claim for eviction (Summary judgment) https://old.zimlii.org/taxonomy/term/11105/all en Baxter v Chirochangu & Anor (HMT 34-20, HC 145/19) [2020] ZWMTHC (02 July 2020); https://old.zimlii.org/zw/judgment/mutare-high-court/2020/34 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>MARILYN JEAN BAXTER                                                </p> <p>versus</p> <p>FUNGISAI CHIROCHANGU</p> <p>And</p> <p>RONALD SUNUNGURAI CHIROCHANGU</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MWAYERA AND MUZENDA J J</p> <p>MUTARE, 25 March 2020 and 2 July 2020</p> <p> </p> <p> </p> <p><strong>Civil appeal</strong></p> <p> </p> <p> </p> <p><em>HBR Tanaya</em>, for the applicant</p> <p>Mrs<em> Y Chapata</em>, for the respondent        </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>MUZENDA J: This is an appeal brought by the appellant against the whole of the judgement issued by the Provincial Magistrate sitting at Mutare on the 3rd of January 2020.</p> <p> </p> <p>Appellants spelt out the ground s of appeal as follows:-</p> <p> </p> <ol> <li>The Honourable court below erred and grossly misdirected itself in law in ordering appellants eviction from her home without considering all the relevant circumstances as contemplated in s.74 of the Constitution of Zimbabwe Amendment (No. 20 Act, 2013)</li> <li>The court below erred and grossly misdirected itself in granting summary judgement over an illiquid claim for holding over damages.</li> <li>The court a quo grossly erred and misdirected itself in law in ordering appellant to pay holding over damage in a non landlord tenant dispute.</li> <li>The Honourable inferior court grossly erred and misdirected itself in fact and law in ordering appellants to pay holding over damages with effect from 1 July 2019 in the sum of zw$10 000.00 per month when appellant had alleged fats which if pleaded and accepted at the trial, were sufficient to establish a defence.</li> </ol> <p> </p> <p>The appellant sought a relief to have the application for summary judgement to be dismissed with costs. And that the appeal be upheld with costs on attorney client scale.</p> <p> </p> <p> </p> <p> </p> <p>The two respondents who are husband and wife purchased curtain piece of land situated in the District of Umtali called stand 86 Murambi Gardens of Umtali Township lands measuring 3450 square metres for RTGS $450 000 .00 through a deputy Sheriff’s public auction. The property was previously owned by the now appellant. The two were confirmed purchasers of the property on  5 March 2019, they are now title holders under Deed of Transfer No.3520/19. The respondents then issued summons against the appellant in the magistrate court seeking her eviction from the property at the same time claiming holding over damages in the sum of $10 000.00 per month from 1July 2019 until her vacation and costs of suit. Appellant entered appearance to defend. The respondents filed an application for summary judgement and on 3 January 2020 the court <em>a quo</em> granted the application. On 6 January 2020 the appellant filed the present. The respondents proceeded to file a further application before the trial court a quo for leave to vacate pending appeal and they obtained that order on 17 February 2020. On 19 February 2020appellant voluntarily vacated the property and the respondents are now in possession of the property.</p> <p>On the date of hearing of this appeal the legal practitioners of the parties indicated that there was need for oral arguments the matter had to be decided on the basis of the papers filed of record. However what was not clear to this court was whether the appellant was still pursuing the appeal given the fact that she had voluntarily moved out of the property and outcome of the matter would become purely academic. This is now our ruling on the appeal</p> <p> </p> <p>WHETHER THE COURT AQUO ERRED AND GROSSLY MISDIRECTED ITSELF IN LAW IN ORDERING APPELLANTS’S EVICTION</p> <p> </p> <p>            The appellant submitted that the court<em> a quo</em> misdirected itself in law when it ordered her eviction from the property without considering all relevant circumstances as espoused in s.74 of the Constitution of Zimbabwe which speaks against the eviction of a person from her home, or have the home demolished without an order of the court made. Appellant added that the duty of the court is to consider all relevant factors and then arrive at a just and equitable conclusion as to whether a person should be evicted, the terms of such ejectment and other related factors. According to the appellant ownership and legal right should not be the determining factors, the paramount factor for the judicial officer would be to protect the right of the people to shelter. Appellant  went on to compare legislation in Sauth Africa<a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a>. And urged this court to rely on such legislation to protect the appellant. Appellant went on to cite the cases of <em>Michel and others v Malula and others</em><a href="#_ftn2" name="_ftnref2" title="" id="_ftnref2">[2]</a> and <em>Port Elizabeth Municipality v various occupiers</em> <a href="#_ftn3" name="_ftnref3" title="" id="_ftnref3">[3]</a> to advance her argument that courts should go beyond the aspects of ownership and legal right and ensure that a person is granted a constitutional guarantee of shelter and accommodation as a fundamental right. By evicting appellant the court<em> a quo</em> exposed appellant and her family to harsh weather, and her property to destruction and theft.</p> <p>            On the other hand the respondents contends that the appellant’s referral to s.74 of the constitution is misplaced. In s.74 of the constitution the lawmakers sought to prevent arbitrary evictions. As a contrary to the appellant’s argument, the eviction of the appellant was sought through the courts hence in this case and circumstance there is no basis to talk about arbitrary eviction. The respondents submitted that on all farness the appellant has no defence to the application for a <em>rei vindicatio</em>. Appellant can not try to hide behind the veil of mercy and try to use the court for an extension of stay in someone’s property. Once it is accepted that the respondents are owners then appellant can not remain in property without the blessing of the owners. The duty of the court in this case is to protect the owner rather than the occupier or possessor<a href="#_ftn4" name="_ftnref4" title="" id="_ftnref4">[4]</a>. In any case, respondents concluded this court has no basis to interfere with the judgement of the court <em>a quo</em> based purely on finding of facts unless it is satisfied that having regard to the evidence placed before the trial court, the findings complained of are so outrageous in their defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided would have arrived at such a conclusion<a href="#_ftn5" name="_ftnref5" title="" id="_ftnref5">[5]</a></p> <p>            I am unable to agree with the appellant submissions relating to s. 74 of the Zimbabwean Constitution. Appellant used to own the subject house, the court is not privy to the events that led to the sale of the house through public auction. What is however uncontroverted is that the responded were the highest bidder sat an auction and acquired that property legally. They therefore did not arbitrary remove the appellant but opted to go through a legal process by issuing summons putting appellant on alert. They did not have touts to forcefully eject the appellant. Appellant by citing s.74 of the constitution of Zimbabwe try to argue that s. 74 is applicable. A close legal analysis of the case law cited by appellant from South African jurisprudence unmistakably shows that these matters involved illegal settlements by the respondents on municipal land which is patently distinct for the facts of this matter conclude therefore that ns 74 of the Constitution is totally inapplicable to the facts of this matter. What is apparent on the facts before us here is that the respondents as owners of the newly acquired immovable property can evict anyone who occupies their property without their consent and they used the court to exercise their rights legally. The application for ejectment is premised on the <em>rei vindication</em> doctrine and the court <em>a quo</em> property interpreted the legal principles settled by these courts to order appellant’s eviction. There is no legal basis for this court to interfere with that decision reached by the court <em>a quo</em>. In any case the appellant of her own volition saw the light and swallowed the pride and moved out of the property. Accordingly this ground of appeal has no merit and it ought to be dismissed. </p> <p> </p> <p>WHETHER OR NOT THE COURT <em>A QUO</em> ERRED AND MISDIRECTED ITSELF IN GRANTING SUMMARY JUDGMENT OVER AN ILLIQUID CLAIM OF HOLD OVER DAMGES?</p> <p>            The appellant contended that the amount of holding over damages constitute an illiquid claim if it is an illiquid claim then an application for summary judgment would not be applicable. Appellant went on further to submit that the holding over damages were not based on a liquid document as there was no acknowledgement of debt, nor a lease agreement nor any document to show that the amounts were liquidated. According to appellant holding damages could only have been determined after leading of oral evidence in a trial. Appellant further added that the court <em>a quo</em> erroneously concluded that the appellant had not challenged the holding over damages.</p> <p>            To the contrary the respondents submitted that holding over damages cannot be confined to a landlord – tenant relationship but to situations where the occupier holds on to the owner’s property. The respondent’s claim was based on the value of the rental the property would earn had it been on lease and such a value is easily ascertainable. In any case respondents explained how they had come up with the amount of holding over damages. Respondents went on to cite <em>Hever v Van Greuning<a href="#_ftn6" name="_ftnref6" title="" id="_ftnref6"><strong>[6]</strong></a></em> which is of the authority that an owner of immovable property who has never been in physical occupation or possession of his property is entitled to claim damages from a person who wrongfully and unlawfully occupied that property. Respondents further cited the matter of <em>Dube v Sengwayo<a href="#_ftn7" name="_ftnref7" title="" id="_ftnref7"><strong>[7]</strong></a></em> which held that a claim for holding over damages in respect of ejectment proceedings was a claim for a liquidated demand because the damages were easily ascertainable.