Ngwaru Masanza and Priscilla Zunguza v Luke Rwafa and Placxedas Rwafa and Messenger of Court

In early 2000, during the land reform programme, the applicants occupied Heydon Farm on the outskirts of Harare and built family homes. The farm was subsequently compulsorily acquired by the State under the Land Acquisition Act. Part of the farm was subdivided into residential stands with title deeds and sold, forming Heydon Township. The respondents (husband and wife) purchased stand 2915 measuring 2193 square metres and received title, although the applicants were resident on the stand at the time of sale. The applicants had no legal basis to occupy the stand. The respondents obtained an eviction order from the Chinhoyi Magistrates' Court under case CHN 286/19. The applicants' appeal to the High Court was dismissed. The applicants noted an appeal to the Supreme Court (SC 277/20), but the respondents successfully obtained leave to execute pending appeal (HC 3097/20). The applicants' subsequent appeal (SC 441/20) was struck off on 15 February 2022 on technical grounds. On 28 February 2022, the applicants were served with a notice of attachment and eviction. They filed this urgent chamber application seeking a stay of execution pending application for condonation for late filing of leave to appeal.

• Whether the application was urgent or whether the urgency was self-created
• Whether the application had been overtaken by events on the ground due to the eviction already having been executed
• Whether a stay of execution should be granted pending an application for condonation for late filing of leave to appeal
• Whether the Court should condone the applicants' return to the property after lawful eviction

The application was dismissed with no order as to costs.

An application for stay of execution of an eviction order becomes moot and cannot succeed once the eviction has been lawfully executed by the Messenger of Court. An eviction order is effectively executed when the applicants (persons) are removed from the property; there is no requirement that dwelling structures be destroyed for the eviction to be valid. The return of evicted parties to property after lawful execution of an eviction order constitutes contemptuous conduct in direct disregard of a court order, which the court will not condone. A court will not reverse a properly executed eviction on the basis that structures were left intact when the order required removal of persons.

The Court observed that a delay of thirteen days between the striking off of an appeal and filing an urgent application cannot be regarded as inordinate where the applicants had been actively pursuing legal remedies through the courts and reacted swiftly upon receiving notice of eviction. The Court noted that the applicants 'were not sitting on their laurels' as their appeal was not dismissed but struck off on a technicality, and they were attending at the High Court seeking leave to appeal while awaiting results when served with the eviction notice. The Court also made observations about the land reform context, noting that none of the original occupiers of Heydon Farm were given offer letters, permits or lease agreements that would have regularized their stay, and that it was common cause the applicants had no legal basis to occupy either Heydon Farm generally or the respondents' stand in particular.

This case illustrates the Zimbabwe Supreme Court's approach to applications for stay of execution that have been overtaken by events, particularly in the context of eviction proceedings. It establishes that once an eviction order has been lawfully executed by the Messenger of Court, an application for stay of execution becomes moot. The case also demonstrates the court's unwillingness to condone contemptuous conduct where parties return to occupy property after lawful eviction. It provides guidance on what constitutes effective execution of an eviction order (removal of persons rather than destruction of structures) and reinforces that courts will not reverse properly executed evictions on technical grounds. The judgment also addresses the test for urgency in chamber applications, holding that delays of relatively short duration (thirteen days) following the striking off of an appeal are not necessarily fatal where the applicant has been actively pursuing remedies.