LANDLORD AND TENANT https://old.zimlii.org/taxonomy/term/10751/all en Totri And Anor v Nkomo (Judgment No. HB 146/21, HC 2392/19) [2021] ZWBHC 146 (03 August 2021); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2021/146 <div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/146/2021-zwbhc-146.pdf" type="application/pdf; length=132493">2021-zwbhc-146.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/l">L</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/landlord-and-tenant">LANDLORD AND TENANT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/lease">Lease</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/tenant">Tenant</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2015/518">Paget-Pax Endowment Trust v Highlife Inv. (Pvt) Ltd (HC 935/14) [2015] ZWHHC 518 (09 June 2015);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2006/8">Kingstons Ltd. v L D Ineson (Pvt) Ltd. (05/05) ((Pvt)) [2006] ZWSC 8 (14 May 2006);</a></div><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2020/3">Zambezi Gas Zimbabwe (Pvt) Ltd. v N. R. Barber (Pvt) Ltd. &amp; Another (SC 3/20 , Civil Appeal No. SC 437/19) [2020] ZWSC 03 (20 January 2020);</a></div><div class="field-item odd"><a href="/zw/judgment/bulawayo-high-court/2013/20">Fort Enterprises (Pvt) Ltd. v Sibanda (HC 428/10) [2013] ZWBHC 20 (06 February 2013);</a></div><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2014/24">Magodora &amp; Others v CARE International Zim (SC 191/13) [2014] ZWSC 24 (24 March 2014);</a></div></div></div> Thu, 12 Aug 2021 07:04:12 +0000 Sandra 10091 at https://old.zimlii.org Life Brand Agric Services (Pvt) Ltd v Liaquart Petker (HH 268-21, CIV Á'120/10) [2021] ZWHHC 268 (02 June 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/268 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HH 268-21</p> <p>CIV Á'120/20</p> <p>LIFE BRAND AGRIC SERVICES (PRIVATE) LIMITED</p> <p>versus</p> <p>LIAQUART PETKER</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAFUSIRE J &amp; MUSITHU J</p> <p>HARARE, 25 March 2021</p> <p> </p> <p> </p> <p><strong>Civil appeal</strong></p> <p> </p> <p>                                                                                                       </p> <p>Date of <em>ex tempore</em> judgment: 25 March 2021</p> <p>Date of written judgment: 2 June 2021</p> <p> </p> <p> </p> <p>Ms <em>F.M. Majome</em>, for the appellant </p> <p>Mr <em>F. Muserere</em>, for the respondent</p> <p> </p> <p>MAFUSIRE J</p> <p>[1]        This is an appeal from the magistrate’s court. The lower court dismissed an application for rescission of judgment brought by the appellant. The appellant had filed that application in terms of s 34(2) of the Magistrate’s Court Act, (<em>Chapter 7:10</em>) (“<strong><em>the Act</em></strong>”). This is the provision that entitles any person affected by an order of the magistrate’s court authorising the messenger of court to seize and attach so much of the movable property of, or under the control of, a tenant and found on the rented premises and as may be sufficient to satisfy the amount of rent due and in arrears by the tenant, together with the costs of such application, and those of any action for the recovery of the outstanding rent, to apply to set aside such order.</p> <p>[2]        The magistrate’s court issues such an order aforesaid in terms of s 34(1) of the Act. In paraphrase, this sub-section empowers the court to issue the order upon application by a landlord alleging that the tenant is in arrears with his or her rent; that the arrear rent has been demanded for the last seven days or more, or that in the landlord’s belief, the tenant is about to remove his or her property from the rented premises in order to defeat or avoid paying the rent due. The landlord gives security for any damages, costs or charges the tenant may incur by reason of such attachment, in the event that it is set aside.</p> <p>[3]        The appellant was the tenant, and the respondent the landlord. In January 2020 the respondent applied <em>ex parte</em> for the s 34(1) order. He alleged by affidavit, among other things, that the appellant had not vacated the rented premises despite the termination of the lease agreement; that the appellant’s rent was $37 500-00 per month; that the appellant was in arrears in an amount in the sum of $112 500-00 for the period since November 2019; that in terms of the lease agreement, the issue had been referred to an arbitrator and that the outcome of that was due any time in the following week. The respondent further stated that in a clear bid to avoid paying the arear rentals, the appellant had been secretly moving some of its property from the rented premises. He further said that the arrear rentals had been demanded unsuccessfully since the day they had become due and that simultaneously with the application he had issued a summons for the recovery of those arrears. The respondent concluded that he had been advised that as landlord he had a hypothec for arrear rentals which he could execute in the circumstances.</p> <p>[4]        The order of court, issued on 12 February 2020, read:</p> <p>            “<strong>IT IS ORDERED THAT</strong>:</p> <ol> <li>The Messenger of Court do seize and arrest so much of the Respondent’s movable property at No. 69 Belvedere Road, Belvedere, Harare, as shall be sufficient to satisfy the sum of RTGS$112,500.00 and costs.”</li> </ol> <p>[5]        In its application for rescission filed on 24 February 2020, the appellant impugned the order of court alleging that it had been issued in error and that the error had been induced by the respondent. It alleged that the respondent had fraudulently misrepresented to the court that the monthly rent was $37 599, when in fact it was only $2 500; that the appellant had been moving property in order to evade paying the arrear rent yet computations showed that the appellant’s rent was paid up in advance up to May 2020 and that the respondent was in the habit of telling the court this sort of lie in order to get such an order as a way of harassing his tenants. He had done that before with the result that the appellant’s certain Nissan truck motor vehicle had been attached. The matter was pending at the Supreme Court.</p> <p>[6]        The appellant further alleged in its affidavit in support of rescission of judgment that the dispute between the parties was pending before a neutral arbitrator. The affidavit concluded by saying that from the deponent’s enquiry with the Law Society of Zimbabwe, the respondent’s counsel of record, a Mr B Pabwe, appeared not to be a duly registered legal practitioner, and that in the absence of proof to the contrary the appellant would move to have the proceedings “removed” on the basis of fraudulent misrepresentation.</p> <p>[7]        The respondent opposed the appellant’s application. He supported the propriety of his own application and the order issued by the court. Regarding the figures of the arrear rent and the monthly rent, the respondent stated that in terms of the lease agreement and the addendum thereto, the monthly rent was USD2 500, which on conversion at prevailing interbank rates, was $37 599 per month in local currency. He denied that the appellant’s rent was paid up in advance. Regarding the issue relating to the attachment of the appellant’s Nissan truck motor vehicle, the respondent stated that the attachment had been made properly, that it had been made in respect of a period prior to November 2019, and that the appellant had lost in the magistrate’s court; had lost on appeal to the High Court and that it had further appealed to the Supreme Court where the matter was pending. On Mr Pabwe, the respondent insisted that he was duly registered with the Law Society. His practising certificate would be produced at the hearing.  </p> <p>[8]        The appellant filed an answering affidavit. It raised more issues. In substance, it alleged that at no point had it been advised of the termination of the lease agreement or required to vacate the rented premises; that the lease was still valid; that it was still in occupation of the premises and that it had no intention to vacate before the expiry of the lease period as fixed in the lease. It was further averred that in the application for attachment the appellant had failed to prove that the rent had been outstanding or that the appellant had in fact been removing assets from the rented property. It denied that it had ever done that. On the contrary, it had actually brought in more assets such as computers and printers, as it had no intention of leaving.</p> <p>[9]        In the heads of argument filed on behalf of the appellant in support for the application for rescission, a further point was raised that in view of the fiscal regime in force in the country, the United States dollar ranked at par with the local currency such that a rent of USD2 500 per month would convert to RTGS 2 500 per month. In that regard, the respondent’s claim for arrears for three months (November 2019 to January 2020) would only amount to RTGS 7 500. Yet the respondent had misled the court into believing that the arrear rent had been a whopping RTGS 112 500.</p> <p>[10]      In its judgment dismissing the appellant’s application for rescission, the lower court stated that the import of s 34(1) of the Act is to protect a landlord who can prove that the rent is in arrears and that he has a reasonable apprehension that the tenant will vacate the rented premises without paying the rent due. It said the court was satisfied that the respondent had done just that. It made a finding that the appellant had filed no proof of payment of the arrear rentals beyond merely noting that it was in the process of compiling it. It said one can seek release of the attached property only upon proof of payment. With regards to the issue of the rentals being pegged in foreign currency convertible to local currency upon payment, the court made a finding that the appellant had conceded the denomination of the rent in foreign currency but that it had remained silent whether such would be paid in foreign currency or would be converted to the local equivalent. Regarding the alleged non-registration of Mr Pabwe with the Law Society, the court found it to be irrelevant information. In the end, the court held that the appellant had failed to satisfy the requirements of s 34(2) of the Act to have the attachment of its property set aside, or to prove that the attachment had been wrong. Consequently, the application for rescission was dismissed.</p> <p>[11]      There are three grounds of appeal by the appellant. The court <em>a quo</em> is said to have erred in the following respects:</p> <ul> <li>failing to appreciate that the respondent had not met any of the requirements in s 34(1) of the Act;</li> </ul> <p> </p> <ul> <li>relying on terms that were not part of the lease agreement between the parties;</li> </ul> <p> </p> <ul> <li>concluding that the appellant was in rent arrears when there was no quantification or breakdown of the amounts claimed.</li> </ul> <p>[12]      At the end of argument, we dismissed the appeal and gave our reasons <em>ex tempore</em>. Now the respondent’s legal practitioners (not the appellant’s) have written to ask for those reasons in writing. What we stressed in our <em>ex tempore</em> judgment was that the proceedings that were brought on appeal before us were those in relation to the appellant’s application for rescission of judgment, not those in relation to the attachment of the respondent’s assets earlier on. Admittedly, both proceedings are interrelated. They are intertwined. They are inexorably linked to each other. But there are material differences, particularly in regards to the question of onus and the degrees of proof. Section 34 of the Act reads:</p> <p>“<strong>34 Order of attachment of property in security of rent</strong></p> <p>(1) Upon an affidavit by or on behalf of the landlord of any house, land or premises situate within the court’s regional division or province, as the case may be, that an amount of rent not exceeding the jurisdiction of the court is due and in arrear in regard to that house, land or premises, and that the rent has been demanded in writing for the space of seven days and upwards or, if not so demanded, that the deponent believes that the tenant is about to remove the movable property in and upon the premises in order to defeat and avoid the payment of the rent due and in arrear, and upon security being given to the satisfaction of the clerk of the court to pay and satisfy all damages, costs and charges which the tenant of such house, land or premises, or any other person, may sustain or incur by reason of the seizure or arrest hereinafter mentioned if such seizure and arrest are thereafter set aside, the court may, upon application, issue an order to the messenger authorizing and requiring him to seize and arrest so much of the movable property in or upon the house, land or premises in question, and subject to the landlord’s hypothec for rent, as may be sufficient to satisfy the amount of rent due and in arrear, together with the costs of such application and of any action for the rent due and in arrear.</p> <p>(2) Any person affected by the order referred to in subsection (1) may apply to have it set aside.</p> <p>(3) A respondent whose property has been attached in terms of subsection (1) may, by notice in writing to the clerk of the court, admit that such property is subject to the landlord’s hypothec for an amount to be specified in the notice, and may consent that such property be sold in satisfaction of the amount specified and costs; and the notice shall have the same effect as a consent to judgment for the amount specified.”</p> <p>[13]      In the proceedings for the setting aside of the attachment in the court below, the appellant was trying to show that the earlier proceedings and the outcome thereof had been wrong. The respondent’s application for attachment in the earlier proceedings in terms of s 34(1) of the Act had been brought <em>ex parte</em>. The question whether this procedure was in fact correct or not was not before us. Throughout the prosecution of this case, it was not the appellant’s complaint that the proceedings had been brought <em>ex parte</em> and therefore irregular. It was not its concern. The provision itself does not say what sort of application it is.</p> <p>[14]      Order 22 r 1 of the Magistrates Court Civil Rules, 2019, provides that except where otherwise provided, an application to the court for an order affecting any other party shall be on no less than seven days’ notice to such other person. Rule 7 then says an <em>ex parte</em> application can only be made in the following instances:</p> <ul> <li>an application for an interdict, where a child is about to be removed from the court’s jurisdiction; or</li> </ul> <p> </p> <ul> <li>for purposes of attachment to confirm jurisdiction; or</li> </ul> <p> </p> <ul> <li>for Garnishee orders in terms of s 33 of the Act, or</li> </ul> <p> </p> <ul> <li>where the procedure is provided for under the Rules.</li> </ul> <p>[15]      Order 22 Rule 7(4) provides that any person affected by an order made <em>ex parte</em>, including an interdict for rent under s 38 of the Act, may apply to discharge it with costs on not less than twenty-four hours’ notice. Section 38 of the Act is the provision that permits the inclusion in a summons claiming any outstanding rent for a house, land or any premises, a notice prohibiting the removal of any furniture or other effects therein or thereon which are subject to the landlord’s hypothec for rent, until a court has made an order in relation thereto.</p> <p>[16]      Therefore, we have not decided the question whether a landlord’s application for the attachment of a tenant’s assets in terms of s 34(1) of the Act can be made <em>ex parte</em> or as an ordinary application. Our decision to dismiss the appeal was premised on the failure by the appellant to demonstrate the respects in which the court <em>a quo</em> had misdirected itself in dismissing its application for the setting aside of the attachment.</p> <p>[17]      In a s 34(1) application, the applicant, by affidavit, has to show:</p> <ul> <li>that there is an amount of rent, not exceeding the court’s jurisdiction, which is in arrears and due by the tenant to the landlord in respect to the rented premises;</li> </ul> <p> </p> <ul> <li>that the outstanding rent has been demanded in writing for the last seven days or more; or</li> </ul> <p> </p> <ul> <li>that the deponent believes that the tenant is about to remove the movable property from the rented premises in order to defeat and avoid the payment of the outstanding rent due; and</li> </ul> <p> </p> <ul> <li>that adequate security has been given to the satisfaction of the clerk of the court to cover all the damages, costs and charges which the tenant may incur by reason of the attachment of his or her property in the event that such attachment is set aside;</li> </ul> <p>[18]      The order that the court issues authorises and requires the messenger of court to seize and arrest so much of the movable property on the rented premises as is sufficient to satisfy the amount of the outstanding rent, together with the costs of the application and of any action for the recovery of the arrear rent. In the court below, and to some extent in argument before us, the appellant would, in one breath, expend much energy in trying to demonstrate that in his <em>ex parte</em> application for the attachment order, the respondent had not demonstrated that there had been any amount of rent due to him that he had demanded for seven days or more. But in the next breath the appellant would also concede that clearly the respondent had proceeded on the basis of the alternative ground for seeking such an order, namely, the landlord’s belief that the tenant was removing assets from the rented premises in order to avoid or defeat the outstanding rent. Ms <em>Majome</em>, for the appellant, finally conceded that the issue relating to the issuing of a demand was irrelevant. She then focused on the quality of the belief that the landlord must entertain in order to move a magistrate’s court for the attachment order.</p> <p>[19]      We dismissed the appeal because, contrary to the appellant’s submission, the landlord needs no more than allege that in his or her belief the tenant was removing his or her property from the rented premises in order to defeat the claim for arrear rentals. He or she needs not provide proof that the tenant is in fact removing his or her assets. In their old edition of <em>The Civil Practice of the Magistrate’s Courts in South Africa</em>, authors Buckle &amp; Jones, Juta &amp; Co. 1918 ed., discussing the subject at p 54, say that the landlord is not required to give the reasons for his belief, and that if the order is questioned the court will not require the strictest of proof that the tenant intended to remove. The authors say it will be sufficient proof if the landlord can show that he had reasonable grounds for the apprehension.</p> <p>[20]      Obviously the belief needs to be reasonably entertained. It has to be more than fanciful. But the landlord needs not provide proof on a balance of probabilities that the tenant is doing away with his or her property from the rented premises for the purpose of defeating the landlord’s claim for the outstanding rent or to render his or her hypothec for rent nugatory. Much less, the landlord needs not prove, at this stage, the quantum of the arrear rent, except to show that it does not exceed the court’s jurisdiction.</p> <p>[21]      We consider that all that the landlord needs to show is a <em>prima facie</em> basis for the attachment order. In the present case, the respondent had shown the court that there was a landlord and tenant relationship between himself and the appellant; that there was an amount of rent outstanding due by the appellant to him; that not only had he cancelled the lease agreement and demanded vacant possession of the premises by reason of the appellant’s default, but also that the issue had already been referred for arbitration the outcome of which was being expected in the following week. Furthermore, the respondent had attached a bond of indemnity which apparently had satisfied the clerk of court as being adequate security for the purposes of the Act.</p> <p>[22]      The attachment order that the court issues under s 34(1) of the Act does not automatically lead to execution. It is to restore or preserve so much of the tenant’s property at the rented premises as the value of which would be sufficient to satisfy any judgment of the court for the outstanding rent and costs. Such an order seems similar to an anti-dissipation interdict which is a temporary interdict intended to preserve an asset by prohibiting its disposal pending the determination of a dispute. The object is to give effect to the order of court that may be eventually granted to ensure that there is an asset to levy attachment on in the event of execution: see <em>Shabtai v Bar &amp; Ors</em> HH 707-14.</p> <p>[23]      The attachment under s 34(1) of the Act is to confirm and secure the landlord’s hypothec for rent that is referred to in s 38 of the Act. Under the common law, a landlord has a tacit hypothec for the rent owing by the tenant. The hypothec is over all the movable property on the rented premises and which belongs to the tenant: Buckle &amp; Jones, <em>ibid</em>, at p 55. Under s 38 of the Act the hypothec is over the furniture and other effects of the tenant at the rented premises. In simple terms, a landlord’s hypothec for rent is an encumbrance on the tenant’s property as security for rent. The property remains in the possession and use of the tenant, but he or she may not remove it from the rented premises.</p> <p>[24]      Therefore, even before a landlord applies for the 34(1) order, he or she already enjoys certain rights over the tenant’s property. That is why in our view, it should be less onerous for him or her to prove the right to attach the tenant’s property as security for the outstanding rent due by the tenant. The s 34(1) order is mere confirmation of the landlord’s hypothec. Therefore, to the extent that the appellant required the respondent to furnish proof on a balance of probabilities that its rent was indeed in arrears, and by how much, or that it was actually removing its assets from the rented premises in order to avoid or defeat the outstanding rent, the appeal lacked merit.</p> <p>[25]      On the other hand, the appellant’s own application under s 34(2) for the setting aside of the attachment order required to be proved on a balance of probabilities. Among other things, it had to prove that the rent was not outstanding. The onus of proof lay on it. It was a question of fact. But despite filing two affidavits, at no stage did the appellant show in any way that its rent was or had been paid up. As a matter of fact, the respondent had gone on to issue summons and obtain summary judgment for the outstanding rentals. Therefore, the appellant’s application for the setting aside of the attachment order, and its appeal to this court, were ill-conceived. We dismissed the appeal with costs</p> <p> </p> <p>2 June 2021</p> <p>Musithu J:                   I agree             __________________________</p> <p> </p> <p>                                    Date                __________________________</p> <p><em>Chakanyuka &amp; Associates,</em> appellant’s legal practitioners</p> <p><em>Manase &amp; Manase</em>, respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/268/2021-zwhhc-268.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=72332">2021-zwhhc-268.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/268/2021-zwhhc-268.pdf" type="application/pdf; length=585666">2021-zwhhc-268.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/l">L</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/landlord-and-tenant">LANDLORD AND TENANT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/eviction-proceedings">Eviction proceedings</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/tenant">Tenant</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rescission-judgment">Rescission of judgment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-rescission-judgment">application for rescission of judgment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/principles-rescission-judgment">principles (Rescission of judgment)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1931/18">Magistrates Court Act [Chapter 7:10]</a></div></div></div> Wed, 09 Jun 2021 18:26:05 +0000 Sandra 10037 at https://old.zimlii.org Rama v Minister of Local Government, Public Works and National Housing & Anor (HH 687-20, HC 9163/18) [2020] ZWHHC 687 (30 October 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/687 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>CHHAGANBHAI VITHAL RAMA</p> <p>versus</p> <p>MINISTER OF LOCAL GOVERNMENT, PUBLIC</p> <p>WORKS AND NATIONAL HOUSING</p> <p>and</p> <p>GLORY BOOST INVESTMENTS</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>HARARE</p> <p>MUSHORE J, 30thOctober 2020</p> <p> </p> <p><strong>Opposed Motion-Review –<em>Declaratur</em></strong></p> <p><em>T C Tinarwo, </em>for the applicant</p> <p><em>B Moyo, </em>for the 1strespondent</p> <p><em>T C Masawi, </em>for the 2ndrespondent</p> <p> </p> <p> </p> <p>            MUSHORE J:  The applicant is suing the respondents for an order declaring the validity of 60 year old leasehold, which he submits was ceded to him on the 10thMarch 200, after his company United Designs of Zimbabwe successfully bid in a sale of execution of ELAINE (Pvt) Ltd conducted by the Messenger of Court, (Karoi District). The applicant produced a supporting document illustrating the date that the lease to ELAINE (Pvt) (Ltd) (Lease Agreement No. L2089 STAND NO 554 (Old 547) commenced that being the 1st October 1994; and that the 60 year lease was set to expire on the 30thSeptember 2054.  Applicant states that he thereafter developed the property, and that having done so, he wrote a letter to the first respondent on the 16thJune 2004, requesting a lease with option to purchase, so that at some future stage he would then be able to take title in the property. Applicant submits that the first respondent did not reply to/ or accept that offer. Nevertheless the applicant continued to conduct his activities on the property. Applicant stated that he somewhat surprised to receive a letter  from the first  respondent, sometime in 2009, in which letter the first respondent communicated to him its intention to cancel the leasehold on the grounds that the applicant had neglected and abandoned the property. Apparently the first respondent had done a site visit and made the observations that nothing was happening on the farm. Applicant wrote back to the applicant on the 30thNovember 2009 with a list of its developments to illustrate that he had developed the land.  In the final paragraph of his letter (which is filed of record) the applicant wrote:-</p> <p>“We would like to appeal to you to reconsider your decisionwhich would enable us to continue the project”.</p> <p>In January 2001 (two years later) the applicant wrote to the 1strespondent as a follow up request to its letter of November 2009.</p> <p>On the 30thAugust 2016, applicant received another letter from the first respondent, in which letter the 1strespondent informed the applicant that the property was now under the ownership of the 2ndrespondent. The applicant was required to vacate the property within 3 months of the30th August 2016 which would have been by November 2016. A copy of the formal written agreement between the first and second respondent, which was date stamped 6thJune 2017 is also in the record.</p> <p>Applicant has submitted that the Notice of Termination of November 2009 was defective and that the subsequent sale of the lease to the second respondent by the first respondent was and is unlawful.  Applicant attributes the defectiveness of the notice and the unlawfulness of the sale agreement to second respondent being due to “underhand dealings” without elaboration as to what he means. In any event it is on the basis of the defectiveness and unlawfulness that the applicant believes entitles him to an order declaring:- </p> <ol> <li>the lease agreement between himself and the first  respondent valid;</li> <li>the lease agreement between the first  and second respondent terminated; and</li> <li>the sale agreement between first  and second respondent null and void</li> <li>costs on a higher scale. </li> </ol> <p>The application was strenuously opposed. The first respondent averred that its decision to terminate the lease agreement with the applicant was because of the applicant’s neglect and abandonment of the farm which first  respondent allegedly observed during a site visit to the farm; which then prompted it to immediately terminating the lease agreement due to applicant’s underutilization of the land. The first respondent denied receiving the letters which the applicant states he wrote to the Ministry. The second respondent averred that the applicant was misleading the court and had not substantiated his allegations with any facts showing that the second  respondent unlawfully entered into an agreement with the first respondent. In fact the first  respondent insists that it lawfully purchased the property in a commercial transaction and received no unlawful benefit from the first respondent. The second respondent strenuously denied having received any form of preferential treatment from the first respondent and equally vehemently denied that it had had underhanded dealings with the first respondent.  