SC 72-14 STREAMSLEIGH INVESTMENTS v AUTOBAND INVESTMENTS

STREAMSLEAGH     INVESTMENTS     (PRIVATE)     LIMITED

v

AUTOBAND     INVESTMENTS     (PRIVATE)     LIMITED

 

SUPREME COURT OF ZIMBABWE

HARARE, SEPTEMBER 16 & 23, 2014

A.P. de Bourbon SC, for the applicant

L. Uriri, for the respondent

 

An application to execute notwithstanding the filing of a notice of appeal to the Constitutional Court.

Before GARWE JA, in chambers.

In a matter involving the same parties, this Court in SC 43/14 (per Gowora JA, with Malaba DCJ and Garwe JA concurring) allowed with costs the appeal noted by Streamsleagh Investments (Pvt) Ltd (“the applicant”), set aside the judgment of the court a quo and in its place issued the following order:

“(a)      The eviction order granted by the Magistrates Court Harare, in the matter between Autoband Investments (Private) Limited t/a Trauma Centre v African Medical Investments Plc under Case No. MC 16435/11 be and is hereby declared to be of no force, effect and application as against the applicant.

(b)        It is ordered that the applicant be and is hereby restored to possession and occupation of premises known as Stand 2924 Salisbury Township of Salisbury Township Lands situated at Number 15 Lanark Road Belgravia, Harare.

(c)        It is ordered that the respondent pays the costs of this application on a legal practitioner client scale.”

Following this order, the applicant issued a writ for the ejectment of Autoband Investments (Pvt) Ltd (“the respondent”) from the premises known as Stand 2924 Salisbury Township of Salisbury Township Lands, also known as number 15 Lanark Road, Belgravia.

However on 18 June 2014, i.e. a day after the handing down of the Supreme Court judgment, the respondent, acting in terms of s 167 (5) of the Constitution of Zimbabwe, filed a notice of appeal to the Constitutional Court of Zimbabwe against the whole judgment of the Supreme Court.  The grounds contained in the notice of appeal are:

The Supreme Court erred in determining the merits of an appeal that is pending before the High Court, and in so doing infringed the appellant’s right to the equal protection and benefit of the law protected and guaranteed under section 56 (1) of the Constitution of Zimbabwe.

The Supreme Court denied the appellant the protection of the law in granting a substantive constitutive order, and not a purely declaratory order which had been prayed for.

To the extent that the appellant’s principal shareholder is the beneficial owner of the immovable property in question and to the further extent that an incident of ownership is the right to occupation, and to the even further extent that the effect of the Supreme Court judgment is to order the ejectment of the owner of the property, the appellant was deprived of the property rights protected and guaranteed under section 71 of the Constitution of Zimbabwe.

In its prayer the respondent seeks a declarator that its right to the protection of the law and to its proprietary rights has been infringed.  It further seeks an order setting aside the judgment of the Supreme Court and in its stead substituting it with an order dismissing with costs the appeal noted to the Supreme Court.

2014

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