S https://old.zimlii.org/taxonomy/term/11211/all en Mutsahuni And Anor v Minister of Lands, Agriculture, Fisheries, Water and Rural Resettlement And Anor (Judgment No. HH 407-21, HC 3834/21) [2021] ZWHHC 407 (05 August 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/407 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HH 407-21</p> <p>HC 3834/21</p> <p><strong>SIMBARASHE MUTSAHUNI</strong></p> <p><strong>and</strong></p> <p><strong>BONA MUTSAHUNI</strong> </p> <p><strong>versus</strong></p> <p><strong>THE MINISTER OF LANDS AGRICULTURE, FISHERIES</strong></p> <p><strong>WATER AND RURAL RESETTLEMENT </strong></p> <p><strong>and                                                                     </strong></p> <p><strong>WASHINGTON MATSAIRA</strong> </p> <p> </p> <p>THE HIGH COURT OF ZIMBABWE</p> <p>MUZOFA J, HARARE  23,26 July &amp; 5 August 2021</p> <p> </p> <p><em>S. Mukwekwezeke</em>, for the applicant</p> <p><em>M. A Chimombe</em>, for the 1st respondent</p> <p><em>K Kachambwa</em>, for the 2nd respondent.</p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p>  MUZOFA J: The facts of this case are largely common cause. The applicants are beneficiaries of the land reform programme. They were issued with an offer letter on 22 June 2017 by the 1st respondent  over a farm known as subdivision consolidation of RE of Sigaro Farm and Gwebi Wood of Sigaro Farm in the District of Mazowe in Mashonaland Province measuring 1 804 hectares ‘the farm’. In due course they were served with a notice of intention to withdraw the offer letter. Despite objections raised, the 1st respondent withdrew the offer letter. The applicants were issued with another offer letter over subdivision 1 on RE of Sigaro in Mazowe District Mashonaland Central Province measuring approximately 488 hectares in extent.</p> <p>Dissatisfied by the decision to withdraw the offer letter the applicants filed an application for review under HC 2370/21 for the setting aside of the decision to withdraw the offer letter on the 19th of May 2021.The following day the 20th of May 2021 the applicants filed an urgent chamber application to interdict the 1st respondent from enforcing the withdrawal letter and the suspension of any offer letters issued over the farm under HC2438/21. The application was dismissed. According to the applicants, which facts are disputed the 1st respondent has commenced subdividing the farm and is likely to issue offer letters to other farmers who may disrupt their farming activities. In addition the 2nd respondent unlawfully evicted their workers from the farm. On those facts the applicants seek to interdict the 1st respondent from enforcing the withdrawal letter pending the determination of the application for review and an application under HC 3019/21 and spoliatory relief against the 2nd respondent.</p> <p>Both respondents raised preliminary points in their opposing affidavits. On the day of hearing of the matter, the 1st respondent abandoned the preliminary points. The 2nd respondent raised the point that the matter is not urgent and that the court is functus officio.</p> <p>Whether the court is <em>functus officio</em></p> <p>I must address the issue whether the court is <em>functus officio</em> first before delving into the question of urgency because if the court cannot be seized with the matter it is barred from considering any issues in respect of the matter.</p> <p>It was submitted that after the applicants’ offer letter was withdrawn they approached the court on an urgent basis seeking to interdict the 1st respondent from enforcing the withdrawal. The court dismissed the application after hearing argument. A final order was granted on the merits. The court cannot hear argument on the same issue, it is <em>functus officio</em>. I was referred to the case of <em>ZESA V Utah</em><a href="#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a>  as authority for that proposition. It was argued that issue estoppel applies in this case on the authority of <em>Galante v Galante</em> <a href="#_ftn2" name="_ftnref2" title="" id="_ftnref2">[2]</a> . For the applicant it was submitted that the court is not <em>functus officio</em>. Although <em>Mr Mukwekwezeke</em> conceded that the relief sought is similar he argued that the issues for determination are different. Subsequent developments took place after the dismissal of the first matter. The 1st respondent has commenced subdividing the farm which had not taken place then. He did not dispute that the matter was heard on the merits but insisted that the application was dismissed because it had been filed prematurely.  </p> <p>In determining whether the court is <em>functus officio</em>, the court must invariably consider whether the matter is <em>res judicata</em>. The requirements for this plea are settled. For one to succeed he must show that the action is between the same parties, the actions must concern the same subject matter and the actions must be founded upon the same cause of action. See the case of <em>Flowerdale Investments (Private) Limited &amp; Ano</em>r v <em>Bernard Construction (Private) Limited  &amp; 2 Others<a href="#_ftn3" name="_ftnref3" title="" id="_ftnref3"><strong>[3]</strong></a></em>.  Herbstein &amp; Van Winsen<a href="#_ftn4" name="_ftnref4" title="" id="_ftnref4">[4]</a>  set out the requirements as follows:</p> <p>"The requisites of a plea of lis pendens are the same with regard to the person, cause of action and subject matter as those of a plea of res judicata, which, in turn, are that the two actions must have been between the same parties or their successors in title, concerning the same subject matter and founded upon the same cause of complaint."</p> <p>It is common cause that in respect of the interdict, the applications relate to the same parties. The relief also relate to the same subject matter, that is the suspension of the withdrawal letter in respect of the farm.</p> <p>The only issue as submitted for the applicant is that the cause of complaint is different. I was not favoured with sufficient details of the differences. Under HC 2438/21 the applicants approached the court on an urgent basis seeking a provisional order to interdict the 1st respondent from enforcing the withdrawal letter and the suspension of any offer letters issued by the 1st respondent on the farm pending the determination of the application for review filed under HC779/21.The 1st applicant swore to the founding affidavit that the 2nd applicant associated with. The facts relied on for the relief sought were that the applicants were issued with an offer letter in June 2017. They invested a considerable amount in the farm and they call it home. The 1st respondent advised them of his intention to withdraw the offer letter, they objected but nonetheless the offer letter was withdrawn. They were not happy with the conduct of some officials of the 1st respondent, they complained but nothing happened. They filed an application for the review of the 1st respondent’s decision and filed the urgent chamber application. The applicant’s apprehension then was that, in the event the withdrawal by the 1st respondent is enforced and offer letters issued to other farmers, the farmers would disrupt the applicants’ farming activities. Further to that the application for review would be rendered academic.</p> <p>The substance of the provisional order the applicants seek in this matter is to interdict the 1st respondent from enforcing the withdrawal of their offer letter pending the determination of two applications under HC 2370/21 and HC3019/21, to be barred from issuing offer letters over the farm and to interdict anyone holding any offer letter from occupying the farm. The applicants aver that the 1st respondent has commenced pegging the farm with intent to issue offer letters to the potential farmers. They fear that once the new owners access the farm they will disrupt their farming activities. The applicants then set out how they have invested in the farm and how the withdrawal will affect the contracts they entered with partners in their farming enterprise.</p> <p>The application before me is based on different circumstances. The applicants aver that the 1st respondent has commenced subdividing the farm. The presence of the 2nd respondent at the farm is also evidence of the enforcement of the withdrawal letter. In the initial application the cause of action was based on assumptions that the 1st respondent will parcel out land on the farm. Before me the 1st respondent has actually allocated part of the farm to the 2nd respondent. I am satisfied that the cause of action is different from the first application. The matter is therefore not <em>res judicata</em> and the court is not <em>functus officio</em>.</p> <p>Urgency</p> <p>What constitutes urgency is now trite. The matter must be such that any delay in dealing with the matter will result in irreparable harm. Any future intervention may not protect the applicants’ interests as irreparable harm would have occurred. The applicant must treat the matter as urgent by taking action immediately when the harm is threatened or at the time the harm materialises<a href="#_ftn5" name="_ftnref5" title="" id="_ftnref5">[5]</a>.Two issues stand out for consideration as submitted for the 2nd respondent time and harm. The applicant must demonstrate he is likely to suffer irreparable harm and that he acted timeously to avert the harm. Where there is a delay in acting timeously, there must be a reasonable explanation for the delay. What defines timeous action depends on the circumstances of the matter no one size fit all definition can be made.</p> <p>I am satisfied on urgency. Parties agree that the need to act arose on 30 June 2021. The applicants did not sit on their case, they engaged the 1st respondent by letter with a view to suspend the enforcement of the withdrawal. The applicants indicated that while they waited for the response from the 1st respondent they were despoiled. I was not persuaded by the submission for the 2nd respondent that the letter was not reasonable action because the 1st respondent had already made a decision. It was therefore pointless to engage the office. It may be so, but what is demonstrated by the conduct is that the applicant did not sit back they did something to protect their interests. It is only when they were despoiled that they realised the futility of the intended engagement and approached the court. The applicants cannot be penalised for the 14 days delay. There is a reasonable explanation for the delay.</p> <p>Interdict</p> <p>In order to succeed in an application for an interim interdict the applicant must demonstrate a clear right, or a <em>prima facie </em>right though open to some doubt. Where a clear right is established the applicant does not need to establish a well-grounded apprehension of irreparable harm. However where  only a <em>prima facie </em>right is established, the second requirement must be established, namely, that there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and the balance of convenience favours the granting of interim relief; and the applicant has no other satisfactory remedy. See <em>Watson </em>v<em> Gilson Enterprises (Pvt) Ltd </em>1997 (2) ZLR 318(H).</p> <p>It is trite that an application stands or falls on the founding affidavit. The 1st applicant set out the <em>prima facie</em> right in paragraphs 32 to 35 of the founding affidavit. In summary the right is premised on their occupation of the farm from 2017. That they have invested  thousands of dollars in the farm, they have crops to be harvested and livestock to be protected, that they have entered into a farming contract and that the farm is now home for the family.</p> <p>It is difficult to appreciate how the applicants rely on their stay on the farm as a right. I am sure the right may be premised on the 2017 offer letter. The fact is that the offer letter that gave rise to their stay was withdrawn. The applicants do not have a valid offer letter in respect of the farm. Their right is now limited to the land set out in the valid offer letter. I find the expression of the applicants conduct synonymous with the appellant in the  <em>Airfield Investments (Private) Limited v  The Minister of Lands, Agriculture and Rural Resettlement &amp; Others</em><a href="#_ftn6" name="_ftnref6" title="" id="_ftnref6">[6]</a> case .Although the appeal court was addressing provisions of the Land Acquisition Act the sentiments are apposite in this case , the court  had this to say;</p> <p>‘The appellant was not in a position to show the existence of <em>prima facie</em> rights of ownership in the land which the first respondent was about to infringe because at the time it applied for the interim relief all the rights of ownership it had in the land had been taken by means of the order of acquisition and vested in the acquiring authority. When the appellant lodged the application for the interim relief before the court <em>a quo</em> the acquisition of the land by the State was a <em>fait accompli,</em> all rights of ownership having been extinguished on its part. The acquiring authority having done everything it was obliged by the law to do to acquire the land for resettlement purposes, there was no outstanding act against the performance of which the acquiring authority could be temporarily interdicted.</p> <p>An interim interdict is not a remedy for prohibiting lawful conduct. At the time the first respondent made the order by which the appellant was deprived of ownership of the land, he acted lawfully in the exercise of the power conferred upon him. Subsection (1) of s 8 of the Act gave him the power to make the order and its effect reflected the legal consequences of that lawful act.</p> <p>To suspend the effects of the order of acquisition lawfully made and intended by the legislature would amount to striking down the Act of Parliament or rendering it completely ineffective, thereby creating a vacuum pending determination of the constitutionality of the impugned sections of the Act. That would be improper for the court to do…’</p> <p>The case is authority for the following. Firstly that the applicant cannot claim a right that has been withdrawn by a lawful authority. The 1st respondent is the administrative body reposed with power to offer letters on state land and the concurrent power to withdraw such offer letters. Secondly, a court cannot interdict a lawful process. The 1st respondent’s withdrawal of the 2017 offer letter to the applicants was done in terms of the law. It is assumed to be lawful until set aside. Thirdly, pendency of litigation does not give rights to the applicant. The 1st respondent cannot be barred from conducting its duties based on pending litigation. In the final clearly the applicants failed to establish a prima<em> facie</em> right in the farm. As already stated their right is now based on the second offer letter and limited to the 488 hectares.</p> <p>I inquired from <em>Mr Mukwekwezeke</em> if the pending litigation gave rise to some rights to the applicants. His response was that indeed it did and undertook to file case law in support of the submission. He filed two cases <em>Setlogelo v Setlogelo<a href="#_ftn7" name="_ftnref7" title="" id="_ftnref7"><strong>[7]</strong></a> </em>  the leading case on the requirements of an interdict. The second case relied on was <em>Chunguno v Minister of Lands, Agriculture and Rural Resettlement<a href="#_ftn8" name="_ftnref8" title="" id="_ftnref8"><strong>[8]</strong></a>.</em> In the <em>Chunguno</em> case the applicant’s offer letter had not been withdrawn, the two beneficiaries to the land were offered different portions of land. Thus the facts are distinguishable and the <em>ratio decidendi</em> in that case is not applicable in the circumstances of this case.</p> <p>In respect of irreparable harm, the applicants submitted that the investment in the farm is likely to be damaged by the new offerees. There is no provision for compensation. Although the 1st respondent submitted that a written undertaking was made to compensate the applicants I do not think at this point there is irreparable harm that the applicants are likely to suffer. The 2nd respondent who is claiming title to the other part of the farm indicated that the applicants did not make improvements on the Gwebi Wood farm. The infrastructure on the farm is what he left and is actually in a dilapidated state. The applicants did not deny the assertions even though they had opportunity to do so. They also did not deny that, that part of the farm is not under use. It therefore means the assumed irreparable harm can only relate to the part that has not been offered to anyone. The applicants do not know when the allocation will take place.  </p> <p>Spoliation</p> <p>Spoliation is a common law remedy meant to discourage members of the public from taking the law into their hands but to follow due process. It has been described as a wrongful deprivation of possession.  The essential requirements for spoliation are set out in <em>Botha &amp; Anor v Barret<a href="#_ftn9" name="_ftnref9" title="" id="_ftnref9"><strong>[9]</strong></a></em>  where the court stated that:</p> <p>“It is clear that in order to obtain spoliation order, two allegations must be made and proved.  These are:</p> <p>1.that the applicant was in peaceful and undisturbed possession of the farm; and</p> <p>2.that the respondent deprived him of the possession forcibly or wrongfully <strong>against his consent</strong>.”</p> <p>(also see  <em>Chisveto v Minister of Local Government and Town Planning</em>1984 (1) ZLR 248 (H),   <em>Matimbura v Matimbura </em>SC 173/98, <em>Magadzire v Magadzire </em>SC 196/98, and <em>Karori (Pvt) Ltd &amp; Anor v Brigadier Mujaji</em> HH 23-07.).The applicants have to establish their case on a balance of probabilities since the order sought is final in nature.</p> <p>                        According to the applicants they were in peaceful and undisturbed possession of the farm until the 12th of July when the 2nd respondent removed their guards and brought in farming equipment to occupy the farm. Two affidavits were attached from security guards who confirmed the events that the 2nd respondent’s son actually went to the farm and threatened the guards. Maxwell Muranganwa the head security guard indicated that the 2nd respondent’s son brought in tractors and other farming equipment in the farm compound and indicated that they were taking over the farm. The facts were not denied by the 2nd respondent. However in his opposing affidavit the 2nd respondent justified his occupation on his title deed. His claim was that he is the lawful owner of the Gwebi Wood Farm which was acquired from him. It was consolidated with the RE of Sigaro and offered to the applicants. His title deed was subsequently restored. He also indicated that he confined his occupation to the unutilised portion of the land. Photographs were attached showing a dilapidated farm house, unused chicken run and fallow land.<em> Mr Kachambwa</em> in his oral submissions weighed in that the applicants were not in possession of that part of the farm because they were not using it. Therefore there was no spoliation to talk of.</p> <p>In <em>Superintendent Remembrancer Legal Affairs vs Anil Kumar<a href="#_ftn10" name="_ftnref10" title="" id="_ftnref10"><strong>[10]</strong></a></em> the court noted that a one size fits all definition of possession is difficult but it is agreed that possession has two essential elements actual power over the object possessed. i.e. <em>corpus possessionis</em> and intention of the possessor to exclude any interference from others. i.e. <em>animus possidendi.</em> Possession is factual as well as legal concept.</p> <p>Although the applicants did not file an answering affidavit disputing the facts set out that the land occupied was unused, l do not take that as a ground to despoil them. In my view it is not in dispute that the applicants held an offer letter in respect of the farm. It is not in dispute that they exercised rights over the farm. The fact of the possession is confirmed by the presence of the security guards on the farm. The fact that the main house, the chicken run and the land on that part of the farm lay fallow does not mean there was no possession. Despite the withdrawal of the offer letter, the 2nd respondent is required to take occupation in terms of the law. Even if it can be said the applicants are now unlawfully occupying the land they must be protected from unlawful conduct. At this stage the court does not have to inquire into ownership, it is about possession only. See <em>Etheredge   v Minister of State for National Security Responsible for Lands, Land Reform and Resettlement and Another</em><a href="#_ftn11" name="_ftnref11" title="" id="_ftnref11">[11]</a><em>.</em></p> <p>In the final the applicants have failed in their quest for an interim interdict. The application partially succeeds in respect of the spoliation order sought.</p> <p>Since the application partially succeeded each party must bear its costs.</p> <p>Accordingly the following order is made</p> <ol> <li>The provisional order for an interim interdict be and is hereby dismissed.</li> <li>The application for spoliation is granted.</li> <li>The 2nd respondent or anyone acting through him or under his instruction be and are hereby cease immediately all evictions of the applicants and removal of his property or farm workers.</li> <li>The 2nd respondent is ordered to return any and all portions of the farm called Model A2, Phase II in respect of subdivision Consolidation measuring 1 804,9719 HA of RE of Sigaro &amp; Gwebi Wood of Sigaro farm in the District of Mazowe Mashonaland Central Province.</li> <li>No order as to costs.</li> </ol> <p> </p> <p><em>Chimwamurombe Legal Practice Zenas Chambers,</em> applicant’s legal practitioners</p> <p><em>Civil Division of the Attorney General’s Office</em>, respondent’s legal practitioners</p> <p><em>Madzima,Chidyausiku &amp; Museta</em> ,2nd respondent’s legal practitioners</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p><a href="#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> SC 32/18</p> <p><a href="#_ftnref2" name="_ftn2" title="" id="_ftn2">[2]</a> HH 31/02</p> <p><a href="#_ftnref3" name="_ftn3" title="" id="_ftn3">[3]</a> SC 5/09</p> <p><a href="#_ftnref4" name="_ftn4" title="" id="_ftn4">[4]</a> The Civil Practice of the Supreme Court of South Africa 4th  ed by Van Winsen, Cilliers and Loots at p 249</p> <p><a href="#_ftnref5" name="_ftn5" title="" id="_ftn5">[5]</a> Zimbabwe Anti-Corruption Commission v Siney Uhse HH534/15 ; Tonbridge Assets Limited And Ors v Livera Trading (Private) Limited And Ors HH574/16</p> <p><a href="#_ftnref6" name="_ftn6" title="" id="_ftn6">[6]</a> SC36/04</p> <p><a href="#_ftnref7" name="_ftn7" title="" id="_ftn7">[7]</a> 1914 AD 221</p> <p><a href="#_ftnref8" name="_ftn8" title="" id="_ftn8">[8]</a>  HMT 9/18</p> <p><a href="#_ftnref9" name="_ftn9" title="" id="_ftn9">[9]</a> 1996 (2) ZLR 73  @79D-E</p> <p><a href="#_ftnref10" name="_ftn10" title="" id="_ftn10">[10]</a> AIR 1980 SC 52</p> <p><a href="#_ftnref11" name="_ftn11" title="" id="_ftn11">[11]</a> HH16/09</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/407/2021-zwhhc-407.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=33595">2021-zwhhc-407.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/407/2021-zwhhc-407.pdf" type="application/pdf; length=480404">2021-zwhhc-407.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/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/estoppel">ESTOPPEL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interdict">INTERDICT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-interdict">Application (INTERDICT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/requirements-interdict">Requirements for interdict</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/l">L</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/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/holder-offer-letter-respect-land">holder of offer letter in respect of land</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/offer-letters-acquisition-land">offer letters (Acquisition of land)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/res-judicata">Res judicata</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/essentials-res-judicata">essentials of res judicata</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/issue-estoppel-res-judicata">issue estoppel (Res judicata)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/previous-litigation-between-same-parties-res-judicata">previous litigation between same parties (Res judicata)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/principles-res-judicata">principles (Res judicata)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/requirements-res-judicata">requirements for (Res judicata)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/s">S</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/spoliation">SPOLIATION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/order-spoliation">Order (SPOLIATION)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/possession-protected-spoliatory-remedies">Possession protected by spoliatory remedies</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/what-spoliation">What is (SPOLIATION)</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/2004/36">Airfield Investments (Pvt) Ltd. v Minister of Lands Agriculture and Rural Resettlement and Others (64/03) ((Pvt)) [2004] ZWSC 36 (02 June 2004);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2015/534">Zimbabwe Anti-Corruption Commission v Ushe (HC 4349/15 ) [2015] ZWHHC 534 (14 June 2015);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2017/122">Tonbridge Assets Ltd. &amp; Another v Livera Trading (Pvt) Ltd. &amp; Another (HH 122-17 HC 803/17) [2017] ZWHHC 122 (24 February 2017);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2007/23">Karori (Private) Limited and Another v Mujaji (HC 824/07) [2007] ZWHHC 23 (22 February 2007);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2009/16">Etheredge Minister of State for National Security Responsible for Lands, Land Reform And Resettlement and Another (HC 3295/08) [2009] ZWHHC 16 (03 February 2009);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1992/3">LAND ACQUISITION ACT</a></div></div></div> Wed, 18 Aug 2021 10:07:33 +0000 Sandra 10100 at https://old.zimlii.org Caprcend Pvt Ltd v Mazowe Mining Company Private Limited (Judgment No. HH 395-21, HC 3586/21) [2021] ZWHHC 395 (29 July 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/395 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HH 395-21</p> <p>HC 3586/21</p> <p> </p> <p>CAPRCEND PRIVATE LIMITED</p> <p>versus</p> <p>MAZOWE MINING COMPANY PRIVATE LIMITED</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>TAGU J</p> <p>HARARE 8, 12 &amp; 29 July 2021</p> <p><strong>Urgent chamber application</strong></p> <p><em>M. Mtlongwa</em>, for the applicant</p> <p><em>G.R.J. Sithole</em> with <em>T. Sena</em>, for the respondent</p> <p>                TAGU J: This is an urgent chamber application in which the applicant is seeking an order declaring that the dispossession of the applicant by the respondent of a mining claim named Canbrae 4 M5341, claim number 10779, measuring 2 hectares and situated in Mazowe (“the property“) in the absence of an order of court is wrongful and unlawful and that the respondent be ordered to return peaceful and undisturbed possession of the property within twenty-four (24) hours of service of this Order on the respondent.</p> <p>The basis of the application being that the applicant was in peaceful and undisturbed possession of the property since November 2020 until 29 June 2021 when the respondent through persons unknown to the applicant and in the company of armed members of Zimbabwe Republic Police wrongfully and unlawfully took occupation of the property by destroying structures which were erected on the property by applicant such as the security officers’ cabins, security/parameter fence and preventing the applicant from exploiting its mineral mining rights. The respondent did not have an order of court sanctioning its conduct. The respondent’s conduct is not only wrongful and unlawful but has the effect of despoiling applicant from its peaceful and undisturbed occupation of the property which it enjoyed before the respondent’s unlawful occupation.</p> <p>The respondent raised four points <em>in limine</em> in its notice of opposition. These were:</p> <p>1.         that the applicant does not exist,</p> <p>2.         that the application is fatally defective,</p> <p>3.         that the application is not urgent and</p> <p>4.         that there are material disputes of facts.</p> <p> I have to dispose of these points <em>in limine</em> before dealing with the merits of the application.</p> <p><strong>THAT THE APPLICANT DOES NOT EXIST</strong></p> <p>The respondent’s contention is that the applicant herein does not exist. It conducted a company search at the Companies Office and the results showed that there is no registered company that answers to the name “Caprcend Private Limited.” The respondent challenged the deponent to the applicant’s founding affidavit Clark Clever Makoni to furnish this Honourable Court with proof to the contrary, in particular by way of Certificate of Incorporation for the company failing which the instant application ought to be dismissed with costs on a higher scale being granted against the deponent personally.</p> <p>In answering to this point <em>in limine</em> the applicant submitted in its answering affidavit that the Applicant is a duly registered company in terms of the laws of Zimbabwe. The applicant supplied the copy of the Certificate of Incorporation together with a Tax clearance as annexures “B1-2” and prayed that the point <em>in limine</em> be dismissed.</p> <p>A perusal of Annexure “B1” which is a Certificate of Incorporation No. 115482 issued on 14 January 2009 describes the applicant as “CAPRCEND INVESTMENTS [PRIVATE] LIMITED”. The Tax Clearance Certificate (ITF263) for the year ending 31 December 2021 issued on the 2 April 2021 Annexure “B2” also described the applicant as Caprcend Investments (Pvt) Ltd. The counsels for the respondent in their oral submissions insisted that the Annexures referred to are for a different entity and does not rescue the non-suited of the applicant hence there is no applicant before the Court. The counsel for the applicant in his oral submissions argued that the gist of the matter is the omission of the word “Investments” otherwise there is an entity called “Caprcend”. In praying for the dismissal of the point <em>in limine</em> he referred the Court to the case of <em>Mercy Masuku</em> v <em>Delta Beverages</em> HB-172/12.</p> <p>It is trite that proceedings brought by or against a non-existent entity is void ab initio and a nullity. See <em>Gariya Safaris (Private) Ltd</em> v <em>van Wyk</em> 1996 (2) ZLR 246.</p> <p>In the case of <em>Mercy Masuku</em> v <em>Delta Beverages supra</em>, the Court, faced with a similar situation had occasion to comment as follows where “DELTA BEVERAGES” was cited as such instead of “DELTA BEVERAGES (PRIVATE) LIMITED”-</p> <p>“Where, the entity is non-existent indeed the issue of nullity sits to the bottom of the sea like lead and cannot be brought up to the surface. However, the issue adopts a completely different complexion where there is in existence an entity who is by some error or omission is not cited. It would seem that authorities held that there should be a distinction. In van Vuuren Braun and Summers 1910 TPD 950 WESSELS J at 955 states:</p> <p>“Now in order to bring a defendant legally into court a summons is required. In order that summons may be valid, it must comply with the requirements of r 6. It must purport to be a summons, a mere request or letter to the effect that the defendant is kindly requesting to appear in court on a certain day is an invalid citation. Next the summons must specify the defendant. It is true that it will not be described as accurately as he should be. If a man is baptized “George Smith” it is no defect to call him “John Smith” because the individual is pointed out with sufficient accuracy. But if there were no mention of the defendant at all the summons would be a wholly worthless document and could not be amended by inverting the defendant’s name in court.”</p> <p> </p> <p>The judge went further to say –</p> <p>“<em>In casu</em> the entity against whom applicant has sued is said to be non-existent. The argument is grounded on the fact that the citation omitted the full description of the respondent. The crucial question that irresistibly begs an answer is, to what extent does the omission affect the identification of the respondent? Respondent is a well-known blue chip company whose fleet of cars are all over our national and domestic roads and its commercial advertisements need no introduction….To me, applicant may have technically erred in her description, but, has described respondent with sufficient clarity to an extent of eliminating any mistake either legal or factual of respondent’s identity. Applicant sufficiently described respondent”</p> <p>In the present case it is not in doubt that the applicant and the respondent entered into a mining contract collaboration agreement for gold mining and processing sometime in November 2020. The Mining Cooperation Agreement is referred to by the deponent Clark Clever Makoni at page 7 para 6 of his founding affidavit and attached to the Applicant’s application on page 16 of the record.as Annexure “B”. It is headed-</p> <p><strong><em>“MINING COOPERATION AGREEMENT</em></strong></p> <p><em>Made and entered into by and between</em></p> <p><strong><em>MAZOWE MINIG COMPANY MINE WORKERS</em></strong></p> <p><strong><em>SCHEME</em></strong></p> <p><em>Represented by Hon. C.T. MUGWENI authorized thereto</em></p> <p><em>Of</em></p> <p><em>CAPRCEND</em></p> <p><em>53B Kennedy Drive Greendale, HARARE</em></p> <p><em>AND</em></p> <p><strong><em>MAZOWE MINING COMPANY (PRIVATE) LIMITED:</em></strong></p> <p><strong><em>Under Corporate Rescue</em></strong></p> <p><em>Represented by MR. Stanley Matunhire authorized thereto:</em></p> <p><em>P. Bag 2005</em></p> <p><em>Mazowe.”</em></p> <p> </p> <p>In view of the above, it does not make sense for the respondent to argue that there is no entity by the name “CAPRCEND”. The respondent never disputed that it entered into such an agreement with the applicant. The respondent in answer to applicant’s response said there is no such entity and submitted that there was no omission because if it there was an omission counsel for the respondent questioned why the resolution is also different? The million dollar question this court would ask is why is it that the Mining Cooperation Agreement different from the Certificate of Incorporation? The agreement does not cite the applicant in full. I am of the view that the applicant is an existing entity and is fully known by the respondent. While it is admitted that the applicant was not cited in full in this application it does not mean that it does not exist. It was a mere omission. I will therefore dismiss this point <em>in limine</em>. </p> <p><strong>THAT THE APPLICATION IS FATALLY DEFECTIVE</strong></p> <p>The respondent is currently under supervision and corporate rescue proceedings with effect from 20 February 2020. It was submitted that in terms of s 126 of the Insolvency Act</p> <p>[<em>Chapter 6.07</em>] there is general moratorium on legal proceedings in respect of a company under corporate rescue. During corporate rescue proceedings no legal proceedings against a company which is under corporate rescue or in relation to any property belonging to the company, or lawfully in its possession may be commenced or proceeded with in any forum except-</p> <ol> <li>with the written consent of the corporate rescue practitioner or</li> <li>with the leave of court or</li> <li>as a set-off against the company in legal proceedings or</li> <li>criminal proceedings against directors or officers of the company or</li> <li>proceedings concerning any property or right over which the company exercises the powers of a trustee or</li> <li>proceedings by a regulatory authority in the execution of its duties after written notification to the corporate rescue practitioner.</li> </ol> <p>In <em>casu</em> it was submitted that no consent has been given by the corporate rescue practitioner to commence legal proceedings against the respondent a company under supervision and corporate rescue proceedings. That the applicant does not have the leave of court to file this application. It was submitted that the application filed by the applicant does not fit in any of the exceptions stated in section 126 of the Insolvency Act. In the circumstances, the application is fatally defective for being contrary to the provisions of statute hence must be dismissed with cost on a higher scale.</p> <p>In its answering affidavit the applicant submitted that s 126 of the Insolvency Act [<em>Chapter 6.07</em>] is a general moratorium on legal proceedings. That it is not binding in an application of this nature wherein the applicant is seeking common law remedy of spoliation. Spoliation being a common law remedy is not affected by the said provision. It was submitted that spoliation is an exception by its nature as it does not need a remedy that affect the substantiveness of the otherwise corporate rescue of the respondent. It was argued further that this is an application for restoration of a status quo ante of the parties. Hence it was not the intention of the legislature that the respondent by the mere fact that it is under corporate rescue should therefore engage in unlawful conduct and take the law into its own hands. See <em>Farai Mushoriwa</em> v <em>City of Harare</em> HH-195/14 at p 3 of the cyclostyled judgment. Therefore, the general requirement for leave to sue as contemplated in s 126 of the Insolvency Act is only designed for claims or litigation that affects the objectives for recovery. It does not apply to common law remedy of spoliation that is sought. Furthermore, it was argued that the rules of this Honourable court do not provide for a procedure for urgent application for leave to sue on urgent basis. This instant application being for spoliation which needs to be heard on urgency, it cannot wait for an application for leave to sue to be done first, otherwise the need for urgent protection will fall away. See <em>Hwange Coal Gasification</em> <em>Company (Private) Limited</em> v<em> Hwange Colliery Company Limited &amp; Anor</em> HB-246/20. The Applicant then suggested that this Honorable Court when approached on urgent basis as in this present application can only be guided by the course provided for in r 4C  of the High Court Rules, 1971 and exercise its discretion in the interest of justice and waive the requirement for leave and hear the matter. See <em>Romeo Taombera Zibani</em> v<em> Judicial Service Commission and Ors</em> HH-797/16. Finally, it was submitted that the remedy for spoliation being sui generis cannot be said to be covered under the said section 126 of the Insolvency Act and the point <em>in limine</em> should be dismissed for lack of merit.</p> <p>It is common cause that the Respondent is currently under supervision and corporate rescue proceedings with effect from 20 February 2020. Court orders under case Nos. HC 2696/19 and HC 978/20 placed the respondent under corporate rescue and REGGIE SARUCHERA was duly appointed Corporate Rescue Practitioner of the respondent. Even the Mining Cooperation Agreement between the applicant and the respondent confirmed this fact. The question to be decided is whether or not any legal proceedings of any nature could be commenced or proceeded with in any forum against a company under supervision and corporate rescue.