The second respondent also denied that its purchase of the lease agreement was a “sanitisation’ process and 2ndrespondent produced its lease agreement with the first  respondent which confirms that second respondent  is paying rental in the amount of US$22,000-00  for the immoveable property. The second respondent submitted that it had genuinely purchased the property in question and that it cannot be blamed for lawfully acquiring the farm.</p> <p>The applicant’s claim to be awarded costs on a higher scale was strenuously challenged.  The second respondent took a point <em>in limine</em>that the applicant’s claim which arose upon cancellation of the lease agreement, had prescribed.  </p> <p>This court is thus seized with an application to review the validity of the November 2009 termination of the lease agreement between the applicant and the first respondent before it can grant the applicant a <em>declaratur</em>based upon the applicant’s purported rights in terms of s 14 of the High Court Act which provides:-</p> <p><strong>            14 High Court may determine future or contingent rights</strong></p> <p>The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination. </p> <p> </p> <p>However for the court to arrive as a finding in the applicant’s favour, it has to review the decision complained of. That decision was made in 2009. The present application was filed in October 2018.  The rules of thie Court demand that a review applicant shall be instituted with a period of eight weeks from which the decision complained of is made.</p> <p>            If the eight weeks is not met, then the party is required to seek the courts indulgence by showing proper cause for the court to review the decision out of time.</p> <p> </p> <p><strong>ORDER 33</strong></p> <p>“REVIEWS</p> <p><strong><em>256. Review proceedings by notice of motion</em></strong></p> <p>Save where any law otherwise provides, any proceedings to bring under review the decision or proceedings of any inferior court or of any tribunal, board or officer performing judicial, quasi-judicial or administrative functions, shall be by way of court application directed and delivered by the party seeking to review such decision or proceedings to the magistrate, presiding officer or chairman of the court, tribunal or board or to the officer, as the case may be, and to all other parties affected.</p> <p> </p> <p><strong><em>259. Time within which proceedings to be instituted</em></strong></p> <p>Any proceedings by way of review shall be instituted within eight weeks of the termination of the suit, action or proceeding in which the irregularity or illegality complained of is alleged to have occurred</p> <p>Provided that the court may for good cause shown extend the time.</p> <p> </p> <p>The present application for this court to review a decision made by the first respondent is out of time by some 9 years. Applicant ought to have asked for the time to be extended by showing proper cause according to the proviso in r 259 <em>{supra</em>}.</p> <p>The applicant has not filed an application for condonation with this court; thus the court is and is thus not able to examine whether there was good cause for the delay in making the present application. The applicant’s failure to apply for condonation has deprived the applicant of a right of audience with the court. </p> <p>Added to this, the applicant has not explained why he did not carry out his intention to appeal against the 1strespondents’ decision, in his November 2009 letter to the 1strespondent. </p> <p>In any event, the applicant’s papers are not in order. Rule 257 makes it a requirement that the application be in the form of an application for a review as follows:</p> <p><strong><em>257. Contents of notice of motion</em></strong></p> <p>The court application shall state shortly and clearly the grounds upon which the applicant seeks to have the proceedings set aside or corrected and the exact relief prayed for.</p> <p> </p> <p>Such a lack of compliance also removes the applicant’s right of audience with the court</p> <p>Even if audience with the court was possible, the rights which the applicant wants declared in his favour do not exist. Applicant does not deny that he no longer has a lease agreement with the first respondent. Therefore the applicant’s claim of rights in terms of section 14 of the High Court are non-existent. The fact of the matter is that it is the second respondent who owns the rights in the property; it being the lawful leaseholder to the immoveable property. </p> <p>The net effect of the sum of all of the inadequacies of the applicant’s case coupled with the applicant’s inattentiveness to the rules of court and the lack of substance in his claim lead me to conclude that the court is not in a position to proceed with the matter. Accordingly I granted the following order:</p> <p> </p> <p>            <em>“The application is dismissed with costs.”</em></p> <p> </p> <p><em>Zimudzi and Associates, </em>applicant’s legal practitioners</p> <p><em>Civil Division of the Attorney General’s Office, </em>1strespondent’s legal practitioners</p> <p><em>Masawi and Partners, </em>2ndrespondent’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/687/2020-zwhhc-687.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=23338">2020-zwhhc-687.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/687/2020-zwhhc-687.pdf" type="application/pdf; length=136368">2020-zwhhc-687.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/l">L</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/landlord-and-tenant">LANDLORD AND TENANT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/lease">Lease</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/tenant">Tenant</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/declaratory-order">Declaratory order</a></li></ul></span> Tue, 24 Nov 2020 09:19:53 +0000 Sandra 9944 at https://old.zimlii.org Zawe & 6 Ors v City of Harare & 2 Ors (HH 706-20, HC 5192/18) [2020] ZWHHC 706 (11 November 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/706 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>SOLOMON ZAWE<br /> and<br /> JUNIAS MUTARAMUSWA<br /> and<br /> MAHOHOMA MAMUTSE<br /> and<br /> FARAI SHONIWA<br /> and<br /> MORGAN MUNDANDA<br /> and<br /> JOSEPH MATYORAI<br /> and<br /> SIMBARASHE MUFI<br /> versus<br /> THE CITY OF HARARE<br /> and<br /> ZIM-JAPAN MOTOR SPARES (PVT) LTD and<br /> GATEWAY INVESTMENTS</p> <p>HIGH COURT OF ZIMBABWE<br /> MUSHORE J<br /> HARARE, 18 October 2019 &amp; 11 November 2020</p> <p>Court Application</p> <p>Ms Tongoona, for the applicants<br /> R Zinhema., for the 1st respondent<br /> F Nyangaru, for the 2nd respondent No appearance, for the 3rd respondent</p> <p>MUSHORE J: All seven applicants are currently in occupation of a certain property described as 17476 Workington, Harare as subtenants of the 3rd Respondent. The first applicant states that he had been subleasing the property for 22 years and was paying rentals in the amount of US$280.00 per month and had made improvements to the property over the years. The other six applicants were sub-leasing sections of the same property. This application has been filed by the tenants who face being evicted from the property by the first respondent (City of Harare)</p> <p>1 HH 706-20 HC 5192/18</p> <p>2 HH 706-20 HC 5192/18</p> <p>because the 2nd respondent requires to take occupation of the property. The applicants believe that the second respondent has no right to such occupation arising from their sub tenancy agreements with the 3rd respondent, and that through those sub-tenancy agreements their occupation on the property is lawful. The applicants also believe that the first respondent leased the property to the second respondent unprocedurally, and in so stating they submit that because section 152 (2) of the Urban Councils Act [Chapter 29:15] provides that in the event that the first respondent wishes to lease out a stand, it is a requirement that the first respondent should first advertise its intention to do so, by way of a publication in the newspaper. The applicants’ state that had the first respondent published its intention, then that would have allowed the applicants as interested parties to make their representations to remain on the property. The applicants also submitted that they did their researches into how the second respondent was awarded a tenancy and that they found no public record to show that such procedures had been followed by the first respondent. The applicants are of the opinion that because of that award process being flawed, they have a legitimate expectation to be afforded the opportunity to rent the premises directly from the first respondent. In the light of their submissions the order being sought by the applicants in the present application as it appears in their draft order is as follows:-</p> <ol> <li> (1)  That the lease agreement between the first and second respondents be declared voidab initio; and </li> <li> (2)  That the court should give an order compelling the first respondent to advertise its intention to lease the property out and invite expressions of interest. </li> </ol> <p>The first respondent filed a notice of opposition defending their actions in wanting to evict the applicants from the stand. In his answering affidavit, the first applicant took a procedural pointin limine the effect of which was to invite the court to deal with the matter on an uncontested basis in accordance with O32 r236(1) which states the following: -</p> <p>Order 32 r 236 (1) provides as follows: -</p> <p>“236. Set down of applications<br /> (1) Where the respondent is barred in terms of sub rule (3) of rule 233, the applicant may, without</p> <p>notice to him, set the matter down for hearing in terms of rule 223”</p> <p>Order 32 r 223 provides the action which the steps which the applicant may make in setting the matter down for hearing: -</p> <p>“223. Set down of other matters on notice</p> <p>(1) Subject to sub rule (5)—<br /> (a) uncontested cases for provisional sentence; and</p> <p>(b) summonses for civil imprisonment; and<br /> (c) uncontested actions for restitution of conjugal rights, divorce, judicial separation or nullity of marriage; and<br /> (d) cases set down for judgment in terms of subrule (2) of rule 58 or subrule (1) of rule 59;<br /> (e) applications in which a notice of opposition and opposing affidavit have not been filed;</p> <p>may be set down for hearing—<br /> (i) in Harare, on any Wednesday, by filing a notice of set-down with the registrar not later than the Thursday preceding the Wednesday of set down;<br /> (ii) in Bulawayo, on any Friday, by filing a notice of set-down with the registrar not later than the Tuesday preceding the Friday of set down.”</p> <p>Whilst the rule clearly provides a party to an action in such instances to proceed to cause it to be enrolled for a hearing on an unopposed basis; it is apparent from a perusal of the record; that the applicants abandoned that option, and instead filed an answering affidavit in which the applicant went at length to deal with and to reply to each and every averment made by the first respondent in his affidavit. It is therefore necessary for the court to deal with all the issues contained in the respective affidavits, especially bearing in mind that the contentious issues found in both the first respondent’s opposing affidavit and the applicant’s answering affidavit have been debated by the parties in their respective heads of argument. Accordingly, my decision will restupon all of the pleadings on record.</p> <p>The first respondent contends that it never leased the property to the second respondent but “granted the second respondent authority to use the property” in terms of the Urban Councils Act and that such authority to use property is an entirely different type of an agreement distinguishable from a lease agreement.</p> <p>The second respondent confirms that it was granted a temporary authority to use the property by the first respondent and that its intended occupation of the property is lawful. The second respondent agrees with the first respondent that there was no need for the first respondent to publish a notice of intention to lease; because the arrangement which it entered into with the first respondent falls within the exception found within the Act, which dispenses with the need for the first respondent to have advertised its intent.</p> <p>The first and second respondents aver that the applicants cannot be granted their order because the applicants are illegally occupying the property due to the fact that the lease agreement between the first respondent and the third respondent specifically prohibited the third respondent</p> <p>3 HH 706-20 HC 5192/18</p> <p>4 HH 706-20 HC 5192/18</p> <p>from sub-leasing the property. The first and second respondent also aver that because of the third respondent having materially breached the contract; then the third respondent or his assigns are prohibited from remaining in occupation of the property.</p> <p>The issues which I am to tackle in this matter are thus:-</p> <ol> <li> (a)  Whether or not the applicants have a legitimate interest in the property; </li> <li> (b)  Whether or not the terms of the lease agreement legally justifies the second respondent's <p> claim to future occupation, and </p></li> <li> (c)  Whether or not the applicants are entitled to a mandamus to compel the first respondent <p> to advertise its intention to lease out the property; and </p></li> <li> (d)  The issue of costs. </li> </ol> <p>Do the applicants have a legitimate interest in the property?<br /> A litigant must establish a legitimate interest in a right as a precursor to being granted such</p> <p>a right by way of a declaration.<br /> In Adbro Investments Co Ltd v Zimbabwe Broadcasting Corporation 1995 (4) SA 675 (ZS)</p> <p>at page 680A-B, a legitimate interest is described aptly as being: -</p> <p>“Some tangible and justifiable advantage in relation to the applicant’s position with reference to an existing, future or contingent legal right or obligation must appear to flow from the grant of the declaratory order sought.”</p> <p>Section 14 of the High Court Act [Chapter 7:06] provides that a determination for declaratory relief must be motivated by an interested party when it states: -</p> <p>“14 High Court may determine future or contingent rights<br /> The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”</p> <p>The applicants are not challenging the fact that their landlord breached the contract. They simply express dismay that the money they were paying to the third respondent as rentals did not make its way to the first respondent. The second respondent stated in paragraph 9 of his opposing affidavit (Record, page 41) that the third respondent had neglected or refused to pay the money due and owing to the first respondent in the amount of US39 598.23. The first applicants reply to this fact was to try and gloss over it by stating:-</p> <p>“This is irrelevant to the nature of the application before the court. The application is not about proving that, I clearly stated that.”</p> <p>5 HH 706-20 HC 5192/18</p> <p>The first applicant is wrong in stating that the rental arrears issue is irrelevant to the application where in fact and law it is most important to the applicants demonstrating that they have a tangible and justifiable advantage to a legal right. The applicants’ failure to address the breach of contract by the third respondent; or to at least prove that there was no such breach is fatal to the applicants’ claim of right upon which such rights can be declared by the court. The third respondent who it is alleged breached the lease agreement with the first respondent has remained silent. Thus the basis of their legitimate interest if it is founded on the payment of rentals or improvements by them of the property is unfounded.</p> <p>In the circumstances of the applicants’ lack of claim of a legal interest, it is my view that the application for part one of the draft order is without merit.<br /> Whether or not the second respondents intended occupation of the property is lawful.</p> <p>The applicants are alleging that the procedures required for the first respondent to have leased out the property to the second respondent were not followed and therefore the intended lease is not lawful.</p> <p>Second respondent refuted the allegation that he entered into a lease agreement with the first respondent and submits that it was granted a temporary permit to lease the property by the first respondent and that because the temporary lease was to be for six months, then the lease falls within the exception to the requirement that the advertising procedures be adopted in terms of section 152 of the Urban Councils Act. As proof that the second respondent’s submission, it attached a letter addressed to it by the first respondent dated 17th March 2018 to its papers and the letter clearly affirms the second respondent’s submission. In that letter the first respondent wrote:-</p> <p>“Dear Sir/madam<br /> RE TEMPORARY AUTHORITY TO LEASE STAND 17476 HARARE TOWNSHIP TO ZIM- JAPAN MOTOR SPARES (PVT) LTD.<br /> Reference is made to your application regarding the above premises.<br /> Please be advised that I am offering your company ZIM-JAPAN MOTOR SPARES (PVT) LTD temporary authority to occupy and use stand 17476 Harare Township measuring 1700m2 for car sales and ancillary uses only for an initial period of six (six) months. Thereafter the authority shall continue on a month to month basis. Council will consider granting you a formal lease subject to satisfactory performance in discharging your obligations in terms of the authority. This authority will be subject to the following conditions: -<br /> 1. This authority which does not constitute a Lease Agreement and shall be deemed to be valid</p> <p>from the 1st May 2018. 2. ...</p> <p>3. ....</p> <p>6 HH 706-20 HC 5192/18</p> <p>4. This is not a lease agreement and should not be considered as such but a temporary authority to use and occupy the above premises and any change in tenancy (i.e. the granting of a formal lease) shall be subject to approval by Council<br /> (Signed by all parties)”</p> <p>It is true that section 152 (1) provides that certain procedures be followed by the first respondent when leasing a stand etc. Section 152 states as follows: -</p> <p>“152 Alienation of council land and reservation of land for State purposes<br /> (1) Subject to any rights which have been acquired by a miner of a registered mining location in terms of section 178 of the Mines and Minerals Act [Chapter 21:05], a council may, subject to section one hundred and fifty-three, sell, exchange, lease, donate or otherwise dispose of or permit the use of any land owned by the council after compliance has been made with this section.<br /> (2) Before selling, exchanging, leasing, donating or otherwise disposing of or permitting the use of any land owned by it the council shall, by notice published in two issues of a newspaper and posted at the office of the council, give notice—</p> <p>(a) of its intention to do so, describing the land concerned and stating the object, terms and conditions of the proposed sale, exchange, lease, donation, disposition or grant of permission of use; and<br /> (b) that a copy of the proposal is open for inspection during office hours at the office of the council for a period of twenty-one days from the date of the last publication of the notice in a newspaper; and</p> <p>(c) that any person who objects to the proposal may lodge his objection with the town clerk</p> <p>within the period of twenty-one days referred to in paragraph (b).<br /> (3) The council shall submit a copy of the notice referred to in subsection (2) to the Minister not later than the date of the first publication of that notice in a newspaper.<br /> (4) A council may not, subject to section one hundred and fifty-three, sell, exchange, lease, donate or otherwise dispose of or permit the use of any land owned by the council which lies within an area for which—</p> <p>(a) there is no approved town planning scheme, unless—<br /> (i) a copy of the proposal and of the notice published in terms of subsection (2), together with any objections which have been lodged and the comments of the council on such objections, have been transmitted to the Minister; and<br /> (ii) the Minister has consented to the sale, exchange, lease, donation or other disposition or permission to use, as the case may b :</p> <p>Provided that the Minister shall not consent unless he is satisfied that an adequate area of land, suitable for the purpose, has, where necessary, been reserved for State purposes or for postal and telecommunication services;</p> <p>or<br /> (b) there is an approved town planning scheme, unless—</p> <p>(i) the period of twenty-one days referred to in subsection (2) has expired; and (ii) if any objections have been lodged they have been considered by the council.”</p> <p>However, it is equally true that the first respondent was exempted from following the strict procedures which are outlined in section 152 due to the brevity of the arrangement which falls under s 153 as follows: -</p> <p>“153 Exclusion of certain leases from section 152</p> <p>7 HH 706-20 HC 5192/18</p> <p>(1) Subject to subsection (2), a council may lease or permit the use of any land owned by it for a period garage referred not exceeding twelve months without compliance with section one hundred and fifty-two”</p> <p>It is my view that the proviso avails the first respondent with a choice to not strictly adhere to the procedures adverted to by the applicant; and thereby excludes the possibility of the second paragraph of the draft order being granted in the applicants’ favour.</p> <p>The third part of the prayer as it appears in applicants’ draft order is for costs. In this case the applicants are seeking an order for costs in the event that the respondents oppose the matter. This unacceptable but unfortunately popular request for an award of costs to be awarded to the one party IF the other party opposes the matter is unfair play; because a party wishing to defend themselves (rightly or wrongly) would be inclined to desist from defending a case because such language sounds threatening. Parties should be discouraged from making such ominous overtures because such behaviour can potentially put a litigant off exercising their constitutional rights to a fair hearing in defiance of the rules of natural justice. The purpose behind approaching the court involves a request for an adjudicated outcome. It is not appropriate for one litigant to attempt to intimidate the opposing side from pleading their case to determine whether or not the other party deserves to fight his or her cause. That latter decision is obviously reserved for the adjudicator. Litigants are required by adjudicators not to be so presumptuous about where the merits of their cases lie from one point of view. In actuality it could very well turn out that the party making such a request never had a good case on the merits in the first place; and as matters stand the present matter falls within that category of cases.</p> <p>Accordingly the application must fail.<br /> In the result I order as follows:<br /> “The application is dismissed with costs.”</p> <p>Mapondera&amp; Company, applicants’ legal practitionersGambe Law Group, 1st respondent’s legal practitionersNyangani Law Chambers, 2nd respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/706/2020-zwhhc-706.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=28166">2020-zwhhc-706.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/706/2020-zwhhc-706.pdf" type="application/pdf; length=152509">2020-zwhhc-706.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/administrative-law">ADMINISTRATIVE LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/audi-alteram-partem-rule">Audi alteram partem rule</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/natural-justice">Natural justice</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/observance-rules">observance of rules of</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rules">rules of</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/l">L</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/landlord-and-tenant">LANDLORD AND TENANT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/eviction-proceedings">Eviction proceedings</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/lease">Lease</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/tenant">Tenant</a></li></ul></span> Mon, 23 Nov 2020 09:39:21 +0000 Sandra 9932 at https://old.zimlii.org Matabeleland Haulers (Pvt) Ltd v Lepar & Anor (HB 249-20, HC 675/19) [2020] ZBHC 249 (05 November 2020); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2020/249-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>MATABELELAND HAULIERS (PVT) LTD</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>JOSHUA REUVAYN LEPAR</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>SHERIFF OF ZIMBABWE N.O</strong></p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAKONESE J</p> <p>BULAWAYO 19 OCTOBER AND 5 NOVEMBER 2020</p> <p> </p> <p><strong>Opposed Application</strong></p> <p><em> Advocate S Siziba,</em>for the applicant</p> <p><em>Advocate L Nkomo,</em>for the 1strespondent</p> <p> </p> <p> </p> <p><strong>MAKONESE J</strong>:         This is an application seeking to interdict the respondents from evicting the applicant from a property sold at a sale in execution.  The applicant further seeks an order setting aside the transfer of the property sold in execution without setting aside the sale in execution itself.  The order sought by the applicant is in the following terms:</p> <p>“IT IS ORDERED THAT</p> <p>1.         The 1strespondent be and is hereby interdicted from evicting the applicant or those claiming through it from stand 11, Bulawayo Light Industrial Site of Bulawayo Township Lands, Bulawayo pending the finalization.</p> <p>2.         The transfer of Stand 11, Bulawayo Light Industrial Site of Bulawayo Township under Deed of Transfer 2290/2018 by the 2ndrespondent to the applicant be and is hereby set aside and reverted into the name of the applicant.</p> <p>3.       1strespondent  to  bear all the legal costs.”</p> <p><strong>FACTUAL BACKGROUND</strong></p> <p>            Under Harare High Court case number HC 3464/13 African Banking Corporation of Zimbabwe ( Banc ABC ) sued the applicant for the sum of US$152 140 together with interest at the rate of 33% per annum and costs of cost.  The court entered judgment against Dawood Services (Pvt) Ltd, jointly and severally with Matabeleland Haulers (Pvt) Ltd, David Bruno Phiri and Rose Shingirai Luwo.  The judgment was granted on 20thAugust 2014.  The operative part of the judgment was in the following terms:</p> <p>            “1.       The plaintiff’s claim succeeds.</p> <p> 2.        Stand 11 Bulawayo Light Industrial Site, Bulawayo Township Lands situate in the district of Bulawayo measuring 1487 square metres in extent held by the 2nddefendant under Deed of Transfer 492/97 dated 26thFebruary 1997 shall be executable.</p> <p>3.         The first, second, third and fourth defendants jointly and severally, the one paying the others to be absolved, shall pay to the plaintiff the sum of US$152 140 together with interest thereon at the rate of 33 % per annum from 29 March 2013 to date of payment.</p> <p>4.         The defendants shall pay costs of suit on the legal practitioner and client scale.”</p> <p>Pursuant to the order of this court, the property that was declared executable in terms of the order was attached and sold in execution by 2ndrespondent. The property was duly advertised in terms of the law and Arenel (Pvt) Ltd, trading as Arenel Quality Sweets purchased the property at an auction.  The auction was conducted on 29thJuly 2016 and Arenel was declared the highest bidder.   By  letter dated 5thAugust 2016, 2ndrespondent declared Arenel as the purchaser of the property and invited all interested parties with objections to the confirmation of the sale, to raise such objections within 15 days.  The applicant and its co-judgement debtors in case number HC 3464/13 raised objections to the confirmation of the sale. 2ndrespondent convened a hearing to inquire into the objections on 30thSeptember 2016. In a ruling dated 6thOctober 2016, 2ndrespondent dismissed the objections and confirmed the sale. Arenel purchased the property for US$73 000. It is noteworthy that in objections raised by Dawood Services (Pvt) Ltd the following issues were raised;</p> <p>(a)        BancABC is owed US$152 140 in terms of HC 3464/2013 which figure is being challenged at the High Court in case number HC 9928/16.</p> <p>(b)       The property was sold for an unreasonably low price of US$73 000.</p> <p>In his report, 2ndrespondent indicated that according to a valuation made by the Sheriff’s appointed Real Estate agents the forced sale value was placed at US$60 000, and the open market value was pegged at US$ 100 000.  