</p> <p>            The argument by the respondents finds favour with this court. The analysis of the facts by the court<em> a quo</em> is sound in as far as whether holding over damages were a liquid claim. There is no legal basis to critique it nor to impugn it. The decision in <em>Dube v Sengwayo</em> (<em>supra</em>) has not been set aside and given the reasoning I that judgment I agree too that a rental per month put up by an owner of property can easily be determined or ascertained without difficulties and in this case the respondents explicitly explained in their affidavits how the damages were computed. I conclude that the holding over damages constitute a liquid claim and dismiss that ground of appeal by the appellant. Having reached that decision relating to the second ground of appeal, the same conclusion is applicable to the third ground of appeal which pertains to the court ordering appellant to pay holding over damages in a non-landlord-tenant dispute. As already concluded herein, a property owner who had not taken occupation of the property can legally claim holding over damages as long as the respondents had done in this case. Appellant’s ground 3 of her appeal has no merit.</p> <p> </p> <p>WHETHER THE COURT <em>A QUO</em> GROSSLY ERRED AND MISDIRECTED ITSELF IN FACT AND LAW IN ORDERING APPELLANT TO PAY HOLDING OVER DAMAGES WITH EFFECT FROM 1 JULY 2019?</p> <p>            The appellant submitted that the court <em>a quo</em> erred and misdirected itself in ordering appellant to pay holding over damages with effect from 1 July 2019 in the sum of $10 000-00 per month when the appellant had presented facts in her opposing affidavit sufficient to establish a possible defence to the respondent’s claim. It was argued further on behalf of the appellant that appellant had pleaded facts to defeat respondents’ claim. It was not clear to the appellant whether she was properly served with a notice to vacate the premise by 1 July 2019 and hence respondent’s claim for holding over damages could not have been unassailable, appellant argued. Appellant added that the trial court ignored such a triable issue and ordered payment without any justification to that effect. Appellant concluded that damages cannot be sustained by a summary judgment, the court <em>a quo</em> had a duty to afford the appellant to prove that she cannot be ordered to pay holding over damages of $10 000-00 per month from 1 July 2019. </p> <p>            In response the respondents argued that the respondents established on a balance of probabilities why appellant was obliged to pay $10 000-00 per month from 1 July 219. Respondents admitted that in an application for summary judgment appellant was required to raise a plausible and <em>bon fide</em> defence to the respondent’s claim. However, the appellant raised a bare denial to the effect that the appellant did not have tenants to the property. She did not raise the issue of notice in her papers. She did not challenge the amount of $10 000-00. The fundamental point was that appellant was enjoying the property of the respondents without paying rentals.</p> <p>            The court has already concluded and determined that the court <em>a quo</em> did not err in granting the application for summary judgment pertaining to holding over damages. That aspect is now water under the bridge. Having granted the judgment on holding over damages and the quantum of $10 000-00 per month, the next issue for determination was the commencement date for payment. The court <em>a quo</em> settled on 1 July 2019 as pleaded by the respondents in their papers. The respondents contended that from 1 July 2019 she had to pat rentals. The trial court accepted the respondents’ evidence on that aspect of dates, we saw no misdirection on the part of the court <em>a quo</em>. The court analysed all facts placed before it relating to the aspect of dates and concluded that 1 July 2019 was the appropriate date. We have no legal basis whatsoever to interfere with that finding. Once a summary judgment was granted in respect of holding over damages, the quantum and date of payment ought to be determined and the court <em>a quo</em> did decide. We conclude that the judgment of the court <em>a quo</em> in its entirety should not be interfered with and the whole set of grounds of appeal has no merit and ought to be dismissed.</p> <p>            Accordingly, it is ordered as follows:</p> <p>            The appeal is dismissed with costs.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p>MWAYERA J agrees ___________</p> <p> </p> <p> </p> <p><em>Tanaya Law Firm</em>, appellant’s legal practitioners</p> <p><em>Henning Lock</em>, respondents’ legal practitioners</p> <p> </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a>Prevention of illegal eviction and unlawful occupation of land Act 19 of 1998</p> <p><a href="#_ftnref2" name="_ftn2" title="" id="_ftn2">[2]</a> 2010 (2) SA 257 (CC)</p> <p><a href="#_ftnref3" name="_ftn3" title="" id="_ftn3">[3]</a> 2005 (1) SA 217 (CC)</p> <p><a href="#_ftnref4" name="_ftn4" title="" id="_ftn4">[4]</a> Shorai Mavis Nzara and 3 othes v Cecilia Kashumba and 3 others SC 18/18.</p> <p>Al spite Investments (PVT) Limited v Westerhoff 2009 (2) zlr 236</p> <p>Vigilter Moyo v Edwin Sibanda and 2 others AB 81/17</p> <p><a href="#_ftnref5" name="_ftn5" title="" id="_ftn5">[5]</a> Nyahondo v Hokonya and others 1997 (2) zlr 457 (sc) AT P.460</p> <p><a href="#_ftnref6" name="_ftn6" title="" id="_ftn6">[6]</a> 1979 (4) SA 952 at pages 954 e-f and cases cited therein</p> <p><a href="#_ftnref7" name="_ftn7" title="" id="_ftn7">[7]</a> HC 110/91</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/mutare-high-court/2020/34/2020-zwmthc.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=32815">2020-zwmthc.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/mutare-high-court/2020/34/2020-zwmthc.pdf" type="application/pdf; length=362408">2020-zwmthc.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/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/summary-judgment">Summary judgment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-summary-judgment">application for summary judgment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/claim-eviction-summary-judgment">claim for eviction (Summary judgment)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/property-and-real-rights">PROPERTY AND REAL RIGHTS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/ownership-0">Ownership</a></li><li class="vocabulary-links field-item odd"><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/supreme-court-zimbabwe/2018/18">Nzara &amp; 3 Others v Kashumba N.O. &amp; 3 Others (SC18/18, Civil Appeal No. 137/16) [2018] ZWSC 18 (12 March 2018);</a></div></div></div> Mon, 06 Jul 2020 13:22:09 +0000 Sandra 9751 at https://old.zimlii.org Mundenguma v Estate Late Leon Geoffery Heathcote & Anor (HMA 17-20, HC 379/19) [2020] ZWMSVHC 17 (13 May 2020); https://old.zimlii.org/zw/judgment/masvingo-high-court/2020/17 <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>SHEPHERD MUNDENGUMA</p> <p> </p> <p>Versus</p> <p> </p> <p>ESTATE LATE LEON GEOFFREY HEATHCOTE</p> <p>(Being represented by David Wynn Rosser in his capacity as the Executor Dative)</p> <p> </p> <p>And</p> <p> </p> <p>TREVOR SHAW</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>ZISENGWE J</p> <p>MASVINGO 12, 26 March &amp; 13 May 2020</p> <p> </p> <p> </p> <p>ZISENGWE J:            This is an application for summary judgment brought in terms of Order 10 rule 64 of the High Court rules, 1971 (the rules). It stems from a long running dispute over the continued occupation of a farm which has since been acquired by the state by its previous owner (or more accurately by those that claim through him). The applicant avers that the respondents have no bona fide defence to his claim for eviction in case number HC 379/2019 and that appearance to defend was entered only for purposes of delay.</p> <p> </p> <p>            The events which culminated in this application are largely common cause and are extensively captured in the applicant’s founding affidavit. They are to the following effect: the farm in question (Lot 20 Umsungwe Block Gweru, Deed of transfer 1115/79) (hereinafter referred to as “the farm”) was previously owned by Leon Geoffrey Heathcote the latter who has since passed away (he died on 17 July 2016). The farm was acquired by the state in the course of the land reform programme and subsequently allocated to the applicant. All the relevant documentation relating to its acquisition and subsequent allocation to the applicant were attached to this application. In respect of the former, the government gazettes showing the preliminary notice of intention to acquire land and confirmation of acquisition were attached. As for the latter, the offer government offer letter in favour of the applicant was attached.</p> <p> </p> <p>            The 1st respondent is the estate of the late Leon Geoffrey Heathcote (duly represented by the executor dative David Wynn Rosser). The 2nd respondent on the other hand is an individual who is in occupation of the farm ostensibly deriving such right of occupation through the late Leon Geoffrey Heathcote.</p> <p> </p> <p>The applicant in his founding affidavit chronicles the events that unfolded in the wake of the allocation of the farm to him, the sum total of which is that respondents have persistently and unjustifiably denied him full control of the farm. He avers that not even the intervention of the police at his behest has yielded any positive results as the respondents and one Texan J Muzika have repeatedly sought to frustrate his efforts at every turn. He further indicates that although he is now in occupation of the farm house, he has been denied access to the farming area.</p> <p> </p> <p>More pertinently, the applicant avers that not even the High Court order in case number HC 430/18 which is a declaratory order confirming the validity of the offer letter has produced the desired effect of having the respondents vacate the farm. No doubt frustrated by the respondents’ intransigence he then instituted summons in the High Court in case Number HC 379/2019 for the eviction of the respondents and all those claiming through them from the farm. It is the appearance to defend entered by the respondents against that claim that prompted this current application. The applicant claims in this regard that he has an unassailable claim against the respondents as evidenced not only by the offer letter but also the declaratory order referred to above and that the respondents’ notice of appearance to defend is actuated by malice as they only seek to delay the inevitable.</p> <p> </p> <p>Interestingly, this application was opposed not by the 1st respondent but by one Frederick Garth Heathcote (Mr Heathcote) the latter who claims to be the son of the late Leon Geoffrey Heathcote and beneficiary to his estate. The second respondent also filed an affidavit opposing the application. It is however pertinent to note that although the 2nd respondent filed the said opposing affidavit he never appeared on the set down date to argue the matter despite having been properly served with the notice of set down; Mr Heathcote did. This immediately prompted the applicant to challenge the latter’s locus standi to participate in these proceedings.