Judgment No. HB 38/15
Case No. HC 2009/14
SIBUCO TRADING (PVT) LTD
LEADERS (PVT) LTD
MESSENGER OF COURT
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 20 FEBRUARY AND 26 FEBRUARY 2015
Mr G Sengweni for the applicants
Mr C Dube-Banda for the respondents
MAKONESE J: The respondent filed an application for Directions in terms of Order 23 of the High Court Rules, 1971. On 26 November 2014 I directed that the Urgent Application for Stay of Execution filed under case number HC 2009/14 be set down for argument during the first term of 2015. The matter was set down for argument on 20 February 2015. This judgment deals with the confirmation or discharge of the Provisional Order granted by this court on 28 August 2014.
The factual background to this matter is as follows: On 28 August 2014, the respondent (as plaintiff) obtained a judgment in the magistrates court for the cancellation of the lease agreement between the parties signed and concluded on 30 July 2012. The Applicant (as defendant) was also ordered to pay arrear rentals in the sum of $2500 per month with effect from January 2013. The applicants were ejected from shop number 2, 79A Jason Moyo, Bulawayo and were ordered to pay collection commission together with interest at the prescribed rate and costs of suit.
Aggrieved by the judgment of the magistrates court, the applicants filed a Notice of Appeal and such appeal is pending before this court under case number HCA 92/14. Armed with the notice of appeal, applicants approached this court, under cover of case number HC 2009/14 on an urgent basis and obtained a provisional order whose interim provides that:
“pending the finalization of this matter, execution of the magistrates court judgment under case number 732/13 is stayed.”
The respondents sought to set the matter for hearing, a move resisted by the applicants. This prompted the filing of the application for directions. I directed the parties to file their heads of argument and present argument on whether the application for Stay of Execution should be confirmed or discharged.
The first issue I must determine is whether the Notice of Appeal filed by the applicants is valid and complies with the rules. Rule 29 of the Supreme Court Rules, 1964 (which rule applies to appeals to the High Court), provides that:
“Every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his legal representative, which shall state:-
- The date on which, and the court by which the judgment appealed against was given;
- If leave to appeal was granted, the date of such grant;
- Whether the whole or part only of the judgment is appealed against;
- The grounds of appeal in accordance with the provisions of rule 3;
- The exact nature of the relief sought;
- The address of service of the appellant or his legal practitioner.”
In this matter, the notice of appeal does not state whether the appeal is against both
liability for arrears and ejectment from the rented property. This is far short from the peremptory requirements for the rules. Furthermore to merely state that the appellants pray that their appeal be allowed with costs is grossly inadequate and not in compliance with the rules of the court. The Notice of Appeal, is in my view fatally defective to the extent that it is a nullity. There has been no attempt to seek to amend the Notice of Appeal inspite of the fact that the issue was raised way back in October 2014. What this boils down to is whether the applicants can hold on to an Order for Stay of Execution obtained pursuant to a defective Notice of Appeal. I am of the firm view that once it is established that the Notice of Appeal is defective and a nullity, the applicant’s order for stay of execution cannot be allowed to stand.
In the case of Jensen v Acavalos 1993 (1) ZLR 216, KORSHA JA, at page 220 stated the position as follows:
“The reason is that a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad, and, unless the court is prepared to grant an application for condonation of the defect and allow a proper notice of appeal to be filed, the appeal must be struck off the roll with costs.”
The next issue for determination is whether this court is the proper court to deal with an application to stay the execution of a judgment granted in the magistrates court.
Even if, this court were to deal with the merits of the matter I do not appreciate why this application was brought to the High Court in the first instance. No plausible explanation has been advanced by the applicants why the application was not brought before the magistrates court which granted the order. The applicant merely states that this court enjoys wide discretion whether or not to grant the application. It is further contended on behalf of the applicants that they are bright prospects of success on appeal, and that the respondent will not suffer irreparable harm or prejudice if execution is stayed pending appeal.
The Magistrates Court Act [Chapter 7:10] provides under section 40 (3) as follows:
“Where an appeal has been noted the court may direct either that the judgment be carried into execution or that execution thereof shall be suspended pending the decision upon the appeal or application.”
There is clearly no basis for the applicants to have circumvented the magistrates court to lodge this application in this court. It is apposite to note that the record of proceedings which forms the basis of the appeal is not before this court. The applicants expect the court to come up with a determination solely on the basis of the judgment of the magistrates court placed before this court. It is not desirable nor appropriate for this court to usurp the functions of the magistrates court.
See the case of Haroon Mohamed v Noormahomed and another HH 180/10. In this matter MAWADZE J, stated as follows:
“--- Firstly this court cannot meaningfully deal with the merits and demerits of the granting of an order of ejectment by the magistrates court on 22 June 2010 unless it is sitting as an appellate court. That appeal is still pending before this court and cannot be partially dealt with under the guise of an urgent chamber application. The two records of proceedings in the magistrates court are not even before this court.”
I am satisfied, therefore that the applicants have failed to justify the confirmation of the Provisional Order. The applicants’ first hurdle is to regularize their defective Notice of Appeal. Secondly, the applicants ought not to have brought this application to this court for the reasons outlined above.
It is ordered as follows:
1. The Provisional Order granted under case number 2009/14 on 28 August 2014 be and is hereby discharged.
2. The applicants are ordered to pay the costs of suit.
T. Hara and Partners, applicants’ legal practitioners
Messrs Dube-Banda, Nzarayapenga and partners, respondents’ legal practitioners