The property was sold for US$73 000.  A valuation report presented by the objector pegged the open market value of the property at US$140 000 and the sale value at US$91 000.  2ndrespondent concluded that inspite of the valuations presented by the objectors, the price of US$73 000 is not unreasonably low.  Having failed to overturn the sale on the grounds that the price was an unreasonably low, applicant filed an application with the High Court at Bulawayo under case number HC 2657/16 seeking to have the 2ndrespondent’s decision to confirm the sale set aside.  The application was made in terms of Order 40 Rule 359 (8) of the High Court Civil Rules.   This was the second attempt to set aside the sale.  This court dismissed the application with costs.  The applicants had in that matter failed to file their Heads of Argument timeously.</p> <p>The applicants were undeterred. A third attempt was made by the applicants to set aside the sale. On 2ndNovember 2016 the applicants launched another application at the High Court Bulawayo under case number HC 2746/16 in terms of Rule 359 (8) of the Rules, seeking the same relief as the one sought in case number HC 265/16.  This application was dismissed with costs <em>per </em>MOYO Jon the 19thJuly 2017.  The applicants remained resolute.  A fourth attempt was made to pursue their bid to have the sale set aside.  Under case number HC 1966/18 applicants applied for rescission of judgment.  The application was opposed by the Judgment Creditor and applicants withdrew their application on 11thFebruary 2020.  This application before me now is the applicant’s fifth attempt to frustrate the sale in execution by seeking to interdict 1strespondent from taking occupation and having the Title Deed cancelled.</p> <p>There can be no doubt that the activities and conduct of the applicant amounts to gross abuse of court process.  The application is <em>mala fide </em>and designed to mislead the court.  Having failed to have the sale set aside way back in September 2016, the applicant filed a number of applications in this court with the aim setting aside a lawful sale in execution.  The pleaded cause of action in the present application is that the 2ndrespondent conducted a fraudulent sale in execution.  The applicant avers as follows in paragraph 5 of the Founding Affidavit:</p> <p>“</p> <p>5.1       The Title Deeds are fraudulent because they lie in that 1strespondent bought the property through 2ndrespondent.  It was in fact Arenel (Pvt) Ltd.  For this reason the Title Deeds must be canceled and revised.</p> <p>5.2       The 2ndrespondent is aware of a case including the estate agents fraud case reported to both the police and the Judicial Service Commission as set out in Annexure “G” hereto which is still pending.”</p> <p>What the applicant omits to mention in the entire application are the previous bids to have the sale set aside on the grounds that the sale price was unreasonably low. The applicant did not disclose a material fact deliberately.  The applicant does not disclose the fact that pursuant to the sale, Arenel had decided to transfer the property to a nominee, 1strespondent.  I am not aware of any rule that forbids a purchaser of a property at a sale, who is declared the highest bidder, to have such property transferred to a nominee of their choice.  In my view, the highest bidder is entitled at law to transfer the property to themselves or to a nominee.</p> <p><strong>APPLICATION BEFORE THE COURT</strong></p> <p>            In this application the applicant seeks an order interdicting 1strespondent from evicting it from the property and an order declaring the transfer of the property into 1strespondent’s name to be null and void. The applicant’s cause of action is  that  transfer of the property was done fraudulently in a bid to circumvent litigation under case number HC 1966/18.  As a matter of fact, there is currently no pending litigation before the court in respect of this matter.  To be more precise, there is no longer any pending litigation seeking to challenge confirmation of the sale of the property by 2ndrespondent. Applicants make a bold allegation that the transfer was fraudulent in that it was meant to avoid payment of capital gains tax to ZIMRA (Zimbabwe Revenue Authority).  It is significant to note that applicant’s Founding Affidavit does not provide any detailed particulars of the alleged fraudulent conduct by the respondents.  It is trite that a party wishing to rely on fraud must not only plead it but must also prove it clearly and distinctly. Rule 104 of the High Court Rules provides as follows:</p> <p>“The defendant or plaintiff, as the case may be, shall raise by his pleading all matters which show the action or claim in reconvention not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence or reply, as the case may be, as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as, for instance, fraud, prescription, release, payment, performance or facts showing illegality either by statute or common law.” </p> <p>The applicant’s Founding Affidavit is silent on how the respondents allegedly committed the fraud. Applicant claims that respondents defrauded ZIMRA.  If that is so, the applicants have no <em>locus standi</em>to complain on behalf of ZIMRA.  In any event no explanation is forthcoming from the applicant as to why the Judgment Creditor, (Banc ABC), Arenel (Pvt) Ltd and the Registrar of Deeds who are all interested parties have not been cited in this matter.  Applicant was lawfully divested of ownership of the property through a judicial sale.  The sale was duly confirmed by the Sheriff.  It is clear that applicant has absolutely no legal basis for seeking to interdict 1strespondent from evicting it from the property neither does it have a defence to the counter-claim for eviction.</p> <p>In <em>Alspite Investments (Pvt) Ltd v Westerhoff</em>  2009 (2) ZLR 226 (H) at page 237 C-D, MAKARAU JP(as she then was)  had this to say:</p> <p><em>“There are no equities in the application for rei vindicatio. Thus, in applying the principle, the court may not accept and grant pleas of mercy or for extension of possession of the property by the defendant against an order for the convenience or comfort of the possessor once it is accepted that the plaintiff is the owner of the property and does not consent to the defendant holding it.  It is a rule or principle of law that admits no discretion on the part of the court.  It is a legal principle heavily weighted in favour of property owners against the whole world and is used to ruthlessly protect ownership.”</em></p> <p>It is an acceptable principle of law in our jurisdiction that the courts are reluctant to set aside a sale where the sale has been confirmed and transfer has already been effected.  See: <em>Garati v Mudzingwa &amp; Ors</em>2008 (2) ZLR 89 (S) and <em>Mapedzamombe v Commercial Bank of</em><em>Zimbabwe and Another</em>1996 (1) ZlR 257 (S)</p> <p>In applying the principles laid down in these decisions of the Supreme Court, it is settled that before a sale is confirmed in terms the Rules, it is a conditional sale and any interested party may apply to court to have it set aside.  At that stage, even though the court has a wide   discretion to set aside the sale in certain circumstances, it will not readily do so. Once the sale has been confirmed by the Sheriff, the sale of the property is no longer conditional. That being so, a court is more reluctant to set aside a sale that has been confirmed. Where the property has been transferred to the purchaser, the court may not lightly cause a reversal or cancellation of the Title Deed.</p> <p>In a completely confusing and unprocedural manner, applicant sought to introduce a new cause of action in paragraph 15 of its Answering Affidavit filed on 4thAugust 202, years after the sale in execution.  The new cause of action is to the effect that Arenel did not pay the purchase price of US$73 000.  Not only is the fresh cause of action based on false and misleading claims, it is not permissible for an applicant to substitute a new casue of action through an Answering Affidavit.  This principle was set out in <em>Milrite Farming &amp; Ors v</em><em>Porusingazi &amp; Ors</em>HH 82-10, where it is stated:</p> <p><em>“The basic rule pertaining to application procedures is that the applicant’s case stands or falls on averments made in the Founding Affidavit and not upon subsequent pleadings.  The rationale for the rule is quite clear.  It is to avoid the undesirable effect of litigation assuming a snowballing character, with fresh allegations being made at every turn of pleadings.  Thus the fresh allegation contained in the Answering Affidavit must be ignored, leaving the same cause of action and substantially the same facts in both first and second applications.”</em></p> <p>The inescapable conclusion is that applicant is not only a dishonest litigant who deliberately seeks to mislead the court but also delights in abusing court process by instituting multiple applications on the same subject matter, seeking the same relief on the basis of ever changing causes of action.  In the case of <em>Parks and Wildlife</em><em>Management Authority v H. J Vorster and Anor</em>HB 64-20 I had this to say about such litigants at page 3 of the cyclostyled judgment:</p> <p>“<em>These courts cannot adjudicate upon the same matter over and over with different parties seeking essentially the same relief.”</em></p> <p>It is my view, that the applicant cannot be allowed to institute a multiplicity of actions all designed to set aside a sale in execution confirmed on 6thOctober 2016, some four years ago.  At first the sale in execution was challenged on the grounds that the highest bid resulted in an unreasonably low price.  An inquiry was conducted and it was held that the objection had no merit.  An application to review the Sheriff’s decision was launched in this court.  This attempt failed.  A similar application was launched.  The application was dismissed by this court.  An application for rescission of that judgment was filed and that again failed. This application is a last ditch attempt to attack the sale on a completely new cause of action.  An allegation of a fraudulent sale has suddenly emerged. There is absolutely no basis for the court to declare the transfer of the property null and void.</p> <p><strong>DISPOSITION</strong></p> <p>            All in all therefore, applicant has no legal basis to challenge the transfer of the property to a nominee of the purchaser.  In the relief sought, applicant seeks to have the transfer of the property by 2ndrespondent set aside, without having the sale itself set aside.  This is not competent, the Title Deed cannot be set aside or reversed, with the sale itself remaining in force.  In so far as the counter application is concerned, the rights of vindication have not been opposed at all.  The counter-application remains uncontested.  <em>Advocate Nkomo,</em>invited the court to grant an order in terms of the counter-application.  In response to that request <em>Advocate Siziba,</em>appearing for the applicant argued that the fate of the counter-application was consequent upon a finding on the main application.  My understanding of that response was that once it was determined that the application for an interdict could not succeed and that there was no basis for the cancellation of the Title Deed, there would be  no meaningful challenge to the counter-application.</p> <p>            In the result, and accordingly the following order is made:</p> <p>            1.         The application be and is hereby dismissed.</p> <p>            2.         The counter-application by 1strespondent be and is hereby granted.</p> <p>3.         Applicant and all those claiming ownership of the property at Stand 11, Bulawayo Light Industrial Site known as 9 Preston Street, Belmont, Bulawayo, held under Deed of Transfer No. 2290/2018, shall vacate the premises within 5 days of this order, failing which 2ndrespondent is authorized to forthwith evict applicants from the premises.</p> <p>4.         The applicants are to bear the costs of suit.</p> <p> </p> <p><em>Mathonsi – Ncube Law Chambers</em>, applicant’s legal practitioners</p> <p><em>Messrs Danziger &amp; Partners</em>, 1strespondent’s legal practitioners</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2020/249/2020-zbhc-249.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26456">2020-zbhc-249.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2020/249/2020-zbhc-249.pdf" type="application/pdf; length=172455">2020-zbhc-249.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interdict">INTERDICT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-interdict">Application (INTERDICT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/requirements-interdict">Requirements for interdict</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/l">L</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/landlord-and-tenant">LANDLORD AND TENANT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/eviction-proceedings">Eviction proceedings</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-practice-and-procedure">Application (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/cause-action-must-be-set-out-founding-affidavit">cause of action must be set out in founding affidavit</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/pleadings">Pleadings</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-proceedings-pleadings">application proceedings (Pleadings)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/extent-which-parties-are-bound-pleadings">extent to which parties are bound by pleadings</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/property-and-real-rights">PROPERTY AND REAL RIGHTS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/ownership-0">Ownership</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/actio-rei-vindication">actio rei vindication</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2010/82">Milrite Farming (Private) Limited v Porusingazi and Others (HC 985/10) [2010] ZWHHC 82 (12 May 2010);</a></div></div></div> Wed, 11 Nov 2020 07:46:37 +0000 Sandra 9903 at https://old.zimlii.org Matabeleland Haulers (Pvt) Ltd v Lepar & Anor (HB 249-20, HC 675/19) [2020] ZBHC 249 (05 November 2020); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2020/249 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>MATABELELAND HAULIERS (PVT) LTD</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>JOSHUA REUVAYN LEPAR</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>SHERIFF OF ZIMBABWE N.O</strong></p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAKONESE J</p> <p>BULAWAYO 19 OCTOBER AND 5 NOVEMBER 2020</p> <p> </p> <p><strong>Opposed Application</strong></p> <p><em> Advocate S Siziba,</em>for the applicant</p> <p><em>Advocate L Nkomo,</em>for the 1strespondent</p> <p> </p> <p> </p> <p><strong>MAKONESE J</strong>:         This is an application seeking to interdict the respondents from evicting the applicant from a property sold at a sale in execution.  The applicant further seeks an order setting aside the transfer of the property sold in execution without setting aside the sale in execution itself.  The order sought by the applicant is in the following terms:</p> <p>“IT IS ORDERED THAT</p> <p>1.         The 1strespondent be and is hereby interdicted from evicting the applicant or those claiming through it from stand 11, Bulawayo Light Industrial Site of Bulawayo Township Lands, Bulawayo pending the finalization.</p> <p>2.         The transfer of Stand 11, Bulawayo Light Industrial Site of Bulawayo Township under Deed of Transfer 2290/2018 by the 2ndrespondent to the applicant be and is hereby set aside and reverted into the name of the applicant.</p> <p>3.       1strespondent  to  bear all the legal costs.”</p> <p><strong>FACTUAL BACKGROUND</strong></p> <p>            Under Harare High Court case number HC 3464/13 African Banking Corporation of Zimbabwe ( Banc ABC ) sued the applicant for the sum of US$152 140 together with interest at the rate of 33% per annum and costs of cost.  The court entered judgment against Dawood Services (Pvt) Ltd, jointly and severally with Matabeleland Haulers (Pvt) Ltd, David Bruno Phiri and Rose Shingirai Luwo.  The judgment was granted on 20thAugust 2014.  The operative part of the judgment was in the following terms:</p> <p>            “1.       The plaintiff’s claim succeeds.</p> <p> 2.        Stand 11 Bulawayo Light Industrial Site, Bulawayo Township Lands situate in the district of Bulawayo measuring 1487 square metres in extent held by the 2nddefendant under Deed of Transfer 492/97 dated 26thFebruary 1997 shall be executable.</p> <p>3.         The first, second, third and fourth defendants jointly and severally, the one paying the others to be absolved, shall pay to the plaintiff the sum of US$152 140 together with interest thereon at the rate of 33 % per annum from 29 March 2013 to date of payment.</p> <p>4.         The defendants shall pay costs of suit on the legal practitioner and client scale.”</p> <p>Pursuant to the order of this court, the property that was declared executable in terms of the order was attached and sold in execution by 2ndrespondent. The property was duly advertised in terms of the law and Arenel (Pvt) Ltd, trading as Arenel Quality Sweets purchased the property at an auction.  The auction was conducted on 29thJuly 2016 and Arenel was declared the highest bidder.   By  letter dated 5thAugust 2016, 2ndrespondent declared Arenel as the purchaser of the property and invited all interested parties with objections to the confirmation of the sale, to raise such objections within 15 days.  The applicant and its co-judgement debtors in case number HC 3464/13 raised objections to the confirmation of the sale. 2ndrespondent convened a hearing to inquire into the objections on 30thSeptember 2016. In a ruling dated 6thOctober 2016, 2ndrespondent dismissed the objections and confirmed the sale. Arenel purchased the property for US$73 000. It is noteworthy that in objections raised by Dawood Services (Pvt) Ltd the following issues were raised;</p> <p>(a)        BancABC is owed US$152 140 in terms of HC 3464/2013 which figure is being challenged at the High Court in case number HC 9928/16.</p> <p>(b)       The property was sold for an unreasonably low price of US$73 000.</p> <p>In his report, 2ndrespondent indicated that according to a valuation made by the Sheriff’s appointed Real Estate agents the forced sale value was placed at US$60 000, and the open market value was pegged at US$ 100 000.  The property was sold for US$73 000.  A valuation report presented by the objector pegged the open market value of the property at US$140 000 and the sale value at US$91 000.  2ndrespondent concluded that inspite of the valuations presented by the objectors, the price of US$73 000 is not unreasonably low.  Having failed to overturn the sale on the grounds that the price was an unreasonably low, applicant filed an application with the High Court at Bulawayo under case number HC 2657/16 seeking to have the 2ndrespondent’s decision to confirm the sale set aside.  The application was made in terms of Order 40 Rule 359 (8) of the High Court Civil Rules.   This was the second attempt to set aside the sale.  This court dismissed the application with costs.  The applicants had in that matter failed to file their Heads of Argument timeously.</p> <p>The applicants were undeterred. A third attempt was made by the applicants to set aside the sale. On 2ndNovember 2016 the applicants launched another application at the High Court Bulawayo under case number HC 2746/16 in terms of Rule 359 (8) of the Rules, seeking the same relief as the one sought in case number HC 265/16.  This application was dismissed with costs <em>per </em>MOYO Jon the 19thJuly 2017.  The applicants remained resolute.  A fourth attempt was made to pursue their bid to have the sale set aside.  Under case number HC 1966/18 applicants applied for rescission of judgment.  The application was opposed by the Judgment Creditor and applicants withdrew their application on 11thFebruary 2020.  This application before me now is the applicant’s fifth attempt to frustrate the sale in execution by seeking to interdict 1strespondent from taking occupation and having the Title Deed cancelled.</p> <p>There can be no doubt that the activities and conduct of the applicant amounts to gross abuse of court process.  The application is <em>mala fide </em>and designed to mislead the court.  Having failed to have the sale set aside way back in September 2016, the applicant filed a number of applications in this court with the aim setting aside a lawful sale in execution.  The pleaded cause of action in the present application is that the 2ndrespondent conducted a fraudulent sale in execution.  The applicant avers as follows in paragraph 5 of the Founding Affidavit:</p> <p>“</p> <p>5.1       The Title Deeds are fraudulent because they lie in that 1strespondent bought the property through 2ndrespondent.  It was in fact Arenel (Pvt) Ltd.  For this reason the Title Deeds must be canceled and revised.</p> <p>5.2       The 2ndrespondent is aware of a case including the estate agents fraud case reported to both the police and the Judicial Service Commission as set out in Annexure “G” hereto which is still pending.”</p> <p>What the applicant omits to mention in the entire application are the previous bids to have the sale set aside on the grounds that the sale price was unreasonably low. The applicant did not disclose a material fact deliberately.  The applicant does not disclose the fact that pursuant to the sale, Arenel had decided to transfer the property to a nominee, 1strespondent.  I am not aware of any rule that forbids a purchaser of a property at a sale, who is declared the highest bidder, to have such property transferred to a nominee of their choice.  In my view, the highest bidder is entitled at law to transfer the property to themselves or to a nominee.</p> <p><strong>APPLICATION BEFORE THE COURT</strong></p> <p>            In this application the applicant seeks an order interdicting 1strespondent from evicting it from the property and an order declaring the transfer of the property into 1strespondent’s name to be null and void. The applicant’s cause of action is  that  transfer of the property was done fraudulently in a bid to circumvent litigation under case number HC 1966/18.  As a matter of fact, there is currently no pending litigation before the court in respect of this matter.  To be more precise, there is no longer any pending litigation seeking to challenge confirmation of the sale of the property by 2ndrespondent. Applicants make a bold allegation that the transfer was fraudulent in that it was meant to avoid payment of capital gains tax to ZIMRA (Zimbabwe Revenue Authority).  It is significant to note that applicant’s Founding Affidavit does not provide any detailed particulars of the alleged fraudulent conduct by the respondents.  It is trite that a party wishing to rely on fraud must not only plead it but must also prove it clearly and distinctly. Rule 104 of the High Court Rules provides as follows:</p> <p>“The defendant or plaintiff, as the case may be, shall raise by his pleading all matters which show the action or claim in reconvention not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence or reply, as the case may be, as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as, for instance, fraud, prescription, release, payment, performance or facts showing illegality either by statute or common law.” </p> <p>The applicant’s Founding Affidavit is silent on how the respondents allegedly committed the fraud. Applicant claims that respondents defrauded ZIMRA.  If that is so, the applicants have no <em>locus standi</em>to complain on behalf of ZIMRA.  In any event no explanation is forthcoming from the applicant as to why the Judgment Creditor, (Banc ABC), Arenel (Pvt) Ltd and the Registrar of Deeds who are all interested parties have not been cited in this matter.  Applicant was lawfully divested of ownership of the property through a judicial sale.  The sale was duly confirmed by the Sheriff.  It is clear that applicant has absolutely no legal basis for seeking to interdict 1strespondent from evicting it from the property neither does it have a defence to the counter-claim for eviction.</p> <p>In <em>Alspite Investments (Pvt) Ltd v Westerhoff</em>  2009 (2) ZLR 226 (H) at page 237 C-D, MAKARAU JP(as she then was)  had this to say:</p> <p><em>“There are no equities in the application for rei vindicatio. Thus, in applying the principle, the court may not accept and grant pleas of mercy or for extension of possession of the property by the defendant against an order for the convenience or comfort of the possessor once it is accepted that the plaintiff is the owner of the property and does not consent to the defendant holding it.  It is a rule or principle of law that admits no discretion on the part of the court.  It is a legal principle heavily weighted in favour of property owners against the whole world and is used to ruthlessly protect ownership.”</em></p> <p>It is an acceptable principle of law in our jurisdiction that the courts are reluctant to set aside a sale where the sale has been confirmed and transfer has already been effected.  See: <em>Garati v Mudzingwa &amp; Ors</em>2008 (2) ZLR 89 (S) and <em>Mapedzamombe v Commercial Bank of</em><em>Zimbabwe and Another</em>1996 (1) ZlR 257 (S)</p> <p>In applying the principles laid down in these decisions of the Supreme Court, it is settled that before a sale is confirmed in terms the Rules, it is a conditional sale and any interested party may apply to court to have it set aside.  At that stage, even though the court has a wide   discretion to set aside the sale in certain circumstances, it will not readily do so. Once the sale has been confirmed by the Sheriff, the sale of the property is no longer conditional. That being so, a court is more reluctant to set aside a sale that has been confirmed. Where the property has been transferred to the purchaser, the court may not lightly cause a reversal or cancellation of the Title Deed.</p> <p>In a completely confusing and unprocedural manner, applicant sought to introduce a new cause of action in paragraph 15 of its Answering Affidavit filed on 4thAugust 202, years after the sale in execution.  The new cause of action is to the effect that Arenel did not pay the purchase price of US$73 000.  Not only is the fresh cause of action based on false and misleading claims, it is not permissible for an applicant to substitute a new casue of action through an Answering Affidavit.  This principle was set out in <em>Milrite Farming &amp; Ors v</em><em>Porusingazi &amp; Ors</em>HH 82-10, where it is stated:</p> <p><em>“The basic rule pertaining to application procedures is that the applicant’s case stands or falls on averments made in the Founding Affidavit and not upon subsequent pleadings.  The rationale for the rule is quite clear.  It is to avoid the undesirable effect of litigation assuming a snowballing character, with fresh allegations being made at every turn of pleadings.  Thus the fresh allegation contained in the Answering Affidavit must be ignored, leaving the same cause of action and substantially the same facts in both first and second applications.”</em></p> <p>The inescapable conclusion is that applicant is not only a dishonest litigant who deliberately seeks to mislead the court but also delights in abusing court process by instituting multiple applications on the same subject matter, seeking the same relief on the basis of ever changing causes of action.  In the case of <em>Parks and Wildlife</em><em>Management Authority v H. J Vorster and Anor</em>HB 64-20 I had this to say about such litigants at page 3 of the cyclostyled judgment:</p> <p>“<em>These courts cannot adjudicate upon the same matter over and over with different parties seeking essentially the same relief.”</em></p> <p>It is my view, that the applicant cannot be allowed to institute a multiplicity of actions all designed to set aside a sale in execution confirmed on 6thOctober 2016, some four years ago.  At first the sale in execution was challenged on the grounds that the highest bid resulted in an unreasonably low price.  An inquiry was conducted and it was held that the objection had no merit.  An application to review the Sheriff’s decision was launched in this court.  This attempt failed.  A similar application was launched.  The application was dismissed by this court.  An application for rescission of that judgment was filed and that again failed. This application is a last ditch attempt to attack the sale on a completely new cause of action.  An allegation of a fraudulent sale has suddenly emerged. There is absolutely no basis for the court to declare the transfer of the property null and void.</p> <p><strong>DISPOSITION</strong></p> <p>            All in all therefore, applicant has no legal basis to challenge the transfer of the property to a nominee of the purchaser.  In the relief sought, applicant seeks to have the transfer of the property by 2ndrespondent set aside, without having the sale itself set aside.  