1

HH 270-15

HC 1807/15

HARARE SOUTH HOUSING UNION

COOPERATIVE SOCIETY LIMITED

versus

TONDERAI NKOMO

and

JAMES MAREVANHEMA

and

GIDEON DZITIRO

and

MIKE TAKAENDESA

and

E MAKWACHATA

and

F MATSATA

HIGH COURT OF ZIMBABWE

MWAYERA J

HARARE, 4 March and 10 March 2015

Urgent Chamber Application

F G Gijima, for the applicant

M H Chitsanga, for the respondents

MWAYERA J:   The applicants filed an urgent chamber application on 4 March 2015 seeking the following relief:-

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:-

1.         The Respondents be and are hereby ordered not to interfere with applicant’s activities on property known as Stand 315 Retreat Township, Waterfalls, Harare and on Stand 320 of 315 Retreat Township, Waterfalls, Harare.  

2.         The Respondents shall pay the costs of this application on the attorney-client scale, jointly and severally, one paying the others to be absolved.

INTERIM RELIEF GRANTED

Pending the finalization of this matter, the Applicant is granted the following relief:-

1.         The Respondents are hereby directed to restore peaceful and undisturbed possession, control and occupation of Stand 320 of 315 Retreat Township, Harare to the Applicant.

2.         The Respondents are ordered to remove the iron bars used to seal access to Applicant’s offices, failure of which the Applicant is authorized to remove all the iron bars installed by the Respondents and any costs so incurred by the Applicant shall be borne by the Respondents jointly and severally, one paying, the others to be absolved.”

            The application is opposed by the respondents who argued that the matter was not urgent and also that the application has no merit.

            The applicant approached the court arguing that as a registered authorised housing cooperative prior to 22 February 2015 the applicants was in undisturbed and peaceful possession of Stand 320 of 315 Retreat Township, Waterfalls, Harare.  The applicant attached letters from the Ministry of Local Government Rural and Urban Development and Ministry of Small and Medium Enterprises and Cooperatives for allocation and confirmation of appointment as responsible body for the administration of housing projects respectively at Stand 320 of 315 Retreat Township, Waterfalls, Harare. The applicant is among other responsibilities changed with day to day administration of housing cooperatives and custodian of membership information data and plans and documents pertaining to the running of the cooperative.  The applicant claimed that on 22 February 2015 after a political rally held in the area by ZANU PF, Harare Province the first respondent mobilized some youth to cause violence and confusion at the applicant’s premises.  This continued unabated on 23 and 24 February 2015 and the six respondents after causing employees and board members of the applicant to vacate premises sealed all windows and doors by wielding iron bars thereby barring the applicants access to the premises.  It is this disruption of peaceful and undisturbed occupation which occasioned the urgent application for spoliation.

            I must mention the respondent without authorisation or resolution from Apex Board sought to potray a picture that the applicants were not in peaceful and undisturbed occupation since there were ownership wrangles between the applicant and Apex Board.  The respondent I must mention half-heartedly opposed the application as evidence by inherent contradictions in the third respondent’s opposing affidavit wherein the respondent on one breath agrees there was disruption and on another breath points out the applicant was warned on 15 January 2015 of the impending take over for example para 59 of Gideon Dzitiro’s opposing affidavit.

            The respondent raised points in limine:

Firstly, defective certificate of urgency:  The unwarranted criticism of the certificate of urgency was not only undesirable given a reading of the certificate of urgency by Ngoni Ruzengwe a partner in the law firm instructing the applicant is a competent deponent to the certificate of urgency.  He clearly applied his mind to the nature of application and come up with a deduction that the respondents had unlawfully deprived the applicant of its peaceful and undisturbed possession, occupation and control of Stand 320 of 315 Retreat Township.  This was clearly in the absence of a court order.  The certificate of urgency filed does not fall foul of Order 32 rule 244.

A legal practitioner acts on instruction from a client and he applies the law to the facts given.  A certificate of urgency is to outline to the court why a matter should be given priority treatment of being heard on urgent basis.  Ngoni Ruzengwe’s position is that the applicants were despoiled and that spoliation by nature is urgent.  It is given an application stands or falls on the founding affidavit. The founding affidavit by Antony Muchata Chairman of the applicant  and duly authorised by a Board of resolution laid bare the basis of the conclusion by Ngoni Ruzengwe that the facts depicted spoliation and thus the argument that the matter is urgent.  The respondent also raised separately a point in limine that the application is not urgent.  For the obvious reason that such a point in limine is linked to the first point raised of the certificate of urgency being defective I propose to deal with the points simultaneously. If it is accepted that the certificate of urgency is informed by the factual position that the applicant was despoiled then it follows for the matter to qualify as an urgent application the requirements of spoliation have to be met.  For a spoliation order to be granted it must be shown that the applicant was in peaceful and undisturbed possession, that the applicant did not consent expressly or impliedly to the dispossession and that the applicant has a real right of which they are forcibly or wrongfully deprived.