</p> <p>To answer the above question one has to briefly look at the provisions of section 126 of the Insolvency Act [<em>Chapter 6.07</em>]. The provision of the statute above reads as follows-</p> <p>        <strong>“126. General moratorium on legal proceedings against company.</strong></p> <ol> <li>During corporate rescue proceedings, no legal proceedings, including enforcement action, against the company, or in relation to any property belonging to the company, or lawfully in its possession, may be commenced or proceeded with in any forum, except-</li> </ol> <ol> <li>with the written consent of the practitioner; or</li> <li>with the leave of the Court and in accordance with any terms the Court considers suitable; or</li> <li>as a set –off against any claim made by the company in any legal proceedings, irrespective of whether those proceedings commenced before or after the corporate rescue proceedings began: or</li> <li>criminal proceedings against the company or any of its directors or officers ; or</li> <li>proceedings concerning any property or right over which the company exercises the powers of a trustee; or</li> <li>proceedings by a regulatory authority in the execution of its duties after written notification to the corporate rescue practitioner.”</li> </ol> <p>The wording of s 126 of the Insolvency Act [<em>Chapter 6.07</em>] above is clear and requires no interpretation. In its literal sense s 126 shows that no legal proceedings may be commenced or proceeded with against a company under corporate rescue proceedings. I am not persuaded that the use of the word “may” means the clear provisions of a statute can be dispensed with. If the legislature in its wisdom wanted proceedings of an urgent nature to be commenced or proceeded with against a company under corporate rescue proceedings it should have said so. The legislature listed the circumstances under which legal proceedings may be commenced or proceeded with. I agree with the counsel for the respondent that s 126 oust the common law. This application is barred by statute. It is fatally defective as it was instituted without satisfying the conditions stated under s 126 of the Insolvency Act [<em>Chapter 6.07</em>].                      </p> <p><strong>THAT THE APPLICATION IS NOT URGENT</strong></p> <p>The basis for this contention is that the purported urgency is fictional and self-created. It was submitted that the certificate of urgency which is an indispensable component of an urgent chamber application was done by MOSES TINASHE MAVHAIRE on 1 July 2021 whereas the founding affidavit was sworn by CLARK CLEVER MAKONI on 2 July 2021. The certificate of urgency therefore predates the founding affidavit when the former is supposed to be based on the latter. A legal practitioner cannot therefore certify urgency on the basis of non-existent founding affidavit. To that extent the certificate of urgency is fake, irregular and cannot create any urgency at all. See <em>Condurago Investments (Pvt) Ltd t/a Mbada Diamonds</em> v <em>Mutual Finance (Pvt) Ltd</em> HH-630/15. In that case citing <em>Morgen Tsvangirayi</em> v <em>Chairperson of the Electoral Commission</em></p> <p>EC 6 /13 BHUNU J (as he then was) when confronted with a similar situation had this to say-</p> <p>“To make matters worse the applicant has filed case number EC 27/13 without a valid certificate of urgency as is required by law. A perusal of the documents shows that Mr <em>Batasara</em> issued the certificate of urgency on 5 August 2013 three days before the applicant had deposed to his founding affidavit on 8 August 2013. Mr <em>Batasara</em>’s assertion that he had read and understood the applicant’s affidavit on 5 August 2013 is therefore false in fact and misleading, he could not possibly have read and understood the applicant’s founding affidavit on 5 August when it was not in existence. Thus the applicant filed the application with a false certificate of urgency. With respect, a fake and to that extent irregular certificate of urgency cannot establish urgency.”</p> <p>In the present case Mr <em>Moses Tinashe Mavhaire</em> said on 1 July 2021 that “…having read the applicant’s Founding Affidavit and its annexures, do hereby certify that these proceedings are urgent for the following reasons…” Yet the founding affidavit of Clark Clever Makoni was only commissioned on 2 July 2021. In the <em>Tsvangirayi</em> v Electoral Commission supra, the judge quoted GOWORA JA who quoted the remarks of GILLESPIE J in <em>General Transport &amp; Engineering (Pvt)</em> <em>Ltd &amp; Ors</em> v <em>Zimbank Corp (Pvt) Ltd</em> 1998 (2) ZLR 301 where the learned judge of Appeal had no kind words for legal practitioners who issue certificates of urgency as a matter of routine without firstly applying their minds. He characterized that king of conduct as an abuse of the law and remarked in the process that-</p> <p>“It is therefore an abuse for the lawyer to put his name to a certificate of urgency where he does not genuinely believe the matter to be urgent. More over as in any situation where the genuineness of a belief is postulated, that good faith can be tested by the reasonableness or otherwise of the purported view. Thus where a lawyer could not reasonably entertain the belief he professes in the urgency of the matter he runs the risk of a judge concluding that he acted wrongfully if not dishonestly in his certificate of urgency… In certifying the matter as urgent, the legal practitioner is required to apply his or her own mind to the circumstances of the case and reach an independent judgment as to the urgency of the matter. He or she is not supposed to take verbatim what his or her client says regarding perceived urgency. I accept the contention by the first respondent that it is a condition precedent to the validity of a certificate of urgency that a legal practitioner applies his mind to the facts.”</p> <p>The counsel for the applicant submitted that Rules of this court does not provide content or form of certificate of urgency to be followed by legal practitioners. He said it cannot only be based on the founding affidavit but on facts placed before him. He maintained that facts in this case show urgency and that the date of commissioning confirms its status. He maintained that this being an application for spoliation its urgent by its very nature.</p> <p>While I accept that spoliation applications are urgent by their very nature, I think the counsel for the applicant as well as the certifying counsel fell into the error that caused GOWORA JA to remark that “he or she is not supposed to take verbatim what his or her client says regarding perceived urgency.”                </p> <p>It is clear the certificate of urgency predates the founding affidavit, albeit by one day when the former was supposed to be based on the later.</p> <p><strong>THAT THERE ARE MATERIAL DISPUTES OF FACTS</strong></p> <p>This contention is based on the fact that the answering affidavit created material disputes of facts as it is not clear as to where and when the photos attached to the answering affidavit were taken. Indeed it is difficult to say the photos relate to what happened. Their authenticity is in question. Coupled with what I have already said, this application is fatally defective and has to be dismissed.</p> <p>IT IS ORDERED THAT</p> <ol> <li>The application is dismissed.</li> <li>There is no order as to costs.</li> </ol> <p> </p> <p><em>Mangezi, Nleya &amp; partners</em>, applicant’s legal practitioners</p> <p><em>Chimuka Mafunga</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/2021/395/2021-zwhhc-395.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=28733">2021-zwhhc-395.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/395/2021-zwhhc-395.pdf" type="application/pdf; length=620229">2021-zwhhc-395.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/company">COMPANY</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/proceedings-and-against">Proceedings by and against</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/m">M</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/mines-and-minerals">MINES AND MINERALS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rights-mines-and-minerals">Rights (MINES AND MINERALS)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/s">S</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/spoliation">SPOLIATION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/order-spoliation">Order (SPOLIATION)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/possession-protected-spoliatory-remedies">Possession protected by spoliatory remedies</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/2014/195">Mushoriwa v City of Harare (HC 4266/13) [2014] ZWHHC 195 (29 April 2014);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2016/797">Zibani v JSC &amp; Others (HH 797/16 HC 12441/16) [2016] ZWHHC 797 (12 December 2016);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2015/630">Condurago Inv. (Pvt) Ltd v Mutual Finance (Pvt) Ltd (HC 4019/15) [2015] ZWHHC 630 (21 July 2015);</a></div><div class="field-item odd"><a href="/zw/judgment/bulawayo-high-court/2020/246">Hwange Coal Gasification Company (Private) limited v Hwange Colliery Company Limited &amp; Anor (HB 246-20, HC 912/20) [2020] ZWBH 246 (29 October 2020);</a></div></div></div> Wed, 04 Aug 2021 09:44:14 +0000 Sandra 10088 at https://old.zimlii.org Humbe v Muchina And 4 Others (SC 81-21, Civil Appeal No. SC 373/20) [2021] ZWSC 81 (01 July 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/81 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Judgment No. SC 81/21</p> <p>Civil Appeal No. SC 373/20</p> <p> </p> <p><strong>REPORTABLE</strong>        <strong>(78)</strong></p> <p><strong>FRANK     HUMBE</strong></p> <p><strong>V</strong></p> <ol> <li><strong>    DESMOND     MUCHINA     (2)     SPARKLES     SERVICES     (PRIVATE)     LIMITED     (3)     GODFREY     MUNYAMANA     (4)     THE     SHERIFF     OF     ZIMBABWE     (5)     FADZAYI     MUNYAMANA</strong></li> </ol> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>BHUNU JA, MATHONSI JA &amp; KUDYA AJA</strong></p> <p><strong>HARARE: 10 MAY 2021 &amp; 01 JULY 2021.</strong></p> <p> </p> <p><em>T. S. T. Dzvetero </em>with Ms<em> T. M. Dzvetero, </em>for the appellant.</p> <p><em>E. K. Muhlekiwa, </em>for the second, third and fifth respondents.</p> <p>                   <strong>MATHONSI JA:      </strong>The appellant brought an urgent chamber application in the High Court for a stay of the execution of a judgment obtained by the first respondent against the second and third respondents on 12 February 2018 in the sum of US$352 851,30 together with interest and costs of suit.</p> <p>                   By judgment delivered on 21 August 2020, the High Court dismissed the application with costs.  This appeal is against that judgment dismissing the appellant’s urgent application.</p> <p><strong>THE FACTS</strong></p> <p>                   The third and fifth respondents, who are husband and wife, hold title to Stand 67 Guildford Estate Township of Subdivision H of Guildford of Borrowdale Estate, also known as No 67 Guildford Crescent, Borrowdale Harare, (the house) by Deed of Transfer Number 1447/2009.  On 15 November 2013 they entered into a deed of sale in terms of which they sold the house to the appellant for US$380 000.00 payable in certain instalments from 30 November 2013 to 30 June 2014.</p> <p>                   There is no convergence between them <a name="_GoBack" id="_GoBack"></a>as to whether the full purchase price was paid.  The appellant alleges having paid part of the purchase price through the sale of his own neighbouring house through the agency of the second respondent and part of it through the sale to the third respondent of his Mercedes Benz S Class motor vehicle.</p> <p>                   The appellant alleges further that although he failed to pay the cash balance of the purchase price in accordance with the agreement, he has however paid it in full.  On the other hand the third and fifth respondents’ position is that the appellant defaulted in his payments and after giving him the requisite 30 days notice in terms of the deed of sale, they duly cancelled the agreement.</p> <p>                   Notwithstanding such cancellation the appellant still sued the second, third and fifth respondents in case number HC 11367/15, which was filed on 20 November 2015, for an order compelling transfer of the house to himself and for their eviction from it.  The summons action in question was defended and does not appear to have been prosecuted with any zeal thereafter.</p> <p>                   Meanwhile the second and third respondents were sued by the first respondent in case number HC 11601/17 which summons action was filed on 14 December 2017. He obtained judgment against them on 12 February 2018 in the sum of US$352 851.30 plus interest and costs of suit aforesaid.  A writ was thereafter issued which the fourth respondent was instructed to execute.  In pursuance whereof the house in dispute was placed under judicial attachment.</p> <p>                   Following the attachment, the appellant lay a claim to the house motivating the fourth respondent to institute interpleader proceedings under case number HC 7525/19.  By judgment delivered on 9 June 2020 in <em>The Sheriff for Zimbabwe v Humbe &amp; Anor</em> HH 378/20, CHINAMORA J dismissed the appellant’s interpleader claim and declared the house executable.  The judgment remains extant and has not been appealed against.</p> <p>                   Instead, the appellant filed a further application on 21 July 2020 under case number HC 3805/20.  He sought an order setting aside the writ of execution in terms of which the house was attached.  The basis of the application was that the Sheriff was enjoined by r 326 of the High Court Rules to first diligently pursue the attachment of a debtor’s movable property before going against immovable property. In addition, the appellant took the view that the house could not be the subject of execution as it was <em>res litigiosa</em> having been the subject of litigation in HC 11367/15.</p> <p>                   In the same application the appellant also sought a declaration that his rights in the house “preceded” those of the first respondent.  He also sought an order that the house be transferred to him.  This, the appellant sought, in spite of the judgment of CHINAMORA J issued on 9 June 2020 which, as I have said, remains extant.</p> <p>                   At the same time that the appellant filed the court application in case number HC 3805/20, he also filed the urgent chamber application for interim relief of a stay of execution which is the subject of the present appeal.  The application was opposed by the first, second, third and fifth respondents.  The stay of execution was sought pending the finalisation of his claim in HC 11367/15 and his application for a declaratory order and the setting aside of the writ which is case number HC 3805/20.</p> <p> </p> <p><strong>DECISION <em>A QUO</em></strong></p> <p>                   The court <em>a quo</em> found that the appellant had failed to pay the full purchase price for the house in terms of the deed of sale.  In doing so the court <em>a quo</em> was fortified by the fact that the deed of settlement signed by the appellant and the third respondent on 12 December 2017 which, although later repudiated by the third respondent as having been procured by duress, acknowledged that there was still an outstanding sum of US$50 000.00.</p> <p>                   The court <em>a quo</em> recognised that both rules 326 and 327 of the High Court Rules provide for options to a party which applied for the issuance of a writ.  They do not provide a remedy to the appellant.  After criticizing the interim relief sought by the appellant which was the same as the final order sought, the court <em>a quo</em> wondered how the appellant could have filed further applications in the face of the judgment of CHINAMORA J which I have alluded to above.</p> <p>                   It was the court <em>a quo</em>’s finding that given that the house was registered in the names of the third and fifth respondents they hold real rights over the house.  The appellant never acquired any real rights over it.  The attachment of the house by the Sheriff in pursuance of a writ of execution gave the first respondent, as the judgment creditor in whose favour the writ was issued, a <em>pignus judiciale </em>on it created by the attachment.  That is to say an attachment creates a judicial mortgage on the property so attached.</p> <p>                   The conclusion of the court <em>a quo</em> was that the appellant failed to establish a <em>prima facie</em> right over the house as would entitle him to a stay of execution.  His claim through interpleader proceedings having failed and the house declared executable, the appellant was seeking “to mount a second bid based on essentially the same facts.”  He was precluded from doing so because the court <em>a quo</em> had already pronounced itself on the issue.</p> <p> </p> <p>                   Overcome by grief as a result, the appellant launched this appeal on grounds set out below:</p> <p> </p> <p><strong>GROUNDS OF APPEAL</strong></p> <ol> <li>The court <em>a quo</em> erred in fact and grossly misdirected itself in finding that the appellant breached the contract of sale by failing to pay the full purchase price by the date that the price was due.</li> <li>The court <em>a quo</em> erred in fact and grossly misdirected itself in finding that the appellant caused the arrest and prosecution of the fifth respondent on fabricated allegations of fraud and coerced the third respondent to sign the deed of settlement using the fifth respondent’s arrest.</li> <li>The court <em>a quo</em> erred at law and grossly misdirected itself in finding that the dispute between the parties in the instant matter is <em>res judicata</em>.</li> <li>The court <em>a quo</em> erred at law and grossly misdirected itself in disregarding that the property in dispute is <em>res litigiosa</em> and in further failing to give any reasons for such discount.</li> <li>The court <em>a quo</em> erred at law and grossly misdirected itself in disregarding that the application was an application for stay of execution pending a court application in terms of r 340 of the Rules of the High Court and in failing to give any reasons for such discount.</li> <li>The court <em>a quo</em> erred at law and grossly misdirected itself in determining that the interim relief was the same as the final relief and as such the relief could not be granted when in fact the interim and final reliefs were different and even if the reliefs were the same, the court could and it ought to have granted it either way even if it were to be found to be the same.</li> <li>The court <em>a quo</em> erred at law and grossly misdirected itself in exercising its discretion without addressing the requirements of and purpose for proceedings for stay of execution.</li> <li>The court <em>a quo</em> erred at law and grossly misdirected itself in finding that r 326 of the High Court Rules can only be invoked by a person who applied for the writ of execution.</li> </ol> <p> </p> <p><strong>ISSUE FOR DETERMINATION</strong></p> <p>             Clearly the grounds of appeal stray from the field of discourse.  They seem to attack every pronouncement in the judgment <em>a quo</em> without identifying the <em>ratio decidendi</em>.  The court <em>a quo</em> dismissed the application because it made a finding that the appellant failed to prove a <em>prima facie</em> right over the house.  This was more so regard being had that the same court had already pronounced itself when it declared the house executable.</p> <p>             In that regard, only one issue commends itself for determination in this appeal.  It is whether the court <em>a quo</em> erred in dismissing the application for stay of execution.</p> <p><strong>THE LAW</strong></p> <p>             The appellant approached the court <em>a quo</em> for a stay of execution pending the prosecution of a summons claim to compel transfer of the house to himself, which by then had been pending for 5 years, and a court application which seeks both a declaratory order that he possesses superior rights in the house and that the house be transferred to him.  The court application also seeks the setting aside of a writ issued in favour of the first respondent against a house not registered in the appellant’s name but those of the judgment debtors in that suit.</p> <p>             The execution of a judgment is a process of the court.  The court therefore retains an inherent power to manage that process having regard to the applicable rules of procedure.  What is required for a litigant to persuade the court to exercise its discretion in favour of granting a stay in the execution of the court’s judgment has been stated in a number of cases.</p> <p>             In <em>Mupini v Makoni</em> 1993 (1) ZLR 80(S) at 83 B–D this Court stated the position of the law quite clearly:</p> <p>“In the exercise of a wide discretion the court may, therefore, set aside or suspend a writ of execution or, for that matter, cancel the grant of a provisional stay.  It will act where real and substantial justice so demands.  The onus rests on the party seeking a stay to satisfy the court that special circumstances exist.  The general rule is that a party who has obtained an order against another is entitled to execute upon it.  Such special reasons against execution issuing can be more readily found where, as in casu, the judgment is for ejectment or the transfer of property, for in such instances the carrying of it into operation could render the restitution of the original position difficult.  See <em>Cohen v Cohen</em> (1) 1979 ZLR 184(G) at 187C, <em>Santam Ins Company Limited v Paget </em>(2) 1981 ZLR 132(G) at 134 G–135B; <em>Chibanda v King</em> 1983(1) ZLR 116(H) at 119 C-H; <em>Strime v Strime</em> 1983 (4) SA 850(C) at 852 A.”</p> <p>                   It is settled in this jurisdiction that a judgment creditor is entitled to attach and have sold in execution the property belonging to the judgment debtor.  This is so even in a situation where a third party has a personal right against such a debtor in respect of the same property.  The position is the same even where the personal right of the third party preceded the attachment of the property.  See Herbstein and Van Winsen, <em>Civil Practice of The Superior Courts in South Africa</em> 3 Ed at p 597 (quoted with approval in <em>Maphosa &amp; Anor v Cook &amp; Ors </em>1997 (2) ZLR 314 (H) at p 316 G).</p> <p>                   To that should be added the hallowed principle of our law that the conveyance of ownership in immovable property from person to person is achieved through the registration of transfer at the deeds registry.  Real rights in an immovable property are held only by registration at the deeds registry.  This was underscored by this Court in the seminal remarks made in <em>Takafuma v Takafuma</em> 1994 (2) ZLR 103(S) at 105 G-106A;</p> <p>“The registration of rights in immovable property in terms of the Deeds Registries Act [<em>Chapter 20:05</em>] is not a mere matter of form.  Nor is it simply a devise to confound creditors or the tax authorities.  It is a matter of substance.  It conveys real rights upon those in whose name the property is registered.  See the definition of ‘real right’ in s 2 of the Act.  The real right of ownership, or <em>jus in re propria</em>, is ‘the sum total of all the possible rights in a thing’ – see Wille’s <em>Principles of South African Law </em>8 ed p 255.”</p> <p>                   A party which lays a claim to property which has been placed under judicial attachment by the Sheriff in the discharge of his or her duties as the executive of the court, has remedies provided for in the rules of court.  Such a party is required to submit a claim to the Sheriff in order to trigger the institution by the latter of interpleader proceedings in terms of Order 30 of the High Court Rules.</p> <p>                   The court resolves the conflicting claims of parties in interpleader proceedings by either upholding the claimant’s claim or dismissing it. Where it finds the claimant’s claim to be without merit, the court, in addition to dismissing the claim, ordinarily declares the property under attachment executable. The result is the opposite where the claim is upheld.</p> <p> </p> <p>                   In the present case, after raising essentially the same arguments as in the urgent chamber application the subject of this appeal, the appellants’ interpleader claim was dismissed by the court <em>a quo</em>.  It declared the house executable at the instance of the first respondent.</p> <p> </p> <p><strong>APPLICATION OF THE LAW TO THE FACTS</strong></p> <p>                   The first respondent has an extant judgment in his favour issued against the second and third respondents.  The judgment is sounding in money and it was in pursuance of it that a writ of execution was issued against the house.</p> <p>                   The house is registered at the Deeds Registry in the name of one of the judgment debtors.  It is the same house which the appellant lays a claim to by virtue of a deed of sale which ran into turbulence.  The dispute between the appellant and those of the respondents who sold the house to him had not been resolved by the courts at the time that the first respondent instructed the Sheriff to attach the house for sale in execution.</p> <p>          On the authorities that I have made reference to above the judgment creditor, who is the first respondent, was entitled at law to have attached and sold in execution, the house which is registered in the name of his debtor.  The appellant is a third party who only has personal rights exercisable against the debtor in respect of the ownership and possession of the house.  As much as those personal rights came about prior to the attachment, or may have arisen prior to the first respondent’s cause of action that is of no moment in law.</p> <p>                   The court <em>a quo</em> cannot be faulted for its finding that the attachment of the house in execution created a judicial mortgage or <em>pignus judiciale</em>.  The appellant’s situation is exacerbated by the failure of his interpleader claim and the prior declaration made by the court <em>a quo,</em> that the house was executable in favour of the first respondent.</p> <p> </p> <p>                   In dismissing the appellant’s claim to the same house CHINAMORA J, who determined the interpleader, relied on a line of authorities to the effect that where the house is registered in the name of the judgment debtor, he or she remains the owner of the property.  For that reason it is susceptible to execution.  The learned Judge concluded:</p> <p>“In <em>casu</em>, the judgment debtor has title to the property.  It is indeed immovable property.  However I propose to equate possession in the case of movable goods to title in respect of immovable property.  To the extent that possession and title raise a rebuttable presumption of ownership, the principle in <em>Zandberg v Van Zyl</em> (1910 AD 258 at 272) applies to immovable property.  The starting point is to examine the legal implication of title.  Title confers real rights in immovable property.  It cannot be gain said that a title deed is <em>prima facie</em> proof that a person enjoys real rights over the immovable property defined in the deed.”</p> <p> </p> <p>                    (The Sheriff for Zimbabwe v Humbe and Another, <em>supra</em>).</p> <p>                    It is against the foregoing background that the appellant approached the court <em>a quo</em> for the second time, seeking a stay of execution to enable him to pursue the determination of the parties’ rights in the house all over again.  Those rights had already been determined by the same court in a judgment that was not impugned and remains extant.</p> <p>                    In my view the court <em>a quo</em> cannot be faulted for coming to the conclusion that after the appellant had chosen to pursue interpleader proceedings, which failed, he could not mount a second bid in the same court based, essentially, on the same facts.  It is true that the court <em>a quo</em> had already pronounced itself on the status of the house having declared it executable.  It is not the number of times that a litigant approaches the court seeking recourse which determines a matter in the litigant’s favour, but the existence of a sustainable cause of action.  In this case there was none.</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>                   I have set out what an applicant for a stay of execution is required to establish in order to motivate the exercise of the court’s discretion in his or her favour, namely that special circumstances exist for the court to halt its own execution process.</p> <p>                   The appellant dismally failed to discharge that onus.  This is a case in which the same property had been declared executable by judgment of the same court.  He had not appealed that judgment leaving it binding against the parties.  It would have been extremely incompetent for the court <em>a quo</em> to grant a stay of two judgments of its own definitively settling the rights of the parties.</p> <p>                   In addition, the house lawfully registered in the name of a judgment debtor had been placed under attachment in execution of a valid judgment.  The appellant only possessed personal rights against the debtor which could not override real rights in law.  There was no legal basis for a stay and certainly no special circumstances as would invite the court to grant it. </p> <p>                        I do not agree with Mr <em>Muhlekiwa’s</em> submissions that the appropriate order should have been the striking off of the application from the roll.  The reasons advanced for that proposition are clearly wrong.  The application was determined on the merits, the court having found that it lacked merit.  It could only be disposed of by its dismissal.</p> <p>                   Regarding the question of costs, this is an ill-conceived appeal, wholly without merit and predicated on extraneous grounds.  I see no reason why costs should not follow the result.</p> <p> </p> <p>                   In the result it be and is hereby ordered as follows:</p> <ol> <li>That the appeal is dismissed.</li> <li>That the appellant shall bear the costs.</li> </ol> <p>                </p> <p><strong>BHUNU JA:</strong>                                I agree</p> <p><strong>KUDYA AJA:</strong>                             I agree</p> <p><em>Antonio &amp; Dzvetero, </em>the appellant’s legal practitioners.</p> <p><em>Muhlekiwa Legal Practitioners, </em>the 2nd, 3rd and 5th respondent’s legal practitioners.</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="Microsoft Office document icon" title="application/msword" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/81/2021-zwsc-81.doc" type="application/msword; length=75264">2021-zwsc-81.doc</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/81/2021-zwsc-81.pdf" type="application/pdf; length=460360">2021-zwsc-81.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/civil-matter-appeal">Civil matter (Appeal)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/stay-execution-pending-appeal">Stay of execution pending appeal</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/immovable-property">IMMOVABLE PROPERTY</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/personal-right-respect-immovable-property">Personal right in respect of immovable property</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rights-and-immovable-property">Rights in and to immovable property</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/execution-practice-and-procedure">Execution (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/stay-execution">stay of execution</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-should-execution-appeal-be-granted">when should execution appeal be granted</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/s">S</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/sale">SALE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/immovable-property-sale">Immovable property (SALE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/instalment-sale-immovable-property-sale">instalment sale (Immovable property (SALE))</a></li></ul></span> Wed, 14 Jul 2021 12:49:02 +0000 Sandra 10079 at https://old.zimlii.org Mwerenga v City of Harare Department of Housing (HH 262-21, HC 565/20) [2021] ZWHHC 262 (26 May 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/262 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HH 262-21</p> <p>HC 565/20</p> <p>NELSON NKOSANA MWERENGA</p> <p>versus</p> <p>CITY OF HARARE DAPARTMENT OF HOUSING REGISTRAR OF DEEDS NO.</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MANGOTA J</p> <p>HARARE, 19 November 2020 &amp; 26 May 2021</p> <p> </p> <p><strong>Opposed application </strong></p> <p> </p> <p> </p> <p><em>A. T. Mutema,</em> for the applicant</p> <p><em>Ms K. Kaseke,</em> for the respondent                                        </p> <p> </p> <p> </p> <p>            MANGOTA J: Purchase and sale is a synalgmatic contract. It creates rights and obligations as between the parties. It allows the parties to enforce their respective rights one as against the other.</p> <p>            The seller’s right in a contract of sale, for instance, is to insist that the purchaser pays for the thing which he sells to him. His concomitant obligation is to deliver to the purchaser the thing which he has sold to him. He cannot insist on payment when he has not delivered or is not ready to deliver the purchased thing to the purchaser.</p> <p>            The purchaser’s right in the contract is to receive delivery of what he purchased. His concomitant obligation is to pay the purchase price for the thing which the seller sells to him. He cannot insist on delivery when he has not paid, or is not ready to tender payment of, the purchase price.</p> <p>            A party who has performed his own side of the contract has every right to claim specific performance from the other. A purchaser who has paid full purchase price for the property which he purchased does not waste his time. He, for instance, does not move the court to declare him the owner of what he purchased and paid for. He knows that declaring him the owner when the circumstances show otherwise will not weigh in his favour. He sues and moves the court to compel the defendant or the respondent, as the case may be, to deliver to him the thing which he purchased. His suit will, however, be subject to the qualification that he pays the purchase price in full for the property. Where he alleges and proves, on a balance of probabilities, that he discharged his obligation in an unqualified manner, his day in court will not be regarded as a wasted one. It will be a well rewarded one. He, under the stated circumstances, will not beat about the bush. He will not, in other words, waste my precious time moving me, as the applicant <em>in casu</em> is doing, to declare him to be the owner of the thing which he purchased. He would simply allege and prove that:</p> <ol> <li>he purchased the thing from the defendant, or the respondent; and</li> <li>he paid full purchase price for the thing; and</li> <li>the defendant or the respondent is refusing to deliver the thing to him- and</li> <li>he moves that the thing be delivered to him by way of a court order</li> </ol> <p>             He would support each of the abovementioned four allegations by way of documentary evidence. He would, for instance, attach to his application for specific performance such respective documents as (i) the contract of sale; (ii) receipts showing the payments which he made; (iii) his letter (s) of demand which went unanswered and (iv) court process which constitutes his suit against the defendant or the respondent.</p> <p>            The remarks which I made in the foregoing part of this judgement are apposite to this application. I heard it on 19 November, 2020. I delivered an <em>ex tempore</em> judgment in which I dismissed it with costs.</p> <p>            On 2 March, 2021 the registrar of this court wrote a minute to me. The minute advised that the applicant appealed my decision of 19 November, 2020 and that he required reasons for purposes of the appeal. My reasons are these:</p> <p>            The application falls under section 14 of the High Court Act [<em>Chapter 7:06</em>] (“the Act”). It is one for a declaratur. The declaratory order which is sought by the applicant is premised on the contract of sale which the first respondent concluded with him on 11 December, 1979. He purchased from it stand number 8763, Glenview area, Harare (“the property”) for the total sum of $582 which was to be paid off during the period which extended from 1 January 1980 to 31 December, 2010 at a monthly instalment of $4.65.</p> <p>He alleges that he paid full purchase price for the property. He, therefore, moves me to declare him to be the owner of the property which is the subject of his application. His draft order reads in the following terms:</p> <p>          “IT IS ORDERED THAT:</p> <p> </p> <ol> <li>The application for a declaratory order be and is hereby granted.</li> </ol> <p> </p> <ol> <li>The applicant be and is hereby declared the owner of stand number 8763, Glenview, Harare.</li> </ol> <p> </p> <ol> <li>It is hereby declared that there is no encroachment of any structure build (sic) on stand number 8763 by the applicant into any other stand as such construction is within the boundaries as indicated by both the cite (sic) plan and the building plan and was consequently approved by the first respondent.</li> <li>  The first respondent be and is hereby ordered to tender and facilitate transfer of rights, title and interest in stand number 8763, Glenview, Harare within 7 days of this order.</li> </ol> <p> </p> <ol> <li>Failing to comply with clause 4 of this order, the sheriff be and is hereby authorised to sign all necessary document (sic) for purposes of lodging title deed application with the second respondent.</li> </ol> <p> </p> <ol> <li>The second respondent be and is hereby ordered to accept documents lodged with him in compliance with either part 4 or 5 of this order for purposes of transfer of rights, title and interests (sic) in stand number 8763, Glenview, Harare.”</li> </ol> <p> </p> <p>                  The first respondent opposes the application. It raises three <em>in limine</em> matters the first two of which are, in my considered view, of an inconsequential nature and do not, therefore, deserve my full attention. The last preliminary matter, which has some merit, will be considered in the body of this judgment. It states, on the merits, that the applicant encroached on to the land which it did not sell to him. It denies that the dimensions of the site plan of the applicant tallied with those of the durawall which he was constructing on the property. It insists that he should remain within the confines of the dimensions of the site plan and the surveyor-general’s map. It denies that the applicant paid full purchase price for the property. It alleges that he made an effort to use the court to vary the terms of its contract with him. It moves me to dismiss the application with punitive costs.