Stephen David Gibson v Jennifer Margaret Shadrach (represented by Phillip Ellse) and The Sheriff of Zimbabwe

The first respondent (Sheriff of Zimbabwe) commenced eviction of the applicant from House No. 19 Helensvale Road on 22 January 2014 pursuant to a writ of ejectment. The eviction was interrupted when the applicant obtained a stay of execution order from Hungwe J under HC 10785/13 on 24 January 2013. By this time, partial eviction had already occurred and a third party (second respondent) had taken partial occupation of the premises. The applicant's remaining property was stored in an office. On 28 January 2014, the applicant requested the Sheriff to remove the second respondent from the premises. The Sheriff declined through the Chief Registrar, stating he could not eject the second respondent without a court order, and advised the applicant to seek such an order. Instead of immediately approaching the court, the applicant pursued a remedy through the Judge President, which was unsuccessful. The applicant only filed this urgent chamber application on 18 February 2014, some 20 days after being advised of the correct procedure.

• Whether the matter constituted an urgent application warranting precedence over other matters
• Whether the Judge President has jurisdiction to interfere with the execution of an order issued by another judge of the same court
• Whether delay in bringing an urgent application, caused by pursuing inappropriate remedies, defeats the urgency of the matter
• Whether a Sheriff can evict a third party who occupied premises during partial execution without a court order

The court ordered that the matter is not urgent.

The binding legal principles established are: (1) Where an applicant is properly advised of the correct legal remedy but deliberately pursues an inappropriate remedy, any delay resulting therefrom renders the urgency self-created and does not entitle the applicant to have the matter treated as urgent. (2) The Judge President of the High Court, when not presiding over a case, exercises purely administrative functions and cannot interfere judicially with orders made by other judges of the same court. (3) Section 164(4) of the Constitution binds all persons, including the Judge President, to court orders. (4) A Sheriff cannot evict a third party who has occupied premises during execution without a specific court order directing such eviction.

The court observed that pursuing the Judge President for a judicial remedy over a case presided over by another judge of the same jurisdiction was "sheer waste of time going on a wild goose chase on a dead end road that leads to nowhere." The court also noted that the law does not stop the Sheriff from executing a Court Order even where there is a pending Court Application, though this execution may be interrupted by an actual stay order being granted.

This case is significant in Zimbabwean civil procedure law as it clarifies: (1) the limits of the Judge President's judicial powers in relation to orders made by other judges of the same court, emphasizing that the Judge President's role outside cases over which he presides is purely administrative; (2) the principle that self-created urgency, particularly where a party ignores proper legal advice and pursues inappropriate remedies, will not entitle that party to have their matter heard on an urgent basis; (3) the constitutional principle under s 164(4) that court orders are binding on all persons including other judicial officers; and (4) the procedural requirement that a Sheriff cannot act to evict parties without a proper court order, even where execution has been partially completed.