Vindicatory Action or Rei Vindicatio re: Possessory Rights

HH25-12 : TAFIREYI NYIKADZINO vs JOHN ASHER and MINISTER OF LANDS & LAND RESETTLEMENT and DEPUTY SHERIFF HARARE
Ruled By: BHUNU J

On 12 June 2007, the applicant was issued with an offer letter under the Land Reform and Resettlement Programme (Model A2 Phase II) authorizing him to lawfully hold, occupy, and use the whole of subdivision 8 of Welston in Harare in the District of Mashonaland East Province approximately 42.07 hectares in extent.

The applicant has since taken occupation of that land on the strength of the offer letter.

The first respondent is the former owner of the land in question.

Aggrieved by the applicant's conduct in taking occupation of the land, he sued and obtained a spoliation order under case number HC612/09 authorizing him to eject the applicant from the land.

Dissatisfied with that judgment, the applicant appealed to the Supreme Court under case number SC43/09.

This court later ruled, that, the initial judgment being an interlocutory judgment could not be appealed against without leave of the court. As a result, no heads of argument were filed with the Supreme Court.

On 16 October 2009, the Supreme Court ruled, in terms of Rule 44 of its Rules, that the appeal had been abandoned.

Despite that ruling, the first respondent did not seek to enforce the spoliation order granted to him by this Court until almost two years later when he issued a writ of execution.

The spoliation order was issued before the Supreme Court had clarified the law in respect of land disputes of this nature.

Since then, the Supreme Court has clarified the law in the landmark decision of Commercial Farmers Union & 9 Ors v The Minister of Lands and Rural Resettlement & 6 Ors SC31-10.

In that case, the learned CHIEF JUSTICE had this to say at pp21 and 23 of the cyclostyled judgment:

“On the other hand, section 3 of the Act criminalizes the continued occupation of acquired land by the owners or occupiers of land acquired in terms of section 16B of the Constitution beyond the prescribed period. The Act is very explicit, that, failure to vacate the acquired land by the previous owner, after the prescribed period, is a criminal offence. It is quite clear from the language of section 3 of the Act that the individual applicants, as former owners or occupiers of the acquired land, have no legal rights of any description in respect of the acquired land once the prescribed period has expired….,.

The holders of the offer letters, permits or land settlement leases have the right of occupation and should be assisted by the courts, the police, and other public officials to assert their rights. The individual applicants, as former owners or occupiers of acquired land, lost all rights to the acquired land by operation of the law. The lost rights have been acquired by the holders of offer letters, permits or land settlement leases. Given this legal position, it is the holders of offer letters, permits and land settlement leases, and not the former owners or occupiers, who should be assisted by public officials in the assertion of their rights.”…,.

The applicant now seeks an order staying execution while he seeks leave to appeal out of time.

It appears to me that there is merit in this application.

On the strength of the law, as now articulated by the Supreme Court, it would appear that the first respondent may have been divested of any right to own, occupy, and use the land in dispute.

His intended occupation of the land now constitutes a criminal offence and the court cannot sanction an illegality.

That being the case, the application can only succeed.

In saying this, I am mindful of the first respondent's argument, that, peri-urban land is not susceptible to compulsory acquisition.

That position, however, needs to be clarified by the Supreme Court before the first respondent can lawfully occupy the disputed land.

It is accordingly ordered:

1. That, the execution of the Provisional Order issued under case number HC612/09 be and is hereby stayed pending an application for leave to appeal out of time to be lodged by the applicant in the Supreme Court in respect of case number HC1020/09.

2. That, such leave to appeal shall be lodged in the Supreme Court within seven days of granting this order.

3. That, in the event that such appeal is not lodged within the time-frame aforesaid, this order shall automatically cease to be of any force or effect. With the result that execution of the Provisional Order issued under case number 612/09 shall proceed without the need for further application by the first respondent.

4. That, this order shall not be construed as authorizing the first respondent to occupy, or use, the disputed land without a Court Order as such occupation might constitute an illegality.

5. There shall be no order as to costs, but, in the event that execution proceeds pursuant to paragraph 3 above, the applicant shall bear the first respondent's costs on a legal practitioner and client scale in respect of these proceedings and the resultant costs, if any, of the subsequent execution aforesaid.

SERVICE OF THE ORDER

That, leave be and is hereby granted to the applicant's legal practitioners, or the Deputy Sheriff /Messenger of Court, to attend to the service of this Order forthwith upon the respondents in accordance with the rules of the High Court of Zimbabwe.

HH40-09 : DODHILL (PVT) LTD and SIMON KEEVIL vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and NYASHA CHIKAFU
Ruled By: BERE J

BHUNU J..., stated:“Although the applicant is entitled to occupy the land, he is not entitled to evict the former owner…, because he does not own the land and has not, at any stage, acquired possession.It is now settled law, that, a lessee who has not acquired vacant possession cannot evict ...

SC20-19 : GRACE SHURO vs MOLLY CHIURAISE and CITY OF MASVINGO
Ruled By: GARWE JA, HLATSHWAYO JA and BHUNU JA

WHETHER THE FIRST RESPONDENT HAD LOCUS STANDI TO SUE FOR EVICTION Whether the first respondent had the locus standi to sue for the eviction of the appellant remains a live issue between the parties. It is common cause that the late Walter Style Matumba had entered into an agreement of sale with the Minister in respect of the ...

WHETHER THE FIRST RESPONDENT HAD LOCUS STANDI TO SUE FOR EVICTION

Whether the first respondent had the locus standi to sue for the eviction of the appellant remains a live issue between the parties.

It is common cause that the late Walter Style Matumba had entered into an agreement of sale with the Minister in respect of the property in question. The purchase price was the sum of $98,401=, payable by a deposit of $17,700= and the balance of $80,341= by monthly instalments of $1,043=, payable on the first day of each month. In terms of the agreement, Walter Style Matumba was to get title upon payment of the principal amount and any other charges payable in terms of the agreement. It is also common cause that Walter Style Matumba and the first respondent took occupation on 1^st June 1993. After the death of Walter Style Matumba, his rights and interest in the property were then ceded to the first respondent by the City Council, the second respondent.

In my view, the late Walter Style Matumba, and, subsequently, the first respondent, had the standing to evict the appellant and all those claiming through her. Whilst it is clear that they did not have title to the property, they were the registered purchasers of the property. They surely had the right to seek the eviction of the appellant.

In Pedzisa v Chikonyora 1992 (2) ZLR 445 (S), the respondent had entered into an agreement to purchase a property on a lease to buy basis from the owner/lessor of the property. In terms of the agreement, title to the property would only pass on fulfilment of certain conditions, one of which was that the lesee-to buy was not to sub-let or assign the property without the written consent of the owner-lessor. The purchaser, who was living elsewhere, did not move into the house, but, instead, sublet the property to the appellant and further assigned the property to him by selling his right of occupation and eventual right to take title. The consent of the owner was not sought before the respondent entered into a sublease with the appellant. At a later stage, the respondent sought the eviction of the appellant from the premises.

The main issue on appeal was whether the respondent, as lessee-to-buy, had locus standi to sue for the eviction of the appellant without having obtained a cession of action from the owner-lessor.

This Court held that although the terms of a lease-to-buy agreement were such that the respondent initially acquired only a personal right exercisable against the owner-lessor and not against third parties without recourse to the owner-lessor, such a personal right entitled him to delivery of vacant possession of the property. But, once he had been given vacant possession of the property and had assumed physical control over it, he then acquired a real right, entitling him to evict anyone who wrongfully occupied the property such as a trespasser. Although the respondent had not actually moved into the house, he had acquired control over the unoccupied property, and thus acquired a real right over the property. Accordingly, the respondent had locus standi to sue for the eviction of the appellant, even though he had not obtained a cession of action from the registered owner. The court further held that the fact that the respondent had entered into a sublease in breach of a clause in the lease-to-buy agreement requiring the prior consent of the owner before any sublease or assignment was effected did not preclude the respondent from suing for the eviction of the appellant.

The facts in the above case are not materially different from those in the present case. The agreement that Walter Style Matumba entered into was akin to a lease to buy agreement. Title was only to pass to Walter Style Matumba after certain conditions were met, including the condition that there was to be no sub-lease and that title would only pass upon full payment of the purchase price and other charges in terms of the agreement.

I am satisfied, on the basis of the above authority, that the late Walter Style Matumba, and, thereafter, the first respondent, to whom the property was subsequently ceded, had the requisite standing to sue for the eviction of the first respondent.

HB02-12 : MUNICIPALITY OF VICTORIA FALLS vs LOIDA NYATHI and 11 OTHERS
Ruled By: NDOU J

These are twelve cases, which were consolidated into two matters, which were heard at the same time.

For easy reference, the one matter involved what may be called the ZimSun houses (five (5) defendants under HC2224/08). The five defendants being Alice Ndlovu, Sivumo Ndlovu, Kambarachi Zex Raura, Freda Khumalo and Simolita Maseko.

The other matter involved what may be called the National Housing Fund (“NHF”) houses ((seven (7) defendants under HC2225/08). The seven defendants being Loida Nyathi, Everson Ndebele, Collen Ndebele, Phindile Ncube, Sihlobo Sibanda, Shadreck Ndlovu and Stephen Ndlovu.

The trial lasted twelve days, which is understandable, considering that there were two witnesses for the plaintiff and twelve (12) witnesses for the defendants i.e. all the defendants.

Two of the defendants had died by the time the trial commenced, and they were substituted by the executrix of their estates.

There was a bundle of documents with slightly over four hundred (400) pages as well as some more documents which were later introduced during the course of the trial. However, a closer analysis will show that the issues are fairly simple, and are similar in the seven National Housing Fund (NHF) houses and the five ZimSun houses.

Basically, it boils down to this:

(a) Is the plaintiff the owner of the twelve houses in question, or are the defendants the owners?

(b) If the plaintiff is the owner, then the plaintiff is entitled to an order for:-

(i) Evicting the defendants.

(ii) Damages.

(iii) Costs of suit.

(c) If the defendants are the owners, then they are entitled to transfer of these houses into their names with an order for costs against the plaintiff.

In essence, the defendants have to prove that there were valid contracts of purchase in respect of each of the houses in dispute. The houses concerned are the following:

Loida Nyathi - House 4251
Everson Ndebele - House 4255
Collen Ndebele - House 4247
Phindile Ncube - House 4242
Sihlobo Sibanda - House 4246
Shadreck Ndlovu - House 4241
Stephen Mpofu - House 4244
Alice Ndlovu - House 4403
Sivumo Ndlovu - House 4401
Smolita Maseko - House 4408
Kambashu Zex Raura - House 4407
Fred Khumalo - House 4400

All these properties are at Chinotimba, Victoria Falls.

Cut to the bone, in all instances, the plaintiff claims that these are pool houses for use by plaintiff employees. The plaintiff contends that the defendants were given these pool houses by virtue of their employment with the plaintiff. It further being contended that upon termination of such employment, each individual defendant will cease to occupy the property in issue.

This position does not apply to one of the defendants, Stephen Mpofu, who was never employed by the plaintiff. His case is different but the bottom line is that he was granted occupation through a lease.

Of the twelve defendants, only two, namely, Sihlobo Sibanda and Smolita Maseko are still in the employ of the plaintiff.

As alluded to above, the defendants' counter claim is for an order directing the plaintiff to take all necessary steps to transfer the various stands to each defendant on the basis that the defendants purchased the Stands on a rent-to-buy scheme.

This is denied by the plaintiff.

It is beyond dispute that these properties in issue are registered in the name of the plaintiff. The plaintiff is the registered owner of these twelve Stands. This point is admitted in paragraph 2.3 of each of the defendants' plea under HC2225/08 and paragraph 2.5 in each defendants' plea under HC2224/08.

There are documents from the Ministry of Local Government (“Ministry”) dated 20 July 2000 (pages 45 and 55 of the bundle of documents) which evince the transfer from the Ministry to the plaintiff.

This creates a problem for the defendants who contend the Stands still belong to the Ministry.

They, however, did not take any legal action against the Ministry to prevent the transfer of the Stands from the Ministry to the plaintiff. Be that as it may, I propose to consider the evidence adduced by the parties in turn.

Phillip Ndlovu

He testified on behalf of the plaintiff. He evinced that he has been the Chamber Secretary of the plaintiff since 2006. Whilst he was not employed by the plaintiff in the 1980s or 1990–1992, when most of the events occurred, from the official records available to him, and from his own investigations, the plaintiff was the legitimate owner of the houses in dispute.

He said that the defendants obtained the houses in question from the plaintiff, because of their employment with the plaintiff or because they were quasi-employees of the plaintiff such as Government teachers working at the plaintiff's schools.

In the case of Stephen Mpofu, he obtained the house because the plaintiff had previously made available accommodation to him. It is his testimony that there was a shortage of houses in Victoria Falls during the 1980s, 1990s and to date. This is evinced by documents like the minute from the parent Ministry dated 15 September 1997 produced as evidence. There are various Council deliberations and resolutions captured in the minutes filed of record which confirm the shortage. Such deliberations and resolutions centered around the necessity to provide the plaintiff's employees with accommodation.

There is a memorandum which goes further to explain that some employees were living in toilets on account of the shortage of houses. The National Housing Policy Frameworks for Zimbabwe: A Review of the Policies and Strategies, confirms the shortage.

The defendants also confirm the shortage and concede that they had to wait for some years before they were allocated the houses.

He said there must have been a connection between the defendants' employment with the plaintiff and the allocation of the houses.

This is an independent witness who spoke of matters which related to his professional responsibilities. He was expounding to the court what he knew and observed from the official records. He has no personal interest to pursue and no hidden agenda.

This is in stark contrast to the defendants who had an obvious massive financial interest in the outcome of this case, namely, to retain the houses which they had been informed, as early as 1993, were not theirs, but were in fact pool houses of the plaintiff.

This witness confirmed that all these disputed houses were registered in the name of the plaintiff. This is important as such registration is matter of substance and not form.

He explained that there were attempts to assist the plaintiff employees to acquire houses through CABS finance. These initiatives came to naught because they required the plaintiff to pay cash deposits on behalf of its employees. As the plaintiff is a creature of the Urban Councils Act, section 148 of the Act made such initiatives impossible.

The plaintiff could only act as a guarantor to the employees and not pay cash deposits on their behalf. In such an event, the plaintiff would still require ministerial approval. There is no record of such approval.

He also significantly testified that none of the defendants has written agreement evincing that they have become owners of these houses.

According to the plaintiff's record, there is nothing that shows that ownership of the houses was passed to the defendants. The defendants paid security deposits and monthly rentals and allied charges but not purchase prices for the houses.

The records clearly show that these are pool houses for use by those in the plaintiff's employ.

All the defendants were given notice to vacate these pool houses after they were allocated residential Stands of their own and they refused to do so. They have defiantly remained in occupation of the plaintiff's houses even when most of them have left the plaintiff's employ save for the two defendants still in the plaintiff's employ. They have not exhibited any contract of sale to the plaintiff.

In brief, they have not shown the legal basis upon which they claim the plaintiff sold them the houses. There is no record produced by the defendants that they acquired the houses on rent-to-buy contracts.

He also indicated that other plaintiff employees did not claim these pool houses and moved out.

This witness was subjected to lengthy, tactful, and determined cross-examination. At the end of the day I find that he is a credible witness. He made several concessions favourable to the defendants' case. He is a truthful witness.

Thembinkosi Khumalo

He has been employed by the plaintiff for nineteen (19) years. He is the acting Town Treasurer for the plaintiff. He started in the plaintiff's employ as a Senior Accounting Officer in the Treasury Department.

He mainly corroborated what the first witness said in a material way.

As far as the ZimSun houses are concerned, he said, in 1992, ZimSun had built 160 houses for its staff. These houses were built at the time when the plaintiff was facing acute shortage of accommodation for its staff. The plaintiff approached ZimSun who offered them twelve (12) houses including the five (5) subject of these proceedings as stated above. The plaintiff paid for these houses using Stands on which ZimSun built their staff houses plus an additional amount of Z$68,000.

After acquiring these ZimSun houses, they put in the plaintiff staff and quasi-plaintiff staff.

He confirmed that there were initiatives to sell these houses to staff through CABS, but, as stated by the previous witness, all these came to naught on account of the low salaries of staff and statutory limitations as the plaintiff is a local government.

He said some of the defendants stopped paying rentals in 2007 whereas two, who are still plaintiff employees, have continued paying. These two defendants, who are still plaintiff employees, are Smolita Maseko and Sihlobo Sibanda.

He evinced that if council property is being sold, Treasury Department would be served with an Agreement of Sale. The Agreement of Sale must state the tenure of the loan (if it is not a cash sale), the instalment payable by the beneficiary, and the interest on the loan amount.

He categorically stated that none of the defendants had any Agreement of Sale with the plaintiff.

He said that the Z$500 paid by each defendant was Z$250 for rent and Z$250 for security deposit (good tenancy deposit). He also said when the plaintiff's employees wanted to carry out repairs in these houses, such repairs must first be certified as necessary by the Town Engineer. This is a pre-condition of reimbursement of the tenant by the plaintiff.

As far as defendant Steven Mpofu is concerned, he was not employed by the plaintiff. He was employed by ZimSun. He was renting the plaintiff's guest house. They decided to accommodate him in one of the pool houses on a lease basis.

He was adamant that the plaintiff made a decision to allocate these houses to its employees to attract and retain them. The houses were, however, to remain as pool houses.

He further stated that when houses were allocated by the plaintiff to individuals, whether employees or not, the plaintiff ensured that there were documents which showed the various costs centres such as for the sewer, education levy, etc. This is reflected in receipts such as on pages 250, 251 and 356 of the bundle of documents. This was because the houses in question were being rented.

The defendants had rent cards where credits were entered when payments were made and the payments credited to the appropriate costs centres.

He said Treasury had agreements of sale (rent-to-buy) for other properties allocated to the defendants, but did not have that in respect of the twelve (12) houses in issue. What the defendants had, even on their own admissions, were rent cards. He said a rent card is self-evident and cannot be stretched to mean rent-to-buy.

As far as the letter written by a Mr Lucas M M Sibanda, the former Chief Executive Officer of the plaintiff, he said this individual was dismissed by the plaintiff on account of documented acts of misconduct. He said his letter of support of the defendants is untrustworthy and devious.

On the question of damages, he said rentals for the houses in question were US$150 per month at the lowest rate to US$200 per month for the more expensive ones. He said damages in the sum of US$150 per month in respect of each of the defendants would be appropriate.

This witness was extensively cross-examined by the defendants' counsel. I am satisfied that he gave his evidence well. I find that he is a credible witness. He is very familiar with the financial operations of the plaintiff, and, in particular, he is very familiar with the acquisition of the houses in issue and how the defendants ended up in occupation.

Coming to the defendants' case, I also propose to consider the evidence adduced in turn.

Phindile Ncube

He was employed by the plaintiff between 11 May 1987 and February 2009. He had joined the plaintiff as Revenue Clerk responsible for housing. In 1988 he was elevated to the position of Senior Housing Clerk responsible for the supervision of housing clerks and the computation of the home ownership scheme. He gave a detailed account of the Government Housing policy.

Most of the evidence is not relevant for the determination of the legal issues before me. I will only focus on the relevant part of the testimony.

In relation to the house in dispute, between him and the plaintiff, he says he placed his name on the Housing Waiting List as he was staying with his parents at the time at 3133 Chinotimba. He was allocated the disputed Stand number 4242 Chinotimba. After the allocation, he made improvements on the property as evidence that he considered that the plaintiff allocated the property to him on a rent-to-buy basis. Such improvements comprise of installing burglar bars, fencing of the property, and sharing of the walling costs with the neighbour.

He conceded that he has another property, being Stand 4222 Chinotimba allocated to him by the plaintiff. He said that he, like the other defendants, was sold Stand 4242 because he was on the waiting list. He, however, did not have a single document to prove the purported sale.

Despite the fact that he alleged that he was virtually running the Housing Department of the plaintiff at the relevant time, he could not produce any document to prove his claim. All he had is a rent card.

It is quite clear that the rent card is a tenant's card, not a card to prove ownership. Even his erstwhile legal practitioners conceded this fact on pages 94-95 of the bundle of documents.

He could not explain why he and the other defendants did not sue the Minister responsible for National Housing to transfer the houses in dispute to them, but adopted an attitude of supine indifference, when the said Minister transferred the said houses into the plaintiff's name.

He tried to suggest that during the early 1990s there were no rent-to-buy agreements, and that is why he and other defendants had no documents to support their version of events.

Unfortunately for him, the documents from pages 279 to 415 on the bundle of documents proved otherwise.

In pages 279–285 is a rent-to-buy entered into in 1994 in respect of Stand 5053 Chinotimba. On page 299, the sale agreement was entered into in 1997. His own Agreement of Sale, in respect of Stand 4222, supra, was entered into around 1994. He said that the document by Mr Sibindi, on page 76 of the bundle of documents, was the source of all the defendants' problems.

This is patently untrue because the document was authored in 2007 and yet, at least 14 years earlier, the plaintiff had already said that the houses in question were pool houses and belonged to it.

The plaintiff even has the support of the Workers' Committee in this regard.

This witness held himself out as an expert and the spokesperson for all the twelve defendants. He confidently described himself as a “local government practitioner”. He did this to try to speak with an authoritative voice that brooked no contradiction.

Regrettably, he failed dismally in this endeavour. He was an extremely poor witness. He was not credible as alluded to above. Further, he was a witness with an interest, not only in retaining Stand 4242 Chinotimba, but also because he had obviously misled the other defendants and given them the impression that he was the authoritative voice in respect of the twelve houses in question.

There was the difficulty in that as early as 1991, 1992 and 1993 onwards, the plaintiff had made it clear that the twelve in question belonged to the plaintiff and the plaintiff wanted them back. This is clear in the letters from legal practitioners and also minutes of the seven National Housing Fund houses.

He tried to assert that Central Government gave directives to Councils, such as the plaintiff and thus the plaintiff was obliged to obey these directives which had the force of law. In other words, the local authorities were only agents, or implementing arms of the Central Government.

This assertion was clearly flawed.

The witness was unable to point to any such legislation which made suggestions by Central Government law binding upon Council.

It is clear that the National Housing policies were guidelines. In fact, on page 208 of the bundle of documents, it is made clear that these were guidelines. In any event, the Central Government transferred these houses into the plaintiff's name.

The defendants did not challenge the said transfer before the court.

When he was cross-examined, and asked how it was that all twelve defendants had other Stands in breach of the Central Government policy which he appeared to champion so enthusiastically because it was convenient to him, he made a volte face and said that this policy on the prohibition against multiple ownership of houses in the high density suburbs, was relaxed by the plaintiff.

However, he was unable to provide documentary evidence of such relaxation of the policy. He was unable to do so because he was misleading this court.

Further, he was unable to give the agreed purchase price for the house in dispute. The purchase price is an essential element of the agreement of sale.

He tried to get around by stating that he expected to pay rentals for the house over thirty (30) years and after that the house would be his. He then changed and said that he had fully paid for the house in issue because of inflation.

He ran into great difficulty when he referred to the ZimSun houses, where, again, he tried in vain to hold himself out as an authority on these houses.

He said the purchase price of these houses was $35,000. This figure is not supported by any documentation.

He went on to say that these houses were supposed to be paid for over twenty-five (25) years. But, $35,000 divided by 25 years, then by twelve months to arrive at the monthly payments, gives a figure of $116,67 which is nowhere near the $25,977 purchase price referred to on page 9 of the bundle of documents.

To compound his already difficult situation, he then changed and said that initially the ZimSun houses were paid for by way of a deposit of $250, the monthly rentals of $250 for 25 years.

Simple mathematics shows that the purchase price at $250x12 months x 25 years =$75,000. This figure had no relation to what he was talking about.

He then said that the plaintiff decided to reduce the purchase price to $180.

Still $180x12 months x 25 years = $54,000. This is so because he said the deduction from employees' salaries to pay for the house should not exceed 27% of the employee's salary.

This again was not supported by any documentation.

He further explained that of the $180, $20 would be utilized for service charges and $160 towards the purchase price, still the figure would be almost double the purchase price stated above.

There was no explanation forthcoming from him when the policy to reduce the price from $250 to $180 monthly was effected.

All along, it was the defendants' case that in respect of the ZimSun houses, they had paid a deposit of $250 and monthly instalments of $250. They had paid the full purchase price for the houses in question.

This was their case in their pleadings and synopsis of evidence.

There is no mention in the pleadings of the change to $180 per months or $160 plus $20 service charges per month.

It is highly improbable that if the defendants' erstwhile legal practitioners had been given instructions, they would not have mentioned it in both the pleas and synopsis of evidence.

This was something which was crucial to their case, as it relates to the alleged purchase price.

The fact that this was never mentioned in the pleadings shows that this witness made it up.

These contradictions and changes simply demonstrate a desperate witness who could not tell the truth.

In any event, the issue of the alleged change in the monthly instalments was never put in cross-examination to Mr Khumalo. This shows that it is an after-thought by the witness.

The only inference to be drawn is that the witness was untruthful, and so to the other defendants who supported him in making this assertion.

It is also significant that nowhere in the five defendants' pleas and synopsis of evidence is the alleged purchase price mentioned.

All in all, this witness was totally unreliable and his testimony is not worthy of any belief.

Collen Ndebele

He, like the other defendants, gave similar evidence, which was not supported by any documentation, but in fact contradicted by documentation before the court.

He had no documentation to support his assertion that he entered into an agreement to rent-to-buy the house he was claiming. All he relied upon was a rent card which in fact showed that he was a tenant. He said he believed that he had paid for the house in dispute in full, yet, on his own version he paid just over 20 years. His rent card showed nothing of ownership. His testimony suffers the same weakness as that of the previous witness. He was as un-impressive as the last witness. He was equally evasive on the purchase price and the lack of Agreement of Sale.

Sihlobo Sibanda

He was equally not impressive as a witness. The documents showed that he was allocated the disputed house because of his position as a Bursar, but he made a valiant attempt to deny this.

In his case, he was aware of the problem regarding the houses because he took minutes at Council meetings when the issue was discussed as far back as November 1997. He had no purchase price for the house, but said that he was supposed to pay over thirty (30) years. He said that his waiting list card was taken at the time he was allocated the house in issue, but, somehow, he was allocated another Stand.

The waiting list card must have been taken when he was allocated the latter Stand and not the house in issue.

It is significant to note that in the latter application he used a misleading address i.e. 2512. This was misleading to disguise the fact that he already had another house, 4246 Chinotimba.

In his own version he would have been sold two residential Stands in a space of three years contrary to Government policy. It is clear that he was never sold the house in issue. He is, however, still in the plaintiff's employ and continues to pay rentals through deductions. In this regard, his position is different from other defendants.

Shadreck Ndlovu

Like the previous witnesses, he said a lot but had no documentation to support his assertion that the plaintiff sold him the house in issue.

He had no idea of the purchase price of the house, he was not sure if he paid in full for the house: he was just swimming in a sea of uncertainty.

He said that despite the fact that his waiting list card was taken away when he was allocated the house in dispute, he was allocated Stand 4237 simply because he was a war veteran. He was unable to show anything in the housing policy document to illustrate that war veterans were entitled to be allocated more than one Stand in the high density suburbs.

In any event, in respect of Stand 4237, there were proper documents to show that he entered into a rent-to-buy agreement and yet for the house in dispute such documents were conspicuous by their absence.

Stephen Mpofu

Like other defendants he had no documentation to support his story that he owned the house in question. He had no idea of the purchase price and he did not know how long he was supposed to take to pay for the house. He appeared confused and did not know what was happening.

Everson Ndebele

Like other defendants, he had no documentation for the alleged purchase of the Stand in dispute. His testimony is equally incredible. He received documentation for the other Stand, 4817, but not for the disputed Stand.

Osina Nyathi

She testified on behalf of her late mother who was the original defendant. She tried as much as possible to give the impression that she knew how the house in question was allocated to her late mother. She sadly failed to do so.

Alice Ndlovu

Whereas, Phindile Ncube wanted to be the spokesman in respect of all the twelve houses, this witness attempted to be the spokesperson for the defendants relating to the ZimSun houses.

She made a valiant attempt to use the rent card as proof of ownership.

She was generally an untruthful witness.

She tried to give the impression that she had no connection with Stand 5048 and that that Stand was her husband's. The application papers, on page 405 of the bundle of documents, clearly show that both her and her husband applied for Stand 5044 and correspondence was copied to both of them. She could not give a purchase price. She associated herself with the explanation given by Phindile Ncube in this regard. She said a lot but failed to give a credible account of the alleged purchase of the Stand in dispute.

Smolitha Maseko

Like the previous witness, Sihlobo Sibanda, she is still in the plaintiff's employ and rentals are being deducted from her salary, according to the testimony of the plaintiff's witness Thembinkosi Khumalo.

Like other defendants, she failed to establish that the house in dispute was sold to her. Although, unlike the other defendants, she and Sihlobo Sibanda may not be evicted in terms of the cause of action in casu and ordered to pay damages, suffice to say that they are in occupation of their respective properties on account of their continued employment by the plaintiff and not on account of a sale agreement.

Kambarashe Zex Raura

Like other defendants, he had no agreement of sale to establish that he purchased the house in dispute.

His untruthfulness is evinced by the fact, that, in his application for Stand 5049 he stated that he did not own any other Stand as at 1996, when, in his own version, in 1991, he had been allocated Stand 4407.

This is either a deliberate lie or a confirmation that he was aware that Stand 4407 was a pool house.

He further said he was never told the purchase price, but was advised that he was to pay $250 as deposit and $250 per month. He said there was vague talk of paying $250 per month for 25 years but he was never informed of the purchase price and he could not answer questions on the issue of the purchase price.

I am satisfied he is equally an un-impressive witness.

Sivumo Ndlovu

Like other defendants, she had no documentation to prove that she had entered a lease to buy agreement in respect of the property in issue. This is in stark contrast to the documents which clearly set out the rights and obligations of the respective parties of Stand 5053. She also had no purchase price on the house she claimed she had bought.

Ruth Khumalo

Her testimony is characterized by hearsay. But, the bottom line is that she was unable to produce any documentation to show that she purchased the Stand in dispute.

Having made the above findings of facts, I proceed to consider the effect of these findings and the law applicable.

I have to determine whether there were contracts of purchase and sale between the protagonists in these two matters. I have to determine whether the essentials of a purchase and sale contract are present.

In casu, there is no dispute that there is more than one party to the alleged contracts – Barnhoorn v Duvenage 1964 (2) SA 486 (A)…,.

The crucial issue is whether there was true agreement between the parties.

It is trite that agreement by consent is the foundation of contract – Salisbury Municipality Employees Association v Salisbury City Council 1957 (2) SA (SR) 557; Cinema City (Pty) Ltd v Margenstern Family Estates (Pty) Ltd 1980 (1) SA 796 (A)…, and The Law of Contract in South Africa, R H CHRISTIE 3rd Ed…,.

In order to decide whether a contract exists, one looks first for the true agreement of two or more parties, and, because such agreement can only be revealed by external manifestations, one's approach must of necessity be generally objective.

The court can only judge from external facts whether the minds of the parties have come together – Jordaan v Trollip 1960 IPH A25 (T) and Allen v Sixteen Stirling Investments (Pty) Ltd 1974 (4) 164 (D)…,.

Looking at the evidence led by the plaintiff, there was no meeting of minds that these houses were being sold to the defendants.

It is trite that the most helpful way of determining whether there has been agreement, true or based on quasi-mutual assent, is to look for an offer and an acceptance of that offer. A binding contract is, as a rule, constituted by acceptance of an offer: Reid Bros (SA) Ltd v Fisher Bearing Co Ltd 1943 AD 232…,.

But, offer and acceptance must never be sought for their own sake but as aids in deciding whether an agreement has been reached.

A true offer means an express or implied intention to be bound by the offeree's acceptance – the animus contrahendi: Sambou-Nasionale Bouvereniging v Friedman 1979 (3) SA 978 (A)…, and Spes Bona Bank Ltd v Portals Water Treatment South Africa (Pty) Ltd 1983 (1) SA 978 (A).

In casu, there was no such offer to the defendants.

The rent cards produced do not constitute an offer made with the requisite animus contrahendi. There were no unequivocal offers of sale made to the defendants. The offer must be unequivocal i.e. positive and unambiguous: Boernie v Harris 1949 (1) SA 793 (A)…, and Wasmuth v Jacobs 1987 (3) SA 629 (SWA)…,.

Accordingly, from the evidence, there was no agreement by consent or true agreement, or a meeting of minds, or a coincidence of wills, or consensus ad idem between the parties and the only credible explanation is that these houses were pool houses for use at the discretion of the plaintiff.

On this point alone the plaintiff's claims must succeed and the defendants' counter-claims fail.

Further, there is no agreement on the price.

As alluded to above, it is not easy to ascertain the alleged purchase price. This points to the relationship of lease and not purchase and sale between the parties.

The defendants, save for one, were all employees of the plaintiff at the time of allocation of the houses in dispute. They obviously know the difference between being pool accommodation and rent-to-buy houses. All the defendants later, but before this dispute arose, entered into proper rent-to-buy agreements with the plaintiff so they are familiar with such agreements. The latter agreements clearly state the terms of agreement and the parties.

They cannot be heard to be saying they mistook the rent cards for agreements of sale.

The defendants are just influenced by greed and are trying to obtain two properties each from the plaintiff by converting their leases of the pool houses into ownership agreements.

There is simply no agreements of sale in respect of the houses in issue and the court cannot contract for the parties: Hillas & Co Ltd v Arcos Ltd (1932) 147 LT 503 (HL)…,; Globe Electrical Transvaal (Pty) Ltd v Brunhuber 1970 (3) SA 99E…,; Levenstein v Levenstein 1955 (3) SA 615 (SR) and Titaco Projects (Pty) Ltd v AA Alloy Foundry (Pty) Ltd 1966 (3) SA 320 (W)…,.

