De Kock & Anor v Madiro & Anor (HH 30 of 2004) [2004] ZWHHC 30 (10 February 2004)

1 HH 30-04 HC 429/04 CHARL DE KOCK and WILTON TOBACCO AND ESTATE COMPANY versus MIKE MADIRO and FREDDY GOWERO HIGH COURT OF ZIMBABWE BHUNU J, HARARE, 23 January and 11 February, 2004 Urgent Application Adv J Wood for the applicant Mr Mutezo for the respondent BHUNU J: The first applicant is the Managing Director of the second applicant carrying on commercial farming at Wilton Farm in the District of Makoni. The two respondents have taken occupation of the farm and are carrying out farming activities on the farm in defiance of two previous court orders. On the 7th November, 2003 I issued a provisional order in Case No HC 9728/03 against both respondents. The terms of that provisional order were as follows ­ "Pending the determination of this matter, the applicant is granted the following relief ­ 1. 2. 3. With immediate effect the respondents shall cease to harass or threaten the first applicant and/or any employee of the second applicant and shall not enter Wilton Farm Odzi or interfere in any way with the applicant's farming operations. The respondents be and are hereby ordered forthwith to remove from Wilton Farm, Odzi all items and equipment belonging to them and all persons either in their employ or under their authority who are presently on Wilton Farm. Should the respondents fail to comply with this order within 24 hours of its service on them the Deputy Sheriff be and is hereby ordered to give effect to the terms of this order and enforce it against the respondents and all persons acting under their direction or orders". Following the above order the respondents were duly evicted from the farm by the Deputy Sheriff with the assistance of the police, shortly thereafter they returned to HH 30-04 HC 429/04 the farm and occupied it in breach of the above court order. On the 3rd December, 2003 and in Case No HC 9397/03 MAKARAU J issued an order nullifying the section 5 and 8 notices issued by the Minister in terms of the Land Acquisition Act [Chapter 20:10]. The net effect of that order is that the land in the eyes of the law has not been lawfully acquired by the acquiring authority. That being the case there is no legal basis upon which the respondents can claim occupation of the farm. Following the non­compliance with the provisional order issued under Case No HC 9728/03 the applicant sought and obtained an order from CHINHENGO J under Case No HC 11097/03 judgment Number HH 217­03. The order reads ­ 'In the result it is ordered that ­ 1. 2. Unless the first and second respondents comply within 48 hours of service of this order on their legal practitioner or on them, they shall be brought before this Court to show cause why they should not be committed to gaol for contempt of court. The first and second respondents, jointly and severally, the one paying the others to be absolved, shall pay the applicant's costs of suit on the scale as between legal practitioner and client". Despite the prospect of civil imprisonment the respondents have not complied with the provisional order in Case No HC 9728/03 nor observed the order in Case No HC 11097/03 which declared that the purported acquisition of the land in dispute is a legal nullity. What they have now done is to appeal to the Supreme Court. They now argue that the appeal to the Supreme Court suspends the decision appealed against. It is correct that an appeal against the decision of Superior Courts of inherent jurisdiction automatically suspends the decision appealed against. This is however a rule of practice and not a rule of law. In the case of Vengesai and Others v Zimbabwe Glass Industries Ltd 1998(2) ZLR 593 (H) at page 598T it was held that ­ HH 30-04 HC 429/04 "In stating the common law CORBETT JA referred to the automatic stay of execution upon the noting of an appeal as a rule of practice that is not a firm rule of law but a long established rule of practice regarded as generally binding subject to the court's discretion. The concept of a rule of practice is particularly appropriate only to Superior Courts of inherent jurisdiction. Any other Court, Tribunal or authority is a creature of statute and bound by the four corners of its enabling legislation." See also Founders Building Society v Mazuka 2000(1) ZLR 528 and Trainos Toziva Madoka v Rodney HB 116­89. It being a rule of practice rather than a rule of law the Court has a discretion on good cause shown to order execution despite the nothing of an appeal. The applicants however contend that there is no valid appeal which has been noted to the Supreme Court. They thus seek an order striking out the appeals noted against this court's judgment in Case Nos HC 9728/03 and HC 11097/03. I do not think that it is competent nor appropriate for this court to interfere with an appeal which is not before it. This Court has finished its job and considers itself functus officio in respect of the decisions appealed against save for the confirmation of the provisional order on the return date. It is the function of the appeal court to decide whether or not to strike out the appeal noted to it. Thus this court cannot order the striking out of an appeal noted to the Supreme Court without usurping the function of that Court. Despite that observation this court in the exercise of its discretion whether or not to order stay of execution despite the noting of an appeal can properly take into account whether or not a valid appeal has been noted to the Supreme Court. I now turn to consider whether or not there is a valid appeal pending before the Supreme Court as would warrant the automatic stay of execution of the court order. My job is made easier in this regard as it is conceded and is a matter of common cause that the appeal was filed out of time. The late noting of the appeal has not been HH 30-04 HC 429/04 condoned at this stage. The case of United Bottlers v Nkomo 1994(2) ZLR 211 is authority for the proposition that a defective appeal is not a pending appeal. In this case which is almost on all fours with the facts of that case it was held that ­ "Although the amending act allowed the Board to continue to function for the purpose of determining any appeal pending before it on 31 December, 1992, there was no appeal from the respondent, 'pending'. There was only a document, purporting to be a notice of appeal pending simply because, in the mind of the party, there was an intention to attempt to rectify her failure to note, an appeal and some invalid steps had been taken in pursuance of that intention". On the basis of the above proposition of law I am satisfied that an irregular and invalid appeal cannot suspend execution. Until such time that the respondent's are granted leave to appeal out of time the appeal papers currently filed with the Supreme Court only, signify an intention to appeal. They do not constitute an appeal to the Supreme Court at this stage. The respondents finally asked the court to protect them against the destruction or appropriation of the crops they had cultivated on the land in question. The request has no legal foundation. It is an appeal to morality, goodwill and conscience. Speaking for myself I do not think that anyone including the applicants would strive to destroy food crops in circumstances where the nation is in dire need of food. Because of the absence of legal rights on the part of the respondents I believe that the issue can be resolved through negotiations. In the final analysis it is ordered ­ 1) that the judgment of this court in Case No HC 9728/03 and Case No HC 11098/03 shall have effect notwithstanding the noting of an appeal. 2) that the first respondent shall bear the applicants' costs on the legal practitioner and client scale. HH 30-04 HC 429/04 Henning Lock Donagher and Winter, applicants' legal practitioners Mutezo and Associates, respondents' legal practitioners