</p> <p>            The first respondent’s preliminary point which is to the effect that the application is fatally defective on account of the fact that it was filed at this court and not at the court of the magistrate for the district of Salisbury cannot hold. It cannot hold because, whilst there was, as at the time of the conclusion of the contract, the court of the magistrate for the district of Salisbury, that court no longer exists in independent Zimbabwe. There is sufficient knowledge for the stated proposition judicial notice of which is also taken of the same.</p> <p>            The applicant could not, on the strength of the reasoning in <em>Macfoy</em> v <em>United Africa Ltd</em> [1961] ALL ER 1169 approach a non-existent court of Salisbury. He was, therefore, within his rights to file his application with this court upon which the Constitution of Zimbabwe confers inherent jurisdiction which no parties’ submission clause can oust. Clause 22 of the agreement of the applicant and the first respondent is, therefore, of no moment and the preliminary matter which is premised upon it is without merit.</p> <p>            Whether or not the applicant had to, or did actually, comply with the requirements which are set out in clause 14 of the parties’ contract remains an issue for debate. The clause allows the applicant who is the purchaser <em>in casu</em> to apply to the first respondent which is the seller to transfer the stand/property to him.</p> <p>            The success, or otherwise, of his application does, in terms of the mentioned clause, depend on the applicant satisfying the first respondent on the fact that:</p> <p>“i)        he has constructed a house on the property within three years of the existence of his contract with it – and</p> <p> </p> <p>ii)         he has paid full purchase price for the property which price includes interest and such charges as are referred to in clause 4 of the contract.” (emphasis is added).</p> <p> </p> <p>            Because the first respondent raised the above mentioned <em>in limine</em> matter in its opposing papers, it was within the applicant’s right to deal with the issue of his compliance with clause 14 of the contract in his answering affidavit. He, in my considered opinion, had no choice but to do justice to his own side of the case. He had to do so, notwithstanding the fact that he had not substantively referred to the clause in his founding affidavit. The first respondent’s preliminary matter which touches upon the applicant’s compliance with clause 14 of the parties’ contract is without merit.</p> <p>The branch of the law under which the application was filed has already been identified. Section 14 of the Act upon which the application rests enjoins me, at my pleasure, to inquire into and determine the applicant’s existing, future or contingent right or obligation. For me to do so, however, the applicant must allege and show, on a balance of probabilities, that he has a direct and substantial interest in the matter which is the subject of my inquiry.</p> <p>            The full text of the section of the Act which relates to the application is relevant. The text places the application which is before me into context. The section, therefore, reads as follows:</p> <p>“The High Court may in its discretion at the instance of any interested person, inquire into and determine any existing, future, contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination”. (emphasis added)</p> <p> </p> <p>The above-cited section of the Act is divided into two very important segments. The first relates to my power as well as discretion to inquire into and determine the applicant’s right or obligation. The second relates to the applicant’s inability to claim any relief which is of a consequential nature following the inquiry and/or determination which may have been made in his favour by the court. The emphasis which I made in the cited portion of the quoted section of the Act relates to the second segment of the same.</p> <p>It is evident, from a reading of the underlined words which begin with “notwithstanding” and end with “determination” ..., that the applicant’s ability to the apply for relief which is of a consequential nature is so curtailed that it cannot be countenanced.</p> <p>Section 14 of the Act, it is apparent, gives with one hand and takes with the other. It confers a discretion on me to inquire into, determine and declare the applicant’s existing, future or contingent right. It, in the same vein, takes away from the applicant the right to claim any relief which results from the declaration which I make in his favour unless and until he combines his section 14 of the Act application with some such other application as compels the first respondent to transfer title in the property to the applicant.</p> <p>Because this application is a purely s 14 of the Act one which is not combined with any other application as should have been the case where the applicant wants title in the property to be transferred from the first respondent to him, paras 4, 5 and 6 of the draft order cannot stand. They cannot stand because they owe their existence to the declaratur which he is moving me to grant to him. They are of a consequential nature. The applicant cannot, therefore, claim any relief which is premised on what the law prohibits him from doing.</p> <p>That the applicant purchased stand number 8763, Glenview, Harare from the first respondent requires little, if any, debate. That he paid instalments towards his purchasing of the property is a matter which is of a common cause nature as indeed is the fact that he constructed/is constructing a durawall which constitutes the perimeter of the property upon which he has built/ is building a structure which will serve/is serving as his home.</p> <p>            The context in which the dispute of the applicant and the first respondent must be understood is not only important. It is also pertinent. The dispute is not as the applicant asserts. It is not that he constructed a durawall on the property which he purchased from the first respondent. Nor is it that the house which he is constructing on the property is without the approval of the first respondent.</p> <p>The dispute is that, in constructing the durawall which marks the boundary of the land which the first respondent sold to him, the applicant allegedly exceeded the dimensions of the land which he purchased from the first respondent. The dispute, in other words, centres on the size or area of the land which he purchased. The first respondent defines the dispute in a clear and unequivocal manner. It does so in para 8 of its opposing papers. It states, in the same, that the dimensions of the site plan do not tally with the dimensions which relate to the durawall which the applicant has constructed/is constructing on the property.</p> <p>            The applicant’s statement on the issue which relates to the first respondent’s abovementioned assertion is to the contrary. He states that the durawall which he has constructed /is constructing on the property does not, as the first respondent alleges, encroach into the site plan of the surveyor-general. He, in short, denies that there is an illegal extension of the boundary of his property into an adjacent stand. He insists that the dimensions of his property are in <em>sync </em>with the site plan of the surveyor –general.</p> <p>            The surveyor-general’s plan which the applicant attached to the application and marked annexure C does not, on its own, assist his case at all. The applicant cannot speak to it in any meaningful way. He cannot, from its mere sight, tell the area of the property which the first respondent sold to him. Nor can the court do so from its reading of the same.</p> <p>            The case of the applicant is exacerbated by the fact that the size of the land which he purchased from the first respondent remains unstated in the agreement of sale which the parties concluded on 11 December, 1979. Because annexure C as read with the agreement of sale does not resolve the dispute of the parties, the first respondent’s allegation which is to the effect that he encroached onto the land/property which it did not sell to him cannot be said to be a far- fetched matter. It, if anything, is a material dispute of fact which cannot be resolved on the papers. It cannot because, whilst he states that he did not encroach, the first respondent continues to assert, as it is doing, that he encroached onto land which it did not sell to him.</p> <p>What is created out of the above stated set of circumstances is a situation where the word of the applicant cancels that of the first respondent and <em>vice versa</em>. That cannot be resolved on the papers which the parties have placed before the court. There is need for what is called evidence <em>aliunde </em>which would unlock the parties’ dispute.</p> <p>            It is for the abovementioned reason , if for no other, that I am persuaded to subscribe to the view of the first respondent which is to the effect that the application contains material disputes of fact which go to the root of the case. Where such exist, as they do in <em>casu</em>, those can only be resolved through action, as opposed to application, proceedings. They are resolved through the procedure which, in other words, allows the hearing of <em>viva voce</em> evidence which clears the air for the benefit of the case of the parties.</p> <p>            The law which relates to an application which suffers the defect of material disputes of facts is clear. It states that, where such material disputes of fact exist, as is the case in <em>casu</em>, the court has a discretion which it must exercise in a judicious manner. It can dismiss the application as a whole: <em>Magurenje</em> v <em>Maphosa &amp; Ors</em> 2005 (2) ZLR 44 (H), or, it can allow the application to go to evidence with a view to resolving the observed dispute of facts: <em>Masakusa</em> v <em>National Foods Ltd &amp; Anor</em>, 1983 (1) ZLR 232. The choice remains that of the court.</p> <p>            It is evident, from a reading of the foregoing, that where the applicant’s attention has been, or is, drawn to the possibility, or as in <em>casu,</em> the probability of the existence of material disputes of fact, its best course of action would be to withdraw the application and adopt the course which better suits the achievement of its intention. Where it persists with its application when its attention has been drawn to the existence of material disputes of facts, the applicant cannot be heard to be crying foul when the court refuses to show any sympathy to it. It has, in such a case, no one to blame but itself for its unwholesome conduct.</p> <p>            Not only did the word of the applicant cancel that of the first respondent and <em>vice versa</em> on the issue which relates to the applicant’s alleged encroachment on land which the first respondent says it did not sell to him. The issues of whether or not the applicant paid full purchase price for the property is a matter which also remains in the balance. He alleges that he did and it asserts to the contrary on the same matter. It states that he did not pay full purchase price for the property.</p> <p>            The law of procedure places the <em>onus</em> on the applicant to prove, on a balance of probabilities, that he paid full purchase price for the property. He alleged. He, however, did not prove that he paid full purchase price. He did not rebut the assertion of the first respondent which says he did not pay full purchase price for the property. He, in other words, produced no evidence which supports the allegation that he paid full purchase price for the property.</p> <p>            The above-stated matter creates another challenge for the applicant. It draws him into one other material dispute of fact from which he must emerge in a clear and unambiguous manner. He would simply have discharged the <em>onus</em> which the law places upon him by producing receipts of the payments which he made to the first respondent towards purchasing of the property. The fact that he did not produce even one single receipt of his alleged payment of the instalments which the first respondent and him agreed upon shows nothing other than that he did not pay full purchase price for the property.</p> <p>The following text which appears in the first respondent’s opposing papers as read with those of the applicant’s answering affidavit brings to the fore the probabilities of the matter which relates to payment of the purchase price by him to the first respondent.</p> <ol> <li>“It is denied that the applicant became entitled to transfer of ownership of 8763 Glen View Harare. The applicant has not furnished the court with evidence of his compliance with the requirement to make full payment to the 1st respondent. I am advised that the proper pleading regarding payments would have been a proven allegation that I did not fulfil my financial obligations. This could have been simply proven by the statement of what is outstanding and the <em>onus</em> would have shifted to me to prove otherwise.”[emphasis added].</li> </ol> <ol> <li>I am advised that the proper pleading regarding payments would have been a proven</li> </ol> <p>allegation that I did not fulfil my financial obligation. This could have been simply proven by the statement of what is outstanding and the <em>onus</em> would have shifted to me to prove otherwise” (emphasis added.)</p> <p>Whatever the applicant meant to convey in stating as he did at paragraph 19 of his answering affidavit in response to what the first respondent stated in paragraph 8 of his opposing papers remains a matter for complete conjecture. It is a matter for anyone’s guess. There is no obligation on the part of the first respondent to show what the applicant paid and what sum of money remains not paid to it by him. He states that he paid full purchase price for the property. The <em>onus,</em> therefore, lies upon him, and not upon the first respondent, to prove that what he asserts conforms with the reality of his case. He, in other words, cannot be allowed to put the cart before the horse and move that the cart should pull the horse. The contrary of the postulated position holds true.</p> <p>The applicant’s attempt to go by way of inductive, as opposed to deductive, logic is not only intriguing. It also exposes his situation in a very irredeemable manner. The defence of prescription which he raises in his answering affidavit constitutes sufficient evidence which supports the allegation that he did not pay full purchase price for the property. His statement, put in a paraphrased form, is that “I paid full purchase price….if the first respondent insists that  I did not do so, the debt which relates to the unpaid sum has become extinct by operation of  law…it has prescribed….”</p> <p>Paragraph 21 of the answering affidavit is apposite in regard to the above-stated matter. It appears at p 30 of the record. It reads, in part, as follows;</p> <p>“…..the prescription act calls for a debt to be claimed within 3 years of any due date of such payments. If the last instalment was to be made by end of December 2010 then by December 2013 the claim for that debt ought to have been made. Failing which the debt, is also deemed prescribed by operation of law. None payment of outstanding debt apart from lack of proof can no longer be raised as an issue in defence of a claim to transfer title into my name.” (emphasis added)</p> <p> </p> <p>It is when the circumstances of the above-cited portion of the answering affidavit are placed into context that it becomes apparent that:</p> <ol> <li>the applicant does not prove that he paid full purchase price for the property and/or</li> <li>because of the stated matter, he cannot move me to compel the first respondent to transfer title in the property from it to him and /or</li> <li>his best option was/is to move for a declaratur in which he had no  choice but to pray for a relief which was/is for a consequential nature and cannot at law, therefore, be made.</li> </ol> <p>That the applicant has a direct and substantial interest in the property which forms the subject of my inquiry requires little, if any, debate. The contract which the first respondent and him signed confers personal rights upon him from which flows his right to sue for a declaratur. However, as the first respondent correctly states, the issue is not whether or not the applicant:</p> <ol> <li>purchased the property; or</li> <li>constructed  a structure on the same, or</li> <li>constructed a durawall at the property.</li> </ol> <p>The issue, in context, is whether or not the applicant, in constructing the durawall which demarcates the boundaries of his property from other properties or from the respondent’s land encroached on to land which the first respondent did not sell to him. He alleges that he did not. He, however, produces no evidence which supports the allegation.</p> <p>To the extent, therefore, that the allegation remains unrebutted, the applicant cannot claim to have a direct and substantial interest on a matter which relates to land which is not included in his contract of sale. He has no interest at all on such land. He, in short, does not have any existing, future or contingent right to the land which the respondent did not sell to him. That land falls outside his contract with the respondent. He has no relationship with it. He has neither personal nor real rights in respect of it.</p> <p>It is on the strength of the above-stated matters that a declaration cannot be made in the applicant’s favour. A declaratur, it is trite, cannot be made for a non-existent right or obligation. The applicant has neither a right nor an obligation to the first respondent in regard to the land which the latter refers to as an encroachment by him onto its land. There are no contractual rights and/or obligations which exist <em>inter partes</em> <em>vis-à-vis</em> the disputed portion of the property.</p> <p>I considered all the circumstances of this case. I am satisfied that the applicant’s motion for a declatur is ill-conceived. It stands on nothing. It has no merit at all. It is, in the result, dismissed with costs.</p> <p> </p> <p> </p> <p> </p> <p><em>Kanokanga &amp; Partners,</em> respondent’s legal practitioners</p> <p><em>Stansilous &amp; Associates</em>, applicant’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/2021/262/2021-zwhhc-262.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=34117">2021-zwhhc-262.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/262/2021-zwhhc-262.pdf" type="application/pdf; length=360742">2021-zwhhc-262.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/contract">CONTRACT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/specific-performance">Specific performance</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/dispute-facts-practice-and-procedure">Dispute of facts (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/s">S</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/sale">SALE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/contract-sale-0">Contract (SALE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interpretation-contract-sale">interpretation of contract for sale</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</a></div></div></div> Thu, 10 Jun 2021 07:35:56 +0000 Sandra 10042 at https://old.zimlii.org Fidelity Life Assurance Company of Zimbabwe v CF Holdings Ltd (HH 220-21, HC 1158/21) [2021] ZWHHC 220 (29 April 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/220 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>FIDELITY LIFE ASSURANCE COMPANY OF ZIMBABWE LIMITED </p> <p>versus</p> <p>CFI HOLDINGS LIMITED </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>FOROMA J</p> <p>HARARE, 16  &amp; 29 April 2021</p> <p> </p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p> </p> <p> </p> <p><em>D. Tivadar</em>, for the applicant </p> <p><em>T. Mpofu with R Mabwe, </em>for the respondent</p> <p> </p> <p>            FOROMA J: This is an urgent chamber application in terms of which the applicant Fidelity Life Assurance of Zimbabwe Limited hereinafter referred to as Fidelity seeks a provisional order whose terms of the final order sought and interim relief granted are as follows:</p> <p>            “TERMS OF THE FINAL ORDER SOUGHT</p> <p>            That you show cause to the Honourable Court why a final order should not be made in the following             terms:</p> <p>            1.         That a final interdict barring respondent from carrying out developments and construction                activities on the property being a certain piece of land situate in the District of Salisbury                               being the remaining extent of Langford measuring 2061,7256 acres and held under Deed                             of Transfer number 212/63 be and is hereby granted.</p> <p>            2.         That the respondent shall pay the costs of suit on the higher scale of legal practitioner and                client</p> <p>            INTERIM RELIEF GRANTED</p> <p> </p> <p>            Pending determination of this matter the applicant is granted the following relief:</p> <p> </p> <p>            1.         An order of spoliation be and is hereby granted against the respondent</p> <p>            2.         Applicant shall have its possession and all access restored in respect of the property being                a certain piece of land situate in the district of Salisbury being the remaining extent of                                  Langford measuring 2061,7256 acres and held under deed of Transfer number 212/63                                 within 24 hours of the service of this order.</p> <p>            3.         In the event of non-compliance with the order under paragraph 2 above the Sheriff of the                            High Court of Zimbabwe is ordered to enforce this interim order to allow applicant to                                   regain possession of the property being a certain piece of land situate in the District of                                  Salisbury being the remaining extent of Langford measuring 2061,7256 acres and held                                 under deed of Transfer number 212/63</p> <p>            4.         That the respondent be and is hereby interdicted from carrying out developments and                                   construction activities on the property being a certain piece of land situate in the District                               of Salisbury being the remaining extent of Longford measuring 2061,7256 acres and held                under deed of transfer number 2121/63 pending the determination of the dispute between                            the applicant and the respondent in relation to their shareholding in Langford estates (1962)             Private Limited.</p> <p>            5.         Costs be costs in the cause</p> <p> </p> <p>            Service of the Provisional Order</p> <p>             This provisional order shall be served upon the respondent by the applicant’s legal practitioners.”</p> <p> </p> <p>            The brief background to this urgent application according to the applicant’s papers is that the parties are shareholders in a company called Langford Estates 1962 (Private) Limited (hereinafter referred to as Langford) wherein applicant holds 80,77 percent issued share capital. Langford is the owner of a property described as a certain piece of land situate in the District of Salisbury being the remaining extent of Langford measuring 2061,7256 acres and held under deed of Transfer number 212/63 (hereinafter referred to as the property).</p> <p>            Applicant acquired the 80,77 percent issued share capital in Langford on 30 June 2015 in a sale of shares agreement with respondent occasioned by some financial fix that respondent found itself in together with Langford and Crest Poultry Group (Private) Limited. The sale of shares agreement was entered into to assist the respondent raise finances to the settle financial fix aforesaid.</p> <p>            Applicant claims that after the conclusion of the transaction (share sale agreement) it was granted possession and control of the property as the majority shareholder. Applicant  also claims that on 17 March 2021 applicant’s employee one Evas Chitute was forcibly and unlawfully barred from entering into the property by armed personnel contracted by respondent despite having duly identified himself as a person in applicant’s employ.</p> <p>            Applicant thus brought this application as it considered that respondent had despoiled it. Respondent strongly opposed the applicant’s application and in its opposing affidavit raised the following points in <em>limine:</em></p> <p>            (a)        Must pay costs</p> <p>            (b)        matter not urgent</p> <p>            (c)        invalid relief sought</p> <p>            (d)       interim and final relief</p> <p>            (e)        no cause of action and</p> <p>            (f)        disputes of fact and sought the dismissal of the application with costs on the higher                       scale</p> <p>            This matter initially came before Tsanga J who dismissed the matter on the technical ground that applicant had not used the correct form as provided in the rules of the court. Applicant immediately returned to court still on an urgent basis having removed the cause of the technical objection.</p> <p>            At the hearing of this application respondent which was represented by <em>Advocate T Mpofu</em> took up all the points in l<em>imine</em> except for (a) which though not expressly abandoned was not addressed in arguments.</p> <p>            I can only assume that the respondent did not find its prospects on this point in <em>limine</em> to be reasonable after considering applicant’s response to it in the answering affidavit.</p> <p>            I deal with the argument addressed by each party in respect of the remaining points in <em>limine</em> taken seriatim.</p> <p>(b)        Matter not urgent</p> <p>            The respondent considered that the matter was not urgent as the situation prevailing at the property had so prevailed even before the putative and now challenged agreements purportedly concluded in 2015. In addition respondent argued that it has at all times had management rights and applicant has never taken any occupation as indeed the applicant as a shareholder is entitled to no occupation. As indicated before, Applicant claimed under oath that its employee had been barred from entry. <em>Prima facie</em> the court without having to resolve the disputed legal rights associated with the substantive claim of spoliation must accept the applicant’s assertion under oath that it was forcibly barred from entry onto the property. Despoiling can either take the form of forcible ejection from premises or forcible exclusion from entry. Respondent did not dispute that applicant’s employee was forcibly excluded from entry on 12 March 2021. I therefore find that the matter is urgent on account of the events of 12 March 2021 as deposed to by the applicant’s employee under oath.</p> <p>(c)        Invalid Relief Sought</p> <p>            Respondent’s argument is that applicant has applied for spoliatory relief as interim relief based on a provisional order which order is obtainable on proof of a <em>prima facie</em> case. An order <em>mandamen van spolie</em> is a final order which can only be obtained on proof of a case on the normal standard of proof in civil matters i.e proof on a balance of probabilities. Applicant whilst accepting the legal position that a spoliation order is a final order argued that the applicant did not seek an interim order in respect of spoliation but in respect of an interim interdict. A consideration of the terms of the final order sought by applicant reveals that no reference is made to the interim order of spoliation suggesting that the spoliation order was intended to be a final order. However seeking or obtaining a final order as a provisional order is contradictory in terms. In paragraph 3 of the interim relief of the provisional order applicant worded the relief sought as follows:</p> <p>            “In the event of non compliance with the order under paragraphs 2 below, the Sheriff of the High    Court of Zimbabwe is ordered to enforce this interim order to allow applicant to regain possession             of the property…” (underlining for emphasis)</p> <p> </p> <p>            It is clear that applicant sought an order of spoliation as interim relief under a provisional order contrary to the law. See <em>Blue Rangers Estates P/L</em> v <em>Muduvuri and Anor</em> 2009 (1) ZLR 368 (S). Applicant did not help its situation in the answering affidavit when it averred as follows:</p> <p>            “6.1     It is denied that the relief sought is invalid. Whilst spoliatory relief is final in nature the                                 same can only be in the provisional order being sought.”</p> <p> </p> <p>             Clearly the respondent is on firm ground in its argument that the relief sought is invalid.</p> <p> </p> <p>(d)       Interim and final relief</p> <p>            The respondent also argued that the application is also invalid on account of the substantive similarity in the terms of the interim and final relief sought in so far as the interim interdict is concerned. Citing the case of <em>Rolland Electro Engineering P/L</em> v <em>Zimbank</em> 2003 (1) ZLR 226 <em>Advocate Mpofu</em> submitted that the reason for the prohibition of the similarity is clear and it is to prevent a party from securing final relief on proof of a <em>prima facie</em> case. Applicant readily acceded this point in <em>limine</em>.</p> <p>(e)        No cause of Action</p> <p>            This was premised on the fact that applicant while claiming to be a major shareholder acknowledged that the owner of the property was Langford in which he held shares and it (applicant qua shareholder) could not enforce the right of possession which belonged to an owner. Applicant sought to argue that by reason of its being the majority shareholder more than 80 percent it was granted the right of control of the property.  Respondent strongly disputed applicant’s claim in this regard. This issue is so inter linked to the last point in <em>limine</em> (disputes of fact) it is not possible to resolve it on the papers least of all in an urgent chamber application</p> <p>(f)        Disputes of Fact</p> <p>            The applicant conceded that although there were material disputes of fact the relevant one being whether or not applicant was in physical control of the property prior to the alleged despoiling, this could be resolved by the judge taking a robust view of the evidence. Applicant’s counsel accepted that the parties’ positions were so diametrically opposed one of them must have lied under oath. Asked who between the deponents the judge should believe Mr <em>Tivadar</em> (counsel for the applicant) urged the court to believe the applicant on the basis that it (applicant) had placed before the court evidence of activity on the property which was consistent with control of the property against respondent who made bare denials under oath. The respondent disputed that correspondence allegedly showing activity was addressed to applicant. Respondent’s counsel argued that the only way to resolve material dispute of fact in the circumstances is by hearing evidence which entailed the court making findings on credibility which cannot be done in an urgent chamber application. Applicant ought to have appreciated this real and material dispute of fact when the issue was raised at the time the matter appeared before TSANGA J and should not have insisted on bringing back the matter as an urgent chamber application but as an urgent court application-<em>Andrew John Pascoe</em> v <em>Ministry of Lands and Rural Resettlement</em> <em>and W Bungu and the Attorney General </em>HH 391/17</p> <p>COSTS</p> <p>            Respondent urged the court to dismiss applicant’s application and award it costs on the higher scale of legal practitioner and client. Counsel for respondent argued that applicant did not argue why such order should not follow in view of the same points in <em>limine</em> having been raised about 3 weeks earlier before Tsanga J. Applicant succeeded on the issue of urgency. It however lost in respect of the other points in <em>limine</em> raised not because they persisted on a hopeless argument. For example the concession on the substantially similar relief in the final order sought and interim relief granted was a proper one. Applicant’s argument on invalidity of relief sought was one that arose from the documents filed even though it did not succeed on it. In the circumstances I do not find costs on the higher scale to be justified.</p> <p> </p> <p>DISPOSITION</p> <p>            It is ordered that for the foregoing reasons applicant’s application be and is hereby dismissed with costs.</p> <p><em>Mawere Sibanda Commercial Lawyers</em>, applicant’s legal practitioners</p> <p><em>Nyawo Ruzive</em>, respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/220/2021-zwhhc-220.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=22701">2021-zwhhc-220.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/220/2021-zwhhc-220.pdf" type="application/pdf; length=332965">2021-zwhhc-220.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/company">COMPANY</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/shareholder">Shareholder</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/shares">Shares</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interdict">INTERDICT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/final-interdict">Final interdict</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grant-interdict">Grant of interdict</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/requirements-interdict">Requirements for interdict</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/action-practice-and-procedure">Action (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/cause-action">cause of action</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/urgent-application">Urgent Application</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-spoliation-order">application for spoliation order</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/certificate-urgency">certificate of urgency</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/interdict-sought-provisional-relief-urgent-application">interdict sought as provisional relief (Urgent Application)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/what-constitutes-urgency-urgent-application">what constitutes urgency (Urgent application)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/when-may-be-made-urgent-application">when may be made (Urgent application)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/s">S</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/spoliation">SPOLIATION</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/order-spoliation">Order (SPOLIATION)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/what-spoliation">What is (SPOLIATION)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2017/11">Pascoe v Ministry, Lands and Rural Resettlement &amp; Others (HH 11-17 , HC 12511/16) [2017] ZWHHC 11 (11 January 2017);</a></div></div></div> Mon, 17 May 2021 08:28:11 +0000 Sandra 10002 at https://old.zimlii.org Gandawa v Gopoza & 3 Ors (HH 221-21, HC 4826/20) [2021] ZWHHC 221 (29 April 2021); https://old.zimlii.org/zw/judgment/harare-high-court/2021/221 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>ESTER GANDAHWA</p> <p>versus</p> <p>JOSHUA GOPOZA</p> <p>and</p> <p>FANUEL KAPANJE</p> <p>and</p> <p>MARIMBA INDUSTRIAL PROPERTIES LIMITED</p> <p>and</p> <p>REGISTRAR OF DEEDS</p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUZOFA J</p> <p>HARARE, 19 March &amp; 29 April 2021</p> <p> </p> <p><strong>Opposed Matter</strong></p> <p><em>D. C Kufaruwenga</em>, for the applicant</p> <p>1st respondent in default</p> <p><em>F Mushoriwa</em>, for the 2nd respondent</p> <p><em>I.A Ahmed</em>, for the 3rd respondent</p> <p>            MUZOFA J: This is a case of a double sale of an immovable property known as stand Number 2657 Aspindale Gated Community “the property”.</p> <p>            Joshua Gopoza “Joshua” the culprit in this case purchased the property from Marimba Industrial Properties Limited, the third respondent which holds title in the property. On 13 November 2018 Joshua sold the property to the applicant for US$45 000. He was paid US$25 000 upon signature. The balance was payable over 8 months. Three days later and despite the contract he entered into with the applicant, he entered into another contract with the second respondent for the sale of the same property on 16 November 2015, this time for a whooping US$140 000. The amount was paid upon signature on the contract. Thus, Joshua sold the same property twice within a week.</p> <p>            It was a condition of the agreement between Joshua and the applicant that occupation transfer of title shall be taken upon payment of the full purchase price. A similar term was in the second agreement. Since the second respondent paid the full purchase price first, he took occupation before the applicant. Both purchasers have not taken transfer. At one point Joshua threatened to cancel the agreement of sale with the applicant. The applicant obtained an order declaring the agreement of sale between the parties valid and compelling transfer of title under HC 9584/19. When she tried to enforce the said order, the applicant discovered that the property was already occupied, albeit by the second respondent.</p> <p>            A season of court applications ensued between the parties until the parties eventually agreed to pursue this one application for a final determination.</p> <p>            The applicant seeks various relief , a declaration that her agreement of sale is valid, cancellation of the agreement of sale between  the first and second respondents, that the agreement of sale between the second and third respondents be declared null and void, first , second and third respondents to give vacant possession of the property to the applicant and to take the necessary steps to transfer the property into applicant’s name and in the event of non-compliance the sheriff of the High Court or his lawful deputy be authorised to sign all the  necessary documents to effect transfer.</p> <p>            The first respondent, Joshua for obvious reasons did not file any response. The second and third respondents opposed the application. The second respondent also filed a counter application. The fourth respondent opted not to file any response.</p> <p>            In his counter application, the second respondent seeks transfer of title to his name from the third respondent. In the event of non-compliance, the sheriff of Zimbabwe or his lawful deputy be authorised to sign all the necessary documents to effect transfer.</p> <p>            A point was taken in l<em>imine</em> which I directed should be raised as part of the merits of the case. I deal with issue raised first. It was submitted for the second respondent that the applicant has no cause of action that supports the relief sought. The applicant cannot compel the third respondent to transfer the property to her. There is no contractual relationship between the parties. Similarly the applicant cannot compel the second and third respondents to give vacant possession to her since there is no contractual relationship between the parties. The applicant holds personal rights as against the first respondent. Personal rights cannot be enforced against any other person except as against the person the applicant contracted with.