The plaintiff's claims must succeed against all the defendants save for Sihlobo Sibanda and Smolitha Maseko. These two defendants are still employed by the plaintiff as alluded to above and the plaintiff is still collecting rentals from their respective salaries. If the plaintiff wants to evict them, it cannot be on the basis of this cause of action.

As far as the damages are concerned, the plaintiff does not charge market-related rentals of US$150 per month as claimed in this case. The plaintiff is charging US$20 per month for the houses in dispute. There is no basis for granting the plaintiff damages based on market related rentals.

Accordingly, it is hereby ordered:

(1) That the plaintiff's claim for the eviction of the defendants Smolitha Maseko and Sihlobo Sibanda from houses 4408 and 4246 respectively be dismissed.

(2) That the counter-claims by Smolitha Maseko and Sihlobo Sibanda against the plaintiff be dismissed with each party bearing own costs.

(3) That the plaintiff's claim for the eviction of:-

3.1 Loida Nyathi - House 4251 Chinotimba;
3.2 Everson Ndebele - House 4255 Chinotimba;
3.3 Collen Ndebele - House 4247 Chinotimba;
3.4 Phindile Ncube - House 4242 Chinotimba;
3.5 Shadreck Ndlovu - House 4241 Chinotimba;
3.6 Stephen Mpofu - House 4244 Chinotimba;
3.7 Alice Ndlovu - House 4403 Chinotimba;
3.8 Sivumo Ndlovu - House 4401 Chinotimba;
3.9 Kambashu Zex Raura - House 4407 Chinotimba; and
3.10 Fred Khumalo - House 4400 Chinotimba;
be and is hereby granted.

(4) That each of the above-mentioned defendants, named in paragraph 3 above, be ordered to pay US$20 per month from the month of February 2009 to date of eviction.

(5) That the counter-claims by each of the defendants named in paragraph (3) above are dismissed.

(6) That the defendants named in paragraph 3 above are to bear costs of suit on the ordinary scale.

(7) That the plaintiff be declared owner of all the properties subject matter of this case.

HH173-17 : F. MUTATA and OTHERS vs THE MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND URBAN DEVELOPMENT
Ruled By: CHITAKUNYE J and NDEWERE J

This is an appeal against the judgment of the magistrate sitting at Harare in which he granted an order for the eviction of the appellants from certain premises owned by the Government.

The appellants are retrenched or retired civil servants who occupied houses situate in the Messengers' Camp in Highfields, Harare.

The respondent is the Minister responsible for the Ministry that leased houses in question to the appellants.

During the early years of the appellants' occupation of the houses, the respondent caused them to sign lease agreements. As time progressed, the appellants continued occupying the houses without signed lease agreements. They were now statutory tenants.

As the appellants were no longer civil servants, the respondent later wrote letters demanding that the appellants vacate the houses they were occupying. The appellants resisted the eviction and did not comply with notices of eviction that were subsequently issued out by the respondent.

In 2006, the respondent issued summons for the eviction of each of the appellants and whoever was claiming occupation of the houses through them.

The appellants' plea was to the effect that they had been promised that the houses would be sold to them and that they were thus willing to purchase the houses. In the alternative, the defendants contended that they had been promised alternative suitable accommodation in the event of being evicted from their current houses. They thus demanded to either be sold the houses or to be provided with alternative suitable accommodation.

The appellants' defence, in the court a quo, was basically that they had a legitimate expectation that the houses will be sold to them as sitting tenants or suitable alternative accommodation will be provided by the Government in terms of what they said was Government policy.

The respondent disputed that hence the matter was referred to trial.

At the time of trial, in 2007, the appellants had lived in the houses for periods ranging from 10 to 19 years.

The issues for determination were basically on the respondent's right to evict the appellants and whether the appellants had any legitimate expectation that the houses will be sold to them, or, alternatively, that they should be provided with other suitable accommodation.

The trial magistrate ruled that the defence of legitimate expectation could not avail the appellants as such a defence only applied to procedural rights such as the right to be heard and not on substantive rights such as that the respondent be ordered to sell the houses to the appellants or to provide them with suitable alternative accommodation.

The magistrate's decision was premised on the fact that the appellants had been insisting that the respondent should sell the houses to them or provide them with alternative accommodation to buy failure of which they would not vacate the houses.

In as far as the trial magistrate understood the appellants to be resisting eviction on substantive rights and not procedural rights, he cannot be faulted. Besides the pleadings that have already been referred to, the appellants' witness, Nyasha Masawi, confirmed as much.

Under cross examination, the witness confirmed that upon receiving letters to vacate they went and saw the Minister seeking to be provided alternative accommodation. Upon the Minister's verbal promise to organise alternative accommodation for them, they left. He concluded by saying that: “we expect to be given Stands to move to.”

In his closing submissions, in the court a quo, the appellants' counsel reiterated the appellants' stance that the legitimate expectation the appellants were expecting was for these houses or alternative accommodation to be sold to the appellants. He thus asked court to order the disposal of the houses to the appellants.

In written submissions made at the court a quo's request, counsel repeated the same when he said that: “the delay in evicting the defendants, after the expiry of the leases and the promises of disposal, cemented defendants' legitimate expectation of disposal of the houses to them as sitting tenants.”

Counsel further argued that: “it is the duty of the Ministry of local government, public works and national housing to house the citizens of Zimbabwe rather than evict them like what they want to do in this case. If they are not prepared to dispose of these houses to the defendants it is only just and equitable to have plaintiff hear the side of defendants story in a hearing and map the way forward rather than evict them. They should then afford the defendants the procedural right of legitimate expectation that is available in our law.”…,.

It was clear that the rights the appellants were craving for pertained to substantive and not to procedural rights. They wanted to be sold the houses. The trial magistrate, having found that the defence of legitimate expectation is available only in instances of procedural rights, concluded that since the appellants were seeking substantive rights, their defence was untenable.

The appellants' grounds of appeal were couched as follows:

1. The learned magistrate, in the court a quo, erred by holding that courts cannot interfere in policy matters holding that they are solely for the Government, failing to take into account the basic and rational for Administrative Law is to exert legal control over the way in which administrative authorities exercise their functions in order to ensure that these authorities do not exceed or abuse their powers. The law promotes effective use of administrative power at the same time providing protection against misuse of power.

2. The learned magistrate in the court a quo erred by holding that long stay in Government house does not impute ownership failing to take into account the circumstances that led to the long stay. Due consideration was not given to the undisputed fact that the long stay was caused by the respondent's assurances. The appellants have been staying in the houses for a period ranging between 10 - 20 years, was a result of Ministerial and political promises that they were in the process of disposing the houses to the appellants.

3. The learned magistrate in the court a quo erred by overlooking the extent to which the respondent had gone in promising the appellants that they were going to buy the houses they were occupying. The respondents had, up to present day, registered the appellants' names with City of Harare for the payment of rates, water and electricity bills. According to the appellants, such actions legitimatized their expectations that the houses were going to be sold to them.

4. The learned magistrate in the court a quo erred, clearly misdirected himself, thus his analysis of the matter can successfully be challenged.

Before determining whether the magistrate in the court a quo erred or not, it is pertinent to appreciate the doctrine of legitimate expectation.

In Metsola v Chairman, Public Service Commission & Another 1989 (3) ZLR 147 (SC) …, GUBBAY JA…, had this to say on legitimate expectation:

“Mr. Gillespie laid much emphasis on the legitimate expectation test introduced by LORD DENNING MR in Schmidt & Anor v Secretary of State for Home Affairs [1969] 1 ALL ER 904 (CA) at 909C and upheld by the Privy Council in Attorney General of Hong Kong v N g Yen Shiu [1983] 2 ALL ER 346 (PC) at 350 a-j.

Yet, this catch-phrase is no more than a manifestation of the duty to act fairly. It is clearly connected with the 'right to be heard'. It does not constitute an additional ground for the application of the audi alteram partem principle. In essence, it means no more than that the decision-maker must act fairly and apply the principles of natural justice before reaching any decision that will adversely affect the legitimate expectations of the aggrieved party.”

In Matake & 17 Others v Ministry of Local Government and National Housing & 2 Others 2007 (2) ZLR 96, the basic requirements of this defence were summarised as including the following:

1. The expectation underlying the expectation must be clear, unambiguous, and devoid of relevant qualification.

2. The expectation must be reasonable.

3. The representation must have been induced by the decision-maker.

4. The representation must be one which it was competent and lawful for the decision maker to make, without which reliance cannot be legitimate.

The doctrine of legitimate expectation is really a call for fairness and for the right to be heard before a decision adverse to the expectation of an affected party is made.

In applying the above exposition to the case at hand, it is apparent that, in raising legitimate expectation, the appellants were not seeking a procedural right to be heard but that the houses be sold to them as per their expectation. The pleadings and evidence in court confirm as much. It is in that light that the trial magistrate alluded to the fact that legitimate expectation is for procedural and not substantive rights.

In his heads of arguments, counsel for the appellants made the following concessions:

1. That the appellants cannot argue that the respondent be ordered by this court to sell the houses to them, and seek to defend their eviction on that basis.

2. That the respondent never sold the houses in question to the appellants.

3. That the respondent did not offer the houses to the appellants for sale with the result that all the appellants had to do was to accept such offer for contracts of sale to be concluded.

The above concessions show a change in stance by the appellants.

It is this change that counsel now introduced as the basis for the appeal. In paragraph 8 of the heads of argument counsel stated that:

“The argument is not that respondent must either have sold the houses to appellants, or provided them with alternative accommodation before instituting eviction proceedings. Instead, the contention is this: that having raised their legitimate expectations to purchase the houses, and, alternatively, to provide them with alternative accommodation in the form of Stands to purchase, respondent is bound by the principle of legitimate expectation to hear the appellants before instituting eviction proceedings against them.”

This argument is not in tandem with what transpired in the court a quo.

In the court a quo, the appellants defence was not on the procedural right to be heard before summons were issued, but to have the respondent ordered to sell the houses or to provide them alternative accommodation.

As already alluded to above, the defence of legitimate expectations applies to procedural right, such as the right to be heard, before an adverse decision is made against a party. It is not available in a situation such as this where the appellants were in fact contending that the court should order the respondent to sell the houses to them.

Counsel, having appreciated the limits of the defence of legitimate expectation, correctly made the above concessions.

In respect of the right to be heard, it was clear that the policy that the appellants were relying on was a general policy that the Government had adopted.

The net effect of the concession is that the question to be ascertained is whether there was a change in the alleged Government policy; if so, were the appellants entitled to be heard before being asked to vacate the houses.

As already alluded to, the policy to sell to sitting tenants was a general policy. That general policy was addressed to the respondent's Provincial Administrators. Part of the letter, dated 18 December 2000, addressed to the Provincial Administrators, on the subject, read as follows:

“RE: DISPOSAL OF POOL AND RESERVED HOUSES STILL ON RENTAL

This Ministry is, in terms of the Millenium Economic Recovery Programme, required to, among other things:

(a) Review rentals for houses to market levels; and

(b) Dispose of some of the pool and reserved houses.

You are required to consult with the other heads of Government Ministries in your respective provinces to determine the number of pool and reserved houses to be disposed of without disrupting Government operations. The age of the houses should be used as one of the criteria of selecting the houses to be disposed of.

You are also required to give preference to houses in Messengers' Camps situated in urban centres as these were left out in the 1994 disposal.”

The above was a request for assessment of houses to be disposed of. It was not an offer to sell all the houses to sitting tenants.

Even after the appellants had expressed desire to buy the houses, they were not personally offered the houses for sale.

The general policy was changed before the appellants had been offered the houses.

When the general policy was changed, the appellants were made aware of this by letters addressed to them and advising them to vacate. It is these letters that prompted them to seek audience with the Minister of Local Government. The appellants confirmed holding such a meeting in which it was made clear to them that the houses would not be sold to them as Government policy had changed. It was then that they asked for alternative accommodation and the Minister made a verbal promise to organise alternative accommodation.

Clearly, as at that stage, they had been given a hearing and had accepted that the policy had changed and they were no longer going to be offered the houses for sale.

What they remained with, at the most, was the verbal promise by the Minister to organize alternative accommodation for them. The general policy had not provided for alternative accommodation.

The issue of the change of general policy by Government is something that the court cannot easily interfere with. It is in this light that the courts have said that questions of economic and social policy are matters within the domain of the executive discretion and the courts should exercise great restrain in delving into the details of policy instruments of directing the precise manner of their implementation unless the court is convinced that the assessment in question is manifestly without merit. See Minister of Lands and Others v Commercial Farmers Union 2001 (2) ZLR 457…,.

The same could be said regarding changes to general policies by Government.

What the court will require is that those affected by changes in general policy be afforded a hearing before such is implemented.

In casu, the appellants, upon receiving letters indicating a change of the general policy, approached the responsible Minister and other officers within the Ministry. They were afforded a hearing.

The suggestion that they should have been heard before the general policy was changed would not be realistic. This having been a general policy, to expect the Ministry to have invited each and every person to be affected to input before the change would be unrealistic. What was crucial, in my view. is that the change was communicated and those affected were given audience.

In casu, the court a quo alluded to the change in policy that had occurred such that whilst at one time the appellants were made to expect that the houses will be sold to them, such a policy was changed before the houses had been offered to the appellants.

The appellants' right in the circumstances was to be afforded a hearing before they were evicted. They were indeed heard. It was only after the meetings with the Ministers and other Ministry officials in the period 2002 to 2005 that summons for their eviction were issued out in 2006.

In the circumstances of this case I am of the view that the decision by the court a quo cannot be faulted given the appellants' defence before that court. Even on the procedural right to be heard it cannot be said the appellants were not heard before summons for eviction were issued. The appeal cannot thus succeed.

Accordingly, it is hereby ordered that the appeal be and is hereby dismissed with costs.

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.

SC40-15 : INDIUM INVESTMENTS (PVT) LTD vs KINGSHAVEN (PVT) LTD and DANIEL SHUMBA and LINDA SHUMBA
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GOWORA JA, HLATSHWAYO JA and MAVANGIRA AJA

On 28 February 2008, under case no. HC1239/08, the appellant caused summons to be issued against the respondents seeking an order for the cancellation of a lease, and, consequent thereto, the eviction of the respondents from the leased premises.

On 10 December 2008, a second summons was issued by the appellant under case no.6969/08 wherein it sought the eviction of the respondents due to the expiry of the lease.

The High Court dismissed the claims with costs.

The appellant was aggrieved by the dismissal and has noted this appeal.

THE FACTUAL BACKGROUND

The basic facts surrounding the dispute are the following:

The appellant (hereinafter referred to as “Indium”) is the registered owner of certain immovable property, being Stand 450 Avondale West Township of Stand 390 Avondale West, also known as 108 West Road, Strathaven, Harare, (hereinafter referred to as “the premises”). The first respondent (hereinafter referred to as “Kingshaven”) is a private company registered as such under the laws of Zimbabwe. The second respondent (hereinafter referred to as “Shumba” and the third respondent, his wife, are the only shareholders of and directors in Kingshaven.

Kingshaven carries on business in the hospitality sector and is in occupation of the premises by virtue of a lease concluded on 14 December 2007 with Indium. Notwithstanding the date of signing, the agreement was to come into force on 10 December 2007 and was to endure for a period of 365 days, terminating automatically on 9 December 2008.

Shumba and his wife are shareholders in a Close Corporation, ERF Bryanstan Cc, which is duly registered as such under the laws of South Africa.

ERF Bryanstan is the registered owner of an immovable property, being Portion 2 of ERF 825 Bryanstan Township also known as 17 Portman Road, Bryanstan Sandton, Johannesburg.

In 2007, ABSA Bank, in whose favour ERF Bryanstan had registered a mortgage against the property, called up the mortgage and executed against the same.

In an effort to save the property, Shumba approached Jayesh Shah (hereinafter referred to as “Shah”) for financial assistance, and this culminated in a number of agreements.

The first agreement consists of a loan between Shah, on the one part, as lender, and Shumba and ERF Bryanstan Cc, on the other, as borrowers. The loan amount is UD$500,000.

The second agreement is for the sale of the entire shareholding in Indium concluded by Shumba and his wife, on the one part, as sellers, and Jayesh Shah and Shaleetha Mahabeer, on the other, as purchasers.

The last agreement is the lease agreement concluded between Indium, as lessor, and Kingshaven, as lessee on 14 December 2007.

The two matters instituted by Indium were, by consent of the parties, consolidated for trial before the High Court.

In dismissing the claims, the court a quo stated:

“He intended to secure a windfall by all means legally possible. His legal practitioner advised a web of agreements to ensure he remained within the realms of the law. A loan here, a purchase of shares there and a lease with a buy-back option to crown it all, was all it took to secure apparent control of the debtor's immovable property in Zimbabwe without any reference to its true value.

Clearly, whatever the parties decided to call it, the agreement to take over control of the plaintiff company from Shumba, without paying for it, amounted, in my view, to a pactum commissorium.

It is the substance, not the form, to which the court looks when deciding the true nature of an agreement.

Consequently, therefore, the second issue, whether annexure “C” amounts to a pactum commissorium is determined in defendants' favour.

I have already found that the payment, in South Africa, by Shah, was intended as a loan, as pleaded by plaintiff; therefore, there is no evidence to suggest that the same payment doubled as payment for shares in Indium Investments (Private) Limited.

That issue is resolved in favour of the defendants as well.

The transactions were clearly in fraudum legis. The law in this jurisdiction is clear. Where the contract which is in fraudum legis is performed, the court cannot come to either party's assistance.”

The appeal is premised on the following grounds:

1. That, the court a quo erred in not finding, that, in the absence of a plea for rectification of a contract, the parole evidence rule operates to exclude extrinsic evidence to disprove the contents of a written contract. (sic)

2. The court a quo erred in not finding, that, returns lodged with the Registrar of Companies are prima facie proof of the correctness thereof, and the same cannot be impugned without the joinder of the Registrar of Companies.

3. Consequently, and for the stronger reason in view of grounds of appeal 1 and 2 above, the court a quo erred in holding that the respondents had discharged the onus of justifying possession of the appellant's property within the context of the actio rei vindicatio.

4. The court a quo erred in fact and in law in holding that the agreements in question were simulated agreements which “mimicked” the South African agreements.

5. The court a quo erred in any event in holding, that, the agreements the subject of the litigation were in fraudem legis in that they sought to evade the exchange control legislation, in view of the fact that free funds were paid to the credit of a South African resident, and in not finding, that, the fact that such South African resident was a citizen of Zimbabwe and did not give rise to the need for exchange control approval.(sic)

6. The court a quo erred in fact and in law in holding, that, the agreements the subject of the litigation a quo were a pactum commissorium.

Counsel for the appellant urged us to find, that, the learned judge in the court a quo had not dealt with the case that was placed before him.

It was his contention, that, the matter before the court was principally for the cancellation of the lease agreement between Indium and Kingshaven and consequential relief. He argued that it was essentially a rei vindicatio.

What the court a quo did, however, it is argued, was to turn its focus on a completely different issue which it could not competently determine and made findings which cannot be supported.

It is contended, that, the court thereby misdirected itself.

In my view, the dispute can be resolved by this court having regard to the manner in which the court a quo dealt with what it referred to as the simulated agreements, and, secondly, dealing with the actio rei vindicatio in accordance with the claims in the summons.

THE ALLEGEDLY SIMULATED AGREEMENTS

In answer to the claim for the eviction of Kingshaven from the premises, the respondents raised various defences, namely, that Shumba and his wife had borrowed a specified sum of money from Shah, and that, as security for their due performance thereon, the latter had demanded security in Zimbabwe in the form of shares in Indium. They pleaded, further, that the parties entered into a simulated agreement for the sale of shares in Indium which ultimately resulted in the lease agreement providing for a buy-back option in favour of Shumba and his wife.

There is no suggestion on the papers that Indium participated in any of the agreements except the lease.

It then begs the question which parties the court a quo referred to when it concluded that the agreements were fraudum legis.

It is common cause, that, the loan agreement was between ERF 825 Bryanston Cc, in which Shumba and his wife owned shares, and Shah.

ERF Byanston Cc was not cited as a party to the proceedings before the court a quo.

Shah only appeared in the proceedings in the court a quo as a witness on behalf of Indium.

In the circumstances, the court could not have properly considered the loan agreement, or its legality, in the absence of the parties thereto.

I turn next to the “share sale” agreement in relation to the shares in Indium.

The parties to the sale of the shares were, on the one part, Shumba and his wife, as sellers, and, on the other part, Jayesh Shah and Shaleetha Mahabeer.

The last two were never before the court as parties and the agreement for the sale of shares could therefore not be scrutinised to any extent by a court in their absence.

Consequently, the determination by the court of the issues related to the lease agreement concluded by Indium and all the respondents in reference to the share sale agreement was highly irregular.

It follows, therefore, that, any issues referred to the trial court for determination in relation thereto would be irregular. It is therefore logical to conclude that the court a quo dealt with matters and issues that were not before it.

This leaves Indium, Kingshaven, Shumba and his wife.

They were parties to a document, being the lease agreement, which is the only document properly before the court.

Those were the parties that were before the court, and, therefore, the only dispute for determination was that arising from the lease agreement in respect of which the court had to determine the respective rights and obligations of the parties before it....,.

THE VALIDITY OF THE LEASE AND THE REI VINDICATIO

I turn, then, to discuss the real issue before the court a quo, that is, the claim for the eviction of Kingshaven, and through it, Shumba and his wife, from its premises.

The preamble to the lease agreement acknowledges that Jayesh Shah and Shaleetha Mahabeer have become the beneficial owners of shares in Indium Investments (Private) Limited. The relevant provision states:

“Whereas, by a sale of shares agreement between JAYESH SHAH and SHALEETHA MAHABEER, on the one part, and DANIEL SHUMBA and LINDA SHUMBA, on the other, JAYESH SHAH and SHALLETHA MAHABEER have become the beneficial owners of shares in INDIUM INVESTMENTS (PRIVATE) LIMITED.”

In turn, Indium is the registered owner of the premises.

In terms of clause 3.1 of the lease agreement, the lessee undertook to deposit an amount of Z$ One Billion as security for the due performance by it of its obligations under the lease. Rental for the premises was set at Z$ One Billion per month payable in advance and reviewable from time to time.

In recognition of the prior ownership of the shares in Indium, by Shumba and his wife, in terms of clause 13.1 of the lease, the latter were granted an option to re-purchase the shares in Indium. The option was to expire on 9 October 2008.

It is common cause that the option was not exercised.

In February 2008, Indium advised Kingshaven, that, it was in breach of its obligations under the lease to pay rentals and cancelled the lease. On 10 December 2008, the lease also expired through the effluxion of time. Indium again issued summons, this time claiming return of the premises by virtue of the expiry of the lease through the effluxion of time.

In the plea to the claim for their eviction from the premises, the respondents admitted, that, the appellant was the registered owner of the premises.

The claim, as pleaded by the appellant, was a simple actio rei vindicatio.

The nub of the actio rei vindicatio is that an owner is entitled to reclaim possession of his property from whosoever is in possession thereof. As was stated in Chetty v Naidoo 1974 (3) SA 3…,:

“It may be difficult to define dominium comprehensively (cf. Johannesburg Municipal Council v Rand Townships Registrar & Ors 1910 TS 1314 at 1319), but, there can be little doubt…, that, one of its incidents is the right to exclusive possession of the res, with the necessary corollary that the owner may claim his property wherever found, from whomsoever holding it.

It is inherent in the nature of ownership, that, possession of the res should normally be with the owner, and, it follows, that, no other person may withhold it from the owner unless he is vested with some enforceable right against the owner (e.g. a right of retention or a contractual right).”

As a consequence, once the ownership by Indium of the premises was acknowledged and accepted by the respondents, all that the court a quo had to determine was whether Kingshaven had any legal right to remain in possession of the same.

Therefore, the simple task before the court a quo was to decide whether or not a lease agreement existed between the parties as alleged, and, thereafter, to determine whether or not the claim for eviction on the lease was well founded.

This, the court failed to do.

It went on to make wider pronouncements on relationships that were not before it. It thereby misdirected itself.

The principle of rei vindicatio was applied in Stanbic Finance Zimbabwe Ltd v Chivhungwa 1999 (1) ZLR 262 (H) by MALABA J…, where he remarked as follows:

“The principle on which the actio rei vindicatio is based is that an owner cannot be deprived of his property against his will and that he is entitled to recover it from any person who retains possession of it without his consent.

The plaintiff, in such a case, must allege, and prove, that he is the owner of a clearly identifiable movable or immovable asset and that the defendant was in possession of it at the commencement of the action.

Once ownership has been proved, its continuation is presumed.

The onus is on the defendant to prove a right of retention: Chetty v Naiddo 1974 (3) SA 13 (A) at 20A-C: Makumborensa v Marini SC130-95 p2.

It follows, that, the action is based on the factual situation that prevailed at the time of the commencement of the legal proceedings.”

Once an owner proves that the property is his and that the defendant originally obtained possession of the res pursuant to a contract, the owner is obliged to prove that such a contract has expired or that he was entitled to cancel it and has indeed terminated it.

In Chetty v Naidoo 1974 (3) SA 3 it was emphasised that:

“…,. a plaintiff who claims possession by virtue of his ownership must, ex facie his statement of claim, prove the termination of any right which he concedes the defendant would have had but for the termination.”…,.

The only defences available to a defendant in the position of the respondent are the following;

(i) That he had a right to possess;

(ii) That he was not in possession; or

(iii) That the plaintiff is not the owner.

It is worth noting, that, the respondents did not plead any of these defences.

In truth, they could not have, as they had a lease with Indium the termination of which they did not deny or place in issue. The validity of the lease agreement is confirmed.

Counsel for the appellant has, however, further submitted, that, the court, in the face of this clear claim, then went on to grant judgment in favour of the respondents in the absence of a counter claim.

In African Farms and Townships v C.T. Municipality 1963 (20) SA 555 (AD) STEYNE CJ made the following remarks:

“Counsel for the appellant further argued, that, the order in the original proceedings, which as such is an order dismissing the application, is to be equated with absolution from the instance, leaving the issue undecided.

In my view, there is no substance in that argument.

As Sande, De Diversis Regulis ad l. 207, points out, the res judicata is not so much the sentential, the sentence, or the order made, as the lis or negotium, the matter in dispute or question at issue about which the sententia is given, or the causa which is determined by the sententia judicis.

As pointed out in Purchase v Purchase 1960 (3) SA 383 (N) at p385, dismissal and refusal of an application have the same effect, namely, a decision in favour of the respondent.

The equivalent of absolution from the instance would be that no order is made, or that leave is granted to apply again on the same papers.

In Commissioner of Customs v Airton Timber Co Ltd 1926 CPD 351 at p359, WATERMEYER J, draws a distinction between the actual judgment and the reasons for judgment, and expresses the view, in effect, that, where the decision of a particular question, although dealt with in the reasons for judgment, is not incorporated in the actual judgment, and the question is not necessarily determined by the judgment, the matter is not res judicata.

I do not understand this to mean, that, where a Court decides the particular issue raised and dismisses the application, the question decided is not res judicata. If that is what it does mean or imply, I would be unable to agree with it.

In the present case, having regard to the judgment, the import of the order is clearly that, on the issues raised, the Court found against the appellant and in favour of the respondents.”

A dismissal of the plaintiff's claim is a judgment in favour of a defendant.

It is my view, that, the dismissal had the effect of awarding the respondents judgment in their favour.

I turn next to the relief being sought.

In the prayer, the appellant seeks an order for the setting aside of the judgment of the court a quo and its substitution with an order entering judgment in its favour in terms of the summons.

In addition to the cancellation of the lease, Indium sought the following relief:

“2. An order directing the defendants, and all those claiming occupation through them, to vacate the premises situate Stand 450 Avondale West Township of Stand 390 Avondale West, otherwise known as 108 West Road, Strathaven, Harare (“the premises”).

3. An order that in the event that within forty-eight (48) hours of the date of the above order being issued and the defendants failing and/or neglecting and/or refusing to comply, the Sheriff for Zimbabwe, or his lawful deputy for Harare, duly assisted by the Zimbabwe Republic Police if need be, be authorised empowered and directed to eject the defendants from the premises, and all those claiming occupation through them, and to hand over vacant occupation of the premises to the plaintiff or its authorised agent or representative.

4. An order precluding and restraining the defendants from removing any item of property from the premises.

5. An order for payment of the sum of $Z2,567,000,000 (two billion five hundred and sixty seven million dollars) together with interest thereon calculated at the prescribed rate to the date of payment as follows;

5.1 On Z$567,000,000 (five hundred and sixty seven million dollars) with effect from 10 December 2007;

5.2 On Z$1,000,000,000 (one billion dollars) with effect from 1 January 2008; and

5.3 On Z$1,000,000,000 (one billion dollars) with effect from 1 February 2008.

6. An order for holding-over damages at the rate of Z$4,000,000,000 (four billion dollars) per month with effect from 1 March 2008 to the date that the plaintiff recovers vacant occupation of the premises aforesaid, such rate to be adjusted from time to time in accordance with market rates.

7. An order for interest on the sum of holding over damages aforesaid at the prescribed rate from the date each amount becomes due and payable.

8. An order for payment of the sum of Z$10,000,000,000 (ten billion dollars) together with interest thereon at the prescribed rate from the date of judgment to the date of payment.

9. Costs of suit as between legal practitioner and client.”

The appellant sought for an order confirming the cancellation of the lease.

It is common cause that the lease has expired through the effluxion of time. Its expiry is not in dispute and it is not necessary to confirm its cancellation.

As a consequence, an order for the eviction of the respondents from the premises will issue.

The interdict against the removal of items from the premises was never put in issue.

HH90-10 : LOCAL AUTHORITIES PENSION FUND vs F & R TRAVEL TOURS AND CAR SALES (PVT) LTD and FREEJOY CHIGWIDA and RAPHAEL MAKWARA
Ruled By: MAKARAU JP

The applicant and the first respondent are landlord and tenant respectively. Their relationship commenced when they concluded a written agreement in respect of certain commercial premises situate at Throgmorton House, Samora Machel Avenue, in Harare. The agreement was for a period of one year, commencing on 1 July 2006 and terminating on 30 June 2007.

The second and third defendants, as directors of the first respondent, bound themselves as co–principal debtors under the lease agreement.

In July 2009, the applicant filed this application seeking an order evicting the respondents from the rented premises. In its founding affidavit, it averred that the respondents had breached the written lease agreement by failing to pay rentals and operating costs for the premises since January 2009. The amount of arrear rentals and outstanding operating costs was also prayed for in the order.

It is pertinent, in my view, that, at this stage, before I detail the opposition that was filed by the respondents, I comment on the manner in which the applicant proceeded to frame its cause of action against the respondents.

The applicant has alleged that the respondents are in breach of the written lease agreement of 2006.

It is common cause that the written lease agreement between the parties terminated by the effluxion of time in June 2007. As at the time of the filing of the application, it was no longer binding upon the parties and could thus not found a cause of action for the applicant.

Its terms and conditions may have continued to afford the respondents protection against eviction under the operation of the provisions of the Commercial Rent Regulations S.I. 276/83(“the Regulations”), under what is commonly referred to as statutory tenancy.

This is however not part of the averments made by the applicant in its founding affidavit.

In my view, statutory tenancy is not an issue that the court should take judicial notice of mero motu. It must be specifically pleaded as it brings into play different considerations regarding the respective rights of the parties. It is a separate cause of action, apart from the terminated lease agreement.

I shall avert to the provisions of the Commercial Rent Regulations S.I.276 of 1983 (“the Regulations”) in detail below.

At this stage, the point I am making is that the applicant could not validly seek to rely on an agreement that had terminated without first laying a legal basis for its revival so to say. As I shall show later, this may have fatally compromised the applicant's quest to recover its property from the tenant.

In opposing the application, the respondents argued, that, the written agreement between the parties provided for payment of rent in local currency, and, when that currency lost favour with traders and generally, the applicant sought to impose a rental in United States currency with the parties failing to reach agreement on the amount payable.

Again, I pause to make the point, that, the respondents were clearly relying on the protection against eviction afforded them by the Commercial Rent Regulations but did not specifically raise that defence in their papers.

In moving for the granting of the order sought in the draft, the applicant urged me to find that the parties had a written lease agreement, that, in terms of that lease agreement, the first respondent was obliged to pay rentals and operating costs monthly and in advance and that in breach of that agreement, the first respondent failed to pay any rent or operating costs from January 2009 to the date of the filing of the application.

As indicated above, the applicant's argument is flawed in one or two respects and does not flow from the facts that are common cause:

(i) Firstly, the written lease agreement terminated in July 2007. As from that date, the first respondent became a statutory tenant and the expired lease agreement can no longer found a cause of action between the parties.

The first respondent, in my view, can now only be competently evicted in terms of the provisions of the Rent Regulations.

It is common cause that the applicant is not proceeding in terms of the Rent Regulations, but is proceeding ex contractu, alleging breach of the written agreement.

(ii) Secondly, and assuming that the written lease agreement between the parties is still subsisting, then, in that event, the first respondent's obligation is to pay rentals monthly in advance in local currency. The obligation to pay rentals monthly in advance must have been imposed by some other agreement which has not been pleaded.

The applicant has urged me to find that the agreement to levy rentals in foreign currency, and in the sum of US$700 per month, was reached between the parties at a meeting that was held on 12 May 2009.

I cannot agree.

It is common cause, that, on 8 May 2009, the applicant addressed a letter of demand to the first respondent, claiming payment of the sum of US$4,497=75 as arrear rentals and the sum of US$1,772=81 as unpaid operating costs.

The parties met on 12 May 2009 to discuss the demand.

On the same day of the meeting, the first respondent responded to the letter of demand in writing, acknowledging the letter of demand and advising that at the meeting held with the applicant's representatives, it had been agreed that the first respondent would pay one thousand dollars towards the arrear rentals and the balance over two or three weeks.

