TCL loses eviction case

Lebogang Mosikare | Tuesday December 19, 2017 17:00

TCL and Augustine Mokalake were cited as the first and second respondents in the matter.

In the ruling that was delivered by Justice Barnabas Nyamadzabo recently, he (Nyamadzabo) said the dispute between the parties revolved around the eviction of the plaintiff from Shashe Farm Camp 5 when he was served on May 18, 2009 with a writ of execution.

“It is the plaintiff’s contention that he suffered damages as a result of this eviction in that TCL’s agent, Augustine Mokalake fraudulently presented himself to the plaintiff as a lawful deputy sheriff when both the first and second defendants knew at all material times and place that the second defendant was not a deputy sheriff of the High Court, as he lacked authorisation to conduct an eviction process against the plaintiff or any other person,” said Nyamadzabo.

“In essence, the test is whether there is a prima facie case against the defendant at the close of the plaintiff’s case…On the process of eviction, TCL’s main contention, amongst others, is that Mokalake was an authorised deputy sheriff if the plaintiff does not dispute the validity of writ for eviction, the issue in my view is not as clear as contended by TCL’s counsel,” said Nyamadzabo.

While service of most court processes may generally be done by an adult, the judge said, there are certain processes which were the exclusive preserve of the deputy sheriffs to execute because of their sensitivities and special requirements.

“These would, amongst others, include execution of property (both movable and immovable) as well as evictions, pursuant to writ of execution.

“Without in any way stating a definitive position at this stage, it follows, at least at a prima facie level, that for any executions of property for instance to be valid and lawful, it ought to be executed by one who is legally entitled to do so,” said Nyamadzabo.

He added: “Without in any way stating a definitive position at this stage it follows, at least at prima facie level, that for any execution of property for instance to be valid and lawful, it ought to be executed by one who is legally entitled to do so.

“By way of analogy, a search of arrest following a warrant may not be considered lawful if the persons executing such search warrant were not legally entitled to do so, even if the warrant of arrest or search were validly obtained”. “As to whether the execution of the process in the instant case resulted in damages and the extent of such damages, I believe it is a matter to be definitively decided at the end of the trial when all evidence has been led.

“The result is that this is one of those cases where it would be ill-advisable to return a verdict of absolution from the instance.

It is ordered that TCL’s application for absolution from the instance be and is dismissed with costs.

This case shall proceed with the defence case on May 16, 2018,” said Nyamadzabo.