In the present case clearly the applicant was in control of office at 320 of 315 Retreat Township Waterfalls, Harare, per legitimate documents from the relevant ministries since 2012.  The premises were barricaded without due course to law on 24 February 2015 and thus the applicant’s peaceful possession disrupted.  The circumstances of the case do not fall short of the requirements of urgency contemplated by the rules of this court.

When a matter is given priority treatment to avoid delays which would occasion irreparable harm it will have been accorded urgent status.

What constitutes urgency is fairly settled.  A matter is viewed as urgent if it is viewed as one which cannot wait for the ordinary course of set down.  Waiting would occasion irreparable harm as there would be no other remedy which would ensure the interest of administration of justice are met.  A matter is viewed as urgent if it is clear that the urgency is not self-created in other words if it is shown the party so seeking redress on urgent basis did not wait till the day of reckoning but sprout to action when the need to act arose.  The cases of Kuvarega v Registra General & Anor 1998 (1) ZLR 188 H at 193 F-G and Triple C Pigs & Anor v Commissioner General ZLR 2007 (1) ZLR 27 are instructive.

In the present case the applicant in the founding affidavit outlined how they were in peaceful and undisturbed possession of administrative office from 2012 only to be wrongfully and forcefully driven out by the respondents on 24 February 2015 and thus the present application.  The applicants claimed the matter was urgent as they were despoiled by the respondent.  The certificate of urgency explained the basis of urgency by outlining that the applicants were forcibly and wrongfully dispossessed.  The certificate of urgency filed highlights reasons why the applicant concluded that the matter is urgent and also the circumstances of the case as outlined in the founding affidavit confirm the application is premised on spoliation.  Spoliation by nature is urgent and good cause for preferential treatment of a matter of jumping the ordinary que of the set down has been established.  To this end therefore the points in limine namely alleged defective certificate of urgency and that the matter is not urgent have no legal basis on which to stand.

The other point in limine raised is as regards alleged material non disclose of the relationship between the applicant and the respondents.  The respondents despite arguing that they were not in any manner involved in barricading the applicant premises but that it was Harare South Apex Board admitted being members of that Board.  They sought to argue that apex Board is the owner as it was first registered and that the deponent of the applicant’s founding affidavit was a member.

 The respondents presented arguments about ownership wrangle.  It is trite in spoliation proceedings the question of ownership does not arise.  What falls for scrutiny is whether or not the applicant was in peaceful or in undisturbed possession. In other words the question is whether or not the applicant is wrongfully without recourse to law despoiled.  In the present case it is apparent from papers filed of record and submission that prior to the welding of iron bars on doors and windows the applicant was in undisturbed and peaceful possession.  The ownership wrangle does not fall for determination in spoliation proceedings.  The suggested none disclosure of ownership wrangle does not entitle the respondent to take the law into their own hands.  The point in line of material none disclosure again falls on its face.

The last point in limine raised that the applicant ought to have firstly exhausted internal remedies again has no legs on which to stand.  The applicant upon being despoiled rose to action and approached this court on urgent basis seeking redress.  The circumstances the applicant found itself in, of having locked premises justified their approach for redress on urgent basis.  The High Court is not barred from entertaining matters simply because there are internal remedies.  The nature of the cause of action and the relief sought is quite pivotal when the court exercises its discretion to grant or deny an urgent application. 

In casu, the applicants have been prompted to approach the court on urgent basis because they have been locked out of premises by the respondents’ barricades.  The disruption is certainly one which calls for urgent intervention.  The applicant sprout to action when the need to act arose and the cause of action and nature of relief sought clearly shows the need for urgent redress.  The balance of convenience favours the applicant.  Moreso given the respondents have unlawfully and wrongfully disturbed the peaceful possession of the applicant.

The matter is therefore viewed as urgent and the applicant has made out a case for the relief sought.

Accordingly, the provisional order in terms of the draft is granted.

F.G. Gijima & Associates, applicant’s legal practitioners

Mangwana & Partners, respondents’ legal practitioners