REPORTABLE (47)
Judgment
No. S.C. 46/02
Civil
Appeal No. 319/00
JOSEPH
TARISAI v CHANDE ALI
SUPREME
COURT OF ZIMBABWE
CHIDYAUSIKU
CJ, SANDURA JA & MALABA JA
HARARE,
MAY 9, 2002
T
Mutandi,
for the appellant
G
Phiri,
for the respondent
CHIDYAUSIKU CJ: The
respondent in this case obtained an eviction order against the
appellant in the High Court. The appellant
was dissatisfied with
the eviction order and now appeals to this Court. At the conclusion
of submissions by counsel we dismissed
this appeal with costs. We
indicated that the reasons for judgment would follow. The following
are the reasons for judgment.
The
respondents case in the court a quo
was very simple and straightforward. The respondent claimed the
eviction of the appellant from house no K30, Torwood, (the house)
on
the basis that he was the owner of the house, having bought it from
Ziscosteel Company. The documentary evidence in support
of the
court application clearly established the respondents claim that
he had purchased the house and the house had been transferred
into,
and was now registered in, his name. The appellant has no legal
basis for refusing to vacate the house as he was doing.
The
appellants opposing affidavit in the court a
quo
does not constitute a defence to the respondents claim even if one
were to accept the averments as truthful. Paragraphs 2-3
of
the then respondents (now the appellants) affidavit read as
follows:
2. Ad
Paragraphs 3, 4
I
believe that there are disputes of facts (sic) which make this matter
unsuitable for determination on the papers.
I
contend that the agreement between Ziscosteel and myself has not been
cancelled and that Ziscosteel has engaged in a double sale.
I am a
member of the Redcliff-Torwood Housing Co-operative Limited which has
been involved in negotiations with Ziscosteel for
its members to
purchase the homes in which they currently reside. I attach hereto
marked Annexure A a copy of the Co-operatives
Certificate of
Incorporation.
I
would wish to call witnesses who can show that there have been
negotiations between Ziscosteel and members of the Co-operative,
hence my belief that this matter is incapable of being resolved on
the papers.
3. Ad
Paragraphs 5-6
The
property should not have been transferred to the applicant for the
simple reason that the negotiations between Ziscosteel and
the
Co-operative Society have not been concluded. Ziscosteel has jumped
the gun. Indeed, I attach hereto marked B an affidavit
made by
Mr Wilson Nakunyada Banda, indicating that there have been
negotiations with Ziscosteel.
An
affidavit in support of the appellants case from a Mr Banda
does not take the appellants case any further. It reads
in part
as follows:
I,
WILSON NAKUNYADA BANDA, do hereby make oath and state that:-
I
am the Chairman of the Torwood Redcliff Co-operative Society and wish
to support the respondent in this matter. The facts I depose
hereto
are within my personal knowledge and to the best of my belief are
true and correct.
1. Ziscosteel entered into
agreements of sale with many of its employees, past and present.
Similar in content to annexure A
of the applicants
application (sic). It must be stressed that most of the employees
who entered (into) the agreements of sale
have resided in these
houses for over ten years.
2. When
most of the employees (well over sixty in number) could not raise the
purchase sum within the stipulated ninety-day period,
either after
being dismissed or retrenched by Ziscosteel, the Torwood Redcliff
Co-operative Society was formed, its sole purpose
being to enter into
negotiations with Ziscosteel to enable members of the Society to
purchase their property.
3. I
humbly submit that these negotiations have not been concluded to
finality with the result that Ziscosteel should not have sold
the
property to the applicant.
4. I
must also hasten to add that Ziscosteel has issued summons in the
magistrate's court at Kwekwe against most members of the Co-operative
and that the matter there has yet to be concluded. The point I am
stressing is that there are many disputes of facts (sic) which
cannot
be resolved on the papers.
It is quite
clear from the above that there was no agreement of sale between the
appellant and Ziscosteel at the time the latter
sold the property to
the respondent. Thus the question of double sale or fraud does not
arise. There was simply no defence to
the applicants (now the
respondents) claim and the court a quo
was correct in granting the applicant the relief he sought. This
appeal is completely devoid of any merit.
It
was for these reasons that the appeal was dismissed with costs.
SANDURA JA:
I agree.
MALABA JA:
I agree.
Malunga &
Partners,
appellant's legal practitioners
Paradza
& Partners,
respondent's legal practitioners