Lis Alibi Pendens or Pending Litigation re: Summary Judgment Proceedings

Appealed
SC10-16 : N. SVOVA & OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY
Ruled By: ZIYAMBI JA GWAUNZA JA and MAVANGIRA JA

The fourth ground of appeal is that the court a quo misdirected itself in proceeding as if the matter before GOWORA J…, had not been finalised when judgment had in actual fact been granted dismissing the exception taken by the respondent. In the court a quo, the appellants argued that summary judgment should not be ...

In the court a quo, the appellants argued that summary judgment should not be granted on the basis of lis alibi pendens, in view of an application that had been made by the respondent for the striking out of their pleas as being bad in law. They stated that judgment in that application, which had been argued before GOWORA J, was still pending.

This ground of appeal appears to be of no moment in this matter.

This is, firstly, because GOWORA J's judgment in HC2330/09 was delivered some two years before the judgment of the court a quo. The court a quo was thus mistaken or ill-informed when it accepted, as a fact, and stated that the judgment in GOWORA J's matter had not been handed down. More importantly, however, the matter before GOWORA J is described, in the first paragraph of her judgment HC2330/09, as:

“In this application, the plaintiff (NSSA) seeks summary judgment against the respondent J Mapanga and sixty four others.”

No other pleadings relating to the matter that was argued before GOWORA J appear to have been placed before the court a quo and none was placed before this Court.

At page 2 of her judgment, GOWORA J stated that the plaintiff only cited one defendant who was not before the court by virtue of being deceased. She further stated that all the defendants had been sued under seven separate case numbers and the respondent had, without leave of the court, joined all the defendants to an application for summary judgment. She found that the papers before her were not in order due to these irregularities. She thus withheld jurisdiction and ordered the respondent to pay costs of the application.

The essence of the matter that was heard by GOWORA J was thus not accurately captured in the proceedings and in the judgment of the court a quo.

Of even more importance is the following apposite observation of the learned judge in the court a quo when he was commenting on the appellants' contention that summary judgment should not be granted on the basis of lis alibi pendens:

“…, that argument cannot defeat a summary judgment application…..,. Summary judgment is available to a litigant whose claim is unanswerable and who should not be delayed by a trial for that reason. The attack on the respondent's plea was in pursuance of what the applicant perceived was an unassailable claim.”

It seems to me therefore, that reference to GOWORA J's judgment is misplaced, both in the court a quo and in the appellants' grounds of appeal. This ground of appeal is also predicated on erroneous facts and is of no relevance to this matter.

The appeal noted by the appellants has no merit….,.

It is accordingly ordered as follows:

'The appeal is dismissed with costs.'

View Appeal
HH269-13 : NATIONAL SOCIAL SECURITY AUTHORITY vs N. SVOVA and ORS and R. MAKASI and ORS and P. MUDYIWA and ORS and W. MUGOBOGOBO and ORS
Ruled By: MATHONSI J

The background is that the applicant is the owner of four (4) blocks of flats situated on Stand 13301 Salisbury Township Harare known as Monaco occupied by 18 residents, Cannes with 12 residents, St Maxime with 8 residents and Juan Les Pins which has 10 residents. The applicant instituted four (4) sets of summons action against the occupants of the blocks of flats seeking their eviction, namely, HC674/09 for Monaco, HC675/09 for Cannes, HC856/09 for St Maxime and HC857/09 in respect of Juan Les Pins.

In its identical declarations, the applicant averred that the occupants had taken occupation originally by virtue of lease agreements which expired before year 2000. Thereafter, it had granted the tenants an option to purchase the units which they occupied which option they had exercised, but failed to pay the purchase price in terms of the option as a result of which their right to purchase lapsed. The occupants having refused to vacate the flats, despite demand, the applicant sought an order for their ejectment, holding over damages, and costs of suit.

When the occupants, who are the respondents in these matters entered appearance and filed identical pleas to the claims, the applicant filed these summary judgment applications in which it sought to defer the claims for holding over damages electing to pursue only the ejectment of the respondents....,.

In my view, these matters resolve themselves on the facts which are common cause. Despite the respondents' bizarre averment in their pleas that they paid $24 million (Zimbabwean currency), as the purchase price for the blocks of flats, it is common cause now that they did not pay a single penny towards the purchase price and they have belatedly offered to pay the applicant a sum of $650,000 as purchase price, which offer the applicant has rejected insisting that the flats are no longer for sale.

It is common cause that the lease agreements under which the respondents moved into the flats lapsed in year 2000 when they were given and took an option to purchase the flats in question. They are therefore occupying the flats not by virtue of any lease agreement but because they lay a claim to the flats in terms of the purported sale agreement allegedly entered into.