</p> <p>            The applicant did not address the issue in her answering affidavit neither was it traversed in her heads of argument. A cursory oral submission was made that a contractual relationship between applicant and the said respondents is not a pre - requisite in such an application. I was not referred to any law or authority to support this proposition.</p> <p>            A cause of action is the sum total of facts or legal theory that gives an individual or entity the right to seek a legal remedy. The cause of action must be fully set out in the founding affidavit.</p> <p>            In this case the applicant does not set out any facts that give rise or that entitle her to seek a remedy as against the third respondent. The third respondent is just mentioned as the holder of title in the property. As correctly submitted for the second respondent, the first respondent ceded his personal rights in the property to the applicant. The applicant therefore has personal rights in the property. A cession is a bilateral agreement transferring rights. It was described in <em>Hippo Quarries (TVL) (Pty)</em> v <em>Eardley </em>1992 (1) SA S67A at 873 E – F as follows,</p> <p>“Cession it is trite, is a particular method of transferring a right. The transfer is effected by means of agreement. The agreement consists of concurrence between the cedent’s <em>animus transferrendi </em>of the right and the cessionary’s corresponding <em>animus acquirendi</em> of the right.”</p> <p>            It is not a method to transfer real rights see <em>Madzima</em> v <em>Mate</em> HH 86/17. Where a cession takes place the rights vest in the cessionary.</p> <p>            In <em>casu,</em> the applicant as a cessionary, acquired personal rights as against the first respondent. Having clad herself with personal rights, such rights cannot be enforced against any other person as except the first respondent. The first respondent did not acquire real rights from the third respondent. Therefore the first respondent could not pass rights greater that what he had acquired. In the result, the applicant did not acquire real rights from the first respondent that she can enforce them against the whole world.</p> <p>            The applicant cannot seek transfer from the third respondent, the registered owner of the property. There is no contractual obligation between the parties. It is  a general principle of the law of contract that a contract is a matter between the parties thereto and no one who is not a contracting party will incur any liability or derive any benefit from the terms thereof  (See generally Christie <em>The Law of Contract in South Africa</em> 5th Edition at pages 260- 261). On the application of the doctrine of privity of contract the second and third respondents are not bound by the agreement between the applicant and the first respondent. It therefore follows that, the third respondent not being party to the agreement and in the absence of ratification of the agreement cannot be compelled to give effect to the terms thereof by giving transfer of ownership of the property to the applicant. I find that the applicant has no cause of action against the third respondent <em>ex contractu</em> similarly the applicant cannot compel the second respondent to do anything to facilitate transfer or possession. The second respondent is neither an administrative body to facilitate such or in a contractual relationship with the applicant giving rise to such obligations.</p> <p>            Granting an order as prayed for by the applicant, to order the third respondent to take all such necessary steps to effect transfer has its challenges. The third respondent may have certain requirements to be fulfilled before transfer which the applicant is not privy to since there is no agreement between the parties. I find the order sought in paragraphs four and five not proper in respect of the second and third respondents. Simply put the applicant has no cause of action for the transfer of the property as against the second and third respondent.</p> <p>            My finding on the cause of action does not dispose of the matter completely. I shall deal with the real issue that the parties placed before the court for determination. The real issue for determination is which agreement should be given effect to.</p> <p>            The law on double sales is now settled. The Supreme Court in <em>Guga</em> v <em>Moyo and others</em> 2000 (2) ZLR 458 (SC) which both parties relied on unpacked it as follows,</p> <p>“The basic rule in double sales where transfer has not been passed to either party is that the first purchaser should succeed. The first in time is the stronger in law. The second purchaser is left with a claim for damages against the seller, which is usually small comfort. But the rule applies only in the absence of special circumstances affecting the balance of equities”.</p> <p>See McKerron (1935) 4 SA Law Times 178, Burchell (1974) 91 SALJ 40 …..And in BP Southern Africa (Pty) (Ltd) v Densden Properties (Pvt) Ltd 1964 RLR 7 (G), MacDonald J (as he then was) said,</p> <p>            “In my view, the policy of the law will best be served in the ordinary run of cases by giving effect to the first contract and leaving the second purchaser to pursue his claim to damages for breach of contract. I do not suggest that his should be the invariable rule, but I agree with the view expressed by Professor McKerron that save in “special circumstances” the first purchaser is to be preferred.”</p> <p>“….. the broad principle as set out above was acknowledged to be our law in <em>Barros and Another </em>v <em>Chimphonda 1</em>999 (1) ZLR 58 (s) …. Similarly, in <em>Charuma Blasting and Earthmoving</em> S<em>ervices (Pvt) Ltd</em> v <em>Nyainjai and others</em> 2000 (1) ZLR 85 (S)</p> <p>See also <em>Crundall Brothers (Pvt) Ltd </em>v<em> Lazarus NO and Another</em> 1991 (2) ZLR 125 (S).The onus is on the second purchaser to prove the special circumstances tilting the balance of equities in his or her favour. This is the approach in the South African courts per Van Zyl <em>in Gugu and Another </em>v<em> Zongwana and Others</em> (2014) 1 ALL SA 203 who expressed it as follows,</p> <p>‘The accepted approach to successive sales and competing rights is that as a point of departure, the possessor of the earlier right, in this case is the appellants, is entitled to specific performance, unless the second purchaser can show that the balance of fairness is in his favour…’</p> <p>The same applies in our jurisdiction <em>see Barros and Another </em>v <em>Chimphonda</em> (supra) where the court had this to say,</p> <p>‘One further point needs to be underscored. It is the 2nd Appellant (2nd purchaser) bore the burden of establishing on  a preponderance of equities in its favour …Put differently, it was for the 2nd appellant to prove the special circumstances which rendered it inequitable to apply the maxim , ‘qui prior est tempore est jure’ in favour of respondent.</p> <p>            In short, the first purchaser must succeed where title has not passed to either party unless special circumstances exist in favour of the second purchaser. There is no definition of special circumstances in double sales, but courts have considered individual factors for each party and their effect on the balance of equities. The second purchaser must prove such special circumstances. It is not enough to merely allege certain factors.</p> <p>             In <em>Mwayipaida Family Trust </em>v<em> Madoroba</em>  <em>and Others</em> SC 22/04   in a case where title had passed to the second purchaser the Supreme Court confirmed the cancellation of the  deed of transfer in favour of the first purchaser. The court considered that the first purchaser had done everything possible to protect its rights but for some reasons beyond it, its rights were not secured exposing the first purchaser to the transfer. In <em>Guga </em>v<em> Moyo</em> (supra) the court accepted as special circumstances that the second purchaser had taken occupation, she had undertaken renovations in the sum of $78 024.63, she bought the property in good faith and she bought the property for almost double the price of the first sale.</p> <p>The second respondent highlighted the special circumstances that should tilt the balance of equities as follows: that he paid US $140 000 as purchase price which is almost triple the amount paid by the applicant. He expended a further US$45 000 on improvements and is now in occupation. He bought the property in good faith, there is no evidence that he was aware of the first sale. As correctly submitted, there was no proof, in the form of receipts that the second respondent used an additional US$45 000 in improvements. I am unable to dismiss this averment because it was not disputed that the property was a shell house, obviously it required some expenditure to make it habitable. The second respondent attached photographs of builders working on the property. The applicant confirmed that, when she attempted to serve some court process, she found the second respondent’s builders working at the property. Taken cumulatively there is evidence that some improvements were made on the property even if there are no receipts to show the amount of expenditure incurred.</p> <p>The last special circumstance which is disputed is that the second respondent has entered into an agreement of sale with the third respondent, the title holder. The agreement of sale was attached. The third respondent conceded that the ‘sale’ was just meant to enable transfer of rights from the third respondent to the second respondent. There was no expectation of any payment to be made as the purchase price by the second respondent. It is on that basis that the applicant seeks a cancellation of the agreement of sale. It was argued for the applicant that, the parties to the agreement misrepresented that payment would be made yet no such payment was intended neither was a sale intended by the parties. The agreement is fraudulent and must be cancelled.</p> <p>A valid agreement of sale exists where the parties who have the capacity to contract agree, the existence of the thing sold (<em>merx</em>) and the price. The fulfilment of the obligations has nothing to do with the validity of the contract. Where a contract is tainted by some illegality the court cannot enforce it.</p> <p>In my view the agreement of sale between the parties satisfy the requirements of a valid sale. The concession made that there was no intention to exchange the money for the property in my view cannot invalidate the agreement. The fact of the matter is that the third respondent has already received the consideration for the property from the first respondent. This is a matter more of inept legal advice to both parties as opposed to any fraudulent intention. A tripartite agreement would have been the proper agreement in this matter. Some peripheral issue was raised on the dates of the agreement which l believe have no effect on the agreement.  Even if my finding on the agreement of sale maybe incorrect I am fortified in the fact that the second respondent has engaged the title holder who is not opposed to the transfer of title to the second respondent. The application can be granted in the face of non-opposition by the party against whom relief is sought.  </p> <p>It was also submitted that the second respondent had already initiated the process to take transfer. No proof was attached to confirm such processes.</p> <p>The applicant highlighted her circumstances that she could not take occupation as the first respondent blocked her, she is a poor widow, she used part of her late husband’s pension to pay the deposit and she is unable to raise money to purchase another property. On the other hand, the second respondent seems capable of raising money to buy another property.</p> <p>In my view when it comes to resources both parties are in the same predicament, they have both purchased a property for a considerable amount and have expectations to be met.</p> <p>A value judgment with mathematical precision is difficult to come up with because both parties have suffered substantial prejudice. However, the court must come up with a decision. In this case the second respondent is a <em>bona fide</em> purchaser. Taken cumulatively the second respondent’s circumstances present special circumstances tilting the balance of equities heavily in his favour. Although the amount paid <em>per se</em> is not a special circumstance, however if taken in conjunction with the fact that the second respondent is in occupation, has effected some improvements and has engaged the owner. I find no difference between his circumstances and that before the court in <em>Guga </em>v<em> Moyo</em> (supra). The court appreciates the difficulties that beset the applicant throughout the process, but her position can only be remedied by way of damages as against the first respondent. The applicant’s claim should therefore fail in its totality.      </p> <p>The Counter Claim</p> <p>The parties shall be referred to as in the main claim for consistency. In his counter claim, the second respondent seeks transfer of title from the third respondent. No relief is sought as against the applicant except for costs on a higher scale. The third respondent has not opposed the counter claim. I take it the third respondent has no objection to the transfer.</p> <p>The applicant (the respondent in the counter application) has opposed the application. The matter is simply the other side of the coin in the main application. Both parties rely on the same averments as set out in the main application. It is therefore of no benefit to revisit the issues. My decision in the main matter invariably has a bearing on the counter claim. Since the second applicant has established the special circumstances that tilt the balance of equities, he is entitled to the claim for specific performance.</p> <p>The second respondent looks to the applicant for costs on an attorney client scale for the unnecessary litigation. I do not agree with the basis for the claim of costs. The applicant was the first purchaser in this case and was standing on firm ground save for the special circumstances proved by the second respondent. Costs usually follow the cause but are in the discretion of the court. In this case I find it equitable for each party to bear its own costs.</p> <p>Accordingly, the following order is made.</p> <ol> <li>The main application is dismissed in its totality.</li> <li>The counter application is granted.</li> <li>The 3rd respondent is hereby ordered to take such steps and do all things as may be necessary to effect transfer of Stand No 2657 Aspindale Gated Community, Harare measuring 200 square meters in extent into the 1st respondent’s name within 7 days of this order.</li> <li>In the event that the 3rd respondent does not do so within 7 days of service of this order upon it, the Sheriff of Zimbabwe or his lawful deputy be and is hereby authorised to sign all documents and do all such things as are necessary to ensure that the transfer referred to in paragraph 1 of this order is effected.</li> <li>Each party to bear its own costs.</li> </ol> <p><em>Dzimba,Jaravaza and Associates</em>,Applicants’ Legal Practitioners.</p> <p><em>Nyawo, Ruzive Legal Practice</em>,1st Respondent’s Legal Practitioners.</p> <p><em>Mushoriwa Pasi Corporate Attorneys</em>,2nd Respondent’s Legal Practitioners.</p> <p><em>Ahmed &amp; Ziyambi,</em> 3rd Respondent’s Legal Practitioners.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>             </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/221/2021-zwhhc-221.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=32571">2021-zwhhc-221.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2021/221/2021-zwhhc-221.pdf" type="application/pdf; length=350047">2021-zwhhc-221.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/immovable-property">IMMOVABLE PROPERTY</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/personal-right-respect-immovable-property">Personal right in respect of immovable property</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rights-and-immovable-property">Rights in and to immovable property</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/action-practice-and-procedure">Action (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/cause-action">cause of action</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/s">S</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/sale">SALE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/double-sale">Double sale</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/immovable-property-double-sale">immovable property (Double sale)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2017/86">Madzima v Mate (HH 86-17 HC 10225/13) [2017] ZWHHC 86 (08 February 2017);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2004/22">Mwayipaida Family Trust v Madoroba and Others ((74/02) ) [2004] ZWSC 22 (12 May 2004);</a></div></div></div> Mon, 17 May 2021 08:10:10 +0000 Sandra 10001 at https://old.zimlii.org Roselex Mining Syndicate v Gavi & 5 Ors (HH 680-20, HC 5811/20) [2020] ZWHHC 680 (16 October 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/680 <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> </p> <p>ROSELEX MINING SYNDICATE</p> <p>versus</p> <p>MR D GAVI THE REGISTERED HOLDER OF CONFIDENCE 12 MINE 7957</p> <p>and</p> <p>MINISTER OF MINES AND MINING DEVELOPMENT</p> <p>and</p> <p>DETECTIVE INSPECTOR WONDERFUL CHAPARIRA</p> <p>and</p> <p>SGT VINCENT PEPUKE</p> <p>and</p> <p>ZIMBABWE REPUBLIC POLICE</p> <p>and</p> <p>COMMISSIONER GENERAL – ZIMBABWE REPUBLIC POLICE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>ZHIOU J</p> <p>HARARE, 16 October 2020</p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p> </p> <p><em>F.F. Hwenhira</em>, for the applicant</p> <p><em>B Maruva</em>, for the 1strespondent</p> <p><em>T Nyamukapa</em>, for the 2nd– 6threspondents</p> <p> </p> <p> </p> <p>            ZHOU J: This a is an application for a <em>mandament van spolie. </em>The application is opposed by the first respondent. The second respondent has advised that he elects to abide by the decision of this court. The third to sixth respondents have not contested the relief being sought.</p> <p>            The background facts to the dispute are as follows. There is a dispute which is pending between the applicant and the first respondent over the area described in the papers as Belingwe IA Mine, Mberengwa Game Reserve. The Provincial Mining Director for the Midlands Province in which the mine is located made a determination. The applicant is contesting that determination.</p> <p>            It is common cause that on 8 October 2020 the first respondent accompanied by some police officers went to the mine. The applicant’s security officers who were guarding the mine vacated the mine as a consequence of that visit. Applicant’s case is that the first respondent thereafter took occupation of the mine. These are the facts on which the <em>mandament</em>is being sought.</p> <p>            Apart from opposing the application on the merits the first respondent objected <em>in limine </em>to the determination of the merits on two grounds. These will be considered first.</p> <p>            The first ground of objection pertains to the legal status of the applicant and its competence to sue, the allegation being that by reason of not being a legal <em>persona </em>the applicant has no capacity to sue. The respondents concern in this respect is excusable given the manner in which the status of the applicant is presented in the founding affidavit and is cited in all the papers. While the applicant is cited as a syndicate, the founding affidavit in para 3 avers that it is “a company duly incorporated in terms of our laws.” The deponent then attaches a certificate of incorporation and a Form CR14 in respect of Roselex Mining (Pvt) Ltd. This is clearly a different entity. The matter is further obfuscated by the attachment of a resolution by the Board of Directors of Roselex Mining Syndicate (Pvt) Ltd. In all these documents the spellings vary. The court cannot but emphasis the need for lawyers to apply their mind to papers presented to them by clients before they prepare court papers. The approach in this case shows inattention which is potentially prejudicial to the client. Be that as it may, the deficiencies raised do not take away the entitlement of a syndicate to be cited in its name. Rule 8 provides that “associates may sue or be sued in the name of their association.” The definition of association in r 7 includes a syndicate. The documents attached show that the applicant as described herein is the entity in whose name the disputed mine was registered, see Annexure “C” to the founding affidavit and the various letters – annexures G.et seq., pp 22 – 32 of the applicant’s papers. For this reason, I see no reason why the applicant’s name cannot be cited as described. The objection is therefore dismissed.</p> <p>            The second ground of objection pertaining to the authority from Roselex Mining (Pvt) Ltd also fails because the Syndicate, not being a juristic <em>persona, </em>requires no resolution. This is so because in essence it is the associates suing in its name.</p> <p>            On the merits, the requirements for a <em>mandament van spolie </em>are settled. The applicant must allege and prove that </p> <p>(a)        he was in peaceful and undisturbed possession of the property, and</p> <p>(b)       that the respondent deprived him of such possession wrongfully and without his consent. </p> <p>Despite spirited attempts to deny that the applicant was in peaceful possession of the property, the first respondent contradicts himself by acknowledging the presence of the applicant’s security personnel at the disputed site on 8 October 2020. The presence of these security officers constitutes the applicant’s fact of occupation of the property. They were guarding the site as agents of the applicant, hence the applicant was in possession of the mine.</p> <p>            The applicant’s security personnel only vacated the property when the first respondent accompanied by police officers came to the property. There was a futile attempt by Mr Maruva for the first respondent to suggest that the security officers voluntarily vacated the mine. That assertion is contradicted by the conduct of the applicant in approaching this court on the following day. In any event, the consent which was required for the first respondent to be on the property lawfully is that of the applicant. First respondent has not shown that such consent was ever given. His presence on the property is an act of self-help. The act of self-help cannot be legalised by the use of members of the Zimbabwe Republic Police to take occupation of the mine. On these facts it is clear that the applicant was deprived of occupation of the mine wrongfully without his consent.</p> <p>            The fact that the first respondent has a determination by the Provincial Mining Director in his favour pertains to the merits of his title to the mine. That fact is irrelevant in considering an application for a spoliation order. The principle which underpins the <em>mandament van spolie</em>is incapsulated in the maxim <em>spoliatus ante ommia restituendus est </em>which means that the status quo ante or before the act of spoliation must be restored before the merits of the title can be considered.</p> <p>            In all the circumstances of the case, the applicant is entitled to the relief sought.</p> <p>            In the result, the provisional order is granted in terms of the draft order.</p> <p> </p> <p> </p> <p><em>B Chipadza Law Chambers</em>, applicant’s legal practitioners</p> <p><em>Zuze Law Chambers</em>, 1strespondent’s legal practitioners</p> <p><em>Civil Division of the Attorney General’s Office, </em>2nd– 6threspondents’ legal practitioners   </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/680/2020-zwhhc-680.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=18297">2020-zwhhc-680.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/m">M</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/mines-and-minerals">MINES AND MINERALS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rights-mines-and-minerals">Rights (MINES AND MINERALS)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/urgent-application">Urgent Application</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/s">S</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/spoliation">SPOLIATION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/order-spoliation">Order (SPOLIATION)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/possession-protected-spoliatory-remedies">Possession protected by spoliatory remedies</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/what-spoliation">What is (SPOLIATION)</a></li></ul></span> Wed, 25 Nov 2020 08:19:05 +0000 Sandra 9950 at https://old.zimlii.org Dengu & Anor v EAstern & Southern African Trade & Development Bank t/a PTA Bank & 2 Ors (HH 684-20, HC 7592/16) [2020] ZWHHC 684 (04 November 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/684 <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> </p> <p>CALEB DENGU</p> <p>and</p> <p>CALEB DENGU FAMILY TRUST</p> <p>versus</p> <p>EASTERN &amp; SOUTHERN AFRICAN TRADE &amp; DEVELOPMENT BANK t/a PTA BANK </p> <p>and</p> <p>RESERVE BANK OF ZIMBABWE</p> <p>and</p> <p>REGISTRAR OF DEEDS N.O</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUSHORE J</p> <p>HARARE, 15 March 2019 &amp; 4 November 2020</p> <p> </p> <p> </p> <p><em>B Mtetwa</em>, for the plaintiffs</p> <p><em>Chiuta</em>, for the 1stdefendant</p> <p> </p> <p><strong>Civil Trial: cession of a loan debt</strong></p> <p>            MUSHORE J: The first plaintiff is a Mr Caleb Dengu, who also is a Trustee of the CALEB DENGU FAMILY TRUST. The Trust is cited as the second plaintiff in this matter. The second plaintiff is being represented by the first plaintiff. The 1stdefendant (Eastern and Southern Africa Trade and Development Bank (also known as “PTA Bank”) 1stDefendant is an international financial institution dealing with and offering financial support to financial institutions in member states; or constituent countries, of which Zimbabwe is such a constituent country. The second defendant is the Central Bank of Zimbabwe. The third defendant is the Registrar of Deeds. </p> <p>On the 12thJune 2001, the first defendant loaned a company known as Onclass Investment Company (Private) Limited the sum of UAPTA585 000.00. Onclass Investment Company Limited had two Directors, other than the first plaintiff. One main conditionfor securing the loan was that the debtors had to put up security for the loans advanced, as is common business practice. The plaintiff and the other Directors agreed to the first defendant’s requirement and accordingly they put up various securities on order to be granted the loanfacility.On the part of the plaintiff’s the 1stplaintiff signed a limited personal guarantee; and registered a mortgage bond in the sum of ZW50 million dollars on the 2ndplaintiff’s immoveable property described as Stand 731 Glen Lorne Township 15 of lot 41 of Glen Lorne in favour of the 1stdefendant to that limit. The Glen Lorne property is the property of the 2ndplaintiff. The Glen Lorne property remains encumbered by the mortgage bond.</p> <p>The plaintiffs are suing the defendants for the cancellation of the limited mortgage bond registered on the Glen Lorne property; and or alternatively a declaration of rights stating that the property is unencumbered. </p> <p>The plaintiffs claim for cancellation of the mortgage bond is founded upon the plaintiffs’ perception that theyhave already made a tender to the first defendant to extinguish the debt arising from the loan which they were granted by the 1stdefendant in terms of the loan agreement; and that such a tender should be taken to mean that they do not owe the first defendant any more money. According to the plaintiffs, the plaintiffs’ made such a tenderto the 1stdefendant, pursuantto obtaining an order from this courtin their favour, in an unopposed application in another matter case number HC1791/2006. The reason why the plaintiffs and the other members of Thirdline/Onclass instituted that application ( HC1791/2006); arose from their conviction that the loan could be paid back in Zimbabwe Dollars and thus they sought an order from the court to deem the loan to be payable in Zimbabwe Dollars. In that matter the other two applicants who were Banterbury Estate (Pvt) Ltd; and Artwell Seremani were the two other debtors to the loan from the PTA Bank; and the first respondent was Eastern and Southern African Trade Development Bank (PTA BANK”). The relief being sought by the applicants in that matter was that of a <em>mandamus </em>for the 1stdefendant (in the present matter) to accept payment of the loan in Zimbabwe dollars. The court sitting on the 10thMay 2006, gave the following order on the unopposed roll:</p> <p>“IT IS ORDERED THAT:</p> <ol> <li>Against payment in the currency of Zimbabwe Dollars of such sums as are currently due to the first respondent: <ol> <li>By the first applicant under mortgage bond ……</li> <li>By the second applicant under mortgage number 11422/2001 hypothecating the immovable property called stand 731 Glen Lorne Township 15 of Lot 41 of Glen Lorne in the district of Salisbury held under Deed of Transfer 11317/2001.</li> <li>By the third applicant under mortgage bond… respectively, first respondent shall take all steps as are necessary to effect cancellation of the said mortgages and to return to the applicants their title deeds.</li> </ol> </li> </ol> <ol> <li>The respondents bear the costs of this application”</li> </ol> <p>The effect of the order was to allow the plaintiffs and the other two applicants to make a tender of payment of the loan <strong>in the Zimbabwe Dollars equivalent of UAPTA 585 000-00</strong>. </p> <p>In their declaration, the plaintiffs pleaded that the parties had jointly entertained the notion that by registering the mortgage bond that the mortgaged sum of ZW50 million represented the full extent of the 2ndplaintiff’s liability to the 1stdefendant.</p> <p>In its plea, the 1stdefendant denied that it was ever intended by the parties, that the amount secured by the mortgage bond (50 million dollars) on the Glen Lorne property. represented the plaintiff’s total l extent of the plaintiffs’ indebtedness to the 1stdefendant. Meanwhile, the plaintiffs contend that the consequences of the 1stdefendant denying that the tender of 50 million Zimbabwe dollars represent what they deem to be the full extent of their loan obligation towards the second defendant; and that the second defendant’s refusal to accept a tender of 50 Million Zimbabwe dollars, constitutes an act of waiver by them of a claim for repayment of the debt in foreign currency.</p> <p>Be that as it may it remains clear that after the order was granted in HC 1971/2006, the matter was not resolved. This is because the first defendant’s case remains that it is owed payment in the amount and currencyof the amount loaned to ONCLASS; that being an amount stated in foreign currency.</p> <p>DEFENDANTS’ CASE</p> <p>The defendants’ case rests upon the interpretation of the terms of the loan agreement. It is the defendants’ case that when the plaintiff’s mortgage bond was registered against second plaintiff’s Glen Lorne property; and thereafter when title deed for that property was handed to the second respondent as part security for the loan; it was done on the understanding that in the event of non-repayment of the loan the security/i.e., the securities mortgaged in favour of the PTA Bank by members of ONLINE would become immediately executable in terms of section 8.1 of the agreement. To that extent, the respondents are contesting the plaintiffs’ claimthat the loan was repayable in ZW Dollars. The defendants insist that when the loan was called in, the second plaintiff’s Mortgage Bond became executable in UAPTA Dollars because it secured a loan which had been advanced in UAPTA dollars.</p> <p>Thus the present matter turns upon resolving the currency to be applied for repayment of the loan and whether it can be concluded that the mortgage bond registered in ZW Dollars was done to alter the meaning of “Dollars” and thus changed the currency for repayment to ZW Dollars,  as opposed to UAPTA or US Dollars.</p> <p>Pleadings were filed in the ordinary course of a defended matter leading to the holding of a Pre-Trial Conference; from which the parties agreed that the issues to be determined by this court be as follows:</p> <ol> <li><strong>ISSUES</strong></li> </ol> <ol> <li>Whether the tender of payment made by the Plaintiffs to the 1stdefendant constituted a valid legal action which discharged their obligations to the 1stDefendant?</li> </ol> <p>1.1       What was the effect of the tender of payment by the Plaintiffs to the 1stDefendant?</p> <ol> <li>Whether there was a valid cession of Onclass’ indebtedness to the 2nddefendant [RESERVE BANK]?  <ol> <li>If thecessionwas not advised to the Plaintiffs, whether they had any obligations to deal with the 2ndDefendant?</li> </ol> </li> </ol> <p> </p> <ol> <li>Whether the 1stand 2nddefendants lodged their claims with the liquidator of Onclass Investments?</li> </ol> <p> </p> <ol> <li>If not whether the 1stand 2nddefendants can thereafter pursue the plaintiffs.</li> </ol> <p> </p> <p>4.         Whether the plaintiff’s obligations were limited to the amount of the bond and in the currency of the mortgage bond</p> <p>            </p> <p>4.1       Whether the mortgage bond is security for any amount denominated in United       States Dollars?</p> <p>5          Whether the Plaintiffs have any obligation to pay the full amount owed by OnclassInvestments in an amount denominated in United States dollar?</p> <p>5.1       Whether the Plaintiffs are indebted to the defendants in any amount and how such alleged indebtedness arose? </p> <p> </p> <p>My determination of those issues against the pleadings and the documents and witness testimony is as follows.</p> <p>DID THE TENDER OF PAYMENT MADE BY THE PLAINTIFFS DISCHARGE THEIR OBLIGATION TO THE 1STDEFENDANT IN FULL?</p> <p><strong>Currency of the loan advanced.</strong></p> <p>The agreement describes the currency loaned and the currency for repayment. Paragraph 1.2 of the loan agreement defines the PTA loan as follows-</p> <p>SECTION 1- INTERPRETATION.</p> <ol> <li>In this agreement, except where the context otherwise requires:</li> </ol> <p>“<strong>The PTA Bank loan</strong>” means the amount in UAPTA Five Hundred Eighty-Five Thousand (UAPTA 585.000) equivalent in various foreign currencies and which shall include any part thereof for the time being outstanding of all moneys advanced by PTA Bank hereunder.</p> <p>“<strong>UAPTA</strong>” means the Unit of Account of the Preferential Trade Area equal to one Special Drawing Right (SDR) of the International monetary fund”</p> <p>“<strong>US$”</strong>or “<strong>Dollars</strong>” denotes Dollars in the currency of the United States of America;</p> <p>“<strong>Currency</strong>” includes the UAPTA</p> <p>                Currency for repayment.</p> <p>The answer to that question can be ascertained from:</p> <ol> <li>The pleadings in matter number HC 1971/2006 wherein the parties stated certain facts under oath; and</li> <li>the loan agreement itself</li> </ol> <p>In HC 1971/2006 the full record of which formed part of the plaintiffs’ bundle of documents, the plaintiffs admitted under oath, that they took out the loan from the first defendant in foreign currency and that they accept that the loan was to be paid back in foreign currency. The plaintiffs also admitted that the amount owed to the first defendant was approximately US$400,000-00’. This is what the plaintiffs stated in matter number HC 1971/2006; when they fully associated with the submission made on oath by the 1stapplicant (Banterbury Estates) regarding the liability to PTA bank: </p> <p>6.         On 12thJune 2001, First Defendant (PTA Bank) and ONCLASS INVESTMENTS (PVT) LTD (“ONCLASS) a company with which the applicants had an association entered into a written agreement of loan in terms of which1strespondent undertook to advance to ONCLASS the equivalent of the sum of UAPTA 585,000-00 <strong><em>in foreign currencies (‘the loan’</em></strong>)</p> <p>The loan document is lengthy and purposes of economy, is not attached hereto.</p> <p>Suffice it to say that for the purposes of argument, 1stapplicant admits that an amount of approximately US$400,000-00 was duly lent and advanced to ONCLASS.</p> <p>ONCLASS was not able to effect repayment timeously of the loan and 1strespondent (PTA Bank) has brought proceedings before this Honourable Court for recovery thereof”</p> <p>Yet in the present matter, and in stark contrast to their earlier sworn testimony, the very same plaintiffs want the court to believe that the loan was repayable in Zimbabwe dollars. The latter stance adopted by the plaintiffs cannot be reconciled with the repayment currency clearly mentioned in the loan agreement itself. For when reading the loan agreement itself, its terms are unequivocal in that the plaintiff and the other two borrowers applied for and were advanced UAPTA dollars payable in foreign currencies together with 16% interest.</p> <p><strong>SECTION 1-INTERPRETATION </strong></p> <p><strong>“The PTA Bank Loan</strong>” means the amount of UAPTA 585,000-00N equivalent in various foreign currencies, and which shall include any part thereof for the time being outstanding of all moneys advanced by PTA Bank hereunder;</p> <p>“<strong>UAPTA</strong>” means the Unit of Account of the Preferential Trade Area equal to one Special Drawing Right (SDR) of the International Monetary Fund”</p> <p>The 1stplaintiff acknowledged that the plaintiffs participated in the foreign currency designated loan and drawdown facilities made available to them by the 1stdefendant. The loan agreement was the main document produced by the plaintiffs upon which they proposed they had <em>causa</em>in the present matter.  The loan agreement shows that the plaintiffs bound themselves to pay any amounts loaned to them in foreign currency. For example, clause 4.1(2) of the agreement specifies that:</p> <p>“SECTION 13-PAYMENTS FALLING DUE TO PTA BANK</p> <p>13.1     Every sum falling due to PTA Bank shall be denominated in the currency of disbursement and shall be paid in that currency into an account in the name of PTA Bank in such Bank as may from time to time be advised in writing. Save for the extent (if, any) that PTA Bank may at any time and from time to time otherwise notify the Borrower in writing, no obligation of the Borrower to pay any such sum to PTA bank in the aforesaid currency and place shall be deemed to have been discharged or satisfied by any tender made in any other currency or any other place.