It is worth noting that the meeting of 12 May 2009 was in response to the applicant's letter of demand. By then, the amount of the arrear rentals had already been calculated. In other words, the breach had already occurred.

It appears to me, that, by January 2009 the parties had not yet agreed on the rental payable for the premises.

As detailed above, the applicant seeks to rely on the alleged agreement concluded on 12 May 2009 - some five months after the alleged breach.

If the parties had agreed to the rentals in January 2009, why would they need to meet over the same issue in May?

Similarly, if the parties had not reached agreement on the rentals in January 2009, on what basis can they be held to have breached the contract before the parties had reached agreement on it?

These are questions that will go begging for an answer, as, in my view, the applicant has placed its cart before the horse. It has proved the breach before proving the agreement breached!

Assuming that I have erred in concluding that the applicant has placed its cart before the horse and that by application of some other legal principle, not argued before me, the applicant could prove that the agreement reached on 12 May 2009 could apply retrospectively, then, the denial of the agreement by the respondent would raise a material dispute incapable of resolution on the basis of the papers filed of record.

I have considered whether I can convert the proceedings before me into an action by referring the matter to trial.

In view of the reservations that I have regarding the cause of action that the applicant has pleaded in this matter, I am of the view that such exercise of discretion will not have the effect of saving to expedite the resolution of this matter or of saving costs.

Before I dispose of this matter, it is important, in my view, that I remark on the submissions made on behalf of the respondents.

They have argued, that, the first respondent is a statutory tenant and is protected against eviction. In this regard, they have relied on the provisions of section 22(2) of the Commercial Rent Regulations S.I.276 of 1983 (“the Regulations”) which provide as follows:

“(2) No order for the recovery of possession of commercial premises or for the ejectment of a lessee therefrom which is based on the fact of the lease having expired, either by the effluxion of time or in consequence of notice duly given by the lessor, shall be made by a court, so long as the lessee —

(a) Continues to pay the rent due within seven days of due date; and

(b) Performs the other conditions of the lease;
unless the court is satisfied that the lessor has good and sufficient grounds for requiring such order other than that —

(i) The lessee has declined to agree to an increase in rent; or

(ii) The lessor wishes to lease the premises to some other person.”

While the section specifically limits the right of landlords to recover their properties where leases have terminated by expiration for the reason given in the Commercial Rent Regulations S.I.276 of 1983 (the Regulations), it simultaneously creates the right in favour of the tenant to remain in occupation of the leased premises provided the tenant pays the rent that is due in terms of the lease within seven days of the due date and performs all the other conditions of the lease.

The provisions of the section seek to protect the genuine tenant, who is not in breach of any of the terms of the lease agreement, from being at the mercy of a landlord who may wish to let out the premises to another tenant.

The issue that exercises my mind in this application is whether the statutory tenancy remains viable where the rentals payable were fixed in local currency, in view of the lack of value now attaching to that currency.

It is trite that for a statutory tenancy to be created and thus earn protection, the tenant has to continue to pay the rent due within seven days of due date and perform the other conditions of the lease.

The practical difficulty that arises is that where the tenant's obligation is to pay in local currency, how does such a tenant remain protected when the rentals are neither payable nor constitute a valuable exchange for the right to use the landlord's tenant?

While it is not necessary for me to make a specific finding on this issue, I would venture to suggest, that, in circumstances similar to the facts before me, where the obligation in terms of the written agreement of sale was in local currency, the protection afforded by the statutory instrument, S.I.276 of 1983, becomes doubtful or of limited value as payments for rentals in local currency are ludicrous, and may, in some instances, be impossible to effect.

Finally, I wish to refer to the case of Negowac Services (Private) Limited v 3D Holdings (Private) Limited and Others HH144-09 in which MTSHIYA J was faced with facts similar to the ones before me.

In that case, in upholding the landlord's right to evict the tenant, the learned judge was of the view, that, the obligation of the tenant to continue paying rent on due date imposed by the Commercial Rent Regulations S.I.276 of 1983 (the Regulations), in turn, imposes an obligation on statutory tenants to pay “reasonable rentals” in respect of the property leased where the parties fail to reach agreement on the amount of rentals payable.

Counsel for the applicant urged me to follow the decision in that case.

Again, it is not necessary, in my view, that I distinguish this case from the application before me. It is my finding above that the applicant has not pleaded statutory tenancy as its cause of action. It has instead alleged breach of a specific written agreement and I have disposed of the matter on that basis.

Had the applicant approached the court on an action in rem, seeking to recover its property from the tenant on the basis that the parties had failed to reach agreement on a material term of the lease, I would have found the reasoning by MTSHIYA J very attractive in the general sense that the sine qua non for enjoying the use of the property of another is the payment of rent and one cannot hope to have that enjoyment for nothing.

In the absence of proof of payment of anything, a tenant would have no defence, in my view, to resist the enforcement of the right of an owner to recover their property. As PATEL J observes, a tenant is not entitled to withhold rentals except in a few and very limited instances: see Parkside Holdings (Private) Limited v Londoner Sports Bar HH66-05.

As I indicated above, the applicant has approached court alleging breach of a specific term of the lease agreement. It is my finding that the averred lease agreement is no longer binding on the parties, and, even if it were, it cast an obligation upon the first respondent in a currency that is now redundant.

On the basis of the foregoing, it is my view, that, the applicant has pleaded a cause of action that is not competent and cannot therefore succeed.

In the result, I make the following order:

1. The application is dismissed.

2. The applicant shall pay the respondents' costs.

HH99-10 : CRAIG ROBINSON vs ROBERT ROOT PROPERTY CONSULTANTS and HAMMER AND TONGUES (PVT) LTD
Ruled By: MAKARAU JP

In March 2009, the applicant approached this court on a certificate of urgency and obtained a provisional order calling upon the respondents to show cause why they should not be ordered to release certain items of household goods and effects whose details were listed in an annexure to the application.

As interim relief, the second respondent was ordered not to sell or dispose of any of the property on the schedule. The second respondent was also restrained from releasing any of the property to anyone other than the applicant.

On 14 January 2010, the matter was set down before me for the confirmation or discharge of the provisional order, the first respondent having filed a notice of opposition and opposing affidavit in the matter....,.

The issue that has exercised my mind in this application is whether the applicant is entitled to the order that he seeks on the facts that he alleges.

In his provisional order, the applicant seeks an order compelling the respondents to release to him certain items of his household goods and effects that are in the possession of the second respondent.

In his founding affidavit, the applicant alleges that he was in occupation of certain property leased by the first respondent. A rent dispute arose between the parties leading to the applicant approaching the Rent Board after the first respondent had locked the applicant out of the leased property. When the first respondent requested the applicant to show, in some tangible way, how he would be able to pay whatever rental was found to be fair in respect of the property, he pointed out that he had valuable movables that could be sold to meet his obligations. The first respondent demanded that the movables be valued and this was done.

Later, the applicant learnt that the first respondent intended to have his property sold.

He approached the second respondent, who was in possession of the property, and advised it not to sell the property as such had been removed without his permission and he had not consented to the sale.

In obtaining an order restraining the second respondent from selling the property, the applicant averred that he was in peaceful and undisturbed possession of the property before he was locked out of the rented property and before the respondents removed his movables from the property.

From the concluding paragraph of his founding affidavit, and from the submissions made orally by counsel for the applicant, it is clear that the applicant approached the court for restoration of his possession under the mandament van spolie.

It is trite that for one to succeed in a spoliation, one must prove that they were in peaceful and undisturbed possession of the property and were illicitly despoiled of such possession.

In my view, the applicant drafted his affidavits so vaguely that I cannot discern at what stage he alleges he was in peaceful and undisturbed possession of the property for the purposes of the application he has brought.

From his own affidavit, it would appear that after being initially locked out, which clearly was an act of spoliation, he was restored in possession of the rented premises after the Rent Board intervened.

After the intervention of the Rent Board, it is not clear how the applicant “lost” or parted with possession of his movables. The affidavit does not say.

In my view, the absence of an averment, in the founding affidavit, to the effect that the applicant was unlawfully made to part with possession is fatal to his application - even in the absence of opposition from the respondents who are now barred.

I am aware that the applicant obtained a provisional order from this court, granting him interim protection pending the issuance of an order restoring possession of the property to him.

It is trite that the judge who granted the provisional order was satisfied that a prima facie case had been made out for the interim protection that the applicant was seeking. It is further trite, that, at this stage, for me to grant the final relief that the applicant prays for, I must be satisfied that he has established his case on a balance of probabilities.

I am not so satisfied.

(i) Firstly, I am not satisfied that the applicant has established the second element for a spoliation order. He has not shown, in his founding affidavit, in which all the necessary averments have to be made, that he was illicitly deprived of possession. He makes an attempt to do so in the answering affidavit after the first respondent had taken specifically alleged that the applicant consented to the removal of the property to the auctioneers.

It is trite, that, in the circumstances, I cannot pay regard to the averments in the answering affidavit as laying out the applicant's cause of action.

(ii) Secondly, the applicant proceeded by way of application to seek to recover his property in the face of a number of disputes of facts.

He was aware of the stance that the respondents were taking in the matter and proceeded notwithstanding.

After obtaining the interim protection restraining the disposal of the property, in my view, he should have mounted a proper action, seeking, as an owner, to recover his property from the respondents.

On the basis of the foregoing, I am constrained to find that notwithstanding the barring of the respondents, the applicant is not entitled to the order that he seeks.

In view of the fact that both parties have been partly successful, I do not believe that it is in the interests of justice that I burden any of the parties with an order of costs.

In the result, I make the following order:

1. The application is dismissed.

2. Each party shall bear its own costs.

HH91-09 : SANANGURAI GWARADA vs KEVIN JOHNSON and MR WILLIAMSON and BERNARD CHOTO
Ruled By: GOWORA J

This matter came before me by way of an urgent chamber application.

At the initial set down date, the legal practitioners indicated that they wished to file written submissions and the matter was accordingly postponed for that purpose.

In view of the legal issues that were apparent from the affidavits, and that had not been canvassed, I required the legal practitioners to file supplementary heads of argument, which counsel did, and, I am indebted to counsel for the same.

I had also requested a copy of a translation of a South African judgment referred to by the applicant's counsel, but, unhappily, that was not given to me expeditiously, with the result that this judgment was then delayed.

The facts relevant to this dispute are as follows:

The dispute centers around Dana Farm. This farm is now owned by the State after it was gazetted for resettlement under the land reform program.

The first and second respondents are referred to on the papers as former owners of the farm, although the exact nature of that ownership has not been stated nor is it relevant for present purposes.

What is relevant is that they were in occupation at the time the farm was acquired.

The third respondent is a beneficiary of the land reform program but he occupies a neighbouring farm. He is, however, a majority shareholder in a company in which the first and second respondents also own shares and which is undertaking certain farming operations on Dana A Farm.

According to the papers, the first and second respondents occupy subdivisions 2 and 3 of the farm.

The applicant was issued with an offer letter for subdivision 1 which he occupies.

The applicant seeks an interdict, both in interim and final terms, against the respondents from use and occupation of subdivision 1 of Dana Farm. In addition, he seeks their eviction from the same.

After he and counsel for the respondents had made submissions on the application, counsel for the applicant moved for an amendment to the draft order.

Counsel for the respondents did not object to its amendment.

The new draft order merely sought an interim interdict against the three respondents with the eviction being reserved for the final relief.

I find it difficult to comprehend the logic of seeking an amendment of that nature, at that stage, as counsel for both sides had argued the matter fully on the merits as related to the interdict and the eviction.

In my view, no prejudice will occur to any of the litigants if I dispose of the matter on the merits as if it were an opposed application rather than for relief in interim terms.

Although the applicant sought to file an amendment to the draft order, the application to amend the same was only introduced after both parties had addressed the court in argument on the basis of the original draft order. It seems to me, therefore, that the dispute between the parties has been ventilated in full and it does not assist either of the parties for this court to ignore that fact.

I also agree with the submission in the respondents heads of argument that the nature of relief sought is in final terms.

Even if I considered the matter on the basis of the amended draft order, it would not change much as the relief being sought is not materially different in the two draft orders.

I proceed now to consider the other point in limine raised by the respondents.

The respondents had contended, that, the failure to join the Provincial Lands Inspectorate was fatal to the applicant's case.

I disagree.

The farm was acquired, and now vests in the State, which is the owner of the land. I have to consider whether there is any effect to the application consequent to the non-citation of the responsible Minister.

It becomes necessary, therefore, that I consider the nature of the relief being sought by the applicant.

The sum total of the relief sought by the applicant is an interdict against the respondents from utilizing the permanent structures and improvements on the subdivision that he has been offered by Government.

It is common cause, that, although the entire farm was gazetted, and has since been acquired, the former owners, in the guise of the second and third respondents, are still in occupation. It also seems that the third respondent is the majority shareholder in a company that is running farming operations on the farm.

Although the third respondent made this averment, there was challenge from him that the wrong person had been brought to court; he has deposed to an affidavit opposing the application on the merits and did not persist with the challenge when the matter was called.

All the respondents have been in occupation since the farm was acquired, and, my view, from an assessment of the facts, is that the respondents have been in possession of the homestead, the barns, and the borehole same for the entire period that the applicant has been in occupation of the subdivision.

The simple fact is that when he moved in they were in occupation and have not been evicted from the same.

In terms of section 3(1) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] no person may hold, use, or occupy gazetted land without lawful authority.

In the Gazetted Lands (Consequential Provisions) Act, lawful authority is defined as an offer letter, a permit, or a land settlement lease.

The applicant is in possession of an offer letter, and, therefore, he has lawful authority to occupy the part of the farm allocated to him.

The respondents have contended that the offer letter is irregular.

The lawfulness of the offer letter is not before me and I cannot comment on its validity. That is for the authorities to resolve.

What is at issue, however, is whether or not the applicant has the locus standi or right to claim the relief that he is claiming against the respondents.

In seeking redress from this honourable court, the applicant asserts a right predicated on the offer letter in terms of which he occupies the piece of land in question.

The applicant concedes, that, he has not been granted cession of rights by the owner of the land, the Government of Zimbabwe. The applicant contends, that, even though he is not the holder of a lease agreement in respect of the piece of land in question, nevertheless, the offer letter that he is in possession of accords him the entitlement to sue the respondents for possessory rights over the land.

There is a plethora of cases in South Africa where the courts have considered the rights of a lessee to a lease agreement in relation to a trespasser or any person occupying the premises to which the lessee is entitled to occupy by virtue of the lease agreement.

In Jadwat and Moola v Seedat 1956 (4) SA 273…, CANEY J dealt with the issue as follows:

“An action for ejectment, on the grounds of a defendant being in wrongful and unlawful occupation, is, in essence, based upon his being a trespasser, and, trespass is an infringement of possession, which is one of the rights of ownership. If the owner has parted with possession, he cannot maintain an action for trespass against a third party and sue him for ejectment on that ground, since possession is not in him but in the one to whom he has parted with it; the owner has a cause of action only if his reversionary right to possession is injured by the trespass. Thomas v Guirguis, supra.

If, however, the owner has not parted with possession, he retains the right to sue for trespass and to claim ejectment.

He has the right to eject the trespasser in order that he may perform his contractual obligation to the person to whom he has parted with the right to possession, as in Jeena v Minister of Lands, supra.

This, in my opinion, is clearly so whether he has parted with the right to possession by selling the property or in some other manner conferring on another the right to possession.

Clearly, the buyer of a property who has not obtained transfer (nor cession of the owner's right of action) is not entitled to sue for ejectment: Nicholas v Wigglesworth 1937 N.P.D. 376. Nor, in my opinion, can a lessee who has obtained the right to possession but not obtained possession itself, sue a trespasser for ejectment.”

This case was followed in a long line of cases by the courts in South Africa.

As the applicant is not relying on a lease for the enforcement of his alleged right it is not necessary that I embark on a discussion of those cases.

The clear principle from those cases is to the effect, that, a lessee acquires a personal right to possession of the leased premises, and, until and unless granted vacant possession of the said premises by the lessor, such lessee has no locus standi in judicio to claim the ejectment from the same of a trespasser.

As stated by VAN DIJKHORST J in Nkadia v Mahlazi and Ors 1982 (2) SA 441 (TPD.)…:

“In respect of the claim for ejectment, the applicant's objection to the first respondent's locus standi is, in my view, sound. The rights acquired by the first respondent, in terms of the certificate of occupation, were, in the absence of possession on her part, merely personal rights. Her rights to vacua possessio are to be enforced against the person or body from whom they were acquired. I need not here decide which of the respondents this is to be done; cf Chiloane v Maduenyane 1980 (4) SA 19 (T); Tshandu v City Council 1947 (1) SA 494 (W); Bodasingh's Estate v Suleman 1960 (1) SA 288 (N); Padayache v Veerapan and Another 1979 (1) SA 992 (W).”

The applicant has referred me to two South African authorities on which he relies for his right to claim the relief that he seeks, viz: Buchholtz v Buchholt 1980 (3) SA 424 (W) and Steenkamp v Mienies and Ors 1987 (4) SA 186 (NCD).

In the case of Buchholtz v Buchholt 1980 (3) SA 424 (W), the applicant therein, who had purchased an immovable property but had not yet obtained transfer, sought to evict her husband from the premises. The respondent had raised a point in limine to the effect, that, as the applicant was not the registered owner of the premises she could not evict him therefrom.

In dismissing the point in limine, the court therein opined, that, the principle that a purchaser, who had not obtained transfer or cession of rights from the seller, had never been intended, in the literal and wide sense, to relate to all conceivable situations: per BOTHA J…,:

“…,. Taking Nicholas case (supra) as the origin of all what was said in the Natal cases, it is clear beyond doubt, in my opinion, that, the Courts were dealing with the situation where a purchaser of property had not yet received either transfer, or, and this is important, possession of the property purchased.

In such circumstances, it is indeed clear, that, the purchaser would have no right to sue for the ejectment of the person in possession of the property because the purchaser had not acquired a jus in rem in relation to the property.

By virtue of his purchase of the property, he acquires no more than a jus in personam against the seller, and, if someone is in possession of the property, then, the purchaser must look to the seller, the owner, to obtain vacua possessio of the property.

The distinction between a situation where the purchaser has not acquired a right in rem and the situation where he has acquired such a right by virtue of actually obtaining possession, appears to me to be implicit in all the cases: see e.g. the discussion regarding the position of a lessee in Jadwat and Moola v Seedat (supra at 276C-F).”

When the matter was argued before me, reference was placed on the decision in Steenkamp v Mienies and Ors 1987 (4) SA 186 (NCD).

However, as the actual judgment is in Afrikaans, a full discussion on the judgment was not possible as the legal practitioners did not, at that stage, have a copy of the translation. That was subsequently availed to me, and, a perusal of the same does not lead me to conclude that the principle on the rights of a lessee to evict a trespasser has been altered.

The applicant contends, based on Steenkamp v Mienies and Ors 1987 (4) SA 186 (NCD), that, by virtue of his occupation of Lot 7 of Dana A Farm, he has the locus standi to obtain the nature of relief he seeks from the respondents.

It is the contention of the applicant, that, by virtue of being in partial occupation of Lot 7, he has locus standi to obtain this relief and that there is no need to obtain vacant possession in order to acquire locus standi.

The applicant has, in his heads of argument, quoted from the head note of the judgment and not a passage representing dicta from the Court.

A passage that could accord with what the applicant is submitting is to the following effect:

“Apparently, they are using the farm together. However, the applicant has, at least, partial occupation of the said farm, and, as far as I could ascertain, by law, there is nothing to prevent him, under these circumstances, from enforcing his rights derived from the contract of lease, including against first respondent.

Even if his occupation is, in some respects, incomplete, it cannot be said for one moment that he received no occupation of farm 10 and therefore has no real rights.

For purposes of locus standi, I view this occupation as sufficient to enforce his rights derived from the lease contract against the first respondent. The fact that the lessor would also have locus standi to obtain an eviction order against the first respondent, does not take away the right of the applicant to claim the same relief against the first respondent.”

I turn then to consider the legal position within this jurisdiction.

In Zimbabwe, the leading authority on this principle of law is Pedzisa v Chikonyora 1992 (2) ZLR 445 (S), where…, GUBBAY CJ made the following remarks:

“Where a lessee's rights are personal, as in casu, he is entitled to claim delivery of the property from the lessor.

His rights are effective against the lessor's gratitous successors and against purchaser's who knew of the existence of the lease when they purchased or took transfer; they are not effective against creditors of the lessor or against the lessor's singular successor in good faith.

In the case of a short lease, the lessee has a real right only when he is given occupation of the property; in the case of a long lease, he has it after registration, or, if he is in occupation for the first ten years.

Consequently, upon being given occupation, or the lease being registered, the lessee would be entitled to evict anyone who wrongfully assumes occupation of the property, for example, a trespasser: see Morkel's Transport (Pty) Ltd v Melrose Foods (Pty) Ltd & Anor 1972 (2) SA 464 (W) at 482E-F - but, not before that occurrence.

This principle is clearly set out by FANNIN J in Bodasingh's Estate v Suleman 1960 (1) SA 288 (N) at 289A as follows;

'In the case of an ordinary lease, the lessee, to whom possession has not yet been given, cannot sue a trespasser for ejectment from the leased property, save under a cession of action from the lessor.'”

I turn now to discuss the authorities that the applicant seeks reliance on in his claim against the respondents.

The applicant does not state that he obtained vacant possession from the respondents. Indeed, it is accepted, on the papers, that, he had moved onto the farm as a requirement to comply with the terms of the offer letter.

He goes further and suggests, that, by virtue of his occupation, he has acquired a right which is indistinguishable from a lessee who obtained vacant possession and that he now has a real right to evict the former owners whom he says are in illegal occupation.

In Buchholtz v Buchholt 1980 (3) SA 424 (W), the purchaser had obtained vacua possessio from the seller before transfer and was thus invested with a right to occupy by the title holder.

The facts in Steenkamp v Mienies and Ors 1987 (4) SA 186 (NCD) are somewhat more complex.

The applicant had a written agreement of lease with the second respondent which had been entered into on 16 June 1986 in respect portion 10 of Mier no. 585. It was formerly known as portion 115. The applicant had also alleged, that, he had rented the same property from the second respondent in terms of a written lease agreement, from 1 January 1981 to 31 December 1985, and that, as a result of the lease contract, he was in partial occupation of the property.

The first respondent, on the other hand, had contended, that, he was in rightful occupation of portion 10 in terms of a written agreement between himself and the Department of Internal Affairs (Coloured Affairs). A copy of the agreement was attached to his papers and confirmed the agreement which was to expire on 31 December 1985.

The farm was referred to in the agreement as 139 Kooi Hoop.

The new number was portion 7 of Mier, no. 585. A plan attached to the applicant's papers shows that the farms are indeed different.

At the hearing, the first respondent's counsel accepted the accuracy of the plans and maps.

The Court then was required to determine the point in limine raised on behalf of the first respondent as to the locus standi of the applicant to bring proceedings for the eviction of the first respondent from portion 10 on the basis that the applicant had never had vacua possessio.

The finding of the court was that the applicant therein had leased the portion in contention prior to 1981 in respect of an oral agreement and that the applicant had at least partial occupation of the same.

It also found, that, the first respondent had never leased portion 10 and thus had never acquired any rights in respect thereof.

The court found, that, the applicant had at least partially occupied the farm from 1 January 1981, and, further, that, the first respondent had made use of the grazing on the said farm from the same date or even earlier.

The court also stated, that, the applicant could claim vacua possessio from the lessor since the first respondent had been trespassing on the farm for a considerable period but that this did not detract from the fact that the applicant had acquired a real right through the partial occupation.

There is no indication, that, in obtaining partial occupation, the applicant therein had been given vacant occupation by the lessor.

The court, however, went on to state, that, even if the occupation of the farm by the applicant was somewhat incomplete, it could not be said that he had received no occupation of farm 10 and therefore had no real rights.

I assume, therefore, from the passage, that, the court found, that, in obtaining the partial occupation, the applicant had received vacua possessio.

I note with interest, that, the applicant did not find it necessary to discuss the Zimbabwean case of Pedzisa v Chikonyora 1992 (2) ZLR 445 (S) even though the respondents had placed heavy reliance on the same.

It is a judgment of the Supreme Court of this country and is therefore binding. The judgments from South Africa, where they are distinguishable from our own, can only be persuasive.

I venture to suggest, that, where the judgment in Steenkamp v Mienies and Ors 1987 (4) SA 186 (NCD) differs from that in Pedzisa v Chikonyora 1992 (2) ZLR 445 (S) such dicta is not binding.

The applicant herein does not have an agreement to lease the property. He has, instead, an offer letter which courts in this jurisdiction have found not to constitute a lease: see Airport Game Park P/L & Anor v Karidza & Anor 2004 (1) ZLR 391 (S) at 390C where ZIYAMBI JA stated;

“Not only is this basic requirement of a lease lacking in the offer letter, but, the contents of the letter do not admit of the interpretation sought to be placed thereon by the appellants, namely, that, the first respondent was constituted a lessee by the letter.”

And, later in the same judgment, at p396C-E, in discussing the judgment in Mgwaco Farm (Pvt) Ltd v Pasi & Ors 2003 (2) ZLR 478, the learned judge of appeal stated:

“I respectfully disagree with the conclusion of the learned judge. The letter clearly indicates, that, it is only if the Minister was satisfied that the conditions stated therein had been met that he would enter into a lease agreement with the first respondent. The duration of the lease and the rent payable were not set out in the letter. Although the duration of the lease need not be specified for a lease to be constituted, the same cannot be said of the quantum of the rental and when it should be paid. In the absence of any provision setting out the rental, the offer letter cannot be said to constitute a lease.”

Clearly, therefore, an offer letter is not a lease agreement.

The applicant has premised his right to claim relief on the basis of such rights as would ensue on the conclusion of an agreement for lease.

If an offer does not constitute a lease, it seems to me, that, it offers a right to occupy at the pleasure of the owner of the land, that is, the Government of Zimbabwe.

The parameters attendant on such occupation are not before me for discussion, but, on the other hand, it cannot be said that the applicant can claim the same rights as a lessee occupying under an agreement of lease.

In a somewhat tongue in cheek fashion, the applicant contended, that, even if he had no locus standi to sue for the ejectment of the respondents from the portion of farm that is in contention, he had locus standi to sue for an interdict.

In my view, locus standi is predicated on the existence of a right - whether clear or prima facie.

Generally, a right either exists or does not.

There are situations where one can have a right in respect of certain relief, for instance in spoliation proceedings, but, no right for obtaining other relief.

This is not so in this case.

Since the right is being sought by virtue of an entitlement to occupy the piece of land, I do not believe that such right is capable of qualification.

If the applicant has the right to evict the respondent, then, he would have a right to an interdict against any perceived infringement of his rights to occupy the land.

He has failed to establish the right to evict or for an interdict.

In casu, the applicant never obtained vacant possession, having moved onto the farm under his own steam, so to speak. He has thus not acquired the necessary locus standi to sue the respondents for the enforcement of rights that may accrue from his possession of the portion of land he occupies.

I find that he has no locus standi even to obtain an interdict against the respondents. His application must therefore fail on that ground.

HMA18-19 : BRIAN GAVA vs CHAMISA MAWERE and CHAMPION CHAKANETSA (as Executor of Estate Late Claudio Chakanetsa) and MISHECK MIZEKE and MESSENGER OF COURT – GWERU and CITY OF GWERU and REGISTRAR OF DEEDS – BULAWAYO N.O.
Ruled By: MAFUSIRE J

The property situate, Stand 2468 Mkoba 7 Township in Gweru (“the property”) was at all relevant times owned by the fifth respondent, Gweru City Council.

However, one Honest Pepolo was apparently buying it from Gweru City Council in terms of one of those standard term lease to buy agreements.

Apparently, in June 2004, Honest Pepolo sold his rights and interest to one Claudio Chakanetsa, now deceased (“the deceased”). In these proceedings his estate was cited as the first respondent, duly represented by the executor.

I say “apparently” because although none of these specific issues were in contention by themselves, a great deal of the factual background was seriously disputed. And the applicant's case, with all due respect, was badly pleaded. I shall elaborate on this later on.

First, the facts that were common cause or uncontentious.

At all relevant times the deceased (Claudio Chakanetsa), or his estate, owed a sum of money to the first respondent (Chamisa Mawere). Chamisa sued, got judgment, and executed through the fourth respondent (the Messenger of Court). The property was duly advertised for a public auction. On 23 September 2016 it was sold. The buyer was the third respondent (Misheck Mizeke). On 21 October 2016 the Magistrate's Court confirmed the sale.

On 5 July 2017, Gweru City Council and Misheck Mizeke executed what was on the face of it an agreement of sale of the property. But, in reality, it was a cession. Transfer was conditional upon, among other things, Misheck erecting on the property a building, or buildings, of a certain value within a stipulated time-frame.

However, it was common cause, that, at the time of the agreement, there was already a fully developed dwelling house which had a number of occupants.

In January 2018, Misheck Mizeke sued for vacant possession and holding over damages. He succeeded. In the application before me, it was hotly contested who occupied the property at the time.

Misheck Mizeke's summons for eviction cited one Monica Maboke (Monica) and all those claiming occupation through her. Monica was one of the deceased's (Claudio Chakanetsa) surviving spouses - but she did not stay at the property.

In these proceedings, the applicant claimed it was his tenants occupying the property at the time. Both Chamisa Mawere and Misheck Mizeke disputed that.

In November 2018, the applicant instituted these proceedings.

Apart from costs, he sought an order declaring him the rightful owner of the property. He also sought an order setting aside the auction sale and a cancellation of the cession of the property from Gweru City Council to Misheck Mizeke.

At the end of argument I dismissed the application for lack of merit.

The applicant's cause of action, in paraphrase, was that prior to the attachment of the property by the Messenger of Court, at the instance of the judgment creditor, Chamisa Mawere, he had since bought it from the deceased during his lifetime in terms of a written agreement of sale dated 6 January 2013.

He attached the document.

The applicant said he had duly taken occupation of the property through his tenants. He said efforts to get transfer had been frustrated by the second respondent, the executor, who continued to duck and dive each time he made a follow-up.

The one misconception about the applicant's case was in relation to the true nature of the rights and obligations that are created by these so-called lease-to-buy agreements in respect of these types of township houses. Terms such as 'sale/purchase of rights, title and interest in' 'transfer' etc. are manifestly misguided. Yet, as long ago as 1992 the Supreme Court voiced concern over such use of wrong terminology in such situations.

In Gomba v Makwarimba 1992 (2) ZLR 26 (SC) McNALLY JA said…,:

“As so often happens, the parties have used the word 'sale' to describe what was in reality a cession of rights, since the house actually belongs to the Chitungwiza Town Council…,. It is unfortunate that legal practitioners persist in ignoring the distinctions between sale and cession of rights in these cases, both because there are many such cases and because there are many such distinctions.

In this case, the respondent was not the owner of the disputed immovable property but merely a 'lessee-to-buy'. The contract, in terms of which the respondent acquired and held her rights in the property, and which defined her rights in the property, was not before the Court. Nor was the owner cited as a party.”

Consistent with such misconception, the agreement of sale between the deceased and the applicant referred to the deceased as the owner of the property. But he was not. It was Gweru City Council that was.

The agreement went on to allege, that, the seller (the deceased) was selling and the purchaser (the applicant) was buying the property. But there could have been no such sale of such property. All that the deceased was purporting to do was to cede his rights and interest in the property. And, conversely, all that the applicant wished to do was to accept the cession.

Of course, it is perfectly normal for the cession price to equate to the market value of the property.

Significantly, the agreement said nothing about transfer. Obviously, there could be no transfer of real rights in such circumstances. Only personal rights were involved. The agreement simply said:

“The parties have been advised at the Ministry of Housing and Local Government that the house will be registered upon inspection and being given a certificate of occupation (sic).”

If the above misconception was more technical, the next one was not. It was more profound and fatal. It was the bedrock of the applicant's purported cause of action.

His suit was a rei vindicatio.

He boldly stated he was already the owner of the property by the time the Messenger of Court attached and sold it in execution. So, all he now wanted was for the court to confirm, by way of a declaratory order, that he was the owner and that Misheck Mizeke's agreement with Gweru City Council was void.

But, unfortunately for the applicant, he could not vindicate. He was not, and had never been the owner of the property.

The rei vindicatio is only available to an owner of a thing whose possession of it was taken away against his or her will. He or she is entitled to claim the thing wherever he or she finds it, and from whomsoever has got it: Chetty v Naidoo 1974 (3) 13 (A)…,. All that the owner has to prove is that he or she is the owner; that his or her thing is in the defendant's possession; and that it is still in existence and clearly identifiable: see SILBERBERG and SCHOEMAN's The Law of Property, 5th ed…, and the cases cited thereon.

Rei vindicatio is a common law remedy.

HMA21-19 : MR MBOZVI vs CHENGETAI SIDHUNA
Ruled By: MAWADZE J and MAFUSIRE J

The dispute between the parties centred on a property described as Stand 238 Phase 1 Checheche (“the property”). It is one of those council-owned township properties that local authorities sell on a rent-to-buy basis. It is under the Chipinge Rural District Council.

In the court a quo, the respondent (“Chengetai”) sued the appellant (“Mbozvi”) for eviction and holding over damages. The court granted the orders.

Mbozvi appealed. We heard argument on 27 March 2019 and reserved judgment.

This now is the appeal judgment.

In her claim, Chengetai alleged that Mbozvi “…, unilaterally entered…,” her property in January 2017 without her authority. She alleged she had acquired the property in November 2007; that she had partially developed it to window level but that the defendant was staying there illegally and without paying rentals.

The claim was poorly presented. The drafting was sloppy. For example, there was no reason why Mbozvi's name was not cited in full when all his particulars were available.

But, that is besides the point.

In his defence, Mbozvi took an objection in limine. He said Chengetai had no locus standi in judicio to evict him or to seek holding over damages because the property was his.