It is also common cause that the respondents, through their Residents Association, approached this court seeking an order for specific performance in HC4633/05. The application was dismissed by judgment of this court delivered on 3 July 2007, per OMERJEE J, on the basis that the respondents had breached the sale agreement by failing to make payment of the purchase price within the time given, namely, 31 July 2000, and, as such, the applicant “was entitled to unilaterally cancel the agreement or ignore it altogether.”

The respondents appealed against the judgment of this court to the Supreme Court which, on 22 October 2010, handed down judgment in St Tropez Residents Association v National Social Security Authority & Anor SC19-10 upholding the judgment of this court. The Supreme Court ruled that the applicant had not waived its right to cancel the agreement when the respondent failed to pay the purchase price by 31 July 2000 and that they were not entitled to specific performance.

With the rights of the parties having been determined by the Supreme Court, the applicant has brought these summary judgement applications on the basis that the respondents have not a bona fide defence to the claim for eviction.

Summary judgment is available to a plaintiff whose belief it is that his claim is unassailable and therefore should not be subjected to the delays attendant to a trial. While it is an extraordinary remedy which is very stringent in effect, as it closes the door to a defendant to defend the claim, it is availed to a party whose claim is so unanswerable that it should be saved the agony of a trial: Ashanti Gold Field Zimbabwe t/a Rebecca Mine v Pfidze HH347-12…,.

In order to defeat a summary judgment application a defendant must disclose a defence and material facts upon which that defence is based with sufficient clarity and completeness so as to persuade the court that if proved at the trial such facts will constitute a defence to the claim: Hales v Dollerick Investments (Pvt) Ltd 1998 (2) ZLR 235 (H)…,.; African Banking Corporation of Zimbabwe Ltd t/a Banc ABC v PWC Motors (Pvt) Ltd & Ors HH123-13.

Not every defence raised by a defendant will succeed in defeating a claim for summary judgment. It must be a bona fide defence; a plausible case. If it is averred in a manner which is needlessly bald, vague and sketchy, it will constitute material to be considered by the court in relation to the bona fides of that defence; Kingstons Ltd v L.D. Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S)…,.; Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T)…,.

In casu, the respondents have argued that summary judgment should not be granted on the basis of Ad Lis Alibi Pendenis as an application was made by the applicant for the striking out of their pleas as being bad at law which application was argued before GOWORA J…, but judgment has not been handed down.

In my view, that argument cannot defeat a summary judgment application.

As I have already stated, summary judgment is available to a litigant whose claim is unanswerable and who should not be delayed by a trial for that reason. The attack on the respondent's plea was in pursuance of what the applicant perceived was an unassailable claim. Why the judgment has not been handed down even as GOWORA J moved to the Supreme Court almost two (2) years ago, is unknown. Since then, the Supreme Court has determined the respective rights of the parties, thereby entitling the applicant to make an approach to this court for summary judgment. In my view, it matters not that an interlocutory application had been made which would not have resolved the matter to finality anywhere.

Upholding the argument based on ad lis alibi pendens in the circumstances of this matter would defeat the very purpose of the relief of summary judgment premised as it is on the time honoured principle that unscrupulous litigants bent on delaying just claims should be suppressed at all costs.

SC37-20 : ROSEMARY BASTIN vs KUFA MADZIMA (IN HIS CAPACITY AS THE EXECUTOR OF THE ESTATE LATE MARIMO MADZIMA)
Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

This is an appeal against the whole judgment of the High Court handed down on 20 February 2019 which granted summary judgment in favour of the respondent for the eviction of the appellant, and all those claiming occupation through her, from Stand No.3437 Highfield Township, Harare (“the property”) after dismissing the appellant's application for condonation of the late filing of heads of arguments in opposition to the summary judgment application.

The facts of the matter are these;

The respondent's father, Marimo Masawi Madzima, died at Marondera in 1985. He was the registered owner of the property. Following his death, the respondent was appointed heir to, as well as executor of, the estate. In 2001 the respondent engaged the law firm of Karuwa and Associates with instructions to dispose of the property. In due course, and entirely without the authority and consent of the respondent, that law firm sold the property to the appellant.

The appellant took transfer of the property and held title by Deed of Transfer No.1948/2007.

The respondent was aggrieved. He instituted an action in the court a quo against the appellant and others under case number HC2120/07, inter alia, for the cancellation of the sale and the return of the property to its rightful owner.

Although the action was contested, the respondent was successful.

By judgment delivered on 23 May 2012, being HH221-12, the court a quo found that the transfer to the appellant had been fraudulent and that the owner of the property was entitled to vindicate his title against any other person in possession of the property. The order which was issued included an award of costs on the legal practitioner and client scale against the law practice of Karuwa and Associates.

As the appellant remained in occupation of the property notwithstanding the judgment of the court a quo referred to above, which was only appealed against by Karuwa and Associates in respect of the award of costs, the respondent instituted action proceedings for eviction under case number HC1025/18.