</p> <p>It is my view that the plaintiffs cannot be allowed to retreat from an admission which they made under oath in matter HC1971/2006 an extract of which is recorded above. The binding admissionwas part of the impetus behind the decision in that matter and it is apparent from the contents of that affidavit that the plaintiffs have already acknowledged that the loan is repayable in US Dollars to its full extent of the equivalent foreign exchange value of UEPTA 585,000-00 as at the date when the 1stdefendant decided to recall the loan. Section 8 of the loan agreement reads as follows:-</p> <p><strong> SECTION 8- IMMEDIATE REPAYMENT</strong></p> <p>“8.1      Notwithstanding the foregoing provisions of this Agreement, in any of the following events, PTA Bank shall by notice to the Borrower, suspend the right of the Borrower to make withdrawals on account of the PTA Bank Loan or declare the principal amount of the PTA Bank loan then outstanding together with all unpaid interestwhich has accrued and which is due and payable immediately in which latter case the security or securities  issued hereunder shall be come enforceable <strong>and all sums due</strong>by the Borrower to PTA Bank under this agreement shall become payable forthwith notwithstanding anything to the contrary or in the security documents contained”</p> <p>“<strong>All sums due</strong>” [<em>bolded over for emphasis</em>] mean the sum due plus interest; separate from the amount tendered and held as security of the loan agreement) </p> <p>DID THE PLAINTIFFS’ TENDER OF THE VALUE OF THEIR MORTGAGE BOND CONSTITUTE FULL AND FINAL PAYMENT OF THE LOAN? </p> <p>The agreement itself {see above excerpts} answers this question and clarifiesthe commitment made by the plaintiffs to pay back that the loan and interest in full AND to enforce the securities given. The mortgagebonds merely motivated the first defendant’s decision to extend the loan to the plaintiffs. To that end, liquidating the mortgage bond did not in itself fully discharge the plaintiff’s obligation toward the first defendant. The wording in the loan agreement specifically allows the first defendant to demand payment in full and reduce the sum owed by liquidating the security bond in its favour. It was never intended by the parties when they signed the loan agreement that the mortgage bond could be taken in isolation as being the sole means of repayment of the loan. The parties did not agree that the enforcement of the securities (in this case the mortgage on the Glen Lorne property) was to be taken as being a full and final payment of the loan agreement itself. The position is thus that the tender of the value of the mortgage bond does not constitute full and final payment of the loaned sums due to the first defendant.</p> <p>WHAT WAS THE EFFECT OF THE PLAINTIFFS TENDER TO THE FIRST DEFENDANT?</p> <p>Mr Caleb Dengu was the plaintiffs’ sole witness. He was an unsure witness and his evidence was riddled with inconsistencies. He made a very poor impression to the court as a reliable witness; sometimes giving rambling incoherent answers. </p> <p>Mr Dengu himself admitted that he had no personal knowledge whether ornot the tender of payment which he spoke off as having been made to the second defendant had ever been made. In his own testimony, he thus failed to establish a basis for suing the defendants at all. This was his evidence when he clearly acknowledged that he was unsure if in fact the tender had been made to the Reserve Bank by his lawyers.</p> <p>Record, pages 17 to 18</p> <p>“Q.       I am just going by what you say in your letter to the Reserve Bank?</p> <p>A.        We paid 50 million dollars to the lawyers. I think it was this question of them not accepting it, Ziumbe (Reserve Bank’s lawyers) not wanting it in Zimbabwe dollars. I no longer remember what exactly happened. But the trust tendered to our lawyers and then to Ziumbe, then there was also the question of foreign currency that we cannot accept in Zimbabwe dollars.</p> <p>Q.        So you do not know what was put to the Reserve Bank?</p> <p>A.        <strong>I do not know what was put in the Reserve Bank”</strong></p> <p>Thus in giving his testimony, Mr Dengu failed to establish the basis for the plaintiffs claim. The observations made by MATHONSI J [then] in <em>Railings Enterprises (Pvt) Limited v Dowood Services (Pvt) Limited &amp; Ors</em>HB 53-16 are reflective of Mr Dengu’s posturing on honouring his obligation. The court made the following observation:-</p> <p>“Some people simply will not settle a debt. No matter how many times the debtor ruins around the walls of Jericho, the walls remain unshakeable and will not simply fall. So steadfast are they that the debtor would rather spend so much on the legal fees which surpass the amount of the debt owed. It is just in their nature that they incur a debt which they have no intention whatsoever of paying back” </p> <p>Mr Madera who testified on behalf of the second defendant told the court that the first plaintiff initiated and attended many meetings at the Reserve Bank, in which he promised to produce documents which would prove that he had in fact tendered payment to the first defendant. Mr Madhera told the court that despite his many promises; Mr Dengu did not fulfil such promises. Mr Madhera stated that the debt was never paid. He remained unshaken under cross examination.</p> <p>Returning to the issue of tender, it is my view, however, that even if the tender had been made and communicated to the defendants; such a communication did not bind the defendants into relinquishing their claim that the loan debt was repayable in foreign currency. The effect of any such tender was ineffectual in discharging the plaintiffs’ obligation to the first defendant in full or at all. In fact when looking at the Order of the Court in HC 1971/2006, it was intended that the value of the ZW$50 million be calculated in US dollars first; and then only when that was done would the value of the Zimbabwe Dollars in foreign currency be made manifest. The useof the words in the Court Order make it clear by specifically stating that</p> <p><em>“1. Against<strong>payment in the currency</strong>of Zimbabwe Dollars of such sums as are currently due to the first respondent:</em></p> <p><em>1.1</em></p> <p><em>1.2</em></p> <p><em>1.3 By the third applicant under mortgage bond, first respondent shall take all steps as are necessary to effect cancellation of the said  mortgages and to return the applicants their title deeds” </em></p> <p>The default judgment does not justify the plaintiffs contention that the sum of ZW$ 50 million represented the full sum due by the plaintiffs to the first defendant. A calculation of the value of ZW$50 million dollars would still have to be done against the UEPTA Dollars loaned plus interest, which the first defendant insists are due. I therefore agree with the first defendant that the tender of ZW$ 50 million did not constitute full and final payment of the sums due and thus thetender of the sum guaranteed by the mortgage bond were ineffectual in extinguishing the debt due to the first defendant.</p> <p>WHETHER THERE WAS A VALID CESSION OF ONCLASS’S INDEBTEDNESS BY FIRST DEFENDANT TO THE SECOND DEFENDANT?</p> <p>Mrs Lucy Otolo, who flew in from Kenya to give her testimony convicted the court as to the fact that the loan was validly ceded to the second defendant. In fact she stated that she was perplexed that the first defendant had been included in the litigation as an active party, because any rights which the first defendant had held had been ceded to the second defendant. In her evidence in chief, Mrs Otolo gave the following answers:-</p> <p>Record p 25 (Examination-in-chief)</p> <p>Q.        It is also common cause that the amount that is the subject of the matter was subsequently disbursed to Onclass?</p> <p>A.        It was United States Dollars</p> <p>Q.        What happened subsequent to the disbursement of the money?</p> <p>A.        Subsequent to the, ordinarily Onclass were supposed to discharge its obligations in accordance with the terms of the loan agreement. But Onclass failed to discharge its obligations. Our loan account became delinquent.</p> <p>Q.        Did the bank take any action?</p> <p>A.        The loan became delinquent. I think there are a number of cases between us and Onclass. But ultimately we ceded our rights under a mortgage bond to the Reserve Bank of Reserve Bank of Zimbabwe. So we are actually not sure we are party to this suit because we no longer have anything to do with the defendants”</p> <p>Mrs Otolo was an impressive witness. She was unflappable and gave her testimony with dignity and with a quiet confidence. Her testimony was flawless. Her opinion was in alliance with the law. In his book, CHRISTIE LAW OF CONTRACT IN SOUTH AFRIC; 7THEdition at page 537, the learned authorhad this to say on the subject:-</p> <p>“A cession...... involves the substitution of a new creditor (cessionary) for the original creditor (cedent), the debtor remaining the same. If the effect of the transaction is not to divest the cedent of the right to sue the debtor, it is not a cession. The cessionary sues on the old contract. Hence our law starts from the general proposition that all rights may be ceded without the debtor’s consent”</p> <p>Meanwhile the plaintiffs’ case is that the cession was invalid and therefore the plaintiff is not obligated at law to pay the second defendant anything. Further the plaintiff avers that in order that a cession be regarded as being valid; (and more specifically the cession which the first defendant made transferring its rights in the loanindebtedness to the second defendant) that it is required by the defendants to show that thecessionwas registered. However the first plaintiff’s persistent and direct enquiries to the second defendant show that the plaintiffs accepted the legal propriety of the cession. Exchanges of correspondence between the first plaintiff and the second defendant prove this fact. </p> <p>I have isolated one letter to give the context of the exchanges between the plaintiffs and the 2nddefendant. In is a letter dated 1stNovember 2007, Mr Nyabonda of ZITAC, on behalf the plaintiff and addressed to the 2nddefendant, wrote:</p> <p>“01 November 2007</p> <p>Attention Mr Matiza</p> <p>Dear Sir </p> <p>Re: PTA Bank</p> <p>“Thank you for the meeting held at the Reserve Bank of Zimbabwe with Messrs. Saburi and Masoso. We are grateful that the Bank has provided the foreign currency to settle our exposure to PTA Ban. We will be grateful if you can provide the foreign currency to settle our exposure to PTA Bank. We will be grateful if you can provide us with the Zimbabwe Dollar figure in order to arrange the settlement.</p> <p>As agreed at the meeting we enclose a copy of the Loan Agreement and Sale and Lease Back Agreement on the equipment purchased from the loan.</p> <p>Please note US$750,000-00 was the loan amount however only US$400,000-00 was drawn down. The documents on the court case are being put together and will be passed onto you.</p> <p>We wait to hear from you,</p> <p>Sincerely yours</p> <p>For and on behalf of Onclass Investments t/a ZITAC</p> <p>Signed”</p> <p>It is thus evident that by their conduct and attitude, the plaintiffs recognised that a valid cession had taken place. On page 540 of his book PROFESSOR CHRISTIE propounded that no formalities are necessary for a cession to be regarded as being a valid one when he stated:-</p> <p>“In general, no formalities are required for a cession, which may validly bemade orally or tacitly, even if the rights ceded form part of a written contract. The cessionary of a principal debt, payment of which is secured by a surety, acquires rights in respect of suretyship by reason if the cession, a formal cession of the rights against the surety being unnecessary. Since notice of the cession to the principal debtor is not a pre-requisite for the validity of the cession, so too,, notice to the surety is not a pre-requisite for the cessionary acquisition of the rights against the surety... if the intention is to cede is genuine and the motive or purpose is not unlawful, immoral or against public policy, the cession will be valid. Notice to the debtor is not necessary to effect a valid cession” </p> <p>            Also see the case of <em>Larry Makamadze v Marmak (Private) Limited </em>v<em>Jacinth and Associates</em>HH 658/14.</p> <p>Section 51 of the Deeds Registry Act [<em>Chapter20:05.</em>] infers that the registration or non-registration of the cession is not an act antecedent to its being legally binding upon a transferor and transferee of ceded rights. Section 51 of the Deeds Registry Act allows for the cession of the rights in a mortgage bong from the first defendant (transferor) to the second defendant (transferee), without the sanction of the plaintiffs. S 51 states as follows:</p> <p><strong>51 Substitution of debtor in respect of bond</strong></p> <p>“(1) If the owner (in this section referred to as the transferor) of land which is hypothecated under a registered mortgage bond, not being a person referred to in paragraph (<em>b</em>) of the proviso to subsection (1) of section <em>fifty</em>, has agreed to transfer to another person the whole of the land and has not reserved any real right in such land. The registrar may register the transfer and substitute the transferee for the transferor as debtor in respect of the bond if there is produced to him, in duplicate, the written consent of the holder of the bond and the transferee to the substitution of the transferee for the transferor as the debtor in respect of the bond. </p> <p>(2) In registering the transfer the registrar shall— </p> <p>(<em>a</em>) make in the appropriate register— </p> <p>(i) an entry setting forth that the debt of the transferor secured by the bond is cancelled; and </p> <p>(ii) an entry setting forth that the transferee has become the debtor in respect of the bond; </p> <p>and</p> <p>(<em>b</em>) annex one duplicate of the written consent referred to in subsection (1) to the bond and file the other with the registry duplicate thereof; and </p> <p>(<em>c</em>) endorse upon the bond— </p> <p>(i) the name of the transferee; and </p> <p>(ii) the date and number of the transfer; and </p> <p>(iii) a reference to the said written consent; and </p> <p>(iv) that the transferee has been substituted for the transferor as debtor in respect of the bond; </p> <p>and</p> <p>(<em>d</em>) make on the transfer deed an endorsement of mortgage containing the date and number of the bond and the amount due in terms thereof. </p> <p><strong>(3) As from the date of the transfer deed the transferor shall be absolved from any obligation secured by the bond and the transferee shall be substituted for him as the debtor in respect of such bond and shall be bound by the terms thereof in the same manner as if he had himself passed the bond and had renounced therein the benefit of the exceptions stated therein. </strong></p> <p>(4) Subsections (1) to (3) shall apply, <em>mutatis mutandis</em>, to a real right in land, other than the ownership thereof, which is hypothecated under a registered mortgage bond.”</p> <p> </p> <p>The third defendant stated that it was satisfied that it could substitute the debtor after having received proof that the second defendant had remitted and paid the first defendant the value of the loan and identified the proof of transfer of US$500 000.00 for credit to the first defendant by it by producing the actual payment receipt for the US$500 000.00. ([Exh “2” p 82] </p> <p>            In the light of the above, it is my finding that the cession of the debt by the 1stdefendant to the second defendant was valid.</p> <p>WHETHER THE 1STAND 2NDDEFENDANTS LODGED THEIR CLAIM WITH THE LIQUIDATOR.</p> <p>            It is common cause that Onclass went into full liquidation around 2011. The cession had taken place by that date thus the question pertains only to the actions of the 2nddefendant. During the trial of the matter, a Mr Madera from the 2nddefendant testified that the 2nddefendant did in fact lodge a claim with the liquidator, and was assured by the liquidator that the 2nddefendant is a secured creditor. The reason why this issue was tabulated was that the plaintiff was alleging that if no claim as filed by the defendants that gave rise to the notion that the defendants had waived their rights to recover the loan debt from the liquidated company. However, a waiver does not come into play simply because a claim was lodged with the liquidator.</p> <p>Ultimately, and given all of the oral and documentary evidence, the defendants cases are fully supported by the law. In the result,the plaintiffs have not proved their entitlement to the remedy of cancellation of the mortgage.</p> <p>I therefore rule as follows:</p> <p><em>“Plaintiff’s claim is dismissed with costs.”</em></p> <p> </p> <p> </p> <p><em>Mtetwa &amp; Nyambirai</em>, plaintiff’s legal practitioners</p> <p><em>Ziumbe &amp; Partners</em>, 1stdefendant’s legal practitioners</p> <p><em>Chinamasa, Mudimu &amp; Maguranyanga</em>, 2nddefendant’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/684/2020-zwhhc-684.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=39420">2020-zwhhc-684.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/684/2020-zwhhc-684.pdf" type="application/pdf; length=201228">2020-zwhhc-684.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/contract">CONTRACT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/loan">Loan</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/m">M</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/mortgage">MORTGAGE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/mortgage-bond-over-residential-property">Mortgage bond over residential property</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/s">S</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/t">T</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/trust">TRUST</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/nature-trust">Nature of Trust</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/status-trust">Status of Trust</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2017/8">Deeds Registries Amendment Act, 2017</a></div></div></div> Wed, 25 Nov 2020 06:57:00 +0000 Sandra 9947 at https://old.zimlii.org CRG Quarries (Pvt) Ltd v The Provincial Mining Director Mashonaland East Province N.O & 2 Ors (HH 700-20, HC 9808/19) [2020] ZWHHC 700 (05 November 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/700 <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> </p> <p>CRG QUARRIES (PVT) LTD</p> <p>versus</p> <p>THE PROVINCIAL MINING DIRECTOR MASHONALAND EAST PROVINCE N.O</p> <p>and</p> <p>THE PERMANENT SECRETARY-MINISTRY OF MINES AND MINING </p> <p>DEVELOPMENT</p> <p>and</p> <p>NATURAL STONE EXPORT COMPANY (PVT) LTD</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>DUBE J</p> <p>HARARE, 20 October 2020 &amp; 5 November 2020</p> <p> </p> <p><strong>Opposed Application </strong></p> <p> </p> <p> </p> <p><em>M Muzaza,</em>for the applicant </p> <p><em>C. Chitekuteku,</em>for the 1st&amp; 2ndrespondents </p> <p> No appearance for the third respondent </p> <p> </p> <p>DUBE J </p> <p>[1]       After hearing argument in this application, I dismissed the applicant’s application for a mandamus to compel the first and second respondents to release all documents pertaining to a mining claim. </p> <p>[2]   The background to this application is as follows. The applicant is the holder of a mining block in Motoko. The first respondent is the Provincial Mining Director in the Ministry of Mines and Mining Development. The second respondent is the Secretary of the Ministry of Mines and Mining Development and the third responded a company with an interest in this matter. </p> <p>[3]    The applicant’s application is based on the following facts. Sometime ago, it pegged a portion of a claim which previously belonged to an entity known as QTTS in claim number 27 214BM which it forfeited on a date unknown to it. Sometime in 2018, the third respondent lodged a complaint with the first respondent in terms of which it reported beacons which allegedly over pegged its claim under 24342BM. The first respondents made a determination in terms of which it ordered the applicant to adjust its boundaries of ME 517BM in such a manner as to avoid over pegging part of 24342BM. The applicant was ordered to stop mining activities in the area. </p> <p>[4]    Sometime in February 2019 the third respondent wrote a letter to it in terms of which it claimed compensation for material mined in the disputed area. The applicant, believing that the disputed area was not over pegged and belonged to QQTS before it was forfeited, instructed its legal practitioners to approach the first respondent’s office in a bid to peruse the record belonging to QQTS. It wants to obtain all relevant documents relating to the forfeiture of the claim belonging to QQTS in order to assert its rights.</p> <p>[5]    The applicant has written to the first respondent and made several calls requesting the documents which are necessary for the protection of the applicant’s mining rights.The third respondent has lodged a claim for damages, which claim the applicant believes is unfounded. To enable it to challenge the claim, it will need to put together evidence in the form of documents which are held by the first respondent to prove that the ground was open to prospecting when it pegged its claim. The documents will enable the applicant to prove that when it pegged ME 517BM, the ground was open to prospecting as it had been forfeited. The information contained in the record is necessary for the protection of the applicant’s mining rights.The documents will aid the resolution of the dispute between the applicant and the third respondent.  The applicant has no option but to approach this court seeking an order compelling the first and second respondents to release the documents.  </p> <p>[6]  The applicant submitted as follows. It has not received a favourable response.  The first respondent stated that he would need to check for the documents at their head office. Its rights in the disputed area are being compromised as is operations have been stopped. It has become clear to it that the first respondent has no intention to release the documents which constitute a public record and are necessary for the protection of the applicant’s mining rights and enable it to approach the courts for resolution of its dispute with the third respondent. </p> <p>[7] It has a right of access to any information held by the State or its agencies in terms of s62 (1) of the Constitution of Zimbabwe and that by withholding the record of claim 27214 BM, the first respondent is denying the applicant an opportunity to interrogate the information held in the record in order to protect its rights to claim number ME 517BM.</p> <p>[8] It has shown a clear right to the relief sought, has a well-grounded apprehension of irreparable harm if the application is not granted as its activities have been stopped and is losing revenue as a result. The balance of convenience favours the granting of the order sought and there is no other remedy than to approach this court to compel the respondents to release the documents. </p> <p>[9]   The third respondent did not defend the application. The first and second respondents submitted as follows. The respondents are not opposed to the request for the release of any documents. The applicant was never denied access to any documents. The respondents are not in custody of the documents. At the time that the block in question was forfeited, it used to fall under the Harare Mining District whose head office was in Harare.Harare Mining District then comprised of Mashonaland Central, Mashonaland East and West. When the new provinces were created, there was a lot of movement as the provinces were decentralised and a lot of information was misplaced as the new provincial offices relocated. The province has tried to locate the information in vain. The first and second respondents have tried checking and failed to locate the information and are not in a position to comply with the relief sought.</p> <p> [10]   The issue is whether the applicant has shown an entitlement to the order sought<em>.</em><em>G.</em><em>Feltoe, </em><em>A Guide to Administrative and Local Government Law in Zimbabwe,</em>2007, defines a mandamus as follows;</p> <p>“This remedy can be used to require an administrative authority to perform a mandatory statutory duty imposed upon it that it is wrongly refusing to perform, or to require the authority to correct the effects of its unlawful administrative action.”</p> <p> </p> <p> A mandamus or mandatory interdict as it is commonly known is a judicial remedy that compels a respondent to perform an act which it is at law obliged to perform. It   is usually resorted to in cases where parties seek to compel a government department, administrative body or its agent to take action or refrain from performing a particular act whose performance at law it has an obligation. The mandamus has its origins in the English courts in the 17thcentury. It is now widely used.</p> <p>[11]   A mandamus is granted where the requisites of a prohibitory interdict are established.               See <em>Setlogelo v Setlogelo</em>1914 AD 221; <em>Tribac (Pvt) Ltd v TMB</em>1996(2) ZLR 52(S). An applicant for relief of a mandamus must show the following;</p> <p>           (a) a clear or definite right</p> <p>           (b) that the respondent has a duty to perform the act requested </p> <p>           (c) absence of similar protection by other ordinary remedy</p> <p>[12]   It must be shown that the other party refused to act in fulfilment of some right.  Courts will not grant relief of a mandamus where there is an adequate alternative remedy available to the applicant. The applicant must exhaust administrative or other legal remedies available to him before he approaches the court for a mandamus.  Relief of a mandamus is an extra ordinary remedy and should be resorted to only in exceptional circumstances. The mandamus is purely in the discretion of the court and such discretion should be exercised only where the mandamus serves a useful purpose. </p> <p>[13]     A party seeking an order to compel another party to release documents to him must tell the court why the other party should be compelled to release the documents. He must show that he made attempts to obtain the documents from the other party before he lodged the application. He cannot decide to just simply approach the court without having made any effort to engage the other party with a view to obtain the documents. In his application, he must plead that he requested the other party to release the documents to him and the other party failed to comply with the request. Details of the efforts made to obtain the documents ought to be included in his pleadings. </p> <p>[14]      Where the documents sought are identifiable, they should be clearly identified. It is critical for an applicant for an order compelling release of documents to be able to say with certainty what documents he wants released to him. </p> <p>[15]  The applicant seems to be clear on what documents it wants released to it but omitted through oversight to give details of the documents. The applicant in its draft order seeks the release of all documents pertaining to claim number 27214. Reference to documents sought to be released is found in paragraph 12 of the applicant’s founding affidavit. The paragraph makes it very clear that the applicant wanted its legal practitioners to peruse the record belonging to QQTS and obtain all relevant information. I understood reference to the record to refer to the file with information on QQTS. It was not very clear whether the applicant seeks release of the file to it or just the relevant documents. If it is the actual or relevant documents that are required to be released, they are not known as they were not particularised. When this anomaly was highlighted to the applicant’s legal practitioner, he sought an amendment of the draft order and the founding affidavit but abandoned the application midway. The concession was proper.</p> <p>[16]   An affidavit like all other pleadings can be amended or portions of it struck out or averments added to it. A founding affidavit is a sworn statement founding an application and is signed by its maker before a commissioner of oaths. The contents of an affidavit may only be varied by the deponent to it. He does this by way of filing a further affidavit in terms of r235 with the leave of the court. A legal practitioner representing a party, not being the deponent to an affidavit cannot amend it or seek to have portions struck out of it. It was inappropriate for the applicant’s legal practitioner to stand up in court and seek to amend his client’s founding affidavit or strike out a paragraph from it.</p> <p> [17]   An application stands or falls by the averments made in its founding affidavit. It is futile for an applicant to seek to amend a draft order in the absence of averments in the founding affidavit that support the amendments sought to be made. The amendments sought to be made in the draft order should be in tandem with the applicant’s case as pleaded in the founding affidavit. </p> <p> [18]   The applicant must identify the documents and show that the documents are important to him and in that sense, he must tell the court why he needs the documents and wants the other party to be compelled to release the documents. He must show that the documents he wants released are important or relevant for the purpose for which he requires them. Where he intends to use the documents in pending litigation, he must give details of the litigation between the parties and say how the documents will aid him in his case. It is good enough to generalise and simply ask the court for any documents in the other party’s possession.  He must not be involved in a fishing expedition. He must know what documents he wants released.  </p> <p>[19]  It must be shown that the documents are in the possession of the other party who has been unwilling to release them. A party, whose requests for release of documents have fallen on deaf ears, is entitled to file an application, with the court to compel the release of the documents.</p> <p>[20] The applicant has asked the court to compel the respondents to release documents that are said to be missing and misplaced. In the case of <em>Tladi </em>v<em>Minister of Police and Ors</em>(1195/2014) [2017] ZANWHC 28 (4 May 2017), the court dealt with a case for discovery of documents. The respondents’ position was that the documents were missing or misplaced. The court considered the explanation of the respondents and held that the explanation furnished by the respondents that the docket was missing and how the documents were misplaced acceptable. The court held that the missing documents would not hinder the applicant in the presentation of his case. Further, that the applicant was requesting for an order which would be impossible to implement and dismissed the application.</p> <p>[21] Although this case was about discovery of documents, the principles applied in resolving this dispute come in handy in the resolution of disputes involving failure to accede to a request to produce documents. Where an opponent in an application to compel release of documents claims that the documents are not in his possession because he has misplaced them or are missing, he in turn, is required to plead this fact. Where this defence is raised, two other considerations come into play.  They are, </p> <ol> <li>the explanation regarding the missing documents</li> <li>whether if the court grants the order sought, it will be capable of enforcement.</li> </ol> <p>[22]  The explanation for the failure to produce the documents requested must be genuine and acceptable. It must be shown that the documents are necessary for the purpose for which they are required. Courts will not make orders compelling production of documents that are unavailable to the other party. Acceding to such requests would amount to an exercise of futility as such an order is not enforceable. Essentially therefore, courts should not be pressured to grant orders for production of documents that are unavailable to the other party.   </p> <p> [23] The right of access to information is a fundamental right enshrined in s 62 (1) of the Constitution of Zimbabwe.The same right is amplified in the Freedom of Information Act [<em>Chapter 10:33</em>] which gives effect to this constitutional right and obliges a public body in control of information to release it. The right to access to information is not absolute and is limited to matters that are in the public domain and any limitations that may be imposed by law. The applicant has a right of access to information and to official records. A government functionary has no right to decline to make available upon request, public information that is available to it and is in its custody. This is specially so where the person seeking access to the documents has rights and interests in the documents. </p> <p>[24]  <em>In casu,</em>the   documents are required for the protection of the applicant’s rights and will enable it to exercise its legal rights and defend the damages claim. The respondents have an obligation at law to provide information to the public regarding documents they have in their possession. </p> <p>[25]  The applicant requested the respondents for the file pertaining to QQTS or documents therefrom. It has made attempts to obtain the documents from the respondents. While it may be accepted that the documents required, may be important and necessary to enable the applicant to defend the claim pending, the documents have unfortunately not been positively identified.It is discomforting for the court to compel release of documents that the court itself has no knowledge of.  Such an order would be vague, inappropriate and unenforceable.</p> <p>[26]  The applicant’s predicament is that it has not shown that the documents it requires are in the possession of the respondents and that the respondents have been unwilling to release them. The respondents, although unsure of the actual documents being requested, have been highly cooperative. Their explanation is that the file relating to QQTS was misplaced due to the administrative changes and movements that took place. This assertion was not disputed. The respondents are not opposed to the request for documents but are constrained in that they do not have the documents at their disposal and are unable to produce them.  They have looked for the file and failed to locate it. The suggestion that the respondents be given time to locate the documents made during the hearing was turned down by the applicant. The appearance is that the respondents are genuine when they say that they misplaced the documents. I am not convinced that the respondents have the file readily available to them and are deliberately withholding information from the applicant. I find therefore that the explanation given by the respondents that the file related to the claim is missing and how the file got misplaced is plausible. The explanation is acceptable and reasonable. </p> <p>[27]  The request for release of documents cannot be complied with. The order sought if granted, would be impossible to implement. No useful purpose will be served by an order that is impossible to implement, where it is very clear that the documents are unavailable and cannot be delivered to the other party. The order sought is incapable of enforcement. The applicant not shown any entitlement to the order sought. Consequently, I make the following order, </p> <p>The application is dismissed with costs. </p> <p> </p> <p><em>Wintertons,</em>applicant’s legal practitioners</p> <p> <em>Civil Division of the Attorney General’s Office</em>, 1st&amp; 2ndrespondents’ legal practitioners </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/700/2020-zwhhc-700.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=29828">2020-zwhhc-700.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/700/2020-zwhhc-700.pdf" type="application/pdf; length=147585">2020-zwhhc-700.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/s">S</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/spoliation">SPOLIATION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/order-spoliation">Order (SPOLIATION)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/possession-protected-spoliatory-remedies">Possession protected by spoliatory remedies</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/what-spoliation">What is (SPOLIATION)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Mon, 23 Nov 2020 10:30:45 +0000 Sandra 9935 at https://old.zimlii.org Garande & 19 Ors v Chiyangwa & 5 Ors (HH 703-20, HC 6011/20) [2020] ZWHHC 703 (09 November 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/703 <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> </p> <p>GIVEMORE GARANDE</p> <p>and</p> <p>LAZARUS ZHOU</p> <p>and</p> <p>WUNGANAYI CHATIKOBO</p> <p>and</p> <p>ADDITION BARADZANWA</p> <p>and</p> <p>SIMBA CHITAU</p> <p>and</p> <p>FARU NDLOVU</p> <p>and</p> <p>SAMSON TAKAEDZA</p> <p>and</p> <p>OBADIAH MUDHUMO</p> <p>and</p> <p>ONIAS MUNEMO</p> <p>and</p> <p>MARTIN CHAPWANYA</p> <p>and</p> <p>LANGTON MUJOMA</p> <p>and</p> <p>ROY MAKANJERA</p> <p>and</p> <p>NOMATTER MAPFUMO</p> <p>and</p> <p>EDMORE MATAWU</p> <p>and</p> <p>ENOCK GANDA</p> <p>and</p> <p>TSANANA MANDIZVIDZA</p> <p>and</p> <p>ONAI MUZENGEZA</p> <p>And</p> <p>KEMPTON KUCHANAYA</p> <p>And</p> <p>GILSON CHIPINGE</p> <p>and</p> <p>JULIUS BHANDE</p> <p>versus</p> <p>PHILLIP CHIYANGWA</p> <p>and</p> <p>TAFADZWA KWARAMBA</p> <p>and</p> <p>TOMMY MWANZA</p> <p>and</p> <p>CONSTABLE MAZVIWANZA</p> <p>and</p> <p>SERGEANT ASANI</p> <p>and</p> <p>OFFICER-IN-CHARGE CHINHOYI RURAL POLICE STATION</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE </p> <p>CHIKOWERO J</p> <p>HARARE, 23 October 2020 &amp; 9 November 2020</p> <p> </p> <p><strong>Urgent Chamber Application</strong></p> <p> </p> <p><em>N Chikono</em>, for the applicants</p> <p><em>T.A Chamutsa</em>, for the 1st– 3rdrespondents</p> <p>No appearance for the 4th– 6threspondent</p> <p> </p> <p> </p> <p>            CHIKOWERO J: Applicants reside at various homes within Old Citrus Farm, Chinhoyi. </p> <p>            It appears that first respondent is a holder of an offer letter in respect of that farm.</p> <p>            Second and third respondents are male adults’ resident at the farm while fourth – sixth respondents are police officers based at Chinhoyi Rural Police Station.</p> <p>            On 20 October 2020 the applicants filed this urgent chamber application. Applicants state that during the night of 18 October 2020 the first respondent caused the rest of the respondents to burn some of the applicants’ houses and to evict them from their homes. Essentially, as interim relief, applicants pray for an order interdicting the respondents from demolishing the homes, unlawfully ejecting them from their homes and from interfering with applicants’ occupation of the farm.</p> <p>            The basis of the application is simply that there is no court order sanctioning the demolition and eviction. The commencement of that process is what triggered the filing of the application.</p> <p>            Second and third respondents did not file opposing papers. However, from submissions made by their counsel at the hearing, I understood the position to be this. They associated themselves with the opposing papers filed by the first respondent. The submissions made by Mr <em>Chamutsa</em>were also made on their behalf. In sum, the argument taken by first – third respondents is this. Applicants occupied Old Citrus Farm through one Patrick Mafusire and 44 others. These 45 persons were convicted for unlawfully occupying gazetted land, being Old Citrus Farm in Chinhoyi. The Magistrates Court, Chinhoyi, in disposing of the criminal matter, ordered the eviction of the convicted persons. The order was registered with the Civil Court in Chinhoyi. A warrant of ejectment was issued. It is on the basis of this warrant that Patrick Mafusire and 44 others were evicted from Old Citrus Farm in Chinhoyi. Also evicted were the 20 applicants. They were the persons alluded to in the warrant as “all those who claim occupation through them at Old Citrus Estate.” The “them” are Patrick Mafusire and 44 others. Each applicant paid a sum of US$50 to Patrick Mafusire and 44 others whereupon the 45 allocated a 6 hectare piece of land on Old Citrus Farm to each applicant. This was done so as to circumvent the impeding eviction of Mafusire and the 44 other persons. However, since the 45 had now been evicted the same warrant authorised the eviction of the 20 applicants as the latter occupied the land through the former.