This is not competent, the Title Deed cannot be set aside or reversed, with the sale itself remaining in force.  In so far as the counter application is concerned, the rights of vindication have not been opposed at all.  The counter-application remains uncontested.  <em>Advocate Nkomo,</em>invited the court to grant an order in terms of the counter-application.  In response to that request <em>Advocate Siziba,</em>appearing for the applicant argued that the fate of the counter-application was consequent upon a finding on the main application.  My understanding of that response was that once it was determined that the application for an interdict could not succeed and that there was no basis for the cancellation of the Title Deed, there would be  no meaningful challenge to the counter-application.</p> <p>            In the result, and accordingly the following order is made:</p> <p>            1.         The application be and is hereby dismissed.</p> <p>            2.         The counter-application by 1strespondent be and is hereby granted.</p> <p>3.         Applicant and all those claiming ownership of the property at Stand 11, Bulawayo Light Industrial Site known as 9 Preston Street, Belmont, Bulawayo, held under Deed of Transfer No. 2290/2018, shall vacate the premises within 5 days of this order, failing which 2ndrespondent is authorized to forthwith evict applicants from the premises.</p> <p>4.         The applicants are to bear the costs of suit.</p> <p> </p> <p><em>Mathonsi – Ncube Law Chambers</em>, applicant’s legal practitioners</p> <p><em>Messrs Danziger &amp; Partners</em>, 1strespondent’s legal practitioners</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2020/249/2020-zbhc-249.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26456">2020-zbhc-249.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2020/249/2020-zbhc-249.pdf" type="application/pdf; length=172455">2020-zbhc-249.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interdict">INTERDICT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-interdict">Application (INTERDICT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/requirements-interdict">Requirements for interdict</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/l">L</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/landlord-and-tenant">LANDLORD AND TENANT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/eviction-proceedings">Eviction proceedings</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-practice-and-procedure">Application (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/cause-action-must-be-set-out-founding-affidavit">cause of action must be set out in founding affidavit</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/pleadings">Pleadings</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-proceedings-pleadings">application proceedings (Pleadings)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/extent-which-parties-are-bound-pleadings">extent to which parties are bound by pleadings</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/property-and-real-rights">PROPERTY AND REAL RIGHTS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/ownership-0">Ownership</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/actio-rei-vindication">actio rei vindication</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2010/82">Milrite Farming (Private) Limited v Porusingazi and Others (HC 985/10) [2010] ZWHHC 82 (12 May 2010);</a></div></div></div> Wed, 11 Nov 2020 07:46:32 +0000 Sandra 9902 at https://old.zimlii.org Balvant Patel t/a Reliable Hardware v C.A. Angelos (Private) Limited (HMA 44-20, CIV 'A' 51/19 Ref Case No. 794/19) [2020] ZWMSVHC 44 (16 September 2020); https://old.zimlii.org/zw/judgment/masvingo-high-court/2020/44 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>BALVANT PATEL t/a RELIABLE HARDWARE</p> <p> </p> <p>versus</p> <p> </p> <p>C.A. ANGELOS (PRIVATE) LIMITED</p> <p> </p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>WAMAMBO J. &amp; ZISENGWE J</p> <p>MASVINGO 24 JULY, 2020 &amp; 16 SEPTEMBER, 2020</p> <p> </p> <p>                                                                </p> <p> </p> <p><strong>Civil Appeal</strong></p> <p> </p> <p> </p> <p><em>Mr J. Chipangura</em>, for the appellant</p> <p><em>Mr R. Makausi, </em>for the respondent</p> <p> </p> <p> </p> <p> </p> <p>ZISENGWE J:            This is an appeal against the decision of the Magistrates Court sitting at Masvingo confirming the cancellation of a Lease Agreement between the parties, ejecting the appellant from the leased premises, ordering the payment of holding over damages and costs of suit.</p> <p><strong>The facts</strong></p> <p>In 2017 the parties entered into a written a Lease Agreement wherein the respondent agreed to lease out certain commercial premises to the appellant for a monthly rental of $1 100. It was an express term of the contract that it would subsist for an initial period of one year stretching from 1 May, 2017 to 30 April, 2018.</p> <p>Conditions for its possible renewal were set out in Clause 2 thereof; which will be dealt with later in this judgment. Pertinently, however, the contract provided that the landlord could terminate it upon the tenant committing any of the acts of breach as set out in Clause 16 of the General Conditions of Lease – notably for current purposes – the tenant falling into arrears with his rentals.</p> <p>It would appear that initially the lease would subsist flawlessly until early 2019 when two key developments unfolded which shook the relationship. The first was a request by the respondent for a 60% upward review of the rentals in view of the prevailing economic climate – which request was resisted by the appellant. The other was the appellant falling into arrears with his rental payments.</p> <p>These events served as a prelude to the total breakdown of the contract leading to its eventual termination by the respondent.</p> <p>Before so terminating the contract several written communication was exchanged between the parties over the aforementioned developments with no solution seemingly in sight.  Things came to a head on 22 March 2019 when the respondent wrote to the appellant terminating the lease. In that letter the respondent cited the fact that respondent had fallen into arrears as the reason for the termination.</p> <p>It accordingly demanded the appellant to immediately vacate the premises and extinguish his indebtedness in terms of the arrear rentals.</p> <p>The appellant was not moved. He accused the respondent of hiding behind what it viewed as the arrear rental facade when the real reason for the termination was his refusal to accede to the 60% rental increment proposal. He therefore did not budge. He paid off the outstanding rentals and stayed put.</p> <p>No doubt irked by what he perceived as appellant’s intransigence, respondent issued summons against the former seeking a confirmation of the cancellation of the Lease Agreement and the ejectment of the respondent from the premises among other relief as alluded to above.</p> <p>The appellant resisted the claim and the matter subsequently proceeded to trial. In that trial one witness testified for either party. For the respondent (as plaintiff) it was one Rodrick Shumbanhete, a Credit and Financial Controller for Great Zimbabwe Realtors (respondent’s agents) who testified. The appellant Mr Balvant Patel testified on his own behalf as defendant.</p> <p> In his evidence the witness for the plaintiff highlighted the main operative provisions of the contract of lease. In particular he stressed the clause which in his view entitled the plaintiff to terminate the contract in the event of the lessee (the appellant) falling into arrears with his rental payments. In this regard he pointed out that as of the 28th of February, 2020 the appellant had fallen in arrears and that he failed to rectify that breach within 7 days despite being notified in writing to do so. This culminated in the cancellation of the lease on 22 March 2019. The appellant as of that date was in arrears in the sum of $830. It was also his evidence that the appellant refused to vacate the premises despite having been served with the notice of termination of lease.</p> <p>He categorially denied during cross examination that the termination was occasioned by the refusal of the appellant to accede to a rental increment. He maintained that the sole reason for invoking the termination clause was the question of arrears.</p> <p>For his part the defendant, Mr Balvant Patel testified that he has been respondent’s faithful tenant for over 14 years (it would appear his actual tenancy predates the written lease which constitutes the subject matter of the current dispute).</p> <p>A synopsis of the salient portions of his evidence is as follows; While conceding that he had fallen into arrears with his rentals as of 28 February 2019 he argued that the respondent did not invoke the termination clause on account of the fact they had in fact agreed on a staggered payment plan. Most importantly, however, he surmises that the decision to terminate the contract was <em>mala fide</em> as it was solely occasioned by his refusal to accept a steep rental increment. He indicated in this regard that he had challenged the respondent to have the rent increment dispute referred to the Rent Board for determination.</p> <p>He further testified that when summons were eventually issued on 26 April, 2019 he had since cleared his arrears. He would however concede during cross examination that given the express and unambiguous provision of Clause 16(a) (i) (the termination upon rental breach clause) no duty reposed on the respondent to grant him any indulgence to continue with contract. He would blame the hostile economic environment for his unfortunate lapse into arrears.</p> <p>At the conclusion of the trial the court <em>a quo</em> in its judgment found that the fact that the appellant conceded having fallen into arrears was dispositive of the matter. This was because such failure to keep abreast with his rent payments, meant that he was in breach of a material term of the contract of lease entitling the respondent to invoke the cancellation clause.</p> <p>He made short-shift of the appellants arguments that his history of timeous payment of the rent ought to count for something and pointed out that neither should the magnanimity of the respondent in condoning past similar breaches.</p> <p>Aggrieved by that decision the appellant mounted this current appeal contending in the main that the court <em>a quo</em> misdirected itself in confirming the cancellation of the lease (and  all the consequences flowing therefrom) given that he had become a statutory tenant, yet the provisions thereof had not be respected.</p> <p>His grounds of appeal read as follows;</p> <p><strong><em>Grounds of appeal</em></strong></p> <p><em>The learned Magistrate erred and misdirected itself in:-</em></p> <ol> <li><em>Confirming cancellation of the Lease Agreement which was done in breach of the Commercial Premises Rent Regulations more particularly in that an application was supposed to have been before the court for cancellation of the lease agreement and not an action for confirmation of cancellation of a lease agreement.</em></li> </ol> <p> </p> <ol> <li><em>Granting an order for the ejectment of the appellant herein from the commercial premises when the lease agreement was not yet properly cancelled more particularly in light of the fact that the appellant is a statutory tenant.</em></li> </ol> <p> </p> <ol> <li><em>Ordering the appellant to pay holding over damages in the sum of One Thousand Town Hundred and Sixty-five dollars ($1 265.00) notwithstanding the fact that the appellant herein was not in arrears at the time of the summons was issued.</em></li> </ol> <p> </p> <ol> <li><em>Disregarding the appellant’s testimony that the cancellation was necessitated by the appellant’s resistance to pay a rental increment by sixty percent (60%) without approaching the Rent Board for a fair rental amount.</em></li> </ol> <p> </p> <ol> <li><em>Not appreciating the fact that without proper cancellation of the lease agreement, the respondent herein issued the summons for ejectment of the appellant on the basis of breach of the lease prematurely before</em>.</li> </ol> <p> </p> <p>These will be dealt with in logical sequence rather than seriatim. In so doing grounds 1, 2 and 5 will be tackled simultaneously as they are all related, and dovetail into one another. They all attack the propriety of the cancellation of the lease. Ground 4 will soon thereafter be addressed as it is naturally connected to grounds 1, 2 and 5. Finally, ground 3 will be addressed as it relates to the consequences of the cancellation. </p> <p><strong>Grounds 1, 2 and 5: Cancellation of the contract in view of the Commercial Rent Regulations</strong></p> <p>Despite having referred in his grounds of appeal to the Commercial Premises (Rent) Regulations, 1983, the appellant in his heads of argument surprisingly went off on a tangent and based his entire argument on the Rent Regulations, 2007 (Statutory Instrument 32/2007). To his credit, however, counsel for the appellant conceded his error in this regard and moved the court to delete the offending part of ground 1 which reads <em>“More particularly in that an application was supposed to have been made before the court for cancellation of the lease agreement and not an action for confirmation of cancellation of a lease agreement.” </em>It was further requested of the court in this connection to disregard any reference to the Rent Regulations, 2007.</p> <p>The concession was properly made in view of the following; firstly the fact that the premises in question being commercial premises do not fall under the Rent Regulations, 2007 which apply solely to residential premises. Secondly, unlike the Rent Regulations 2007, the Commercial Premises Rent Regulations do not have an equivalent provision requiring a referral to the court for the cancellation of a lease agreement for statutory tenants.</p> <p>An excision of that portion of the first ground of appeal leaves the remainder thereon naked. It also deals a body blow to the contentions in grounds 2 and 5 of the grounds of appeal. Although counsel bravely tried to salvage what remained of those grounds, he could not explain how the cancellation of the lease agreement circumstances such as the present results in a breach of the Commercial Rent Regulations.</p> <p>I interpose here, however, to lend my thoughts on whether the appellant can properly be referred to as a “statutory tenant” to fall under the ambit of the commercial premises (rent) Regulations. This requires a proper construction of Clause 2 of the agreement of lease which reads as follows;</p> <p>“<em>2. Commencement</em></p> <ol> <li><em>Notwithstanding the date of the signing of this agreement the lease shall be for an initial period of one (1) year commencing on 1st May 2018 and ending on the 30th of April 2018.</em></li> </ol> <p> </p> <ol> <li><em>Provided the tenant has fully complied with all the terms and conditions of this agreement the renewal thereof shall be subject to negotiation upon the tenant notifying the landlord of its intention to renew the lease for a further period two months prior to the expiry of this lease. Failure by the tenant to give such notice shall be construed as its intention to continue to lease the property on a yearly basis terminable by either party hereto upon the one giving the other three calendar months’ notice</em>.”</li> </ol> <p> </p> <p>To my mind, this clause means that if at the expiration of the first year of the lease agreement the tenant was desirous of renewing it for any other future period, then he was required to notify the landlord of such intention 2 months prior to the end of the life of the contract. However, in the event of no such notification being given by the tenant to the landlord, then the contract was automatically renewable on a yearly basis. Termination in those circumstances could however be effected by the giving of 3 months’ notice by the party of desirous of ending the contract to the other.</p> <p>Implicitly, therefore, this contract automatically renewed itself on its anniversary on the 1st of May 2018. The question of statutory tenancy therefore did not in my respectful view arise.</p> <p>The circumstances under which statutory tenancy arises in respect of commercial premises are provided for in Section 22 of the Commercial Rent Regulations which provides as follows;</p> <p><strong><em>“22.     Limitation on ejectment</em></strong></p> <p> </p> <p><em>(1)       … [Irrelevant]</em></p> <p><em>(2)       No order for the recovery of possession of commercial premises or for the ejectment of a lessee therefrom which is based on the fact of the lease having expired, either by the effluxion of time or in consequence of notice duly given by the lessor, shall be made by a court, so long as the lessee—</em></p> <p> </p> <p><em>(a)       continues to pay the rent due, within seven days of due date; and</em></p> <p><em>(b)       performs the other conditions of the lease; unless the court is satisfied that the lessor has good and sufficient grounds for requiring such order other than that:-</em></p> <p> </p> <p><em>(i)        the lessee has declined to agree to an increase in rent; or</em></p> <p><em>(ii)       the lessor wishes to lease the premises to some other person.”</em></p> <p> </p> <p>Statutory tenancy, therefore is a legislative intervention aimed at addressing and curing the lacuna that would otherwise obtain where the fixed period provided in lease agreement comes to an end yet the lessee remains in occupation of the property and continues to abide by the terms of the expired lease agreement.</p> <p>It is aimed, <em>inter alia</em>, at stopping the landlord from resorting to self-help in ejecting the tenant ostensibly on the basis that the lease no longer exists. Its primary aim, as I see it, is to regulate and smoothen the period referred to earlier, reduce the scope of disputation, safeguard the rights and interests of both parties and provide a mechanism for the resolution of disputes attending to that period.</p> <p>It does not, in my view apply to a situation (such as the present) where an agreement automatically gets a new lease of life (pun unintended) at each succeeding anniversary. This would mean therefore imply that all the arguments based on statutory tenancy fall away.</p> <p>Be that as it may, even if one were to adopt a contrary view and argue that clause 2 of the lease agreement does not render the lease agreement automatically renewable as earlier indicated, this does not in the least alter the complexion of the dispute.</p> <p>In either instance the appellant was required to be up to date with his rental payments. The concession by the appellant that he fell into arrears took the steam out of his entire argument. The timely payment of rent lies at the very heart of a lease agreement. It operates at the same plane as the lessor availing vacant possession of the property to the lessee. Whether one views this fundamental obligation through the lens of the lease agreement (as the respondent does) or in the context of the Commercial Premises Rent Regulations (as the applicant does) the outcome is essentially the same namely that in both instances the appellant placed himself in the unfortunate circumstance of breach entitling the lessor to termination.</p> <p>In other words even if one were to adopt the position that appellant was a statutory tenant and as such fell under the protection of the Commercial Premises Rent Regulations they, (i.e. Regulations) only offer such protection so long as he <em>“…continue[d] to pay the rent</em> <em>due, within seven days of the due date</em>” which he obviously failed to do.</p> <p>Further s 23 of the Commercial Rent Regulations spells out the rights and duties of a statutory tenant as follows;</p> <p> </p> <p><strong><em>“23.     Rights and duties of statutory tenant</em></strong></p> <p> </p> <p><em>A lessee who, by virtue of section 22, retains possession of any commercial premises shall, so long as he retains possession, observe and be entitled to the benefit of all the terms and conditions of the original contract of lease, so far as the same are consistent with the provisions of these regulations, and shall be entitled to give up possession of the premises only on giving such notice as would have been required under the contract of lease …</em>” (emphasis added)</p> <p> </p> <p>Ultimately, therefore, in view of these provisions of the Commercial Rent Regulations one comes full circle; the whole dispute gravitates back to the original lease. In turn, whichever way one views it, the appellant was obligated to timeously pay the rent due, either in advance (as required under clause 3(a) of the lease agreement) or within seven days of the due date (as required under s 22(2)(a) of the Commercial Rent Regulations). He failed on either account.</p> <p>The belated flurry of activity by appellant ostensibly to extinguish the arrear rentals after the cancellation of the lease did not and could not disentitle the respondent to the relief it sought. It amounts to no more than shutting the stable doors after the horse had bolted.</p> <p>There was a spirited attempt in this appeal by the appellant to refer to both his impeccable past record and to his recent past rental breaches to evade the consequences that eventually befell him when the respondent invoked clause 16(1)(a) to terminate the lease agreement. Neither can conceivably avail him.</p> <p>His impeccable past record is of no consequence. It has no bearing to the issues as hand.</p> <p>Equally untenable is suggestion that because past rental arrears did not result in respondent terminating the contract, neither should the ones that led to the cancellation. Condonation for past breaches cannot by any stretch of imagination be construed as offering appellant, <em>carte blanche</em>, a right to commit similar future breaches without consequence.</p> <p>The appellant sought to rely on the ratio in <em>Masukusa</em> v <em>Tafa</em> 1978 RLR 167 (A) as endorsed in <em>Parkview Properties (Pvt) Ltd</em> v <em>Chimbwanda</em> 1998 (1) ZLR 409 (H) where the issue was whether a landlord could successfully invoke a non-waiver and non-variation clause in situations where he had previously accepted late payments of rental without reservation and had not made his election to cancel the lease within a reasonable time and at the latest when the next payment was tendered.  It was held that a landlord could not retrospectively (after accepting subsequent timeous payments) invoke his prerogative to terminate the contract supposedly on the basis of the non-waiver and non-variation clause.</p> <p>What obviously distinguishes the present case from the Parkview case is that at no point throughout the proceedings <em>a quo</em> did the respondent appear to rely on past breaches. To the contrary, reliance was placed solely on the arrears as at the date of cancellation. In particular the letter dated 22 March, 2019 cancelling the contract only refers to such arrears.</p> <p>Grounds 1, 2 and 5 therefore are devoid of merit and cannot avail the appellant.</p> <p><strong>Ground 4: the disputed rent increment argument</strong></p> <p>The appellant expended considerable time and effort in a bid to draw a nexus between his refusal to agree to a 60% rent hike and the subsequent termination of the contract. The court <em>a quo</em> was correct in my view, in rejecting that argument. The defendant’s own admission that he was in arrears as of the date of termination coupled with the contents of the letter of termination (and other written reminders by the respondent to appellant to pay up the rent arrears) negates the notion that the motive of the cancellation was in fact his refusal to accede to the rent hike.</p> <p>The argument that the real but undeclared motive behind the cancellation of the lease agreement was in fact appellant’s refusal to accede to a 60% rent hike was always going to be hard to sustain given the chain of events which led to the cancellation of the lease. In particular in view of his admission of having fallen into arrears and having failed to pay the same off despite numerous reminders to do so.</p> <p>Here, the appellant in the absence of direct evidence indicative of the nexus between the rental increment stand off and the termination of the lease sought to rely on circumstantial evidence. The invitation to the court being for it to draw an inference between those two events.</p> <p>The court <em>a quo</em> declined the invitation to draw such an inference and in this appeal the appellant persists with the quest for such an inference to be drawn. When reduced to its lowest terms, the appellant’s complaint is that the court <em>a quo </em>should have believed his version as opposed to that of the respondent.</p> <p>However, it is trite that an appellant court seldom interferes with findings of credibility by a lower court. It can only do so where such findings are clearly unreasonable and not supported by the facts. See <em>Bakari</em> v <em>Total Zimbabwe (Pvt) Ltd</em>. SC 226/16; <em>Barros</em> v <em>Chimponda</em> 1999 (1) ZLR 58(S).</p> <p>This is because having been steeped in the atmosphere of the trial, the trial court will have had the opportunity to observe the witnesses and assess their candour and demeanor. Thus in the absence of any irregularity either proved or apparent <em>ex facie</em> the record, the appeal court will not usually reject findings of credibility by the trial court and will usually proceed on the factual basis as found by the trial court. The function to decide the acceptance or rejection of the evidence falls primarily within the province of the trial court. I could not find any such irregularly or misdirection in the acceptance of the respondent’s version that the cancellation was brought about solely by the appellant having fallen into arrears and the rejection of the appellant’s version that it was occasioned by the failure to resolve the rent increment dispute.</p> <p>Secondly, although it is trite that in civil proceedings (unlike in criminal ones) the inference sought to be drawn need not be only the reasonable inference as the most probable inference suffices, in the present matter the most readily apparent and acceptable inference is that the lease was terminated because the appellant fell into arrears with his rentals.</p> <p>Further in this regard, I find it strange and untenable that a lessee would permit himself to lapse into arrears (in clear violation of the terms of the terms of the lease agreements) and when the lessor pulls the curtain down on the contract (which it is entitled to do) the lessee is then seen to cry foul blaming the lessor of acting in bad faith. He cannot rely on or seek refuge by referring to past transgressions which went unpunished.</p> <p><strong>Ground 3: Holding Over damages</strong></p> <p>It is clear that this ground is a consequence of the confusion created by the omission of the words “per month” after the figure of RTGs$1 265.00 in paragraph C of the respondent’s claim as stated in the summons which error was obviously replicated in the order of the court <em>a quo</em> when it granted judgment “as prayed in the summons.”</p> <p>The result was that the appellant confused such “holding over damages” with arrear rentals. The two are different.</p> <p>Arrear rentals simply refer to those outstanding amounts for rentals that accrued during the currency of the lease but were not paid.</p> <p>A claim for holding over damages on the other hand is based on a breach of the contractual obligation to give vacant possession of the property on termination as required by the relevant clause in the lease agreement or as in incidence of the commercial law. A.J. Kerr in the <em>Law of Sale and Lease (3rd ed. 2004)</em> at p 421; states that under contract, the breach is the failure to restore possession on termination and the remedy of ordinary damages for holding over (i.e. market related rental) arises by reason of the landlord being deprived of the use and enjoyment of the property because the erstwhile tenant has remained in occupation.</p> <p>It may also arise <em>ex delicto</em> in the sense that the continued occupation by the former lessee (former because the lease has since lapsed) of the premises without a legal right to do so is <em>per se</em> wrongful. The damages awardable to the owner of the property being (but not necessarily limited to) loss of market related rentals which the law regards as foreseeable. See <em>Lillicrap, Wassernaar &amp; Partners v Pilkington Bros (SA) (Pty) Ltd </em>1985 (1) SA 347 (A) at 496 I – 597 C</p> <p>The latter are evidently what respondent sought and obtained in the court <em>a quo. </em> That much is apparent from the inclusion of the words “<em>being damages for unlawful occupation calculated from 1 April, 2019 to date of eviction</em>”. The sum of RTGs$1 265.00 is a figure for each succeeding month that the appellant remained or remains in occupation of the premises post the cancellation of the contract. The appellant confused this with arrear rentals which he claims to have since extinguished.</p> <p>This ground of appeal is also therefore without merit.