The action was opposed by the appellant whose only discernible defence was that the judgment of the court a quo, in terms of which her claim was dismissed, had been taken on appeal to this Court under case number SC211/18.

As it turned out, that was an appeal lodged by Karuwa and Associates against only a part of the judgment “that granted costs” against the law firm and nothing else.

The respondent was understandably un-impressed, and, believing that the appellant did not have a bona fide defence, and that appearance to defend had been entered for dilatory purposes only, made an application for summary judgment.

Although the appellant still opposed to the application, maintaining that no relief could be afforded the respondent by summary judgment, her legal practitioners failed to file heads of argument within the time allowed by the Rules of Court. She was therefore automatically barred in terms of Rule 238(2b) of the High Court Rules, 1971.

The appellant did not file a formal application for the upliftment of the bar.

Instead, counsel for the appellant still proceeded to file heads of argument out of time in which she sought to lead evidence from the Bar on the reasons for failure to timeously file the heads of argument.

At the hearing before the court a quo, an application for condonation of the late filing of the heads of argument was then made on behalf of the appellant - from the Bar.

The application was dismissed and the court a quo proceeded to determine the summary judgment application on the merits unopposed.

It granted the application.

The appellant was not happy with that turn of events. She has noted an appeal on the following grounds;

1. The court a quo erred in dismissing the application for condonation thereby unprocedurally hearing the matter unopposed.

2. The court a quo misdirected itself in finding that the appellant did not satisfy the requirements for condonation.

3. The court a quo erred in finding that the appellant did not have a bona fide defence to the application for vindication.

4. The court a quo erred in finding that the respondent had made a case for summary judgment.

While the appellant has listed four appeal grounds, they are clearly repetitive. Only two issues have to be determined in this appeal. They are:

(a) Whether the court a quo erred in dismissing the appellant's application for condonation and the upliftment of the bar; and

(b) Whether the court a quo erred in granting summary judgment.

At the hearing of the appeal, counsel for the appellant initially appeared to make an application, in terms of Rule 40 of the Supreme Court Rules, 2018, to lead further evidence on appeal. She submitted that the appellant had effected improvements on the property during the period of almost 13 years that she has been in occupation. In that regard she has an improvements lien over the property and cannot be evicted therefrom without compensation for those improvements.

It was further submitted that the appellant filed an action in the court a quo in November 2019 for compensation. She therefore desired to lead further evidence on appeal relating to the suit now pending in the court a quo which should be determined before the appeal is determined....,.

As it also turns out, counsel for the appellant urged the court a quo to grant condonation while at the same time submitting that the court a quo was precluded from proceeding with the hearing of the summary judgement application by an appeal noted at the Supreme Court.

The learned judge stated…,;

“At the hearing, counsel for respondent proceeded to make submissions for condonation, advanced one main (reason) that being that applicant's claim for vindication of the property remained under (challenge) in the Supreme Court in matter number SC211/18, and that the opposed motion proceeding couldn't be heard until the outcome of the appeal was forthcoming.

Counsel for applicant opposed the respondent's application for condonation, arguing, firstly, that the appeal which had been filed by the respondent challenging HUNGWE J's determination, was a challenge on costs only and not the merits, and, secondly, that the appeal had since been determined by consent…,. Accordingly, I find there is no appeal pending in the Supreme Court which would have the effect of delaying the resolution of the present matter on this opposed roll.

In the circumstances, I dismissed the application for condonation for want of merit.”...,.

The court a quo found that...,. the appeal against that judgment had been determined without upsetting the previous determination of the court a quo.

Counsel for the appellant maintained, on appeal, that the main reason for opposing the application for summary judgment was that it was made prematurely when there was still an appeal to this Court by Karuwa and Associates.

She acknowledged that the said appeal had long been finalised, by consent, at the time of hearing the application.

HB129-15 : LIZNET MPOFU vs ENOCK B. MPOFU
Ruled By: MAKONESE J

The applicant purchased House Number 24733 Gundwane Road, Pumula North, Bulawayo, at a public auction on 2 October 2013. The sale was conducted by the Deputy Sheriff Bulawayo pursuant to a judgment debt against the respondent involving a third party.

The applicant duly paid the purchase price in the sum of US$12,000 and the Deputy Sheriff proceeded to effect cession of the property into the applicant's names. The rights title and interest to and in the property have been transferred to the applicant.

The respondent has refused to vacate the property and is not paying rentals to the applicant.

The applicant issued summons against the respondent, on 22 September 2014, seeking the respondent's eviction and all those claiming occupation through him from the property.

The respondent entered appearance to defend on 8 October 2014.

The applicant has filed this application for summary judgment contending that the respondent has no bona fide defence to her claims and that appearance to defend has been entered for the sole purpose of delay.

