Ladrax Inv. (Pvt) Ltd. v Chirenje & Anor (HC 10180 of 2014; Ref HC 1083 of 2014) [2015] ZWHHC 776 (30 September 2015)

1 HH 776-15 HC 10180/14 REF CASE HC 1083/14 LADRAX INVESTMENTS (PVT) LTD versus IGNATIOUS CHIRENJE and RUTENDO WILLA CHIRENJE HIGH COURT OF ZIMBABWE MATANDA-MOYO J HARARE, 1 October 2015 Opposed Application D Matimba, for the applicant TS Manjengwa, for the respondents MATANDA-MOYO J: This is an application for leave to execute pending appeal. This court on 5 May 2015 granted judgment in favour of the applicant in the following; 1) That the respondents having been barred for failure to file heads of argument, the notice of opposition is accordingly struck off. 2) Respondents’ application for upliftment of bar is dismissed. 3) The respondents and all those who claim through them be and are hereby ordered to vacate a certain subdivision A of Lot 16 Block B of Avondale also known as No 50 Broadlands Road Emerald Hill, Harare within 48 hours of being served with writ of execution. 4) In the event of the respondents failing to abide with para 1, the Sheriff be and is hereby ordered to evict the respondents and all those who claim title through them. 5) Respondents are ordered to pay costs of suit on a higher scale, jointly and severally, the one paying the other to be absolved. The respondents noted an appeal against the above order, and such appeal having the effect of suspending the order that brought this application. The respondent opposed the application on the following grounds; a) That the court a quo is still to give its reasons for the order granted and this application cannot proceed without such reasons having been availed. HH 776-15 HC 10180/14 REF CASE HC 1083/14 b) That the court a quo adopted the wrong procedure in arriving at its decision. The court proceeded in terms of r 238 (2b) of the High Court rules and dealt with matter on the merits. The court was enjoined to consider respondents case. By being barred for failure to file heads, respondents only lost the right to make oral presentations. The court erred in striking off the notice of opposition and proceeding to deal with matter on merits. c) That the appeal would be rendered academic should leave be granted and d) That the balance of convenience favours the relief sought on the basis that the respondents are currently using the premises as their residence. Any harm suffered by the applicant could be cured by an order for damages. The background to this matter has been well set out in the judgment of this court of 5 May 2015 and I shall not repeat same. The applicant is the registered owner of the property in question namely Subdivision A of Lot 16 Block B of Avondale. Applicant bought the property through a Sheriff’s sale. On 19 March 2013 the second respondent failed in his bid to have the sale set aside. The sale was confirmed and the property was duly transferred in January 2014. After the respondents refused to vacate the premises, applicant applied for their ejectment. The application was granted in default, after the court struck off respondents’ opposition for failure to file heads of argument. This resulted in the respondents noting an appeal to the Supreme Court on the above grounds. Pending the determination of such appeal applicant sought leave to execute. In assessing an application for leave to execute pending appeal the court looks at various factors amongst them the following; 1) Whether irreparable harm or prejudice would be suffered by the appellant should leave be granted, 2) Whether irreparable harm or prejudice would be suffered by the respondent should leave be refused, 3) The prospects of success on appeal 4) The balance of convenience favours the granting of the relief sought. The applicant submitted that should leave to execute not be granted, it will suffer irreparable harm. The applicant submitted that it is the registered owner of the property. As the owner, it is entitled to enjoy the benefits of such property. As the owner the applicant is entitled to recover full possession of the property unless the person in possession has an HH 776-15 HC 10180/14 REF CASE HC 1083/14 enforceable right against the applicant. Applicant submitted that the respondents have failed to establish any such right. The respondents have no means to settle the debt as shown by the sale of the property in execution. There is a likelihood that the respondents would not be able to pay holding over damages being incurred with each extra day they are in occupation of the property. The applicant submitted that it would suffer irreparable financial prejudice should execution not be granted. The respondents on the other hand submitted that they are currently using the property as their residence and would suffer irreparable harm should execution be granted. It is respondents’ submission that the applicant being a corporate entity, could only incur financial harm which can be compensated by an award of damages. Faced with the two competing interests of the applicant and the respondents, I must decide on the balance of convenience. Does the balance of convenience favour the granting of the relief sought or not? It is my considered view that the harm which may occur or the respondents only relate to finding alternative accommodation to settle. On the other hand the respondents’ property was sold due to failure to settle a debt owed to Genesis Bank. There is no evidence before me that the respondents are able to settle the debt in question. Allowing the respondents to continue to incur further costs by way of holding over damages may result in respondents continuing to incur charges they would not be able to pay. On the other hand the applicant is the registered owner of the property and the continued occupation of the property by the respondents prejudices the applicant more. As the owner the applicant is entitled to the enjoyment of the property. The respondents on the other hand have not proferred any right entitling them to the property which could not be cured by an order of damages in the unlikely event that the respondents win the case. This brings me to the question of prospects of success on appeal. The major concern by the respondents in the appeal is that the reasons for granting the order in favour of the applicant were not available. At the date of hearing of the application the parties conceded such reasons were available, thus discounting that ground. The respondents challenged the procedure adopted by the court a quo in arriving at the decision. Whilst that aspect is arguable – a reading of the judgment shows that the court a quo considered the issues and came to a determination. In any case if the respondents’ complaint is that a default judgement was granted, then its recourse is to apply for rescission HH 776-15 HC 10180/14 REF CASE HC 1083/14 of judgement. By noting an appeal the respondents have realised that the judgement was on the merits. I do not share respondents’ views that should execution proceed the appeal would be rendered academic. The property is already in the applicant’s name. All the papers reflect applicant as the rightful owner of property and execution would not affect that. Should the respondents win the matter, ownership would have to be reversed and the respondents could still get the property back. I am of the opinion that the appeal has been noted for purposes of delaying the day of reckoning. In Econet v Telecel Zimbabwe (Pvt) Ltd 1998 (1) ZLR 156 B at 154 F – G Smith J said: “In determining an application for leave to execute pending appeal, the court must have regard to the “preponderance of equities”, the prospects of success on the part of the appellant and whether the appeal has been noted without the “bona fide intention of seeking to reverse the judgment but for some indirect purpose e.g. to gain time or to harass the other party” see “Fox and Carney (Pvt) Ltd v Carthew-Gabriel (2), 1997 (4) SA 970(R) and ZDECO (PVT)Ltd v Commercial Careers College (1980) (Pvt) Ltd 1991 (2) ZLR 61 H” Generally the courts are reluctant to interfere with judicial sales in execution, where such sale has been confirmed and where transfer has already taken place. See Kanoyangwa v Messenger of Court and Others SC 68/06. For the above reasons it is my view that the applicant has discharged the onus on it justifying the granting of the order sought. Accordingly I order as follows; 1. That the application for execution of judgment HH435/15 pending appeal be and is hereby granted. 2. The respondents shall pay costs of this application. Matipano and Matimba, applicant’s legal practitioners Messrs Wintertons, respondents’ legal practitioners