</p> <p>In the final analysis therefore I find no merit in any of the appellant’s grounds on appeal</p> <p><strong>Costs</strong></p> <p>The respondent sought costs on a punitive scale, I however find no real justification in awarding costs on that scale. The appeal is neither frivolous nor vexatious nor does it appear calculated to harass the respondent.</p> <p> </p> <p>Accordingly, therefore, the following order is hereby given:-</p> <p><strong>ORDER</strong></p> <p>Appeal be and is hereby dismissed with costs.</p> <p> </p> <p>Zisengwe J.</p> <p> </p> <p>Wamambo J. agrees ……………………………………………………………</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2020/44/2020-zwmsvhc-44.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=30814">2020-zwmsvhc-44.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2020/44/2020-zwmsvhc-44.pdf" type="application/pdf; length=260287">2020-zwmsvhc-44.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/contract">CONTRACT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/breach">Breach</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/damages-breach-contract">damages for breach of contract</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/immovable-property">IMMOVABLE PROPERTY</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rights-and-immovable-property">Rights in and to immovable property</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/l">L</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/landlord-and-tenant">LANDLORD AND TENANT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/eviction-proceedings">Eviction proceedings</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/lease">Lease</a></li></ul></span> Wed, 21 Oct 2020 15:15:23 +0000 Sandra 9896 at https://old.zimlii.org Maziyanhanga v City of Harare (HH 630-20, Civil Appeal 02/20) [2020] ZWHHC 630 (08 October 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/630 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>                                                                                                                                                                                      </p> <p>JOEL MAZIYANHANGA</p> <p>versus</p> <p>CITY OF HARARE</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>TSANGA &amp; CHIRAWU-MUGOMBA JJ</p> <p>HARARE 10, 22, 24 September &amp; 8 October 2020</p> <p> </p> <p><strong>CIVIL APPEAL </strong></p> <p> </p> <p> <em>J Koto, </em>for the appellant</p> <p><em>R.C Muchenje, </em>for the respondent</p> <p> </p> <p>            CHIRAWU-MUGOMBA J</p> <ol> <li>The appellant seeks an order that the decision of the Magistrate Court sitting at Harare on the 30th of December 2019 in which his application for an interdict was dismissed be set aside, and substituted with one granting the application.</li> <li>The brief facts of the matter are as follows.  Applicant made an application with the respondent in August 2016 for a lease in respect of a piece of land on which to carry out a car sale business.  In April 2019, upon advice, he visited the Mabelreign offices of respondent as a follow up and he obtained what he terms a verbal lease agreement to operate from a 500 square metres piece of land. This was through three unnamed officials of respondent who measured the piece of land.</li> <li>The appellant fenced the measured piece of land and engaged the services of a security guard.  A rental of US$150 was agreed upon and he was allocated a vendor number being 590108351.  Rentals in the stipulated amount were paid for May and June 2019.  The receipts clearly show that payments made were for a vending site.</li> <li>On the 19th of June 2019, the appellant was served with a notice of eviction on the ground that he was illegally occupying land belonging to the respondent.  He was given 48 hours to vacate the premises.</li> <li>Appellant averred that he had a clear right having been allocated the land by unnamed officials in the employee of the respondent. He had been allocated a vendor number and had been paying rentals. He was therefore a legitimate tenant.   If the eviction were to proceed he stood to face financial and reputational damages.</li> <li>In response, the respondent through an affidavit deposed to by its acting chamber secretary, denied that the appellant had made an application for a lease.  The markets officer for the relevant location had denied that they had given the appellant consent to operate.  Council officers are not allowed to enter into verbal agreements and such are approved by the relevant committees before being signed for by the Town Clerk.</li> <li>The respondent had noted that the appellant was benefitting from a reserved area for 12 years without paying and that is the reason why he was asked to make payment.  The money paid by the appellant was not for a lease but for the 12 years of free occupation. The site in question is reserved for vending and a car sale business does not fit into the category.</li> <li>The appellant had no clear right since he was an illegal occupier.  He had no lease agreement with the respondent.</li> <li>In his answering affidavit the appellant raised one point in-limine, that (1) the deponent to the opposing affidavit had not demonstrated her authority to represent the respondent and consequently there was no valid notice of opposition before the court a quo.  He also submitted that the deponent’s evidence was heresay as there were no supporting affidavits from the market officers.</li> <li>In its ruling the court <em>a quo</em> dismissed the point-in-limine and held that the deponent to the opposing affidavit had the requisite authority since she had asserted that she had been authorised. Further that the appellant had been using a piece of land illegally for twelve years without regularising it.   Material disputes of facts were also apparent in the matter that cannot be resolved on paper.  The appellant had failed to prove the existence of a verbal lease and its terms and accordingly he had no clear right.  The schedule of payments by the appellant does not show that he was paying in terms of a lease agreement.  In the absence of a clear right, the application for an interdict was dismissed with costs.</li> <li>The appellant took issue with the dismissal and noted an appeal based on the following grounds. (1) The court a quo erred at law in holding that the notice of opposition was valid despite lack of resolution authorising the deponent to represent the respondent.  (2) The court a quo erred at law in relying on averments contained in the opposing affidavit notwithstanding that the evidence was heresay. (3) The court a quo erred at law in failing to make a determination on the objection by the appellant that evidence on behalf of respondent was heresay and was inadmissible. (4) The court <em>a quo</em> erred in making a finding that there were material disputes of fact which could not be resolved on papers filed of record. (5) The court a quo erred at law in delving into the merits of the matter and making factual findings when it had already held that there were material disputes of facts in the matter and (6).  The court <em>a quo</em> erred at law in holding that appellant had failed to satisfy the requirements of an interdict.</li> <li>At the hearing, Mr <em>Koto </em>abandoned ground one of the grounds of appeal and rightly so since appellant had not invoked the procedure in O4R (3) of the Magistrate Court (Civil Rules) of 2019 (the rules) on challenging of the authority of any person to act for a party.  He also abandoned grounds 2 and 3. Therefore only grounds 4-6 remained for argument. He submitted in his heads of argument and orally that the appellant was not in illegal occupation. Between the time that the appellant submitted his application for a lease, i.e. between August 2016 and the time that he received a response, there was a legal process taking place. The appellant had been allocated a vendor number and he was therefore not an illegal occupier.  There were no material disputes of fact and even if there were, the court <em>a quo</em> ought not to have dismissed the matter but referred to trial.  It was contradictory to then delve into the merits after making a finding that disputes of fact existed.</li> <li>Ms <em>Muchenje</em>, in her heads of argument, and orally, submitted that the court a quo did not err since the appellant failed to prove that he had a lease agreement with the respondent. There were certain processes that needed to be undertaken before one can be said to be in legal occupation. These had not been done in respect of the appellant.  The appellant therefore had not proved a clear right that entitled him to an interdict. If a court finds that there are disputes of fact it has two main courses, i.e. dismiss the application or refer it to trial. The court a quo was correct to hold that there were disputes of fact that could not be resolved on paper. </li> <li>Given the above, in our view the critical issue is whether or not the court <em>a quo</em> erred in not directing that the matter proceed by way of action after making a finding that there were disputes of facts.</li> <li>Order 22(5) of the Magistrates Court (Civil Rules) 2019 gives a court three options that a court may exercise upon hearing all parties. These are (1) refuse the application and give written reasons for such decision (2) grant the application as applied for or as varied and give reasons and (3) order that the issue shall be tried by way of action and give directions as it thinks just to enable such issue to be brought to trial and make such order as to costs as it thinks fit.</li> <li>We agree with Mr <em>Koto </em>that having found that there were material disputes of facts, the court a quo ought to have referred the matter to trial.  Although a court has discretion, see <em>Barrows and Anor </em>v<em> Chimpondah, </em>1999(1) ZLR 58 (S) which should not be interfered with lightly, an error was made in dismissing the matter outright. The appellant had been in operation for a long time and he had been allocated a vendor number and was making payments.  All these issues needed to be delved into to establish what actually transpired.  The respondent would also have an opportunity to defend itself through leading of oral evidence. The respondent submitted in its opposing affidavit that some market officers had denied that a verbal lease was entered into. This and other evidence needed to be led before the court <em>a quo</em>. The dismissal of the claim would mean as rightly pointed to by Mr <em>Koto </em>that the door to the claim would be shut. </li> <li>We therefore find merit in grounds 4 and 5 of the appeal. Ground 6 has no merit given the fact that after finding that there were material disputes of fact, a finding of whether or not requirements for the granting of an interdict were met was not legally competent.  The ground is framed in a manner that suggests that the court <em>a quo</em> was correct to delve into the issue of requirements for the granting of an interdict.</li> <li>Having found that the court <em>a quo</em> erred in dismissing the application and not allowing oral evidence, it would not be competent to grant the order sought by the appellant, i.e. the dismissal of the claim.   In terms of costs, given the fact that both parties did not fully address the critical legal issue, an order will be made that each party bears its own costs. Accordingly the appeal partly succeeds and the following order is issued:-</li> </ol> <p><strong>DISPOSITION </strong></p> <ol> <li>The appeal partly succeeds with each party bearing its own costs.</li> <li>The order of the court a quo is set aside and substituted with the following: - “The matter in case number 9466/19 is remitted to the Magistrates Court for hearing of oral evidence on the merits”.</li> </ol> <p> </p> <p>TSANGA J: agrees</p> <p> </p> <p><em>Koto and Company, </em>appellant’s Legal Practitioners</p> <p><em>Mbidzo, Muchadehama and Makoni, </em>respondent’s Legal Practitioners</p> <p> </p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="Microsoft Office document icon" title="application/msword" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/630/2020-zwhhc-630.doc" type="application/msword; length=38400">2020-zwhhc-630.doc</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/630/2020-zwhhc-630.pdf" type="application/pdf; length=123463">2020-zwhhc-630.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/l">L</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/landlord-and-tenant">LANDLORD AND TENANT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/lease">Lease</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/dispute-facts-practice-and-procedure">Dispute of facts (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/locus-standi-0">Locus standi</a></li></ul></span> Mon, 19 Oct 2020 10:43:19 +0000 Sandra 9871 at https://old.zimlii.org Chedgelow Tobacco Company & Anor v Daka (HH 385-20, HC 2935/18) [2020] ZWHHC 385 (11 June 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/385 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>                                                                                                                                                                               </p> <p>CHEDGELOW TOBACCO COMPANY (PVT) LTD</p> <p>and</p> <p>PEACEY ESTATES (PVT) LTD</p> <p>versus</p> <p>GEORGE MAKAWA DAKA</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>NDEWERE J</p> <p>HARARE, 7 November 2018 &amp; 11 June 2020</p> <p> </p> <p><strong>Opposed Matter</strong></p> <p><em>A K Maguchu</em>, for the 1st &amp; 2nd applicants</p> <p><em>R R Mutindindi</em>, for the respondent</p> <p> </p> <p>            NDEWERE J: The first applicant is Chedgelow Tobacco Company (Pvt) Ltd a private company duly incorporated in terms of the laws of Zimbabwe. The second applicant is Pearcey Estates (Pvt) Ltd, a private company incorporated in terms of the laws of Zimbabwe. The respondent is George Makawa Daka, a male adult formerly employed by the second applicant.</p> <p>            On 29 March 2018 the first and second applicants filed a court application for the eviction of the respondent from the first applicant’s commercial premises known as Shasha Complex. The applicants said the respondent took occupation of The Commercial premises in terms of a lease agreement dated 6 January 2012. The duration of the lease agreement was from 1 January, 2012 to 31 December 2014. The agreement was subject to review every December. The rental payable was US$600 per month. The last clause, clause 8, said the agreement will only be valid whilst the respondent was employed by the lessor, unless agreed in writing.</p> <p>The applicants said on 3 March, 2016 the respondent was given notice of termination of his contract of employment in terms of section 12c of the Labour Act, chapter 28:01 as amended. The notice period lapsed on 30 June 2016 and the respondent ought to have vacated Shasha Complex upon the lapse of the notice period since the lease agreement provided that the lease of Shasha Complex would only be valid during his employment by the second applicant. The respondent did not vacate the premises, hence the present application to evict him.</p> <p>            The applicants said continued occupation was prejudicing the applicants of US$600 <em>per </em>month. They therefore prayed for the eviction of the respondent and all those claiming through him and for holding over damages of US$600 <em>per </em>month from 1 July, 2016 to the date of vacation of Shasha Complex by the respondent.</p> <p>             The respondent opposed the application and filed opposing papers on 16 April, 2018. In his opposing affidavit, the respondent refused to vacate Shasha Complex. He said the termination of his employment had not yet been finalized and there were issues which the second applicant as his employer needed to attend to. He also said Shasha Complex was donated to him by Craig Danckwerts who was the managing director of both applicants. He denied entering into any lease agreement with the second applicant. He disputed the authenticity of the lease agreement and the authenticity of his purported signature.</p> <p>The respondent further said that the applicants had successfully evicted him from the farm house after his employment was terminated and if the applicants had been entitled to Shasha Complex, they would have sought his eviction from the commercial premises at the same time that they applied for his eviction from the farm house.</p> <p>            The respondent denied that he was supposed to pay rent since the property was donated to him by Craig Danckwerts who he said was the real owner of the property. He prayed for the dismissal of the application with costs.</p> <p>The applicants filed Heads of Argument on 29 May, 2018. They maintained that the respondent’s contract of employment was terminated, therefore he had to vacate the commercial premises referred to as Shasha Complex. The applicants denied donating the property and challenged the respondent to produce the alleged deed of donation. They said Mr Craig Danckwerts had no capacity to donate a property belonging to the first applicants. They said a Board Resolution authorizing Mr Craig Danckwerts to donate the complex had to be issued before such a donation could be made validly. Furthermore, the applicants said that any donation which was not in line with s 39 of the Regional Town and Country Planning Act [<em>Chapter 29:12</em>] was null and void. They further said any alleged ownership of immovable property which was not in terms of section 14 of the Deeds Registration Act [<em>Chapter 20:05</em>] was invalid.</p> <p>           </p> <p>             The respondent filed heads of argument on 18 June 2018. He started by raising the point <em>in limine</em> that there were disputes of facts which could not be resolved without leading oral evidence and on that basis, the application should be dismissed because the applicants had utilized a wrong procedure when they knew that there were disputes of facts. He maintained that his retrenchment had not been finalized, therefore he was still an employee. He conceded that the donation was not reduced to writing; but was verbal.</p> <p>            The following factors were not disputed:</p> <ol> <li> that respondent was employed by the second applicant</li> <li>That the immovable property in question is owned by the first applicant</li> <li>That Craig Danckwerts was the Managing Director of both first and second applicants</li> <li>That there was no written deed of donation.</li> <li>That what started was respondent’s employment by second applicant, followed by use of the commercial premises (Shasha Complex) by the respondent during his employment.</li> <li>That during his employment, the respondent enjoyed use of the commercial premises (Shasha Complex) as well as a farm house, all on first applicant’s property.</li> <li>That respondent was served with a retrenchment notice of 3 months and he responded to it, asking for more money according to the breakdown he gave in the letter by his legal practitioners dated 14 April 2016.</li> <li>That the second applicant tendered payment of the retrenchment package to the respondent and awaited respondent’s bank details.</li> <li>That respondent was evicted from the farmhouse he occupied during his employment at the termination of the employment.</li> </ol> <p>The only issues in dispute were whether the commercial premises, Shasha Complex were donated to the respondent or leased to him and whether his retrenchment was finalized or not.</p> <p>On the issues in dispute the applicants provided a written lease agreement for Shasha Complex. The respondent disputed signing the lease agreement in his opposing affidavit and alleged a donation. However, he conceded that the donation was just verbal. So the court already has the evidence of the lease agreement, and the evidence concerning the alleged donation from the affidavits of both the applicants and the respondent. Nothing further will be achieved by asking for oral evidence on the issue of whether the complex was availed to the respondent through a lease agreement or a donation. The applicants and the respondent who are the key witnesses on that matter have already testified under oath in affidavit form. So there is no need for the court to refer the matter to trial for <em>viva voce</em> evidence. The point <em>in limine</em> alleging adoption of a wrong procedure has no merit and is therefore dismissed.</p> <p>            On the merits, the court considered all the submissions by both applicants and the respondent. The respondent’s claim to the property on the basis of a donation cannot succeed. The applicants denied the existence of a donation and the respondent was unable to produce tangible proof of that donation. In addition, the law forbids verbal agreements where immovable property is concerned. That is why sales of immovable property require written agreements of sale. Similarly, a donation of immovable property has to be in writing. The term ‘deed’ of donation means a written document entitled “Deed” is required. There can be no valid verbal donation. So even if Mr Danckwerts had admitted uttering the words “donated” there would still be no valid donation without a written Deed.</p> <p>            Furthermore, s 39 of the Regional, Town and Country Planning Act, [<em>Chapter</em> <em>29:12</em>] provides as follows:</p> <p>“39</p> <ol> <li>Subject to subsection (2) no person shall-</li> </ol> <ol> <li>subdivide any property; or</li> <li>enter into any agreement</li> </ol> <p>i) for the change of ownership of any portion of a property;</p> <p>ii) for the lease of any portion of a property for a period of 10 years or more or for the lifetime of the lessee; or</p> <p>iii) conferring on any person a right to occupy any portion of a property for a period of 10 years or more or for his life time</p> <p>iv) for the renewal of the lease of, or right to occupy, any portion of a property where the aggregate period of such lease or right to occupy, including the period of the renewal, is 10 years or more;</p> <p>or</p> <ol> <li>Consolidate 2 or more properties into one property;</li> </ol> <p>except in accordance with a permit granted in terms of s 40.”</p> <p> </p> <p>The above section means that even if the applicants had donated the commercial premises, which they deny, that donation would still have been null and void because of the failure to obtain a permit in terms of s 39 of the Regional Town and Country Planning Act, (<em>supra</em>)</p> <p>            So if ever there was a donation to the respondent; it was null and void because of the failure to get the permit mentioned above.</p> <p>In addition, s 14 of Deeds Registries Act, [<em>Chapter 20:05</em>] provides as follows:</p> <p>“Section 14</p> <p>Subject to this Act or any other law-</p> <ol> <li>the ownership of land may be conveyed from 1 person to another only by means of a deed of transfer executed or attested by a registrar;</li> <li>other real rights in land may be conveyed from 1 person to another only by means of a deed of cession attested by a notary public and registered by a registrar.”</li> </ol> <p> </p> <p>This means that after obtaining a permit in terms of s 39 of the Regional Town and Country Planning Act, the applicants still needed to do a deed of cession of the commercial premises to the respondent. None of the above technical requirements were done so it is not possible for the respondent’s claim of a donation to succeed in a court of law because the courts can only enforce what was done lawfully.</p> <p>Furthermore, Craig Danckwerts had no capacity to donate first applicant’s property to the respondent. Being a Managing Director of both applicants did not give him that power. Before he could donate the property, he had to obtain a Board Resolution from the applicants, authorizing him to donate the property to the respondent. No resolution was provided to him so even if he had told respondent verbally that he was donating Shasha Complex, in the absence of a Board resolution from first applicant authorizing him to do so, such a donation would have been null and void from the outset. As correctly pointed out in the <em>Benjamin Leonard Macfoy </em>v <em>United Africa Co. Ltd </em>[1962] AC 152 at 160. you cannot put something on nothing and expect it to stand. So a person without capacity to donate cannot make a valid donation.</p> <p>Regarding the issue of continued employment, the court noted that the respondent contradicted himself in his opposing affidavit. On para 2 he says the termination of his employment was not finalized, but in paragraph 7, he says,</p> <p>“In any event, the second applicant herein successfully obtained an order of my eviction from the farm house I was living in during my employment after my employment was terminated...”</p> <p> </p> <p>That paragraph contains a concession that respondent’s employment was terminated and that is why he was successfully evicted from the farm house. How can his employment be terminated in respect of his occupation of the farmhouse; and not be “finalized” in respect of occupation of the commercial premises? That shows that the respondent knows that his contract of employment was terminated and payment tendered.</p> <p>            In para 8 of his opposing affidavit, the respondent said he raised certain issues with the retrenchment board. He referred to the letter by his legal practitioners to the Retrenchment Board dated 14 April 2016, appearing on pp 21 and 22 of the record. That letter does not challenge the date of termination at all. It simply revises the figures. So his employment was terminated in accordance with the notice to retrench. What remained were financial claims only; otherwise the respondent is no longer an employee of the second applicant. On p 22, he gave a computation of the figures he alleged made up his salary. Interestingly; there is a computation figure of $1000 against Shasha Complex, the commercial premises. This shows that there was a direct link between his employment and the utilization of Shasha Complex; contrary to what he is saying now.</p> <p>            The other aspect of the case which the respondent failed to appreciate is the fact that whilst his employment claims are against the second applicant as his employer; the owner of the commercial premises in issue is the first applicant, as evidenced by the title Deeds in its name. So he cannot refuse to vacate property owned by the first applicant on the basis of his alleged dispute with the second applicant, his employer. He has to vacate from the property and pursue whatever financial claims he has against the second applicant. The first applicant, as owner, has the right to claim back its property from whoever is holding onto it without its authority.</p> <p>A related issue was that of the lease agreement. The respondent denied entering into any lease agreement. He denied signing it. The applicants said the signature on the lease agreement are similar to respondent’s. The applicants could have gone further to have the handwriting checked by an expert. It could have provided company minutes to show who the lessor was as it is not clear if it was the first applicant or the second applicant or both who leased the property to the respondent. Mr Danckwerts who represented both parties in the hearing did not clarify who he was acting for when he concluded the lease. A resolution authorising the lease should also have been attached.</p> <p>As a result, in respect of the holding over damages claim; the court has no choice but to dismiss that claim; because the applicants did not place sufficient evidence to prove the validity of the lease agreement which was the basis of the holding over damages claim.</p> <p>Consequently, it is ordered that;</p> <ol> <li>The respondent and all those claiming occupation through him be and are hereby ordered to vacate 1st applicant’s commercial premises at Chedgelow farm within 48 hours of this order.</li> <li>In the event that respondent fails to comply with the order in para (1) above, the Deputy Sheriff shall be and is hereby empowered to evict the respondent and all those claiming occupation through him from 1st applicant’s commercial premises with immediate effect.</li> <li>The applicants’ claim for holding over damages of US$600.00 <em>per </em>month from 1 July, 2016 be and is hereby dismissed.</li> <li>The respondent shall pay the applicant’s costs of suit relating to the eviction claim only; with each party meeting its own costs on the holding over damages claim.  </li> </ol> <p>  </p> <p><em>Dube, Manikai &amp; Hwacha</em>, applicants’ legal practitioners</p> <p><em>Messrs Matsikidze &amp; Mucheche</em>, respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/385/2020-zwhhc-385.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26918">2020-zwhhc-385.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/385/2020-zwhhc-385.pdf" type="application/pdf; length=344371">2020-zwhhc-385.