The applicant avers that she has a clear and unanswerable claim. The property was lawfully purchased and she has received transfer of all the rights, title and interest in and to the property. Further, the applicant contends that the respondent failed to challenge the validity of the sale, which was duly confirmed by the Deputy Sheriff.

In his papers in opposition, the respondent alleges that he has a valid defence to the applicant's claims.

The respondent confirms that the property in issue was sold at a public auction in a sale in execution. The respondent alleges that when the process of attaching the property was underway he was away at his rural home in Silobela. He was not aware that summons had been issued against him and that a writ of execution against his immovable property had been issued. He only became aware of the sale in execution in October 2013 when the applicant informed him that she had purchased the property.

The respondent states that he has filed an application to rescind the default judgment obtained against him.

The application for rescission of judgment was filed in December 2012. No further explanation is forthcoming from the respondent regarding the fate of that application for rescission of judgment.

The respondent alleges that he has a defence against the action brought against him by one Moses Mazithulela which resulted in the default judgment and the sale in execution. The respondent further alleges that the respondent filed an application for rescission of judgment before the applicant purchased the property.

A bold averment is made by the respondent that the applicant must have been aware of the respondent's application for rescission of judgment and that she took a risk in purchasing the property at a public auction.

Analysis of the Law

It is my view that an innocent party who purchases a property at a public auction duly advertised by the Deputy Sheriff, and who lawfully purchases a property and fulfills all the conditions of sale by paying the purchase price, and subsequently receiving transfer, is entitled to the protection of the law.

The innocent purchaser should not concern himself with the dispute between the debtor and the creditor which results in the sale in execution.

By its very nature, a sale in execution, in pursuance of a debt, is a mechanism designed to compel a debtor to fulfill his obligations. The sale is not conducted voluntarily but under the force of the law. The debtor will invariably seek to escape the inevitable consequences of the sale in execution by seeking a rescission of judgment or challenging the validity of the sale.

The legal position regarding the rights of parties, after a sale has been conducted and confirmed by the Deputy Sheriff, and where transfer has already been effected to the third party, was canvassed in the case of Chiwadza v Matanda and Others 2004 (2) ZLR 203 (H).

In this matter, MAKARAU J held that after the sale has been confirmed and transfer has been effected to the purchaser, an interested party may still approach the court, at common law, to have the sale set aside, but not on the grounds of alleged violations of the rules of court nor on the general grounds of review at common law. The sale cannot be impeached in the absence of an allegation of bad faith, or knowledge of prior irregularities in the sale, or fraud. This is so because of the protection our legal system affords the innocent third party in commercial transactions.

See also the case of Mupedzamombe v Commercial Bank of Zimbabwe and Another 1996 (1) ZLR 257 (S).

WHETHER APPLICANT HAS MADE A CASE FOR SUMMARY JUDGMENT

In making an application for summary judgment, the applicant is required to verify his cause of action and state that in his belief the respondent has no bona fide defence to the action.

In terms of Order 10 Rule 64(2) and (3) of the High Court Rules, 1971 the applicant has attached an affidavit supported by documents which indicate that the applicant purchased the property at a public auction. The documents further confirm that the applicant paid the required purchase price. The documents further indicate that title in respect of the immovable property has been effected into the applicant's names.

The applicant has indeed verified the cause of action. The applicant has made out a clear case that she has lawfully acquired the right to the use and enjoyment of the property in dispute. She is the lawful owner of the property.

WHETHER RESPONDENT HAS RAISED A BONA FIDE DEFENCE TO THE CLAIMS

In determining an application for summary judgment, the test is whether the respondent is bona fide in advancing his defence and whether it can possibly succeed. Further, the balance of prejudice has to be in the respondent's favour.

In the case of Jena v Nechipote 1986 (1) ZLR 29 (SC), the court stated that all that the defendant has to establish in order to succeed in having an application for summary judgement dismissed is that:

(i) There is a mere possibility of success.

(ii) He has a plausible case.

(iii) There is a triable issue.

(iv) There is a reasonable possibility that an injustice may be done if summary judgment is granted.

The respondent does not satisfy any of the above requirements.

The respondent has neither challenged the validity of the sale nor challenged the rights of the innocent purchaser. The respondent is required to allege facts which, if proved at the trial, would entitle him to succeed in his defence. Although the respondent does not have to set out the facts exhaustively he must set out material facts upon which his defence is premised with sufficient clarity to allow the court to decide whether these facts constitute a valid defence to the claim. It is not sufficient for the respondent to advance vague generalisations and bald and sketchy details: see the case of Hales v Doverick Investments (Pvt) Ltd 1998 (2) ZLR 235 (H).

The respondent, in my view, does not have a bona fide defence to the applicant's claims.

