The Magistrates Court granted the respondent's claim for the appellant's eviction from Stand 4733 Ushewokunze, Harare, finding that the respondent was the rightful owner of the stand. The appellant had opposed the eviction on the basis that the stand was allocated to his wife, Pelagia Nyemba. The court a quo ordered the eviction of the appellant and all those claiming occupation through him. The appellant noted an appeal against this decision but did not apply for a stay of execution. At the time of the appeal hearing, the appellant had not complied with the eviction order. While the appellant claimed he resided at a different stand, he admitted that his first wife and children remained in occupation of Stand 4733 Ushewokunze.
1. The point in limine raised by the respondent was upheld. 2. The appeal was struck off the roll with costs on a higher scale.
The binding legal principles established are: (1) The noting of an appeal does not suspend the operation and effectiveness of the order or judgment of the court a quo unless a stay of execution is applied for and granted; (2) A litigant who fails to comply with a court order approaches the court with 'dirty hands' and will not be granted audience until they purge their contempt by complying with the order; (3) Where a court order requires eviction of a party and all those claiming occupation through them, the continued occupation by family members claiming through that party constitutes non-compliance with the order; (4) Court orders enjoy a presumption of validity until declared otherwise by a competent court and must be complied with even if one disagrees with them - citizens must 'obey the law and argue afterwards'.
The court made observations emphasizing the importance of respect for court orders and the rule of law, stating: "If the appellant has no respect for the orders that are passed by the courts, the simple question that arises is, why should he be heard by the same courts? He cannot refuse to comply with court orders, but expect to be heard by the same courts. The message that he gives is that he is only willing to comply with those orders that are only favourable to him. He cannot have his cake and eat it." The court also noted that punitive costs on a higher scale were warranted as "an expression of the court's displeasure to the appellant's contemptuous behaviour and his open defiance of the law." The court emphasized that refusal to comply with a court order is "an open defiance of the law and a contemptuous disrespect for the authority of the court."
This case reinforces the important principle in South African and Zimbabwean law that litigants must comply with court orders before seeking further relief from the courts. It illustrates the application of the 'dirty hands' doctrine in the context of appeals, emphasizing that the noting of an appeal does not suspend the operation of a court order unless a stay of execution is obtained. The case also clarifies that partial compliance with an eviction order is insufficient - where the order requires eviction of all persons claiming occupation through the appellant, the presence of family members constitutes non-compliance. The judgment affirms the rule of law principle that court orders must be obeyed even if one disagrees with them, pending their being set aside by a competent court.