitted that the applicant did not disclose how vehicular issues arise and the construction activities. They said applicant was not truthful if NetOne was hindered, and said NetOne should have approached the court. Further, there is no supporting affidavit by the tenant hence the matter should be struck off the roll.

The short reply by the applicant to this point in limine was that it is not clear as to what was not disclosed. It said the judgment by Kwenda J did not deal with the issue of construction and that issue was never raised. It said it always wanted access and it was raised in the Kwenda J judgment hence the issue of non-disclosure lacks merit.

I too did not find any relevance to the issue of non-disclosure raised by the respondents. It was raised as a matter of course. I therefore agree with the applicant that this point lacks merit. I dismiss it.

RELIEF NOT COMPETENT

The argument by the respondents was that the relief is defective. They said R 60 (11) provides that the relief must be in Form 26 and must be accompanied with a provisional relief. The relief in the present application is neither in Form 26 or 26(a). Their complaint was that the applicant wants to be given final relief on an urgent basis. They ought to have proceeded in the ordinary way.

In response the counsel for the applicant submitted that applications for leave to execute are final in nature and there would be nothing to decide on the return date because execution would have occurred. In the event the court is of the other view then the court is at liberty to vary the order as it deems fit.

I tend to agree with the counsel for the applicant. While generally where an urgent chamber application has been filed a provisional order has to be granted. Generally a final order cannot be granted on an urgent basis. But there are exceptions. For example urgent chamber applications for spoliation orders are final in nature. In casu, sight should not be lost that this is an application for execution pending appeal. There is nothing to decide on the return date because execution would have occurred. Applications for leave to execute pending appeal are final in nature. There is nothing to consider on the return date. In the result I am of the view that the relief is competent. I will therefore dismiss this point in limine as well.

On 16 September 2021 an interdict was granted interdicting the respondents from continuing with their construction activities or erection of any structures on stand 2621 and 2622 of subdivision of H of N’thaba Glean Loarne Township. Instead of complying with the order the respondents noted an appeal to the Supreme Court. In the ordinary course of events, in terms of common law, the noting of an appeal suspends the execution of a judgment or the operation of the order, unless the court otherwise directs. See Herbstein & van Winsen, The Civil Practice of the Superior Courts, third ed, p 718. This general rule may be departed from in a proper case.

The principles which a court will apply in coming to a decision were set out by CORBERTT JA in South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd, 1977 (3) SA 534 (AD) at 545E, in the following terms:

“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 formally have regard inter alia, to the following factors-

the potentiality of irreparable harm or prejudice being sustained by the appellant (respondent in the application) if leave to execute were to be granted;

the potentiality of irreparable harm or prejudice being sustained by the respondent on appeal (applicant in the application) if leave were to be refused;

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 the bona fide intention of seeking to reverse the judgment but for some indirect purpose, e.g. to gain time or harass the other party, and

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.”

I will consider some of the above criteria in deciding this matter.

POTENTIALITY OF IRREPAEABLE HARM AND PREJUDICE IF LEAVE IS REFUSUSED

In casu having considered the submissions made if the application is not granted the applicant will be prejudiced in that applicant’s construction activities on the stands remain halted. The gate through which construction vehicles were passing through is still locked and the driveway is blocked. Applicant’s representatives, assignees and tenants cannot access the property using motor vehicles as well as Netone which services a base station located at stand 2619. The applicant will therefore face a risk of termination of lease agreements it has with tenants or assignees who stay at Applicant’s property located at stand 2620 from which Applicant is getting monies to carry out other business ventures. The harm would be irreversible.

POTENTILIALITY OF HARM TO RESPONDENT IF APPLICATION IS REFUSED

There is no harm likely to be occasioned to the respondent if application is granted.

PROSPECTS OF SUCCESS ON APPEAL

The first and second respondents raised 7 grounds of appeal. In my view the appeal has been noted not with a genuine intention of correcting a perceived wrong but merely in order to buy time and frustrate applicant. In any case the construction works that first and second respondents are undertaking are unlawful for want of compliance with a statute and municipal by-laws. There are therefore no prospects of success on appeal.

BALANCE OF HARDSHIP TO EITHER PARTY

The scales of justice tilt in favour of granting the application. The first and second respondents will not suffer any prejudice if the leave to execute is granted because as demonstrated under HC 3896/21, they do not have any rights in Applicant’s property. I will grant the order sought.

IT IS ORDERED THAT

“Pending determination of the appeal under SC 376/21, applicant is granted the following relief.

Applicant be and is hereby granted leave to execute the judgment granted in its favour by the Honourable Court under case number HC 3896/21 pending the first and second respondent’s appeal noted with the Supreme Court under case number SC 376/21

It is hereby ordered that the noting of an appeal against this order will not suspend the present order of execution pending appeal

first and second respondents to pay costs of suit”.

Tamuka Moyo Attorneys, applicant’s legal practitioners

Chatsama & partners, 1st and 2nd respondent’s legal practitioners

J Mambara & partners, 3rd to 6th respondents’ legal practitioners.