But, it seems this objection went nowhere. It seemed abandoned or forgotten somewhere along the way. It was not even on the list of issues at the pre-trial conference.

The objection was ill-conceived anyway, especially if regard is had to the nature of the claim and the nature of the defence.

On the merits, Mbozvi denied that he had “…, unilaterally entered…,” the property. He alleged he had lawfully acquired it from one Tafirenyika Maturo (“Tafirenyika”), to whom Chengetai had transferred her right, title, and interest.

In its judgment, the court a quo ruled, that, there had never been a transfer from Chengetai to Tafirenyika but that what had happened had all been a fraudulent scheme to strip Chengetai of her ownership. As such, since no thief or fraudster can in law transfer rights in a thing, Mbozvi's claim to the property was held to be defective. The court also ruled that Chengetai was entitled to holding over damages.

The case went like this.

Chengetai opened and shut her case with only the evidence from herself. She said the property was allocated to her by the Chipinge Rural District Council in 2007. She produced the offer letter from Council dated 29 November 2007. All this was common cause.

But, there was a subtle detail on the letter that was at war with her case.

The letter had two parallel lines drawn in long hand running diagonally across it and between which the words “Stand No.238 PHASE 1” were inscribed, also in long hand. Mbozvi said that was the evidence of the cession of the property from Chengetai, or of the original allocation to her having been cancelled. She denied it. But, she proffered no other explanation for that endorsement.

In a boxing match, that would be a point for Mbozvi.

Chengetai said she had submitted some developmental plans to the Council for the construction of a 3-roomed cottage on the property. As proof, she produced some drawings endorsed with a date stamp from the Chipinge Rural District Council in 2012.

But, again, a subtle detail on the drawings contradicted the flow of her evidence.

Mbozvi said the plans were for a different property, not Stand 238. Indeed, the drawings cited a different property. They were titled “PROPOSED COTTAGE ON STAND No.120 INFILL CHECHECHE GROWTH POINT”. Chengetai said the reference to Stand 120 was a mistake which the Council had promised to rectify but had never done.

But, again, in a boxing match, this would be another point for Mbozvi.

Beyond this evidence and these two documents, Chengetai's evidence proved nothing further. Everything else she said was a bare denial of the cogent and overwhelming evidence by Mbozvi through himself and his very relevant witnesses, namely, Tafirenyika, his wife Leona or Loren Chiona (“Leona”) and Mbozvi's friend, Collen Gapara (“Collen”) who had facilitated the sale deal between Tafirenyika and Mbozvi.

Mbozvi's case was this.

He heard the property was on sale. He went to inspect it. He liked it. Together with a sister and his wife, they went to inspect Council records. These reflected Tafirenyika as the “owner”. Tafirenyika worked and stayed in South Africa. Mbozvi called him. They agreed on a purchase price of fifty thousand Rand (R50,000).

Tafirenyika referred them to his wife, Leona, whom he said had all the authority to represent him.

The sale deal was concluded. The purchase price was paid. They went to Council offices for the usual cession. This was done.

He took occupation in 2015 and started building the partially constructed house. He completed the structure; tiled the floors; installed water and electricity; planted some trees and flowers around the yard; put up a security wall along the perimeter and started staying there from January 2016.

Until he received her summons, in March 2018, he had never heard of Chengetai and her claim to the property.

To all that, Chengetai denied ever selling the property to anyone.

She denied ever dealing with Tafirenyika or his wife, Leona. She was adamant none of them was known to her.

Mbozvi set to demolish her case. He called Collen.

Collen's evidence corroborated Mbozvi's in relation to the sale by Tafirenyika. One important aspect of that corroboration was that it was his advice to Mbozvi to clear the property first with the Council before committing himself to Tafirenyika. He was present at the Council offices when the records were pulled out and inspected. They all reflected Tafirenyika as the “owner”. Another important aspect of the corroboration was that when Mbozvi took occupation there was a partially built structure which Mbozvi completed in 2016.

Even the court a quo accepted Collen gave his evidence very well and that he remained unshaken under cross-examination.

But, the sale and transfer from Tafirenyika to Mbozvi was less contentious. Fireworks were in respect of the sale and transfer from Chengetai to Tafirenyika.

Chengetai swore she knew nothing about it or that Tafirenyika and his wife, Leona, were ever known to her.

So, Mbozvi called Leona.

She stayed at Checheche Growth Point. She said it was Chengetai herself that had come to her house, personally, on 4 February 2015, to inform her that she had sold the property to her husband, Tafirenyika. Tafirenyika had already telephoned her (Leona) about the deal. Before coming to Leona's house, Chengetai had first telephoned her for directions. The purpose of Chengetai's visit was to arrange transfer of cession at the Council offices. They agreed on a date, 6 February, i.e. two days later.

Leona's evidence, on the cession transfer at the Council's office, was quite elaborate. In brief, it was this:

She had her husband's national registration particulars. Chengetai had hers. Together, they were moving from office to office signing documents. Chengetai would sign first. She would sign in place of Tafirenyika.

After completion of the sale and transfer she and Chengetai actually became friends.

Next, Mbozvi called Tafirenyika.

His formal evidence was that he worked and lived in South Africa. He was married to Leona under customary law. They had three children together. He was the one who sold the property to Mbozvi. Everything was done through Leona, his wife, whom he had granted all the authority.

Critical aspects of Tafirenyika's evidence were these:

He met Chengetai for the first time in South Africa. He did not know her before. She had been in the company of two people, one of them Zviedzo Chipfunde (“Zviedzo”), an old school mate of his. Zviedzo was then married to Chengetai. He told him Chengetai was selling a Stand for thirty thousand Rand (R30,000). He reached an agreement with her. He paid her a deposit of twenty thousand Rand (R20,000). The balance of ten thousand Rand (R10,000) would be paid on the transfer of cession.

Tafirenyika's critical evidence continued:

Towards December, Chengetai was demanding the balance of the purchase price. He told her they needed to change ownership first. They agreed that since he was busy he would give her his wife's contact details through whom the transactions would be carried out.

Back in Zimbabwe, Chengetai did contact Leona and went to see her at home. Together, they arranged and facilitated the change of ownership. Chengetai subsequently returned to South Africa and collected the balance of R10,000 after both she and Leona had confirmed the cession at Council offices.

To all that testimony, Chengetai's position was just a bare denial.

She denied she knew Tafirenyika or his wife, Leona. She denied she had sold her property to them. She denied she had been to South Africa during the period mentioned by Tafirenyika. She denied she had received that kind of money from Tafirenyika or anyone else in connection with the property. She denied the cession at the Council offices and alleged that all the documents suggesting a cession of rights by her were forgeries or fraudulent.

Mbozvi's witnesses were forthright, straightforward, and unshaken. Cross-examination was lame.

For example, counsel for Chengetai, put it to Tafirenyika, that, Leona was a mere concubine of his since there was no registered marriage between them. He pestered Tafirenyika why he did not apply to be joined to the proceedings if ever he wanted to defend his sale of the property to Mbozvi and protect him!

This was absolutely ironic.

It was the process issued by counsel for Chengetai himself, on behalf of Chengetai, and his presentation of the case that were patently incompetent.

For example, the summons excluded very relevant parties like Tafirenyika and the Chipinge Rural District Council, the true owner of the property, and the records for which reflected Tafirenyika as the owner. Not only that, but Chengetai's case was closed with no evidence from any of the Council officials testifying on what had really transpired regarding the property and whether there had really been a fraud.

There was an aspect of Mbozvi's evidence and that of his witnesses that left Chengetai rather exposed.

They asked how on earth they could have ever guessed Chengetai's national registration particulars which were inserted on the cession documents. At first, she denied they were hers. But, she subsequently admitted them. She gave no explanation how Mbozvi and his witnesses could have got them.

Mbozvi's documentary evidence should have won him the case. In a boxing match, it would be the technical knock-out punch. It was completely in consonant with his testimony and that of his witnesses.

Firstly, he relied on Chengetai's own original offer letter from Council and highlighted the cancellation endorsed on it. Next, he discredited the drawings or building plans as belonging to a different property altogether.

The critical cession document from Chengetai to Tafirenyika was produced through Leona.

It was one of those standard cession forms used by rural district councils which are printed on council stationery. Blank spaces were completed in long hand. It had four sections: the first for completion and signing by the cedent; the second for completion and signing by the cessionary; the third for official use, and the fourth, and last, for approval by the Minister of Local Government.

Completed, the relevant portions of the cession document read as follows:

“The undersigned…,___CHENGETAI SIDHUNA___, National Reg. No: ___13–174976 A 13___ do hereby cede, assign and transfer to…,___MATORO (sic) TAFIRENYIKA___ Nat Reg No: ___13 – 200661 T 13___ All my rights and title to and interest in lease number ___238___ at ___CHECHECHE___ Business centre in Chipinge Rural District from ___6___ day of ___FEBRUARY 2015___.”

Above the word “CEDENT” was a signature, in very clear print: “C h e n g e t a i” with the letter “e” quite distinct and somewhat stylish. There were also signatures by two witnesses.

The section for the cessionary read as follows:

“I … ___MATORO (sic) TAFIRENYIKA___ Nat Reg No ___13–200661 T 13___ Address ___1107 Phase 2 CHECHECHE___ Do hereby accept transfer of the Agreement of number _____(blank)____ Business Centre in Chipinge Rural District, as from the ___6___ day of ___February 2015___”

As with the cedent, the cessionary's signature was a distinct name in print “LOREEN CHIONA”. There were also signatures by two witnesses.

The last two sections of the cession document, which were for official use and approval, were left blank.

Counsel for Chengetai latched onto this.

He said the alleged cession was incomplete and unapproved.

He said it was defective and fraudulent because Leona purported to be Tafirenyika and to sign as him. He said she had no power of attorney.

The court a quo accepted the argument. It fell into error.

There is nothing magical about a cession of rights. In Chauke & Anor v Mangena HMA09-19 in which a similar argument arose, I said there is wise Shona saying: “kupedzera miseve pamakunguwo idzo hanga dziripo!” meaning, wasting all the arrows on worthless crows when more treasured guinea fowls abound: in other words, to major in minors.

Simply put, a cession is the transfer or giving up of rights and interest by one party which the other party accepts or receives. The cession is pivoted on an agreement that is legitimate. The transferor or giver of the right is the cedent. The receiver is the cessionary.

No formalities are required for a valid cession: see R.H. CHRISTIE: Business Law in Zimbabwe, Juta & Co Ltd, 1998…,.

In Mberi v Mbewe & Anor HH420-15, after reviewing a number of cases on the point such as Gomba v Makwarimba 1992 (2) ZLR 26 (SC); Hundah v Murauro 1993 (2) ZLR 401 (SC); Pedzisa v Chikonyora 1992 (2) ZLR 445 (SC) and Magwenzi v Chamunorwa & Anor 1995 (2) ZLR 332 (S), I said, in a great number of cases of this nature, the local authority, which is the true owner of the property, is little concerned with what the tenant-to-buy does with his rights and interest in the property.

The local authority normally consents in advance of the alienation or disposal of such rights, or it subsequently ratifies. The consent can be tacit or express.

In the present case it was both.

That, when Mbozvi and his team went to inspect the Council records, before he committed himself to Tafirenyika, they found the property reflecting Tafirenyika as the owner was not challenged.

Thus, unless the Council had given tacit approval to the sale from Chengetai to Tafirenyika, there could be no explanation why the records were in Tafirenyika's name.

But, there was more.

Produced in evidence was a very detailed rent-to-buy agreement between the Chipinge Rural District Council and Tafirenyika in respect of the property. It was signed by Leona as lessee and by Chengetai as a witness.

Nothing could be better evidence of the express consent by the local authority and of the transfer of rights from Chengetai to Tafirenyika.

The court a quo said all these documents were a fraud to strip Chengetai of her ownership of the property.

It said Leona had no power of attorney to sign the documents as Tafirenyika.

It went on to quote from some authority defining a power of attorney as generally being a physical document under seal, and concluding, that, the purported power of attorney relied upon by Leona, not having been a document under a seal, all that she had done in the name of Tafirenyika had been a “farce”.

With all due respect, the court seriously misdirected itself on this aspect.

Mbozvi and his witnesses never said Leona had a power of attorney. The term 'power of attorney' was introduced into the matrix by counsel for Chengetai in cross-examination. All Mbozvi and his witnesses said was that Leona had authority from her husband to transact on his behalf, and that that authority had been given over the telephone.

Whilst a power of attorney gives authority - not all authority is given by a power of attorney.

All that the court a quo had to be satisfied with was whether Leona had her husband's authority to transact on his behalf.

These were unsophisticated people. The court had to be satisfied, by the substance of the arrangements, and not be concerned with fancy legal niceties, or with form over substance.

But, whatever might have been lacking in form was given substance by the Chipinge Rural District Council itself. It gave its badge of authority to the two cessions: the first and crucial one from Chengetai to Tafirenyika, and the second and uncontentious one from Tafirenyika to Mbozvi.

The triangle was complete.

That Council itself and the Ministry of Local Government might not have signed their sections on the cession document seemed to be mere carelessness or plain inadvertence that did not in the least detract from the fact that the parties had agreed and that the Council had granted both tacit and express approval.

Everything else was subterfuge.

Counsel for Chengetai successfully persuaded the court a quo to find meaning and substance in a letter from the Chipinge Rural District Council, written to himself by the Growth Point Manager on 10 April 2018 and which he had solicited for.

Relevant portions of that letter read as follows:

“Your letter dated 25 March, 2018 refers. Ms Chengetai's Sidhuna's letter on same subject dated 18 September, 2017 also refers.

Please note that the Stand cession process is a long and arduous process which takes place at five different levels, namely, the sub-office at Checheche, then Heads of Departments have to consent to it before submitting to ZIMRA. After ZIMRA's concurrence, the matter will finally come back to the Lands and Assets Office at the Main Office before being finally presented to the Chief Executive Officer to complete the signing of a lease agreement thereto.

As you observed, there is no complete cession yet and there is no lease agreement yet between Council and the incumbent, Tawanda Mbozvi. The forms are still at the Checheche sub-office, held back because of an incomplete process. Implicitly, the first level has therefore not yet been satisfied by the parties to warrant it to move up to the second stage where the Heads of Departments will peruse the documents before they can be passed on to ZIMRA.

The Stand is therefore not yet formally…, in the buyer's or cessionary's ownership, albeit the nominated cessionary already having been clearly cited for practical functional purposes – and this we always do as instructed and agreed between the seller and the buyer. In the case of any objection by the parties, we always delay or defer process until we are granted a green light by the parties…,.

In the matter at hand, there is agreement between the incumbent, Tawanda Mbozvi, and Tafirenyika Matoro who claims to have bought the property from Chengetai Sidhuna…,. The dispute, therefore, lies between Chengetai Sidhuna and Tafirenyika Matoro who passed ownership of Sidhuna's property to Mbozvi.

Essentially, therefore, Council fully recognises Sidhuna's objection to processes that were transacted in our offices. She is the holder of the more critical Council stand documents and her consent to the process is therefore paramount.

To that effect, Council has deferred the cession process of Stand 238, given the apparent validity of Chengetai Sidhuna's formal complaint since September 2017.

By copy of this letter, we advise the three parties on our records (being Mbozvi, Matoro and Sidhuna) to convene or otherwise resolve matters and instruct us accordingly….,.”

The letter is an example of double-speak.

But, the highlighted portions are a fabulous give-away. There is an acknowledgement of the double cession.

The cession from Chengetai to Tafirenyika was complete as signified by the lease-to-buy agreement between the Council and Tafirenyika. The cession between Tafirenyika and Mbozvi was complete as signified by, firstly, a handwritten agreement between Tafirenyika and Mbozvi, and, secondly, the cession addendum from Tafirenyika to Mbozvi, both in December 2015.

All these documents were part of the Council records.

And yet neither counsel for Chengetai, nor the court, saw it fit to have Council officials called to give evidence.

Chengetai proved no fraud or any form of unlawful misrepresentation.

On the contrary, the evidence established, that, she had sold her rights and interest in the property to Tafirenyika, who, in turn, had sold his rights and interest to Mbozvi.

The court a quo failed to appreciate that the conclusion in Council's letter above, to the effect that the rights, title, and interest in the property still lay with Chengetai, was the very aspect it was being asked to adjudicate upon.

Apart from the foregoing, the court a quo failed to appreciate that there was also evidence that was not only common cause, but also aliunde to that given viva voce.

That evidence supported Mbozvi's case and contradicted Chengetai's claim. It was this.

Not only had Mbozvi been in occupation of the property for more than two years before Chengetai's summons, but, also, he had openly completed the partially built house on it from window level right up to completion and to a habitable state with not a whimper of protest from Chengetai. Chengetai conceded she saw the building going up but failed to confront Mbozvi or his builders. She claimed she feared violence. She said she went to complain to Council.

That is implausible. It is unbelievable.

Mbozvi took effective occupation in December 2015. Council's letter above suggests she only complained in September 2017 – thus, almost two years later. Her summons was in March 2018 - more than two years later. At the very least, she should have sought an interdict to bar Mbozvi from carrying out any construction.

Justice is often depicted as a lady blindfolded, holding a sword in one hand and a set of balancing scales in another. The scales are said to be for measuring the strength of a case. They represent the weighing of evidence. Before the case starts, the scales are evenly balanced. They are in a state of equilibrium. The weight of the evidence, as the case progresses, upsets the balance. As the case concludes, the court checks the way the scales are tilted.

Judgment is granted for the party in whose favour the scales are tilted.

Thus, a trial, in a civil case, involves the making of findings or inferences of facts by balancing probabilities and selecting a conclusion which seems to be the more natural or plausible one from several other conceivable ones, even though that conclusion may not be the only reasonable one: see Joel Melamed and Hurwitz v Cleverland Estates (Pty) Ltd; Joel Melamed and Hurwitz v Vorner Investments (Pty) Ltd 1984 (3) SA 155.

In this case, the scales of justice were undoubtedly tilted in favour of Mbozvi. Chengetai proved nothing. Mbozvi proved everything - even though the onus had not been on him.

The judgment in the court a quo was a travesty of justice.

Regarding holding over damages, if Chengetai had no case for eviction, concomitantly she had no case for holding over damages. Yet the court granted it. And demonstrably, even the amounts were plucked from the air. There was no basis for the rate of damages or for the quantum.

In the result, the appeal is allowed with costs. The following order is issued:

(i) The judgment of the court a quo is hereby set aside in its entirety and substituted with the following:

“The plaintiff's claim be and is hereby dismissed with costs.”

(ii) The costs of this appeal shall be borne by the respondent.

HH48-12 : ENOCK GOVHA vs ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDA REBECCA MINE and ANOR
Ruled By: MATHONSI J

This is an application for rescission of a judgment of this court entered in default in favour of the first respondent on 26 June 2008 in terms of which the eviction of the applicant and those claiming occupation through him from premises known as 1495 Chiwaridzo Township Bindura was ordered together with costs of suit.

On 4 February 2008, the first respondent issued summons out of this court in case number HC642/08 alleging that the house in question had been leased to the applicant by written lease agreement signed by the parties on 20 December 2003, which lease could be terminated by the first respondent in the event that the applicant left employment with the first respondent.

The first respondent further averred, that, the applicant's employment having been terminated on 31 March 2007, a point which is now hotly disputed by the applicant who claims having retired from the first respondent's employ in October 2005, the lease had been terminated.

The first respondent then sought an order for eviction as a consequence of the applicant's failure to vacate the house following such termination.

According to the Deputy Sheriff's (second respondent herein) return of service filed of record in that matter, the summons was “served on defendant Enock Govha” on 29 February 2008.

On 12 May 2008, the first respondent submitted an application for default judgement which was granted on 26 June 2008 aforesaid. In due course, a writ of ejectment was issued and the applicant's eviction was sought.

It is that default judgment which the applicant seeks to have rescinded arguing that he was not in wilful default as he was never served with the summons.

The applicant has cited the Deputy Sheriff in this application as second respondent and attacked his return of service as being “false and misleading” given that on the day the second respondent alleges he served the summons personally upon him, he (the applicant), was enjoying the fruits of his retirement in his communal home, he having relocated there in January 2006 following his retirement either in October or December 2005.

It is not clear when, as he mentions two (2) different months in 2005 as his retirement date.

It is not clear whether this application was served upon the second respondent as no proof of such service was filed.

What is clear though is that the second respondent has not challenged the serious allegations made against him regarding service of the summons. His failure to do so may be due to the fact that he did not have notice of the application.

The applicant states, in his founding affidavit, that, he only became aware of the existence of the default judgment when the second respondent sought to evict his daughter from the house on 1 November 2008.

He goes on to say, that, he should be allowed to contest the eviction because he bought the house from the first respondent and he paid the full purchase price.

In support of that claim, he has filed documents showing that the first respondent, as employer, offered houses to its employees, including the applicant. Those documents also show that the housing units were valued, their values determined and what each employee was expected to pay as the purchase price assessed and agreed.

The applicant also submitted his payslip showing that deductions were made by the first respondent from his salary under the caption “rent to buy”. The same payslip also reflects the balance after each deduction of the said 'rent to buy' showing that the amount charged was being progressively reduced. In addition, he filed receipts issued by the first respondent for further lump sum payments marked “payment of House 1495.”

For that reason, the applicant is of the firm view, that, having paid the full purchase price for the house, he cannot be evicted from it and has prospects of success on the merits.

The first respondent strongly opposes the application on the basis that the applicant has not shown good and sufficient reasons for the rescission of the judgment entered in default.

It has been argued on behalf of the first respondent, that, as the owner of the house, with title, it is entitled to vindicate against the applicant and that there was never an agreement of sale between the parties involving the house in question.

Counsel for the first respondent insisted that the relationship between the parties was governed by the written lease agreement signed in December 2003, which document the applicant says only recorded the financial arrangement between the parties for the conveyance, to the first respondent, of the purchase price. He vehemently argued, that, in terms of that lease agreement, the applicant would only be eligible for consideration to purchase the house at the expiration of 60 months from the date of the signing of that lease agreement.

Regrettably, counsel for the first respondent did not explain what governed the relationship between the parties before the lease agreement of 29 December 2003 was signed.

He took the view, that, as the applicant retired in March 2007, before the 60 month period had expired, he was not eligible to purchase the house and the first respondent was entitled to reclaim it.

There is a dispute as to when the applicant retired and two (2) different letters purporting to inform him of his resignation have been produced.

The first respondent produced a letter dated 14 November 2007 recording the applicant as having resigned on 31 March 2007.

Counsel for the applicant insists that letter is a recent fabrication by the first respondent, and has produced a letter written by the applicant's Human Resources Manager, M. Nyamadzawo, on 22 June 2005, giving the applicant notice of his retirement on 31 December 2005.

The first respondent has not explained the circumstances under which that letter was written if the applicant had not resigned.

Rule 63 of the High Court of Zimbabwe Rules 1971 provides:

“(1) A party against whom judgment has been given in default, whether under these rules or under any other law, may make a court application not later than one month after he has had knowledge of the judgment, for the judgment to be set aside.

(2) If the court is satisfied, on an application in terms of subrule (1), that there is good and sufficient cause to do so, the court may set aside the judgment concerned and give leave to the defendant to defend or to the plaintiff to prosecute his action, on such terms as to costs and otherwise as the court considers just.”

Subrule (2) of Rule 63 was interpreted succinctly in the seminal case of Stockill v Griffiths 1992 (1) ZLR 172 (S)…, as follows:

“The factors which a court will take into account in determining whether an applicant for rescission has discharged the onus of proving 'good and sufficient cause' as required to be shown by Rule 63 of the High Court of Zimbabwe Rules 1971 are well established. They have been discussed and applied in many decided cases in this country: see, for instance, Barclays Bank of Zimbabwe Ltd v CC International (Pvt) Ltd SC16-86 (not yet reported); Roland and Anor v Donnell 1986 (2) ZLR 216 (S) at 226E-H. Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S) at 211C-F. They are:

(i) The reasonableness of the applicant's explanation for the default.

(ii) The bona fides of the application to rescind the judgment; and

(iii) The bona fides of the defence on the merits of the case which carries some prospects of success.

These factors must be considered not only individually but in conjunction with one another and with the application as a whole.”…,.

The explanation given by the applicant, for failure to respond to the summons, is not
convincing, especially as it does not appear that the second respondent, who claims to have served the summons personally on the applicant, has been served for him to responded to the accusations levelled against him.

I agree with counsel for the first respondent, who relies on the authority of Gundani v Kanyemba 1988 (1) ZLR 226 (S), that, the second respondent's return of service is prima facie proof of service and can only be rebutted by concrete evidence being placed before the court.

However, that is not the only factor to be considered in deciding whether the applicant for rescission of judgement has discharge the onus of showing “good and sufficient cause” for the rescission.

I had occasion, in Mazuva v Simbi and Ors HB155-11, a matter in which an applicant for rescission had not given a good explanation for failure to act, to comment…, that, even in such a situation such applicant can still discharge the onus if all the factors are taken together. In that matter, I stated:

“While the explanation for the first respondent's failure to respond to the application in HC905/10 is what MAKARAU JP (as she then was) referred to in Mwanyisa v Jumbo & Ors HH03-10 as 'a dog's breakfast' if the factors to be taken into account in deciding a rescission of judgment application, as set out in Stockill v Griffiths (supra), are taken in conjunction with one another, the applicant has discharged the onus of proving 'good and sufficient cause' for the rescission of the judgment entered on 1 July 2010. It simply cannot stand.”

Here is a company which avails to its employees an opportunity to purchase houses they are leasing from it. It signs an understanding with the employees representatives which has, appended to it, a list of beneficiaries which list sets out the value of each housing unit and the monthly instalment to be paid by each beneficiary - the applicant included. It goes on to deduct the equivalent of such instalment from the applicant's salary clearly stating that it is rent to buy the house and to also show the balance outstanding after such deduction.

The same instalment is reflected on a written lease agreement.

It must be understood, that, in an application of this nature, the applicant is not required to prove his case but merely to show a bona fide defence carrying prospects of success.

Counsel for the first respondent referred me to the case of Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09 (unreported) in which the Supreme Court ruled, that, the agreement signed between the first respondent and its employees, on 1 December 2003, which the applicant relies upon, was not a sale.

That issue was considered by MAKARAU JP…, in: 1. Antonio v Ashanti Goldfields Zimbabwe Ltd & Anor; 2. Mujati v Ashanti Goldfields Zimbabwe Ltd & Anor; 3. Ashanti Goldfields Zimbabwe Ltd v Bonde 2009 (2) ZLR 371 (H); which matters involved the same arguments as in casu.

She distinguished that case and concluded…, as follows:

“I am bound by all decisions of the Supreme Court on points of law. Where, however, the facts that were placed before the Supreme Court are different from the facts before me, I believe I am at liberty to interpret those facts in light of the law handed down by the Supreme Court. The doctrine of stare decisis applies to points of law and not to factual disputes.”

I find myself in agreement with that postulation.

I am not aware if that judgment has been challenged, but, until such time that it is overturned, I am entitled to use it as I am persuaded by it.

Following the guidance given in Stockill v Griffiths 1992 (1) ZLR 172 (S), to consider the factors not only individually but in conjunction with one another and with the application as a whole, I am of the view, that, the applicant has discharged the onus resting on him to show 'good and sufficient cause' for the rescission of the default judgment.

Justice demands that the issues raised ought to be interrogated fully in a trial and that the applicant should not be shut out, as it were, on the technicality of default judgment.

In the result, I make the following order; that

1. The default judgement entered on 26 June 2008 be and is hereby rescinded.

2. The applicant should file his notice of appearance to defend in HC642/08 within ten (10) days of the date of this order.

3. The costs of this application shall be costs in the main action.

HH103-12 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED T/A FREDA REBECCA MINE vs TATENDA TAKAVADA
Ruled By: MUTEMA J

This is an application for summary judgment whose draft order reads:

“1. The respondent be and are (sic) hereby ordered to vacate the plaintiff's premises to wit House No. 1117 Haka Way, Chipadze Township, within seven (7) days of this order.

2. The respondent pays costs of suit.”

This is one of several similar matters in which the applicant is seeking the eviction of its former employees from company houses on the basis that the former employees were mere tenants whose employment has since terminated.

The former employees, just like the respondent herein, argue that the applicant sold the houses to them.

The respondent argues that he has a bona fide defence to the applicant's claim. That defence is explained as follows:

In 1998, the applicant, as part of its staff retention scheme, proposed to sell its housing units to its employees over a five year period. By then, the life-span of the mine had been projected to be around five years. The scheme would also help the applicant realize better value from the disposal of the houses in that manner as opposed to by selling them upon closure of the mine in an environment akin to a ghost town.

As a sequel to the proposal, a lot of deliberations were held on the issue and a Housing Committee was put in place composed of representatives of the employees and the applicant.

The relevant minutes were attached to the opposing papers.

Minutes of 8 May 2003 read:

“2.1 Sale of Residential Properties

The process was still ongoing and progressing well. The Finance Director, together with the workers representative went to consult a lawyer to resolve the outstanding issues. The lawyer came up with what he advised as the best option. Minor changes were made to what the lawyer proposed to suit the employee's needs. Whether that is acceptable will be determined when forms are taken back to the lawyers. IT WAS AGREED that the issue be pursued closely so that it comes to rest.”

Minutes of 24 August 2003 read:

“2.1 Sale of Residential Properties

There was a lot of progress on the sale of residential properties. A hurdle on the revaluation of the houses was cleared with Mr Kwaku-Akosah-Bempah when he visited the mine during the second quarter. The Finance Director, together with the worker's representative, had been to the lawyer with the final draft to which the lawyer had already responded….,.”

Thereafter, what was termed a Memorandum of Agreement BETWEEN Ashanti Goldfields Management and Employees was signed. It provided:

“Ashanti Goldfields Zimbabwe agrees to dispose of its housing units situated in Chiwaridzo, Grey Line Flats and Low Density to its employees who are sitting tenants effective 1 December 2003. Find the agreed prices attached.”

The attached schedule has names of the sitting tenants, house number, new valuation of the house, and monthly repayment amount.

On 12 December 2003, the respondent (and other employees) entered into what is headed Agreement of Lease with the applicant.

The material clauses of the “lease” state that the lease period would be for five years, monthly rent of not more than 25% of the lessee's basic salary which would escalate periodically at a rate and on the basis described in Annexure 'A' viz:

“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 revaluation will be calculated as follows:

50% of the salary increment (%) x the outstanding balance (as at that date). The revalued outstanding balance will then be divided by the remaining period to get the monthly payment.”

The purported lease agreement was simply a vehicle through which deductions would be made from the respondent's salary.

This explains why the applicant, on the respondent's payslip, put a deduction titled “Rent to Buy” and why the applicant accepted a lump sum payment in full and final settlement of the sums payable to it under the agreement of sale before the expiration of the purported lease period.

Also, the minutes of 16 December 2003 are apposite. The relevant part reads:

“3.0 Sale of Residential Properties

There was a lot of progress on the sale of residential properties. Management had approved and concluded the sale. The employees are busy filling in the contract forms.”

Pertinent to note here is that this was said after 12 December 2003 purported lease agreement.

While there exists a plethora of case law on the subject of summary judgment, the locus classicus is that of Maharaj v Barclays National Bank Limited 1976 (1) SA 418 (AD)…, where CORBETT JA said:

“Accordingly, one of the ways in which a defendant may successfully oppose a claim for summary judgment is by satisfying the court, by affidavit, that he has a bona fide defence to the claim. Where the defence is based upon facts, in the sense that material alleged by the plaintiff in his summons…, are disputed, or new facts are alleged constituting a defence, the court does not attempt to decide these issues or to determine whether or not there is a balance of probabilities in favour of one party or the other.

All that the court enquires into is:

(a) Whether the defendant has fully disclosed the nature and grounds of his defence and the material facts upon which it is founded; and

(b) Whether, on the facts so disclosed, the defendant appears to have, as to either the whole or part of the claim, a defence which is bona fide and good in law.”

On the facts so disclosed in casu, I am persuaded that the respondent's defence is bona fide and good in law.

I also derive solace in reaching this conclusion from the salutary words of GUBBAY JA…, in Jena v Nechipote 1986 (1) ZLR 29 (S)…, where the LEARNED JUDGE OF APPEAL held:

“All the defendant has to establish in order to succeed in having an application for summary judgment dismissed is that there is a mere possibility of his success; he has a plausible defence; there is a triable issue; or there is a reasonable possibility that an injustice may be done if summary judgment is granted.”

The respondent's explanation, expounded above, right through its chronology of events pertaining to the disposal of residential properties, does amount to a trial issue. There exists a reasonable possibility of an injustice being done if summary judgement were to be granted.

I am constrained to utter the following strictures concerning the applicant's obduracy.

As stated above, there are scores of similar cases involving the applicant and its former employees. One such is Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Joachim C Nguwo HH58-12 wherein I dismissed a similar application on the same grounds.

The applicant seems to be engaged in a process of judge-hunting because several similar cases are either pending before other judges or have been dealt with meeting with the same fate of dismissal.

In 1. Simbarashe Antonio v Ashanti Goldfields Zimbabwe Limited & Registrar of Deeds; 2. Kingstone Mujati v Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine & Registrar of Deeds; and 3. Ashanti Goldfields Zimbabwe Limited v Kwadzanayi Bonde HH135-09 MAKARAU JP…, following a full trial based on similar claims, distinguished Ashanti Goldfields Zimbabwe Limited v Clemence Kovi SC07-09 which the applicant seems to rely on in its claims and held that the facts in HH139-09 established a sale.

Those facts fall on all fours with the facts in casu as well as those in Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Joachim C Nguwo HH58-12 in which I dismissed the application for summary judgment and gave the respondent unconditional leave to defend.