</p> <p>            The fourth, fifth and sixth respondents did not oppose the application.</p> <p>            The first – third respondents raised certain preliminary points.</p> <p>URGENCY</p> <p>I was told that the application was not urgent. This stemmed from the first – third respondents’ opposition to the merits of the application. I have already summarised the crux of that opposition. I was told that the applicants could not found urgency on the basis of their own wrongdoing. They illegally settled on the farm in August 2020. They paid US$50 each to Mafusire and 44 others to facilitate the settlement. The Messenger of Court, with the assistance of police details from Zimbabwe Republic Police Chinhoyi Rural, evicted them from the farm. Given their status as illegal settlers, the eviction was always coming. They invited that consequence upon themselves. This was self-created urgency. It is not the urgency contemplated in the rules. I was referred to <em>Kuvarega</em>v <em>Registrar-General and Another</em>1998 (1) ZLR 188 (H).</p> <p>For their part, the applicants claim that they occupied the farm in 2015. They referred me to an undated petition addressed to the Minister of State for Mashonaland West Province. That petition does not disclose the names of the petitions. In that document, the petitioners state that they have been in illegal occupation of Old Citrus Farm for almost 7 years. They, implore the Minister to help them acquire the right to occupy land.</p> <p>What is important is this. No evidence was adduced to demonstrate that the applicants are occupying Old Citrus Farm through Patrick Mafusire and 44 others. None of those 45 persons deposed to supporting affidavits speaking to receipt of US$50 from any of the applicants to facilitate the applicants’ occupation of the farm. No evidence of the US$50 payments was placed before me. It follows that I am unable to find that the applicants are occupying the farm through either Mafusire or any or all of the 44 other persons. No evidence was placed before me that they are covered by the warrant of ejectment and execution against property issued at Chinhoyi under case number 366/20 against Patrick Mafurise and the 44 other persons named in the warrant.</p> <p>Indeed, there was no evidence that the Messenger of Court served copies of the warrant on any of the applicants as a precursor to the demolition of their homesteads and the driving out of the applicants from their homes.</p> <p>I am satisfied that the application is urgent. The demolition started during the night of 18 October 2020. Instructions were given to counsel on 19 October 2020. The application was filed on 20 October 2020. This is a case of respondents demolishing the applicants’ homes without a court order. See <em>City of Harare</em>v <em>Tawanda Mukungurutse, Patrick Chikohora</em>, <em>Cledwyn Mutete and Minister of Local Government Public Works and National Housing </em>SC 46/18.</p> <p>The preliminary point that the application is not urgent thus finds no favour with me. I dismiss it.</p> <p>MATERIAL NON-DISCLOSURE</p> <p>            I was asked to dismiss the application on the following basis. the applicants did not disclose that what was being carried out was a lawful eviction with the assistance of the police. Mr <em>Chamutsa</em>urged me to dismiss the application on the basis of this which he said was material non-disclosure. He referred me to <em>Graspeak Investments (Pvt) Ltd</em>v <em>Delta Operations (Pvt) Ltd and Another </em>2001 (2) ZLR 551 (H).</p> <p>            Mr Chikono argue as follows. This was not an eviction. There is no court order wherein the applicants are cited as defendants and sanctioning their ejectment from the farm. They were not served with copies of a warrant of ejectment and execution against property. There is a recognised way of carrying out an eviction. It involves removing a person, his property, all those claiming through him and their property from the premises in question to some distance away. This was not done. The Messenger of Court does not evict people under the cover of darkness. Neither does he burn homes in the course of carrying out an eviction. The applicants did not see the Messenger of Court during the night of 18 October 2018. They could not be faulted for not disclosing that which they did not know.</p> <p>            I have already found that the warrant in question did not cover the applicants. Whether the messenger of court was involved or not ceases to matter. The court order on which the warrant was premised did not sanction the ejectment of the applicants. They were not party to the criminal matter. There was nothing material which the applicants did not disclose.</p> <p>            Accordingly, I dismiss this point in <em>limine.</em></p> <p>MISJOINDER OF THE MESSENGER OF COURT</p> <p>            I have pronounced myself on this preliminary point in the course of determining the preceding points in <em>limine.</em></p> <p>            I reiterate that there is no court order sanctioning the eviction of the applicants.</p> <p>            It follows that there was no need to join the messenger of court.</p> <p>            I dismiss this preliminary point.</p> <p>CRITICISM OF THE DRAFT ORDER</p> <p>            Mr<em>Chamutsa</em>made the following points. Firstly, para (a) of the interim relief effectively reflects that the applicants are seeking a spoliation order when in the notice of the application and the founding affidavits the relief sought is an interdict. The impugned paragraph reads</p> <p>“(a)      The 1strespondent be and is hereby ordered to grant applicants access to their homesteads and stop forthwith the burning and demolition of their structures at Citrus Farm, Chinhoyi, Mashonaland West Province.”</p> <p> </p> <p>            Secondly, the requirement of an interim interdict are different from those of a spoliation order. In addition, the latter can only be a final order, not an interim one. See <em>Blue Ranges Estates</em><em>(Pvt) Ltd</em>v <em>Muduvuri and Another</em>2009 (1) ZLR 368 (S).</p> <p>            Mr<em>Chikono</em>’s response was that the court is not bound by the terms of the draft order. It may grant such relief as is merited.</p> <p>            I see a prayer for an interdict in the latter portion of para (a) of the interim relief. The first portion is spoliatory relief. But it is academic in view of para (c) of the same draft order. Paragraph (c) seeks to achieve the same result via what appears to be a prayer for an interim interdict. Unamended, para (c) reads:</p> <p>            “the respondents are ordered not to interfere with the applicant’s occupation of the said farm.”</p> <p>            Further, I was asked to dismiss the application on the basis that the interim and final relief sought are substantially similar. I have looked at <em>City of Harare</em>v <em>Farai Mushoriwa</em>SC 54/18 at pp 8 and 9 of the cyclostyled judgment. As in that matter, what distinguishes the interim from the final relief sought is that the latter is declaratory in nature. Should I grant the interim relief, and thus preserve the applicant’s stay at the farm, the applicants propose to have the court pronounce, on the return date, that their ejectment in the absence of a court order be declared unlawful and consequently be finally interdicted to that extent.</p> <p>            There is no merit in this preliminary point. I dismiss it.</p> <p>THE MERITS</p> <p>            I have traversed the merits in the course of discussing the preliminary points.</p> <p>The first respondent capitalised on a lawful eviction of Mafusire and 44 others to also begin the illegal process of evicting the applicant.</p> <p>            The Constitution of Zimbabwe Amendment (No. 20) Act, 2013 grants certain rights to the applicants. One of them is freedom from arbitrary eviction. In this regard, s 74 reads:</p> <p>            “74 freedom from arbitrary eviction</p> <p>No person may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances.”</p> <p> </p> <p>See also <em>City of Harare</em>v <em>Mukungurutse and others</em>(supra)</p> <p>            Tied to this are the applicant’s rights to administrative justice and to a fair hearing on the determination of their civil rights and obligations <em>vis-à-vis</em>their occupation of Old Citrus Farm, Chinhoyi.</p> <p>            No court sat to determine the lawfulness or otherwise of their stay at Old Citrus Farm. No court ordered their eviction from that farm.</p> <p>            It does not matter that they are illegally occupying that land. They are entitled to protection of the law. Due process was not followed in commencing the process of demolishing their houses and driving them from their homesteads. It does not even matter that their homes may be makeshift structures. See <em>Zimbabwe Homeless People</em>v <em>Minister of Local Government and National Housing and Others</em>SC 94/20</p> <p>            I was told that the applicants are still on the farm. I was told that what has happened is that some of them had their houses demolished. But they are still occupying the farm. There is no evidence that the application for an interim interdict has been overtaken by events. A return of service dated 20 October 2020 under case number 366/20 was handed in at the hearing. The plaintiff therein is the present first respondent. The defendants are “Patrick Mafusire and Others”. The process executed at Old Citrus Farm Chinhoyi was a warrant of ejectment. The remarks column reads:</p> <p>            “Warrant of Ejectment executed and all the defendants removed at Old Citrus Farm and put the    same in the position (sic) of the plaintiff.”</p> <p>            The applicants are not the defendants in case number 366/20. The defendants are Patrick Mafusire and others. I cannot allow this return of service to be abused to disentitle the applicants from obtaining the relief that they have <em>prima facie</em>proven to be due to them.</p> <p>THE DRAFT ORDER</p> <p>For purposes of clarity, I set out the terms thereof:</p> <p>            “TERMS OF RINAL ORDER SOUGHT</p> <p>            That the respondents show cause to this Honourable Court on the return date why a final order      should not be granted in the following terms:</p> <p>1.         That the first respondent be and is hereby ordered not to burn, destroy or demolish the applicants’ homestead at Citrus Farm Chinhoyi, Mashonaland West Province and not to eject them without valid court orders.</p> <p>            2.         The first respondent shall pay costs of suit on a higher scale</p> <p>            Terms of interim order granted</p> <p>            (a)The first respondent be and is hereby ordered to grant applicants access to their homesteads and stop forthwith the burning and demolition of their structures at Citrus Farm, Chinhoyi Mashonaland West Province</p> <p>            (b) the respondents are ordered not to unlawfully evict the applicants from their homesteads.</p> <p>            (c) the respondents are ordered not to interfere with the applicants’ occupation of the said                  farm.”</p> <p> </p> <p>            Mr<em>Chikono</em>moved for certain amendments to the draft order. That application was not opposed.</p> <p>            I will grant an interim prohibitory interdict to preserve the status <em>quo</em>. The parties can argue the matter fully on the return date. The court seized with the matter at that stage will decide whether to discharge or confirm the order that I am now granting. It will also decide whether the final order sought is merited.</p> <p>DISPOSITION</p> <p>            In the result, the following order shall issue</p> <p>1.         The 1strespondent shall forthwith stop the burning and demolition of applicants’               structures situate at Old Citrus Farm, Chinhoyi.</p> <p>2.         The respondents shall not unlawfully evict the applicants from their homesteads                situate at Old Citrus Farm, Chinhoyi</p> <p>3.         The respondents shall not unlawfully interfere with applicants’ occupation of their homesteads situate at Old Citrus Farm, Chinhoyi.”</p> <p> </p> <p> </p> <p><em>Ngarava Moyo and Chikono</em>, applicants’ legal practitioners</p> <p><em>Chamutsa and Partners</em>, 1st– 3rdrespondents’ legal practitioners</p> <p> </p> <p> </p> <p> </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/harare-high-court/2020/703/2020-zwhhc-703.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24085">2020-zwhhc-703.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/703/2020-zwhhc-703.pdf" type="application/pdf; length=130469">2020-zwhhc-703.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/l">L</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/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/urgent-application">Urgent Application</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/certificate-urgency">certificate of urgency</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/s">S</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/spoliation">SPOLIATION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/order-spoliation">Order (SPOLIATION)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/possession-protected-spoliatory-remedies">Possession protected by spoliatory remedies</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/what-spoliation">What is (SPOLIATION)</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/2018/54">City of Harare v Mushoriwa (SC 54/18, Case No. SC 228/14) [2018] ZWSC 54 (20 September 2018);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2020/94">Zimbabwe Homeless People&#039;s Federation &amp; 7 Ors v Minister of Local Government and National Housing &amp; 3 Ors (SC 94-20) [2020] ZWSC 94 (17 July 2020);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Mon, 23 Nov 2020 10:04:08 +0000 Sandra 9933 at https://old.zimlii.org Tilsit Stationaries (Private) Limited v Ncube & Anor (HB 252-20, HCA 79/20 X REF MC 7873/16) [2020] ZWBHC 252 (05 November 2020); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2020/252 <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>TILSIT STATIONERIES (PRIVATE) LIMITED </strong></p> <p> </p> <p><strong>And </strong></p> <p> </p> <p><strong>BLESSING NCUBE </strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>DRIVE CONTROL CORPORATION (PROPRIETY) LIMITED </strong></p> <p> </p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>TAKUVA AND DUBE-BANDA JJ</p> <p>BULAWAYO 28 September 2020 and 5 November 2020</p> <p> </p> <p><strong>Civil appeal </strong></p> <p> </p> <p><em>K. Phulu, </em>for the appellants</p> <p><em>Ms.C. Malaba,</em>for the respondent </p> <p> </p> <p> </p> <p><strong>DUBE-BANDA J: </strong>This is an appeal against the entire judgment of the magistrate’s court sitting at Tredgold Bulawayo, dated 18 September 2019. The court <em>a quo </em>ordered appellants to pay respondent, jointly and severally, the one paying the other to be absolved, the sum of US$ 53 969.85; interest at the prescribed rate calculated from the date of summons to the date of final payment; and costs of suit on a legal practitioner and client scale. Appellant was aggrieved by the judgment and noted an appeal in this court. In the main, the appeal is about whether the court <em>a quo </em>was correct in ordering that payment be in foreign currency and not in local Zimbabwean dollars. </p> <p> </p> <p><strong>Background facts</strong></p> <p>            Respondent is a company registered in the Republic of South Africa. It has no trading office in Zimbabwe. First appellant is a company registered in Zimbabwe, and second appellant is a Zimbabwean and a director of the former. First appellant and respondent entered into a credit agreement in terms of which the former supplied goods, namely computer software and hardware to the latter. A credit agreement was signed. Second appellant bound himself as surety and co-principal debtor to the respondent. On the 3rdDecember 2013, the appellants signed an acknowledgment of debt, in the sum of US$53 969, 85 in favour of the respondent. Appellants defaulted in payment, and a dispute arose leading to litigation amongst the parties. </p> <p>            On 16 November 2016, respondent sued out a summons against the two appellants, claiming payment in the sum of US$53 969.85; interest at the prescribed rate calculated from the 3rdDecember 2013 to the date of full and final payment; collection commission and costs of suit. Appellants defended the case, raising a number of defences along the way, until such time that the only issue that remained in dispute was the currency of payment. The court <em>a quo</em>head argument on this issue, and found in favour of the respondent. The court found that the debt was a foreign obligation and payable in foreign currency. It then ordered that appellants pay US$53 969.85; interest at the prescribed rate and costs on a legal practitioner client scale. Aggrieved by the decision of the court <em>a quo </em>the appellants launched the present appeal.</p> <p> </p> <p><strong>Grounds of appeal </strong></p> <p>The appellants take issue with the judgment of the court <em>a quo </em>on the grounds that the court <em>erred</em>in two respects. The grounds of appeal are these:</p> <ol> <li>The court <em>a quo erred </em>in law in finding that the debt owed to respondent was a foreign loan and obligation which was payable in United States dollars.</li> <li>The learned Magistrate <em>erred</em>in law in ordering payment of the judgment sum in foreign currency not in Zimbabwean dollars. </li> </ol> <p><strong>Issues for determination </strong></p> <p>            There is one issue for determination, i.e. whether appellants’ debt to respondent is a foreign obligation in terms of the section 44C of the Reserve Bank Act (as inserted by s 3(1) of S.I. 33 of 2019). The answer to this question, will invariably determine the currency of payment. If the debt is a foreign obligation, the currency of payment will be in foreign currency, i.e. United States dollars, if it is a local obligation, the currency of payment would be RTGS dollars. This is the issue that this court will have to determine. </p> <p> </p> <p> </p> <p><strong>Foreign or local obligation </strong></p> <p>The issue is whether the debt is excluded from the protection of section 44C of the Reserve Bank Act (as inserted by s 3(1) of S.I. 33 of 2019).Section 44C (2) provides as follows:</p> <p>The issuance of any electronic currency shall not affect or apply in respect of:</p> <ol> <li>funds held in foreign currency designated accounts, otherwise known as “Nostro FCA Accounts”, which shall continue to be designated in such foreign currencies; and</li> <li>foreign loans and obligations denominated in any foreign currency, which shall continue to be payable in such foreign currency.</li> </ol> <p>(My emphasis)</p> <p>Section 4(1)(a) of S.I. 33 of 2019 provides for the issuance and operation of an electronic currency, dubbed “the RTGS Dollar”, with effect from the effective date, being the date of promulgation of S.I. 33 of 2019, <em>i.e.</em>22 February 2019. Paragraphs (c), (d) and (e) of s 4(1) stipulate as follows:</p> <p>(c) that such currency shall be legal tender within Zimbabwe from the effective date; and</p> <p>(d) that, for accounting and other purposes, all assets and liabilities that were, immediately before the effective date, valued and expressed in United States dollars (other than assets and liabilities referred to in section 44C(2) of the principal Act) shall on and after the effective date be deemed to be values in RTGS dollars at a rate of one-to-one to the United States dollar; and</p> <p>(e) that after the effective date any variance from the opening parity rate shall    be determined from time to time by the rate at which authorised dealers under the Exchange Control Act exchange the RTGS Dollar for the United States dollar on a willing-seller willing-buyer basis. </p> <p>What emerges clearly and unequivocally from s 44C(2)(b) of the Reserve Bank Act, as read with s 4(1)(d) of S.I. 33 of 2019, is that foreign loans and obligations denominated in any foreign currency are excluded from the broad remit of S.I. 33 0f 2019. Thus, foreign loans and obligations continue to be valued and payable in the foreign currency in which they are denominated. See <em>Breastplate Service (Private) Limited v Cambria Africa PLC </em>SC 66/20,</p> <p>It is common cause that until the promulgation of S.I. 33 of 2019, the parties fully agreed that payment would be made in United States currency. It is not in dispute that respondent is a foreign company. What is contentious is the nature of the transaction between the parties. <em>Mr Phulu, </em>for the appellant, submits that the debt is not a foreign obligation within the meaning and reach of s 44C (2) (b) of the Reserve Bank Act. It is contended that consent to judgment can only be consent on the basis of the cause of action, which is the subject matter and not any other cause of action. The appellants are said to have consented to judgment with regards to the debt owed to the respondent. It is argued that the court could only deal with the cause of action before it and not one that is not supported by the pleadings. It is contended that in <em>casu,</em>there are two different elements which are; the underlying transaction [initial agreement] and the acknowledgment of debt. It is argued that the underlying transaction is not applicable to this appeal. It is said not to be applicable for the reason that it is not the cause of action upon which the respondent sought recourse. It contended that the subject matter in the court <em>a quo </em>relates to the acknowledgement of debt between the parties.</p> <p><em>Ms Malaba,</em>for the respondent submitted that the debt owed by the appellants to the respondent is a foreign obligation in the reading of 44C (2) (b) of the Reserve Bank Act. It is contended that this is a debt by a Zimbabwean resident and a Zimbabwean registered entity to a non-resident entity. In her heads of argument and oral submissions, Ms <em>Malaba</em>argued that the signing of the acknowledgement of debt did not create a new contract independent from the underlying agreement, i.e. the credit agreement. </p> <p>For a debt to be a foreign obligation, the creditor must be resident outside Zimbabwe. The nationality of the creditor is irrelevant, it is his residence that matters. The respondent is a company registered in South Africa. It has no place of business in Zimbabwe. Its address is 20 Milkyway Avenue, Linbro Business Park, Sandton, South Africa. It is a non-resident foreign entity in Zimbabwe. See <em>Breastplate Service (Private) Limited v Cambria Africa PLC </em>SC 66/20.</p> <p>The appellants are seeking refuge in the contention that the debt is not a foreignobligation. There is an attempt to distinguish the credit agreement and the acknowlegment of debt. It is argued that the cause of action is anchored on the acknowlegment of debt, which then makes the debt a local obligation. </p> <p>As regards the transaction between the parties, it is not in dispute that what was sold by the respondent to the appellants are computer software and hardware. There is evidence on record, in the form of freight charges, which shows that the goods sold and delivered to first appellant where brought into Zimbabwe from South Africa. In short, a foreign company sold goods to a local company. </p> <p>In the particulars of claim, it is pleaded that plaintiff and the 1stdefendant entered into a Credit Agreement in terms of which the plaintiff supplied goods namely computer software and hardware at the 1stdefendant’s special instance and request. The second defendant bound himself as surety and co-principal debtor. </p> <p>In their plea, appellants’ first deny the signature on the acknowledgement of debt, and place in issue the authenticity of the acknowledgment of debt. Further, in <em>paragraph</em>10 of the plea, appellants pleaded as follows:</p> <p>No issues arises save that the 2nddefendant has discharged his obligations in full to the plaintiffin terms of their credit sale agreement and attaches proof of such payment as annexure ‘A’. (My emphasis). </p> <p>Again, the acknowledgement of debt states that the amount has become due arising from goods sold and delivered to the 1stappellant during the period February 2012 to May 2013, at its instance and request. </p> <p>In its heads of argument, respondent argue that the signing of the acknowledgement of debt did not create a new contract independent from the underlying agreement. It rather confirmed the obligations arising from the initial contract. I agree. I take the view that the cause of action is the credit sale agreement between the parties. The acknowledgement of debt was not the cause of action but merely a second layer of protection given to the respondent.  Itwas nothing more than a continuing protection for the respondnet. The acknowledgement of debtdoes not constitute a novation of the initial credit agreement and the obligations and undertakings of the parties have their origin in the initial undertakings and obligations attributable to them in the credit agreement. The obligations under the credit agreement and those under the  acknowledgement of debtwere thus interdependent.<a href="//FBB0967A-81A1-4B3E-BB7C-FF6B366CFA84#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a>This can only mean that, in substance, theacknowledgement of debtguarantees appeallants’ obligations under the initial credit agreement. The attempt to distinguish the credit agreement from the acknowledgement of debtis futile, it is just a distinction without a difference. See <em>Da Silva v Slip Knot Investments </em>(661/2009) [2010] ZASCA 174 (2 December 2010).</p> <p>It was not the intention behind S.I. 33 of 2019 to strike at an obligation of the kind involved in this case. Section 44C(2)(b) of the Reserve Bank Act, as inserted by s 3(1) of the 2019 Regulations, makes it clear that the issuance of any electronic currency, <em>i.e.</em>RTGS dollars, shall not affect or apply to any foreign obligation. This is reinforced by s 4(1)(d) of the Regulations which explicitly excludes foreign obligations valued and expressed in United States dollars from the deemed parity valuation in RTGS dollars. See <em>Breastplate Service (Private) Limited v Cambria Africa PLC </em>SC 66/20,</p> <p>To conclude on this aspect, the currency of payment intended by the parties was United States dollars. Moreover, the obligation incurred by the appellant was a foreign obligation denominated in foreign currency within the contemplation of S.I. 33 of 2019. That obligation therefore continued to be payable in foreign currency, even after the effective date, <em>i.e.</em>22 February 2019.What the parties intended and what they transacted unquestionably gave rise to a foreign obligation.  It follows that the first and second grounds of appeal are without merit and must accordingly be dismissed.</p> <p><strong>Costs </strong></p> <p>Respondent seeks costs on a legal practitioner and client scale. More than 100 years ago, Innes CJ stated the principle that costs on an attorney and client scale are awarded when a court wishes to mark its disapproval of the conduct of a litigant. See <em>Orr v Solomon </em>1907 TS 281. Since then, this principle has been endorsed and applied in a long line of cases and remains applicable. Over the years, courts have awarded costs on an attorney and client scale to mark their disapproval of fraudulent, dishonest or <em>mala fides </em>(bad faith) conduct; vexatious conduct; and conduct that amounts to an abuse of the process of court. See <em>Public Protector v South African Reserve Bank </em>[2019] <em>ZACC </em>29. </p> <p> </p> <p>The scale of attorney and client is an extraordinary one which should be reserved for cases where it can be found that a litigant conducted itself in a clear and indubitably vexatious and reprehensible manner. Such an award is exceptional and is intended to be very punitive and indicative of extreme opprobrium. It should only be in relation to conduct that is clearly and extremely scandalous or objectionable that these exceptional costs are awarded. <em>See Plastic Converters Association of South Africa on behalf of Members v National Union of Metalworkers of SA </em>[2016] ZALAC 39; [2016] 37 ILJ 2815 (LAC).</p> <p>To mulct a litigant in punitive costs requires a proper explanation grounded in our law. All of the above said, these are costs that are meant to be penal in character and are therefore supposed to be ordered only when it is necessary to inflict some financial pain to deter wholly unacceptable behaviour and instil respect for the court and its processes. </p> <p> </p> <p>The punitive costs mechanism exists to counteract reprehensible behaviour on the part of a litigant. The question whether a party should bear the full brunt of a costs order on an attorney and client scale must be answered with reference to what would be just and equitable in the circumstances of a particular case. See <em>De Lacy v South African Post Office </em>[2011] ZACC 17; 2011 JDR 0504 (CC); 2011 (9) BCLR 905 (CC) at paras 116-7 and 123 A court is bound to secure a just and fair outcome. A punitive costs order is justified where the conduct concerned is “extraordinary” and worthy of a court’s rebuke.</p> <p>In support for costs on a legal practitioner and client scale, respondent contends as follows:</p> <ol> <li>When summons was issued, the appellants first pleaded prescription, when it was clearly not applicable. They took this all the way to a hearing in 2017 and capitulated. </li> <li>Being required to file a plea, they then turned to attack the acknowledgment of debt. Knowing well that this defence was nothing less of fraudulent, the appellants pushed forward to try and do everything possible to avoid payment of the debt.</li> <li>At the hearing in 2019, the appellants consented to judgment being entered against them and have now sought to clutch on legislation that they are clearly and expressly excluded. </li> <li>Once again in an attempt to defeat justice and prevent payment to the South African creditor of its dues. </li> </ol> <p>I agree. </p> <p>In its heads of argument, respondent contends that what is before court, is a Zimbabwean entity and resident who have refused to honour their obligations. Instead they have fought for eight years to not pay their obligations to the South African company, and are now regrettably seeking assistance from the court to relieve them of their foreign currency obligations under the guise of legislative changes which do not apply to their obligations to the respondent. I agree. </p> <p>I wish to add thatthat cross border trade is lifeblood of commerce. Zimbabwe trades with its regional neighbours, and it must maintain a reputation of honesty and integrity in such trade. Otherwise, trust in Zimbabwe and its business persons could be irreparably damaged. The conduct of the appellants endanger the reputation of Zimbabwe in regional trade. Such conduct must be rebuked by an order of costs on a legal practitioner and client scale. </p> <p><strong>Disposition </strong></p> <p>It is on the basis of the foregoing reasons that this appeal is dismissed in its entirety with costs on an attorney – client scale. </p> <p> </p> <p> </p> <p>Takuva J ……………………… I agree</p> <p> </p> <p> </p> <p><em>Kantor and Immerman</em><em>, a</em>pplicant’s legal practitioners</p> <p><em>Mashayamombe &amp; Co. Attorneys, </em>respondent’s legal practitioners</p> <p> </p> <p> </p> <p> </p> <p><a href="//FBB0967A-81A1-4B3E-BB7C-FF6B366CFA84#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a>Cf <em>Adams v SA Motor Industry Employers Association </em>1981 (3) SA 1189 (A) 1199G-H. </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/2020/252/2020-zwbhc-252.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=29272">2020-zwbhc-252.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/2020/252/2020-zwbhc-252.pdf" type="application/pdf; length=123200">2020-zwbhc-252.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-high-court">Appeal to High Court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/contract">CONTRACT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/costs">COSTS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/legal-practitioner-and-client-scale">Legal practitioner and client scale</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/abuse-process">abuse of process</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/judgment-practice-and-procedure">Judgment (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/currency-which-judgment-may-be-expressed">currency in which judgment may be expressed</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/judgment-expressed-foreign-currency">judgment expressed in foreign currency</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/s">S</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/suretyship">SURETYSHIP</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/surety-%E2%80%93-liability">Surety – liability of</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/2020/66">Breastplate Service (Private) Limite v Cambria Africa PLC (SC 66/20) [2020] ZWSC 66 (14 July 2020);</a></div></div></div> Wed, 11 Nov 2020 07:11:33 +0000 Sandra 9900 at https://old.zimlii.org Seventh Day Adventist Association of Southern Africa v Tshuma & 2 Ors (HB 213-20, HC 1631-20) [2020] ZWBHC 213 (01 October 2020); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2020/213 <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>SEVENTH DAY ADVERTIST ASSOCIATION OF SOUTHERN AFRICA </strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>PHANSON TSHUMA </strong></p> <p><strong>And </strong></p> <p> </p> <p><strong>CIVIL SERVICE COMMISSION </strong></p> <p> </p> <p><strong>And </strong></p> <p> </p> <p><strong>MINISTER OF PRIMARY AND SECONDARY EDUCATION N.O. </strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>DUBE-BANDA J</p> <p>BULAWAYO 29 SEPTEMBER &amp; 1 OCTOBER 2020</p> <p> </p> <p><strong>Urgent chamber application for <em>rei vindication  </em> </strong></p> <p> </p> <p><strong>DUBE-BANDA J</strong>:     This matter came to this court as an urgent chamber application. In the papers filed with this court, applicant sought a final order drawn in the following terms:</p> <ol> <li>That 1strespondent and all those claiming occupation through him shall vacate the applicant’s premises known as Number 1, Solusi Adventist High School within 48 hours of the granting of this order. </li> <li>Failing paragraph (1) above, the Deputy Sheriff, Bulawayo or his lawful assistants are authorised and directed at 1strespondents own expense, to evict the 1strespondent and all those claiming through him, from Solusi Adventist High School. </li> <li>The 1strespondent shall pay costs on an attorney and client scale. </li> </ol> <p> </p> <p>In the certificate of urgency, signed by a legal practitioner in terms of rule 242 (2) (b) of the High Court Rules, 1971 (Rules) it is alleged that:</p> <p>1.The applicant has real rights of ownership of the property which rights are enforceable against the whole world. The real rights of ownership establish a clear right from a substantive area of law.</p> <p>2.The 1strespondent remains in occupation of the applicant’s house without applicant’s consent and this is causing applicant unnecessary prejudice. All the plans for the re-opening of the schools are hamstrung as there is an accommodation crisis created by the refusal of the 1strespondent to vacate the applicant’s house. Schools are opening on the 28thSeptember 2020 leaving the applicant with less than seven (7) days to carry out all intended works.</p> <p>3.Save self-help, the applicant has no other efficacious remedy to grant relief and protection of its rights.</p> <p>4.Having considered the decision in <em>Kuvarega v Registrar General and Anor</em>1998 (1) ZLR 188 (H), I take the view that the matter is urgent and it cannot wait on the queue.</p> <p>5.Since the applicant seeks a final interdict I also considered the decision in <em>Universal Merchant Bank Zimbabwe </em>v <em>The Zimbabwe Independent and Anor</em>2000 (1) ZLR 34 and I am of the view that the requirements are established.</p> <p>6.I have also considered the comments by the Honourable J in the case of <em>Machaya and 7 Ors</em>v <em>The State and Anor</em>HH 442/19, as to the form of the order. </p> <p> </p> <p>According to a notice filed with this court on the 25thSeptember 2020, 2ndand 3rdrespondents indicated that they are not opposed to the relief sought by the applicant, save for the issue of costs.  Again, according to a letter dated 28thSeptember 2020 (quoted in <em>extensioinfra</em>), and the submissions made by Mr <em>Dube</em>(counsel for 1strespondent) in his oral submissions, it is apparent that 1strespondent has vacated the applicant’s premises known as Number 1, Solusi Adventist High School (house). His opposition turns on the issue of costs. </p> <p> </p> <p><strong>Background </strong></p> <p>The background of this matterappears within the four corners of the founding affidavit filed in support of this application. What is clear is that 1strespondent is employed by the Ministry of Education. He has been the headmaster of Solusi Adventist High School (School), from 2004. He was appointed headmaster of the school at the recommendation of the Seventh Day Adventist Church (responsible authority). On the 16thMay 2018, the responsible authority withdrew its recommendation and requested 1strespondent to leave the school. He challenged this decision of the responsible authority and litigation ensued between the parties. He subsequently filed an application before this court in case number HC 1471/18, and on the 7thMay 2019, his application was dismissed for want of prosecution. </p> <p> </p> <p>On the 1stJune 2020, 3rdrespondent transferred 1strespondent to Cowdray Park High School, Bulawayo. He was directed to handover the school to the District Schools Inspector on or before 29 June 2020. The handover was not carried out and on the 27 July 2020, applicant wrote a letter to the Provincial Education Director, Bulawayo enquiring about the handover of the school and the vacant possession of the house. The handover was commenced on the 7 September and concluded on the 10 September 2020. On the 20 September 2020, applicant provided transport to carry 1strespondents property from the house.1strespondent did not vacate the house. </p> <p> </p> <p>Applicant then launched this application, which seeks the eviction of the 1strespondent from the house. It is argued in the founding affidavit that applicant owns the land upon which the school, the houses and other buildings are build. It is contended that applicant has no obligation to provide accommodation to the 1strespondent. It is said 1strespondent does not have applicant’s consent to remain in occupation of the house. It is argued that he was long requested to vacate the house. It is contended that schools are opening on the 28thSeptember 2020, and the house which illegally occupied by the 1strespondent has to be renovated, and given to the new headmaster of the school, and all this cannot happen when 1strespondent is still in occupation of the house.  