The facts which led to the house being sold in execution have nothing to do with the applicant who is an innocent purchaser. I have already set out the legal routes available to an individual whose property has been sold in execution and where transfer has already been effected into the names of the innocent purchaser. If the respondent was diligent enough he should have made an urgent application to stop the sale of the property.

He failed to do so.

Even so, after the sale was conducted, the respondent could have made an application for the sale not to be confirmed.

The respondent did not do so.

The story by the respondent, that he did not receive the summons, is unbelievable, regard being had to the fact the sale was advertised in the newspapers as required by law. The application for rescission of judgment, which the respondent seems not very keen to conclude, has no effect on the application for summary judgment.

The respondent has no legal basis to justify his continued occupation of the house - rent free.

I have no difficulty in concluding that the respondent has no recognizable defence, neither are there any triable issues. The respondent's defence is a delaying tactic which is designed to frustrate the applicant from taking over occupation of the property. The plaintiff's claim is unanswerable and she is entitled to summary judgment with costs on a punitive scale:

I accordingly order as follows:

1. The respondent be and is hereby ordered to vacate the premises at Stand 24733 Gundwane Road, Pumula North, Bulawayo, and all those claiming occupation through him, forthwith.

2. The respondent pays the sum of US$200 (two hundred dollars) being monthly rentals from 10 December 2013 to date of eviction.

3. The respondent pays costs of suit on an attorney and client scale.

HH58-12 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDA REBECCA MINE vs JOACHIM C NGUWO
Ruled By: MUTEMA J

On 29 March 2011 I dismissed, unconditionally, an application for summary judgment by the applicant.

On 4 May 2011, I dismissed a chamber application for leave to appeal to the Supreme Court against the order dismissing the application for summary judgment. The application for the leave to appeal had been made pursuant to section 43(2)(d) of the High Court Act [Chapter 7:06]. That provision states that:

“(2) No appeal shall lie –

(a)…,.

(b)…,.

(c)…,.

(d) From an interlocutory order or interlocutory judgment made or given by a judge of the High Court, without the leave of that judge, or, if that has been refused, without the leave of a judge of the Supreme Court…,.”

I dismissed the application for leave on the basis of the provision of section 43(2)(b) of the of the High Court Act [Chapter 7:06] which provides:

“(2) No appeal shall lie –

(a)…,.

(b) From an order of a judge of the High Court in which he refuses an application for summary judgment and gives unconditional leave to defend an action;”

In view of the clear and unambiguous provisions of section 43(2)(b) of the High Court Act, and the fact that my order was one dismissing an application for summary judgment wherein I gave unconditional leave to the respondent to defend the action, that order is not subject to any appeal and section 43(2)(d) of the High Court Act does not apply.

Even the Supreme Court cannot grant leave to appeal against such an order.

The provisions in section 43(2)(b) of the High Court Act [Chapter 7:06] have been literally interpreted in a number of precedents.

In Haulage (Pvt) Ltd v Mumurgwi Bus Service (Pvt) Ltd 1980 (1) SA 729 (ZRA), the court, in interpreting section 31(1)(b) of the predecessor High Court Act [Cap 14] (ZR) whose provisions fell on all fours with those in our current section 43(2)(b) of the High Court Act [Chapter 7:06] held that, in providing in section 31(1)(b) of the High Court Act [Chapter 14] (ZR), that no appeal shall lie from an order of a judge of the General Division giving 'unconditional leave to defend an action', the Legislature intended to refer only to the granting of unconditional leave to defend in summary judgment proceedings in terms of what are now Rules 69 and 70 of the Rules of the High Court (Order 10 of the High Court (General Division) Rules in Rhodesia Government Notice 995 of 1971).

Implicity, from the provisions of section 31(1)(b) of [Cap 14], where conditional leave to defend is granted in summary judgment proceedings, the right of either party to appeal is restricted to a right of appeal (with leave of the court under section 31(1)(b)) only against the conditions imposed.

Pertinent to note here is that the provisions of section 31(1)(b) of the then [Cap 14] are similar to those of section 43(2)(b) of the present High Court Act and Rules 69 and 70 of Order 10 of the High Court Rules 1971 are also still the same: see also Howff (Pvt) Ltd v Tromp's Engineering (Pvt) Ltd 1977 (2) SA 267 (R); Rheeder v Spence 1971 (1) SA 1041 (R).

In spite of the plain language of the relevant legislation and case law cited above, to the effect that refusal of an application for summary judgement, coupled with unconditional leave to defend an action, is not appealable, the applicant's legal practitioner, following my refusal of leave to appeal, has since noted an appeal to the Supreme Court against my order refusing summary judgment.

Whence he got the leave to lodge such appeal is alien to the applicable law.

He has now requested for written reasons for my order of 29 March 2011 to enable him to prosecute his appeal.

It is not for me to withhold them in spite of the law saying no such appeal shall lie from such an order. Those reasons are herewith provided.