Although the judgment in 1. Simbarashe Antonio v Ashanti Goldfields Zimbabwe Limited & Registrar of Deeds; 2. Kingstone Mujati v Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine & Registrar of Deeds; and 3. Ashanti Goldfields Zimbabwe Limited v Kwadzanayi Bonde HH135-09 was appealed against, and the appeal is still pending, it is only prudent and proper that the applicant should await its outcome and stop judge hunting in order to avoid creating a multiplicity of contradictory judgments involving the same issue thereby causing confusion and injustice.

Since the facts and argument in casu fall on all fours with the cases dealt with by MAKARAU JP…, cited supra, and Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Joachim C Nguwo HH58-12 I dealt with supra, the present application for summary judgement be and is hereby dismissed and the defendant is given unconditional leave to defend the action.

The applicant is ordered to pay the costs of this application.

HH271-13 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDDA REBECCA MINE vs NYASHA MUTENGWA
Ruled By: MAWADZE J

This is an application for summary judgment wherein the applicant seeks the eviction of the respondent and all those claiming occupation through him from House Number 1131, Chipadze Township, Bindura and costs of suit.

The facts of this matter are largely common cause:

The respondent was employed by the applicant. With the passage of time, the apparently benevolent employer, being the applicant, decided to sell some of the houses to some employees who were sitting tenants.

Some sort of agreement was entered between the applicant, represented by its General Manager and Financial Director, and the employees, represented by the Workers Committee members being the Chairman and two Committee members.

The said agreement or memorandum is dated 1 December 2003 and is in the following terms;

“MEMORANDUM OF AGREEMENT BETWEEN ASHANTI GOLD FIEDS MANAGEMENT AND EMPLOYEES

Ashanti Goldfield Zimbabwe agrees to dispose of its housing units situated in Chiwaridzo, Grey Line Flats, and Low Density to its employees, who are sitting tenants, effective 01 December 2003. Find the agreed prices attached.”

The said agreement is attached to the applicant's founding affidavit as Annexure F1 to F4.

Attached to this agreement is a schedule which has a list of the employees involved, the house they occupy, the value of each house (in Zimbabwe dollars) and the monthly instalments or repayment each employee was to pay.

The respondent occupied House No.1131 which was then valued at Zimbabwean dollars $1,200,000 and was to pay a monthly instalment of Zimbabwe $20,000.

Pursuant to the signing of the Memorandum of Agreement explained above, and on 12 December 2003, the applicant and the respondent entered into what is called “Agreement of Lease” in which the applicant agreed to lease House No.1131 Chipadze, Bindura (the house) to the respondent for a period of 60 months (5 years) commencing 1 January 2004 at the monthly rentals of Zimbabwean $20,000 which was reviewable in accordance with Annexure 'A' to that lease agreement (which provided for revaluation of the property whenever employees are awarded a salary increment).

These monthly rentals were deducted from the respondent's salary.

Clause 3 of the lease agreement provided for the option to buy the house. It provides as follows;

“3. OPTION TO PURCHASE

3.1. The lessee shall have the option to purchase the property after sixty months.

3.2. The rentals paid by the Lessee to the Lessor in terms hereof shall be taken and be deducted from the amount due in respect of the purchase price determined in accordance with the provisions of Clause 3.1. (above).”

The lease agreement is signed by a representative of the applicant and the respondent.

From other decided cases I have been referred to, dealt with by this court, it is common cause that a number of employees entered into such a lease agreement.

It would appear to my mind, that, the dispute in this case, and other cases already dealt with by this court, relates to interpretation to be accorded to the “Memorandum of Agreement” dated 1 December 2003 and the lease agreement dated 12 December 2003 and the relationship between the two documents.

I shall revert to this point later.

After the issuing of the Memorandum of Agreement, on 1 December 2003, and before the signing of the lease agreement, on 12 December 2003, the Workers Committee, through what was now called the Housing Committee, issued out a Memorandum to all employees of the applicant copied to the applicant.

This Memorandum explained the Agreement reached on 1 December 2003. Most importantly, it invited the employees who were sitting tenants to take up the offer to buy the houses.

The relevant part of this Memorandum, dated 2 December 2003, reads as follows;

“Please note that you have until February 29, 2004 to decide whether to purchase the house you are living in or not, after which date the offer will be extended to an employee who is willing to purchase the property. The offer is now open, therefore, employees who are ready can see the Members to formalise the purchase.”…,.

It was after this invitation that the respondent entered into the lease agreement with the applicant on 12 December 2003.

In addition to that, the respondent has attached as Annexures A1 to A3 his payslips which reflect that money was deducted from his salary which money is reflected as “rent to buy”.

The payslips are as follows;

A1, dated 31 October 2004, has a deduction indicated as “Bal rent to buy $52,755”

A2, dated 25 March 2004, has a deduction indicated as “Bal rent to but $116,000”

A3, dated 25 June 2004, has a deduction reflected as “Bal rent to buy $56,895”

The respondent has also attached to his opposing affidavit a memorandum from the applicant, written by the applicant's Financial Controller to the respondent and copied to the Housing Committee dated, 14 March 2004. Its contents are as follows;

“This memo serves as an acknowledgement that we have received $1,100,000 (one million one hundred thousand dollars) as payment towards yours house. The outstanding balance is now $60,000 (sixty thousand dollars).”

It is common cause that the respondent, who was employed by the applicant, and was the sitting tenant in this house as at 1 December 2003, was summarily dismissed on 15 July 2009 following a disciplinary hearing held in terms of their Code of Conduct.

This means, that, as at the date of his dismissal, the respondent has been in occupation of the house for a period of sixty seven (67) months - which is in excess of the sixty months stipulated in the Lease Agreement dated 12 December 2003.

After the dismissal, on 15 July 2009, the respondent, on 4 September 2009, was advised to vacate the house on the basis that the lease agreement which entitled him to occupy the house had lapsed due to the termination of the respondent's contract of employment (see Annexure D to the applicant's founding affidavit).

The respondent refused to vacate the house.

This prompted the applicant to issue summons out of this court in HC4395/09 (main matter) seeking the eviction of the respondent and all those claiming occupation through him and costs of suit.

The respondent entered an appearance to defend and filed a plea, which plea had been dismissed by the applicant as not raising a good prima facie defence, culminating in this application for summary judgement.

It is useful, at this stage, to deal with the respondent's plea (Annexure E to E4 to the applicant's founding affidavit).

In his plea, the defendant stated, that, prior to 1 December 2003, he was occupying the house in issue on the basis of the contract of employment and that since 1 December 2003 he was now occupying the house on the basis of a sale agreement.

The respondent said he has since fully paid for the house and awaits the transfer of the house into his name.

It is the respondent's contention, that, the lease agreement dated 12 December 2003 was the vehicle through which the respondent, and other employees, purchased the houses as they paid for the houses through the process of rent to buy with the monthly repayments deducted from their salaries.

The respondent, in his plea contends, that, he has now acquired rights and interest in the same house hence the applicant cannot evict him from the house.

In fact, the respondent proceeded to file a counter-claim seeking an order to compel the applicant to transfer its rights, interest, and title in the said house to the respondent within 30 days of the grant of such an order and costs of suit.

The question to be addressed in this matter is whether, given the facts I have painstakingly outlined, the applicant is entitled to this extraordinary remedy in the form of a summary judgment?

An application for summary judgment is made in terms of order 10 Rule 64 of the High Court Rules 1971 in circumstances where the applicant is of the belief that the respondent has no bona fide defence to his action.

The respondent may oppose such an application in terms of Order 10 Rule 66(1)(b) of the High Court Rules by showing that he has got a prima face defense to this action.

The law, in relation to the requirements for granting a summary judgment, is clear.

The old case of Roscoe v Stewart 1937 CPD 138 which is cited by the celebrated authors HERBSTEIN and Van WINSEN – Civil Procedure of The Superior Courts In South Africa, 2nd Edition…, makes the point, that, summary judgement is a remedy designed to eliminate or dispose of bogus defences and defences which are bad at law.

The mischief which is curbed by this drastic remedy is to prevent unscrupulous litigants seeking to delay a clear and just claim by raising frivolous defences: see Nedlaw Investments & Trust Corporation Limited v Zimbabwe Development Bank SC05-00 in which it was clearly stated that;

“…, the quintessence of the drastic remedy is that a plaintiff, whose belief is that the defendant's defence is not bona fide and entered solely for dilatory purposes should be granted immediate relief without the expense and delay of a trial.”

In order to successfully fend off an application for summary judgment, a defendant has to show that he has a good prima facie defense to the action.

Our courts have had the opportunity to define what constitutes a good prima facie defence.

In the case of Hales v Doverick Investments (Pvt) Ltd 1998 (2) ZLR 235 (H)…, MALABA J…, has this to say;

“…, he must at least disclose his defense, and material facts upon which it is based, with sufficient clarity and completeness to enable the court to decide whether the affidavit discloses a bona fide defence: Haharaj v Barclays National Bank Ltd 1976 (1) SA 418 at 426D…, the statement of material facts (must) be sufficiently full to persuade the court that what the defendant has alleged, if proved at trial, will constitute a defense to the plaintiff's claim.”

Having laid out these principals of law applicable to this case, I now proceeded to apply these principles to the facts of this case.

The applicant believes, that, the appearance to defend entered by the respondent, and his subsequent plea, do not disclose a bone fide defence but was solely entered for purposes of delay.

In argument, the applicant submitted, that, there was never an agreement of sale between the applicant and the respondent.

It is the applicant's view, that, the memorandum of agreement, dated 7 December 2003, cannot be construed as an agreement of sale, and, reliance was placed on the case of Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09 in which CHEDA JA had to interpret this same document and clearly stated, that, it cannot be said to be an agreement of sale.

Similarly, the applicant submitted, that, the lease agreement, dated 12 December 2003, cannot be construed also on an agreement of sale as it merely provides, in Clause 3, that, an option to purchase this property would be offered to the respondent after sixty months.

The applicant's case, therefore, is that the agreement of lease, having been terminated after the respondent left the employ of the applicant, the respondent has no right, whatsoever, to remain in the house as the applicant remains the registered owner of the house.

While it is correct, that, the pronouncements of the Supreme Court are binding to this court, I believe the case in which the applicant seems to have reposed all his faith in, of Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09, can be distinguished from the facts of this case.

In fact, MAKARAU JP…, in a number of cases involving the applicant and its employees, in Antonio v Ashanti Goldfields Zimbabwe & Anor; Mujati v Ashanti Golfields Ltd & Anor; Ashanti Goldfieds Zimbabwe Ltd v Bonde 2009 (2) ZLR 371 (H)…, distinguished Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09 as follows;

“I am bound by all the decisions of the Supreme Court on points of law. Where, however, the facts that were placed before the Supreme Court are different from the facts before me, I believe I am at liberty to interpret their facts in light of the law handed down by the Supreme Court. The doctrine of stare decisis applies to points of law and not to factual disputes.”

A number of my brother and sister judges who have been seized with matters involving the applicant and its employees, in relation to these houses, have adopted the approach enunciated by MAKARAU JP…, in arriving at a different conclusion, on the facts presented in each particular case, despite the sentiments expressed in Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09 in relation to the Memorandum of Agreement, dated 7 December 2003, and the Lease Agreement dated 12 December 2003.

Few examples are sufficient to illustrate this point.

In the case of Ashanti Goldfields Zimbabwe Ltd v Jhafati Mdala HC5664/07 CHATUKUTA J, after a protracted trial, did find, that, on the facts presented before her, inclusive of the Memorandum of Agreement dated 7 December 2003 and the Lease Agreement dated 12 December 2003, indeed, Ashanti Goldfields Zimbabwe Ltd had sold the house to the defendant.

In the case of Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Shingirai Matimura & Ors HH54-11, GOWORA J…, declined to grant a summary judgment wherein the applicant had sought the eviction of the respondents; whilst the respondents had advanced a similar argument like in the instant case. Indeed, the Memorandum of Agreement dated 7 December 2003 and the Lease Agreement, similar to one dated 12 December 2003, were some of the documents in issue in that case.

Lastly, in the case of Govha v Ashanti Goldfields Zimbabwe t/a Freda Rebecca Mine & Anor HH48-12, and, in Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Ephraim Pfidze HH347-12 MATHONSI J, in both cases, faced with facts almost on all fours with the present case, declined to grant a summary judgement in both cases for the eviction of the respondents (employees).

It is clear from the facts of this case that the respondent has raised a good prima facie defence to the action for eviction.

The Memorandum of Agreement, dated 1 December 2003, which I have alluded to in my introductory remarks, shows, that, the respondent was one of the sitting tenants who were eligible to purchase the house in issue. The respondent contends, that, he acted in terms of the Memorandum, dated 2 December 2013, which invited all employees who were sitting tenants to exercise the offer to purchase the houses as at 29 February 2004.

In fact, the respondent argues, that, he proceeded, in exercising this option, to enter into a lease agreement, dated 12 December 2003, which he described as the vehicle with which the employees were to purchase the houses, as they all started to pay what was called “rent to buy”.

Indeed, the respondent attached some of his payslips, for 2004, which show that monthly deductions in various amounts were made as “rent to buy”.

In addition to that, the respondent has included a memorandum from the applicant, addressed to him, acknowledging receipt of $1,100,000 towards the purchase of house, and indicating that outstanding balance as $60,000 only.

As already stated, the respondent was in occupation of this house (as a sitting tenant) for a period in excess of 60 months (Clause 3 of the lease agreement) before he was dismissed from work and the lease agreement purportedly terminated.

Considering all these the factors placed before the court by the respondent, one cannot say, with certainty, at this stage, that the respondent did not exercise the option to purchase the house in issue.

The applicant has not been able to meaningfully explain why, after a period of 60 months, and in view of the proof of monthly deductions and confirmation by the applicant of such payment as part of the purchase price, in March 2004, the applicant is still of the view that the respondent did not purchase the house.

I am satisfied that the respondent has presented an arguable case.

It cannot be said that the defence raised by the respondent is simply raised for purposes of delaying the inevitable. It would therefore be unfair and improper, and this stage, to close the door to the defendant and deny him the opportunity to defend the claim.

On the facts before me, it cannot be said, that, the applicant's case is unanswerable and unassailable.

The parties should be allowed to have their day in court and present evidence on whether the respondent exercised the right to purchase the house in issue and paid the full purchase price.

The claim for eviction, at this stage, is premature.

The application for summary judgment is therefore without merit. In the result, the summary judgement application is dismissed with costs.

HMT09-20 : BENJAMIN SAMBARE vs SIMBARASHE SINANDAVA
Ruled By: MUZENDA J

The applicant has made an application seeking the following order:“IT IS HEREBY ORDERED THAT:1. The Respondent and all those who claim possession or occupation through him, be and is hereby evicted from Plot No.15B, Bomhani Farm, Cashel as soon as this order has been granted.In the event that the Respondent ...

The applicant has made an application seeking the following order:

“IT IS HEREBY ORDERED THAT:

1. The Respondent and all those who claim possession or occupation through him, be and is hereby evicted from Plot No.15B, Bomhani Farm, Cashel as soon as this order has been granted.

In the event that the Respondent fails or refuses to comply with the above order, the Sheriff of the Court, with the assistance of the ZRP, be and is hereby directed and ordered to procure vacant possession by ejecting the Respondent and all those claiming occupation through him.

2. To pay costs.”

Facts

From the facts extracted from the applicant's founding affidavit filed of record, the applicant was allocated Plot 15B Bomhani, Cashel in terms of the land resettlement programme.

The respondent was also allocated the identical plot and moved in to practice farming activities on the plot.

The applicant filed an application at the Mutare Magistrate Court for an interdict barring the respondent from practising farming on the plot.

The application was granted.

The respondent appealed against the order. The appeal with the High Court was struck off the roll.

The respondent made an application to the Administrative Court, which is still pending, and also made an application for the reinstatement of the appeal with the High Court.

Whilst the applicant acknowledges all the developments, his guarded view is that the offer letter granted to the respondent is fraudulent, the application to the Administrative Court is futile and hopeless, and the application for reinstatement of the appeal has no prospect of success and is only meant to buy time.

He is praying that the application for the respondent's eviction be granted.

The question for decision by this court is whether the application for the respondent's eviction is properly before this court?

The applicant admits, in his answering and founding affidavit, that, the respondent possesses occupation documents relating to the same disputed plot.

There is no document from the issuing authority which disqualifies the offer letter, or showing that it was either withdrawn or cancelled moreso when such document was given to the respondent well after the applicant had allegedly been settled on the plot.

In my view, this conflict can best be answered by the issuing authority, not for the applicant to make conclusions on who the owner is.

Where there are two competent documents originating from the issuing authority, the quintessence issue for determination lies in the Administrative Court which is well qualified to make determination, first, obviously, after having considered all relevant facts and evidence before it, only then, would a court decide on the aspect of eviction.

In any case, since the respondent is pursuing both the appeal and the Administrative Court action, it will be premature for this court to resolve on the aspect of ejectment. The application for ejectment has to wait for due process to be completed, regardless of whether the respondent's prospects of success are high or not but to afford the respondent opposing to be heard.

It is also apparent, that, on 2 August 2019, a Magistrate's Court also granted an order to the following effect:

“The respondents are hereby interdicted from executing order granted under case No.4471/18 pertaining the outcome of the application made to the Administrative Court under case No. ACC86/18.”

Although the applicant, in his answering affidavit, contends that he had applied for the above order to be rescinded, he did not attach any proof to that effect, otherwise this court infers that the above is still extant and must be allowed to remain operational.

The applicant is permitted, at law, to equally expedite the proceedings in the Administrative Court in his pursuance to attain finality in litigation.

As a result, the application is dismissed with costs of suit.

HH196-17 : SHELTER KAMUPARIRO vs FORTUNE MUSENDO and MUNICIPALITY OF CHITUNGWIZA
Ruled By: MATANDA-MOYO J

The plaintiff issued summons against the defendants for the following relief:

“1. That the plaintiff be and is hereby declared the rightful owner of Stand number 454 Unit Seke, Chitungwiza;

2. That the transfer of Stand 454 Unit C Seke, Chitungwiza into Gideon Musendo's name be and is hereby nullified;

3. That the 2nd defendant cede rights, title and interest in the property aforementioned back to the plaintiff within seven (7) days of this order failure of which the Sheriff be and is hereby empowered to sign documents necessary to effect cession to the Plaintiff;

4. That the 1st defendant and all those claiming occupation though her be evicted from House No.454 Unit F Seke Chitungwiza; and

5. That the 1st and 2nd defendants pay costs of suit on an attorney client scale.”

The first respondent filed an appearance to defend and opposed the order sought.

Before trial, the parties agreed that the matter proceed by way of a Stated Case. The facts agreed by the parties are as follows:

House Number 454 Unit F Seke, Chitungwiza (hereinafter referred to as the property) is owned by and belongs to the second defendant as it has no title to date.

The second defendant gave occupation of the property to one Moses Mutandwa, under a lease to buy agreement. Moses Mutandwa died and his heir, Gordon Madzima, assumed occupation of the property under the same terms and conditions the house was held by the late Moses Mutandwa.

In 1992, Gordon Madzima sold the property to the first defendant's deceased husband, Gideon Musendo.

The said late Gideon Musendo, pursuant to the agreement, took occupation of the property.

On 13 March 1993, Gordon Madzima entered into another sale agreement with the plaintiff - for the sale of the same property. Gordon Madzima alleged to have cancelled the earlier agreement of sale with the late Gideon Musendo.

Gordon Madzima failed to give vacant possession of the property to the plaintiff.

The second defendant also refused to enforce the sale agreement between Gordon Madzima and the plaintiff on the basis that it had not consented to the sale of the property; it being the owner of that property.

The plaintiff, under HC case number 9232/93, approached this court seeking the agreement of sale between him and Gordon Madzima to be declared valid and to compel Gordon Madzima to transfer the right, title and interest in the property to herself.

The order was granted in default by the High Court on 27 April 1994.

The second defendant was not cited as a party to the proceedings.

In compliance with the court order, the second defendant, on 7 June 1994, issued the plaintiff with a certificate of occupation and ownership card for the property. Rates and water bills were transferred into the plaintiff's name.

The plaintiff sought to evict the first defendant from the property in the Magistrates Court, under case number 155/94.

The order was granted.

The first defendant appealed to the Supreme Court and the order was set aside and the first defendant's deceased husband was granted leave to defend the eviction proceedings.

The first defendant's deceased's husband was also advised to seek rescission of HC case number HC9232/93.

The matter before the Magistrate Court was later dismissed.

The first defendant's deceased husband remained in occupation of the property.

On 11 December 2002, the first defendant's deceased husband 'applied' to the second defendant for allocation of the property.

In September 2006, a lease to buy was entered into between the second defendant and the first defendant's deceased husband for the property. On 4 September 2006, the second defendant issued the first defendant's deceased husband with a certificate of occupation of the property.

The plaintiff persists in its claim as per summons.

The first defendant opposed the claim on the basis, that, Gordon Madzima could not have legally sold the property to the plaintiff without the second defendant's consent.

Both parties are claiming costs on a higher scale.

The issues referred for determination are;

(1) Whether the matter is res judicata; and

(2) Who between the plaintiff and the first defendant is the rightful owner of Stand 454, Unit F Seke....,.

Who is the rightful owner of the property?

I shall move on to determine who, between the plaintiff and the first defendant, is the true owner of the property.

It is common cause that the first defendant was the first purchaser. The late Gordon Madzima sold the property to the first defendant's husband in 1992. The sale agreement with the plaintiff was only entered into in 1993.

There has been placed before me no proof of the cancellation of the agreement of 1992.

The inescapable conclusion is that there was a double sale.

I agree with the legal position enunciated by the parties in respect of the double sales found in Chimphonda v Rodriques and Ors 1997 (2) ZLR 63 ZLR 63 (H) that:

“In a double sale situation, where the second buyer had knowledge of the first sale of the property, either at the time of the sale or at the time it took transfer of the property, then, unless there are special circumstances affecting the balance of equities, the first buyer can recover the property from the second buyer. In such instance, the second buyer's only remedy is an action for damages against the seller. In deciding whether there are special circumstances affecting the balance of equities, the court must bear in mind, that, the primary right of the wronged buyer is the remedy of specific performance which will be granted unless there is some equitable reason disqualifying him from obtaining such relief.”

See Crundall Brothers (Pvt) Ltd v Lazarus NO & Anor 1991 (2) ZLR (S); Guga v Moyo 2000 (2) 458 (S); that, once the second purchaser has knowledge of the prior sale, then, the first purchaser, in the absence of special circumstances affecting the balance of equities, is entitled to recover the property from the second purchaser.

The second purchaser's rights are limited to claiming damages from the seller.

Applying the above principles to the present case, the first defendant's late husband was the first purchaser. The plaintiff, at the time of the purchase of the property, knew of the existence of the sale agreement between the seller and the first defendant's late husband.

It is clear, that, from 1992 to date, the first defendant and her family have been in occupation of the property. The plaintiff has not been able to get vacant possession of the property.

The plaintiff even attempted to evict the first defendant from the property. The plaintiff failed in that regard as far back as 1994.

The evidence tends to point to the fact, that, the plaintiff has been aware, all along, that the first defendant was also claiming ownership of that property.

The plaintiff did nothing, then, to have the parties rights determined by a competent authority.

It is common cause, that, the plaintiff, in 1994, sued the seller and got judgment to have the property transferred to her. Later on, it is also common cause, that, the first defendant got certificate of occupation to the property.

The doctrine of notice decrees, that, if the latter purchaser, at the time it took transfer, knew that the property had been sold to another, then, the property must be transferred back to the other.

Herein, it is apparent, that, the plaintiff knew, at the time she applied to court for rights in the property, that the property had been sold to the first defendant's late husband.

The plaintiff conceded that point in the Statement of Agreed Facts.

It follows, then, that, when the plaintiff attempted to take transfer, it was a form of fraud.

In the case of Riley v Sliep NO [2008] ZANHC 22, the court quoted with approval an earlier judgment which held that “it is a species of fraud to attempt to secure a res (an item of property) which is known to have been promised to another.”

The same applies with full force in the present matter.

The plaintiff fraudulently obtained an order, under HC9233/93, having known that the property had earlier on been sold to another: see also Grundal Brothers (Pvt) Ltd v Lazarus N.O. and Anor 1991 (3) SA 812.

Having found as above, it is obvious there are no special circumstances affecting the balance of equities.

The first purchaser ought to succeed to be declared the true owner of the property.

The plaintiff bought the property when the first defendant was already in occupation of the property. The balance of equities cannot weigh in her favour.

This court has not been favoured with any evidence showing that the late Gordon Madzima cancelled the agreement of sale between himself and the late Musendo.

Without such evidence, the agreement of sale between the late Madzima and late Musendo is valid.

Consequently, the late Musendo is the first purchaser, and, there being no special circumstances favouring the plaintiff, it is my finding that the first defendant is the true owner of the property.

The plaintiff can always adopt the option of suing for damages.

Consequently, the plaintiff's claim is dismissed with costs.

HMT14-20 : APOSTOLIC EJUWELL JEKENISHENI CHURCH vs THE INTERNATIONAL APOSTOLIC EJUWELL JEKENISHENI CHURCH and OTHERS
Ruled By: MUZENDA J

On 22 May 2019, the plaintiff issued summons against the seven (7) defendants (The International Apostolic Ejuwell Jekenisheni Church, Bishop Shatirwa Mafukidze, Bayiso Chakanyuka, Munetsi Ngwenya, Andrew Mashamaire, Chief Zimunya and Mutare Rural District Council) claiming the following:

“(a) That, the plaintiff be declared the legitimate legal and bona fide holder of a lease of a piece of land measuring seventeen (17) hectares at Garai Village, Mabiya, Chief Zimunya under Mutare Rural District Council;

(b) That, plaintiff and its members regard and hold the said land as its sacred religious shrine;

(c) That 1st defendant and its members have no right or claim to the Mabiya Shrine;

(d) That the 2nd- 5th defendants pay the costs of this action.”

On 4 June 2019, the first to fifth defendants (the International Apostolic Ejuwell Jekenisheni Church, Bishop Shatirwa Mafukidze, Bayiso Chakanyuka, Munetsi Ngwenya and Andrew Mashamaire) filed their appearance to defend the matter.

BACKGROUND

In the plaintiff's declaration, the plaintiff is an Apostolic Ejuwell Jekenisheni Church, a religious and Christian Church. The first defendant is The International Apostolic Ejuwell Jekenisheni Church. The plaintiff describes the first defendant as an off-shoot of the plaintiff.

The second to fifth defendants (Bishop Shatirwa Mafukidze, Bayiso Chakanyuka, Munetsi Ngwenya and Andrew Mashamaire) are the church leaders of the first defendant.

The sixth and seventh defendants (Chief Zimunya and Mutare Rural District Council) were cited in their official capacities.

Sometime in 2013, Bishop Elijah Dzingai Nyikambaranda formed the first defendant constituted by the second to fifth defendants (Bishop Shatirwa Mafukidze, Bayiso Chakanyuka, Munetsi Ngwenya and Andrew Mashamaire) as its co-leaders.

The first to fifth defendants (The International Apostolic Ejuwell Jekenisheni Church, Bishop Shatirwa Mafukidze, Bayiso Chakanyuka, Munetsi Ngwenya and Andrew Mashamaire) registered its own Constitution, and, from the date of the first defendant's formation, in 2013, the plaintiff and the first defendant existed as two distinct entities.

The plaintiff contends, that, it holds a lease with the sixth defendant (Chief Zimunya) for a 17 hectare piece of land situated in the communal area of Chief Zimunya under Village Garai where Mabiya is situated.

The plaintiff regards that place as its shrine and sacred for its religious ceremonies since 1985.

After the formation of first defendant (The International Apostolic Ejuwell Jekenisheni Church), the second to fifth defendants (Bishop Shatirwa Mafukidze, Bayiso Chakanyuka, Munetsi Ngwenya and Andrew Mashamaire) and the first defendant (The International Apostolic Ejuwell Jekenisheni Church) congregation incidentally also regards the same 17 hectare shrine as sacred and clash with the congregants of the plaintiff during festivities.

The parties ended up in court; involved the police; and had had clashes pertaining to the use of the shrine.

The first to fifth defendants (The International Apostolic Ejuwell Jekenisheni Church, Bishop Shatirwa Mafukidze, Bayiso Chakanyuka, Munetsi Ngwenya and Andrew Mashamaire) filed their plea, and, in addition, filed a counter claim.

In their plea, the first to fifth defendants deny that the first defendant is an off-shoot of the plaintiff to the first to fifth defendants. It is the plaintiff who is a renegade and the first defendant is the mother church.

To the first defendant, it's the plaintiff who broke away from the first defendant in 2018.

The first to fifth defendants deny that Bishop Elijah D. Nyikambaranda did not form the first defendant as a breakaway church but that the original church only changed its name and Constitution to add the word “International.”

Otherwise, the first defendant retained the same membership of the original church; as such, the first defendant is the appropriate lessee of the 17 hectares piece of land at Garai Village which is its shrine.

The plaintiff should be the organisational church body which must be barred from interfering of the shrine, not the first defendant.

The first defendant adds, in its pleadings, that, it is the one which had been paying lease rentals to the sixth defendant (Chief Zimunya).

The first defendant admits that the parties have been both to this court as well as to the Magistrate's Court relating to the dispute over the use of the shrine during the church's festivities.

The first defendant also concedes that there have been wrangles and hostility amongst members of the plaintiff and the first defendant.

It prays for a declaratory order identical to the relief being sought by the plaintiff, and that the defendant be declared the appropriate user of the sacred place at Garai Village.

On 7 November 2019, the minutes of the joint pre-trial conference identified two issues for trial:

(i) Between the plaintiff and the first defendant, which one is the main church or the splinter group?

(ii) Between the plaintiff and the first defendant, which one is the holder of rights of Mabiya Shrine?

These two issues constitute issues for trial and for this court to decide.

PLAINTIFF'S CASE

The plaintiff opened its case by calling Mr Gwinyai Gabriel Banganwa of House No.983 Chikanganwa, Mutare.

He was born in the plaintiff church.

The plaintiff and the first defendant's congregants used to belong to one religious organisation called Jekenisheni Church stretching from 1932 until 2013 when High Priest, Zabron Chitakatira, had died. According to the church's norm, after the death of a leader, they have to have time to search for a new leader of the church.

The witness used to be a Secretary for Mutare Centre.

After the death of a leader, members have to have a mourning period of a year before they choose a new leader.

According to Mr Banganwa's evidence, in 2013, one Dzingai Elijah Tom Nyikambaranda returned from Botswana where he had been staying since 1957, and, upon his return, he went to the church and announced his intention to transform the plaintiff church. His return and ordination as an Archbishop resulted in a dispute, dividing the congregants into two warring factions.

In 2015, in July, during a passover, Dzingai Elijah Tom Nyikambaranda was ordained by ACCZ from Harare, and, in terms of the first defendant's constitutional provisions, he was ordained as the leader of the first defendant with a position of an Arch-bishop.

After the ordination of Archbishop Nyikambaranda, part of the congregants refused to recognise him as a leader; allegedly because of the Arch-bishop's autocratic leadership.

The group approached Chief Zimunya, the sixth defendant, and lodged a complaint.

The faction had previously consulted the local traditional leadership but could not get assistance.

The witness stated, that, contrary to the plaintiff's Constitution, the post of Arch-bishop was new to them; the regalia had been altered; the insignia/badge given to Archbishop was alien to the plaintiff; and the very process of having ACCZ coming to ordain a church leader was foreign to the plaintiff.

The plaintiff's name came into being in 2009 when a new Constitution was introduced and the church abandoned the Jekenisheni Church name.

He disagreed that the plaintiff church consented to the new name by the first defendant's title.

As a result of the formation of the first defendant, some of the leadership crossed the bridge and joined the first defendant where they were given leadership posts.

The plaintiff, according to the witness, is the legitimate beneficiary of Mabiya Shrine.

According to legend, High Priest Luke Mutendamambo, the founder, was led by the Holy Spirit to this hill in Garai Village, under Chief Zimunya, and was shown, in a vision, that the place was holy; even members of the other church denominations acknowledge the sanctity of the place.

This is the place which had triggered the dispute as to who should use it during Passover annually held in July.

They have to go and worship until Jesus comes, as the witness said in court.

The shrine is compared to Jerusalem in Israel and the members of the church believe that they get their salvation and healing at Mabiya Shrine. Without Mabiya Shrine, one cannot state that he is a member of Jekenisheni Church.

The witness appeared in court to be well indoctrinated and added, that, even the teachings of the church centralises Mabiya Shrine.

Mabiya Centre was previously leased to Jekenisheni Church measuring 4,000 square metres.

The place was identified after the church leaders had visited the village head, headman, and chief.

Later, the church was given a lease agreement by the local authority, now called Mutare Rural District Council.

Given the growth of the church, the area was extended to cover an expanse of 17 hectares.

The witness produced receipts in court which are marked exhibit 3. The lease agreement, as well as the plaintiff's Constitution, were produced as exhibits 2 and 1 respectively.

The witness denied the contention by the first defendant, that, the plaintiff is the one which broke away from the first defendant.

During cross examination by counsel for the first defendant, Mr Banganwa admitted, that, in 2015, members belonging to the plaintiff and the first defendant were present when Archbishop Nyikambaranda was ordained; however, the factional group did not recognise him as a leader to them, he was an ordinary person. To them, their leader was Phillip Changonona.

He was also asked as to how leaders were chosen, and he indicated, that, upon the death of a leader, his deputy succeeds.

He repeated, that, when Dzingai Elijah Tom Nyikambaranda was ordained, he was the leader of the first defendant, and, as far as the witness is concerned, the plaintiff and the first defendant are two distinct church entities.

He also added, that, that was the reason the first defendant was holding service at a different centre when Arch-bishop Nyikambaranda summoned the leadership of the plaintiff, who were assembled at Mabiya Shrine, to go and explain to the Archbishop the meaning of the two gatherings.

The second witness called by the plaintiff was Chief Zimunya (Kibben Bvirindi).