</p> <p> </p> <p>Initially Mr Heathcote claimed to derive his locus standi from a power of attorney attested to by David Wynn Rosser (the executor dative and representative of the 1st respondent) on 6 March 2018. However, when it was pointed out to him that the said power of attorney was a special one only granting him the mandate to appear in case number 285/2015, he immediately changed tact and claimed to derive his locus simply by virtue of him being a beneficiary of the estate of the late Leon Geoffrey Heathcote. Mr Heathcote who was unrepresented mumbled some vague reference to some correspondence from the law firm Honey and Blanckenberg wherein it was supposedly stated that the estate of the late Leon Geoffrey Heathcote had since been wound up and that he was one of the beneficiaries thereof. He then sought a postponement of the hearing of the application to afford him an opportunity to seek legal representation. In that regard he sought a postponement of two weeks and he also tendered wasted costs.</p> <p>On the face of it, the application for postponement appeared reasonable and acting in terms of r237of the rules, I accordingly granted the same (something that appears not to have gone down well with the applicant judging from the cryptic if not sardonic remarks made by counsel when matter was heard on the 26th of March).  Be that as it may, Mr Heathcote was placed on terms. He was directed by the court to inter alia secure counsel willing and able to argue the matter upon the resumption of the matter after weeks and to file all relevant papers at least five days before then.</p> <p> </p> <p>It suffices to highlight that the application for postponement was granted on the basis of the assertions made by Mr Heathcote which assertions were they to be subsequently proved true and correct would indeed clothe him with the requisite locus standi. For a person to be said to have locus standi, it must be shown that he has direct, substantial and interest in a matter.  In <em>Makaraudze &amp; Anor v Bungu &amp; Ors</em> HH 8-15 it was held that:-</p> <p><em>“locus standi in judicio refers to one’s right, ability or capacity to bring legal proceedings in a court of law. One must justify such right by showing that one has a direct and substantial interest in the subject matter and outcome of litigation. Such an interest is a legal interest in the subject matter of the action which could be prejudicially affected by the judgment of the court.”</em></p> <p> </p> <p>In this regard see also <em>Zimbabwe Teachers’ Association &amp; Ors v Minister of Education and Culture </em>1990(2) ZLR 48, <em>Sibanda &amp; NPSL v Mugabe &amp;Anor</em> HH 102-94.</p> <p> </p> <p>  Notionally at least, were it to be proved that Mr Heathcote is indeed a son to the late Leon Geoffrey Heathcote and that he is a beneficiary to his estate he would, of course, have  direct  (i.e. not remote, fanciful or peripheral) and substantial (i.e. weighty and of real substance) interest in the this legal contest.  Further, there was some reference (though admittedly somewhat obscure) by Mr Heathcote that he has information to the effect that the said estate has since been wound up. Should that indeed be the true state of affairs it would impliedly mean that the first respondent has since ceased to exist and it would then be the beneficiaries of the same that have a direct and substantial interest in the assets of that estate. Thirdly, the court was of the view that in keeping with the constitutional right of a party to legal proceedings to be represented by a legal practitioner of his choice, it was in the interests of justice to grant the application for postponement. The court was of the view that it could not compel Mr Heathcote to argue his matter, including the very question of his locus standi or lack thereof, without his chosen counsel. The issue of his locus standi was as much an issue as any other and to compel him to argue the same without counsel would amount to a negation of his right to legal representation. Subject to a successful application for his joinder he would have a right to participate in these proceedings.</p> <p> </p> <p>Where, however, Mr Heathcote ultimately came unstuck was his failure on the appointed date to do all the things that the court directed him and which he undertook to do. Firstly there was no legal practitioner who appeared to argue the matter on his behalf, secondly he did not file any documents supposedly indicating that the estate of the late Leon Geoffrey Heathcote has since been wound up. Regarding the latter, there was a repeat of the same vague reference to some communication from the law firm Honey and Blanckenberg. Further Mr Heathcote referred to a pending application for stay of these current proceedings pending an application for his joinder as a party. What obviously eluded him was the fact that before he could be permitted make any representations his locus standi needed to be established. By electing to return on the 26th of March 2020 and make whatever submissions he chose to make before establishing his locus standi he effectively put the cart before the horse. Without a proper application for joinder duly granted, Mr Heathcote remained non-suited and could not “gate-crash” into and participate in these proceedings.</p> <p> </p> <p>The court cannot continue to bend over backwards and grant him audience in the absence of proof that he is entitled to the same. Mr Heathcote should have seized that window of opportunity availed to him to file proof in support of his claim to locus standi. As it stands, his claim that he has the requisite locus standi suffers from multiple deficiencies not least proof of the following; that he is indeed the son of the late Leon Geoffrey Heathcote and that the estate in question has since been wound up and that he is a beneficiary to that estate and that the farm in question forms part of that estate.</p> <p> </p> <p>Ultimately, therefore, in the absence of a notice of opposition from the 1st respondent  and the failure by the 2nd respondent to appear on the day that the matter was set down for hearing this application the application is deemed unopposed.</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>It is ordered that the application for summary judgment be and hereby is deemed unopposed and is accordingly referred to the unopposed roll.</p> <p><em>Gundu Dube &amp; Pamacheche</em>, Applicant’s legal practitioners</p> <p> </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/masvingo-high-court/2020/17/2020-zwmsvhc-17.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24903">2020-zwmsvhc-17.docx</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/land-0">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/offer-letters-acquisition-land">offer letters (Acquisition of land)</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/summary-judgment">Summary judgment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-summary-judgment">application for summary judgment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/claim-eviction-summary-judgment">claim for eviction (Summary judgment)</a></li></ul></span> Thu, 25 Jun 2020 13:40:40 +0000 Sandra 9710 at https://old.zimlii.org Bastin v Madzima N.O (SC 37-20, Civil Appeal No. SC 109/19) [2020] ZWSC 37 (05 March 2020); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2020/37 <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/supreme-court-zimbabwe/2020/37/2020-zwsc-37.pdf" type="application/pdf; length=351005">2020-zwsc-37.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/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/condonation-practice-and-procedure">Condonation (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-condonation">application for condonation</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/condonation-non-observance-any-time-limit">condonation of non-observance of any time limit</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/summary-judgment">Summary judgment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-summary-judgment">application for summary judgment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/claim-eviction-summary-judgment">claim for eviction (Summary judgment)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/defence-summary-judgment">defence to summary judgment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/evidence-which-may-be-led-plaintiff-summary-judgment">evidence which may be led by plaintiff (Summary judgment)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/principles-summary-judgment">principles (Summary judgment)</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/supreme-court-zimbabwe/2007/93">Maheya v Independent African Church (Civil Appeal No. 303/99 ) ((Civil Appeal No. 303/99 )) [2007] ZWSC 93 (13 November 2007);</a></div><div class="field-item odd"><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 even"><a href="/zw/judgment/supreme-court-zimbabwe/2013/1">Friendship v Cargo Carriers Limited &amp; Another (259/12) [2013] ZWSC 1 (09 January 2013);</a></div></div></div> Fri, 19 Jun 2020 07:36:10 +0000 Sandra 9689 at https://old.zimlii.org Bronson v Bronson (HB 24-20, HC 2358/18) [2020] ZWBHC 24 (20 February 2020); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2020/24 <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>MARCUS BRONSON</strong></p> <p> </p> <p> </p> <p><strong>Versus </strong></p> <p> </p> <p> </p> <p><strong>LAWRENCE A. BRONSON</strong></p> <p> </p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>TAKUVA J</p> <p>BULAWAYO 11 JUNE 2019 AND 20 FEBRUARY 2020</p> <p> </p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p><em>V Majoko</em>, for the applicant</p> <p><em>V.J Mpofu</em>, for the respondent</p> <p> </p> <p> </p> <p>            <strong>TAKUVA J:</strong>              This is a Court application for summary judgment in terms of Order 10 Rule 64 (1) of the High Court Rules 1971.  The rule permits an application for summary judgment for what is claimed in the summons and costs.  Such an application can be made at any time before a Pre-Trial Conference is held.</p> <p><strong>Background Facts</strong></p> <p>            The respondent is the applicant’s father.  Pursuant to an ownership dispute of several mines, the applicant issued out summons against the respondent under case No. HC 1066/18 seeking respondent’s eviction and all those claiming occupation through him from nine (9) mines in Gwanda known as Abe, Abe A, Abe B, Abe C, Scallywag, Dikkop B, Dikkop, Mambo King 2 and Mambo King.</p> <p>            Applicant acquired ownership of all the mines after they were forfeited from the respondent by the Ministry of Mines in October 2017.  Prior to the forfeiture, they were all owned by the respondent.  Currently, all the mines are registered in applicant’s name.  