In the summary judgment application, paragraph 1 of the draft order is couched thus:

“1. Summary judgment be and is hereby entered in favour of the applicant against the respondent for the ejectment of the respondent and all persons claiming occupation through him from the immovable property known as No.251 Wary Avenue, Bindura.”

This is one of scores of similar cases wherein the respondents, just like the present respondent, are ex-employees of the applicant whom the applicant is seeking to evict from the several company houses on the basis that the respondents were tenants, and, since their employment with the applicant has terminated they must vacate the houses.

Just like other respondents, the respondent herein argues that the applicant sold the house to him and he has since paid off the full purchase price while he was still an employee, hence, the applicant cannot legally evict him.

The circumstances surrounding the case are somewhat queer.

What is common ground is that the applicant anticipated closure of its mine having foreseen viability difficulties. The management and workers engaged each other with a view to disposing of company houses by way of sale to sitting tenants. Some Housing Committee was established to oversee and conclude that process. Several meetings were held which culminated in management and employees signing a Memorandum of Agreement to the effect that the applicant “agreed to dispose of its housing units situated in Chiwaridzo, Grey Line Flats, and Low Density to its employees who are sitting tenants effective on 1 December 2003. Find the agreed prices attached.”

The schedules attached reflect names of the beneficiaries, house numbers, new valuations, and monthly repayments.

Then comes the queerness of the entire arrangement.

On 12 December 2003, the applicant concluded what is termed a Memorandum of Agreement of Lease with the various sitting tenants who were to purchase the houses. In the so-called lease agreement are clauses, inter alia, providing for the amount of rent payable per month which was to “escalate periodically at the rate and on the basis described in Annexure 'A' hereto.”

The Annexure 'A' provides;

“The value of the property will be revalued each time the employee is awarded the annual salary increment. The outstanding balance as at the effective date of the increment is what is revalued…,. The revalued outstanding balance will then be divided by the remaining period to get the monthly payment.”

The “lease” was to endure for five years commencing on 1 January 2004 and had an option to purchase the property after the five year period. The rentals paid by the lessee in terms of the “lease” were to be taken into account and be deducted from the amount due in respect of the purchase price.

The respondent's various payslips over the years reflect two pertinent items, viz a deduction itemised as “Rent to Buy” and another itemised “Bal. Rent to Buy.”

It is essentially the foregoing facts upon which the contention revolves.

The applicant contends that no Sale Agreement was concluded but a lease, while the respondent contends that a Sale Agreement was in fact concluded and that the purported lease was simply a “finance lease whose lifespan would go as far as the last instalment towards the purchase of the house by myself” and was never meant to be an operating lease.

While the applicant relied on the case of Ashanti Goldfields Zimbabwe Limited v Clemence Kovi SC07-09 which held that the arrangement between the parties was not a sale but a lease, the respondent argued that facts of the present case are different from those in Ashanti Goldfields Zimbabwe Limited v Clemence Kovi SC07-09. He further contended that in a trial cause in:

1. Simbarashe Antonio v Ashanti Goldfields Zimbabwe Limited & Registrar of Deeds; 2. Kingstone Mujati v Ashanti Godfields Zimbabwe Limited t/a Freda Rebecca Mine & Registrar of Deeds; 3. Ashanti Goldfields Zimbabwe Limited v Kwadzanayi Bonde HH135-09 the High Court (MAKARAU JP…,.) distinguished Ashanti Goldfields Zimbabwe Limited v Clemence Kovi SC07-09 on the facts similar to ones in casu and held that there was a sale.

Therein, the learned judge, at p10 of the cyclostyled judgment, held as follows:

“The plaintiffs allege that it was the first agreement that was entered into with the requisite intention of creating a binding agreement between the parties. The subsequent lease agreements were not as they were meant and understood by both parties to be mere vehicles of facilitating the payment of the purchase prices for the housing units. That, in my view, should end the enquiry.”

And at pp13 and 14 she held as follows:

“In concluding as I do, I am aware of the Supreme Court judgment in Ashanti Goldfields Zimbabwe Limited v Clemence Kovi SC07-09 in which it was held that the agreement of 1 December 2003, between the defendant before me and a similarly placed employee to the plaintiffs before me, was not an agreement of sale. It was held in that case, that, in the agreement, the defendant agreed to offer for sale the housing units to its employees. While the Supreme Court in the Kovi matter found no evidence that the employee in that matter took up the offer; in casu, I believe I have such evidence. The clear evidence led before me shows that each of the three employees took up the offer made to them and exercised the option by commencing to make periodic payments to the defendant. More importantly, in my view, such payments were accepted by the defendant's management of the day as a reduction in the purchase price of the housing units involved.”

