BERE J: From the papers filed
coupled with the detailed submissions made by both counsel it is apparent that
the applicant and the first respondent are literally fighting over the
ownership of stand number 7953 Tynwald of Stand 7739 Tynwald Township, Harare.
The
conflict between the two parties has manifested itself mainly over the control
of the educational activities which are taking place within this stand. Both
parties are laying claim to these educational activities.
The
applicant has sought to be granted interim relief interdicting the first,
second, third and fourth respondents from interfering with the running of the
educational institution pending the determination of this dispute.
The
urgent chamber application itself in summary provides the background to the
issue that has been placed before the court and it has been summarised as
follows:-
“Applicant's operations of running the school are being seriously
interfered with by the first and second respondent who is claiming ownership of
same. The applicant purchased Stand No. 7953 Tnywald Township of Stand 7739 Tynwald
Township together with the school and has registered hundreds of minor children
at the school who are now being barred from attending lessons unless they pay
fees to the first respondent and recognise the second, third and fourth
respondents.
Applicant's business has been disrupted together with minor
children's education hence the need for this Honourable Court's intervention on
an urgent basis”.
The
same averments are amplified in the certificate of urgency filed by Raphael
Tapiwanache Maganga.
The
applicant's position is further graphically canvassed in the founding affidavit
of Emmanuel Silas Mahachi, the Executive Director of Applicant.
The
applicant is a duly registered company in terms of this country's laws
operating throughout Zimbabwe and runs private education colleges. It is
basically an educational institution.
POINTS
IN LIMINE
It
is imperative that before I deal with the matter on the merits I consider the
points in limine raised by the
respondent in its notice of opposition.
NON
CITATION OF COLD COMFORT SCHOOL
It
was passionately argued by Advocate Mpofu
(respondent's counsel) that although Cold Comfort School is owned by the first
respondent, the school ought to have been cited in the instant proceedings and
that such omission made the order sought by the applicant incompetent and
unenforceable and consequently rendered the proceedings fatal.
I
was not persuaded by that argument. The argument missed the point that the
dispute was between the applicant and the first respondent which is claiming
ownership of the school in question and in my view there was no need to cite
the school in question but to deal with the company claiming ownership and
control of same.
In any event I did not believe such
an omission would have any bearing at all on the effect of the provisional
order sought if regard is had to the provisions of Order 13 r 87
which for the avoidance of doubt reads as follows:-
“87(1) No cause or matter shall be defeated by reason of misjoinder
or non-joinder of any party and the court may in any cause or matter determine
the issues or questions in dispute so far as they affect the rights and
interests of the persons who are parties to the cause or matter”.
Really, I do not see how the respondents would have succeeded on this
point.
THE CONCEPT OF DIRTY HANDS
It was further argued by the respondent's counsel that the applicant
is the one that had
caused mayhem at the institution and
then rushed to court with the instant application. The argument was that the
applicant had created the situation that it was now calling for the court's
intervention. Counsel's very strong view was that such conduct meant that the
court was precluded from hearing the application in question because its
(applicant's) hands were soiled.
The
view I took was that counsel had a total misconception of the dirty hands
concept. In almost all the situations where this concept is raised and relied
upon as a weapon of defence there would have been in place an existing court
order which the other party would then be alleged to have violated.
This
is a simple appreciation of the law which can be gleaned without much
difficulty from such cases like
Associated Newspapers of Zimbabwe (Pvt) Ltd v The Minister of State for
Information and Publicity and Ors,
The Director General of the Central
Intelligence Organisation and the Minister of State and Security N.O and
Manners Mafuta.
There was no suggestion in this case that the applicant had violated
any existing court order and had approached the court with dirty hands. It was
clear there was a total misconception of the dirty hands concept.
In
fact what the respondents' counsel was arguing is actually one of the issues
which the court had to deal with in this case and there was no basis upon which
the court would have declined to hear the applicant.
ALLEGED
OWNERSHIP OF THE PROEPRTY
It
would appear to me that the respondents' position was that in the absence of
evidence that the applicant had acquired ownership of the property in question
then it could not sue for an interdict to be granted in its favour. I am afraid
I did not find this argument to be appealing at all for ownership of the
violated property is certainly not one of the requirements that must be
established to assert one's entitlement to a temporary interdict. It is
doubtful if at all the respondents' counsel believed in the submissions he made
on this point.
THE
URGENCY OF THE MATTER
From
the submissions made by both counsel and what one could read through the papers
filed of record, it was clear that the dispute between the applicant and the
first respondent had created total chaos at the institution in question with
the result that the education of the children was being severely interfered
with. If such action could not have been heard on urgent basis then I am unable
to imagine any better situation that would scream for the court's urgent
attention.
It
was for these reasons that I found it necessary to deal with the matter on
merits and on an urgent basis.
THE
REQUIEMENTS OF AN INTERDICT
The
applicant sought to have the respondents restrained and interdicted from
interfering with the applicant's smooth operations of the children's learning
pending the resolution of the raging dispute over ownership of the learning
institution in question.
The
requisites of a prohibitory interdict as sought by the applicant in this matter
are not in issue and I am relieved, both counsel are in agreement. These
requirements can be traced back to the much celebrated case of Setlogelo v Setlogelo 1914 AD 221 at 227
and these requirements are:-
1. The existence of a clear or definite right on the part of the
applicant
2. That there is an injury actually committed against applicant or
reasonably apprehended against same.
3. The absence of a similar protection by any other ordinary remedy.
As stated, it is a trite principle of our law that before an interim
interdict can be granted
the applicant must establish that he
has at the very least a prima facie right screaming for protection.