The statutory period in which the respondent should have vacated the mines following forfeiture lapsed but respondent remained in occupation.</p> <p>            Upon being served with the summons, respondent entered appearance to defend and filed his plea.  Under cover of case No. HC 2358/18, the applicant filed this application for summary judgment which application was opposed by the respondent.  The opposition is restricted to only 3 claims or mines.  The reason for this according to the respondent is that he is only in occupation of these 3 claims.  He does not occupy the remaining 6.  As regards the 3 gold mines namely, Abe, Abe A and Abe B, the respondent alleges that there was an agreement between applicant and respondent whereby the applicant would peg the claims and have them registered in his name but the respondent would have the right to work the claims.  Respondent then paid for the 3 claims’ licences after which applicant pegged them and immediately attempted to evict him.  Respondent is convinced that this defence is <em>bona fide</em>.</p> <p><strong>THE LAW</strong></p> <p>            In <em>Majoni</em> v <em>Ministry of Local Government And National Housing</em> 2001 (1) ZLR 148 (S), the Court stated that;</p> <p>“The principles applicable in a summary judgment application have been well documented.  The quintessence of this drastic remedy is that the plaintiff whose belief it is that the defence is not <em>bona fide</em> and entered solely for dilatory purposes should be granted immediate relief without the expenses and delay of trial …” see also <em>Pitchford Investments</em>  <em>(Pvt) Ltd</em> v <em>Muzariri</em> 2005 (1) ZLR (H).</p> <p>In order for the respondent to defeat an application for summary judgment, he must aver facts on the merits which would enable him to succeed in the main matter or at the very least, raise a <em>prima facie</em> defence.  In <em>Hales</em> v <em>Daverick Investments (Pvt) Ltd</em> 1998 (2) ZLR 234 (H), it was held that;</p> <p>“Where a plaintiff applies for summary judgment against the defendant and the defendant raises a defence, the onus is on the defendant to satisfy the court that he has a good <em>prima facie</em> defence.  He must allege facts which if proved at the trial would entitle him to succeed in his defence at the trial.  He does not have to set out the facts exhaustively but he must set out the material facts upon which he bases his defence with sufficient clarity and in-sufficient detail to allow the court to decide whether, if these facts are proved at the trial, this will constitute a valid defence to the plaintiff’s claim.  It is not sufficient for the defendant to make vague generalizations or to provide bald and sketchy facts.” (my emphasis) </p> <p> </p> <p> </p> <p><strong>APPLICATION OF THE LAW TO THE FACTS</strong></p> <p>            The applicant’s claim as detailed in the summons relates to 9 mines but respondent has only set out a defence in respect to only 3 mines.  What this means is that essentially, respondent has no defence and no reason to continue occupying the six mines.  Applicant should therefore not be prejudiced of a speedy remedy where the respondent has no defence at all.</p> <p>            As regards the three mines, the test to be applied to respondent’s opposing affidavit is whether the facts alleged therein, if established at trial, would entitle him to succeed in his defence.  Respondent makes repeated reference to “the agreement” between himself and the applicant.  Surprisingly, he does not give any material detail as to what constitutes the said agreement, neither does he disclose when and where this agreement was made, under what circumstances it was made, whether it was oral or written or the essential terms of the agreement.  These material facts should have been divulged to allow for a proper assessment into his defence.  Clearly, the mere reference to some ‘agreement’ and some vague terms thereof does not suffice, making the defence doubtful.</p> <p>            Respondent should have been candid with the court, but unfortunately he was not.  He denied any knowledge of the forfeiture notification, yet his conduct pursuant the notification by the Ministry of Mines in October 2017 suggests otherwise.  Certainly, he would not have made some arrangements of sorts, as he suggests, securing his continued mining on the claims unless he had knowledge that he had lost the mines.  In my view the respondent was aware that he had lost the claims through forfeiture.</p> <p>            The respondent does not have a <em>bona fide</em> defence in that he failed to provide sufficient detail to enable this court to assess his defence.  Instead, he contended himself with vague generalities which are weightless.  The applicant, as the registered owner of the mines has an unassailable case against the respondent.  Therefore, he should not be put through the unnecessary delay and expense of a trial.</p> <p>            In the circumstances, it is ordered that:</p> <ol> <li>Summary judgment be and is hereby granted in favour of the applicant as against the respondent on the following terms:-</li> </ol> <ul> <li>An order for the eviction of the respondent and all those claiming occupation through him from their occupation of Abe, Abe A, Abe B, Abe C, Scallywag, Dikkop B, Dikkop, Mambo King 2 and Mambo King mining claims which are situated in the District of Gwanda within five (5) days of service of this order.</li> <li>The Deputy Sheriff Gwanda be and is hereby directed to evict the respondent and all those claiming occupation through him from their occupation of Abe, Abe A, Abe B, Abe C, Scallwag, Dikkop B, Dikkop, Mambo King 2 and Mambo King mining claims which are situated in the district of Gwanda should respondent fail to comply with paragraph (a) above.</li> <li>Each party to pay its own costs.</li> </ul> <p> </p> <p> </p> <p><em>T.J Mabhikwa And Partners</em>, applicant’s legal practitioners</p> <p><em>Messrs V.J Mpofu And Associates</em>, respondent’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/bulawayo-high-court/2020/24/2020-zwbhc-24.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=19783">2020-zwbhc-24.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/2020/24/2020-zwbhc-24.pdf" type="application/pdf; length=285738">2020-zwbhc-24.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/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/summary-judgment">Summary judgment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-summary-judgment">application for summary judgment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/claim-eviction-summary-judgment">claim for eviction (Summary judgment)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/defence-summary-judgment">defence to summary judgment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/evidence-which-may-be-led-plaintiff-summary-judgment">evidence which may be led by plaintiff (Summary judgment)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/principles-summary-judgment">principles (Summary judgment)</a></li></ul></span> Thu, 12 Mar 2020 12:16:58 +0000 Sandra 9556 at https://old.zimlii.org Gamboge Investments (Pvt) Ltd v The Occupier Shop 4- Sikhanyiso Shiri (HB 6-19, HC2298/17) [2019] ZWBHC 6 (31 January 2019); https://old.zimlii.org/zw/judgment/bulawayo-high-court/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><strong>GAMBOGE INVESTMENTS (PVT) LTD</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>THE OCCUPIER SHOP 4 – SIKHANYISO SHIRI</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>TAKUVA J</p> <p>BULAWAYO18 JANUARY, 20 MARCH 2018 &amp; 31 JANUARY 2019</p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p><em>S. Mlambo</em> for the applicant</p> <p>Respondent in person</p> <p>            <strong>TAKUVA J:  </strong>This is an application for summary judgment in terms of o10 r64 of the High Court Rules 1971.  Applicant issued summons under case number HC 1533/16 for the recovery of arrear rentals, eviction of the respondent and all those claiming occupation through the respondent, cancellation of the lease agreement, hold over damages, water charges and costs of suit.  The suit arose from repeated breaches of the lease agreement which has expired by the effluxion of time as well an acknowledgment of debt which has not been adhered to.</p> <p>            Respondent entered appearance to defend.  Applicant being of the view that respondent has no <em>bona fide</em> defence caused to be filed this application for summary judgment.  At the time of the hearing applicant had, in the summons claimed the sum of US$57 021,00 being arrear rentals for the period 1st January 2009 to June 2017.  Applicant had also claimed the sum of US$2 020,00 being water charges consumed by the defendant on the plaintiff’s (applicant’s) premises for the period 1 January 2009 to June 2017.  The respondent raised the defence that part of the amount had prescribed.</p> <p>            Applicant’s original relief was as follows;</p> <p>“(1)      Payment in the sum of US$ 57 021,00 being arrear rentals for the period January 2009 to June 2017.</p> <p>(2)        Payment in the sum of US$2 020,00 being water charges from January 2009 to date.</p> <p>(3)        Payment in the sum of US$2 450,00 being costs for legal services paid to debt collectors previously dealing with the case.</p> <p>(4)        Confirmation of the cancellation of the lease agreement between the parties in respect of shop 4, 42 Lobengula Street, Kelsheker Building, Bulawayo.</p> <p>(5)        An order that the defendant and all persons claiming occupation through the defendant be evicted forthwith from shop 4 Kelsheker Building, 42 Lobengula Street, Bulawayo.</p> <p>            (6)       Interest at the prescribed rate from date of summons to date of full payment.</p> <p>(7)        Hold over damages equivalent to the monthly rental from June 2017 to date of eviction.</p> <p>(8)        Costs of suit on attorney and client scale”.</p> <p>            In her opposition, respondent raised the following defences which she unfortunately had not raised in her plea;</p> <ul> <li>the deponent had no authority to depose to an affidavit on behalf of the applicant;</li> <li>the lease agreement was not signed by herself and as such, it was a forgery;</li> <li>the respondent had not acknowledged the debt;</li> <li>the respondent has an oral lease agreement with Mr Ezobal Shah for an indefinite period having commenced on the 1st January 2009;</li> <li>the oral lease agreement still subsists;;</li> <li>the letter of demand was issued by the lessor and</li> <li>that part of the debt has prescribed.</li> </ul> <p>In an application for summary judgment, the applicant must show that respondent’s opposition is not <em>bona fide</em> or ill founded and has entered appearance for dilatory purposes.  