He is a member of the Seventh Day Adventist Church. He knows both the plaintiff and the first defendant. He also knows the sacrilege of Mabiya Shrine and that the plaintiff worships there.

The chief allocated Mabiya place to Jekenisheni as a worship centre.

When the dispute between the plaintiff and the first defendant erupted, he was accompanied by police and local legislator to go there and ordered that none of the two should use the shrine until the dispute between them had been resolved.

He later on summoned Archbishop Nyikambaranda to his court and instructed the church leader to resolve the impasse.

Arch-bishop Nyikambaranda later on reported back to the Chief his unwillingness to change his council; he bade farewell to the Chief and indicated to the witness that he was going to establish his own centres at Chaseyama in Chakohwa in Chipinge District, one in Mutasa, and the other one in Masvingo.

When the Archbishop died, he opted to be interred at Mutasa Centre.

He also told the court, that, when the founder of Jekenisheni Church died, his sons formed their own churches whilst originating from Mabiya Shrine. They left the shrine and established themselves in Chipinge; the other son went as far as Mozambique and established his centre in Manica Province.

The Chief added, that, the plaintiff and the first defendant operate in his jurisdiction and his desire is to see peace between them - if the first defendant wishes. Its leaders are free to approach the Chief and be allocated a place for worship.

According to him, the plaintiff is the legitimate user of the shrine. To him, the first defendant must relinquish Mabiya and find a different centre as in 2019 they held their Passover at Chaseyama.

Under cross-examination by the defendant's counsel, the Chief told the court, that, the reason he summoned Archbishop Nyikambaranda to his court was that the Arch-bishop was the one who had caused the violence at Mabiya Centre.

Archbishop Nyikambaranda, to the witness, was the leader of the first defendant and not leader of the plaintiff.

The plaintiff then called Peter Sigauke as its witness.

He resides at 3318 Domboramwari Epworth, Harare. He is now on pension. He is aged 66 years and was born in Jekenisheni Church.

He was present when the plaintiff and the first defendant separated.

He was the one who spearheaded the separation and was the chairman of the splinter group. He participated in the organisation and registration of the first defendant with the ACCZ and arranged for the drafting of the first defendant's Constitution in consultation with the ACCZ.

After registration of the first defendant, Archbishop Nyikambaranda was ordained, in 2015, as the leader of the first defendant.

He later on decided to leave the first defendant because the first defendant's principles had drastically deviated from those of the founding father and he went back to his roots at the plaintiff.

All the three witnesses for the plaintiff impressed the court as credible witnesses who gave their evidence very well, more particularly the Chief.

Before he gave evidence, the court was advised by both counsel to take note that the Chief had been seen talking to some people belonging to the plaintiff church but no details of the discussion was revealed.

The court noted the observation, but, looking at the nature of his evidence, the court detects no bias or otherwise on the part of the Chief.

I will treat his evidence as untainted and basically administrative in a way.

He knows the original church and the leaders who approached him for a place to worship (by this the court infers to his predecessors) and when he became Chief it was the plaintiff who was worshipping at the Mabiya Shrine.

DEFENDANTS CASE

The defence opened its case by calling Bishop Shatirwa Mafukidze, aged 82 years. He succeeded Archbishop Nyikambaranda after the latter's death.

According to him, the plaintiff and the first defendant parted when Arch-bishop Nyikambaranda called for a meeting and the plaintiff's group did not attend.

The first defendant also worships at Mabiya Shrine on 17 July of each year. He told the court that there are, however, other centres belonging to the first defendant.

The witness alluded to the lease agreement produced by the plaintiff as the first defendant's as well.

Although Archbishop Nyikambaranda was ordained, the church remained united.

During cross-examination by counsel for the plaintiff, the witness clarified, that, these people who did not heed the call by Arch-bishop Nyikambaranda did not congregate with him.

He admitted, that, the first defendant has its own Constitution, an Arch-bishop, a badge, and could have its leader ordained by people outside the church.

He refused to leave Mabiya Shrine.

The defendants then called Munetsi Ngwenya as its witness. In 1932, the Holy Spirit visited both Luke Mutendamambo and John Marange instructing them to form an apostolic church.

According to the witness, the dispute between the plaintiff and the first defendant commenced in 2018, on 2 March. Archbishop Nyikambaranda called for a convention at Chinenga but members of the plaintiff rebuffed the meeting. The leader of the church sent four people to go and find out why the members had absconded. The four emissaries found the plaintiff's members assembled at Mabiya holding their own convention.

The witness told the court, that, Nyikambaranda was nominated leader among the four apostles chosen by the Holy Spirit long back in 1951 and was destined to succeed Zabron Chitakatira; also blessed Nyikambaranda when the former was ill, so, after the death of Zabron, it was logical that Nyikambaranda had to take over.

The witness stated further, that, the first defendant's shrine is Mabiya.

From 1970, the original church was Jekenisheni up to 2006. Mr Mutanga was the leader; he also reiterated that the lease agreement produced by the plaintiff is the lease given to the church by Mutare Rural District Council.

To the witness, there is no distinction between the plaintiff and the first defendant.

The reason the name of the church was changed was to protect it from being claimed by the sons of the founding father. All the people agreed to the choice of Nyikambaranda as the new leader and all agreed to change the Constitution and adopt the word “International” to be suffixed to the existing name of the church.

He pointed out that the people who broke away belong to the plaintiff.

During cross-examination, he denied participating in the registration and formation of the first defendant - contrary to what is indicated in the first defendant's summary of evidence.

To him, the plaintiff is still the same as in the first defendant formation but had gone through transformation.

He also blamed the Chief as causing problems between the plaintiff and the first defendant.

The first defendant then called Andrew Mashamaire. He resides at 2020, Phase 12 Eastview, Harare.

According to him, the dispute between the plaintiff and the first defendant started when the Archbishop and his council was summoned by the Chief. To the witness, there is no distinction between the plaintiff and the first defendant to talk about, they are one no matter what names are being used.

Arch-bishop Nyikambaranda succeeded Zabron Chitakatira according to the church's succession policy.

The suffix “International” or prefix to the first defendant was proposed by ACCZ to distinguish the first defendant from previously registered churches with the name “Jekenisheni” he added. However, besides the addition of 'International' nothing changed; the first defendant is the same as the plaintiff.

According to this witness, the plaintiff is the breakaway church. The first defendant is still paying rentals to the local authority and uses Mabiya Shrine as its centre, he concluded.

The defence witnesses relied much on the history of the church and deliberately avoided the issues in dispute as spelt out in the joint pre-trial conference minute.

Maybe that was due to the questions led by their legal practitioners when they were leading their evidence.

However, the witnesses were evasive and argumentative when they were giving evidence; they avoided critical evidence, more particularly the effect of registration of the first defendant relating to its identity vis-a-vis the plaintiff.

Whether, by registering a new name and creating a new Constitution, they were still within the old traditional norm maintained previously by the leadership of the plaintiff and its predecessors?

The witnesses for the first defendant chose to underscore those nagging questions and pretended as if the introduction of the first defendant was a non-event.

APOSTOLIC EJUWELL JEKENISHENI CHURCH'S CONSTITUTION

The plaintiff's Constitution provides that the church's headquarters shall be at Mabiya in Zimunya Communal Lands in Mutare District and the headquarters is called “The Regiment.”

Clause 6 of the Constitution spells out the five (5) major gatherings per year and prominent among those days is 17 July, the Anniversary and Holy Communion Celebration day; after that day, the Passover is then spread to different centres and to those centres outside Zimbabwe.

Clause 7 of the Constitution is also important to mention, dealing with the holding of an Annual Conference; this is where an Annual General Meeting for all members of the church shall be held to review the operations and laws of the church, amend and recommend any changes to the Constitution.

The leader of the church is called Church Leader, below him is his deputy followed by the Twelve Disciples, below them are Priests and Levities, the least on the hierarchy is the General Membership.

Clause 12(b) of the Constitution provides, that, the church leadership goes by order of hierarchy and seniority as approved by the Holy Spirit.

INTERNATIONAL APOSTOLIC EJUWELL JEKENISHENI CHURCH'S CONSTITUTION

Clause 1 of the first defendant's Constitution defines the name of the church, it has its Headquarters at Mabiya as well. The aims and objectives, provisions relating to Membership, Creed, Funds and Succession are similar, word by word, to the plaintiff's clauses.

However, the first defendant's Constitution introduces new clauses:

In clause 13 'Roles of Women' clause 14 'Roles of the Youth' clause 15 'Marriage' clauses 16 and 17 on 'Expansion and Growth' and on 'Amendments' briefly spell out the factors for growth and that the Constitution is open to amendments.

It is important to note, that, the first defendant's Constitution, in clauses 13-15, creates totally new provisions as compared to the plaintiff's Constitution.

The clause dealing with church leadership hierarchy is not included at all.

The following issues are common cause to this matter:

1. The plaintiff and the first defendant have different constitutions and the earlier formed church is the plaintiff, formed in 1932, and the first defendant, whose Constitution was introduced in 2013.

2. Currently, the two, the plaintiff and the first defendant have distinct leadership; the plaintiff is led by Bishop Changonona and the first defendant is led by Bishop Mafukidze.

3. The dispute started in 2013 when Tom Dzingai Elijah Nyikambaranda returned from Botswana after the death of Bishop Zabron Chitakatira.

4. Both church entities regard Mabiya as their shrine and refer to it in their constitutions as the headquarters of the church.

5. Both parties have irreconcilable differences relating to the way the church must be managed.

6. The lease agreement, relating to Mabiya Shrine, registered with the Mutare Rural District Council, was initially applied for and registered in the predecessor of the plaintiff, Jekenisheni Church - up to now, the registered name had not yet changed.

7. The receipts produced by the first defendant, for payment of lease rentals to the local authority, relates to the year 2018 only.

There are two issues outlined by the parties for this court to decide:

(a) Between the plaintiff and the first defendant, which is the splinter group from the main church?

(b) Who, between the plaintiff and the first defendant, is the legitimate holder of rights and custodian of Mabiya Shrine?

BETWEEN PLAINTIFF AND FIRST DEFENDANT WHICH IS THE SPLINTER GROUP FROM THE MAIN CHURCH?

Jekenisheni Church was formed long back in 1932, by Luke Pferedzai Mutendamambo; and, using that name, the leadership approached traditional leaders as well as the local authority to secure a lease for Mabiya Shrine.

The lease, exhibit 1, is still in the name of Jekenisheni Church; that aspect is uncontroverted.

In 2009, the name of Jekenisheni was introduced is not disputed by the first defendant. In 2013, the first defendant was introduced, born out of the Constitution whose provisions have already been alluded to hereinabove.

However, of great importance to this matter, the first defendant brought in a new design to the uniform as compared to the one worn by congregants of the plaintiff church.

There was now a new title to the leader of the church, by the name of Archbishop; he now wore an emblem or badge; and, as already highlighted in the Constitution of the first defendant, there were clauses addressing women, youth, and marriages - these aspects were totally alien to the plaintiff.

To quote the evidence of the defendant's witnesses, Archbishop Nyikambaranda had come to transform the original church, so he was a transformational leader.

Unfortunately, there is no evidence led by the first defendant to the effect of the plaintiff's Constitution was repealed and replaced by the first defendant.

The plaintiff still uses that Constitution as its supreme law.

There is no evidence led by the first defendant, in the form of recorded minutes, recorded during an Annual Meeting, where the plaintiff's Constitution was amended or repealed.

There is virtually no connection between the plaintiff's Constitution vis-a-vis the first defendant's.

In the matter of Province of Central Africa v The Diocesan Trustees of the Diocese of Harare SC48-12, His Lordship MALABA DCJ…, defined the word “CHURCH”:

“By a definition, a church is a voluntary and unincorporated association of individuals united on the basis of an agreement to be bound in their relationship to each other by certain religious tenets and principles of worship government and discipline. The existence of a Constitution is a testimony to the fact that those who are members of the church agree to be bound and guided in their behaviour, as individuals or office bearers, on ecclesiastical matters by the provisions of the Constitution made under its authority. It is the words and actions of the individual, as members and office bearers, that indicate whether there is conformity with the articles of faith.”…,.

Earlier on, on p17 of the cyclostyled judgment, the then Learned Deputy Chief Justice stated that:

“The belief of a Christian Church must be founded, in general, upon Holy Scriptures. What differentiates one church from another is the accepted and crystallised definition of what they hold those scriptures to contain; in other words, their creed. If an association of Christians adopt one creed as the basis of their association, no one can cut and carve it without altering the foundation upon which that body has been associated: see Free Church of England v Lord Overtoun [1904] AC 515 at 577.”

On the same page of the same judgment, His Lordship added:

“Great light is in fact thrown on what are the essential doctrines of a church by reference to the declarations made by those who founded it as to what their view was fundamental.”

The plaintiff took over from Jekenisheni Church, founded by Luke Mutendamambo, and virtually maintained the founded values through and through up to this date. Nothing materially changed except leadership of the church, when such a leader dies.

The introductions of the Constitution, in 2009, was done by consent; that is why there was never a dispute in the plaintiff church.

Indeed, in 2013, ArchBishop Nyikambaranda introduced a new Constitution which clearly defined the realm and spectrum of its congregants.

As already mentioned above, the first defendant's Constitution borrowed some clauses from the plaintiff's; and the first defendant went on to add some new clauses relating to youth, women, and marriages.

It is not in dispute that the first defendant has its own Constitution distinct from the plaintiff.

In Province of Central Africa v The Diocesan Trustees of the Diocese of Harare SC48-12…, it was held that:

“A person who is responsible for the creation of a schism cannot be heard to say he or she has not withdrawn membership from the former church.”

I am convinced, on a balance of probabilities, that, the conduct of the first defendant; the badge; the Constitution it introduced; as well as the new title for its leader pointed to one conclusion - Archbishop Nyikambaranda formed a breakaway church which he named International Apostolic Ejuwel Jekenisheni Church, distinct from the mother church, which is the plaintiff.

The new Constitution constitutes an agreement between its members, that, the faith by which all those people who choose to take up membership of the church and the standards in accordance with which they undertake to act as revealed to them by the church leaders.

The plaintiff is the root, the first defendant is an off-shoot - albeit with the church doctrine well founded upon that of the plaintiff.

The first defendant's Arch-bishop, Nyikambaranda, seceded from the plaintiff; consecrated and enthroned by ACCZ as Archbishop of the first defendant.

I cannot accept the first defendant's argument, that, the plaintiff and the first defendant are one; nor can it be said that there are factions in the church.

The truth proved before me is that the first defendant was formed as a new church by Archbishop Nyikambaranda and enjoys total autonomy from the plaintiff.

WHO BETWEEN PLAINTIFF AND FIRST DEFENDANT IS THE LEGITIMATE HOLDER OF RIGHTS AND CUSTODIAN OF MABIYA SHRINE

Having ruled that the first defendant seceded from the plaintiff, this second issue smoothly flows from the above.

The plaintiff contended, in its summons, that, when its congregants meet annually, at Mabiya Shrine, the first defendant's congregants also converge at the shrine and conduct their church business simultaneously with the functions of the plaintiff church.

Obviously, the use of the shrine by the parties, at the same time, had created friction and turmoil which ended in legal battles in the courts.

It is true that the doctrine of the two churches is identical, but, the leadership is totally polarised.

What is clear, on paper, and from evidence adduced in court by both parties, is that both claim a right to be at the shrine and the first defendant demands that the plaintiff should come on its knees to beg to rejoin the first defendant.

On the other hand, the plaintiff submitted, that, since the first defendant broke away from the plaintiff, the first defendant has no right to continue using Mabiya Shrine.

Both parties produced receipts which were proof of payments for the lease.

One of the first defendant's receipts shows that the receipt was paid and receipted in a third party's name. The first defendant stated, that, the one who paid that receipt was the payer using ecocash.

However, the first defendant did not produce receipts for 2019 and it explained, that, this was due to the wrangles which were going on between the plaintiff and the first defendant.

The plaintiff produced 2019 receipts.

The receipts produced by the parties do not help either side; in 2018, the first defendant could have paid the rentals, for its leader claimed autonomy over the church.

What is not clear from the evidence is, whether the plaintiff also paid rentals during the same period of 2018.

However, even if the first defendant paid the rentals, they did not change the name of the lessee on the Rural District Council's papers - the name Jekenisheni still remains on the lease document.

I have since ruled, that, it is the first defendant and its leadership which broke away from the mother church - the plaintiff.

In the matter of Province of Central Africa v The Diocesan Trustees of the Diocese of Harare SC48-12…, the Supreme Court concluded that:

“Those, however, who, as members of the congregation of the former Hervomde Church of Rustenburg, however small their number might be, have not joined the union, still remain the Hervomde congregation of Rustenburg and are, as such, entitled to all the property and things belonging to or standing registered in the name of Hervomde Church of the Congregation of Rustenburg.”

In Zambezi Conference of Seventh Day Adventists v General Conference of Seventh Day Adventists and Another 2001 (1) ZLR 160 McNALLY JA held…,.:

“These individual members who seceded from the church, even if they be a majority of the member of a particular congregation, have seceded as individuals. They cannot have a claim to property of the Seventh Day Adventist. They have formed a universitas, a new association of individuals. They cannot have a claim to property of the Seventh Day Adventist. It may be that, as individuals, they subscribed towards the funds of the church, but, they did so as members. Having now founded a new universitas, they cannot, in law, claim ownership of church property.”

Chief Zimunya unconditionally stated, in his testimony, that, the plaintiff is the rightful church to use the Mabiya Shrine; the first defendant is at liberty to approach the traditional leadership and be allocated a place for its prayers and annual functions.

The first defendant is a new universitas and it is independent from the plaintiff.

It follows, that, there is no legal basis why the first defendant should go and interfere with the plaintiff at Mabiya Shrine.

Sons of the founder of Jekenisheni, fully conscious of the sanctity of Mabiya Shrine, broke away from Jekenisheni Church and formed their own universitas and established at other centres.

The first defendant ought to follow suit of such a noble move and leave the mother church with its own centre.

The plaintiff has managed to prove its case on a balance of probabilities and it ought to succeed....,.

Accordingly, the following order is granted:

1. The plaintiff is the legitimate, legal and bona fide holder of a lease of a piece of land measuring seventeen (17) hectares at Garai Village, Mabiya, Chief Zimunya under Mutare Rural District Council.

2. That, the first defendant and its members have no right or claim to the Mabiya Shrine.

3. That, the defendants, jointly and severally, pay the costs of this action.

SC39-22 : MASIMBA CHARITY HUNI FUELS (PVT) LTD vs NATHAN KADURIRA and MAKONI RURAL DISTRICT COUNCIL
Ruled By: GUVAVA JA, BHUNU JA and MUSAKWA JA

This is an appeal against the whole judgment of the High Court wherein the court a quo dismissed the appellant's appeal with costs.BACKGROUND FACTSThe background to this matter is that sometime in 2006, the first respondent purchased five commercial stands in Nyazura from the second respondent and paid for them ...

This is an appeal against the whole judgment of the High Court wherein the court a quo dismissed the appellant's appeal with costs.

BACKGROUND FACTS

The background to this matter is that sometime in 2006, the first respondent purchased five commercial stands in Nyazura from the second respondent and paid for them in full.

Upon commencement of development on the allocated Stands, one Mr Mukada indicated to the first respondent that he had been allocated a portion of the same Stands, thereby essentially constituting a double sale.

Upon enquiry, the second respondent admitted that it had erroneously made a double sale.

In a bid to cure the error, the second respondent allocated new Stands to the first respondent in 2014.

Just as the first respondent was about to commence development, the second respondent persuaded him to allow Total Zimbabwe to take over the Stands with the promise that he would be allocated replacement Stands next to Total Zimbabwe.

As a result, the first respondent averred that he was allocated five commercial Stands (numbers 1497, 1498, 1499, 1500 and 1501 of Nyazura Township) (hereinafter called “the Stands”) by the second respondent sometime in 2014 which are the subject matter of this appeal.

The allocation was done through a letter written to him by the second respondent advising him that he had been allocated the five Stands as replacement for the 2006 allocation.

Once the first respondent made plans to develop the Stands, he contacted the employees of the second respondent who assured him that he was the sole owner of the Stands.

However, on 9 January 2020, the second respondent's legal practitioners wrote to the first respondent demanding proof of confirmation of ownership.

Having been instructed about the letter, the first respondent's legal practitioners contacted the second respondent's legal practitioners for a round table conference. At the round table conference, it was highlighted to the first respondent that the second respondent had done a double allocation of the Stands.

On 21 January 2020, the first respondent became aware of a third party (the appellant) who had already initiated developments on the Stands.

Upon enquiry at the second respondent's offices, it was indicated that the second respondent had leased the Stands to the appellant for a truck hire business until 2024.

PROCEEDINGS BEFORE THE MAGISTRATES COURT

It is against this background that the first respondent filed an application for an interdict in the Magistrates Court.

The first respondent first filed an ex parte application in which the appellant was interdicted from occupying or effecting any development or construction on the Stands. The application was made on the grounds that the appellant was infringing on the first respondent's right to occupation of the Stands. He also sought that the appellant, and all those claiming occupation through it, be ordered to vacate the aforementioned Stands.

In seeking confirmation of the provisional order, the first respondent contended that there were no material disputes. He submitted that the real dispute of fact was whether a holder of rights to unsurveyed land cannot protect such rights through an interdict. He also contended, that, since he was allocated the Stands ahead of the appellant, he was entitled to an interdict.

In opposing the confirmation of the provisional order, the appellant averred that it had a valid lease agreement with the second respondent. The appellant further contended, that, it had already commenced developing the Stands and that the developments could not be interfered with since they were bona fide in terms of the lease.

The appellant also argued, that, the first respondent was not entitled to an interdict since he had not tendered adequate proof of ownership.

It further stated, that, the first respondent, by not approaching the second respondent for redress, had not exhausted all domestic remedies available to him.

The Magistrates Court held, that, the second respondent received the purchase price from the first respondent. It further held that after receiving the purchase price, the second respondent proceeded to allocate the Stands in question to the appellant on a lease basis. It found that notwithstanding the absence of title deeds there was proof that the first respondent paid the purchase price thus establishing a clear right over the land. It further found that the first respondent could not have sought redress from the second respondent as the second respondent had interfered with the first respondent's right over the land in favour of the appellant.

In the result, the Magistrates Court was of the view that the requirements for an interdict had been satisfied and thus the application was granted.

The effect of the order was to prohibit the appellant, its agents, employees, contractors, and all those claiming through it from occupying or making any developments on the Stands. It also ordered the appellant to remove its equipment and materials and to restore vacant possession to the first respondent.

PROCEEDINGS BEFORE THE HIGH COURT

Dissatisfied by the decision of the Magistrates Court, the appellant noted an appeal with the court a quo. The grounds of appeal were as follows:

1. The Magistrates Court erred in holding that there were no material disputes of fact.

2. The Magistrates Court erred in holding that the requirements for an interdict had been met despite the evidence.

3. The Magistrates Court erred in holding that the first respondent had proved his rights to the property despite evidence to the contrary.

4. The Magistrates Court erred in holding that there was a double sale despite the fact that the Stands constituted State land.

Before the court a quo, the appellant contended that there was a material dispute of fact regarding which Stands were in contention. Hence, there was need to lead viva voce evidence. Thus, the first respondent could not claim to have a clear right in respect of land he did not own.

The first respondent contended, that, there were no material disputes of fact warranting the leading of viva voce evidence. Thus, the first respondent argued that he had produced evidence proving that he had been allocated the Stands. He further argued that the second respondent had not produced any evidence pointing to the existence of different Stands from those it had allocated to the first respondent. Thus, he argued that the requirements for the granting of an interdict had been met.

The court a quo found no basis for interfering with the findings of the Magistrates Court.

It noted that what is required when a final interdict is sought is that the right must be established clearly on a balance of probabilities. The court a quo held, that, the first respondent had established the requirements for an interdict as he had a clear right.

In the result, the appeal was dismissed with costs.

PROCEEDINGS BEFORE THIS COURT

Aggrieved by the decision of the court a quo, the appellant noted the present appeal on the following grounds:

1. The court a quo erred in law and misdirected itself in finding that the appellant's first ground of appeal, on material disputes of fact, was meaningless and invalid.

2. The court a quo erred in law and misdirected itself in finding, that, there was no misdirection in the magistrates court's ruling that the first respondent was the owner of the land in question and had thus established a clear right entitling him to the final interdict granted in his favour.

3. The court a quo erred in law and misdirected itself in finding that there was no misdirection in the magistrates court's ruling that the first respondent had established the second requirement for a final interdict, namely 'the absence of an alternative remedy'.

4. The court a quo erred in law and misdirected itself in not finding that the magistrates court had wrongly granted a final interdict in favour of the first respondent without an analysis of, an application of its mind to, the third requirement for a final interdict, namely 'irreparable harm actually committed or reasonably apprehended'.

5. The court a quo erred in law and misdirected itself in not finding that the final interdict granted by the magistrates court in favour of the first respondent was an eviction order against the appellant in circumstances where no eviction proceedings had been properly instituted in that court.

SUBMISSIONS BY COUNSEL

In oral submissions, counsel for the appellant focused on the second ground of appeal.

In urging the Court to find for the appellant, counsel argued that the court a quo erred in upholding the Magistrates Court's ruling when the first respondent had not established a clear right to the land.

He submitted, that, with regards to land rights, only a party with a real right is entitled to an interdict against a third party.

Counsel further argued, that, the court a quo had misdirected itself in holding that the respondent had established the requirements for an interdict, particularly a clear right, and that being the case such a finding could not stand.

Per contra, counsel for the first respondent argued that the first respondent had established a clear right, on a balance of probabilities, which entitled him to an interdict.

The fact that the appellant had paid the purchase price and was allocated the Stands was not disputed before the court a quo.

In addition to that, the second respondent did not deny that the Stands had been sold to the first respondent.

The acceptance of the purchase price by the second respondent meant that its rights to the land were now limited. Thus, the second respondent could not lease the Stands to the appellant.

The issue arising for determination in this appeal, in the Court's view, is the following:

Whether or not the court a quo erred in finding that the first respondent had a clear right entitling him to a final interdict

THE LAW

The purpose of an interdict is to prohibit unlawful conduct, to compel the doing of a particular act or to remedy the effects of unlawful conduct: in this respect, see HERBSTEIN and Van WINSEN in The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa 5th Ed…,.

The requirements for a final interdict are settled in this jurisdiction. These are:

(a) A clear right;

(b) Irreparable harm actually committed or reasonably apprehended; and

(c) The absence of an alternative remedy.

See Econet Wireless Holdings and Others v Minister of Finance and Others 2001 (1) ZLR 373 (S); Setlogelo v Setlogelo 1914 AD 221…,.

As regards a clear right, again, the authors HERBSTEIN and Van WINSEN in The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa 5th Ed…, define the meaning of clear right as it relates to interdicts as:

“…, the word 'clear' relates to the degree of proof required to establish the right and should strictly not be used to qualify 'right' at all…,. A clear right must be established on a balance of probabilities.”

From the authorities, it is clear that where a final interdict is sought, a clear right as opposed to a prima facie right must be established. Thus, the word “clear” in the context of right in an interdict does not qualify such right but rather expresses the extent to which the right must be established by evidence on a balance of probabilities.

HERBSTEIN and Van WINSEN in The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa 5th Ed also state, that, a right that is sought to be protected by an interdict arises from substantive law. The right can derive from any branch of substantive law to which one must have recourse in order to resolve the dispute involved.

ANALYSIS

It was the appellant's case, that, for the first respondent to be entitled to a final interdict, he ought to have proved ownership of the Stands in question, failure of which the application for the interdict ought to have been dismissed.

I was not persuaded by counsel for the appellant's argument, that the first respondent was required, in terms of the law, to have real rights to the Stands in order to establish a clear right for purposes of an interdict.

This is because the real dispute between the parties is not related to ownership rights.

In this respect, account must be taken of the purpose of an interdict; which, among other things, is to prohibit unlawful conduct.

It is noted, that, the first respondent sought to prohibit the appellant from occupying and developing the Stands because he had purchased them. The first respondent produced proof of the purchase and allocation of the Stands to him - and neither the appellant nor the second respondent were able to rebut that assertion.

For purposes of protecting his interest in the Stands, the first respondent did not need to prove ownership of real rights as argued by counsel for the appellant.

I am inclined to agree with the first respondent's counsel.

From the evidence placed before the Magistrates Court, and the court a quo, it is evident that the right of the first respondent is clear.

The second respondent issued a letter to the first respondent allocating to him the Stands in question. In addition, the first respondent offered the second respondent a purchase price which it accepted as was proven by the receipt produced before the Magistrates Court.

Therefore, on these facts, the first respondent managed to establish the existence of a clear right in respect of the Stands.

On this basis, I find no reason to attack the findings of the court a quo.

The second hurdle a party has to overcome in order to prove that their particular case favours the granting of an interdict is that they stand to suffer irreparable harm actually committed or reasonably apprehended.

In this case, the appellant had occupied the Stands and had commenced to develop them. This means that the displacement of the first respondent was complete. The harm complained of was to endure until 2024, which was the duration of the lease agreement between the appellant and the second respondent.

Finally, the party seeking an interdict has to prove the absence of an alternative remedy.

The assertion that the first respondent stood to suffer irreparable harm and that there was no other remedy available to him was not challenged before this Court, the court a quo, and the Magistrates Court.

Thus, an inference is drawn to the effect that the first respondent managed to prove that he stood to suffer irreparable harm had the interdict not been granted and that he had no other remedy available to pursue.

DISPOSITION

In the circumstances, the court a quo cannot be faulted for finding against the appellant as it did.

The appeal has no merit. There is no reason to depart from the general principle that costs follow the cause.

It is accordingly ordered as follows:

The appeal is dismissed with costs.

SC110-22 : CONSTRUCTION RESOURCES AFRICA (PVT) LTD vs CENTRAL AFRICAN BUILDING AND CONSTRUCTION COMPANY (PVT) LTD t/a CENTRAL AFRICAN BUILDING
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

CONSTRUCTIONThe appellant appeals against the whole judgment of the High Court dated 14 March 2012, wherein the court a quo granted an order for the eviction of the appellant.The appellant was evicted from the respondent's three immovable properties situated in Harare.The eviction awarded punitive costs as against the appellant and ...

CONSTRUCTION

The appellant appeals against the whole judgment of the High Court dated 14 March 2012, wherein the court a quo granted an order for the eviction of the appellant.

The appellant was evicted from the respondent's three immovable properties situated in Harare.

The eviction awarded punitive costs as against the appellant and its legal practitioner, Mr D. Chinawa.

THE FACTS

The appellant and the respondent are both companies that are duly incorporated in Zimbabwe. The two companies signed two separate and distinct but inter-related agreements of sale on 29 November 2004, wherein the respondent was the seller while the appellant was the purchaser.

The respondent was represented by Jose Eduardo Vieira, who, together with his father (Luis Vieira), were its sole shareholders and directors.

The appellant was represented by Danny Musukuma, who, together with his brother, Lincewesi Musukuma, were also its sole shareholders and directors.

The parties denoted the first agreement as “the Agreement of Sale” and the second “the Deed of Sale” which terms I hereinafter adopt in this judgment.

The Agreement of Sale encompassed the sale of specified movable assets for the sum of US$219,000 payable on the date of signature, in Zimbabwean dollars, at the auction rate prevailing on 26 November 2004 (the effective date).

In terms of clause 5, interest would accrue from the due date of payment at the rate of 7 and a half per centum per annum calculated on a daily basis.

The assets comprised office furniture and fittings, motor vehicles, radios, water pumps, generators, and “workshop assets”.

It was, however, common cause that the appellant did not pay the purchase price for the movables on the date of signature but had managed to do so in the local currency equivalent as at the date of summons.

The Deed of Sale, whose effective date was 29 November 2004, comprised the sale of three immovable properties for the total sum of US$481,000.

These are identified in clause 1 of the agreement as:

“(a) Certain piece of land situated in the District of Salisbury, Stand 272, measuring 3,145 square metres (8 Whites Way, Msasa, Harare) and held under Deed of Transfer No.6884/92 together with the permanent improvements situate thereon valued at US$296,000 (two hundred and ninety-six thousand United States Dollars).

(b) Certain piece of land situated in the District of Salisbury, Stand No.195, measuring 4,794 square metres (8 Lorely Close, Msasa, Harare) and held under Deed of Transfer No.05691/94 valued at US$97,000 (ninety-seven thousand United States Dollars).

(c) Certain piece of land situated in the District of Salisbury, Stand No.8 measuring 8,790 square metres (8 Comet Close, Mount Pleasant, Harare) held under Deed of Transfer No.3404/78 valued at US$88,000 (eighty-eight thousand United States Dollars), together with all permanent improvements thereto (hereinafter referred to jointly as 'the Property')”.

The purchase price of US$481,000 was payable in instalments on the dates and in the amounts specified in the attachment to the Deed of Sale, Annexure A.

The amounts payable were apportioned between the United States dollar and Zimbabwe dollar.

Default interest accrued at the rate of seven (7) and a half per cent per annum from the date of default to the date of payment.

By letter dated 30 November 2004, the respondent undertook “upon settlement of the full purchase price for the Deed of Sale and Agreement of Sale” to deliver to the appellant “all share certificates of shares of the Company” and duly signed and stamped share transfer forms, the Certificate of Incorporation, Memorandum and Articles of Association, the share register, the minute book and other company documents, hold the requisite meetings of directors and shareholders to transfer the company to the appellant and thereby procure the resignation of the directors, secretary, public officer and other officers of the company.

In the same letter, the respondent further promised to procure the transfer of the company's post office box and all telephone and mobile communication lines to the appellant “upon signature” of the Agreement of Sale.

It was common cause that the letter did not alter, amend, or supplant the terms stipulated in the agreements.

It, however, appears to have clarified that the respondent was not sold as a going concern.

In December 2004, the appellant commenced the utilization of the movable assets, and, by 25 January 2005, the respondent had effected the undertakings premised upon the signature of the Agreement of Sale.