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/l">L</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/landlord-and-tenant">LANDLORD AND TENANT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/eviction-proceedings">Eviction proceedings</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/lease">Lease</a></li></ul></span> Mon, 15 Jun 2020 09:04:33 +0000 Sandra 9664 at https://old.zimlii.org Glickmate Enterprises (Pvt) Ltd v Alouvire (Pvt) Ltd (HH 127-20, CIV 'A'119/17) [2020] ZWHHC 127 (19 February 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/127 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>GLICKMATE ENTERPRISES (PVT) LTD</p> <p>versus</p> <p>ALOUVINE (PVT) LTD</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAKUNYE AND CHIRAWU-MUGOMBA JJ</p> <p>HARARE, 10 October 2019 and 7 February 2020</p> <p> </p> <p> </p> <p><strong>CIVIL APPEAL</strong></p> <p> </p> <p><em>R. C. Muchenje</em> for the appellant</p> <p><em>M. Zvirahwa</em> for the respondent</p> <p> </p> <p>CHITAKUNYE J: On the 10th October 2019 after hearing submissions on the appeal we dismissed the appeal with costs. The appellant later asked for written reasons for the dismissal despite the fact that we had made clear the rationale for our decision. The reasons for our decision were as follows:</p> <p>On the 5th April 2015 the respondent, ALOUVINE (Pvt) Ltd, sued the appellant in the magistrate court for eviction from stand 1691D SPCA Prospect, Waterfalls, Harare. In that suit respondent alleged that it owned that stand.</p> <p>The appellant opposed the suit for eviction hence it filed its plea. The matter proceeded to trial.</p> <p>After the respondent’s witness had given her evidence and had closed its case the appellant’s legal practitioner indicated that he would file an application for absolution from the instance on the following day which was the 9th March 2017. The respondent’s legal practitioner was to thereafter file his response on the 13th March 2017. The appellant’s legal practitioner failed to file the application by the given date and instead filed it on the 13th March 2017.</p> <p>The application for absolution from the instance was subsequently dismissed. The matter was thereafter set down for continuation of trial on the 30th March 2017. On that day the appellant and its legal practitioner were not in court. The respondent duly applied for a default judgment which was granted.</p> <p>On the 3rd April 2017, the appellant applied for rescission of that default judgment alleging that it was not in wilful default and it had prospects of success in the main matter.</p> <p>The respondent opposed the application. On the 26th April 2017 after hearing arguments the magistrate dismissed the application for rescission. In dismissing the application the trial magistrate made a finding that appellant was in wilful default.</p> <p>The appellant was aggrieved by the dismissal of its application hence this appeal. The appellant advanced three grounds of appeal couched as follows:</p> <p>1. The court <em>a quo</em> erred at law in dismissing the application for rescission of default judgment when all the requirements for rescission had been met by the appellant;</p> <p>2. The court <em>a quo</em> grossly misdirected itself and erred at law in making a finding that the default was wilful contrary to the facts and reasonable explanation tendered for the default by the appellant.</p> <p>3. The court <em>a quo</em> erred at law in failing to consider the prospects of success which had been demonstrated by the appellant as a determinant on whether or not to grant rescission. In so doing the court a quo ignored a relevant consideration in the sort of application that was before it.</p> <p>The respondent opposed the appeal and contended that the court a quo’s decision was proper as appellant was in wilful default.</p> <p>It is trite to note that the rescission of a default judgment in the magistrate court was governed by Order 30 of the Magistrates Court (Civil) Rules, 1980. Rule 1 thereof provided for the manner of applying for the rescission and requirements thereof. These included, <em>inter alia</em>, that the application shall be on affidavit stating shortly the reasons for the default and the grounds for the defence to the main matter.</p> <p>Rule 2(1) thereof then provided that:</p> <p>“(1) the court may on the hearing of any application in terms of rule 1, unless it is proved the applicant was in wilful default—</p> <p>(a)  rescind or vary the judgment in question; and</p> <p>(b) give such directions and extensions of time as necessary for the further conduct of the action or application.”</p> <p>It is apparent that the first hurdle an applicant has to overcome at a hearing is the aspect of wilful default where such is contended by the respondent. In terms of r 2(1) where an applicant is shown to have been in wilful default that is the end of the inquiry. The court is not required to consider the second rung of merits of the defence once an applicant is found to have been in wilful default. The situation is thus different from the High Court wherein even after a finding of wilful default a default judgment may still be rescinded if the court upon consideration of the defence deems it that the applicant has established good and sufficient cause for the indulgence to be granted in its favour.</p> <p>In the Magistrates court the issue of the defence only arose when applicant was shown not to have been in wilful default. In <em>Karimazondo </em>v <em>Standard Chartered Bank Zimbabwe</em> 1995(2) ZLR 404(S) at 407E the Supreme Court made this position clear and any legal practitioner seeking rescission under that rule ought to have been alive to this.</p> <p>It is when an applicant is found not to have been in wilful default that court will proceed to consider the aspect of defence. In <em>V Saitis &amp; Company (Pvt) Ltd </em>v<em> Fenlake (Pvt) Ltd</em> 2002(1) ZLR 378 (H) at 384B- E chinhengo J aptly put the position as follows:</p> <p>“In <em>Gundani’s case supra</em>, the court indeed accepted that if there was wilful default then in terms of r 2(1) of Order 30 of the Magistrates Court (Civil) Rules a rescission could be refused without further ado. Order 30 r 1(2) of the magistrates court civil rules requires the applicant to establish two things if he is to succeed in an application for rescission—the reason for the default and the grounds of defence or of objection to the judgment. Rule 2(1)(a) of that Order states that, on the hearing of any application for rescission the court may rescind the judgment unless it is proved that the applicant was in wilful default. I do not however read Order 30 of the Magistrates Court (Civil) Rules as laying that once an applicant for rescission has established that he was not in wilful default then rescission will automatically be granted. Not at all. The applicant must still show that there is good and sufficient cause for rescission. The applicant is required by r 1(2) (b), as I have shown, to state shortly the grounds of his defence or of objection to the judgment. This is an allusion to ‘good and sufficient cause’. Why else would an applicant, besides giving his explanation for the default, be required to state his grounds of defence or objection?....”</p> <p>It is thus clear that where wilful default is found that is the end. Where the applicant is found not to have been in wilful default then the second rung is considered; that of the bona fides of the application and prima facie defence to the main matter.</p> <p>Wilful default has been defined to include, inter alia, a scenario whereby a litigant being aware of the set down date and time deliberately absents himself or herself from attending. See <em>Zimbank </em>v<em> Masendeke</em> 1995(2) ZLR 400(S) at 402D.</p> <p>It is in this regard that an applicant’s explanation for the default must be reasonable and acceptable. It must not be an affront to the intelligence of court.</p> <p><em>In casu</em>, the magistrate’s finding was that applicant was in wilful default and he dismissed the application. The issue is thus whether the magistrate erred and misdirected himself in making such a finding.</p> <p>It is common cause that appellant and its legal practitioner were aware of the date and time the matter was set down to resume, which was the 30th March at 8:30 am. The appellant’s representative, a Dr Mangwiro, was equally aware of this date and time. Despite this knowledge they were not in court at the time trial was to resume.</p> <p>The appellant’s explanation for the default, as contained in the founding affidavit by Mr Bamu and the supporting affidavit by Dr Mangwiro, was to the effect that on the date in question they both  arrived on time albeit separately. Mr Bamu was, however, double booked as he had to attend to another case in court 1. He alleges that he spoke to respondent’s representative, Rudo Mapfumo, and she consented for him to attend to the case in court 1.</p> <p>In his analysis of the explanation presented to him, the trial magistrate noted a number of inconsistencies in the explanation by Mr Bamu and Dr Mangwiro. For instance, whilst both claimed to have arrived at court in time, they seemed not to have seen each other before Mr Bamu went into court 1.</p> <p> In his founding affidavit Mr Bamu indicated that he attended court in time but he was double-booked as he had another matter in court 1. He then approached Mrs Rudo Mapfumo for the respondent and advised her that he intended to proceed to the next court to seek a postponement of another matter. According to him, Mrs Mapfumo agreed to this as he had said he would come back. Unfortunately for him the matter in court 1 took longer than he had anticipated though it was not opposed. This assertion by Mr Bamu is contradicted by his next statement to the effect that in court 1 there was another matter in which evidence was being led on a special plea. He thus sat through that hearing aware that he had another matter in court 2 for which he had not advised court of his whereabouts. He said he left court 1 at 9:25am after obtaining the postponement. It is then that as he was on his way to court 2, with his client, he leant that a default judgment had been entered.</p> <p>Mr Bamu also indicated that as he was still in court 1 and before his matter was heard he saw his client’s representative Dr Mangwiro in that court and informed him their case was to continue in court 2, he was in court 1 to simply postpone his other case. For some reason Dr Mangwiro did not see the need to go and wait for the legal practitioner in the appropriate court hence after the postponement in court 1 Mr Bamu and client alleged they then trudged to court 2 only to learn of the default judgment.</p> <p> In his supporting affidavit Dr Mangwiro stated that on getting to court he saw Mr Bamu in court 1 and he wrongly assumed that the case was proceeding in that court. When Mr Bamu saw him, he advised him that the case was in court 2 and that he had made arrangements with Mrs Mapfumo to have the matter stood down.  Dr Mangwirro remained in that wrong court till Mr Bamu had finished his business in court 1.</p> <p> Dr Mangwiro’s assumption was not easy to appreciate as the Magistrate presiding over the case was presiding in court 2 and the respondent’s representative was in court 2 as well. These are persons Dr Mangwiro could have seen had he gone into court 2 where his matter was being tried. For some reason he did not do this.</p> <p>Mrs Mapfumo for the respondent denied that Mr Bamu had made arrangements with her to stand down the matter till he returned from court 1. As far as she was concerned appellant and its legal practitioner were not in attendance on the day in question.</p> <p>The trial magistrate in analysing the submissions observed that the appellant s version was not cogent and had certain gaps. He noted a number of options appellant and its legal practitioner could have taken if indeed they were at court and Mr Bamu was double booked, none of which was taken. The version that Mr Bamu had another case in court 1 was not backed by any other evidence such as a notice of set down for that other case. It was simply Mr Bamu’s word that he had another case. The citing of that case was not followed up with proof that indeed that case was to be heard on the same day in court 1. Mr Bamu sought to be believed simply because he is a legal practitioner, oblivious of the dent done to his expected conduct as a legal practitioner by his previous conduct.</p> <p>It may also be noted that in his affidavit Mr Bamu did not explain when he knew that he was double booked and what steps he took to advise court. This was especially important in that this trial had been on-going and appellant was due to give its defence case. A case of being double booked does not normally suddenly arise on the date of hearing. A diligent legal practitioner would know in advance the cases on his roll and would ordinarily take appropriate steps to avoid double booking. Where such occurs appropriate steps are taken to inform the courts involved. <em>In casu</em>, Mr Bamu ought to have known that he was double booked before 30th March and as such ought to have taken appropriate steps to seek court’s indulgence. He seemed content with the explanation that he was double booked as if such is a good explanation on its own. This explanation was considered by the trial magistrate and he found it not reasonable at all. The trial magistrate was also alive to Mr Bamu’s previous conduct in this same matter which bordered on trying to drag the matter at the slightest of excuses.</p> <p>            For instance, the record of proceedings shows that on the 8th February 2017 the matter was set down for trial at 8:30am. A Ms Nyagura appeared on behalf of Mr Bamu and asked for the matter to be stood down till 11:15am as Mr Bamu was said to be attending to a bail application at the High Court and would only come at that time. The application was opposed and the trial magistrate ruled that the trial had to commence forthwith. When the respondent’s representative took the witness’ stand and took the oath to testify, suddenly Mr Bamu appeared in court. His sudden appearance was not explained despite the fact that court had been told that he would only be available at 11:15am.</p> <p>On the 17th February when the matter was to resume with the cross examination of Mrs Mapfumo, Mr Bamu was again not available. When the defendant’s representative expressed ignorance about the reason for the absence of its legal practitioner, the court resolved to proceed. The magistrate duly explained the purposes of cross examination to the appellant’s representative so that he could continue with the cross examination and as the representative was about to take on that task, Mr Bamu entered the court room and took over the cross examination. As with his previous late appearance, no explanation is on record as to why he had been late.</p> <p>After the respondent had closed its case on 8th March, Mr Bamu sought the court’s indulgence to file his application for absolution from the instance on the 9th March. Such indulgence was granted and respondent was to respond thereto by 13th March. Mr Bamu did not comply with the directive to file his application on the 9th March; he instead filed his application on the 13th March. The record has no cogent explanation for the delay.</p> <p>The application for absolution was subsequently dismissed because of that delay and the matter was to continue on 30th March 2017. It was on that day that the appellant defaulted leading to this application.</p> <p>Given such a history of apparent delays and failure by Mr Bamu, the trial magistrate may not be faulted for not believing his story that on 30th March he was double booked and was in court 1 in the absence of cogent proof to that effect. In any case, double booking is an act of misconduct especially where no explanation is given as to how the legal practitioner found himself in such a situation. If indeed Mr Bamu was double booked, he ought to have explained how that came about. In the absence of such an explanation the trial magistrate was justified in not believing him.</p> <p>Equally the same fate befell the explanation in the supporting affidavit by Dr Mangwiro. His explanation for not being in the court 2 was clearly without merit. This is a trial that had been on-going and he knew the respondent’s representative and the magistrate dealing with the matter. He ought to have been in the appropriate court. He does not even explain why he remained in court 1 even after his legal practitioner had told him that the matter was to continue in court 2. The probability is that he was not at court or if he came, he was very late.</p> <p>It is trite that an appellate court will not interfere with the exercise of judicial discretion by a lower court just at the asking. In <em>Baross &amp; Another </em>v<em> Chimponda</em> 1999(1) ZLR 58(S) at 62G- 63A gubbay C J underscored this point when he stated that:-</p> <p>“It is not enough that the appellate court considers that if it had been in the position of the primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account relevant some consideration, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution, provided always has the materials for so doing.”</p> <p>In <em>casu</em>, the trial magistrate considered the appropriate rule governing applications for rescission of default judgments in the magistrate’s court after which he ruled that the appellant had not passed the first hurdle of wilful default. He was not required to consider the aspect of the defence put forth by the appellant once he found that appellant was in wilful default and that was as it should be. The finding that appellant was in wilful default was carefully considered and arrived at. It cannot be said that in arriving at such a determination the trial magistrate applied wrong principles or took into account irrelevant considerations or factors.</p> <p>In the circumstances we were of the view that the decision of the court <em>a quo</em> cannot be faulted. The appellant’s legal practitioner was grossly negligent in the manner he conducted himself. He was fully aware of the likely consequences of failure to appear in court and so was the appellant’s representative. Despite this knowledge both of them failed to turn up in court 2 where the matter was to resume.</p> <p>            The other grounds of appeal premised on the alleged failure to consider the defence to the main matter were clearly ill conceived and of no consequence to the real bone of contention. It is the finding of wilful default that was the determining factor.</p> <p>Accordingly we dismissed the appeal with costs.</p> <p>CHIRAWU- MUGOMBA J. I concur ……………….</p> <p><em>Mbidzo, Muchadehama &amp; Makoni</em>, appellant’s legal practitioners</p> <p><em>Laita &amp; Partners</em>, respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/127/2020-zwhhc-127.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=30324">2020-zwhhc-127.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/127/2020-zwhhc-127.pdf" type="application/pdf; length=328251">2020-zwhhc-127.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/l">L</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/landlord-and-tenant">LANDLORD AND TENANT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/eviction-proceedings">Eviction proceedings</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/absolution-instance-%E2%80%93-principles">Absolution from the instance – principles</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-made-respect-ancillary-matter">application made in respect of ancillary matter</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/court-should-lean-favour-case-continuing">court should lean in favour of case continuing</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rescission-judgment">Rescission of judgment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-rescission-judgment">application for rescission of judgment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/principles-rescission-judgment">principles (Rescission of judgment)</a></li></ul></span> Wed, 19 Feb 2020 10:10:34 +0000 Sandra 9496 at https://old.zimlii.org Chirombo v Mutamburo (HH 42-20, CIV 'A' 182/17 Ref Case No. MC 304/16) [2020] ZWHHC 42 (19 December 2019); https://old.zimlii.org/zw/judgment/harare-high-court/2019/42 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>WILLIAM H. CHIROMBE</p> <p>versus</p> <p>JOHN MUTAMBURO</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUREMBA &amp; MANZUNZU JJ</p> <p>HARARE, 4 July, 2019 and 19 December 2019                              </p> <p> </p> <p> </p> <p><strong>Civil Appeal</strong></p> <p>                                           </p> <p><em>T. M Takawira,</em> for the appellant</p> <p>Respondent in person</p> <p> </p> <p> </p> <p>            MANZUNZU J: This is an appeal against the decision of the Magistrate sitting at Marondera on 23 May 2017 where the plaintiff’s claim was dismissed with no order as to costs. The appellant was the plaintiff in the lower court with the respondent as defendant. The appellant claimed among other remedies arrear rentals and holding over damages. The prayer for cancellation of the lease agreement and eviction was abandoned at trial as that was overtaken by events. After a full trial the appellant’s claim was dismissed. The appellant initially raised 4 grounds of appeal before abandoning the 3rd and 4th ground at the hearing. The two grounds of appeal relied upon are:</p> <p>“1.  The learned magistrate erred in fact and law in dismissing the appellant’s claim based on the reasoning that the lessor has the onus to prove non-payment of arrear rentals despite the law clearly stating that the lessee has the burden to prove payment of alleged arrear rentals. Specifically, the court erred in dismissing appellant’s claim in the absence of proof that respondent had indeed paid the claimed rentals.</p> <ol> <li>The learned magistrate erred in fact and in law in making a finding that the lease agreement had been orally varied by failing to consider the non-variation clause in the lease agreement and the parole evidence rule.”</li> </ol> <p> </p> <p>            The background to this matter is that appellant leased his stand 2792 Rujeko North Township Marondera to the respondent. A written lease agreement was drawn and signed by the parties. It was a 4 year lease agreement running from 1st March 2013 to 1st March 2017. In 2016 the appellant sued the respondent for $2 800 arrear rentals and holding over damages. After hearing evidence the magistrate dismissed the plaintiff’s claim. The court made certain findings of fact. Key findings of fact which led to the dismissal of the appellant’s claim were that appellant had ceded his rights to receive rent to one Maphious Mutonhori the prospective new owner to the property. Furthermore, that the respondent had proved that he paid the said arrear rentals to the said Maphious Mutonhori.</p> <p>            The grounds of appeal allege misdirection on the part of the Magistrate on both the findings of fact and law. The case of <em>Charuma Blasting &amp; Earthmoving Services (Pvt) Ltd</em> v <em>Njanjai &amp; Others</em> 2001 (1) ZLR 85 SC set the circumstances under which an appeal court can interfere with the decision of the court <em>a quo</em>, per Sandura JA.</p> <p>            “An appeal court will generally not interfere with the exercise of a discretion of a lower court.             However the appeal court is entitled to substitute its discretion for that of the lower court where       the lower court’s exercise of its discretion was based on error such as where it has acted on a     wrong principle, or took into account extraneous or irrelevant matter or did not take into account            relevant considerations or it was mistaken about facts.”</p> <p> </p> <p>a) Ground of Appeal No. 1</p> <p>            The appellant’s first ground of appeal attacks the judgment of the court <em>a quo</em> from two angles. The first being that the court applied a wrong principle of law when it pronounced that the lessor has the onus to prove non-payment of arrear rentals. A reading of the judgment is clear in that nowhere did the court say lessor has a duty to prove non-payment. The closest to that was when the court stated, “The plaintiff bears the onus of proof in relation to (a) and (b) but the lessor must prove payment.” Paragraph (a) and (b) in the judgment relates to proof for the existence of the contract and the lessor’s duties to the contract. The use of the word “lessor” in the sentence quoted above was an obvious mistake where it was meant to be “lessee” otherwise no logic can be drawn if the word lessor is used.</p> <p>            It is incorrect as suggested by the appellant in the heads that the claim was dismissed on the basis that the court had reasoned that the lessor had the onus to prove non-payment.</p> <p>            The second leg of this ground of appeal is that there was no proof of payment of rentals by the respondent. The judgment is clear in this aspect. It was the court’s finding that the rightful recipient to the rent was Maphious Mutonhori who corroborated the respondent’s evidence and also confirmed receipt of the rentals as per their prior trio agreement. That finding is based on evidence on record. We did not find any misdirection on the part of the court <em>a quo</em> in regard to this.</p> <p>b) Ground of Appeal No. 2</p> <p>            This ground of appeal attacked the judgment in that Magistrate erred in his finding that the lease agreement was varied orally. What is clear from the judgment is that no terms of the lease agreement was varied. The oral agreement only dealt with the issue of who was entitled to receive rent. In other words the appellant ceded his rights to receive rent to Maphious Mutonhori who for all intents and purposes took appellant’s legal position. An attempt was also made by the appellant to rely on the parole evidence rule. The parole evidence rule is a principle that preserves integrity of written documents. The rule applies to integrated contracts i.e. where parties acknowledge in writing that the document or statement is the complete and exclusive declaration of their agreement.</p> <p>            The findings of the court <em>a quo</em> was that there was a cession of rights in that as a result of the verbal agreement the existing creditor (appellant) ceased to be a creditor and a new creditor (Maphious Mutonhori) became a new creditor. Such an agreement in our view cannot be defeated by a non-variation clause or principle of parole evidence rule.</p> <p>            We found no merit in this ground of appeal.</p> <p>            The appeal cannot succeed. Accordingly the appeal is dismissed with costs.</p> <p> </p> <p> </p> <p> </p> <p>MUREMBA J agrees:………………………………..</p> <p> </p> <p> </p> <p><em>Mupanga BhatasaraAttorneys</em>, appellant’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/42/2020-zwhhc-42.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=22281">2020-zwhhc-42.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/42/2020-zwhhc-42.pdf" type="application/pdf; length=205403">2020-zwhhc-42.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/civil-matter-appeal">Civil matter (Appeal)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grounds-appeal">Grounds (Appeal)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/contract">CONTRACT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/evidence-0">Evidence</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/parol-evidence-rule">parol evidence rule</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-parol-evidence-may-be-led">when parol evidence may be led</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/l">L</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/landlord-and-tenant">LANDLORD AND TENANT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/lease">Lease</a></li></ul></span> Thu, 30 Jan 2020 07:31:35 +0000 Sandra 9474 at https://old.zimlii.org Bonnyview Estate (Pvt) Ltd. v Zimbabwe Platinum Mine (Pvt) Ltd. & Another (CCZ 6/19, Const. Application No. CCZ 54/18) [2019] ZWCC 06 (27 February 2019); https://old.zimlii.org/zw/judgment/constitutional-court-zimbabwe/2019/6 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Judgment No. CCZ 6/19</p> <p>Const. Application No. CCZ 54/18</p> <p> </p> <p><strong>REPORTABLE (6)</strong></p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><strong>BONNYVIEW     ESTATE     (PRIVATE)     LIMITED</strong></p> <p><strong>v</strong></p> <p><strong>(1)   ZIMBABWE   PLATINUM   MINE   (PRIVATE)   LIMITED</strong></p> <p><strong>(2)  MINISTRY   OF   LANDS   AND   RURAL   RESETTLEMENT</strong></p> <p> </p> <p><strong>CONSTITUTIONAL COURT OF ZIMBABWE</strong></p> <p><strong>HARARE, JANUARY 18, 2019 &amp; FEBRUARY 27, 2019</strong></p> <p> </p> <p><em>E Matinenga</em>, for the applicant</p> <p><em>K Kachambwa</em>, with <em>D Muchada</em>, for the first respondent</p> <p>No appearance for the second respondent</p> <p> </p> <p><strong>IN CHAMBERS</strong></p> <p><strong>MALABA CJ</strong>: This is a chamber application for leave to appeal to the Constitutional Court (“the Court”) from a decision of the Supreme Court in terms of r 32(2) of the Constitutional Court Rules SI 61/2016 (“the Rules”). The rule provides that “a litigant who is aggrieved by the decision of a subordinate court on a constitutional matter can apply to the Constitutional Court for leave to appeal against such decision”.</p> <p>The Court holds that the present application is without merit and ought to be dismissed with costs. The reasons for the decision are set out below.