Put differently, the respondent must outline a defence and the material facts upon which it basis its defence with sufficient clarity so as to enable the court to decide whether he has a <em>bona fide</em>  defence which if proved at the trial will constitute a defence to plaintiff’s claim.  See <em>Dube</em> v <em>Medical Investments International Ltd</em> 1989 (2) ZLR 284 and <em>Mbayiwa</em> vs <em>Eastern Highlands Motel (Pvt) Ltd</em> S-139-86.</p> <p>By raising new issues in her notice of opposition, respondent is belabouring under a misapprehension that she can treat a summary judgment application as representing a fresh claim.  Notwithstanding that an application for summary judgment is issued under a new case number, the relief sought by the applicant is based on the summons as applicant would only be verifying its claim as set out in the summons.  See <em>P.B. Arnet &amp; Son (Pvt) Ltd</em> vs <em>Steven Manota &amp; Ors</em> HH-17-13.</p> <p>It seems respondent’s defences are an afterthought in which case she seeks to build her case as the matter progresses.</p> <p>Be that as it may I will consider all the defences, keeping in mind that the sole issue is whether or not respondent has a <em>bona fide</em> defence to the applicant’s claim.</p> <p>The respondent’s challenge on the deponent’s authority to depose to an affidavit is neither here nor there.  It is an established principle of law that the production of a company resolution has been blown out of proportion and is not necessary in every case as each case must be considered on the merits.  What is key is that the courts must be satisfied that it is the applicant litigating and not an unauthorized person.  See <em>Tianze Tobacco Company (Pvt) Ltd</em> vs <em>Vusumuzi Mutuyedwa</em> HH-626-15.</p> <p><em>In casu</em>, respondent’s challenge to the deponent’s authority is <em>mala fide</em> because she did not challenge it in the main action.  Further, that authority was alluded to in the acknowledgment of debt signed by Mr Shiri from which a reasonable inference be made that he was making reference to the deponent as the lessor.</p> <p>In her plea, respondent strongly denied the existence of a lease agreement between herself and the applicant but in her opposing affidavit she changed goal posts by challenging the validity of the lease on the grounds that she had not signed the lease.  She claimed that the lease was signed by “some other person” she referred to as a “Mr”.  This defence is not <em>bona fide</em> in that the person who in fact signed the lease is respondent’s husband and co-director in a company called Roblee Investments (Pvt) Ltd.  According to the current CR 14 forms for this company, respondent and Mr J. Shiri are directors.  However, the lease is in the respondent’s name but all correspondence are in Roblee’s name.  Quite clearly, respondent has not been candid with the court in so far as the concealment by herself of her relationship to Mr J. Shiri “who obviously signed the lease agreement with respondent’s permission and knowledge.  Further, the acknowledgment of debt signed by Mr J. Shiri makes reference by using words “we/us” which strongly suggest the inclusion of the respondent who has the lease agreement with the applicant.</p> <p>Respondent has sought to deny that there is a written lease agreement between her and the applicant by stating that she has a verbal lease with Mr Ezobal Shah the lessor.  The existence of a verbal lease agreement flies in the face of the written lease signed on 29 June 2011, wherein the applicant is clearly identified and the lessor and the respondent the lessee.  On the papers, it is clear that Mr Ecobal Shah is not the lessor as the premises are owned by the applicant. Mr Shah and the deponent are father and son respectively.  Both are applicant’s directors.  Therefore, the alleged existence of an oral lease agreement is a creation of the respondent in order to escape the terms of the lease of 29 January 2011.</p> <p>In her plea, respondent admitted being a statutory tenant an indication that the lease had expired. Indeed the lease executed on 29 January 2011 was valid for 6 months from 1st January 2011 to 30 June 2011.  This fact was corroborated by Mr J. Shiri when on the acknowledgment of debt, he indicated that the deponent had allowed “them” to trade as long as “they” paid current rentals due for 6 months up to June 2011. The respondent’s contention that the oral lease was for an indefinite period is inconsistent with the admission that she was a statutory tenant as the two are mutually exlusive.  The position here is that respondent is a statutory tenant who has not been paying rent as shown on the payment schedule filed by the applicant.</p> <p>Further in her plea respondent denied owing any money at all to the applicant as she was and is not in arrears nor had she breached terms of the lease.  However, having so denied, respondent makes a u-turn and avers that part of the claim has prescribed.  Be that as it may, even assuming that part of the claim has indeed prescribed, respondent cannot defeat an application for summary judgment as the part which has not prescribed remains outstanding and the defence that respondent is not in breach collapses.</p> <p>In view of the fact that this is a legal point which has not been fully argued by the parties, I directed that both file supplementary heads of argument on the issue.  Both have since complied with that order. The supplementary heads have been filed to address applicant’s relief in paragraphs 1 and 2 on page 55 of the record. </p> <p>Prescription is governed by the Prescription Act, Chapter 8:11.  In terms of s15 (d) a debt prescribes after three years after which it cannot be recoverable at law.  However, section 18(1) of the same Act provides that prescription can be interrupted by a debtor acknowledging his/her liability and that the acknowledgment should be clear and unequivocal.  <em>First Merchant Bank of Zimbabwe Ltd </em>vs <em>Fortress Industrial Investments (Pvt) ltd &amp; Anor</em> 2000 (1) ZLR 22 (S).</p> <p>In the present matter, <em>Mr Mlambo</em> for the applicant rightly conceded in my view that taking into account the interruption, the three years backwards from date of issue of summons being 12 June 2017 takes us back to 12 June 2014.  Applicant must therefore claim arrear rentals as well as water charges from the 12th day of June 2014 to 12 June 2017.  In respect of rental arrears the total payment respondent is liable to is in the amount of US$ 24 050,00 instead of US$57 021,00.</p> <p>In respect of water, respondent is liable to pay to applicant the sum of US$860,00 being water consumed by the respondent from 12th June 2014 to 18 June 2018, being the date respondent moved out of the applicant’s premises.  Attached to applicant’s supplementary heads is a schedule showing how the above amounts have been arrived at.</p> <p>As I indicated above, respondent does not have <em>bona fide</em> defences in respect of the claims and applicant’s case remains unimpeachable.  What respondent sought to do is to cloud the court with irrelevant issues thereby circumventing the real issue that she ought to be evicted arising from non-payment of rentals and other charges.</p> <p>The claim for “costs for legal services paid to debt collectors previously dealing with the case” is incompetent as there is no proof that those debt collectors followed a legitimate procedure of debt collection.  However, applicant will be awarded costs of suit.</p> <p>In the circumstances, it is ordered that;</p> <p>Judgment be and is hereby entered for the plaintiff and against the defendant:-</p> <ol> <li>Payment in the sum of US$24 050,00 being arrear rentals for the period 12 June 2014 to 12 June 2017.</li> <li>Payment of US$860,00 being water charges from June 2014 to June 2017.</li> <li>Confirmation of the cancellation of the lease agreement between the parties in respect of shop 4, 42 Lobengula Street, Kelsheker Building, Bulawayo.</li> <li>An order that defendant and all persons claiming occupation through the defendant be evicted from shop 4 Kelsheker Building, 42 Lobengula Street, Bulawayo.</li> <li>Interest at the prescribed rate from date of summons to date of full payment.</li> <li>Holdover damages equivalent to the monthly rental from June 2017 to date of eviction.</li> <li>Costs of suit</li> </ol> <p> </p> <p> </p> <p><em>Messrs Majoko &amp; Majoko</em>, plaintiff’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/2019/6/2019-zwbhc-6.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=23034">2019-zwbhc-6.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/2019/6/2019-zwbhc-6.pdf" type="application/pdf; length=178698">2019-zwbhc-6.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/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/judgment-practice-and-procedure">Judgment (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/summary-judgment">Summary judgment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-summary-judgment">application for summary judgment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/claim-eviction-summary-judgment">claim for eviction (Summary judgment)</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/2015/626">Tian Ze Tobacco Co. (Pvt) Ltd v Muntuyedwa (HC 10938/14) [2015] ZWHHC 626 (21 July 2015);</a></div></div></div> Tue, 05 Mar 2019 07:55:00 +0000 admin 9286 at https://old.zimlii.org Larfage Cement (Zimbabwe) Limited v Chatizembwa (HH 413/18, HC 1998/18) [2018] ZWHHC 413 (18 July 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/413 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>LAFARGE CEMENT (ZIMBABWE) LIMITED</p> <p>versus</p> <p>MUGOVE CHATIZEMBWA</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MATHONSI J</p> <p>HARARE, 10 July 2018 and 18 July 2018</p> <p> </p> <p> </p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p><em>Ms. Y. Kundodyiwa</em>, for the applicant</p> <p><em>Ms. M. Moyo</em>, for the respondent</p> <p> </p> <p>            MATHONSI J: The applicant seeks summary judgment for the eviction of the respondent and all those claiming occupation through him from residential premises known as no. 16 West Estate, Lafarge Cement in Greendale, Harare. When the respondent received the eviction summons in HC 9669/17 in which the applicant sought to vindicate against the respondent, it being the owner of the premises which the respondent occupies without its consent and authority, the respondent entered appearance to defend and filed a plea. In that plea the defendant admitted losing his employment with the applicant but averred that he was contesting his dismissal and would only vacate the premises if he loses his labour case. He also disputed liability to pay hold over damages on the ground that he never agreed to any rental for the premises.