On an undisclosed date, Luis Vieira, as the Chairman of the respondent's Board of Directors, purportedly “read, approved, and signed 'Minutes of Meeting of Members of the Company held at Harare on 3 January 2005.'”

The minutes recorded that the Chairman, Managing Director, Jose Vieira, Danny Musukuma, and Mrs F Maio attended the meeting.

The only business dispatched at that meeting was the appointment of Danny Musukuma “as a new director of the company with immediate effect.”

On 20 September 2005, Luis Viera also signed a CR14 form which showed, that, on 3 January 2005, he and Jose Vieira resigned their directorships and were replaced by Danny and Lincewesi Musukuma while LAWAI resigned as Secretaries and were replaced by Samerstone Services.

The CR14 was, however, lodged with the Registrar of Companies, by Samerstone Services, on 14 September 2006.

Between 11 March 2005 and 27 October 2006, the parties exchanged correspondence in which the respondent demanded payment of and the appellant invariably undertook to pay the outstanding purchase price.

On 1 August 2006, the Zimbabwe dollar was revalued by the removal of three (3) zeroes under the Presidential Powers (Temporary Measures) (Currency Revaluation) Regulations, 2006 SI 199/2006.

As at 4 January 2006, the appellant had paid ZW$2,530,000,000, which, as my computation will show later on in this judgment, was equivalent to US$242,624=25 and purportedly owed ZW$1,480,578,188. These amounts were exclusive of interest.

A further payment of ZW$500,000 (revalued) was rejected and returned to the appellant on 2 August 2006.

The purported sum of ZW$1,480,578,188 was still owing on 25 October 2006.

By letter dated 7 November 2006, the respondent accorded the appellant 30 days notice within which to rectify the breach failing which the agreement would be deemed cancelled.

On 6 December 2006, the appellant tendered a cheque payment of ZW$2.5m “in full and final settlement.”

The cheque was rejected and returned to the appellant.

On 12 December 2006, the respondent duly cancelled the Deed of Sale.

The cancellation was premised on the appellant's failure to pay the United States dollar denominated portion of the purchase price, either in hard currency or in local currency at the agreed rate of conversion.

On 9 January 2007, at the instance of Jose Eduardo Vieira, the respondent issued summons for the vindication of the immovable properties and concomitant eviction of the appellant therefrom.

In its amended plea of 17 May 2007, the appellant conceded that the three immovable properties were owned by the respondent, but, denied being in occupation thereof.

The matter failed to commence on the initial trial date on 12 July 2007 but eventually did so on 14 June 2010.

However, between 28 May 2008 and 9 March 2009, notwithstanding that the properties were res litigiosa and pleadings had been closed in the matter, the immovable properties were purportedly sold and transferred by the appellant, at the instance of the Danny Musukuma board, to some third parties.

These third parties did not join and were not joined to the vindicatory proceedings.

THE CONTENTIONS A QUO

The proceedings in the court a quo, and in this Court, primarily revolved upon the Deed of Sale. Specious references were made to the Agreement of Sale in a bid to establish whether or not the appellant purchased the respondent “as a going concern” and whether or not it paid the aggregate purchase price for the immovable properties.

The respondent submitted, that, as it was the common cause owner of the immovable properties at the time of litis contestatio (the close of pleadings) by the appellant's rejoinder of 7 June 2007, and, as it had established that the property was possessed by the appellant or its privies against its will, it was entitled to recover possession from whomsoever was in possession.

Per contra, the appellant contended, that, its sole shareholders and directors became the sole shareholders and directors of the respondent on 3 January 2005, and, thereafter, ran the respondent's affairs.

It relied on the purported minutes of even date and the CR14 signed by Luis Vieira on 20 September 2005 and lodged by the appellant's secretaries (Samerstone Services) with the Registrar of Companies on 24 January 2006.

It further contended, that, the common cause fact that the immovable properties were either occupied by the respondent's “current directors” or had been sold by the respondent at the instance of the new directors, negated the vindicatory action instituted at the instance of the former directors, long after they had vacated office.

It also took the alternative contention, that, in the absence of a resolution by the Vieiras, as directors of the respondent, the institution of the proceedings was unauthorized, and, therefore, an irredeemable nullity.

The appellant, additionally, contended that the 30 days notice was defective in that it did not state “the exact sum due and owing” as envisaged by section 8(1) and (2) of the Contractual Penalties Act [Chapter 8:04].

In reply, the respondent contended that the purported minutes were forged, the signature of Luis Viera on the CR14 was procured by Danny Musukuma by deceit and its lodgment with the Registrar of Companies a nullity.

Its contention was premised on the appellant's failure to fulfill the conditions precedent necessary for the transfer of its equity and directorship embodied in the Deed of Sale and amplified in the letter of 30 November 2004.

It also argued, that, the appellant's failure to establish the validity of the CR14 further proved that the Vieiras never lost their directorship and shareholding to the Musukuma brothers. Consequently, the acts undertaken at the instance of the Vieiras were valid while those that were instigated by the Musukumas were null and void and of no force or effect.

In respect of the alternative contention, the respondent argued, on the authority of Smith v Kwanonqubela Town Council 1999 (4) SA 947…, and Uitenhage Municipality v Uys 1974 (3) SA 800 (E)…, that, the defect had been cured by, and at, its Extraordinary General Meeting held on 17 February 2009.

The respondent further disputed the construction rendered by the appellant to section 8(1) of the Contractual Penalties Act.

THE FINDINGS OF THE COURT A QUO

At the close of the respondent's case, in a separate judgment handed down on 2 May 2011, the court a quo dismissed the application to absolve the appellant from the instance.

In the appealed judgment, the court a quo held that the appellant had paid the Zimbabwe dollar component under the first agreement in full.

Regarding the Deed of Sale, it adjudged the sole witness called by the appellant, Danny Musukuma, to be an un-impressive and evasive witness, and generally accepted the evidence of the respondent's sole witness, Jose Vieira.

It further held, that, the appellant had not paid the full purchase price in the currency apportionments and manner specified in Annexure A.

It, consequently, found that the Vieiras could not have relinquished either their directorships or shareholding to the appellant's sole directors and shareholders.

This finding was buttressed by the concession elicited from Danny Musukuma, in cross examination, that the purported minutes of 3 January 2005, which he produced in evidence, were fake.

It was common ground, that;

(i) Firstly, no such meeting was ever convened;

(ii) Secondly, Danny Musukuma never attended the said meeting; and

(iii) Lastly, Jose Vieira did not, and could not have been in attendance as his passport showed that he was not in Zimbabwe between 1 December 2004 and 1 November 2009.

The court a quo further held, that, the transfer taken at the instance of the Musukuma brothers constituted a fraudulent act, which could not bar the appellant from recovering its property from whosoever was in possession thereof.

This was because the Musukumas knew that the appellant had not discharged the contingent obligation upon it to pay the full purchase price, which would have triggered the transfer of the equity of and power to run the respondent to them.

They also knew that they were alienating res litigiosa properties.

On the authority of Chatrooghoon v Desai & Ors 1951 (4) SA 122 (N)…, and Rautenbach v Venner 1928 T.P.D. 26, it upheld the respondent's contention, that, section 8(2) of the Contractual Penalties Act [Chapter 8:04] did not require a plaintiff to state “the exact sum due and owing by the defendant” in the notice of cancellation.

It reasoned, that, the exact amount of the local currency payable could only be known on the date the appellant elected to make payment.

It upheld the cancellation of the Deed of Sale on two grounds:

(i) The first was that the notice was in compliance with the provisions of section 8(1) of the Contractual Penalties Act.

(ii) The second was that the appellant had demonstrably failed to prove that the amount tendered on 6 December 2006 would have adequately discharged the outstanding debt.

The court a quo also upheld the respondent's contention, that, Annexure A required the appellant to pay the United States dollar denominated purchase price in the specified ratio of 45 per cent hard currency to 55 per cent local currency.

It found that while the United States dollar monthly component was static, the local currency component, being dependent on the prevailing auction rate on the date of payment, could not, and was not intended by the parties to be constant.

The likelihood of the fluctuation of the local currency component of the purchase price over the payment period, in its view, militated against a constant instalment figure.

Consequently, the constant local currency figures embodied in Annexure A were only given as an example of what the appellant would pay if the future auction rates remained static.

The court a quo, therefore, found that the appellant had not paid the hard currency component of the purchase price, either in that currency or in the equivalent local currency amount.

The court a quo found the requirements for actio rei vindicatio, which are set out in Chetty v Naidoo 1974 (3) SA 13 (A)…, were met.

It further found, that, the appellant had failed to establish its right to retain possession of the properties which had passed to it on 29 November 2004.

It, accordingly, granted the vindicatory relief and ordered the eviction of the appellant and its privies from the three immovable properties in question.

GROUNDS OF APPEAL

On 28 March 2012, the appellant filed 18 grounds of appeal. On 20 October 2014, it gave notice of its intention to substitute them with 6 grounds.

At the commencement of the appeal hearing, the Court, by consent of the parties, duly substituted the former grounds of appeal with the following:

“1. The court a quo erred in law in relating to a matter which had not been properly authorized and under circumstances in which those who could properly authorize it had not brought the proceedings.

2. The court a quo a fortiori erred in concluding that the plaintiff (respondent) was properly before it, particularly given that those who litigated under its name had executed an extant public document in which they surrendered their interests in respondent.

3. The court a quo further erred in effectively invalidating the respondent's CR14 at no one's motion and instance.

4. The court a quo erred in coming to the conclusion that the agreement between the parties had been properly cancelled under circumstances where no valid notice of cancellation had been given and there had been no jural act of cancellation exercised ex nunc.

5. The court a quo further erred and misdirected itself in coming to the conclusion that cause existed for the termination of the agreement between the parties (on the false prompting of Mr. Vieira) and in then making an order which was not sensitive to the equities of the matter.

6. The court a quo erred in coming to the conclusion that “respondent” had met the requirements for an actio rei vindicatio and in even taking the view that respondent could sue for the vindication of immovables, the subject matter of the litigation.

PRAYER

The appellant prays for the setting aside of the order of the court a quo and the substitution therein with an order that the claim for eviction, as per the summons, be and is hereby dismissed with costs.”

THE ISSUES

The six grounds of appeal raise the following issues:

1. Whether the respondent was properly before the court a quo.

2. Whether:

(i) The notice to cancel was precise;

(ii) The Deed of Sale was cancelled.

3. Whether the requirements of the actio rei vindicatio were established.

THE ARGUMENTS BEFORE THIS COURT

THE APPELLANT'S CONTENTIONS

Counsel for the appellant submitted, that, in the absence of a resolution issued prior to the institution of action, on 9 January 2007, the respondent could not properly litigate a quo.

He anchored his submission on the CR14, the public document wherein the Musukumas, and not the Vieiras, were depicted as the only subsisting directors of the appellant.

He argued, that, in the absence of a resolution by the subsisting directors to institute the vindicatory action, the proceedings under appeal were improperly taken by the former directors.

He also took the alternative point, that, even if the Vieiras were the subsisting directors of the respondent, the proceedings would have been afflicted by the absence of a resolution authorizing the institution of the proceedings.

He further contended, that, the improperly instituted proceedings could not be cured by the purported ratification done at the instance of the Vieiras on 17 February 2009.

He took the further alternative point, that, even if the appointment of the Musukumas was found to be defective, the acts undertaken by them, as directors, were not only deemed to be valid by the provisions of sections 12 and 13 of the Companies Act [Chapter 24:03] but were also saved by the provisions of section 170 of the Companies Act.

Counsel for the appellant also relied on the “immediate delivery” of the movables and goodwill on 30 November 2009 and subsequent delivery of the motor vehicles on 14 December 2004 and the telephones and postal box on 25 January 2005 to argue that the respondent had been disposed of as “a going concern” a term he interchangeably substituted with the disposal of the Vieiras shareholding in the respondent.

He argued, that, on the authority of CHRISTIE's Business Law in Zimbabwe (Juta 1985…,.) and Laing v South African Milling Co. Ltd 1921 AD 387…, the delivery of the movables transformed the Agreement of Sale into a credit sale, the effect of which was twofold:

(i) Firstly, ownership of the movables passed to the appellant on the date of delivery and not on the envisaged date of full payment.

(ii) Secondly, such a credit sale evinced a clear intention to not only dispose of movable assets and immovable properties separately, but of the respondent itself as a going concern.

He sought to buttress his contention by reference to the immediate delivery of occupation of the immovable properties on the date of signature, the passing of profit in both agreements, and the purported appointment of Danny Musukuma as the principal officer of the respondent.

Counsel for the appellant further contended, that, the purported cancellation of the Deed of Sale was a nullity.

He argued, firstly, that the phrase “of the breach concerned” in section 8(2)(b) and (c) of the Contractual Penalties Act denoted the specification of the exact amount owing and not the mere generalization of the breach.

Secondly, that the payment tendered, on 6 December 2006, which was rejected and returned on 12 December 2006, adequately remedied the purported breach.

That, in any event, the court a quo overlooked the important fact that payment of the purchase price in foreign currency, without the requisite exchange control authority, was, at the time, illegal, hence the discharge of the payment obligation in local currency.

He therefore submitted, that, the respondent erroneously cancelled the Deed of Sale while the court a quo also erroneously confirmed the cancellation.

Finally, counsel for the appellant submitted, that, the respondent having failed to meet the requirements for vindicatory relief, the court a quo erred in ordering the eviction of the appellant.

He therefore prayed for the success of the appeal, vacation of the order, and its substitution by a dismissal order.

THE RESPONDENT'S CONTENTIONS

Per contra, counsel for the respondent made the following contentions:

The action instituted by the respondent, at the instance of the Vieiras, on 9 January 2007, without the requisite resolution of the Vieiras as the lawfully appointed directors of the respondent, was ratified by them on 17 February 2009.

In terms of the pronouncement articulated by NICHOLAS AJA in Moosa & Cassim NNO v Community Development Board 1990 (3) SA 175 (A)…, such ratification validated the proceedings, retrospectively, to 9 January 2007.

The appellant failed to discharge the onus on it to show that it had paid the full purchase price in the manner and method stipulated in Annexure A.

The respondent had shown, by credible and uncontroverted evidence, that, the CR14 lodged with the Registrar of Companies, on 24 January 2006, was a fake document that was predicated on false minutes of a non-existing meeting.

The averments in Luis Vieira's affidavit of 6 August 2009, that Danny Musukuma had taken advantage of his advanced age (85years old) and lack of fluency in the English language and company procedures, and tricked him into appending his signature on the fake minutes and fake CR14 were not controverted by Danny Musukuma in his oral testimony a quo.

The CR14, upon which the appellant nailed its defence, was a proven nullity, which could not confer any rights of directorship on the Musukuma brothers.

Clause 12 of the Agreement of Sale, and the letter of 30 November 2004, precluded the appellant's appointees from exercising the rights of shareholders and directors prior to the full payment of the purchase price in respect of the two agreements.

He also argued, that, the two agreements did not transform the sale of the movable assets and immovable properties into the sale of the respondent as a going concern.

A sale of assets, which precludes the passing of ownership and transfer of equity in the seller prior to the payment of the purchase price in full and the assumption of the seller's debts and human resources, could not be regarded as the sale of a going concern.

He also argued, on the authority of Macape (Pty) Ltd v Executrix Est Forrester 1991 (1) ZLR 315 (S)…, that, the prescribed payments in foreign currency for the immovable properties did not contravene the provisions of the Exchange Control Regulations 1996.

That, the specific text of clause 4 of the Deed of Sale denominating a portion of the purchase price in foreign currency rendered the agreement valid.

On the construction of section 8(2) of the Contractual Penalties Act, he maintained that the notice, as worded, was in full compliance with the phrase “the breach concerned.” The respondent was not required to quantify the breach.

The appellant's conduct and response, of 6 December 2006, exhibited an appreciation of the ascertainable nature of the debt.

The appellant breached the Deed of Sale by failing to pay the instalments delineated in both currencies and the concomitant municipal and utility bills in both alternative currencies, and failed to remedy the breach in the 30 days prescribed in clause 13 of the agreement and section 8 of the Contractual Penalties Act.

Regarding the granting of the actio rei vindicatio, he submitted that the order could not be defeated by the disposal of the property after litis contestatio, as, at that stage, the property would have become res litigiosa.

He strongly argued for the dismissal of the appeal with costs on the higher scale.

RESOLUTION OF THE ISSUES

I proceed to resolve the issues seriatim....,.

WHETHER THE REI VINDICATIO WAS ESTABLISHED

The requirements for a vindicatory action were crystallized in Jolly v A. Shannon & Anor 1998 (1) ZLR 78 (H)…, where MALABA J…, stated:

“The principle on which the actio rei vindicatio is based is that an owner cannot be deprived of his property against his will and that he is entitled to recover it from any person who retains possession of it without his consent.

The plaintiff in such a case must allege, and prove, that he is the owner of a clearly identifiable movable or immovable asset and that the defendant was in possession of it at the commencement of the action.

Once ownership has been proved, its continuation is presumed.

The onus is on the defendant to prove a right of retention: Chetty v Naidoo 1974 (3) SA 13 (A) at 20A-C; Makumborenga v Marini SC130-95 p2. It follows that the action is based on the factual situation that prevailed at the time of the commencement of the legal proceedings.”

Counsel for the appellant submitted, that, the court a quo erred in granting vindicatory relief to the respondent when the immovable properties were either occupied by the directors of the respondent or had been sold and transferred by the respondent.

My earlier finding that these “directors” were not, in fact and truth, the directors of the respondent, renders the submission unsustainable.

In any event, the submission completely overlooked the fact, that, in terms of clause 10 of the Deed of Sale, profit and possession of the immovable properties immediately passed to the appellant on 29 November 2004 and had not been restored to the respondent when its directorships were usurped by the appellant's sole directors.

The non-encumbrance by the seller in clause 8, the insurance by the purchaser in clause 11, and the caveat registration by purchaser in clause 16 of the Deed of Sale further entrenched the appellant's possessory rights.

HH329-13 : RICHARD JAMBO vs CHURCH OF THE PROVINCE OF CENTRAL AFRICA and ANGLICAN DIOCESE OF MASVINGO and DEPUTY SHERIFF CHIVHU N.O.
Ruled By: GUVAVA J

This matter was placed before me, on a certificate of urgency, in terms of Rule 242 of the High Court Rules as amended. I dismissed the application with costs because of the preliminary issues raised.

The applicant has requested written reasons for my decision. These are they.

The applicant filed an urgent application for stay of execution. The interim relief is in the following terms:

“(a) The 1st, 2nd, and 3rd respondents be and are hereby ordered to stay eviction and removal of the applicant from No.2 Daramombe High School.

(b) The 1st and 2nd respondents shall bear the costs of this application on a legal practitioner client scale.”

The facts of the matter, as set out in the applicant's founding affidavit, may be summarized as follows:

The applicant is employed as a boarding master at Daramombe High School. The first respondent is the Church of the Province of Central Africa, a registered religious organization. The second respondent is the Anglican Dioceses of Masvingo, a division of the first respondent.

The third respondent is the Deputy Sheriff, cited in his official capacity.

On 26 April 2000, the applicant was appointed as the boarding master of Daramombe High School. He was furnished with a house, being House No.2 Daramombe Mission. On or around 4 May 2000 to February 2009 the applicant was demoted to the post of caretaker and transferred to St Michaels Secondary School near Dorowa Mine in Buhera.

The applicant challenged his demotion and an arbitral award was made in his favour on 9 July 2009 and he was reinstated back to the post of boarding master at Daramombe High School.

On 12 December 2012, he was served with an order for his eviction from House Number 2 Daramombe Mission and to hand over all the Mission property in his possession to the first respondent.

The warrant of ejectment which was attached to his Notice of Ejectment does not cite the applicant as a party to the proceedings.

The applicant claims that there is no basis to evict him as there is no order against him.

He also states, that, the Supreme Court judgment SC48-12 does not cite him as a party and he does not claim occupation of the property through the Diocesan Trustees for the Diocese of Harare.

The application was opposed by the first and second respondents.

Counsel for the first and second respondents raised four points in limine:

(i) He argued, firstly, that, the application was not filed in accordance with Rule 241 of the High Court Rules. He submitted, that, on that basis alone, the application should be dismissed as there is no application for condonation for the failure to comply with the Rules;

(ii) Secondly, he submitted that the matter was not urgent as contemplated by the rules of the court;

(iii) Thirdly, he submitted that the applicant had not disclosed material facts to the court with regards to his case; and, finally

(iv) That, the second respondent should not have been cited as a party as it is not a persona but a geographical area.

I will deal with each of the points which were raised in limine....,.

2. Application is not Urgent/ Material Non-Disclosure of Facts

The applicant submitted, that, he acted timeously as he approached the court as soon as he was served with the Notice of Eviction.

It was submitted by counsel for the applicant, that, as the applicant was not cited as a respondent in the case of The Church of the Province of Central Africa v The Diocesan Trustees For The Diocese of Harare SC48-12 (the Supreme Court Judgment) it should not apply to him.

I was, however, not persuaded by the stance adopted by the applicant.

The background to the Supreme Court Judgment, The Church of the Province of Central Africa v The Diocesan Trustees For The Diocese of Harare SC48-12, was that in 2007 a dispute arose between the respondents and the Diocesan Trustees of the Dioceses of Harare. The issue was whether the people who had been members of the Board of Trustees for the Dioceses of Harare withdrew their membership from the first respondent and thereby lost their right to control property such as church buildings, houses, schools, motor vehicles, and funds in the bank.

The Supreme Court, in its judgment, ordered that the Diocesan Trustees for the Dioceses of Harare should deliver all the properties to the first respondent.

Prior to this judgment, the Trustees of the Dioceses of Harare had taken control of all the properties and appointed its own employees after evicting the first respondent's employees.

The Trustees for the Dioceses of Harare also re-appointed some employees who were already in the employ of the first respondent. The applicant appears to have fallen in this category of persons as he had been previously employed by the first respondent.

It was apparent to me, that, the issue of urgency should be dealt with together with the issue of the failure to disclose material facts to the court as it seemed to me the points were interlinked.

It was submitted by the respondent's counsel, that, the applicant deliberately failed to disclose to the court that he had been appointed to the post of boarding master through Bishop Kunonga and the Anglican Church of the Province of Zimbabwe.

In order to confirm this assertion, the first respondent attached to its opposing papers a copy of a letter from the Anglican Diocese of Harare, dated 23 April 2012, appointing the applicant to the post of Boarding Master with effect from 1 October 2011. The applicant accepted the appointment by the Anglican Church of the Province of Zimbabwe.

The applicant did not disclose these facts to the court in his founding affidavit.

It was quite apparent from the papers filed, that, the applicant was re-appointed by the Anglican Church of the Province of Zimbabwe.

The first respondent, following the Supreme Court judgment, issued out writs of execution to recover all the immovable properties - including the property occupied by the applicant.

The applicant should have been aware that his occupation of the property would be affected by the Supreme Court judgment as his appointment was as a result of the Anglican Church of the Province of Zimbabwe as he was no longer in the employee of the first respondent.

The eviction was ordered as far back as October 2012 - after the Supreme Court judgment.

There is no explanation in the certificate of urgency why the applicant did nothing from that date until he received the Notice of Eviction.

In the case of Kuvarega v The Registrar General & Anor 1998 (1) ZLR 188 CHATIKOBO J…, stated that urgency does not arise on the day of reckoning but arises when the need to act arises.

The applicant was aware of the need to act as far back as October 2012 but did nothing. He then sought to hide his failure to act by not disclosing facts which were material to this case.

This point was highlighted in the case of Leader Trade Zimbabwe v Smith HH131-03 where the court held, that, where an applicant gives false evidence, then, the application should be dismissed.

In my view, therefore, the application may be dismissed on this basis of these two points.

HH427-15 : THE PROSECUTOR GENERAL vs PHIBEON BUSANGABANYE and MAGISTRATE N. MUPEIWA N.O.
Ruled By: MATHONSI J

This is a matter rising out of the trial of one Anderson Tagara at the Magistrates Court, Harare on a charge of fraud as an accessory after the fact in contravention of section 206 as read with section 136 of the Criminal Law Code [Chapter 9:23].

At the conclusion of that trial, Anderson Tagara was found guilty and sentenced to a fine of $4,000 or, in default of payment, 12 months imprisonment. In addition, he was sentenced to 12 months imprisonment wholly suspended for five years on condition of future good behaviour.

Anderson Tagara is not a party to the present application, and probably does not want to in light of his recent brushes with the law.

The facts themselves, if this was not an extremely unfortunate matter involving loss of huge sums of money and the use of the name of God in vain, would have been comic indeed.

What the trial court found to have been proven is that Ndabazinengi Shava purchased a Bentley Continental motor vehicle registration number AVO 1759 from Anderson Tagara for a sum of $230,000 after the latter had imported the luxury wheels from the United Kingdom. Shava did not execute a change of ownership of the vehicle into his name but it remained in the name of Tagara.

Firmly believing in the power of the Almighty which can bring abundant blessings to God-fearing people, Ndabazinengi Shava took the Bentley to a well known “prophet” one Eubert Angel Mudzanire who promised him abundant blessings if he “seeded” the Bentley to the man of God.

They agreed, that, if Ndabazinengi Shava's fortunes multiplied three-fold within eight months of “seeding” the Bentley to the prophet, the prophet would assume ownership; but, if such did not eventuate, the Bentley would be returned to Shava.

As is usual with anything human, Ndabazinengi Shava's fortunes remained rooted in the same position at the expiration of the eight months period, and, when he sought to recover the Bentley, he discovered to his shock, that, the prophet had purported to sell the Bentley to the first respondent for a paltry sum of $76,000.

Ably assisted by Anderson Tagara, they had signed a sale agreement to facilitate change of ownership.

The prophet made good his escape leaving Anderson Tagara at the mercy of the long arm of the law.

Even the help of a couple of the prophet's relatives, who testified in his favour, could not save Anderson Tagara who was convicted and sentenced aforesaid.

The trial magistrate was requested by State counsel to issue a disposal order relating to the Bentley, in terms of section 61(1) of the Criminal Procedure and Evidence Act [Chapter 9:07], as it had been exhibit 4 during the trial.

He skated the issue and ruled as follows at p29 of his judgment:

“I have also considered whether I should order that the Bentley motor vehicle should be returned to the complainant. I have noted, that, the motor vehicle is currently in the hands of an innocent purchaser, and that, by handing the registration book over to Eubert Angel Mudzanire, the complainant made it possible for Eubert Angel to represent himself and (sic) the owner. The innocent part (sic) can easily raise a defence of stoppel (sic) against the complainant, because of this it is best to leave the issue of the motor vehicle to the Civil Court. In any case, it was clear that the issue of the motor vehicle is already before the High Court; it will be best to leave it to be finalised there.”

Whatever it is that the magistrate was saying, the bottom line is that he was washing his hands of the Bentley, Pilate style, and in the process abdicating his adjudicating duties.

It is either Ndabazinengi Shava was entitled to the Bentley or the first respondent was. There can be no middle road - never mind the existence of a Civil Court.

The applicant, who is the prosecuting authority in this country, has since challenged the decision of the magistrate by way of review application made in this court, and that application is yet to be determined.

Meanwhile, the first respondent continues to enjoy the use of the Bentley, a situation which riles the applicant who has now come to court, on an urgent basis, seeking the following relief:

“TERMS OF THE FINAL ORDER (SOUGHT)

1. The 1st respondent be and is hereby ordered to surrender a motor vehicle, a Bentley Continental registration number ACO 1759, engine number CKH002121, chassis number SCBDN 23WOBC68378 to Ndabazinengi Shava (complainant in case CRB R 104/15) within 24 hours of the granting of this order pending the outcome of the main application for review.

2. The respondents to bear costs of this suit if they oppose this application.

INTERIM RELIEF (GRANTED)

3. The first respondent is directed not to use or dispose of the motor vehicle Bentley Continental registration number ACO 1759, engine number CKH003121, Chassis number SCDDN 23 WOBC 68378.”...,.

The applicant states, that, the magistrate was required, by section 61 of the Criminal Procedure and Evidence Act [Chapter 9:07], to issue a disposal order in favour of Ndabazinengi Shava, upon an application being made before him to do so, because he had made a finding that the Bentley belonged to Shava.

I agree.

Section 61(1) of the Criminal Procedure and Evidence Act provides:

“Subject to this Act, and, except as otherwise provided in any other enactment under which any matter shall or may be forfeited, the judge or magistrate presiding at criminal proceedings may, at the conclusion of the proceedings, unless the article is further required as an exhibit at a trial, make an order that any article referred to in section 60, or produced in evidence –

(a) If the person from whose possession it was obtained may lawfully possess such article, be returned to that person; or

(b) If the person from whose possession it was obtained is not entitled to the article, or may not lawfully possess the article, be returned to any other person entitled thereto, if such person may lawfully possess the article; or

(c) If no person is entitled to the article, or if the person who is entitled thereto cannot be traced or is unknown, be forfeited to the State.”

In my view, the section reposes upon a trial court the discretion to proceed in terms of three available options set out therein.

The Bentley formed the subject of the criminal prosecution and was produced as evidence, and, therefore, in the custody of the court. At the conclusion of the trial, the magistrate should have issued a disposal order in terms of section 61(1) of the Criminal Procedure and Evidence Act: see S v Muzvaba HH360-13.

The magistrate made clear findings, that, the vehicle belonged to Ndabazinengi Shava and his decision to become ambivalent at the end was not helpful at all. At p12 of his judgment he stated:

“I therefore believe the accused when he say(s) he imported the Bentley motor vehicle on his own, and, when the motor vehicle was finally delivered in Harare, the complainant stated that he was interested in the motor vehicle and accused sold the motor vehicle to the complainant for US$230,000 and complainant paid in full the money and accused gave him the Bentley in question together with all the documentation and the number plates which were not yet fixed in the motor vehicle, but the two did not reduce anything to writing.

However, the issue of whether the complainant gave the accused money to import the motor vehicle in question or not is neither here nor there. It is not very important because the moment when accused sold the motor vehicle to the complainant, and through their verbal agreement, the accused passed ownership to the complainant of the motor vehicle in question. What is important is to decide what happened after mid-May 2012 when the complainant was now the true owner of the Bentley motor vehicle in question.”

After indulging himself a lot about matters of religion and how the prophet was required to intercede between Ndabazinengi Shava and God for the former to be showered with blessings, the magistrate again pronounced at p18 of the judgment:

“What this mean(s) is that when the complainant handed over the car and the registration book, he did not pass ownership because he never formulated that intention. Ownership was only going to pass to Eubert Angel after realisation of blessings, and Eubert Angel knew that ownership had not passed to him and that necessary ownership transfer document was to be done upon complainant receiving blessings. Eubert Angel was also aware, that, in the event of no blessings by complainant, complainant was to get his car back. To this end, Eubert Angel, though well aware that he had not acquired ownership, proceeded to dispose of the motor vehicle as if he was the owner. The motor vehicle had been placed under the custody of Eubert Angel pending the fulfilment or otherwise of the condition precedent to him getting ownership.”

I have stated, that, section 61(1) of the Criminal Procedure and Evidence Act permits the trial court to order the return of the article to the person from whom possession was obtained if that person may lawfully possess the article.

The court found, that, Ndabazinengi Shava was the owner and that ownership did not pass to Eubert Angel. Prior to that, ownership had passed from Anderson Tagara to Shava - even though documentation had not been done.

Clearly, therefore, by its findings, the trial court should have ordered the return of the vehicle to Ndabazinengi Shava.

It did not, contenting itself with passing the buck to some other court.

It matters not that the first respondent was not a party to the criminal proceedings. He could not be as he was not an accused person.

What remains is that section 61(1) of the Criminal Procedure and Evidence Act allows for the return of the article to the lawful owner at the conclusion of the trial.

In his opposing affidavit, the first respondent has stated a lot of things not relevant to the present inquiry.

He has also made the point, that, the relief being sought by the applicant, in the main, is not competent because this court, per ZHOU J, in HC11372/14, has already settled the issue of possession of the Bentley in his favour which provisional order was confirmed by MAKONI J on 28 January 2015.

He has also annexed to his affidavit the judgment of MANGOTA J, in, In re: The National Prosecuting Authority HH152-15 delivered on 16 February 2015, in which the learned judge ordered the first respondent not to dispose of the Bentley “until all proceedings which relate to the car have been finalised.”

In my view, those decisions will certainly become relevant when deciding whether to grant the final order being sought or not.

It is significant, that, they were made before the conclusion of the criminal trial, and before the trial magistrate had made findings to the effect that ownership of the Bentley resides with Ndabazinengi Shava.

Those findings triggered the application of section 61(1) of the Criminal Procedure and Evidence Act which I have cited.

I am not sitting to decide the propriety or otherwise of the review application but whether to grant the applicant interim relief in the face of the trial court's inability to issue a disposal order.

Interim relief is granted on the mere proof of a prima facie case: Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H)…,.

In my view, the applicant has indeed established a prima facie case for the relief sought.

I am mindful of the fact that MANGOTA J did issue an order similar to the one sought by the applicant in this matter. However, the relevant part of the order is rather general and does not specify which proceedings are affected.

As it is, criminal proceedings have been completed where the magistrate did not issue a disposal order in respect of the exhibit. That order also does not relate to the use of the Bentley which the present application intends to prevent.

In the result, I grant the provisional order in terms of the draft order, the interim relief of which is as follows:

INTERIM RELIEF GRANTED

That, pending the determination of this matter, the applicant is granted the following relief:

1. The first respondent is directed not to use or dispose of the motor vehicle Bentley Continental, registration number ACO 1759, engine number CKH002121, Chassis number SCBDN 23 WOBC 68378 until the review application filed by the applicant has been finalised.

HH152-15 : THE NATIONAL PROSECUTING AUTHORITY (APPLYING WITHOUT NOTICE (EXPARTE)) vs X
Ruled By: MANGOTA J

At the centre of the present urgent chamber application is a Bentley Continental G.T. motor vehicle with registration number ACO 1759.

