Samuel Ncube v Emmeliah Sigauke

The respondent purchased stand 14475 Bulawayo Township (also known as 14475 Inkubu Road, Selborne Park, Bulawayo) through a judicial auction on 4 August 2014 and paid the full purchase price. The appellant refused to give vacant possession. After obtaining title at the deeds registry, the respondent initiated eviction proceedings at the magistrates court on 22 May 2015. The appellant filed an appearance to defend, and the respondent then applied for summary judgment on 18 June 2015. The appellant filed an urgent application in the High Court on 23 June 2015 and opposed the summary judgment application on the basis that a matter was pending in the High Court under case 1667/15. The appellant's only defence was a plea of lis pendens based on this High Court application. The magistrates court granted summary judgment, and the appellant appealed to the High Court. The appellant's lawyers renounced agency on 26 May 2016, barely two weeks before the set down date of 6 June 2016, despite having been served with notices on 5 May 2016.

• Whether the magistrates court properly granted summary judgment in eviction proceedings
• Whether the appellant had a bona fide defence based on lis pendens
• Whether the appeal was an abuse of court process
• Whether costs on an attorney and client scale (punitive costs) were justified

The appeal was dismissed with costs on an attorney and client scale.

A plea of lis pendens is not available where the pending matter was filed after the original proceedings and does not involve the same parties or subject matter. Where a party opposes summary judgment and notes an appeal in bad faith, solely for the purpose of suspending execution of a legitimate judgment, this constitutes an abuse of court process warranting costs on an attorney and client (punitive) scale. For punitive costs to be awarded, the party must have acted mala fide and/or misconducted itself during the litigation process, acting in a capricious, brazen manner without caring about the consequences on the legal process or the other side.

The court observed that the appellant's lawyers' conduct in renouncing agency barely two weeks before the set down date, after having adequate notice since 5 May 2016, suggested they were aware they had filed a hollow appeal with no ground to argue on. The court noted that appeals take a considerable amount of time to finalize from inception, which is a factor to consider when applications for postponement are made. The court also commented that the respondent was being exposed to accumulation of bills in her name despite not being able to occupy the property she legitimately owned.

This case is significant in Zimbabwean civil procedure for demonstrating the courts' willingness to impose punitive costs (attorney and client scale) where a party abuses court process through mala fide conduct. It provides guidance on when the plea of lis pendens is available and reinforces that parties cannot manufacture defences by filing subsequent proceedings and then relying on them to delay legitimate claims. The case also demonstrates judicial intolerance for attempts to frustrate execution of legitimate judgments through hollow appeals designed solely to achieve suspension of execution.