</p> <p>            It is against that background that the applicant has sought summary judgment as it is of the firm view that the respondent possesses no <em>bona fide</em> defence to the eviction claim and that appearance has been entered for purposes of delay. This is because the respondent secured the premises by virtue of his employment by the applicant as a quarry superintendent which employment was terminated on 12 November 2013 following an act of misconduct the respondent admitted having committed. For that reason the respondent cannot continue in occupation of the company house not being an employee of the company.</p> <p>            All the material facts are really common cause. The parties indeed enjoyed an employer-employee relationship until the respondent violated the employer’s code of conduct resulting in him being charged with misconduct. One of the acts of misconduct was that he had left his work place without permission. In fact the respondent had taken a Nissan Hardbody motor vehicle belonging to the employer and driven it to a farm in Ruwa about 25km from his work location on a personal errand and was busted by his boss who later preferred charges against him. When that happened the respondent had, in vain, apologized profusely. He was still dismissed from employment.</p> <p>            The respondent appealed to the Labour Court against the dismissal but had his appeal thrown out by that court by judgment delivered on 24 October 2014, the court concluding that there was no merit in the appeal. The respondent then sought leave to appeal against the judgment of the Labour Court which application for leave was not made timeously and he had to seek condonation. The application for leave was not granted he having defaulted resulting in its dismissal. What the respondent is doing now is to seek a rescission of the default judgment dismissing his application for leave to appeal. So it is not like there is any pending appeal but the respondent is relying on that to contest eviction.</p> <p>            The issue for determination therefore is whether a former employee who was allocated company accommodation by the employer by virtue of his or her employment but has lost that employment is entitled to resist eviction by way of an <em>actio</em> <em>rei vindicatio</em> merely because he or she harbours an intention to contest the dismissal, a dismissal that has been upheld by the Labour Court. The point to note is that there exists no employment relationship between the parties at the present moment, it having been terminated. It is also common cause that the applicant is the exclusive owner of the premises and had only given the premises to the respondent as part of his employment benefits. Can the respondent continue enjoying the benefit of employment under those circumstances?</p> <p>            The principles of the <em>actio rei vindicatio</em> are settled in our law. The owner of property has a vindicatory right against the whole world. It is a remedy available to the owner whose property is in the possession of another without his or her consent. Roman-Dutch law has always protected the right of an owner of property to vindicate his or her property as a matter of policy even against an innocent occupier or innocent purchaser, where the property would have been sold. The occupier would only have the defence of estoppel. See <em>Mashave</em> v <em>Standard Bank of South Africa</em> Ltd 1998 (1) ZLR 436 (S) at 438 C; <em>Chetty</em> v <em>Naidoo </em>1974 (3) SA 13 (A) at 20 A-C; <em>Oakland F Nominees (Pty) Ltd</em> v <em>Gelria Mining and Investment</em> <em>Co Ltd</em> 1976 (1) SA 441 (A) at 452A.</p> <p>            Indeed the principle of the <em>actio rei vindicatio</em> is that an owner cannot be deprived of his or her property against his or her will. All the owner is required to prove is that he or she is the owner and that the property is in the possession of another at the commencement of the action. Proof of ownership shifts the onus to the possessor to prove a right to retention. See Jolly v Shannon and Anor 1998 (1) ZLR 78 (H) at 88 A-B; <em>Stanbic Finance Zimbabwe Ltd</em> v <em>Chivhungwa</em> 1999 (1) ZLR 262 (H); <em>Zavazava &amp; Anor</em> v <em>Tendere</em> 2015 (2) ZLR 394 (H) at 398 G.</p> <p>            Ms <em>Moyo</em> for the respondent submitted that in an application for summary judgment the respondent is not required to prove a defence. All that the respondent is enjoined to do is to show that he has a <em>bona fide</em> defence which, if proved at the trial, would entitle him to succeed. She submitted that the respondent has managed to do so because he had shown that there is a matter pending in which he is challenging his dismissal. I agree with Ms <em>Kandoyowa</em> that there is no appeal which is pending at the moment, and that even if an appeal had been pending in the Labour Court such an appeal would not suspend the decision appealed against by virtue of the provisions of s 92 E (2). That may indeed be academic because the appeal to the Labour Court was dismissed. The respondent cannot return to the Labour Court which upheld his dismissal. As already stated, what his pending in that court is an application for rescission of judgment, not even the judgment dismissing the appeal because that cannot be rescinded it having been made in the presence of the respondent, but the judgment dismissing his application for leave to appeal.</p> <p>            There is therefore no appeal pending and no leave to appeal has been granted. The respondent is holding onto nothing at all as would entitle him to resist eviction. I have stated before that an employee who has lost employment has no right to hold onto the property of the former employer allocated to him or her by virtue of employment or as a condition of employment merely on the grounds that he or she is challenging the termination of the employment contract. See <em>Montclaire Hotel and Casino</em> HH 501-15. The point is also made in <em>William Bain &amp; Co Holdings (Pvt) Ltd</em> v <em>Nyamukunda</em> HH 309-13 that a former employee cannot lawfully confiscate or hold onto a former employer’s property after termination of the employment contract because the right to hold on to the property is extinguished by the termination.</p> <p>            Put in another way, a former employee does not acquire a right of retention as can be used to resist a <em>rei vindicatio</em> on the basis of a challenge of a completed dismissal from employment and a forlorn hope that such dismissal may be reversed at a future uncertain date. This is particularly so in a case such as the present, where the former employee is not even in court properly challenging the dismissal. He is only seeking a rescission of a judgment which denied him leave to appeal. No right arises out of a dismissed appeal especially in a situation where even the leave to appeal against the judgment of the Labour Court has also failed. There is no determination of the contract of employment in this matter which distinguishes it from the case of <em>Zimtrade </em>v <em>Makaya </em>2005 (1) ZLR 427 (H) where this court held that the employer could not seek to repossess its assets from an employee using the <em>rei vindicatio</em> pending the determination of the contract of employment. In this case the contract has already been determined by both the employer’s disciplinary committee and the Labour Court.</p> <p>            It seems to me that the pronouncement of Makarau JP (as she then was) in <em>Medical Investments Ltd </em>v <em>Pedzisayi</em> 2010 (1) ZLR 11 (H) at 114G, 115A is apposite She said:</p> <p>“….where the status of the former employee is without dispute, the <em>rei vindicatio</em> can lie at the instance of the employer in appropriate cases and the matter thereby falls outside the purview of the Labour Court as it is not a matter that can be heard or determined in terms of the Labour Act or any other related enactment. It is my view that the <em>rei vindicatio </em>is not a cause of action whose remedy can be granted in terms of the Act as a stand-alone remedy in the absence of a dispute that is specifically provided for under the Act.”  </p> <p> </p> <p>            The learned Judge was making the point that the High Court has jurisdiction to determine the claim for the recovery of the employer’s property in the hands of a former employee even though the dispute was of a labour nature. She also made the crucial point that where the contract of employment has been determined the <em>rei vindicatio </em>can be used by the employer to recover the property. It is that right which the employer seeks to enforce by summary judgment in this case.</p> <p>            Summary judgment is an extra-ordinary and indeed drastic remedy in the sense that it negates the right of a litigant who has expressed a willingness to access the court and defend an action to do so. It is however a deliberate remedy designed to deny a <em>mala fide</em> defendant the benefit of the <em>audi alteram partem </em>rule simply because the plaintiff’s claim would be unassailable. Therefore, where the proposed defences of the defendant to the claim are clearly unarguable both in fact and in law, the drastic remedy of summary judgment is availed to the plaintiff. See <em>Chrisma </em>v <em>Stutchbury and Anor</em> 1973 (1) RLR 277 (SR) at 279.</p> <p>            It is settled that in order to defeat a summary judgment application the respondent must disclose facts upon which his or her defence is based with sufficient clarity and completeness so as to persuade the court that if proved at the trial, will constitute a defence to the claim. It is also settled that not every defence raised by a defendant will succeed in defeating a plaintiff’s claim for summary judgment. It must be a <em>bona fide </em>defence stated with sufficient clarity and completeness to allow the court to determine whether the opposing affidavit discloses a <em>bona fide</em> defence. See <em>Kingston Ltd </em>v <em>L D Ineson (Pvt) Ltd </em>2006 (1) ZLR 451 (S) at 458 F-G. </p> <p>            In my view what the respondent has raised, that he is still fighting his dismissal at the Labour Court even though that court dismissed his appeal and denied him the right to appeal to the Supreme Court against that judgment, is not a <em>bona fide</em> defence at all. If raised at the trial it will not succeed because the applicant is the undisputed owner of the property which has a vindicatory right in respect of that property. A dismissed employee has no right of retention in respect of the property where the employment contract has been terminated and there is no case pending in that regard. The applicant is entitled to summary judgment. Ms <em>Kundodyiwa</em> for the applicant abandoned the claim for hold over damages content to pursue the eviction only.</p> <p>            In the result, it is ordered that:</p> <ol> <li>Summary judgment be and is hereby entered in favour of the plaintiff for the eviction of the respondent and all those claiming occupation through him from 16 West Estate, Lafarge Cement, Greendale Harare.</li> <li>Costs of suit.   </li> </ol> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>Hussein Ranchhold &amp; Co</em>, applicant’s legal practitioners</p> <p><em>Mabundu &amp; Ndlovu Law Chambers</em>, respondent’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/2018/413/2018-zwhhc-413.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=21741">2018-zwhhc-413.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/2018/413/2018-zwhhc-413.pdf" type="application/pdf; length=123928">2018-zwhhc-413.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/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/dismissal">dismissal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/employee">Employee</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/lawful-dismissal">Lawful dismissal</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/summary-judgment">Summary judgment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-summary-judgment">application for summary judgment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/claim-eviction-summary-judgment">claim for eviction (Summary judgment)</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">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/2015/501">Montclair Hotel &amp; Casino v Mukuhwa (HC 6258/12) [2015] ZWHHC 501 (09 June 2015);</a></div></div></div> Wed, 05 Sep 2018 12:26:59 +0000 admin 9095 at https://old.zimlii.org Nyamweda v Benza & 2 Others (HH 238-18, HC 10128/17) [2018] ZWHHC 238 (09 May 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/238 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>TIMOTHY NHAMO NYAMWEDA</p> <p>versus</p> <p>INNOCENT BENZA</p> <p>and</p> <p>PATIENCE BENZA</p> <p>and</p> <p>HERENTALS GROUP OF SCHOOLS</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>TAGU J</p> <p>HARARE, 22 March &amp; 9 May 2018</p> <p> </p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p><em>P Manhibi</em>, for applicant</p> <p><em>TG Makanza</em>, for respondents</p> <p> </p> <p>               TAGU J: The applicant issued summons on the 30th of October 2017 against the respondents claiming orders confirming the cancellation of the lease agreement entered between the parties, ejectment of respondents and all those claiming occupation through them from the premises at No. 174 Munondo Street, Ruwa Industrial Park, Harare, payment of the arrear electricity bill calculated from the 1st of May 2016 to date of ejectment, payment of the arrear water and rates levies calculated from the 1st of May 2016 to date of ejectment, payment of arrear rentals amounting to US$5 600.00, payment of holding over damages of US$40.00 a day calculated from the 1st of November 2017 to the day of ejectment and costs of suit at the legal practitioner and client scale.</p> <p>            The respondents entered an appearance to defend the claims on the 13th of November 2017. This prompted the applicant to file this application for summary judgment on the basis that the respondents do not have a <em>bona fide</em> defence to the claims but only entered an appearance to defend for the purposes of postponing the inevitable while they continued to occupy the applicant’s premises without paying rentals or bills and rates in that from December 2016 to 31st August 2017 they accrued rental shortfalls of US$4 000.00, September and October 2017 they accrued arrear rentals of US$2 400.00, Water and Rates Bill stood at US$5 756.74, Electricity Bill stood at US$2 365.35 making a total of US$14 522.09 as well as holding over damages at the rate of US$40.00 a day from the 1st of November 2017.</p> <p>            In their opposing affidavits the respondents admitted that indeed the first and second respondents entered into a lease agreement with the applicant. They however, questioned why the third respondent was made a party to these proceedings. As regards the claims the respondents denied that they had been paying US$800.00 per month instead of the agreed US$1 200.00 per month hence breaching the agreement. They averred that the parties reached a temporary novation of the verbal agreement in terms of which respondents would pay US$2 400.00 cash as rent covering three months in advance. In turn the applicant undertook to discount US$1 200.00 from the three months that would have been paid in advance as a token of his appreciation for the cash payments instead of bank transfers. However, due to cash shortages they engaged the applicant so that the applicant provides them with the bank account but the applicant refused to give them the bank account hence the cause of action was self-created.</p> <p>            The applicant disputed the issue of novation and insisted that the respondents owed him rentals as stated above.</p> <p>            The issues to be decided are whether or not the third respondent was properly cited, whether or not the respondents are in arrears as stated by the applicant, whether or not there was any novation and whether or not the applicant met the requirements for a summary judgment to be granted.</p> <p>            As regards the first issue the undisputed facts are that the first respondent is the Managing Director of Herentals Group of Colleges cited as the third respondent. It is not in dispute that Herentals Group of Schools operate from rented premises at No. 174 Munondo Street, Ruwa Industrial Park, Harare. These are the premises in question. In my view the third respondent was properly cited.</p> <p>            As regards the second issued from the respondents’ opposing affidavit they conceded that in terms of the lease agreement they were to pay the rentals as stated in the lease agreement which they had been paying in cash until they faced cash shortages. They then did no pay due to the fact that the applicant did not supply them with bank details into which they were to transfer the money.  Clause 6a stipulates how the rentals were to be paid. It reads as follows-</p> <p>            “All rentals shall be delivered by the lessee to the Lessor in advance and on the 7th day of             each month in respect of which they fall due. In the event that the seventh day of such   month is a Saturday, Sunday or a Holiday, the Rent shall be delivered on the preceeding working -day. <strong>In addition, the Rent shall be delivered by the Lessee at such place in </strong>    <strong>Harare as the Lessors may from time to time direct in writing.” </strong>(My emphasis)</p> <p> </p> <p>            The reading of this clause clearly suggests that the Rent was supposed to be delivered in cash by the Lessee at such place in Harare as the Lessors may from time to time direct in writing. In my view if the lessors did not direct or refused to direct that the Rent be transferred into a bank account that was not provided for in the lease agreement. Therefor it can safely be said that the respondents were and are still in arrears.</p> <p>            On the issue of novation the applicant denied that. I have not been convinced that there was any novation because there was no old agreement to fall back to. The parties were bound by their initial agreement.</p> <p><strong>THE LAW</strong></p> <p>            An application for Summary judgment is made in terms of Order 10 r 64 (1) of the High Court Rules 1971 which states that-</p> <p>             “Where the defendant has entered appearance to a summons, the plaintiff may at any       time before the Pre-Trial Conference is held, make a court application in terms of this rule for the court to enter summary judgment for what is claimed in the summons and    costs.”</p> <p> </p> <p>            The requirements for lack of a bona fide defence for a successful application for summary judgment was enunciated in the case of <em>Mercantile Bank Ltd</em> v <em>Star Pomer CC</em> <em>And Anor </em>2003 (3) SA 309 where it was said-</p> <p>             “The defendant must therefore be condemned to pay plaintiff’s claim unless the   defendant can show the existence of a triable issue based upon a dispute which is bona fide in nature, to have been contrived for the purpose of temporizing. The procedure casts       upon the defendant the onus of disclosing a defence which is sound in law and which is   based on apparently bona fide proportions of fact.”</p> <p> </p> <p>            <em>In casu</em>, the founding affidavit was deposed to by Timothy N. Nyamweda who is lessor of the premises in question and the plaintiff in the main matter. The affidavits clearly sets out the facts that show that the respondents breached the lease agreement by not paying rentals and utility bills. To support his assertions the electricity bill, water bill and levy statements were attached as annexures revealing the arrears from the time the respondents took occupation. The respondents could not deny that they have materially breached the lease agreement as they have not paid rentals in full for 10 months, or paid rentals at all from September to date. The same applied to water, rates, levy and electricity bills.</p> <p>            As regards the holding over damages the applicant is claiming US$40. 00 per day. In terms of clauses 3 and 6b of the lease agreement the lessee was to pay US$1 200.00 per month payable in advance on the 7th day of each month. In my view the applicant lawfully claimed holding over damages of US$40.00 per day. A figure of US$40.00 is very conservative and reasonable given that a month has at least 30 days. The application for summary judgment therefore should be granted with the relief sought without the applicants incurring the expense and inconvenience of a trial. The applicant met all the requirements for an application for summary judgment.</p> <p><strong>IT IS ORDERED THAT</strong></p> <ol> <li>Summary judgment be and is hereby entered for the applicant for</li> </ol> <ul> <li>Confirmation of the cancellation of the lease agreement between the parties;</li> <li>Ejectment of the respondents and all those in occupation of the premises through them known as NO. 174 Mundondo Street, Ruwa Industrial Park, Harare;</li> <li>Payment of arrear rentals in the sum of US$5 600.00,</li> <li>Payment of arrear Electricity Bills calculated from the 1st of May 2016 to date of ejectment.</li> <li>Payment of the arrear water and rates levies calculated from the 1st of May 2016 to date of ejectment;</li> <li>Holding over damages in the sum of US$40.00 per day calculated from the 1st of November 2017 to day of ejectment.</li> <li>Costs of suit on legal practitioner and client scale.</li> </ul> <p><em>Mushonga Mutsvairo &amp; Associates</em>, applicant’s legal practitioners</p> <p><em>Messrs Nyamayaro Makanza Bakasa</em>, defendants’ legal practitioners        <strong>           </strong></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/2018/238/2018-zwhhc-238.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=21117">2018-zwhhc-238.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/2018/238/2018-zwhhc-238.pdf" type="application/pdf; length=154538">2018-zwhhc-238.