</p> <p>The applicant is a duly registered company and was the owner of a commercial farm in Chegutu known as Bulfield Farm, measuring 1223.1078 hectares in extent. In 1995 BHP Minerals (“BHP”) discovered a large platinum deposit in the area and subsequently acquired mining rights by obtaining a Special Mining Lease in terms of the Mines and Minerals Act [<em>Chapter 21:05</em>]. BHP was granted a servitude over 788 hectares of the farm in exchange for four million Zimbabwean dollars and a Notarial Deed of Servitude was duly registered in respect of the same.</p> <p>In 2001 another entity, by the name of Hartley Platinum Mines (Pvt) Ltd, entered into a lease agreement with the applicant, in terms of which the applicant leased part of the farm. The first respondent subsequently assumed all the lease rights and mining rights from the two companies.</p> <p>In 2000 Bulfield Farm was listed for compulsory acquisition through a <em>Government Gazette</em> dated 1 September 2000. On 15 October 2004 a notice of compulsory acquisition in terms of s 8 of the Land Acquisition Act [<em>Chapter 20:10</em>] (“the Act”) was issued in respect of the farm. The effect of that notice was that all acquired land vested in the State. In 2005 the Constitution of Zimbabwe was amended by the promulgation of ss 16A and 16B. In terms of these amendments, all agricultural land that was identified for acquisition and gazetted by the State was deemed to have been acquired by the State from the date of gazetting.</p> <p>After the expiry of the lease, the first respondent remained in occupation of the land. It refused to renew the lease agreement on the basis that the land had been acquired by the State and that the applicant had lost all rights and title to it. The first respondent took the view that the applicant could not claim rentals for land it did not own.</p> <p>The applicant approached the High Court, seeking a declaratory order that it was entitled to all benefits deriving from the first respondent’s occupation of the section of Bulfield Farm over which the applicant had passed the Notarial Deed of Servitude. It is pertinent to note at this point that in its founding affidavit before the High Court the applicant stated that, although Bulfield Farm had been listed for compulsory acquisition in 2000, it had objected to the acquisition and the farm was subsequently delisted through a government notice.</p> <p>The first respondent opposed the application and raised a preliminary point that the applicant had no <em>locus standi in judicio</em> to seek the relief that it did. It averred that the farm having been compulsorily acquired by the State, ownership now vested in the State. The applicant had no right to claim rentals over land which it did not own.</p> <p>At the hearing of the matter, the High Court was of the view that the issue of <em>locus standi</em> had to be dealt with first as its resolution could dispose of the application in its entirety. The court found that the applicant had failed to prove its allegation that the farm had been delisted and ought to be deemed not to have been compulsorily acquired. It further found that no evidence had been attached by the applicant in terms of s 5(7) of the Act to show that a notice had been published in the <em>Government Gazette</em> withdrawing the notice of acquisition.</p> <p>Consequently, it was held that Bulfield Farm had been compulsorily acquired in October 2004 when the acquisition order was gazetted and that the acquisition was given constitutional recognition when the farm was listed in terms of s 16B(2)(a)(i) of the former Constitution. The High Court held that the effect of the acquisition of Bulfield Farm was the alienation of all the applicant’s rights in the farm, save the right to claim compensation from the State for any improvements effected on it before its acquisition. As ownership now vested in the State, the court found that the applicant did not have <em>locus standi</em> to institute proceedings claiming payment of rentals by the first respondent and the application was dismissed.</p> <p>Aggrieved by that decision, the applicant noted an appeal to the Supreme Court (“the court <em>a quo</em>”) on 12 July 2017. Whilst the Notice of Appeal was timeously filed with the Registrar of the court <em>a quo</em>, the applicant failed to serve a copy of the notice on the Registrar of the High Court within the prescribed period, thereby rendering the Notice of Appeal out of time and fatally defective. Thereafter the applicant filed an application in the court <em>a quo</em> for condonation of the late filing of the appeal and extension of time within which to appeal.</p> <p>The court <em>a quo</em> dismissed the application and found that the applicant had no prospects of success on appeal. It upheld the High Court’s reasoning that the acquisition of land by the State necessarily meant the extinction of rights held by the applicant as owner and the consequent loss of <em>locus standi</em> on its part to bring any action based on the extinguished rights. Further, the court <em>a quo</em> found that the applicant incorrectly sought to challenge the correctness or otherwise of the acquisition of the land itself by the State, which issue had not been raised in the High Court and thus could not be argued on appeal. The sole ground of appeal that the applicant sought to raise on appeal was held to be incompetent, as the constitutionality of the acquisition of the land had not been challenged in the High Court. Accordingly, the court <em>a quo</em> dismissed the application.</p> <p>The applicant was dissatisfied with that decision and filed the application on 12 October 2018.</p> <p>The requirements of an application of this nature were set out in <em>The Cold Chain (Pvt) Ltd t/a Sea Harvest</em> v <em>Makoni</em> CCZ 8/17 at pp 3-4 of the cyclostyled judgment as follows:</p> <p>“The requirements for leave to appeal to the Court from a subordinate court are these:</p> <p>a)         Firstly, there must be a constitutional matter for determination by the Constitutional Court on appeal.  The reason is that in terms of s 167(1) of the Constitution the Constitutional Court is the highest court in all constitutional matters and decides only constitutional matters and issues connected with decisions on constitutional matters.  Rule 32(2) of the Constitutional Court Rules makes it clear that only a litigant who is aggrieved by the decision of a subordinate court on a constitutional matter only has a right to apply for leave to appeal to the Constitutional Court (the underlining is for emphasis).</p> <p>Rule 32(3)(c) of the Constitutional Court Rules requires that the application for leave to appeal should contain or have attached to it ‘a statement setting out clearly and concisely the constitutional matter raised in the decision’.  In other words, there must have been a constitutional matter raised in the subordinate court by the determination of which the dispute between the parties was resolved by that court.  If the subordinate court had no constitutional matter before it to hear and determine, no grounds of appeal can lie to the Constitutional Court as a litigant cannot allege that the subordinate court misdirected itself in respect of a matter it was never called upon to decide for the purposes of the resolution of the dispute between the parties.  See <em>Nyamande &amp; Anor</em> v <em>Zuva Petroleum </em>2015 (2) ZLR 351 (CC).</p> <p>Under s 332 of the Constitution a constitutional matter is one in which there is an issue involving the interpretation, protection or enforcement of the Constitution. Absence of an issue raised in the proceedings in the subordinate court requiring the interpretation, protection or enforcement of a provision of the Constitution in its hearing and determination would invariably be sufficient evidence of the fact that no constitutional matter arose in the subordinate court.</p> <p>b)         Secondly, the applicant must show the existence of prospects of success for leave to be granted.  In <em>Nehawu</em> v <em>University of Cape Town</em> 2003 (2) BCLR 154 (CC), the Constitutional Court of South Africa held that the applicant must show that there are reasonable prospects that the Constitutional Court ‘will reverse or materially alter the judgment if permission to bring the appeal is given’.”</p> <p> </p> <p>What is clear from the above authority is the following -</p> <ol> <li> </li> <li> </li> <li> </li> </ol> <p><em>In casu</em>, it is the applicant’s contention that a constitutional matter was raised before the High Court and the court <em>a quo</em>. The applicant annexed to the application the founding affidavit in the application before the High Court, which is said to have raised a constitutional issue pertaining to the acquisition of a portion of Bulfield Farm which was the subject of the Servitude Agreement. In terms of para 34 of the founding affidavit, the applicant sought the following relief:</p> <p>“In the circumstances I seek an order that solely with respect to the land which is the subject of the servitude, it is ordered that the provisions of Amendment 17 do not apply to the leased area of the property and the applicant is entitled to all benefits that flow therefrom.”</p> <p> </p> <p>The draft order to the application read as follows:</p> <p>“1.       The applicant is entitled to all benefits deriving from the occupation by the respondent of that section of Bulfield Farm which is the subject of Notarial Deed of Servitude 11-7-95.</p> <p> 2.        The respondent shall pay the applicant’s costs.”</p> <p> </p> <p>Section 332 of the Constitution defines a constitutional matter as “a matter in which there is an issue involving the interpretation, protection or enforcement of this Constitution”. What constitutes a constitutional matter was discussed by the Court in <em>Moyo</em> v <em>Sergeant Chacha &amp; Ors</em> CCZ 19/17 at p 15 of the cyclostyled judgment as follows:</p> <p>“The import of the definition of ‘constitutional matter’ is that the Constitutional Court would be generally concerned with the determination of matters raising questions of law, the resolution of which require the interpretation, protection or enforcement of the Constitution.</p> <p>The Constitutional Court has no competence to hear and determine issues that do not involve the interpretation or enforcement of the Constitution or are not connected with a decision on issues involving the interpretation, protection or enforcement of the Constitution.”</p> <p> </p> <p>After perusal of the papers filed in the High Court, it is apparent that the relief that was sought in the High Court did not involve the interpretation, protection or enforcement of the Constitution. Thus, no constitutional matter was raised or determined. What the applicant simply sought was a declaration protecting its commercial interests in respect of a portion of Bulfield Farm.</p> <p>That there was no constitutional matter before the High Court is even further apparent from the <em>ratio decidendi</em> of the court in dismissing the application. It reasoned that the applicant had failed to establish, on the papers filed of record, that the farm was subsequently delisted and should be deemed not to have been compulsorily acquired and that the applicant did not withdraw its formal admission that the farm had been acquired by the State. The issue of the acquisition and subsequent delisting of Bulfield Farm was a factual one and not a question of law. It did not involve the interpretation, protection or enforcement of the Constitution.</p> <p>What the applicant had pleaded before the court was that the farm had been compulsorily acquired and was subsequently delisted by a Government Notice after it had objected to the acquisition. It then had to produce proof of the delisting but failed to do so. The basic principle at law is that he who alleges must prove. The applicant made an affirmative assertion of a fact which was not self-evident and thus had an obligation to prove the same.  See <em>Liberal Democrats &amp; Ors</em> v <em>President of the Republic of Zimbabwe E.D. Mnangagwa N.O. &amp; Ors</em> CCZ 7/18. It failed to prove the facts it alleged. The result was that the High Court held that the acquisition of Bulfield Farm meant the alienation of all the applicant’s rights and title, which now vested in the State. As such, it was found that the applicant had no <em>locus standi</em> to seek the declaratory order that it sought.</p> <p>As already found above, there was no constitutional issue raised before the High Court. Neither did the court deal with one. The constitutionality of the acquisition of the farm itself was never questioned, even through the intended ground of appeal that the applicant sought to argue in the court <em>a quo</em>. The sole ground of appeal read as follows:</p> <p>“The court <em>a quo</em> erred and misdirected itself at law in finding that the appellant did not have <em>locus standi in judicio </em>to institute action seeking the relief it sought against the first respondent arising out of a purported compulsory acquisition of a portion of Bulfield Farm by the second respondent, which portion of Bulfield Farm was the subject of a Notarial Deed of Servitude registered in favour of the first respondent on 11 July 1995.”</p> <p> </p> <p> That ground of appeal did not raise any constitutional issue before the court <em>a quo</em>. In response to the applicant’s argument that it intended to challenge the constitutionality of the acquisition of the farm by the State as the land was not agricultural land, the court <em>a quo</em> dismissed the application before it. It held at p 4 of the cyclostyled judgment in <em>Bonnyview Estates (Pvt) Ltd</em> v <em>Zimbabwe Platinum Mines (Pvt) Ltd</em> SC 58/18 as follows:</p> <p>“It cannot be disputed that acquisition of the land by the State necessarily meant the extinction of rights in the land held by the applicant as owner and the consequent loss of <em>locus standi</em> on its part to bring any action based on the extinguished rights, which was the <em>ratio decidendi</em> of the court <em>a quo’s</em> decision. The correctness of this finding is beyond reproach.  To its credit, the applicant does not seek to challenge it on appeal. Instead, and incorrectly so, the applicant seeks to challenge the correctness or otherwise of the acquisition of the land itself by the second respondent on behalf of the State. It argued that it intends on appeal to raise the constitutionality or otherwise of the acquisition of its land by the State as the land in dispute is not agricultural.</p> <p>With respect, this issue was not before the court <em>a quo</em> and therefore cannot be an issue on appeal.  It is clearly an incompetent ground of appeal in the matter.  An incompetent ground of appeal cannot be raised or sustained on appeal and it therefore does not and cannot enjoy any prospects of success on appeal. A ground of appeal that enjoys prospects of success on appeal is one that if successfully argued on appeal will result in the setting aside of the decision appealed against. An improperly raised ground of appeal cannot be argued on appeal and will thus have no effect on the judgment appealed against.”</p> <p> </p> <p>Simply put, the <em>ratio decidendi</em> applied by the court <em>a quo</em> in dismissing the application for condonation and extension of time within which to note an appeal was that the application had no prospects of success on appeal. This was because the ground of appeal was incompetent and it raised a point that did not arise from the pleadings that were before the High Court.</p> <p>It is settled law that a point of law can be raised for the first time on appeal if it involves no unfairness or prejudice to the party against whom it is raised. See <em>Kufa</em> v <em>The President of the Republic of Zimbabwe &amp; Ors</em> CCZ 22/17. However, in this case, the position that the applicant sought to take in the court <em>a quo</em> would lead to manifest prejudice to the respondents, in that it sought to raise a fresh ground for the first time on appeal as the sole ground of appeal. Clearly this was not acceptable.</p> <p>In argument before the Court, <em>Mr</em> <em>Matinenga</em>, for the applicant, said that the High Court erred, in that it did not direct itself to the central issue of whether or not the portion of Bulfield Farm had been acquired in terms of the law. It was argued that the portion of Bulfield farm, measuring 788 hectares in extent, which was subject to the Notarial Deed of Servitude, was not compulsorily acquired by the State as it was the subject of mining rights. It was alleged that the High Court fell into error in failing to find that the portion of the farm was unlawfully acquired. Thus, the applicant had the necessary <em>locus standi</em> to challenge the acquisition before the High Court.</p> <p>In the Court’s view, this argument would hold water had the applicant been in possession of separate title deeds, evincing its ownership of that specific part of the farm that was subject to the servitude. However, it is common cause that Bulfield Farm was held under one title deed and was compulsorily acquired as a whole by the State. This renders baseless the applicant’s argument that the High Court ought to have considered the constitutionality of the acquisition of part of the farm when the farm was acquired as a whole.</p> <p>The application also fails to satisfy the requirements of r 32(3)(c) of the Rules, which are to the effect that an application for leave to appeal should contain a “statement setting out clearly and concisely the constitutional matter raised in the decision and any other issues, including issues that are alleged to be connected with a decision on the constitutional matter”. (emphasis added)</p> <p>The rationale behind this requirement is that the court seized with the matter must be made conscious of the constitutional question that it ought to determine. The constitutional issue that is to be decided by the court <em>a quo</em> ought to be raised by the party that seeks to benefit from its determination. The raising of a constitutional issue in a clear and concise manner allows the court to direct its mind to that issue. Thus, it is crucial that the court ought to have exercised its mind on the issue that was before it and made a determination. It is imperative that the constitutional question be properly raised and not be left hidden in the pleadings before the court.</p> <p>In Canada, the Supreme Court is the highest court in the land. The Supreme Court Act (R.S.C., 1985, c. S-26) gives birth to the Rules of the Supreme Court of Canada (SOR 2002/1556). Part 5 of these Rules governs applications for leave to appeal and r 25(1)(c)(ii) is of importance. It provides as follows:</p> <p>“<strong>Application for Leave to Appeal</strong></p> <p> </p> <p><strong>25        </strong>(1) An application for leave to appeal shall be bound and consist of the following, in the following order:</p> <p> </p> <ul> <li>a notice of application for leave to appeal in Form 25, citing the legislative provision that authorises the application for leave to appeal;</li> </ul> <p> </p> <p>(b)        beginning with the court of first instance or the administrative tribunal, as the case may be, and ending with the court appealed from,</p> <p> </p> <p>(i)         copies of the reasons, if any, for the respective judgments of the lower courts, as issued by the lower courts,</p> <p> </p> <p>(ii)        copies of all formal judgments or orders, as signed and entered, and</p> <p> </p> <p>(iii)       copies of all draft orders, the final versions of which shall be filed separately immediately after they are signed and entered;</p> <p> </p> <p>(c)        a memorandum of argument divided as follows:</p> <p> </p> <p>(i)         Part I, a concise overview of the party’s position with respect to issues of public importance that are raised in the application for leave to appeal and a concise statement of facts,</p> <p> </p> <p>(ii) Part II, a concise statement of the questions in issue and, if the proposed appeal raises an issue in respect of the constitutional validity or applicability of a statute, regulation or common law rule or the inoperability of a statute or regulation, a concise statement of the issue.” (the emphasis is mine</p> <p> </p> <p> </p> <p>In <em>Crowell</em> v <em>Randell</em> 35 U.S. 368 the United States Supreme Court, in interpreting similar provisions, as encapsulated in the Judiciary Act of 1789, said:</p> <p>“In the interpretation of this section of the Act of 1789, it has been uniformly held, that to give this court appellate jurisdiction two things should have occurred and be apparent in the record: first, that some one of the questions stated in the section did arise in the court below; and secondly, that a decision was actually made thereon by the same court, in the manner required by the section. If both of these do not appear on the record, the appellate jurisdiction fails. It is not sufficient to show, that such a question might have occurred, or such a decision might have been made in the court below. It must be demonstrable, that they did exist, and were made.”</p> <p> </p> <p>In <em>Cardinale v Louisiana</em> 394 U.S. 437 (1969) mr justice white also held at p 438:</p> <p>“Although <em>certiorari</em> was granted to consider this question, the fact emerged in oral argument that the sole federal question argued here had never been raised, preserved, or passed upon in the state courts below. It was very early established that the Court will not decide federal constitutional issues raised here for the first time on review of state court decisions. In <em>Crowell</em> v <em>Randell,</em> 10 Pet. 368 (1836), justice story reviewed the earlier cases commencing with <em>Owings</em> v <em>Norwood's Lessee,</em> 5 Cranch 344 (1809), and came to the conclusion that the Judiciary Act of 1789, c. 20, § 25, 1 Stat. 85, vested this Court with no jurisdiction unless a federal question was raised and decided in the state court below. ‘If both of these do not appear on the record, the appellate jurisdiction fails.’”</p> <p> </p> <p><em>In casu</em>, that there was no clear and concise statement setting out the constitutional matter in the two subordinate courts cannot be meaningfully disputed. This is because there was no constitutional issue that was determined by the High Court or the court <em>a quo</em>. There is, therefore, no constitutional question that can be characterised as having been properly raised. In the absence of such constitutional question, the application fell short of the requirements of r 32(3)(c) of the Rules. The result is that the applicant cannot allege that the court <em>a quo</em> misdirected itself in respect of a matter that it was never called upon to decide for the purposes of the resolution of the dispute between the parties.</p> <p>This brings to the fore the issue relating to the hierarchy of courts in non-constitutional matters. In this regard, s 169(1) of the Constitution becomes paramount. It provides as follows:</p> <p>“<strong>169 Jurisdiction of Supreme Court</strong></p> <p>(1) The Supreme Court is the final court of appeal for Zimbabwe, except in matters over which the Constitutional Court has jurisdiction.”</p> <p> </p> <p>In <em>Rushesha &amp; Ors v Dera &amp; Ors</em> CCZ 24/17 gwaunza jcc (as she then was), at p 10 of the cyclostyled judgment, interpreted this provision in the following manner:</p> <p>“The import of this provision needs no elaboration. Only where the Supreme Court determines a constitutional issue, may one appeal to this Court for a final determination.  Because the Supreme Court in this matter did not determine any constitutional issue, the decision it rendered was final and not appealable.”</p> <p> </p> <p>In <em>Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd &amp; Anor </em>CCZ 11/18, the Court held at p 22 of the cyclostyled judgment that the principles that emerge from s 169(1) of the Constitution, as read with s 26 of the Act, are clear. The Court then said:</p> <p>“A decision of the Supreme Court on any non-constitutional matter in an appeal is final and binding on the parties and all courts except the Supreme Court itself. No court has power to alter the decision of the Supreme Court on a non-constitutional matter. Only the Supreme Court can depart from or overrule its previous decision, ruling or opinion on a non-constitutional matter. The <em>onus </em>is on the applicant to allege and prove that the decision in question is not a decision on the non-constitutional matter.”</p> <p> </p> <p>Further, s 26(1) of the Supreme Court Act [<em>Chapter 7:13</em>] reaffirms the above position. It states:</p> <p>“<strong>26 Finality of decisions of Supreme Court</strong></p> <p>(1) There shall be no appeal from any judgment or order of the Supreme Court.”</p> <p> </p> <p>As is apparent from the above provisions, the Supreme Court is the final court of appeal except in matters where the Court has jurisdiction. As already found, there was no constitutional issue raised before and determined by the High Court. Neither was there a constitutional issue raised before and determined by the court <em>a quo</em>. The dismissal of the application by the court <em>a quo</em> remains final. It cannot be appealed against.</p> <p>The critical effect is that the first requirement in an application for leave to appeal to the Court, which is to the effect that a constitutional matter ought to have been raised in the subordinate court, has not been satisfied.</p> <p>The second requirement in an application of this nature, as set out in <em>The</em> <em>Cold Chain</em> case <em>supra</em>, is that the applicant must demonstrate the prospects of success on appeal.</p> <p>In assessing the prospects of success, it is pertinent to analyse the draft Notice of Appeal that was attached to this application. The grounds of appeal are set out as follows:</p> <ol> <li> </li> </ol> <p> </p> <ol> <li> </li> </ol> <p> </p> <ol> <li> </li> </ol> <p> </p> <p>Based on those grounds, the relief sought is as follows:</p> <ol> <li> </li> </ol> <p> </p> <ol> <li> </li> </ol> <p> </p> <ol> <li> </li> </ol> <p> </p> <ol> <li> </li> </ol> <p> </p> <p>A reading of the grounds of appeal and the relief sought shows that the applicant is aggrieved with the denial of condonation and extension of time within which to appeal by the court <em>a quo</em>. In other words, the applicant queries the correctness of the court <em>a quo</em>’s judgment. There has been no demonstration of prospects of success by the applicant. All that the applicant has done is to pray for the condonation of the late noting of the appeal in the court <em>a quo</em>. No constitutional relief is sought. Consequently, there is no reasonable prospect that the Court would reverse or materially alter the judgment of the court <em>a quo</em> if permission to bring the appeal is given.</p> <p>The refusal by the court <em>a quo</em> to grant condonation did not involve the determination of a constitutional issue. Neither did the dismissal of the application before the High Court. As such, the Court has no jurisdiction to hear and determine the question of the wrongness or otherwise of the decision of the court <em>a quo</em> on a non-constitutional issue.</p> <p>The remarks by the Court in <em>Chiite &amp; Ors v The Trustees of the Leonard Cheshire Homes Zimbabwe Central Trust </em>CCZ 10/17 at pp 5-6 of the cyclostyled judgment are apposite. The Court held as follows:</p> <p>“What the Court has before it are disgruntled litigants who have attempted to try and obtain redress under the guise of an appeal on a constitutional matter. Their criticism of the judgment of the Supreme Court set out in what purports to be grounds of appeal is no more than a raging discontent over the factual findings of the Supreme Court.  The grievances of the losers in the Supreme Court have all the hallmarks of a mere dissatisfaction with the factual findings by that court.  See <em>De Lacy &amp; Anor</em> v <em>South African Post Office</em> 2011(a) BCLR 905(CC) moseneke dcj paras 28 and 57.”</p> <p> </p> <p>The applicant is simply disgruntled with the decision of the court <em>a quo </em>on a non-constitutional issue.</p> <p><strong>DISPOSITION</strong></p> <p> </p> <p>The application is dismissed with costs.</p> <p> </p> <p><strong>MAVANGIRA JCC:            I agree</strong></p> <p> </p> <p><strong>BHUNU JCC:                       I agree</strong></p> <p> </p> <p><em>Venturas &amp; Samukange</em> applicant’s legal practitioners</p> <p><em>Dube, Manikai &amp; Hwacha</em> first respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2019/6/2019-zwcc-06.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=42634">2019-zwcc-06.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2019/6/2019-zwcc-06.pdf" type="application/pdf; length=208170">2019-zwcc-06.