Since the facts and arguments in casu fall on all fours with the cases dealt with by MAKARAU JP…, cited above and also that the applicant's counsel in the instant case represented the same client in the above cited matters, he ought to have realised the futility of launching the application for summary judgment as he must have known that the respondent has a triable or arguable defence.

Over and above that, the parties in that case are still awaiting the outcome of the appeal noted at the Supreme Court.

The applicant was, accordingly, trying a long shot in the dark.

The foregoing were the reasons why the application for summary judgment was refused and the respondent given unconditional leave to defend the action.

HH413-18 : LAFARGE CEMENT (ZIMBABWE) LIMITED vs MUGOVE CHATIZEMBWA
Ruled By: MATHONSI J

The applicant seeks summary judgment for the eviction of the respondent and all those claiming occupation through him from residential premises known as No.16 West Estate, Lafarge Cement in Greendale, Harare.

When the respondent received the eviction summons in HC9669/17 in which the applicant sought to vindicate against the respondent, it being the owner of the premises which the respondent occupies without its consent and authority, the respondent entered appearance to defend and filed a plea.

In that plea, the defendant admitted losing his employment with the applicant but averred that he was contesting his dismissal and would only vacate the premises if he loses his labour case. He also disputed liability to pay hold over damages on the ground that he never agreed to any rental for the premises.

It is against that background that the applicant has sought summary judgment as it is of the firm view that the respondent possesses no bona fide defence to the eviction claim and that appearance has been entered for purposes of delay.

This is because the respondent secured the premises by virtue of his employment by the applicant as a Quarry Superintendent, which employment was terminated on 12 November 2013 following an act of misconduct the respondent admitted having committed. For that reason, the respondent cannot continue in occupation of the company house not being an employee of the company.

All the material facts are really common cause.

The parties indeed enjoyed an employer-employee relationship until the respondent violated the employer's Code of Conduct resulting in him being charged with misconduct. One of the acts of misconduct was that he had left his work place without permission. In fact, the respondent had taken a Nissan Hardbody motor vehicle belonging to the employer and driven it to a farm in Ruwa, about 25km from his work location, on a personal errand, and was busted by his boss who later preferred charges against him. When that happened the respondent had, in vain, apologized profusely. He was still dismissed from employment.

The respondent appealed to the Labour Court against the dismissal but had his appeal thrown out by that court by judgment delivered on 24 October 2014, the court concluding that there was no merit in the appeal.

The respondent then sought leave to appeal against the judgment of the Labour Court which application for leave was not made timeously and he had to seek condonation. The application for leave was not granted he having defaulted resulting in its dismissal.

What the respondent is doing now is to seek a rescission of the default judgment dismissing his application for leave to appeal. So it is not like there is any pending appeal but the respondent is relying on that to contest eviction.

The issue for determination therefore is whether a former employee who was allocated company accommodation by the employer by virtue of his or her employment, but has lost that employment, is entitled to resist eviction by way of an actio rei vindicatio merely because he or she harbours an intention to contest the dismissal - a dismissal that has been upheld by the Labour Court.

The point to note is that there exists no employment relationship between the parties at the present moment - it having been terminated.

It is also common cause that the applicant is the exclusive owner of the premises and had only given the premises to the respondent as part of his employment benefits.

Can the respondent continue enjoying the benefit of employment under those circumstances?

The principles of the actio rei vindicatio are settled in our law.

The owner of property has a vindicatory right against the whole world. It is a remedy available to the owner whose property is in the possession of another without his or her consent. Roman-Dutch law has always protected the right of an owner of property to vindicate his or her property as a matter of policy - even against an innocent occupier or innocent purchaser, where the property would have been sold. The occupier would only have the defence of estoppel: see Mashave v Standard Bank of South Africa Ltd 1998 (1) ZLR 436 (S)…,; Chetty v Naidoo 1974 (3) SA 13 (A)…,; Oakland F Nominees (Pty) Ltd v Gelria Mining and Investment Co Ltd 1976 (1) SA 441 (A)…,.

Indeed, the principle of the actio rei vindicatio is that an owner cannot be deprived of his or her property against his or her will. All the owner is required to prove is that he or she is the owner and that the property is in the possession of another at the commencement of the action. Proof of ownership shifts the onus to the possessor to prove a right to retention: see Jolly v Shannon and Anor 1998 (1) ZLR 78 (H)…,; Stanbic Finance Zimbabwe Ltd v Chivhungwa 1999 (1) ZLR 262 (H); Zavazava & Anor v Tendere 2015 (2) ZLR 394 (H)…,.

Counsel for the respondent submitted, that, in an application for summary judgement the respondent is not required to prove a defence. All that the respondent is enjoined to do is to show that he has a bona fide defence, which, if proved at the trial, would entitle him to succeed. She submitted that the respondent has managed to do so because he had shown that there is a matter pending in which he is challenging his dismissal.

