BRUFORD v ATTORNEY-GENERAL & ORS 2010 (2) ZLR 438 (H)

Flynote

Court - magistrates court - jurisdiction - eviction order following on criminal conviction - nature of such order - such order an exercise of magistrate's civil jurisdiction - noting of appeal against conviction - whether magistrate entitled to order execution of civil order notwithstanding noting of appeal

Land - acquisition - former owner of acquired land refusing to vacate - conviction under s 3 (5) of Gazetted Lands (Consequential Provision) Act [Chapter 20:28] - eviction order following conviction - noting of appeal against conviction - magistrate nevertheless entitled to order execution pending appeal

Headnote

The applicant was a farmer whose farm had been expropriated under the land reform exercise. The farm had been allocated to the fourth respondent. The applicant did not move off the farm and was prosecuted under s 3 (2) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28]. He was convicted and sentenced and issued with an order evicting him from the land to which the offence related. He noted an appeal against conviction and sentence. The first respondent applied to the magistrate for, and was granted, leave to execute the eviction order pending appeal, on the grounds that the appeal had no prospects of success and that it had been filed for purposes of delay. The applicant filed an application to review the magistrate's decision on the grounds that the whole process was grossly irregular and the consequent order grossly unreasonable. It was argued that the magistrate had no jurisdiction to order execution pending appeal. The Magistrates Court Act [Chapter 7:10] is silent about granting criminal courts further jurisdiction to issue orders to suspend or execute, pending appeal, any judgment given under criminal law.

Being a creature of statute, the court had no inherent jurisdiction and, accordingly, no power to order execution of its own judgments despite noting of an appeal. court which does not have inherent jurisdiction cannot issue orders for the execution of its own judgment pending appeal. The civil magistrates court is conferred by s 40 of the Act with specific authority to issue an order of execution pending appeal, but nothing in the Act extends the same jurisdiction to a criminal magistrates court. It was also argued that if the court were to qualify as a civil court, it would not have had jurisdiction to order eviction with regards to a property whose value was well in excess of the given monetary jurisdiction.

The respondents argued that the court, upon conviction and sentence, had to in addition, issue an eviction order. It would be an absurdity if the criminal court so issuing such orders were to be precluded from enforcing them. The magistrate's jurisdiction in cases such as the present derives from s 3(5) of the Gazetted Lands (Consequential Provisions) Act. The provisions of s 3(5) are peremptory.

Held, that where the trial court is of the opinion that the appeal has no prospects of success and that it is being lodged only for purposes of delay, it may order execution of the order pending appeal. Once it is accepted that in terms of s 3 (5) of the Act, the magistrate has the jurisdiction to give the order he gave and that jurisdiction of necessity includes the power to execute the orders so granted, it must also be accepted that where an appeal is lodged or noted, the magistrate may, of his own accord or upon application, order execution pending appeal, if he is of the view that the appellant's grounds of appeal are frivolous and without merit. Section 3(5) of the Act refers to "any court". It does not distinguish between superior and subordinate courts. Thus the powers given under s 3(5) apply with equal efficacy, regardless of the level of jurisdiction of any such court as provided for in any other legislation. The magistrates court is an entity which is endowed with both civil and criminal jurisdiction. There is no provision that says a magistrate cannot, in an appropriate case, exercise elements of both his civil jurisdiction and his criminal jurisdiction where the enabling Act so directs. The jurisdiction of a magistrate is conferred by the Magistrates Court Act "and any other enactment." The magistrate's jurisdiction to issue an eviction order is, in terms of the Gazetted Lands (Consequential Provisions) Act, founded upon the conviction, not upon the monetary value of the land or occupation in question. The magistrate is directed to issue an eviction order upon conviction. No reference is made to his monetary jurisdiction, nor is there a provision that says he can only issue such an order "subject to the jurisdiction conferred upon him by the Magistrates Court Act." To interpret the position otherwise would lead to a glaring absurdity. *