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/constitutional-matter">Constitutional matter</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/court">COURT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/jurisdiction-court">Jurisdiction (COURT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/land">Land</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/acquisition-land">Acquisition of land</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/notice-acquisition-land">notice of acquisition of land</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/occupation-former-owner-farm-or-any-part-thereof">occupation by former owner of farm or any part thereof</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/landlord-and-tenant">LANDLORD AND TENANT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/lease">Lease</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-practice-and-procedure">Application (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/late-noting-application">late noting of application</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/locus-standi-judicio">Locus standi in judicio</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/constitutional-court-zimbabwe/2017/8">The Cold Chain (Pvt) Ltd. v Makoni (CCZ 8/2017 CONST. APPLICATION NO. CCZ 79/16) [2017] ZWCC 8 (17 February 2017);</a></div><div class="field-item odd"><a href="/zw/judgment/constitutional-court-zimbabwe/2015/8">Nyamande &amp; Another v ZUVA Petroleum (CCZ 8/15 Civil Application No. CCZ 62/15) [2015] ZWCC 8 (01 August 2015);</a></div><div class="field-item even"><a href="/zw/judgment/constitutional-court-zimbabwe/2017/19">Moyo v Sgt Chacha &amp; Others (CCZ 19/17 , Const. Application No. CCZ 73/16) [2017] ZWCC 19 (20 September 2017);</a></div><div class="field-item odd"><a href="/zw/judgment/constitutional-court-zimbabwe/2018/7">Liberal Democrats &amp; 4 Others v President of the Republic of Zimbabwe E.D. Mnangagwa N.O &amp; 4 Others (CCZ 7/18, Constitutional Application No. CCZ10/18) [2018] ZWCC 7 (16 July 2018);</a></div><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2018/58">Bonnyview Estates (Private) Limited v Zimbabwe Platinum Mines (Private) Limited &amp; Another (SC 58/18, Civil Appeal No. 411/17) [2018] ZWSC 58 (26 September 2018);</a></div><div class="field-item odd"><a href="/zw/judgment/constitutional-court-zimbabwe/2018/11">Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited &amp; Anor (CCZ 11/18, Constitutional Application No. CCZ 54/17) [2018] ZWCC 11 (20 November 2018);</a></div><div class="field-item even"><a href="/zw/judgment/constitutional-court-zimbabwe/2016/10-0">Chiite &amp; 7 Others v Trustees, Leonard Cheshire Homes Zimbabwe Central Trust (CCZ 10/17 CONST. APPLICATION NO. CCZ 5/15) [2017] ZWCC 10 (23 November 2016);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1961/38">Mines and Minerals Act [Chapter 21:05]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1992/3">LAND ACQUISITION ACT</a></div><div class="field-item even"><a href="/zw/legislation/act/1981/28">Supreme Court Act [Chapter 7:13]</a></div></div></div> Thu, 11 Apr 2019 11:02:07 +0000 admin 9298 at https://old.zimlii.org Tshuma v Dube (HB 275-18, HCA 11/18) [2018] ZWBHC 275 (08 November 2018); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2018/275 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>MBONGENI TSHUMA</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>DOMINIC DUBE</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>MAKONESE &amp; TAKUVA JJ</p> <p>BULAWAYO 5 &amp; 8 NOVEMBER 2018</p> <p> </p> <p><strong>Civil Appeal</strong></p> <p> </p> <p><em>K. Phulu</em> for the appellant</p> <p>Respondent in person</p> <p>            <strong>MAKONESE J:        </strong>After hearing argument in this matter we upheld the appeal and set aside the judgment of the court <em>a quo.</em>  These are the full reasons for the decision.</p> <p>            It is a settled principle of our law that an appeal must be against an order or judgment of the court, and not against the individual findings.  In certain instances, however an appeal against certain findings is properly launched, if such findings are decisive of the triable issues before the court.</p> <p>            The facts of the matter are fairly simple.  The sole issue before the court <em>a quo</em> was whether there was a valid lease agreement between the appellant and the respondent in respect of a property known as stand 56C, Mthwakazi, in Filabusi area.  The respondent issued summons against the appellant seeking an eviction order against the appellant.  The basis of the claim was that appellant had leased the property, which comprised a shop to the appellant who was refusing to vacate the premises.  The respondent claimed that he had leased the premises for the period August 2014 to August 2015.  The respondent asserted that it was a term of the oral agreement that respondent would pay rentals at US$500 per month.  The appellant paid the respondent a lump sum of US$2 500.  The respondent who was unwell left for his rural home where he was recuperating.  The respondent avers that when he had recovered he approached the appellant seeking his rentals.  This was around August 2015.  The appellant had by that time taken over occupation of the property and had demolished the old existing structure and had modernized the building.  The appellant contended that he had purchased the property from the respondent and had paid him a sum of US$7 500 in cash.  He had made extensive renovations on the property amounting to US$19 000 and what was outstanding was the transfer of ownership to him.  The appellant denied that he was leasing the premises from the respondent and that in fact there was never such a lease in existence.</p> <p>            The learned magistrate in the court <em>a quo</em> ruled in favour of the respondent and ordered the eviction of the appellant.  The learned magistrate made a finding that of the two parties, the appellant was the “more sophisticated”, in that he ran various businesses scattered around the Filabusi area.  The magistrate reasoned that it was improbable that the appellant would have concluded a verbal agreement for purchase of an immovable property.  Further, the magistrate’s view was that the appellant had failed to explain how he managed to have electricity disconnected from the old premises without the assistance of the respondent, and that if respondent had sold the property to him, he would not have refused to assist the appellant.  For that reason, the learned magistrate, concluded, “judgment should be resolved in favour of the plaintiff”.</p> <p>            What becomes evident is that, without attempting to analyse the evidence led by the parties, the court <em>a quo</em> decided to believe the respondent.  The court <em>a quo</em> then ordered the eviction of the appellant from the premises.  Aggrieved by the decision of the magistrate in the court <em>a quo</em>, the appellant lodged this appeal.</p> <p><strong>Issues for determination in this appeal</strong></p> <p>            The following issues which are raised in the grounds of appeal lie for determination by this court:</p> <ol> <li>Whether the court <em>a quo</em> made a finding at all on the existence of a lease agreement, and whether the court erred at law in failing to do so.</li> <li>Whether the court <em>a quo</em> erred in its analysis and examination of the oral evidence of the witnesses who testified before it.</li> <li>Whether the court <em>a quo</em> misconstrued the appellant’s defence to the plaintiff’s claim in summarizing the parties’ positions, and whether this mischaracterisation caused the court to misdirect itself.</li> <li>Whether the court <em>a quo</em> erred in its finding on the issue of the failure to put the contract in writing, and the issue of the sophistication of the parties, when such issues were pivotal issues in its findings on the probabilities.</li> </ol> <p><strong>Findings by the court <em>a quo</em></strong></p> <p>            In arriving at his decision, the learned magistrate made adverse findings regarding the appellant’s case.  By inference the he found that the evidence of the contract of sale was false.  He found that the evidence of the respondent was true.  The learned trial magistrate in summarizing the appellant’s case held as follows:</p> <p><em>“Defendant opposed the relief and in doing so set up the defence that he had bought the property subject to the claim from the plaintiff.”</em></p> <p>            Clearly, this summary of the appellant’s case caused the learned magistrate to fail to appreciate substantive issue of onus and the burden of proof in so far as it related to the respondent’s claim that there was a lease agreement between the parties.  This was a serious misdirection.  Further, and in any event, the respondent’s version was riddled with glaring commercial improbabilities which ought to have immediately captured the attention of the court.  The court conveniently ignored the improbabilities and proceeded to grant an eviction order. The first issue for consideration was that there was no reason given for the payment of five month’s rent in advance, for a business that had not even commenced operations.  The respondent upon collecting the advance payment went away to rest at his rural home only to return a year later.  When he found that his old building had been demolished and that appellant had erected a new structure he raised no issue.  The evidence of the builder, Dumisani Mpofu, is to the effect that the respondent gave positive comments regarding the new building.  The respondent did not enquire from the builder why they had demolished his building.  The appellant, being a business person would not have constructed a new structure at considerable expense, if the agreement he had with the respondent was for a lease.  This runs against both commercial and good common sense.</p> <p>            In a case where there are two mutually destructive versions of events, the learned magistrate’s duty was to make a definite choice as to which side was being truthful.  There was no question of one side having misunderstood what the other alleged happened between them.  There was either a sale or lease between the parties.  For some strange reason the learned magistrate decided not to analyse the evidence of the witness.  The learned magistrate simply went along and agreed with the evidence of the respondent without analyzing the evidence of each of the witnesses.  See the case of <em>Mtimkulu </em>v <em>Nkiwane &amp; Anor</em> A SC-136-01.</p> <p>            In this matter MALABA (JA) (as he then was) stated at page 3 of the cyclostyled judgment as follows:</p> <p><em>“The principle that governs the approach of an appellate court on the question of the correctness of the trial court’s findings of fact is that as a general rule the trial court’s findings on the credibility of the witnesses should not be lightly disturbed because the court would have seen the witnesses give evidence and from that position was better placed to comment accurately on their demeanour.  An appeal is, however a re-trial on the recorded evidence.”</em></p> <p>            In the appeal before this court, the court may disagree with the findings of the trial court, if on examination of all the circumstances (such as inferences from unquestioned facts and probabilities) of the case it comes to the conclusion that the trial court’s findings on credibility cannot be supported.  The appeal court requires cogent and substantial reasons for it to hold that the trial court was wrong in its assessment of witnesses.  See ; <em>National Suppliers Mutual General Insurance Association </em>v <em>Gany</em> 1931 AD 187 at 199.</p> <p>            In this matter, five witnesses gave oral testimony in the court <em>a quo</em>.  Their versions were aligned with the case of the party they testified for.  The parties to the litigation maintained mutually destructive versions.  Faced with such a situation, the court was enjoined to apply the test set out in; <em>Stellenbosch Farmers Winery Group Ltd &amp; Anor </em>v <em>Martell Etcle &amp; Ors</em> 2003 (1) SA 11 (SCA), where the court held as follows:</p> <p><em>The technique generally employed by courts in resolving factual disputes of this nature may be commonly summerised as follows:  To come to a conclusion on the disposed issues the court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities … As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues …”</em></p> <p>            The learned magistrate in the court <em>a quo</em> did not apply any of the tests referred to in the above case law.  The court seemed to focus only on the evidence of the appellant and the respondent.  He did not analyse the evidence of the rest of the witnesses.  In the end the trial magistrate dwelt on the “sophistication” of the parties.  This approach led the trial magistrate to come to wrong conclusions on the facts and the law.  The failure to assess all the evidence and to apply the proper legal tests to the evidence was a material misdirection.  As a result, the discrepancy between the evidence of the respondent and that of his witness, Sothini Mlalazi, regarding the amount paid by the appellant to the respondent on 5th August 2015 went without comment, mention or notice.  This discrepancy was material, and ought to have been weighed by the court <em>a quo</em>.  If the witness was present she would have known the exact amount and what currency was paid.  She would not have testified to payment of ZAR2 500 instead of US$2 500.  The court totally ignored this piece of evidence.  The issue which the trial court dwelt with in detail in assessing probabilities in this matter was done in an unusual and unprecedented manner.  The approach by the learned magistrate is unique and I must say unconventional and without precedent or logic.  The entire case was decided on the level of sophistication of the parties.  The learned magistrate had this so say on this aspect.</p> <p><em>“In this particular case, the court had to look at the sophistication of the parties,neither displayed an advanced degree of sophistication”.</em></p> <p>            The magistrate then continued:</p> <p><em>            “It was, however, appeared that the defendant is an astute businessman (sic)”.</em></p> <p>            Of great concern to this court, however, is the fact that the learned magistrate did not attempt to decide the issue that was before him.  The single issue for determination was whether there was lease agreement between the appellant and the respondent.  The learned magistrate did not make any specific findings on the substantive issue of the existence of the lease agreement.  There was no attempt to deal with the issue of the burden of proof on the respondent to prove the existence of the lease agreement on a balance of probabilities.  Trial magistrates ought to remind themselves that in a trial the court has the duty to determine the triable issue or issues before it. They must determine the issues and make specific findings on them based on a careful analysis of all the evidence.  That is the essential purpose of a trial.  It was incumbent upon the court <em>a</em> <em>quo </em>court to make findings on the terms and nature of the lease entered into by the parties as alleged by the respondent.  In the absence of evidence establishing the existence of a lease agreement, respondent did not discharge the burden of proof.  The two destructive versions of the parties were not properly dealt with in that the court did not analyse the totality of the evidence before it.  This misdirection was so fundamental and this court on appeal, is entitled to interfere with the findings and order of the court <em>a quo</em>.</p> <p>            For the aforegoing reasons the following order is made:</p> <ol> <li>The appeal is upheld.</li> <li>The judgment of the court <em>a quo</em> be and is hereby set aside and substituted with the following:</li> </ol> <p>“The plaintiff’s claim is dismissed with costs.”</p> <ol> <li>The respondent is ordered to pay the costs of suit.</li> </ol> <p> </p> <p>Takuva J ………………………………. I agree</p> <p><em>Vundhla-Phulu &amp; Partners,</em> appellant’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/275/2018-zwbhc-275.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=23598">2018-zwbhc-275.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/275/2018-zwbhc-275.pdf" type="application/pdf; length=144890">2018-zwbhc-275.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/landlord-and-tenant">LANDLORD AND TENANT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/lease">Lease</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/dispute-facts-practice-and-procedure">Dispute of facts (PRACTICE AND PROCEDURE)</a></li></ul></span> Thu, 20 Dec 2018 08:22:37 +0000 admin 9230 at https://old.zimlii.org Star Africa Corporation (Private) Limited v Broadhaven Manufacturing (Private) Limited & Another (HH 151-18, HC 4045/16 Ref Case No. HC 4045/16 Ref Case No. HC 4041/16 Ref Case No. HC 10793/14) [2018] ZWHHC 151 (20 March 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/151 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>STAR AFRICA CORPORATION (PRIVATE) LIMITED</p> <p>versus</p> <p>BROADHAVEN MANUFACTURING (PRIVATE) LIMITED</p> <p>and</p> <p>THE SHERIFF (HARARE)</p> <p>HIGH COURT OF ZIMBABWE<br /> TSANGA J<br /> Harare, 27 February 2018 &amp; 20 March 2018</p> <p><strong>Opposed Application</strong></p> <p><em>T Mutema, </em>for the applicant<br /> <em>R Nyapadi, </em>for the 1st Respondent<br /> <em>No appearance, </em>for the 2nd respondent</p> <p>            TSANGA J: Following an urgent chamber application for stay of execution, the applicant and first respondent had entered into a deed of settlement on 24 May 2016 in which the Applicant (as then first respondent), agreed to stay execution on account that the 1st Respondent (as then Applicant), paid an amount of $40 345.45 owing to it as rentals in monthly instalments of $6000.00 starting 30 May 2016 and thereafter on the 24th day of every new month for a further period of 7 months until the debt was extinguished. What was indisputable in this application was that the first respondent herein made the first payment on 2 June with difficulty as only US$4000.00 was paid instead of the agreed US$6000.00. It was also not in dispute that it was the only and ever payment made under the Deed. As such, applicant sought to enforce its rights for the payment of what remained owing, namely,</p> <p>US$36 345.45. It also sought that the first respondent be forthwith evicted from Stand</p> <p>371-275 Mubaira Growth Point, Mhondoro.</p> <p>The first respondent sought to challenge the applicant on several grounds. Firstly, it was argued that in terms of the Deed of Settlement the applicant should have written to it confirming the stay and that as it had not done and it was therefore approaching the court with dirty hands.</p> <p>Clause 3a of the Deed of Settlement in question read as follows:</p> <p>3. It shall be a further condition that upon the signing of this deed that:</p> <p>a) The applicant shall withdraw its application for rescission of judgment under case no. 4014/16 and that the applicant undertakes not to file any subsequent application in this matter seeking either a stay of execution or a rescission of judgment in this matter and that;</p> <p>b) first respondent … shall not execute and /or enforce the judgment under</p> <p>HC 10793/14 and shall forthwith instruct the second respondent (sheriff) in writing to unconditionally stay the execution of the judgment under</p> <p>HC 10793/14 and immediately furnish proof of same to applicant through its legal practitioners of record.</p> <p>           </p> <p>            It was however not in dispute that the Applicant effectively instructed the Sheriff to stay execution in HC 10793/14 and that following the signing of the agreement in that no attempt was ever or has ever been made to execute. The applicant’s heads made it clear that pursuant to the deed of settlement the applicant had instructed the Sherriff at Chivhu to stay execution of HC 10793/14 which execution was accordingly stayed on 26 May 2016. Respondent’s gripe was therefore simply that despite these realities on the ground, proof had not been furnished to it.</p> <p>What the first respondent sought to rely on was therefore no more than a technical argument in saying that the stay should have been communicated to it in writing in order for it to pay what it owed. As Applicant rightly argued, no prejudice had befallen the 1st Respondent since the Applicant had in practical terms stayed the execution. This court therefore dismissed this argument in the absence of a compelling reason why the 1st Respondent had not paid the instalments due.</p> <p>            Secondly, the first respondent argued that the relief sought was not in the Deed of Settlement and that in terms of the deed, what applicant should have done was to seek to have the Deed registered as an order of the court.</p> <p>Clause 4 of the Deed read as follows:</p> <p>4. In the event that applicant fails to comply with any of the above clauses, this order shall be registered as an order of court and the full amount owing at that time and eviction shall immediately become due and payable to the first respondent and such balance shall be executable.</p> <p>            Applicant explained that the terms of draft order were as per the initial court order in HC 10793/14. In any event, what was sought in the event of non-payment was as <em>per</em> Deed of Settlement, namely, the balance of what was owing and eviction, which order would become executable upon being granted. Again, there was also no merit in this additional argument.</p> <p>            The first respondent’s final objection was to the form of application used. It argued that the applicant had not followed r 241 in terms of using the appropriate Form given that the application was to be served on an interested party.</p> <p>R 241 clearly states that:</p> <p>“A chamber application shall be made by means of an entry in the chamber book and shall be accompanied by Form 29B duly completed and, except as is provided in sub rule (2), shall be supported by one or more affidavits setting out the facts upon which the applicant relies.</p> <p>Provided that, where a chamber application is to be served on an interested party, it shall be in Form No.29 with appropriate modifications.”</p> <p>            A stringent approach has often been taken by our court to the failure to use the appropriate form, often justifying the removal of a case from the roll under various circumstances of non-compliance. See<em> Nyamhuka and Anor v Mapingure and Ors </em>HH 29-17<em>; Justice Zvandasara ZRP High School &amp; Anor</em> HH 63-17; <em>The Trustees Of The Apostolic Faith Mission Of Africa v Zulu Rosewell &amp; Ors </em>HH 158-17<em>; David Jack and Others </em>v <em>Lloyd Mushipe and Others </em>HH 318/15. Applicant’s chamber application was essentially in Form 29B which sets out the grounds for the application in summary form. On the other hand Form 29A, as has been observed in <em>Marick Trading P/L </em>v <em>Old Mutual Life Assurance Company P/L and the Sheriff for Zimbabwe</em> 2015 (2) ZLR 341at p 345 E, which is used where there is an interested party, notifies the respondent of the right to oppose the application among other rights. As observed in <em>Zimbabwe Open University v Mazombwe </em>2009 (1) ZLR 101 the use of Form 29 instead of 29B or vice versa is not in itself detrimental in terms of constituting a sufficient ground to dismiss an application. There must be some prejudiced suffered. This case before was certainly not one where a completely different format was used from the authorised ones.</p> <p>The court was in agreement that the first respondent had not in any way been adversely affected by the Form used particularly in terms of responding to that application. The chamber application was made on 24 August 2016. Regardless of which form has been used, the general practice is to serve notice of a chamber application on the other side save in exceptional <em>ex parte </em>applications. Granted where from 29B has been used, problems do sometimes arise where the chamber application is placed for the judge’s attention without giving the other side the requisite time to respond. In this instance, this was not the case. The certificate of service that was attached showed that the chamber application was served on 25 August 2016 on the first respondent as the interested party albeit Form 29 applicable where there is an interested party was not the one used.</p> <p>The Registrar’s date stamp on the certificate of service was reflected as 1 September 2016. The first respondent, as an interested party, then filed its notice of opposition on 21 September 2016. Furthermore, the first respondent thereafter filed all necessary papers and heads of argument in accordance with requisite timelines. There was therefore no prejudice that was occasioned by failure to use the relevant form, being Form 29.</p> <p>Whilst indeed adherence to rules allows for uniformity and coherence, clearly the reasoning behind the use of the form should not be lost sight of in any particular case. Granted lawyers ought to be chided for failure to observe rules, but it is equally vital that technical rules that have caused zero prejudice should not be allowed to form the basis of needless points <em>in limine</em>. There is a need to remain alive to the court’s ultimate role of resolving disputes on their merits. I can put this no better than was stated in the case of <em>Yost v. Alderson, 58 Miss. 40 </em></p> <p>“But when the neglect is in the mere conduct of a suit, and its consequences do not operate injuriously, its condonation by the judge can do no harm except to deprive the adverse party of an advantage which he has secured in virtue of such neglect, and in that case the party guilty of the neglect should not on that account alone be deprived of the means and opportunity of maintaining or defending his rights. The object of the institution of courts is to administer justice according to law, and lawsuits are allowed for that purpose alone. Rules of procedure regulating the conducting of business in courts are instituted solely to facilitate these ends. They are necessary, and their due observance should be enforced by the courts. But it should not be forgotten that they are aids to secure the administering of justice, not shackles to bind courts to the perpetration of wrong. When their non-observance is in a trivial matter, working no injury to the adverse party and not materially impeding the due progress of the cause, the fault should be corrected...."</p> <p>In this instance there was clearly no prejudice in terms of the filing of a response as the first respondent in any event filed well in excess of the normally stipulated days for a court application. There was therefore zero prejudice in the filing of its opposition arising from the non-use of the stipulated form. There was nothing to be corrected and nothing to be condoned as the first respondent had in fact had more than ample time to file its response. What the justice of the case required was that the first respondent be held accountable for what it owed instead of clinging to unstainable technicalities. It was never the first respondent’s argument at any point that it was holding the Applicant’s monies and ready to pay. It simply raised technicalities which were unstainable in light of the facts to avoid payment.</p> <p>It was for the above reasons that I granted the order sought by the Applicant and indicated that I would reduce my oral reasons in writing.</p> <p><em>Sawyer and Mkushi, </em>applicant’s legal practitioners<br /> <em>Muza and Nyapadi</em>, 1st respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="Microsoft Office document icon" title="application/msword" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/151/2018-zwhhc-151.doc" type="application/msword; length=50176">2018-zwhhc-151.doc</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/151/2018-zwhhc-151.pdf" type="application/pdf; length=138878">2018-zwhhc-151.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/landlord-and-tenant">LANDLORD AND TENANT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/eviction-proceedings">Eviction proceedings</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/execution-practice-and-procedure">Execution (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/stay-execution">stay of execution</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2017/29">Nyamhuka &amp; Another v Mapingure &amp; Others (HH 29-17 HC 12943/16 Ref HC 3499/14 Ref HH 425/14 Ref SC 409/15 Ref SC 275/16 Ref SC 699/6 ) [2017] ZWHHC 29 (06 January 2017);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2017/63">Zvandasara v ZRP High School &amp; Another (HH 63-17 HC 521/17) [2017] ZWHHC 63 (01 February 2017);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2017/158">Trustees, Apostolic Faith Mission in Africa v Rosewell &amp; Others (HH 158-17 HC 990/17) [2017] ZWHHC 158 (09 March 2017);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2015/318">Jack &amp; Others v Mushipe (Estate Joint-Executor) &amp; Others (HC 152/15) [2015] ZWHHC 318 (23 March 2015);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2015/667">Marick Trading (Pvt) Ltd v Old Mutual Life Assurance Co. of Zimbabwe (Pvt) Ltd &amp; Another (HC 11164/14 Ref Case Nos. HC 3268/12 &amp; HC 8399/14 ) [2015] ZWHHC 667 (30 July 2015);</a></div></div></div> Fri, 27 Apr 2018 06:59:26 +0000 admin 8766 at https://old.zimlii.org