BERE J: I have had the privilege of hearing counsel
in this matter both on the question of law and the facts relating to this case. I propose to adopt a wholistic approach.
The question of law
It is the settled
legal position that in order to be granted interim interdict the applicant must
satisfy the following requirements:
a)
that the right which has prompted the applicant to make
the application and which right they seek to protect is clear or if not clear
is prima facie established though
open to some doubt;
b)
that if the right is only prima facie established, there is a well grounded apprehension of
irreparable harm to the applicant if the interim relief is not granted and ultimately
succeeds in establishing his right;
c)
that the balance of convenience favours the granting of
interim relief;
d)
that the applicant has no other satisfactory remedy.
See
Airfield Investments (Private) Limited
case.
The facts established in this case
The position of
the first respondent and second respondent has been clarified to the
satisfaction of the applicants so no order should be made against them.
The
applicants have satisfied what is expected of them in terms of the law as I
perceive it. They allege in their
founding papers that they purchased the stands in question and that those
stands are being interfered with.
The third respondent is alleged to
have already advertised for the sale of the fourth and fifth applicant stands. It is not like the third respondent is a
stranger to the issue of the stands concerned.
The
fourth respondent is key player in this transaction and it has been correctly
accepted by their counsel that an interdict be granted against it.
Until
this matter was brought to court for argument the applicants did not know of
the existence of the fifth respondent and its interest in the property. By
applying for jointer the fifth respondent has advertised its interest in the
property to the whole world and I do not see how this temporary interdict could
be of any force or effect without it having to affect the fifth respondent who
even in its application for joinder at one stage expressed the desire to be
joined in the main matter HC 2097/10 although it was subsequently suggested by
their counsel that that was an error.
It is significant that Edward
Jambaya the first respondent's Managing Director in the main action HC 2097/10 did
not in his opposing affidavit in that matter proffer meaningful defence to the
main claim, neither did he in that case explain the interest of the fifth
respondent who has just been joined in.
The first respondent's main defence
in the main matter as can be gleaned from Jambaya's affidavit was merely to
plead with the applicant to grant it more time to fulfill its part of the bargain
and not that the property was subject of a prior sale agreement by the fifth
respondent as what fifth respondent is now claiming.
Taking a wholistic approach to this
matter it is clear that the applicants, the third, fourth and fifth respondents
have an interest in the properties involved and it is only logical that the
interim interdict be couched in such a way that it binds all the three
respondents.
Accordingly
the interim interdict sought is granted against the third respondents viz, third,
fourth and fifth respondents.
TERMS OF FINAL ORDER SOUGHT
That you show
cause why a final order should not be made in the following terms:
- The respondents and or their agents shall not sell,
donate and or otherwise dispose the applicants' Stand Nos 713, 714, 715
and the remainder of stand No 279 Helensvale Township, of Helensvale
Harare.
- The respondents and all those claiming through them
shall vacate from and give vacant possession of Stand No. 713, 714, 715 and the remainder of 279 Helensvale
Township Borrowdale, Harare to the applicants' upon service of this order.
- The respondents' shall jointly and severally the one
paying the other to be absolved, pay the costs of this application on a
legal practitioner client scale.
INTERIM RELIEF GRANTED
Pending the
determination of matter HC 2097/10
1.
The third, fourth and fifth respondent, their employees
or agents be and are hereby interdicted from developing, disposing or alienating
all or any of Stand Nos. 713, 714, 715 and the remainder of Stand 279
Helensvale Township of Helensvale, Borrowdale, Harare.
SERVICE OF THE PROVISIONAL ORDER
The order shall
be served by the applicants' legal practitioners to the respondents.
Mabulala & Motsi, applicants' legal practitioners
Mawere & Sibanda, first and second respondents' legal
practitioners
Chikumbirike &
Associates, third to fifth respondents' legal
practitioners