The
evidence placed before the Court is that the applicant purchased the property
upon which the school is located. Annexures A-C confirm the transaction in
question. The applicant which is an educational institution avers in para 7 of
its founding papers as follows:-
“In essence, when Applicant College purchased the said property it
effectively became the owner of the school, which was the main reason why it
bought the property, anyway, since it is in the education services”.
Counsel for the respondent has strongly argued that by purchasing
land the applicant did
not necessarily purchase the school.
Quite a persuasive argument it was. The tragedy is that none of the respondents
gave evidence to this effect despite having been afforded numerous
opportunities to do so. The result was that their counsel literally ended up
giving evidence on this issue.
The
respondents' notice of opposition was not helpful in this regard. The thrust in
the notice of opposition was to highlight the possibility of fraud in the
bringing to life of the sale agreement 'Annexure A' to applicant's papers.
There was no pointed submission by the respondents that the applicant did not
purchase the school in order to counter the averments by the applicant. In my
well considered view, it would have been inconceivable for the applicant, given
its accepted role in the education system to have purchased the property in
question minus the school.
As
rightly pointed out by the applicant's counsel Annexures G and H reaffirm the
school itself has always been regarded as inseparable from Unitime Investments
(Pvt) Ltd. In the Court's view, the applicants must be believed when they
allege that the acquisition of the property was inclusive of the acquisition of
the school in question. This does not amount to re-writing the parties'
contract.
Annexure
'D' which is the letter of 6-5/11 further reaffirmed the applicant's position.
Further, the signature and the name of A.J Mapanzure on Annexures 'G' and 'H'
do not portray the fourth respondent in good light in this whole saga. This
probably explains why he has failed to put in an affidavit or any other form of
evidence in this matter in supporting the position taken by the first
respondent or in support of that position.
The
urgent application itself, the certificate of urgency and the founding
affidavit (para 9 thereof) highlight the injury or reasonable apprehension
caused to the school by the respondents. The interference in the smooth running
of the school is canvassed and the specific roles of the respondents in that
regard is equally highlighted. The harassment of pupils and the running of a
parallel structure for the school are both mentioned and if true these are a
serious threat to the school itself.
Faced
with these pointed allegations, there is no response filed of record from the
second, third, and fourth respondents, thus creating a serious yawning gap in
the evidence. In fact the second respondent has not even availed himself at
court to try and counter the allegations levelled against him. Equally true is
the failure by the third and fourth respondents to give evidence to counter
what was pointedly levelled against them. They did not file opposing affidavits
to counter the allegations levelled against them. They did not give viva voce evidence to try and cleanse
themselves of the serious allegations levelled against them.
What
the Court was informed yesterday was that the affidavit by Edmore Mutare
incorporated the views of the third and fourth respondents. How strange?
Pushed
against the wall, the respondents' counsel purported to himself give evidence
on behalf of the litigants who were themselves in court. It was clearly not
competent for counsel to try and give evidence on behalf of his clients. If he
was desirous to let the court hear them he should have led them in evidence
here in court.
It
was not a persuasive argument for counsel to argue that Edmore Mutare's
position was incorporating the third and fourth respondent's position. This is
so because for starters, Edmore Mutare's own affidavit does not state that he
was authorised to speak on behalf of other respondents other than that of the
first respondent. Even if his affidavit had said so it would have been
incompetent for him to do so in the absence of an affidavit of collegiality
authorising him to speak on behalf of the other respondents. This legal
position is explored by GILLESPIE J in the case of Chisvo & Ors Aurex (Pvt) Ltd and Another.
In
the absence of any responses to controvert the position outlined by the
applicant, the applicant's story must therefore be accepted and the court
consequently accepts the applicant's concerns captured therein.
There
is another dimension to this case. If one were to accept the position stated by
Edmore Mutare in para 1.1 of his affidavit one is left to ponder on the
seriousness of the allegations stated therein. If true these allegations would
have attracted relief of a mandament van
spolie.
Neither
the first respondent nor the other respondents sought to obtain this relief.
The first respondent has not counter claimed in this application.
Looked at in conjunction with the
newspaper cuttings referred to in its notice of opposition the conclusion would
be in escapable that its hitherto peaceful and undisturbed occupation of the
school had been seriously violated.
It
is the inaction on the part of the first respondent and the rest of the other
respondents which casts serious doubt on the bona fides or veracity of such allegations. Even the newspaper
articles must be looked at within this context.
In
any event, the newspaper articles which appear to be loaded with hearsay
information cannot be granted greater weight than the evidence on oath tendered
by the applicant.
There
is no doubt in my mind that whichever way one looks at this case, the education
of the children is being extremely compromised by the conduct of the
respondents as alleged by the applicant. I am unable to imagine any other
remedy that could be put in place to protect them until the dispute between the
parties is resolved other than granting the provisional order sought.
Consequently
I order as follows:
Pending
the determination of this matter, the applicant is granted the following
relief:
1. The first, second, third and fourth respondents be and are hereby
restrained and interdicted from interfering with or otherwise disrupting
applicant's business operations including the running of a school at Stand
Number 7953 Tynwald Township of Stand 7739 Tynwald Township.
2. The first, second, third and fourth respondents be and are hereby
restrained and interdicted from registering and otherwise receiving levies and
school fees from children registered by the applicant and from attempting to
run parallel school administration structures other than those currently being
run and operated by the applicant at Stand Number 7953 Tynwald Township of
Stand 7739 Tynwald Township.
Service of Provisional
Order
This provisional Order shall be served on the respondents by the
applicant's legal practitioners.
G. Machingambi Legal Practitioners,
applicant's legal practitioners
Muza & Nyapadi,
respondents' legal practitioners