It is said there is no other remedy by which the applicant can procure vacant possession of the house other than approaching the court for a final interdict on an urgent basis. </p> <p> </p> <p><strong>Postponement </strong></p> <p> </p> <p>This application was placed before me and I directed that it be set-down for the 25thSeptember 2020, for hearing. On the set-down date, Mr <em>Dube</em>applied for a postponement. He contended that 1strespondent was not ready for hearing, because his counsel of choice, a Mr <em>Ndlovu</em>was in Harare. Again, it was contended that the application was served on that day, i.e. 25 September 2020, therefore 1strespondent needed time to consult and get legal advice from his legal practitioners. This application for a postponement was opposed by Mr <em>Ncube</em>, counsel for the applicant. It was argued in opposition that this was an urgent application, it needs to be adjudicated with speed. It was said a postponement will defeat the object of the application. It was further contended that the application for a postponement was anchored on a falsehood. It was said the application was served on the 1strespondent on the 24thSeptember 2020. A certificate of service was produced which shows that the application was served on one Mr Zwelabo Nkomo, a son in law of the 1strespondent. Service was effected on the 24thSeptember 2020, at 16:23 hours. Mr <em>Ncube</em>also contended that on the 25thSeptember 2020, before the set-down time he had a telephone communication with Mr <em>Dube</em>, following such communication he e-mailed a copy of this application to Mr <em>Dube</em>.  </p> <p> </p> <p>After hearing argument from the parties, I postponed to the 28 September 2020, the hearing of the matter. I indicated at that stage that the reasons for the postponement will be contained in the main judgment.  These are the reasons: In <em>Savious Nkala Versus Pt Madiba N.O and Fadzai Senga </em>HB 17/20 the court said the following principles that are relevant to an application for postponement: </p> <p>1.The court should be slow to refuse a postponement where the true reason for a party’s non - representation has been fully explained and is not a delaying tactic and where justice demands that the party should have further time for the purpose of preparing his or her case. </p> <p>2.An application for a postponement must be made as soon as the circumstances justifying same became known to the applicant, then the court may in an appropriate case allow an application that has not been timeously made. </p> <p>3.An application for postponement must always be <em>bona fide </em>and not merely a tactful manoeuvre for the purpose of obtaining an advantage to which applicant is not entitled.</p> <p>4.</p> <p>5.</p> <p> </p> <p>Again, a postponement is not just for the asking. The court must be satisfied that it is in the interests of justice that such postponement be granted. In <em>casu</em>, I took into account that everything has been happening very fast. The application was served on the 24thSeptember 2020, at 16:24. It was served on a third party. The matter was set-down for the 25 September 2020. The application was e-mailed to Mr <em>Dube</em>on the very set-down date. I accept that in an urgent application the respondent must endeavour to act according to the speed the matter is moving. However, in such circumstances, when the respondent asks for a postponement to gather his thoughts, consult counsel and prepare for hearing, the court must in appropriate circumstances be amenable to such requests. The court should be slow to penalise a respondent who intends to prepare for a hearing, even if that party has failed to comply with the special time periods that have been fixed by the court. Again, I did not see any prejudice that would be caused to the applicant by postponing the matter. It is for these reasons that I acceded to the application for a postponement of the matter. </p> <p> </p> <p><strong>Concession made by the 1strespondent </strong></p> <p> </p> <p>On the morning of the 28thSeptember 2020, Messrs Mabundu &amp; Ndlovu addressed a letter to applicant’s legal practitioners, i.e. Ncube and Partners. I reproduce the letter in <em>ex-tensio:</em></p> <p> </p> <p>MESSRS NCUBE &amp; PARTNERS</p> <p>Legal Practitioners</p> <p>Bulawayo</p> <p> </p> <p>Dear Sirs</p> <p> </p> <p><strong>RE: SEVENTH ADVENTIST ASSOCIATION OF SOUTHERN AFRICA-VS-PHANSON TSHUMA &amp; OTHERS: HC. 1631/20</strong></p> <p> </p> <p>We refer to the above matter and confirm that we still act for the 1stRespondent Mr. Phanson Tshuma</p> <p> </p> <p>Kindly note that after going through the Application and considering it, we advised our client not to oppose it. It is our view that the client had not considered the issues in question properly. Following our advice the client has since moved out of the premises and the keys have been handed over to the caretaker. It follows that the Application therefore becomes mute as it had been overtaken by events.</p> <p> </p> <p>On this note, we kindly request that the Application be withdrawn with each party bearing its costs. We sincerely apologise for and on behalf of our client for any inconvenience caused.</p> <p>We copy this letter to the Registrar of High for the attention of the Honourable Justice Dube Banda</p> <p> </p> <p>We are indebted in advance for your usual cooperation.</p> <p> </p> <p>Yours faithfully </p> <p> </p> <p>MABUNDU &amp; NDLOVU LAW CHAMBERS</p> <p> </p> <p>Applicant’s legal practitioners quickly addressed a reply to 1strespondent’s legal practitioners, I reproduce the reply hereunder: </p> <p> </p> <p>Messrs Mabundu and Ndlovu Law Chambers</p> <p>Legal Practitioners </p> <p>Bulawayo </p> <p> </p> <p>Dear Sirs</p> <p> </p> <p><strong>RE:SEVENTH DAY ADVENTIST ASSOCIATION OF SOUTHERN AFRICA v PHANSON TSHUMA AND ORS HC1631/20</strong></p> <p> </p> <p>We refer to the above matter and your letter of the 28thinstant marked extremely urgent received in even date.</p> <p> </p> <p>Our clients confirm that they now have possession of the property. We thank you for advising yours accordingly.</p> <p> </p> <p>However, our clients are of the firm view that yours should pay the costs on an attorney and client scale as this suit could have been avoided. They do not wish to be put out of pocket.</p> <p> </p> <p>Yours faithfully</p> <p> </p> <p>Ncube and Partners</p> <p> </p> <p>In his opening submissions Mr <em>Ncube</em>said “I am at pains that we are here. The only issue outstanding between the parties is that of costs. I have instructions to insist on costs on an attorney and client scale.” I pointed out to Mr <em>Ncube</em>, that for this court to determine whether 1strespondent should be ordered to pay the costs of suit, he (Mr <em>Ncube</em>) has to argue both the issue of urgency and the merits of the matter. How else would the court decide whether 1strespondent had to be ordered to pay the costs, and worse still on an attorney and client scale without first deciding whether the application was meritorious in the first instance. </p> <p> </p> <p>Mr<em>Ncube</em>expressed surprise why he was being asked to argue his case.    He actually said it loud that he was “confused.” His confusion emanated from the fact that in his view, 1strespondent by letter quoted above had made a concession.    He read a whole <em>paragraph</em>from the letter, to buttress his point that a concession has been made by the 1strespondent. In fact, it appears that on the date of hearing, 1strespondent had actually moved out of the applicant’s house. I reminded Mr <em>Ncube</em>, that a concession by the respondent is one of those factors that the court takes into account in deciding the matter before it, but it is not decisive. The jurisprudence in this jurisdiction shows that a court is not bound by the concession made by a litigant. The court does not merely-rubber stamp the position of a litigant. The grant of an order is a judicial function. The court must be satisfied that the concession put forward by a litigant has been properly taken. Representations made by a litigant, important as they might be, form part of the mosaic that the court has to consider in the determination of the matter. Such a concession cannot be “the be all and end all.”  It is the court that grants an order, not a litigant. Once granted it becomes a court order, not a litigant’s order. A court cannot accede to an incompetent or unmeritorious order merely because the opposing litigant is consenting to it. Therefore, applicant could only justify its claim for costs by showing that this application is, first urgent, and if found to have been urgent, whether it was meritorious. To the extent that the applicant insisted on costs, it meant the dispute was not moot. In any event mootness is not an absolute bar to deciding an issue.<a href="//AF73B4A1-BADA-4AB7-85BB-E770D72A349C#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a></p> <p> </p> <p> In this case I adopted a holistic approach. What this approach entails is that for the sake of making savings on the time of the court by avoiding piece-meal treatment of the matter, the issue of urgency had to be argued together with the merits, but when the court retires to consider the matter it may dispose of the matter solely on urgencydespite that it was argued together with the merits. But if the court considers the matter was indeed urgent<em>,</em>it then proceeds to deal with the merits. Perhaps at the risk of being repetitious the main consideration here is to make savings on the court’s most precious resource - time - by avoiding unnecessary proliferation when the matter should have been argued all at once.</p> <p> </p> <p><strong>Urgency </strong></p> <p>This Court enjoys a discretion in urgent applications to authorise a departure from the ordinary procedures that are prescribed by its Rules. It is usually hesitant to dispense with its ordinary procedures, and when it does, the matter must be so urgent that ordinary procedures would not suffice.</p> <p> </p> <p>In the ordinary run of things, court cases must be heard strictly on a first come first serve basis. It is only in exceptional circumstances that a party should be allowed to jump the queue on the roll and have its matter heard on an urgent basis. The <em>onus </em>of showing that the matter is indeed urgent rests with the applicant. An urgent application amounts to an extraordinary remedy where a party seeks to gain an advantage over other litigants by jumping the queue. And have its matter given preference over other pending matters. This indulgence can only be granted by a judge after considering all the relevant factors and concluding that the matter is urgent and cannot wait. See <em>Kuvarega </em>v <em>Registrar General and Another</em>1998 (1) ZLR 188.</p> <p> </p> <p>The leading case within this jurisdiction in relation to urgency is <em>Kuvarega v Registrar General &amp; Anor</em>(<em>supra</em>), a judgment by CHATIKOBOJ. The learned judge had the following to state at p 193F-G.</p> <p> </p> <p>What constitutes urgency is not only the imminent arrival of the day of reckoning, a matter is urgent if, at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated rules. It necessarily follows that the certificate of urgency or supporting affidavit must always contain an explanation of the non-timeous action if there has been any delay.</p> <p> </p> <p> </p> <p>In assessing whether an application is urgent, this Court has in the past considered various factors, including, among others: being whether the urgency was self-created; the consequence of the relief not being granted and whether the relief would become irrelevant if it is not immediately granted. To pass the urgency test, applicant must show that there is an imminent danger to existing rights and the possibility of irreparable harm. See <em>General Transport &amp; Engineering (Pvt) Ltd &amp; Ors</em>v <em>Zimbank </em>1998 (2) ZLR 301.To pass the test, good cause must be shown for the applicant to dislodge other litigants who are in the queue. </p> <p>It is common cause that the 1strespondent had been in occupation of the premises known as Number 1, Solusi Adventist High School since 2004. He was requested to leave the school in 2018. He challenged the decision to leave the school, and his application was dismissed on the 7 May 2019. On the 1stJune 2020, he was transferred to Cowdray Park High School. The process of handing over the school was completed on the 10 September 2020.</p> <p> </p> <p>The fact that applicant has real rights of ownership of the property which rights are enforceable against the whole world, and that the real rights of ownership establish a clear right from a substantive area of law, cannot be a justification for urgency. Again, the fact that 1strespondent remains in occupation of the applicant’s house without applicant’s consent and that this is causing applicant unnecessary prejudice, cannot be a cause of urgency. That all the plans for the re-opening of the schools are hamstrung as there is an accommodation crisis created by the refusal of the 1strespondent to vacate the applicant’s house, again cannot be a justification for urgency. That schools are opening on the 28thSeptember 2020 leaving the applicant with less than seven (7) days (at the time of filing this application)to carry out all intended works, cannot be a justification for urgency. A matter does not assume urgency because a litigant has plans, the fulfilment of which require an immediate solution. A litigant must vindicate its rights timeously, not to wait for the proverbial eleventh hour to act, then come to court running with an urgent application.The existence of circumstances which may in their very nature be prejudicial to the applicant is not the only factor that a court has to take into account. To say applicant, apart from self-help, has no other efficacious remedy to protect its rights is not correct. It can issue a summons, court application, or whatever process, but not an urgent application in such a case. </p> <p> </p> <p>Applicant talks of a final interdict. I do not know where all this comes from. Cut to the bone, applicant seeks the eviction of the first respondent from premises known as Number 1, Solusi Adventist High School. There possible could well be circumstances that could warrant eviction proceedings to be commenced by way of an urgent application, whatever, the case, this is not one of them. Applicant must have known by 2018 that 1strespondent was refusing to vacate the school house. It must have known that a new headmaster would be found and he will require accommodation. It must have known that the only accommodation for the headmaster was the one occupied by the 1strespondent. It must have known that the house would require renovations before occupation by the headmaster. It should have acted there and then. Not to come to court approximately two years later and allege urgency. It waited and did not proceed to take lawful steps to take possession of the house and protect its right to the house and decided to come to court to launch an urgent application for eviction. Again, 1strespondent was on the 1stJune 2020, transferred to Cowdry Park High School, but he still remained in occupation of the school house. It should have been very clear to applicant that 1strespondent was only going to vacate that house after a fight. Then to wait until the 23rdSeptember 2020, to file an urgent application, seeking relief that should have been sought two years ago, or on the 1stJune 2020, cannot be the kind of urgency anticipated by the rules of court. In my view, the applicant has failed to motivate a case for urgency. This is a text-book case of self-created urgency. This is not the kind of urgency anticipated by the rules of court.</p> <p> </p> <p>When an applicant files an urgent application, the rules require, where such an applicant is legally represented, that a certificate of urgency be filed setting out why, in the opinion of the legal practitioner, the matter should be treated as urgent and not await set down in normal course. The certificate of urgency filed on behalf of the applicant does not show that the author applied his mind to the facts of this case. I wish to associate myself with the comments<a href="//AF73B4A1-BADA-4AB7-85BB-E770D72A349C#_ftn2" name="_ftnref2" title="" id="_ftnref2">[2]</a>made in the case of <em>General Transport &amp; Engineering P/L v Zimbank Corp P/L</em>1998 (2) ZLR 301 at 303A-Bwherein the learned judge stated:</p> <p> </p> <p>It is therefore an abuse for a lawyer to put his name to a certificate of urgency where he does not genuinely hold the situation to be urgent. Moreover, as in any situation where the genuineness of a belief is postulated, the good faith can be tested by the reasonableness or otherwise of the purported view. Thus, where a lawyer could not reasonably entertain the belief that he professes in the urgency of a matter he runs the risk of a judge concluding that he acted wrongfully if not dishonestly in giving his certificate of urgency.</p> <p> </p> <p>There is a duty incumbent upon a legal practitioner before he files a certificate that a matter is urgent to carefully examine the case that is put to him and to satisfy himself that indeed the matter is urgent. As was stated in <em>Dodhill P/L and Anor v Ministerof Lands and Anor</em>HH-40-2009there is no formula which determines what constitutes urgency, nevertheless a legal practitioner should be diligent in certifying the urgency of a matter. Sufficient thought ought to be given to the issue of urgency. An applicant who has his matter dealt with on an urgent basis steals a march on other litigants and it is a facility which should be accorded only to a few deserving cases. On the facts presented, this case did not merit such an accommodation.</p> <p> </p> <p>This application does not meet the requirements of urgency. It should not have been filed as an urgent application. Therefore, applicant is not entitled to an order of costs. </p> <p> </p> <p><strong>Disposition </strong></p> <p> </p> <p> I find that this application is not urgent. In the result, applicant’s prayer for costs is refused. </p> <p> </p> <p> </p> <p><em>Ncube and Partners,</em>applicants’ legal practitioners</p> <p><em>Mabundu and Ndlovu Law Chambers</em>, 1strespondent’s legal practitioners</p> <p><em>Civil Division of the Attorney-General’s’ Office, 2nd</em>and 3rdrespondent’s legal practitioners </p> <p> </p> <p><a href="//AF73B4A1-BADA-4AB7-85BB-E770D72A349C#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a><em>Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curiae) </em>2008 (2) SA 472 (CC) at para [29]</p> <p> </p> <p><a href="//AF73B4A1-BADA-4AB7-85BB-E770D72A349C#_ftnref2" name="_ftn2" title="" id="_ftn2">[2]</a>Sanangurai Gwarada versus Kevin Johnson and Mr Williamson and Bernard Choto HH 91-09.</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/2020/213/2020-zwbhc-213.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=35257">2020-zwbhc-213.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/2020/213/2020-zwbhc-213.pdf" type="application/pdf; length=175617">2020-zwbhc-213.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/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/education">EDUCATION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/education-act-chapter-2504">Education Act [Chapter 25:04</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/school-rules">School rules</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/urgent-application">Urgent Application</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/certificate-urgency">certificate of urgency</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/what-constitutes-urgency-urgent-application">what constitutes urgency (Urgent application)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/when-may-be-made-urgent-application">when may be made (Urgent application)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/s">S</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/spoliation">SPOLIATION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/order-spoliation">Order (SPOLIATION)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/possession-protected-spoliatory-remedies">Possession protected by spoliatory remedies</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/what-spoliation">What is (SPOLIATION)</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/bulawayo-high-court/2020/17">Nkala v PT Madiba N.O &amp; Anor (HB 17-20, HC 1522/14) [2020] ZWBHC 17 (06 February 2020);</a></div></div></div> Tue, 10 Nov 2020 13:05:14 +0000 Sandra 9897 at https://old.zimlii.org Minerals Identity (Private) Limited v The Commissioner-General of Police N.O & 7 Ors (HH 626-20, HC 4657/20 Ref Case HC 4276/20) [2020] ZWHHC 626 (07 October 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/626 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>MINERALS IDENTITY (PRIVATE) LIMITED</p> <p>versus</p> <p>THE COMMISSIONER –GENERAL OF POLICE N.O</p> <p>and</p> <p>OFFICER IN CHARGE SUPPORT UNIT MAKOSA</p> <p>INSP WELLINGTON NYAMUSHAMBA N.O</p> <p>and</p> <p>DEAN MUNYORO</p> <p>and</p> <p>DYNA MANDISEKA</p> <p>and</p> <p>MATHIAS MANDIWANZIRA</p> <p>and</p> <p>MR NDEMERA</p> <p>and</p> <p>MINISTER OF MINES AND MINING DEVELOPMENT</p> <p>and</p> <p>THE REGISTRAR OF THE HIGH COURT N.O</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAPI J</p> <p>HARARE, 1 September 2020 and 7 October, 2020</p> <p> </p> <p> </p> <p><strong>Urgent chamber application to amend spoliation application</strong></p> <p> </p> <p> </p> <p><em>G. Madzoka</em>, for the applicant</p> <p><em>K. Gama</em>, for 3rd-6th respondents</p> <p>No appearance for 1st, 2nd, 7th and 8th respondents</p> <p> </p> <p>            CHITAPI J: This application is predicated on case No. HC 4276/20 which is an urgent application for an order of spoliation pending before Phiri J involving the same parties. In the application before Phiri J, the applicant herein prays against the respondents therein for an order of spoliation wherein the applicant prays to the court to order the respondents to restore to the applicant undisturbed possession of a mining claim Koo Doo 10 situate in Mudzi District. The application was set down for hearing on 25 August, 2020. On that date the application was not determined. Phiri J issued an order as follows:</p> <p>            “IT IS ORDERED THAT:</p> <p>            Direction is hereby given in this Urgent Chamber Application that:</p> <ol> <li>The applicant lodge a chamber application to amend dates in terms of paragraph 3 page 2 of their answering affidavit on /or before the 26th August, 2020.</li> <li>The respondents are given leave to file opposing papers thereof within forty-eight (48) hours of receipt of the chamber application.</li> <li>Costs shall be costs in the cause.”</li> </ol> <p> </p> <p>The present urgent application is purportedly made in compliance with Phiri J’s order as quoted above. The applicant has filed this application and headed it “Urgent Chamber application for Amendment of Documents in urgent chamber application for a spoliation order in case no. HC 4276/20”.</p> <p>The applicant has brought the application in the form of a prayer for a provisional order which is couched as follows:</p> <p>“TERMS OF FINAL ORDER SOUGHT</p> <p>That you show cause to this Honourable Court why a final order should not be made on the following terms:</p> <ol> <li>The 8th respondent be and is hereby ordered to substitute Urgent chamber Application for a spoliation order documents under Case No. HC 4276/20 with those filed as attachment to the Urgent Chamber Application for Attachment of Documents.</li> </ol> <p>INTERIM RELIEF GRANTED</p> <p>Pending the return date of the provisional order, the application is granted the following relief.</p> <ol> <li>The hearing of case No. HC 4276/20 proceed as if amendments to documents filed therein have been amended.”</li> </ol> <p> </p> <p>It came as a surprise that I ended up presiding over a protracted hearing in an application that I had considered to be simple and straight forward. Due to the fact that the greater parts of arguments made by counsel were not assistive in the determination of the application I will determine the application by addressing the following issues:</p> <ol> <li>The interpretation of Phiri J order.</li> <li>Whether the order was complied with.</li> <li>Appropriate order to grant.</li> </ol> <p>In relation to Phiri J’s order, the learned judge noted that there was inconsistency on dates which were deposed to by the applicant in the answering affidavit. It is not necessary for me to resolve the inconsistency since Phiri J still has dispose of the main application case No. HC 4276/20 in which the inconsistences arose. The learned judge decided to give directives on way forward. The learned judge directed the applicant to <strong>“lodge a chamber application to amend dates in terms of paragraph 3 page 2 of their answering affidavit on or before the 26th August, 2020”</strong>. In effect, the learned judge faced with disagreements of the parties on how to deal with the inconsistencies aforesaid directed the filing of a chamber application to amend. What was to be amended was simply the dates and nothing else in the answering affidavit. A time limit for filing the application was ordered being 26 August, 2020. The applicant filed the current application as directed in the order of directions by Phiri J.</p> <p>To expound more on the interpretation of the order, the learned judge did not order a substitution of the application before him by way of an amendment. The order is simple. It simply should be interpreted as the learned judge saying to the parties- “applicant, the dates in paragraph 3 page 2 of your answering affidavit are inconsistent. I grant you leave to revisit your answering affidavit and amend the dates.” You should if advised to abide the directive, apply to amend the dates by way of chamber application.” The leaned judge also gave leave to the respondents if they wished, to file opposing affidavits to the application if advised. In the event the respondents were minded to oppose, they had to do so within 48hours. The 3rd to 6th respondents filed their opposing affidavits on 31 August, 2020 after they were served with the application on 27 August, 2020.</p> <p>The next issue is to consider is whether or not the applicant complied with the directive of Phiri J. In other words, is the application before me in the nature of the application ordered by Phiri J. The 3rd to 6th respondents counsel raised points <em>in limine</em> arguing firstly that the relief sought in the provisional order was incompetent, secondly that an affidavit cannot be amended and thirdly that the certificate of urgency is invalid.</p> <p>The third to sixth respondents averred that it was incompetent to file an urgent chamber application because Phiri J had directed that the applicant file a chamber application <em>simpliciter</em>. There is no merit in this objection. A chamber application and an urgent chamber application are both applications which are placed before the judge in chambers for determination. It was not necessary for the learned judge to specify whether or not the application be by way of urgent chamber application or ordinary application. The chamber application ordered by Phiri J to be filed was <em>sui generis</em>. The learned judge directed the filing of the application in the course of presiding over an urgent application. The order in terms of times lines for filing the application and its opposition was very short and intended to have the main application expeditiously or urgently dealt with. The applicant was on 25 August, 2020 ordered to file its application by the following day and the respondents to file opposing papers by no later than 48hours thereafter. The application was clearly an interlocutory one intended to deal with a matter which arose in the course of a hearing. Such applications would ordinarily be dealt with by the same judge dealing with the main urgent application. <em>In casu</em> however, the 3rd and 4th respondents took issue with Phiri J determining this application. They wrote a letter dated 27 August, 2020 wherein they <em>inter alia</em> objected to the applicant’s legal practitioner’s request to the Registrar to place the application before Phiri J. There was no basis to take issue with the applicants’ request. Phiri J is the one who had been seized with the matter that gave rise to the interlocutory application. As a matter of procedure an interlocutory matter arising in the course of proceedings is resolved by the same judge unless that judge for good reason decides not to deal with the interlocutory application.</p> <p>The other objection taken to Phiri J dealing with the applications was that the learned judge had before ordering the filing of the chamber application for amendment intimated to the parties during the stayed hearing that the corrections which the applicant intended to make were “well conceived” and “in order”. The objections to both the request by the applicant that the application be set down before Phiri J and that the learned judge should recuse himself were contained in letters dated 27 and 25 August, 2020 respectively, addressed to the Registrar and the second letter similarly addressed albeit for the attention of the learned judge. I do not propose to dwell on these letters nor with arguments presented to me in regard to the letters at the hearing <em>in casu.</em> I have already indicated that the interlocutory application whether or not the applicant’s legal practitioners had requested for its placement before Phiri J or not, remained an interlocutory in a matter being an application to be dealt with by Phiri J. If placed before another judge, that other judge would have referred it to Phiri J. However in this matter, Phiri J after receiving the letter requesting him to recuse himself directed the registrar to place the application before another judge in view of the protest letter. I note that the practice where recusal of the judge arises as an issue is normally informally dealt with by legal practitioners seeking the audience of judge in chambers and expressing their clients positions on recusal. In this regard I would for posterity quote the remarks of Turner J in <em>Mely</em> v <em>Friends Life Limited </em>[2017] EWHC 2415 (QB) wherein the learned judge stated-</p> <p>“Despite resolution, lawyers will also be aware that numerous judges today are fond of making informal remarks or asking questions in preliminary or interlocutory hearings about the possible merits or elements of a party’s case. This is often done in the hope that parties see sense and seriously (re) consider resolving their dispute out of court. It is unlikely that such remarks would provide sufficient grounds for a recusal application”</p> <p> </p> <p>            I have quoted the above case for posterity because Phiri J recused himself and there is therefore no issue arising on recusal. In commenting that the applicants were not wrong to request for placement of the application before Phiri J, it must be appreciated that the learned judge could have resolved the issue of the inconsistencies by calling the deponent in terms of order 33 r 246 (1) (a) to explain the anomaly. Rule 246 (1) (a) gives power to a judge dealing with both an ordinary chamber application or an urgent chamber application to “require the applicant or deponent of any affidavit or any person who may, in his (judges) opinion be able to assist in the resolution of the matter…” to appear before the judge and give such information on oath or otherwise as may be considered necessary to resolve the matter. There was scope for the learned judge to have invoked the rule. That said, needless to state that the direction by the judge that the inconsistences in the answering affidavit be dealt with by chamber application was within the learned judge’s direction to order. The point I make at the end of the day is that, the application would have been properly dealt with by Phiri J as it was an interlocutory application dealing with an issue which arose in the course of proceedings being heard by him.</p> <p>            The side comments aside, I must determine whether the application which has been placed before me complies with Phiri J’s order. In other words does the applicant apply to amend the answering affidavit, more specifically para 3 thereof as directed by the judge or the application falls outside the limited parameters and scope given in the learned judge’s order. The third to fourth respondents objected to the nature of the application and argued that it did not flow from Phiri J’s order. Mr <em>Gama</em> strenuously argued that the application was now in the form of an application for a <em>mandamus</em> as opposed to it being for an amendment of the answering affidavit. The third to sixth respondents in this regard have raised a valid point.</p> <p>            The applicants have joined the Registrar as eighth respondent in this application. They seek as a final relief that the Registrar should substitute the application pending before Phiri J HC 4276/20 with those filed in this application. Clearly such an order is incompetent. The obvious question that arises is, what happens to the original papers in regard to which Phiri J made an order that the answering affidavit be reconciled on dates by way of an application for an amendment of that particular affidavit. The interim relief sought is for an order that the hearing of the application before Phiri J should proceed on the documents which pertain to this application. Both the final and interim orders sought do not find a basis in the interlocutory order by Phiri J which was an order to the applicant to apply by chamber application to amend a specified paragraph of the answering affidavit in the main application.</p> <p>            If one carefully interrogates Phiri J’s order, the learned judge did not authorize a substitution of the papers filed of record in the application HC 4276/20 pending before him. The learned judge authorized an amendment to the answering affidavit. It is not even clear as to why the applicant prays for a provisional order. Related to this, I must take note that the bringing of the application by way of urgent application did not violate Phiri J’s order. After all the main application before the learned judge was an urgent application. Any interlocutory application arising would have to be dealt with as a urgent matter. The third to sixth respondents’ objections in this regard are without merit. That said, the applicant would have been within the terms of Phiri J’s order had it simply asked the deponent to the answering affidavit to depose to an affidavit explaining the inconsistences of dates cited in para 3 of the answering affidavit. The draft order would simply have been to pray to the judge to grant the amendments to para 3 of the answering affidavit and the main matter proceeds to be finalized.</p> <p>            I am in no doubt that the applicant was not properly advised on the purport, meaning or sense of the interlocutory order of Phiri J. The learned judge was faced with an answering affidavit with contradictory dates. The learned directed that a chamber application be filed by the applicants to explain and amend the anomalies. The learned judge would then determine the chamber application before disposing of the main application. There was no scope for the filing of an application which asks for a provisional order. An urgent application can be made for a final order. The circumstances of each case will determine whether the applicant is entitled to a final or a provisional order.</p> <p>            Another objection made by Mr <em>Gama</em> was that an affidavit cannot be amended. I do not agree. Mr <em>Gama</em> relied on the judgment of Mullins J in <em>Nedbank Ltd</em> v <em>Hoare</em> [1988] 3 All SA 193 CE) in which the learned judge quoted r 28 (1) of the South African rules of court which provides that-</p> <p>            “Any party deserving to amend any pleading or document other than an affidavit, filed in connection with any proceeding may give notice to all other parties to the proceedings of his intention to amend.”</p> <p> </p> <p>            There is no similar provision in the Zimbabwe High Court Civil Rules, 1971. Even then the quoted South African Court rule does not state that an affidavit cannot be amended. The rule speaks to pleadings being capable of amendment on notice to other litigants by the litigant seeking to amend. It is trite that in application proceedings, the affidavits take the place of both pleadings and evidence. Affidavits constitute evidence on oath. It follows that inasmuch as a witness testifying in court on oath can revisit his or her evidence to correct him or herself, errors made in affidavits can also be corrected. Such correction would have to be by way of affidavit. Rule 235 of the High Court Rules provides for filing of further affidavits after the answering affidavit, with leave of the court or judge. This procedure provides a window for the filing of further affidavits which may <em>inter-alia</em> correct errors in the founding, opposing and answering affidavits. Mr <em>Gama</em> accordingly did not properly capture the law on revisiting or correcting affidavits. It is noted as well that Phiri J by his order allowed for such a course. The objection thereof could only be taken up on appeal.</p> <p>            I do not find it necessary to deal with the third to sixth respondents’ objection to the validity of the certificate of urgency which accompanied this application. The objection does not take the matter any further in view of my determination that this application as presented did not flow from the interlocutory order of Phiri J which remains extant and not complied with. There is equally no reason to get into the merits of this application since it is not in the nature of what Phir j ordered it be done.</p> <p>            The last issue concerns costs. The third to sixth respondents pray for costs on the higher scale. A party who claims costs on the higher scale must justify the justiciability for such level of award. The third to sixth respondents have not justified such a scale of costs except to simply pray for the dismissal of the application with costs on the higher scale. The party who prays for such  level of costs must set out facts which are out of the ordinary to justify that a higher level as opposed to the ordinary scale level of costs is justified. In the absence of such facts being alleged and proved, the court does not just grant a scale of costs which is punitive. Whilst costs are in the discretion of the court, any discretion can only be judiciously exercised in the light of established and proven facts which would then inform and support the decision reached. In the absence of the third to sixth respondents justifying the punitive level prayed for, costs must be granted on the ordinary scale and will follow the result.</p> <p>            It is consequently ordered as follows:</p> <p>            1.         The application be and is hereby struck off the roll with costs.</p> <p> </p> <p> </p> <p><em>Chinawa Law Chambers</em>, applicant’s legal Practitioners</p> <p><em>Gama and Partners</em>, 3rd – 6th respondents’ legal practitioners</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/harare-high-court/2020/626/2020-zwhhc-626.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26795">2020-zwhhc-626.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/626/2020-zwhhc-626.pdf" type="application/pdf; length=177550">2020-zwhhc-626.