Hester Theron HC 6067/09

AND RURAL RESETTLEMENT

IH THE HIGH COURT OF ZIMBABWE

MUSAKWAJHARARE, 4 DECEMBER 2009

2

HC 6067/09In his founding affidavit the applicant states that on 6th November, 2009 he wasconvicted of contravening section 3 (2) as read with section 3 (5) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28]. He was sentenced to a wholly suspended term of three months imprisonment. In addition, it was ordered, in terms of section 3 (5) of the Act that applicant be evicted from Friedenthal Estate by 8th December, 2009.On 9th November, 2009 applicant noted an appeal against conviction and sentence, including the order of eviction. The basis for seeking urgent relief is that there is a potential for being evicted on 8th December, 2009.Both counsels are agreed that the noting of appeal has the effect of suspending the order of eviction. However, Mr. Masamha, for respondents argued that there is no basis for the urgency claimed by the applicant. He pointed out that the applicant waited for twenty-six days before taking action and has only done so because the day of eviction is imminent. He cited the judgment of MAKARAU J (as she then was) in Robert Dombodzvuku and Arthur Shingai Mutasa v V. Sithole N.O and The Attorney-General HH-174-04. Mr. Masamha also argued that if applicant was so desirous of seeking the present relief he should have sought it in the court a quo. However, he was not able to refer to a provision in the Magistrates Court Act [Chapter 7:10] that provides for making an application for stay of execution of an order granted in terms of section 3 (5) of the Gazetted Lands (Consequential Provisions) Act.On the other hand Mr Mamvura argued that the general perception by officers in the office of the second respondent is that an order of eviction should be effected within four days of its being granted notwithstanding the noting of an appeal. He further submitted that unless there is intervention by way of the granting of a declaratory order, respondents will proceed with the eviction.I have not been persuaded by the reasons advanced in seeking the declaratory order. It is not clear where applicant’s fears of eviction are emanating from. The practice or perceptions of second respondent’s officers have not been stated in the founding affidavit. It is not clear to me what has triggered the present application. In light of the fact that the legal position the             3 HC 6067/09 effect of noting an appeal against an order of a Magistrates Court in terms of section 63 of theMagistrates Court Act is not in doubt the application does not appear to have a cause of action.In addition there is no explanation why applicant took no action for three weeks since the noting of appeal. In the case of Robert Dombodzvuku and Arthur Shingai Mutasa v V. Sithole N.O and The Attorney-General supra MAKARAU J (as she then was) had this to say on the issue of urgency-“It has been stressed in this court that a matter does not become urgent as the date of reckoning looms. Rather, a matter is urgent when the facts giving rise to the cause of action arise and the matter cannot wait then. Pleas by legal practitioners that if the matter is not treated urgently because the date of reckoning is fast approaching are misplaced and unimpressive.”The only other observation I have to make is that the applicant is seeking a final order by way of urgent application. Mr Mamvura sought to argue that this is because a legal issue is involved. In light of my earlier observations the legal position is not in doubt. The papers before me do not show that the legal protection afforded to a litigant who has noted an appeal against the decision is about to be violated. Therefore there is no basis for seeking an urgent declaratory order which is in the form of a final order.It therefore follows that the application fails and is hereby dismissed with costs.