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/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/summary-judgment">Summary judgment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-summary-judgment">application for summary judgment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/claim-eviction-summary-judgment">claim for eviction (Summary judgment)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/defence-summary-judgment">defence to summary judgment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/principles-summary-judgment">principles (Summary judgment)</a></li></ul></span> Fri, 29 Jun 2018 08:36:49 +0000 admin 8950 at https://old.zimlii.org Forestry Commission v Muwonde (HH 9-18, HC 10666/16 x Ref HC 6632/16) [2018] ZWHHC 9 (10 January 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/9 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>FORESTRY COMMISSION  </p> <p>versus</p> <p>BETTY MUWONDE</p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHAREWA J</p> <p>HARARE, 29 November 2017 &amp; 10 January 2018                          </p> <p> </p> <p><strong>Opposed Application – Summary Judgment</strong></p> <p>Ms<em> S Makani,</em> for the applicant</p> <p>Respondent in person</p> <p> </p> <p>CHAREWA J: I granted an application for summary judgment in this matter on 29 November 2017 by consent of the parties in the following terms:</p> <p> </p> <ol> <li>The application for summary judgment be and is hereby granted against the respondent as follows:</li> </ol> <ol> <li>A declaration be and is hereby made that respondent is no longer entitled to occupy the property being house number 4 Zimbabwe College of Forestry, 1 Bather Road, Christmas Pass, Mutare.</li> <li>An order for eviction of the respondent, her subtenants and assignees from the premises known as house number 4 Zimbabwe College of Forestry, 1 Bather Road, Christmas Pass, Mutare within five (5) days be and is hereby granted.</li> <li>It is ordered that in the event that the respondent, her sub-tenants and assignees fail to comply with the order in b) above, the Sheriff or his lawful deputies be empowered to evict respondent, her sub-tenants and assignees from the property.</li> <li>There be no order as to costs.<br />   </li> </ol> <p>The respondent having now requested for a full judgment in order “to pursue (her) case further” hereunder are my reasons for judgment.</p> <p><strong>Facts</strong></p> <p>The summary of the facts and background of this case are that the applicant terminated the respondent’s employment pursuant to disciplinary proceedings. In terms of her contract of employment, respondent was entitled to occupation and use of house number 4 Zimbabwe College of Forestry, 1 Bather Road, Christmas Pass, Mutare (the property). Upon termination of employment, applicant issued summons wherein it sought to vindicate its property by seeking a declaratory order that respondent was no longer entitled to occupy the premises, an order of eviction against respondent and all those claiming occupation through her, as well as an order for holding over damages in the amount of $13 per day calculated from May 2013 to date of vacation, and that in the event that the respondent, her subtenants or assignees failed to comply with the order to vacate, the Sheriff be empowered to evict her.</p> <p><strong>Issues  </strong></p> <p>The only issue that I had to determine was whether the applicant was entitled to summary judgment in the circumstances of the case.</p> <p><strong>Parties’ submissions</strong></p> <p>Applicant submitted that it was entitled to summary judgment in view of the fact that its claim was based on a <em>rei vindicatio </em>in that respondent’s right to occupation was predicated on her employment with applicant. The employment having been terminated on disciplinary grounds, the right of occupation also terminated and defendant was obliged to restore to applicant its property which she was only entitled to by virtue of her employment. In that respect, respondent did not have any good or <em>bona fide</em> defence to applicant’s claim and therefore summary judgment ought to be granted.</p> <p>On her part, the respondent was of the view that since she was contesting the termination of her employment, there was a labour dispute which entitled her to remain in occupation until that dispute was resolved. In particular, she was of the view that she ought to be paid her damages for termination of employment before she vacates the premises.</p> <p><strong>The law</strong></p> <p>With regard to the law on summary judgment I will not reiterate the obvious which has been stated and restated in countless cases in our jurisdiction. It is enough to state that for a respondent to defeat an application for summary judgment, she must aver facts on the merits which would enable her to succeed in the main matter, or at the very least, raise a <em>prima facie</em> defence.<a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a></p> <p>The law with regard to <em>rei vindicatio</em>, particularly in the context of employment disputes is also trite. Once the applicant has shown that it is the owner of the thing, which still exists, is clearly identifiable and was in the respondent’s possession<a href="#_ftn2" name="_ftnref2" title="" id="_ftnref2">[2]</a>, the onus is on the respondent to show the existence of a contractual right to possession. That right cannot exist where the contract is invalid or has been terminated.</p> <p>In that respect, it follows that the jurisprudence in our jurisdiction is to the effect that in an employment relationship, once the employee is dismissed, any benefits accruing from that employment cease to exist.<a href="#_ftn3" name="_ftnref3" title="" id="_ftnref3">[3]</a> And where a right of retention is premised on a contract of employment, a party may successfully obtain restoration of its property by the mere proof that the employment relationship is terminated.</p> <p>Whether the termination of the employment relationship is unlawful, or whether there are any damages due to a respondent as a consequence of the termination of employment seems to me to be irrelevant. An employee stands dismissed as long as the employer is not willing to reinstate him or her. For that reason, no right of retention of the property of the employer accrues to the employee as the contract remains terminated.  </p> <p>Therefore, the only defence to a vindicatory claim that can ground reasonable prospects of success to defeat summary judgment is that the respondent has a contractual right of retention of the property.</p> <p><strong>Analysis</strong></p> <p>The applicant was dismissed from employment. She has not asserted, nor does she in fact have a right to reinstatement. Therefore, there is no longer any contract of employment between her and applicant. In that regard, respondent has not accrued any right to continued occupation of the applicant’s property as she can only remain in occupation on the basis of an employment relationship.</p> <p>I note, even though it matters not, that respondent did not allege that the termination of her employment was wrongful or unlawful. After all, that is a matter for the labour dispute resolution processes to resolve to finality, and is immaterial to applicant’s claim. The issue here is whether or not, according to the jurisprudentially established principles of <em>rei vindicatio</em>, the applicant was entitled to the return of its property once it deemed the respondent’s employment terminated.</p> <p>It is clearly unreasonable and untenable for the respondent to insist that she is still an employee of applicant entitled to the benefit of occupation of applicant’s house merely because there is a labour dispute. That she claims an employment relationship based on non-payment of a labour award or damages is clear proof of her lack of appreciation of the law.</p> <p>Her claim for damages or terminal benefits is divorced from the requirements of <em>rei vindicatio</em>, and it is unjustifiable for her to seek to tie her claim to applicant’s entitlement to restoration of its property. Certainly, it is no defence to <em>rei vindicatio, </em>in the circumstances to claim that there is a labour dispute or to insist that one remains an employee until damages or a labour award is paid as claimed by the respondent <em>in casu.</em></p> <p> In that respect, I must agree with applicant that respondent has not raised any <em>bona fide</em> defence to its claim and that therefore summary judgment ought to be granted as prayed for.</p> <p>These legal requirements and ramifications were clearly explained to the respondent by the court. She claimed to have understood and conceded that in that case she had no defence to summary judgment. I therefore do not regard the request for the full judgment and intention to pursue the matter further by the respondent as genuine or <em>bona fide</em> but is merely intended to gain time or harass the applicant.</p> <p><strong>Costs</strong></p> <p>Applicant had claimed for costs on the higher scale on the grounds that respondent did not have a bona fide defence but had entered appearance to defend merely as a dilatory tactic. It submitted therefore that respondent ought to be made aware of the court’s displeasure by an order of higher costs. However, upon the concession to summary judgment being made, applicant understood that as a self-actor, respondent may not have had the benefit of a sound explanation of her rights and kindly agreed to an order with each party bearing its own costs.</p> <p><em>Dube Manikai and Hwacha</em>, applicant’s legal practitioners</p> <p> </p> <p> </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> See <em>Jena v Nechipote</em> 1986 (1) ZLR 29 (S)</p> <p><a href="#_ftnref2" name="_ftn2" title="" id="_ftn2">[2]</a> Chetty v Naidoo 1975 (3) SA 13</p> <p><a href="#_ftnref3" name="_ftn3" title="" id="_ftn3">[3]</a> Zimbabwe Broadcasting Holdings v Semukeliso Gono HH 162/09. See also Mashave v Standard Bank of South Africa Ltd 1998 (1) ZLR 436, Nyahora v CPI Holdings (Pvt) Ltd SC 81/14.</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/2018/9/2018-zwhhc-9.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26216">2018-zwhhc-9.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/2018/9/2018-zwhhc-9.pdf" type="application/pdf; length=306999">2018-zwhhc-9.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/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/summary-judgment">Summary judgment</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-summary-judgment">application for summary judgment</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/claim-eviction-summary-judgment">claim for eviction (Summary judgment)</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/supreme-court-zimbabwe/2014/81">Nyahora v CFI Holdings (Pvt) Ltd (SC 276/13) [2014] ZWSC 81 (22 October 2014);</a></div></div></div> Mon, 19 Mar 2018 07:28:22 +0000 admin 8632 at https://old.zimlii.org