I agree with counsel for the applicant, that, there is no appeal which is pending at the moment, and that even if an appeal had been pending in the Labour Court such an appeal would not suspend the decision appealed against by virtue of the provisions of section 92E(2) of the Labour Act.

That may indeed be academic because the appeal to the Labour Court was dismissed. The respondent cannot return to the Labour Court which upheld his dismissal.

As already stated, what his pending in that court is an application for rescission of judgment, not even the judgment dismissing the appeal because that cannot be rescinded it having been made in the presence of the respondent, but the judgment dismissing his application for leave to appeal.

There is therefore no appeal pending and no leave to appeal has been granted. The respondent is holding onto nothing at all as would entitle him to resist eviction....,.

A former employee does not acquire a right of retention as can be used to resist a rei vindicatio on the basis of a challenge of a completed dismissal from employment and a forlorn hope that such dismissal may be reversed at a future uncertain date.

This is particularly so in a case such as the present, where the former employee is not even in court properly challenging the dismissal. He is only seeking a rescission of a judgment which denied him leave to appeal....,.

There is no determination of the contract of employment in this matter which distinguishes it from the case of Zimtrade v Makaya 2005 (1) ZLR 427 (H) where this court held that the employer could not seek to repossess its assets from an employee using the rei vindicatio pending the determination of the contract of employment.

In this case, the contract has already been determined by both the employer's disciplinary committee and the Labour Court....,.

A dismissed employee has no right of retention in respect of the property where the employment contract has been terminated and there is no case pending in that regard.

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Law Portal
Zimbabwe

Lis Alibi Pendens or Pending Litigation re: Summary Judgment Proceedings

Appealed
SC10-16 : N. SVOVA & OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY
Ruled By: ZIYAMBI JA GWAUNZA JA and MAVANGIRA JA

View Appeal
HH269-13 : NATIONAL SOCIAL SECURITY AUTHORITY vs N. SVOVA and ORS and R. MAKASI and ORS and P. MUDYIWA and ORS and W. MUGOBOGOBO and ORS
Ruled By: MATHONSI J

SC37-20 : ROSEMARY BASTIN vs KUFA MADZIMA (IN HIS CAPACITY AS THE EXECUTOR OF THE ESTATE LATE MARIMO MADZIMA)
Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

HB129-15 : LIZNET MPOFU vs ENOCK B. MPOFU
Ruled By: MAKONESE J

HH58-12 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDA REBECCA MINE vs JOACHIM C NGUWO
Ruled By: MUTEMA J

HH413-18 : LAFARGE CEMENT (ZIMBABWE) LIMITED vs MUGOVE CHATIZEMBWA
Ruled By: MATHONSI J

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Law Portal Zimbabwe

Lis Alibi Pendens or Pending Litigation re: Summary Judgment Proceedings

Appealed SC10-16 : N. SVOVA & OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY Ruled By: ZIYAMBI JA GWAUNZA JA and MAVANGIRA JA

View Appeal HH269-13 : NATIONAL SOCIAL SECURITY AUTHORITY vs N. SVOVA and ORS and R. MAKASI and ORS and P. MUDYIWA and ORS and W. MUGOBOGOBO and ORS Ruled By: MATHONSI J

SC37-20 : ROSEMARY BASTIN vs KUFA MADZIMA (IN HIS CAPACITY AS THE EXECUTOR OF THE ESTATE LATE MARIMO MADZIMA) Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

HB129-15 : LIZNET MPOFU vs ENOCK B. MPOFU Ruled By: MAKONESE J

HH58-12 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDA REBECCA MINE vs JOACHIM C NGUWO Ruled By: MUTEMA J

HH413-18 : LAFARGE CEMENT (ZIMBABWE) LIMITED vs MUGOVE CHATIZEMBWA Ruled By: MATHONSI J

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Law Portal
Zimbabwe

Appealed
SC10-16 : N. SVOVA & OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY
Ruled By: ZIYAMBI JA GWAUNZA JA and MAVANGIRA JA

View Appeal
HH269-13 : NATIONAL SOCIAL SECURITY AUTHORITY vs N. SVOVA and ORS and R. MAKASI and ORS and P. MUDYIWA and ORS and W. MUGOBOGOBO and ORS
Ruled By: MATHONSI J

SC37-20 : ROSEMARY BASTIN vs KUFA MADZIMA (IN HIS CAPACITY AS THE EXECUTOR OF THE ESTATE LATE MARIMO MADZIMA)
Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

HB129-15 : LIZNET MPOFU vs ENOCK B. MPOFU
Ruled By: MAKONESE J

HH58-12 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDA REBECCA MINE vs JOACHIM C NGUWO
Ruled By: MUTEMA J

HH413-18 : LAFARGE CEMENT (ZIMBABWE) LIMITED vs MUGOVE CHATIZEMBWA
Ruled By: MATHONSI J