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/order-practice-and-procedure">Order (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interlocutory-order-0">interlocutory order</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/pleadings">Pleadings</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/amendment-pleadings">amendment of pleadings</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/s">S</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/spoliation">SPOLIATION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/what-spoliation">What is (SPOLIATION)</a></li></ul></span> Mon, 19 Oct 2020 12:34:49 +0000 Sandra 9875 at https://old.zimlii.org Fernaby Investments (Pvt) Ltd & 2 Ors v Homeland Real Estate & 2 Ors (HH 627-20, HC 11493/18) [2020] ZWHHC 627 (07 October 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/627 <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> </p> <p>FERNABY INVESTMENTS (PVT) LTD</p> <p>and</p> <p>QUECOM ENGINEERING (PVT) LTD</p> <p>and</p> <p>DENNIS WILSON NGORIMA</p> <p>versus</p> <p>STANDARD CHARTERED BANK LTD</p> <p>and</p> <p>HOMELAND REAL ESTATE</p> <p>and</p> <p>DOVES FUNERAL ASSURANCE (PVT) LTD</p> <p>and</p> <p>THE SHERIFF</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAPI J</p> <p>HARARE, 24 July 2019, 7 September 2020 &amp; 7 October 2020</p> <p> </p> <p> </p> <p><strong>Opposed Court Application in terms of Rule 339 (8) of High Court Rules, 1971</strong></p> <p> </p> <p><em>P Chakanyuka</em>, for the applicants</p> <p><em>G Ndlovu</em>, for the 1st respondent</p> <p><em>L.T Musekiwa</em>, for the 3rd respondent</p> <p> </p> <p> </p> <p>            CHITAPI J: The parties in this application are as shown in the case heading. This application concerns a dispute on the attachment and sale in execution of a property situate in Harare called remainder of Lot 8 of Brooke Estate measuring 7258 square metres and held under deed of transfer No. 4935/2004 made in favour of the first applicant, Fernaby Investments (Pvt) Ltd. The brief background to the dispute is that the second applicant Quecom Engineering (Pvt) Ltd entered into a loan agreement with the first respondent, Standard Chartered Bank Ltd, the latter extending a revolving credit facility to the former with a limit of $800 000.00. The first applicant, third applicant and third applicant’s wife bound themselves as surety and co-principal debtors in favour of the first respondent for the due performance by the second applicant of its obligations in terms of the loan facility aforesaid. It was accepted that the second applicant accessed the loan facility by way of disbursements to it of</p> <p>$800 000.00. The second applicant incurred interest of $63 431.80 and bank charges of $24 656.33. the second applicant failed to meet its obligations as to repayment in that after making certain repayments totalling 4644 932.09, the sum of $241 056 remained owing. The first respondent sued the applicants under case No. HC 5759/14 for the balance owing. The case was determined in favour of the first respondent for payment of the sum of $292 272.12 and ancillary relief to be paid by the applicants herein jointly and severally one paying the other being absolved. Consequent on the judgment, the first respondent caused the issue of a writ of execution against the applicants’ property held as surety as it had been declared to be executable. The attachment led to the immovable property being listed for sale by the fourth respondent using the agency of the second respondent. After the sale a series of objections to confirmation of the sale were filed and dealt with by the fourth respondent under his file reference SS 63/15.</p> <p>            This application is brought in terms of r 359 (8) of the High Court Rules. Where such an application has been made, the court’s powers in relation thereto are set out in r 359 (9). It is convenient to set out what subrules (8) and (9) provide for</p> <p>“8        Any person who is aggrieved by the Sheriff’s decision in terms of subrule (7) may; within one month after he was notified of it; apply to the court by way of court</p> <p>            application to have the decision set aside.</p> <p> 9         In an application in terms of sub rule (8), the court may confirm, vary or set aside the Sheriff’s decision or make such other order as the court considers appropriate in the circumstances.”</p> <p> </p> <p>              In reference to subrule (7) referred to in sub-rule (8), the former rule provides that where a party who has in interest in a sale has filed a request for the setting aside of a sale in terms of subrule (1) on grounds set out therein and the request is opposed, the Sheriff, in this case, the fourth respondent is required to conduct a hearing at which parties or their legal practitioners shall be present. Following the hearing, the Sheriff shall confirm the sale or cancel the sale and make such order as he considers appropriate in the circumstances of the case.</p> <p>            The view I take in relation to granting the Sheriff wide powers to give an order “he considers appropriate in the circumstances” is that the unlimited powers are open to abuse and a potential for unending litigation. The scope of what the Sheriff must consider as appropriate has no parameters. In <em>casu</em>, it shall be seen that the problem has arisen partly because of the open ended powers given to the Sheriff in terms of subrule (7). That said the application in terms of subrule (8) must be filed within one month of the decision of the Sheriff made in terms of subrule (7).</p> <p>            The third respondent is cited in this application as the purchaser of the property inissue whose purchase is under challenged by the first applicant. The Sheriff dismissed the applicants</p> <p>objection to the sale hence this application. The applicants seek the following order as set out in the draft order:</p> <p>It is be and hereby ordered that:</p> <ol> <li>The sale of the 1st applicant’s immovable property namely: certain piece of land in the district of Salisbury called remainder of Lot 8 of Brooke Estate measuring 7258 square metres held under Deed of Transfer No. 4935/2004 Harare (sic) on the 6th September, 2018 by public auction be and is hereby set aside.</li> <li>The sale of 1st applicant’s immovable property be referred for sale by private treaty. In the event that any of the respondents opposes this matter, such respondent be ordered to pay the applicant’s costs of suit on a legal practitioner client scale.”</li> </ol> <p>       The background to the decision under challenge is a set out herein in brief. Following on the judgment in HC 5759/14 which led to the attachment of the property in issue herein by the fourth respondent, there were negotiations, promises and undertakings made between the first respondent and applicant to settle the matter and in particular in regard to having the property sold by private treaty. The property was initially sold by the fourth respondent for USD$150 000 on 12 January, 2017. This was after attempts at selling the property privately failed and the debt owing was not fully paid some amount still remains owing.</p> <p>       Consequent on the sale for USD$150 000.00 an objection to confirmation of that sale was filed by the applicants. The purpose of the objection was that the price of USD$150 000.00 was unreasonably low. The sale was not confirmed by consent. The judgment creditor, first respondent herein also objected to the confirmation of the sale. The fourth respondent in his ruling dated 13 March, 2017 and by consent of the judgment creditor gave the applicants 4 months to 30 June, 2018 to find a buyer who could offer a bid of more than the USD$150 000.00. The sale was therefore not confirmed. The first respondent then indicated that in the event of the applicants failing to find a better bid, the sale for USD$150 000.00 to the highest auction bidders would be confirmed.</p> <p>       It is not clear from the papers nor indeed from the first respondent’s record SS63/15 which l perused as to what happened following the expiry of the window given to the applicants to find another buyer with a better offer. Suffice however that the property was put back on auction following a court order granted by ZHOU J on 27 September, 2017 consequent on an application to set aside the same sale which had attracted the offer of USD$150 000.00 which parties agreed to be unreasonably low. In his order, ZHOU J granted the applicant a period of 6 months to find another purchaser willing to pay an amount above USD$150 000.00. The learned judge further ordered that failing the sale of the property in terms of his order, the property would be referred to public auction at the next sale conducted by the fourth respondent.</p> <p>       The applicants it would appear failed to find a buyer with a better offer than USD$150 000.00. The property was then publicly auctioned consequent on the order by Zhou J. The third respondent was declared the highest bidder at the auction for the sum of USD$260 000.00 on 6 September, 2018. The applicants pursuant to the provisions of r 359 (1) of the High Court Rules requested the fourth respondent to set aside the sale on the ground that the price realised was unreasonably low. The fourth respondent in a ruling dated 29 November, 2018 dismissed the request and confirmed the sale. It is the dismissal as aforesaid which gave rise to this application.</p> <p>            In the course of preparing judgment, I had cause to invite the parties to address a legal issue on firstly, whether the application before me was in the nature of a review of the fourth respondent’s decision. Secondly, I invited the parties to address me on whether or not it was open to the fourth respondent to depart from the provisions of r 359 and allow for an oral hearing without parties filing formal pleadings referred to in the rule. The issue which arose upon a reading of the judgment is that the hearing by the fourth respondent appeared not to have been conducted in accordance with r 359. The point was raised by applicant’s counsel at the hearing before the fourth respondent as a point <em>in limine</em>.  The point <em>in limine</em> was dismissed by the fourth respondent who ruled that it was not mandatory for a party who objects to confirmation of the sale to file a notice of opposition. In this respect, Mr<em> Ndlovu</em> for the first respondent submitted that he had not dealt with the objection before the fourth respondent in his papers. He however first queried the competency of this court <em>mero motu</em> raising the issue of the propriety of the hearing conducted by the fourth respondent. Counsel did not however pursue the point after it was brought to his notice that the issue was a preliminary issue raised by the applicants’ counsel at the hearing before the fourth respondent who dismissed the point.</p> <p>            It is important to unpack the provisions of r 359 (1) to 359 (7) which are the rules that set out the grounds for setting aside an auction sale which an interested party should rely upon and the procedure to be followed by the interested party in filing the application, by any objector to the application and by the Sheriff (fourth respondent). I must at the outset state that in terms of Order 1 r 4C of the High Court Rules, only the court or judge may direct, authorize or condone a departure from any provisions of the court rules in the interests of justice. It follows that the fourth respondent as is indeed the case with any other court official who is authorized to perform an act in terms of the rules has to discharge that function in strict compliance with the rule(s) which provide for such power. only a judge or court and no one else can derogate from the rules in terms of r 4C. A deviation from the rule unless there is provision for that official to use a discretion or depart from the rules renders the act irregular and the proceedings irregularly conducted and decision reached thereon a nullity.</p> <p>            The provisions of r 359 (1) to (7) provide as follows</p> <p>            “<strong>359. Confirmation or setting aside sale</strong></p> <p>(1) Subject to this rule, any person who has an interest in a sale in terms of this Order may request the sheriff to set it aside on the ground that – </p> <p>(a) the sale was improperly conducted; or</p> <p>(b) the property was sold for an unreasonably low price,</p> <p>or on any other good ground.</p> <p>(2) A request in terms of subrule (1) shall be in writing and lodged with the sheriff within 15 days from the date on which the highest bidder was declared to be the purchaser in terms of rule 356 or the date of the sale in terms of rule 358, as the case may be:</p> <p>Provided that the sheriff may accept a request made after that 15-day period but before the sale is confirmed, if he is satisfied that there is good cause for the request being made late.</p> <p>(3) A request in terms of subrule (1) shall – </p> <p>(a) set out the grounds on which, according to the person making the request, the sale concerned should be set aside; and</p> <p>(b) be supported by one or more affidavits setting out any facts relied on by the person making the request, and copies of the request shall be served without delay on all other interested parties.</p> <p>(4) A person on whom a copy of a request has been served in terms of subrule (3) may, within 10 days after it was served on him, lodge with the sheriff written notice that he opposes the setting aside of the sale concerned.</p> <p>(5) A notice in terms of subrule (4) shall – </p> <p>(a) set out grounds on which the person who gives it opposes the setting aside of the sale concerned; and</p> <p>(b) be supported by one or more affidavits setting out any facts relied on by the person who gives it, and copies of the notice shall be served without delay on the person making the request and on such other persons as the sheriff may direct.</p> <p>(6) Within 10 days after a copy of a notice has been served on him in terms of subrule (5), the person making the request may lodge with the sheriff a written reply and, if he does so, shall without delay serve a copy of his reply, together with any supporting documents, on the person opposing the request and on such other persons as the sheriff may direct.</p> <p>(7) On receipt of a request in terms of subrule (1) and any opposing or replying papers filed in terms of this rule, the sheriff shall advise the parties when he will hear them and, after giving them or their legal representatives, if any, an opportunity to make their submissions, he shall either – </p> <p>(a) confirm the sale; or</p> <p>(b) cancel the sale and make such order as he considers appropriate in the circumstances,</p> <p>and shall without delay notify the parties in writing of his decision.”</p> <p> </p> <p>            It clears from the rules that the requites to set aside a sale is based on unlimited grounds in that apart from relying on the grounds of the sale having been improperly conducted and the sale having attracted an unreasonably low price, the fourth respondent can set aside the sale on “any other good ground”. The rule does not define the phrase “any other ground”. It would be futile to define what amounts to any other good ground. The circumstances of a particular case will determine if grounds alleged in the particular case, can be held to be good-grounds.</p> <p>            In regards to procedure, subrule (2) of r 359 is very clear that the request shall be in writing and lodged with the Sheriff within 15 days from the date that the highest bidder was declared purchaser. The Sheriff has a discretion to extent the 15-day period for good cause. Subrule (3) speaks to the peremptory matters which the request should contain. The request should contain the grounds for seeking the setting aside and should be supported by affidavit (s) deposed to by the person making the request.</p> <p>            Subrule (4) appears to be the problematic one going by the decision which the fourth respondent reached on the procedural issue on the manner of opposing the request for setting aside the sale. The subrule does nothing more than to give the interested person the opportunity when such person decides to oppose the requests to indicate so by lodging a written notice to that effect. If such person is minded to oppose, then the person must follow the provisions of subrule (5). The notice to oppose shall just as is required of the person making a request to set aside the sale indicate grounds of opposition and accompany them with affidavit(s) to support the grounds given in opposition. The written notice should be lodged with the Sheriff within 10 days of receipt of the request for setting aside. The word “may” in subrule (3) does not give a discretion to a person who wishes to oppose the order to just appear before the Sheriff and participate in the hearing through oral submission in opposition. The subrule simply gives the person served with the request for setting aside the sale the option to oppose the request. Where the person chooses to do so, then a written opposition which complies with subrule (4) as read with subrule (5) must be filed before the person opposing can be properly before the Sheriff and to participate in the hearing convened by Sheriff in terms of subrule (7). The easiest way for the fourth respondent to understand the purport of subrule (4) is to simply ask oneself the question, “if a person who opposed can simply walk into the hearing and is allowed to participate orally, then why provide for subrule (5)?” Further, subrule (6) provides for the filing of an answering reply. If a person who just walks into the hearing can be given audience without having filed any opposing, the whole purpose of providing for the procedure in r 359 (1) to (7) is defeated.</p> <p>            <em>In casu</em>, the interested parties who appeared at the hearing under challenge in this application by counsel did not file any opposing papers. They submitted that the rules did not require as mandatory the filing of written notices in opposition. The fourth respondent allowed the respondent’s counsel to participate despite the valid objection submitted by the applicants’ counsel.  The respondents counsel and the fourth respondent were wrong in their interpretation of subr (4) as already demonstrated. The fourth respondent conduced a hearing which was procedurally foreign to and not provided for in the rules. The respondents had no right of audience at the hearing before the fourth respondent. At best, the respondents could have asked for extension of time to prepare and file written notices and opposing affidavits as provided for in the rules. The application was therefore to all intents and purposes not opposed. The application ought to have been dealt with as unopposed. The fourth respondent had no cause to convene the hearing in the absence of the filing of opposing notices because in terms of subr (7), the fourth respondent only sets down the request for set down for hearing if there is filed the opposing notices. The parties can only make submissions on what appears in their papers filed of record. Neither applicants or respondents are permitted to orally present their cases or defences at first instance at the hearing.</p> <p>            The hearing by the fourth respondent was decidedly a nullity. In the case of <em>Maparanyanga</em> v <em>Sheriff of the High Court &amp; Ors</em> SC 132/02, the Supreme Court emphasized the need for officers involved in judicial sales to strictly observe the rules which define how to discharge their duties and responsibilities. It is stated by Gwaunza AJA (as she then was) at p 20 of the cyclostyled judgment as follows:</p> <p>“The court is concerned with interpreting the law and dispending justice. That being the case, and in relation to the subject of this case, a situation resulting in the system of judicial sales being brought into disrepute would clearly not be desirable. The purpose of sales in execution is, in law, quite clear. The common law duties of sales in execution is, in law, quite clear. The common law duties of officers involved in judicial sales are also trite. The rules of the court and certain administrative measures, like the standard contract of sale <em>in casu</em>, are formulated with the object of ensuring that the purpose of such sales is achieved. In the case where the common law, the rules of the Court and the administrative requirements of an office responsible for enforcing judgments are flouted, the Court would be failing in its duty if it condoned such disregard of law and rules. It would be doing exactly that were it to allow the sale in question to stand.  </p> <p> </p> <p>It is crucial, for the proper performance of their work, that officers of the law comply with, rather than pay lip service to, the procedures designed to guide them in the performance of their duties. Needless to say, strict adherence to such rules and procedures would enhance public confidence in the system of judicial sales.”  </p> <p> </p> <p>            In <em>casu,</em> the fourth respondent did not follow procedures clearly spelt out in r 359 (1) (7) and the <em>dicta</em> above quoted applies with equal force <em>in casu</em>. </p> <p>            This court has determination that an application such as <em>in casu</em> is in the nature of a review of the fourth respondent’s decision see <em>Nyadindu &amp; Anor</em> v <em>Barclays Bank of Zimbabwe Limited &amp; 3 Ors </em>HH 135/16 <em>per</em> Dube J; <em>Fortune Manyimo </em>v <em>Sheriff of High Court Zimbabwe N.O &amp; Ors </em>HH 316/16; <em>Chiutsi </em>v <em>The Sheriff of the High Court &amp; Ors </em>HH 604/18.</p> <p>            Having determined that the application <em>in casu</em> is in the nature of a review of the fourth respondent’s decision, the question then is, whether or not having determined that the proceedings conducted by the fourth respondent were a nullity, there is anything to review. A nullity is as good as it is not there. Nothing arises from or sits on a nullity. See <em>Mcfoy </em>v <em>United Africa Co Ltd </em>(1961) 3 All ER 1169 in which it was held that if an act is void, then it is in law a nullity and incurably bad such that it is automatically null and void. This case has been followed in this jurisdiction in numerous decisions of all inferior courts right through to the Supreme Court See <em>Chenga</em> v <em>Chakadaya and Ors</em> SC 232/10.</p> <p>            None of counsels for the respondents who appeared in this application supported the procedure followed by the fourth respondent. There was no doubt a gross irregularity in the proceedings before the fourth respondent. The proceedings are a nullity. The court cannot sanitize them. The fourth respondent ought to have treated the applicants’ request to set aside the sale as unopposed and granted a judgment based on the applicants’ request only.</p> <p>            It is unfortunate that this matter continues to be unresolved. The latest setback arises from the failure by the fourth respondent to carry out his duties in terms of the rules. The issue of the sale in execution needs to be managed by the court or otherwise judicial sales will lose credence and where they are held, intending participating buyers may shun such sales on the basis that the sale will remain indefinitely unconcluded because objections take forever to be dealt with and concluded by the objection procedures.</p> <p>            The objection before the fourth respondent as already noted was not opposed. In the application before me, rule 359 (9) provides that the court may confirm, vary or set aside the sheriff’s decision or make any order considered appropriate in the circumstances of the case. I propose to set aside the decision of the fourth respondent and issue an appropriate order given the circumstances of this case. The circumstances of note in this case are that the conclusion of the judicial sale in execution has been outstanding for too long a period. No less than three auction sales have been held. The sale remains pending as none of the previous sales have seen the light of day. The third respondent opposed this application. I take it that it remains interested in taking transfer of the property. The order I make will take into consideration the fact that the fourth respondent had through the first respondent’s legal practitioners as conveyancers tendered transfer of the property to the third respondent. I will suspend the tender of transfer on condition that the applicants should dispose of the property by private treaty for a price which is more than USD$260 000.00.  Should the applicants fail to dispose of the property for more than the USD$260 000.00 within a reasonable period of 3 months, the transfer to the third respondent shall be proceeded with as ordered by the fourth respondent. In view of the indulgencies given and the disposal of the case having been based on a technicality arising from the mistake of the fourth respondent, there will be no order of costs made.</p> <p>            The application is disposed of by the following order</p> <ol> <li>The ruling by the fourth respondent confirming the sale of the applicants’ immovable property, viz, remainder of Lot 8 of Brooke Estate held under Deed of Transfer No. 4935/2004 to the third respondent is hereby set aside.</li> </ol> <p>2.         The applicants are granted 3 months from the date of this order to either satisfy the judgment by payment to the first respondent of the amount now due in terms of the   judgment and costs in case No. HC 5759/14 or to find another purchaser willing to pay more than USD$260 000.00 and to have concluded the sale agreement and paid within the said 3 months the purchase price to the fourth respondent who shall uplift the attachment on payment.</p> <p>3.         Failing the options given in para (2) above, the sale of the property to the third respondent shall be deemed confirmed and transfer to the third respondent shall proceed to be finalized for the purchase price of USD$260 000.00 tendered by the fourth respondent.</p> <p>            4.         There be no order as to costs.</p> <p> </p> <p><em>Chakanyuka &amp; Associates</em>, applicants’ legal practitioners</p> <p><em>Gill, Godlonton and Gerrans</em>, 1st respondent’s legal practitioners</p> <p><em>Musekiwa and Associates</em>, 3rd respondent’s legal Practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/627/2020-zwhhc-627.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=29476">2020-zwhhc-627.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/627/2020-zwhhc-627.pdf" type="application/pdf; length=152393">2020-zwhhc-627.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/execution-practice-and-procedure">Execution (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/s">S</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/suretyship">SURETYSHIP</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/surety-%E2%80%93-liability">Surety – liability of</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/action-brought-against-surety-after-judgment-taken-against-principal-debtor">action brought against surety after judgment taken against principal debtor</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/2003/69">Maparanyanga v Sheriff of the High Court and Others (16/02) ((16/02)) [2003] ZWSC 69 (17 March 2003);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2016/135">Nyadinu &amp; Another v Barclays Bank Zimbabwe Ltd. &amp; Others (HH 135-16, HC 1256/15) [2016] ZWHHC 135 (17 February 2016);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2018/604">Chiutsi v The Sheriff of the High Court &amp; 3 Others; Rodgers v Mc Dudd Madenga N.O &amp; Another (HH 604-18, HC 11349/17; HC 2650/18) [2018] ZWHHC 604 (03 October 2018);</a></div></div></div> Mon, 19 Oct 2020 12:04:31 +0000 Sandra 9874 at https://old.zimlii.org Oozing Mining Syndicate v Tamuzi Mining Syndicate & Anor (HH 609-20, HC4996/20) [2020] ZWHHC 609 (25 September 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/609 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>OOZING MINING SYNDICATE</p> <p>versus</p> <p>TAMUZI MINING SYNDICATE</p> <p>and</p> <p>THE MINING COMMISSIONER N.O.</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAFUSIRE J</p> <p>HARARE, 21 &amp; 25 September 2020</p> <p> </p> <p><strong>Urgent chamber application</strong></p> <p> </p> <p>Date of <em>ex tempore</em> ruling: 21 September 2020</p> <p>Date of written judgment: 25 September 2020</p> <p> </p> <p>Mr<em> T.S. Mujungwa</em>, with him, Mr <em>S. Machingauta</em>, for the applicant</p> <p>Mr<em> K. Maeresera</em><em>, </em>for the first respondent</p> <p>No appearance for second respondent</p> <p>MAFUSIRE J</p> <p>[1]        This is an urgent chamber application for interim relief. The applicant and the first respondent are mining syndicates. They are fighting over the rights of ownership, control and the enjoyment of a certain mine called Chigwell 56 (“<strong><em>Chigwell</em></strong>”), located in the Chegutu area of Zimbabwe. The applicant, Oozing Mining Syndicate, applies on an urgent basis for two remedies, one in the main, and the other as ancillary relief. The main relief is a stay of execution of a certain order of this court in HC 279/20, dated 2 September 2020. The ancillary remedy is for the restoration of occupation of Chigwell to the applicant. Verbatim, the relevant portion of the draft order reads:</p> <p>“<strong>TERMS OF THE INTERIM RELIEF GRANTED</strong></p> <p>Pending the return date in this matter, the following interim relief be and is hereby granted: -</p> <p>a)         The order issued under HC 2791/20 be and is hereby stayed pending the finalisation of the application for rescission filed under HC 4976/20.</p> <p>b)         The respondents be and are hereby ordered to restore occupation of mining location Chigwell 56 of Chigwell Farm, Chegutu to the applicant upon service of this order until HC 4976/20 is finalised.</p> <p>c)         The respondents to bear costs of suit of this application.”</p> <p>[2]        The order of this court on 2 September 2020 aforesaid, per PHIRI J, was issued at the instance of the first respondent herein, Tamuzi Mining Syndicate, which was the applicant therein. It was granted in default of appearance by the applicant, which was the respondent therein. The court issued two declaratory orders—</p> <ul> <li>cancelling the applicant’s mining licence (in respect of Chigwell), and</li> </ul> <p> </p> <ul> <li>declaring the first respondent the rightful owner of Chigwell.</li> </ul> <p> </p> <p>[3]        Verbatim the operative part of that order reads:</p> <p>“<strong>WHEREUPON</strong>, after reading documents filed of record, and hearing Counsel</p> <p><strong>IT IS ORDERED THAT </strong></p> <p>1.         1st Respondent’s Mining Licence Number 15965 be and is hereby cancelled.</p> <p>2.         Applicant be and is hereby declared the rightful owner of Chigwell 56.”</p> <p> </p> <p>[3]        In these proceedings, it is that order of 2 September 2020 the execution of which the applicant seeks a stay. It is said the stay is sought pending the determination of the application for rescission of judgment that the applicant has launched simultaneously with these proceedings. The grounds for relief alleged by the applicant in these proceedings are these. Until about May 2014 the first respondent was the registered owner of the mining rights over Chigwell. However, those rights were forfeited, following due process. Subsequently, the applicant successfully applied for the registration of the same rights in its name. But the first respondent, without a proper service of process, and surreptitiously, obtained those declaratory orders aforesaid. Afterwards, on the strength of that court order, and by means of self-help, the first respondent has seized control of the mining location and placed security guards to prevent the applicant from accessing the mine. Thus, the applicant concludes, it has “essentially” been evicted by the first respondent from the mine. The first respondent is now busy helping itself to some 30 tonnes of gold ore which belong to the applicant and which were awaiting milling and smelting. It is on that basis that the applicant seeks urgent relief as set out above.</p> <p>[4]        The first respondent opposes the application. It says the relief being sought is incompetent. It says the applicant should have proceeded by way of a court application for an interdict. On the merits, the first respondent denies the applicant’s allegations of spoliation and maintains that the applicant is still in occupation of the mine even despite the applicant’s knowledge that it no longer has any rights over it. The first respondent accuses the applicant’s deponent to the founding affidavit, one Margret Hlanganiso (“<strong><em>Margret</em></strong>”), of fraudulent concealment of material facts allegedly relating to the fraudulent manner in which she purported to acquire the mining rights over Chigwell, in the name of the applicant. The first respondent’s deponent to the opposing affidavit, one Jonathan Munemo (“<strong><em>Jonathan</em></strong>”), says he and others, including Margret’s late husband, and then subsequently herself, got together as a syndicate in the form of the first respondent to run Chigwell. The first respondent was the registered owner of the mining rights. Margret was responsible for the payment of the inspection licences. At some stage, the second respondent wrongfully ordered the forfeiture of the first respondent’s mining licence. Margret did not disclose this development to the rest of the members of the first respondent. Instead, she went on to apply for the same mining rights, in the name of the applicant. Jonathan says there is a criminal case pending at the police against Margret over her conduct.</p> <p>[5]        On the first day of argument I queried how the applicant could possibly seek a stay of execution of a mere declaratory order. Mr <em>Mujungwa</em>, for the applicant, readily conceded the irregularity, admitting that the main relief was incompetent. He abandoned it and amended the draft order to make the ancillary relief the main and sole relief sought. The interim relief sought in the amended draft order now read as follows:</p> <p>“Pending the return date in this matter, the following interim relief be and is hereby granted:-</p> <p>a)         The respondents be and are hereby ordered to restore occupation of mining location Chigwell 56 of Chigwell Farm, Chegutu to the applicant upon service of this order until matter under HC 4976/20 is finalised.</p> <p>b)         The respondents to bear costs of suit of this application.”</p> <p>[6]        The final order sought on the return date was couched as follows:</p> <p>“a)       The respondents be and are hereby ordered not to evict the applicant from mining location Chigwell 56 of Chigwell Farm, Chegutu without a valid court order for eviction through self-help (<em>sic</em>).</p> <p>b)         The respondents shall pay costs of suit.”</p> <p>[7]        I dismissed the application with costs soon after argument. It was incompetent. An order of spoliation is a final order. It is not interlocutory in nature: see <em>Mankowitz </em>v <em>Loewenthal</em> 1982 (3) SA 758, at 767F – H, and SILBERBERG &amp; SCHOEMAN’S <em>The Law of Property</em>, 5th ed., para 13.2.1.3 at p 292. So, the draft order, as amended, was defective in elementary respects.</p> <p>[8]        That the applicant’s draft order, as amended, was defective in elementary respects was not the only problem. In fact, it was hardly the main problem. In appropriate circumstances a draft order can always be amended or corrected. The major problem with the application, and which was the main reason for my dismissing it, was that spoliation was not proved. With spoliation, the applicant has to prove the two basic elements, namely, peaceful and undisturbed possession of the object, and the illicit deprivation of that possession by the respondent. The standard of proof is higher than that required for a temporary interdict. The standard of proof should be on a balance of probabilities. For an interim interdict, all that is required to be proved is a <em>prima facie</em> case. This is elementary.</p> <p>[9]        Spoliation is about the protection of possessory rights. Ownership does not come into consideration. Yet the averments in the founding affidavit were predominantly about proof of ownership of the mining rights over Chigwell: how initially those rights had been in the name of the first respondent; how the first respondent got to lose them, and how they had ended up being in the name of the applicant. At the hearing, Mr <em>Mujungwa</em> was clutching at straws. He failed to appreciate that the defect that I had raised concerning the impropriety or incompetency of seeking a stay of execution against a mere declaratory order could not be cured simply by dropping that remedy and pursuing spoliation. The requirements are different. The whole application had been premised on a stay of execution, which is a species of an interdict. The application was completely silent on <em>when</em> exactly the applicant had been illicitly deprived of possession and control of Chigwell. It was silent on who exactly was there at the mine at the time of the alleged eviction? Who for the respondent did it? How did he or she or they do it?</p> <p>[10]      At the hearing, we spent some appreciable time sifting through the averments in the founding affidavit in an effort to find the answers to the questions above. But there was nothing. Mr <em>Machingauta</em>, Mr <em>Mujungwa’s</em> principal with whom he sat, tried to intervene, encouraged by myself. The two had been wasting time, with Mr <em>Mujungwa</em> having to pause and defer to his principal who would whisper something into his ear each time I asked a question. But the intervention was no better. A concession could have preserved integrity. The sum total of Mr <em>Machingauta’s</em> submissions on intervention was that where the founding affidavit said Margret was a member of the applicant, and where the supporting twin affidavits by Njabulo Ndhlovu and Stanley Mlotshwa said they also are members of the applicant, I must read that to mean they are the people who were in possession at the time of the alleged spoliation! I was also urged to construe the date of the order by PHIRI J, namely the 2nd of September 2020, as the date when the alleged spoliation took place!     </p> <p>[11]      I could not grant spoliatory relief under such circumstance, especially given that the respondent vehemently denied that it had taken over the running of the mine. The respondent maintained the applicant was still there. In the end I dismissed the application with costs.</p> <p> </p> <p>25 September 2020</p> <p> </p> <p><em>Tavenhave &amp; Machingauta,</em> applicant’s legal practitioners</p> <p><em>Mangwiro Law Chambers, </em>first respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/609/2020-zwhhc-609.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=66847">2020-zwhhc-609.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/609/2020-zwhhc-609.pdf" type="application/pdf; length=419972">2020-zwhhc-609.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/m">M</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/mines-and-minerals">MINES AND MINERALS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rights-mines-and-minerals">Rights (MINES AND MINERALS)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/execution-practice-and-procedure">Execution (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/stay-execution">stay of execution</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/when-should-execution-appeal-be-granted">when should execution appeal be granted</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/s">S</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/spoliation">SPOLIATION</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/order-spoliation">Order (SPOLIATION)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/possession-protected-spoliatory-remedies">Possession protected by spoliatory remedies</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/what-spoliation">What is (SPOLIATION)</a></li></ul></span> Fri, 09 Oct 2020 09:52:23 +0000 Sandra 9866 at https://old.zimlii.org