Rogers Dhliwayo v Shaun Mandaa Kudinga and Others

On 25 January 2008, the first respondent obtained a certificate of ejectment from the rent board against the applicant. On 18 February 2008, the applicant appealed to the Administrative Court against the certificate. On 17 March 2008, the applicant was granted a rule nisi staying execution of the certificate until the appeal was finalized, with the return date being 28 April 2008, when the matter was postponed sine die and the rule nisi extended indefinitely. Despite the rule nisi, on 28 March 2008, the first respondent obtained a writ of ejectment from the Clerk of Court based on the certificate of ejectment. On 16 June 2008, the applicant was ejected from the leased premises at No. 5 Jacaranda Close, Hatfield, Harare. The applicant initially approached the court on 17 June 2008 seeking restoration (deemed not urgent), then filed a court application on 30 June 2008 (heard 11 November 2008, dismissed for failure to cite the third respondent). The present review application was filed on 14 November 2008, some five months after the ejection.

• Whether condonation should be granted for the delay in bringing the review application beyond the prescribed eight-week period
• Whether the writ of ejectment issued on 28 March 2008 was irregularly obtained
• Whether a certificate of ejectment from the rent board can be registered as a judgment and executed without a court order
• Whether execution of the writ violated the rule nisi that stayed execution indefinitely
• Whether restoration of possession would be practical given the lapse of time and occupation by a third party

1. The application is dismissed. 2. The applicant shall bear the costs of the application.

A certificate of ejectment issued by a rent board under the Rent Regulations SI 2007 is merely a preliminary step before obtaining a court order for ejectment. It is not an ejectment order itself, nor a judgment, and cannot be used to issue a writ of ejectment from any court without further judicial process. If the legislature intended such certificates to be enforceable as judgments, it would have expressly provided for this, as it did in other statutes (e.g., s 98(14) and (15) of the Labour Act). A review application will not be granted where restoration would serve no practical purpose due to the passage of time and changed circumstances, including occupation by third parties not joined to the proceedings.

The court observed that the applicant, having had the benefit of legal representation at all material times, should have been properly advised and adopted the correct procedure from the outset. The court noted that the applicant had pursued the matter using the wrong procedural approach (court application instead of review application), which contributed to the delay. The court also noted that it ascertained from the first respondent that the property was occupied by a third party at the time of hearing, a fact disputed by the applicant, but as the third party had not been joined, no order could affect their rights.

This case clarifies important principles in Zimbabwean law regarding rent board procedures and civil execution. It establishes that a certificate of ejectment issued by a rent board is not itself an ejectment order and cannot be registered or executed as a judgment without obtaining a proper court order. The judgment reinforces the principle that statutory powers of execution must be expressly provided for by the legislature. It also demonstrates the application of the Bishi test for condonation and the practical limitations on review applications where the passage of time and changed circumstances make restoration of possession impractical. The case serves as a cautionary tale about pursuing incorrect procedural remedies even when substantive illegality may exist.