Urmilla Usha Giga v Albion Properties and Messenger of Court Harare and Appliset Investments (Private) Limited

The applicant was a tenant of the first respondent at 5 Albion House, 74 Harare for 11 years. The first respondent obtained an eviction order against her from the Magistrate's Court. The applicant instructed her erstwhile legal practitioners to note an appeal against the eviction order, but they failed to do so because she had not paid them. On 16 November 2011, the Messenger of Court (second respondent) evicted the applicant from the premises without giving her the requisite 48 hours notice as required by Rule 4A(1) of Order 26 of the Magistrate's Court Rules 1980. The applicant's property was removed and stored outside, exposed to the elements. After the eviction, the applicant retrieved her file from her former legal practitioners and instructed new counsel to note an appeal and file an application for condonation of late noting. On 21 November 2011, she filed this urgent application seeking reinstatement pending the appeal. After this application was served, the first respondent entered into a new lease agreement with the third respondent, though the third respondent had not yet taken occupation.

• Whether the application was urgent and whether the delay between eviction and filing the application was adequately explained
• Whether the eviction was lawful given that the applicant was not given 48 hours notice as required by Rule 4A(1) of Order 26 of the Magistrate's Court Rules 1980
• Whether Rule 4A(2) regarding inadvertent failure to deliver or leave notice applied to validate the ejectment
• Whether the applicant should be reinstated into the premises pending her appeal

The provisional order for reinstatement of the applicant into the premises pending the hearing of her application for condonation of late noting of appeal was granted in terms of the draft order.

Rule 4A(1) of Order 26 of the Magistrate's Court Rules 1980 is couched in peremptory terms and requires that a messenger of court must give 48 hours notice before executing an eviction, and the date of ejectment shall not be sooner than 48 hours after the notice was delivered or left. Rule 4A(2) regarding inadvertent failure to deliver or leave notice does not apply where notice was given but the full 48-hour period was not allowed to elapse before ejectment. An ejectment effected without giving the requisite 48 hours notice, in the absence of circumstances justifying immediate execution under the proviso to Rule 4A(1), is unlawful and justifies an order for reinstatement of the evicted party.

The court observed that where a landlord enters into a new lease agreement with a third party after being served with an application challenging the eviction, and where that third party has not yet taken occupation, this further supports an order for reinstatement. The court also noted that the messenger of court's failure to oppose the application or provide any explanation for the immediate ejectment weakened the case against reinstatement. The court made an implicit observation about the conduct of legal practitioners who fail to note appeals as instructed due to non-payment of fees, suggesting this contributed to the applicant's predicament and justified treating her application as urgent.

This case is significant as it emphasizes the strict procedural requirements for evictions under the Magistrate's Court Rules, particularly the mandatory 48-hour notice requirement under Rule 4A(1) of Order 26. It establishes that courts will not condone unlawful evictions even where a valid eviction order exists, and that failure to comply with peremptory procedural safeguards can result in reinstatement of an evicted tenant. The case also demonstrates the limits of Rule 4A(2) regarding inadvertent failures, clarifying that this provision does not excuse inadequate notice periods. It reinforces the principle that procedural protections for judgment debtors must be strictly observed by court officials, and that landlords and new tenants cannot take advantage of unlawful evictions to create fait accompli situations.