The motor vehicle was imported from the United Kingdom. Its landing price was $240,000 and duty payable on it was assessed at $60,000 which its importer(s) paid.

On landing onto Zimbabwe, the vehicle changed hands from the importer(s) Anderson Tagara and Ndabazinengi Shava, for and on behalf of whom Tagara allegedly acted in the importation of the vehicle.

Ndabazinengi Shava alleged that, in mid-May 2013, one Uebert Angel, of Spirit Embassy Church, conned him into parting with the vehicle. He stated that Mr Angel assured him that he would, on donating the vehicle, receive a manifold of blessings in the form of similar motor vehicles and cash within eight months of surrendering the vehicle to Mr Angel. He said Mr Angel told him, that, if the promised blessings did not materialise, Mr Shava could freely get back his vehicle from him.

It is alleged that after the eight months had lapsed, and Mr Shava having received no blessings as had been promised, the latter phoned Mr Angel over the failure of the promises which he had made.

Uebert Angel, it is claimed, started by ignoring the phone calls and later he blocked Mr Shava's calls.

Mr Shava stated, that, when he made further inquiries about the matter, he discovered that the vehicle had been sold to one Phibeon Busangabanye.

He said he called at Mr Busangabanye's place of work where he confirmed, that, Mr Angel had indeed concluded an agreement of sale of the motor vehicle with Mr Busangabanye.

He said the issue of the sale of the motor vehicle caused him to file a report of fraud with the police against Mr Angel, who, it is claimed, is currently staying in the United Kingdom.

Mr Shava's report to the police triggered the latter's investigations of the matter which related to the motor vehicle. The investigations, it is claimed, revealed that Mr. Tagara registered the motor vehicle in his name and sold it to one Benjamin Mutamiri whom he said was acting for, and on behalf of Mr Angel. This resulted in the State preferring charges of fraud against Mr Angel and Mr Tagara.

It is the State's case, that, Mr. Tagara and Mr. Angel cooked documents with a view to concealing a fraud which they committed.

The State said Mr. Tagara is scheduled to appear at the Regional Court, Harare on Tuesday 17 February 2015.

The applicant wants the vehicle which is at the centre of the parties wrangle produced as an exhibit in court. The vehicle is currently in the possession and control of Mr Busangabanye who allegedly purchased it from Mr Angel.

It is in his undisturbed possession and control by virtue of an order of this court which was filed under case number HC11372/14.

The matter which relates to the order was brought to court under the mandamen van spoliae relief.

Mr. Busangabanye approached and moved the court, on an urgent basis, for that relief when, on 24 December 2014, police made an effort to seize the vehicle from him and have it parked at their Vehicle Theft Squad parking yard in Southerton.

The provisional order was granted to Mr. Busangabanye on 25 December 2014, and, on 28 January 2015, that order was, in default of the respondents, confirmed as a final order of this court.

Mr. Busangbanye was, accordingly, conferred with the authority to retain control and possession of the motor vehicle.

It is strange that the applicant, with full knowledge of the stated fact, filed the present application on the basis of urgency, and, as an ex parte application.

The court went through the applicant's papers and realized that:

(a) The refusal of the police to take the vehicle from its lawful controller and possessor, in the face of the court order, was a correct interpretation of the law; and

(b) Mr. Busangabanye had a substantial interest in the possession or otherwise of the motor vehicle.

The court, accordingly, insisted that the application be served on the police and on Mr Busanyabanye.

The police, being part of the State, which is desirous of prosecuting Mr Tagara could not, and did not, oppose the application. All they wanted was a direction from this court as regards the way forward on the matter which related to the production of the car as an exhibit during the trial of Mr Tagara.

Mr Busangabanye opposed the application.

His opposition, however, centred more on why he was not cited as a party to the application than it dwelt on the fact that he did not want to have the car produced as an exhibit.

There is no doubt, that, the car is the subject of a number of proceedings criminal and/or civil before this and other courts.

Its ownership remains in the balance between Mr Shava, Mr Angel, and Mr Busangabanye.

Criminal proceedings have been, and will be instituted against certain individuals on charges which range from forgery right through to fraud. The car cannot, therefore, be disposed of in any way until the dust which surrounds its ownership, possession, and control has settled.

In this regard, the car will remain with Mr Busangabanye to whom the court conferred possession and control of the same.

He will, however, be required to produce the car, and to avail it to the court which is dealing with the matter which relates to the car, as and when the State or any litigant calls upon him to do so.

He, on his part, stated, through counsel for him during the hearing of this application, that, he was not averse to the due administration of justice. He accepted the position that he will avail the car to court as and when he is required to do so.

The order which the court made in his favour, under case number HC11372/14, remains valid until it is varied or rescinded by the court. It protects his possession and control of the motor vehicle.

The court has considered all the circumstances of this case. It is satisfied that the applicant proved its case to the extent of having the motor vehicle produced as an exhibit only. It proved that case on a balance of probabilities.

It is, in the result, ordered as follows:

(a) That, Mr Busangabanye continues to retain possession and control of the motor vehicle in terms of the High Court Order HC11372/14.

(b) That, Mr Busangabanye be and is hereby ordered to avail the motor vehicle, a Bentley Continental G.T. registration number ACO 1759 to the Regional Court for purposes of proceedings which will commence on 17 February 2015.

(c) That, Mr Busangabanye be and is hereby ordered not to dispose of the motor vehicle until all proceedings which relate to the car have been finalised.

(d) That, there be no order as to costs.

SC24-18 : MEDLOG ZIMBABWE (PVT) LTD vs COST BENEFIT HOLDINGS (PVT) LTD
Ruled By: GARWE JA, GOWORA JA and GUVAVA JA

The respondent issued summons out of the High Court seeking an order for the release of its plastic bags which were being retained by the appellant, payment of the sum of US$157,350=05 representing the business it lost as a result of such retention, and costs of suit on the scale of legal practitioner and client.

The respondent also sought payment of interest from the date of issue of summons to the date of payment in full.

After hearing evidence and submissions from the parties, the court a quo ordered the appellant to pay the sum of $157,350=05 to the respondent being damages for loss of business, interest on that sum at the prescribed rate, and costs of suit on the ordinary scale.

The present appeal is against that order.

FACTUAL BACKGROUND

The appellant is a company registered in accordance with the laws of Zimbabwe and carries on business from premises in Avondale, Harare. It is an agent of the Mediterranean Shipping Company (“Mediterranean Shipping”) a company that operates worldwide with its core business being the carriage of containers.

As agent, appellant's responsibility is to fulfil the obligations of Mediterranean Shipping by facilitating delivery of containerised cargo to the clients of Mediterranean Shipping in Zimbabwe.

In this particular instance, at the behest of Mediterranean Shipping, the appellant supervised the movement, by road, of the plastic bags, which were in a container, from the Port of Beira to Mutare Dry Port.

In Mutare, the appellant instructed the employees of the Port not to release the goods until certain monies were paid by the respondent.

It is common cause, that, initially, the appellant refused to release the container until a sum of money owed by the wife of one of the directors of the respondent had been paid. Upon realizing that the debt had nothing to do with the respondent, the appellant then demanded payment of the sum of $80=50 in respect of handling charges.

The respondent, believing the bags had been unlawfully retained by the appellant, instituted proceedings in October 2012 for the release of the bags, damages for loss of business, and interest thereon at the prescribed rate.

The sum of $80=50 was only paid in August 2013 after which the plastic bags were then retrieved.

PROCEEDINGS A QUO

In its declaration, the respondent alleged that it had imported a container of plastic bags from Hong Kong and that it had engaged the appellant as its agent to facilitate the importation and clearing of the goods with the Zimbabwe Revenue Authority(“ZIMRA”).

It alleged, that, notwithstanding the fact that it had paid the import duty and the appellant's clearing fees, the appellant had refused to release the container on the basis that it was owed money from a previous transaction by the wife of one of the respondent's directors.

It alleged, that, consequent upon the refusal by the appellant to release the container, a client who had placed an order with it for plastic bags had cancelled the order as a result of which the respondent had suffered damages in the amount claimed.

In its plea, the appellant, as defendant, denied that it had entered into a contract of agency with the respondent.

It alleged, that, it had been contracted by the shipper (a term used in the freight business to denote the person who prepares the necessary documentation for the carriage of goods), Hong Kong Richer Int'l Group Limited (”Richer International”) to transport the cartons of plastic bags cif Mutare. It alleged, that, it duly discharged its obligations to deliver the container to Mutare Dry Port after which the respondent became liable to pay its administration fee relating to the Bill of Lading and the container in the sum of $80=50.

The appellant accepted that it refused to release the container before payment of the administration fee in the sum of $80=50 had been made.

At a pre-trial conference before a judge in chambers, the parties agreed the issues to be determined at the trial.

The issues included, inter alia, whether a contract existed between the parties, and, if so, the terms thereof. Further, whether the appellant was entitled to refuse to release the container until payment of the handling fee of $80=50 had been made, and, if not, whether the respondent had suffered damages in the amount claimed in the summons.

During viva voce evidence, the respondent, represented by its managing director, Albert Kuwaza, stated as follows:

His company ordered the plastic bags from China, and, through the supplier, engaged the appellant at its offices in China to transport the merchandise from China to Mutare, Zimbabwe. Once the goods were in Mutare, the appellant then demanded payment of the sum of $1,750 which it alleged was owed by a Mrs Kuwaza, wife of one of the respondent's directors, in respect of a previous transaction.

The issue of the handling fee of $80=50 was raised by the appellant for the first time in October 2012, way after a client who had placed an order for the bags had cancelled the purchase.

Under cross-examination, he conceded, that, in fact, the company with which he contracted in China was Hong Kong Richer Int'l Group Limited (Richer International) and that Richer International, in turn, contracted with Mediterranean Shipping to transport the goods to Mutare. He further conceded, that, the clearing fees were paid directly to Green Motor Services, the company that was operating Mutare Dry Port and not to the appellant. He told the court, further, that, as far as he was concerned, the appellant, Mediterranean Shipping, and Green Motor Services were part of the same company.

Following the dismissal of an application for absolution at the close of the plaintiff's case, the appellant's managing director, Dr Giorgio Spambinato, gave evidence before the court a quo. His evidence was as follows:

The appellant, which operates from offices situate at 27 Natal Road, Belgravia, Harare is an agent of Mediterranean Shipping. It has no offices outside Zimbabwe. The appellant's role was to assist Mediterranean Shipping to execute its contractual obligation of moving cargo into and out of Zimbabwe. In this case, the appellant only supervised the movement, by road, of the container from the Port of Beira to Mutare. It was not involved in the clearance of the goods with the Zimbabwe Revenue Authority (ZIMRA).

He confirmed that, initially, the appellant had insisted on payment of the sum of $1,750 owed by a Mrs Kuwaza in respect of a previous transaction, but, on realizing the error, had personally instructed that the container be released on payment of the sum of $80=50.

That sum represented the handling fee for facilitating the necessary documentation and supervising the speedy execution of delivery by sub-contractors and service providers.

He explained, that, in Zimbabwe, it is customary for the agent handling the cargo on behalf of Mediterranean Shipping to recover the costs directly from the recipients of the cargo. In other countries, the handling fee is paid by Mediterranean Shipping.

Whatever role the appellant played in this case was in fulfilment of its agency agreement with Mediterranean Shipping.

In its closing address a quo, the respondent submitted, that, the question whether there was a contract was “of no real consequence” and that “there needn't have been a contract between them because the scenario can be resolved by the principles of depositum…,.” Further, that, as depositary, the appellant had an obligation to return the goods to the respondent upon demand.

The respondent further submitted, that, it was clear from the summons and declaration that the claim “was vindicatory in nature, not contractual.”

Accordingly, the respondent prayed for its claim for damages and interest thereon to be granted on the basis of depositum.

In its address a quo, the appellant submitted, that, on the evidence led before the court, no contract had been proven. The person with whom the respondent had communicated in China was not the appellant but an employee of Mediterranean Shipping. More critically, the terms of the alleged contract between the respondent and the appellant had not been established. Moreover, at no stage had the respondent deposited the goods with the appellant.

In its judgment, the court a quo found, that, Mr Kuwaza, the managing director of the respondent had been unclear as to the nature of the relationship between the appellant, Mediterranean Shipping, Hong Kong Richer Int'l Group Limited (Richer International) and the respondent.

The court remarked as follows at page 10 of its judgment:

“What is apparent from Mr Kuwaza's evidence is that he did not produce any documents to show the existence of a contract between the plaintiff and the defendant. From the evidence that is before me, it is clear that the plaintiff entered into a shipping agreement with Mediterranean Shipping Company in Hong Kong, China in April 2012 for the shipment of its plastic container from China to Zimbabwe. That contract did not involve the defendant.”

However, at pages 10-11 of the cyclostyled judgment, the court a quo stated:

“I am of the considered view, that, the circumstances of this case show, that, there was a contract between the plaintiff and the defendant. Although the defendant said that it was acting as an agent of Mediterranean Shipping Company, its conduct towards the plaintiff shows that it also contracted with the plaintiff separately. It is not disputed that the defendant facilitated the importation of the plaintiff's cargo from the Port of Beira to Mutare.

Thereafter, it demanded payment from the plaintiff for the service that it had rendered.

The parties did not enter into this contract verbally or in writing, but, they did so by their conduct.

By demanding payment from the plaintiff for the costs it incurred in facilitating the importation of the plaintiff's cargo, the defendant created a contract between itself and the plaintiff. It made it a condition of the contract, that, if the administration fee was not paid, the plaintiff's cargo was not going to be released.

If there was no contract between the plaintiff and the defendant, the defendant should have simply demanded payment of its fees from Mediterranean Shipping Company which it alleges to be its principal.

At law, an agent's duty is to perform his mandate on behalf of his principal and he accounts to his principal. The agent's remuneration is paid by the principal and not by a third party.

I therefore take it, that, the moment an agent starts demanding payment from the third party and not from his principal, then, it means that he is no longer acting in terms of the contract between himself and his principal, but he would have created his own contract with the third party.

That contract he would have created with the third party is separate from his contract with his principal.

In casu, this is what the defendant did. It created its own contract with the plaintiff, which contract was separate from the one it had with Mediterranean Shipping Company.”

At page 12 of its judgment, the court, without commenting on the submission by the respondent, that, it now relied on a contract of depositum, concluded by stating:

“If there was no contract between the 2 companies, then, the defendant should and would have demanded its fee from Mediterranean Shipping Company which is its principal. If there was on (sic) contract, the defendant had no business demanding that money from the plaintiff. It also had no business withholding or refusing to release the plaintiff's container on the basis that the handling fee had not been paid. All the defendant's payments would have been due from Mediterranean Shipping Company. The plaintiff managed to prove that there was contract between itself and the defendant.”

Based on the above findings, the court concluded, that, the appellant had wrongfully refused to release the container and that the respondent had proved its contractual damages. It consequently made the order which is the subject of this appeal.

GROUNDS OF APPEAL

In its notice of appeal, the appellant raised five grounds. These are:

(i) The court a quo erred in finding, that, there was a contract between the appellant and the respondent when the latter was unable to identify the nature of the contract it relied upon and its terms – i.e. whether the contract was one of carriage, depositum, or agency.

(ii) The court a quo erred in finding, that, there was a contract between the appellant and the respondent despite a contrary indication in the Bill of Lading and the respondent's lack of knowledge of the terms of the contract it alleged.

(iii) The court a quo erred in placing the onus of proving the terms of the contractual relationship between the appellant and the respondent on the former, albeit obliquely.

(iv) The court a quo erred in finding that -

(1) The contract for the sale of the plastic bags between the respondent and Nedol Investments (Private) Limited was not a sham; and

(2) The loss suffered by the respondent, if any, was reasonably foreseen by the appellant at the time of the conclusion of the alleged contract, and, despite the fact that the reasonable foreseeability was not specifically pleaded and proved.

(v) The court a quo erred in finding that the respondent had mitigated its loss.

APPELLANT'S SUBMISSIONS BEFORE THIS COURT

In its submissions before this Court, the appellant has argued, that, the respondent did not sufficiently identify the nature of the contract between the parties, in particular, whether it was one of agency or depositum. The terms of the agreement, be it agency or depositum, remained unknown.

It further submitted, that, the case for the respondent was muddled and that the judgment of the court a quo was equally confusing and confused. Lastly, it submitted that whilst the facts show some relationship between the parties, the respondent had not proved the nature of the relationship that existed between them.

RESPONDENT'S SUBMISSIONS BEFORE THIS COURT

In its heads of argument, the respondent has submitted as follows:

Its declaration in the court a quo made it clear, that, what it sought was the release of its goods arising from their unlawful detention. Further, that, even if there was no contract of agency between the parties, the respondent “was not without a remedy” and that there was a tacit contract of depositum between the parties.

In paragraph 3 of its heads of argument, it has further stated:

“The respondent had contended that the claim was of a vindicatory nature and that any contract between the parties was one of depositum…,. As the appellant states, the court did not deal with these issues. It is here noted, that, by the time the matter came before the court, the goods had been released, and, if the claim had originally been vindicatory in nature, it no longer was, which was probably the reason why the court a quo allowed itself to be misled by the appellant to believe that the claim fell to be decided in contract.”…,.

At paragraph 10 of its heads of argument, the respondent has also stated:

“The absence of a contract, however, would not have left the respondent without a remedy because he would have a claim in delict for any loss incurred as a result of the unlawful possession of his property…,.”

Finally, at paragraphs 13 and 14 of its heads, the respondent has further argued:

“13. Thus, as the respondent's counsel contended at p239, the issue whether there was a contract between the parties was really of no consequence and the appeal cannot succeed on the basis that no such contract was brought into being.

The court a quo found, in effect, that, there was a tacit contract between the parties based on the fact, that, the appellant raised charges mentioned above against the respondent.”...,.

REQUISITES FOR PLEADING A CONTRACT

In an action based on a contract, the material averments that must usually be made are the existence of the contract, the relevant terms of the contract, and the applicability of those terms to the particular right forming the basis ex contractu of the claim: see HERBSTEIN & Van WINSEN, The Civil Practice of the High Courts of South Africa (5th edn, Juta and Co. Ltd, Cape Town 2009)…,.

Whether the contract of agency was proved

This was the basis of the respondent's cause of action before the High Court.

The respondent's managing director did not know the exact relationship between the appellant, Mediterranean Shipping, and Hong Kong Richer Int'l Group Limited (Richer International) of Hong Kong.

From the evidence, it is clear that the appellant was not involved in the transactions that took place in China. It does not conduct operations outside Zimbabwe. It only got involved, as agent of Mediterranean Shipping, in tracking the container once it landed in Beira and in having it transported to Mutare Dry Port.

It was also clear from the evidence, that, as agent of Mediterranean Shipping, the appellant was supposed to receive payment from Mediterranean Shipping for its role in checking the Bill of Lading and ensuring that the cargo was delivered to Mutare Dry Port. The appellant's managing director explained, however, that, it is the practice in Zimbabwe for the recipient to be billed directly by the appellant.

Clearly, no contract of agency was proved.

The fact that the appellant invoiced the respondent for handling fees does not, on its own, show the existence of a contract. The exact relationship that existed between the two parties was not established.

In the circumstances, the court a quo should have granted the application for absolution from the instance which was made at the close of the case for the plaintiff.

The court a quo accepted, that, the respondent had not produced documents to show the existence of a contract. The court further accepted, that, the respondent had entered into a shipping agreement with Mediterranean Shipping in Hong Kong and that the appellant was not involved.

The court also accepted, that, the appellant only got involved in supervising the movement of the container from Beira to Mutare at the behest of Mediterranean Shipping. The court further found, that, although the parties had been involved in these transactions over the years, the respondent did not know that the appellant was merely an agent of Mediterranean Shipping.

Having made these findings, that really should have been the end of the matter.

The suggestion, that, judging by the conduct of the parties, there must have been some other undefined contract between them, is not borne by the evidence. In any event, the court did not state what type of contract this may have been and what its terms were.

Of significance is the fact, that, the respondent itself accepted, in its closing submissions, that, its claim was not based on agency but rather on depositum.

Having abandoned its claim based on a contract of agency, it was not for the court a quo to find, as it did, that there was some other undefined contract. Once the respondent abandoned its pleadings, the court should have granted absolution from the instance.

The attempt by the respondent, to rely on the rei vindicatio and depositum, as well as delict, clearly confirms that the respondent had not established any real cause of action against the appellant.

HH11-13 : FLORENCE SIGUDU vs MINISTER OF LANDS AND RURAL RESETTLEMENT N.O. and PHINEAS CHIHOTA
Ruled By: PATEL J

The applicant in this matter seeks an order declaring the legality of her occupation of a piece of farmland in Seke District and the nullification of the consolidation of that land with an adjoining farm.

She also seeks the eviction of the second respondent and an order for costs against him.

The first respondent (the Minister) resists the application on the ground, that, the applicant's right to occupy the land was withdrawn.

The second respondent has not filed any notice of opposition and is accordingly in default.

The first respondent was required to file his heads of argument in March 2012, and, having failed to do so, was automatically barred.

However, there being no objection from the applicant, the bar imposed upon the first respondent was uplifted by consent, and his failure to file heads timeously was also condoned.

Any costs incurred by reason of his late filing of heads of argument are to be borne by the first respondent.

Background

In 2002, the Minister allocated Subdivision 2 of Denby Farm to the applicant through an offer letter dated 2 June 2002.

Thereafter, the applicant took occupation, prepared the land, moulded bricks for farm buildings, and purchased equipment in anticipation of commencing farming activities.

In 2005, the Provincial Lands Committee held a meeting chaired by the second respondent. The meeting took a decision to consolidate the applicant's farm (Subdivision 2) with the farm allocated to the second respondent (Subdivision 9) and further resolved that the applicant should vacate her farm.

The Minister's position is that the consolidation in dispute was procedurally effected and that the applicant's offer letter was automatically withdrawn because she had failed to comply with the conditions attaching to the offer of land.

It is common cause that there was no formal communication of the withdrawal to the applicant - even after a written request by her lawyers.

The applicant asserts, that, her right to occupy the farm has not lapsed or been legally terminated and therefore still subsists.

She also challenges the legality of the consolidation process as being tainted by bias and corruption, having been influenced by the second respondent for his own benefit.

Additionally, she contends that any offer letter or lease issued to the second respondent is not superior to her offer letter and cannot override her right to occupy the farm.

Issues for Determination

At the hearing of this matter, the applicant's counsel did not persist with his point in limine contesting the authority of the deponent to the opposing affidavit. Consequently, the following issues emerged for determination:

(a) Whether the applicant had duly complied with the conditions attaching to her offer letter.

(b) The legality of the process consolidating Subdivisions 2 and 9 of Denby Farm.

(c) Whether the first respondent was entitled, or empowered, to withdraw the offer letter.

(d) Whether the applicant's offer letter was duly withdrawn or cancelled.

(e) Whether the applicant's right to occupy still subsists and whether it is accordingly recognisable and enforceable.

Compliance with Conditions

The conditions applying to the applicant's offer letter required her to take up personal and permanent residence on the holding upon acceptance of the offer, which was to be communicated to the Minister within 30 days of receipt.

The applicant avers, that, she took occupation of the farm soon after it was allotted to her and confirmed her acceptance of the offer by notice dated 29 June 2002.

The Minister's deponent simply states, that, the applicant failed to take up residence or to occupy the land, without addressing her detailed averments as to the manner in which she took occupation.

On balance, I am satisfied that the applicant's evidence is to be preferred over the Minister's bare denial. I accordingly find, that, she did comply with the conditions of occupation stipulated in her offer letter.

Legality of Consolidation

According to the applicant's counsel, which position was not questioned by counsel for the first respondent, every Provincial Lands Committee is ordinarily chaired by the appropriate Provincial Governor.

The applicant's unchallenged evidence is that the relevant 2005 meeting of the Committee in casu was chaired by the second respondent, who, at that time, was a Deputy Minister.

That meeting decided to consolidate the applicant's farm with the farm allocated to the second respondent, and, further, resolved that the applicant should vacate her farm.

The applicant contends, that, the second respondent abused his influence in the Committee to push for the consolidation of the two farms.

The only response by the Minister's deponent is that “the second respondent is best placed to answer these averments.”

The second respondent himself has failed to oppose this application and has simply not bothered to deal with the serious allegations against him.

On the undisputed facts before me, the only inference that can reasonably be drawn is that the second respondent did use his position to influence the consolidation process and the consequent allocation of the consolidated land to himself.

There is no explanation as to why he chaired the meeting in question. Even if such explanation were to be availed, there is no doubt whatsoever that he simply should not have chaired that particular meeting of the Committee.

The basic tenet of our common law is that nemo debet esse judex in propria sua causa – no one should be an arbiter in his own cause.

This time-honoured precept is codified in section 27(1)(b) of the High Court Act [Chapter 7:06] and in section 3(1)(a) as read with section 5 of the Administrative Justice Act [Chapter 10:28].

This is so for the obvious reason, that, the proceedings of a public body or committee should be free from the possibility of bias and the attendant risk of its incumbents serving their own personal interests.

It follows, that, the decision of the Provincial Lands Committee, in 2005, to consolidate the applicant's farm with the second respondent's farm was vitiated by a fundamental irregularity. It was tainted ab initio and must therefore be declared a nullity.

See McFoy v United Africa Co. Ltd [1961] 3 All ER 1169 (PC)…,.; Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S)…,.

Power to Withdraw Offer Letter

One of the conditions attaching to the applicant's offer letter (and indeed all offer letters issued by the Minister) states, that, the offer may be cancelled or withdrawn for breach of any of the conditions set out therein.

The applicant's position in this regard, as elaborated by her counsel, is that the Minister can only exercise powers stipulated by statute. He cannot withdraw the offer in the absence of an explicit statutory power to that effect.

In principle, where the power to create, grant or do anything is conferred by statute, the administrative authority endowed with that power can only terminate, revoke, or undo that thing by or under that or another statute.

In any such case, any administrative action entailing the termination or variation of statutory rights that is not expressly or impliedly authorised by statute is ultra vires the enabling statute, and, consequently, unlawful.

Powers may be presumed to have been impliedly conferred because they constitute a logical or necessary consequence of powers which have been expressly conferred or because they are ancillary or incidental to those powers.

As regards implied powers generally, see BAXTER: Administrative Law (1984)…,.

What arises for determination herein is the existence or otherwise of a statutory basis for the creation and termination of rights granted by offer letters.

The standard offer letter in use under the Land Reform and Resettlement Programme (Phase II) states, that, the offer is made in terms of the Agricultural Land Settlement Act [Chapter 20:01].

However, no specific provision of the Agricultural Land Settlement Act is cited in this regard.

Turning to the Agricultural Land Settlement Act itself, Part III thereof regulates the settlement of agricultural land owned by the State.

Section 7 broadly enables the Minister of Lands to establish schemes or make other provision for, inter alia, the settlement of persons on and the alienation to such persons of agricultural land.

In terms of section 8, and subject to the Agricultural Land Settlement Act, the Minister may, for this purpose, issue leases to applicants in respect of holdings of land.

By virtue of section 9, no such lease may be issued to any applicant until the application has been referred to the Agricultural Land Settlement Board for its consideration and report under section 10.

Thereafter, section 11 provides for the issuance of a lease on such terms and conditions as may be fixed by the Minister.

Section 17(2) of the Agricultural Land Settlement Act specifically empowers the Minister to cancel the lease if the lessee fails to comply with any term or condition of his lease.

It is evident from these provisions, that, the settlement of land under the Agricultural Land Settlement Act is to be effected through the issuance of leases following investigations and reports by the Agricultural Land Settlement Board.

The Agricultural Land Settlement Act clearly does not contemplate the allocation of land for settlement through offer letters, either on their own or as precursors to formal leases. By the same token, the Agricultural Land Settlement Act does not entitle the Minister, or any other authority, to cancel offer letters or to terminate rights conferred thereunder.

The only statutory reference to offer letters is to be found in the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28].

The principal object of this Act is spelt out in its long title, viz. to make certain provisions that are consequential to the enactment of section 16B of the Constitution.

That section was introduced by Act No.5 of 2005 (Amendment No.17) and provided for the compulsory acquisition of all gazetted land. More particularly, section 16B(6) of the Constitution envisages an Act of Parliament making it a criminal offence for any person, without lawful authority, to possess or occupy gazetted land or other State land.

In keeping with this constitutional injunction, section 3(1) of the Gazetted Lands (Consequential Provisions) Act stipulates, that, no person may hold, use or occupy gazetted land without lawful authority.

The term 'lawful authority' is defined in section 2(1) of the Gazetted Lands (Consequential Provisions) Act to mean an offer letter or permit or land settlement lease, and the phrase 'lawfully authorised' is to be construed accordingly; while 'offer letter' means a letter issued by the acquiring authority that offers to allocate to the offeree any gazetted land described in that letter.

Section 6 of the Gazetted Lands (Consequential Provisions) Act validates any offer letter issued on or before the fixed date (i.e. the date of commencement of the Act) that is not withdrawn by the acquiring authority.

The object of all of these provisions is quite clear.

It is to endow the holder of a valid offer letter with the requisite lawful authority to hold, use, and occupy Gazetted land and thereby shield him or her from being prosecuted, convicted, and evicted under section 3 of the Gazetted Lands (Consequential Provisions) Act.

Beyond this, the Gazetted Lands (Consequential Provisions) Act does not provide for the actual allocation or settlement of Gazetted Land, whether by offer letter, permit, or lease. Nor does it provide for the cancellation or withdrawal of any such offer letter, permit, or lease.

It follows from all of the foregoing, that, there is no proper statutory basis for the creation or termination of rights granted by offer letters in general.

Their basis is essentially administrative and their existence or otherwise is consequently subject to purely administrative rules and discretion – which must, of course, be exercised lawfully, reasonably, and fairly, but, which are unavoidably open to the possibility of abuse and malpractice.

This is precisely what appears to have happened in this case.

I am constrained to add, that, this is not an entirely satisfactory basis for the implementation of the land reform programme generally.

It seems to me, that, the administration and allocation of land for resettlement purposes, whatever the modality or form of allocation, should be properly and effectively regulated, so as to create a land allocation regime that is clear, transparent, and accountable, and susceptible to judicial scrutiny to ensure due process and compliance.

This could be achieved by way of regulations framed either under the Agricultural Land Settlement Act [Chapter 20:01] or under the Rural Land Act [Chapter 20:18].

I am fortified in this view by the general proposition, that, there can be no power without the requisite authority.

As is explained by BAXTER: Administrative Law (1984)…, citing Municipality of Green Point v Powell's Trustees (1848) 2 Menzies 380…, and Roberts v Hopwood [1925] AC 578 (HL)…,.:

“Except in the case of an exercise of power under the prerogative, a public authority has no powers other than those which have been conferred upon it by legislation.”

As regards administrative practices evolved through directives, circulars, and the like, but without specific statutory authority, the learned author observes, at p399, that they are:

“Permissible, even desirable, for so long as they do not conflict in any way with the empowering legislation under which the public authority acts nor infringe legally protected rights and interests.

Such practices cannot themselves constitute authority for the infringement of rights and interests; the notion that the administration could constitute a self-generating source of authority is completely alien to the principle of constitutional legality.

It is true, that, administrative practice may shape the procedures adopted by public authorities, and this has been recognised by the courts. As such, however, customary practices do not constitute a source of authority which justifies the infringement of rights and interests; at best, they may be construed as necessary or incidental to the proper functioning of the public authority concerned, and, therefore, impliedly authorised by the empowering legislation anyway.

The claim that custom might constitute a source of administrative power in itself is unacceptable and has been at least since Entick v Carrington (1765) 19 St Tr 1029, and there is no judicial authority to support it.”

Whether Offer Letter Withdrawn or Cancelled

In terms of paragraph 3 of the conditions attaching to the applicant's offer letter, the offer may be cancelled or withdrawn for breach of any of the conditions set out in the letter.

In view of my earlier finding, that, the applicant did comply with the requisite conditions, there does not appear to have been any valid ground entitling the Minister to cancel or withdraw the offer made to the applicant.

Even if any such ground did exist, it is abundantly clear that the Minister did not take any specific steps to cancel or withdraw the offer.

The undisputed facts are that the offer was never formally terminated.

The applicant was not given any notice of any alleged breach of the conditions of offer. Nor was there any formal notice or communication of the offer having been withdrawn; and there is absolutely nothing in the opposing papers to suggest otherwise.

The Minister's argument, that, the offer was automatically withdrawn, simply cannot be accepted.

As I have already stated above, the power to withdraw or cancel an offer of land must be exercised lawfully and procedurally, and this quite obviously necessitates the giving of due notice to the holder of the offer letter.

It follows, that, the procedure for cancellation or withdrawal, in accordance with the conditions set out in the applicant's offer letter, was never followed.

Whether Right to Occupy Subsists and is Enforceable

The ineluctable conclusion from all of the foregoing is that the applicant's right to occupy the farm allocated to her has not lapsed or been lawfully terminated and therefore still subsists.

It is accordingly duly recognisable and fully enforceable.

See in this respect the remarks of CHIDYAUSIKU CJ in Commercial Farmers Union & Others v Minister of Lands and Rural Resettlement & Others SC31-10…, highlighting the duty of the courts to assist the holders of offer letters, permits, and land settlement leases.

At the end of her submissions, counsel for the Minister quite correctly conceded, that, there was no basis for resisting the declaratory and consequential relief sought by the applicant.

Disposition

As regards costs, the applicant claims costs on the ordinary scale as against the second respondent.

Given the latter's highly questionable and irregular role in the consolidation of his farm with that of the applicant, there appears to be no reason for declining the applicant's claim for costs against him.

In the result, it is hereby declared that:

(a) The applicant is lawfully authorised and entitled to be in occupation of Subdivision 2 of Denby Farm in Seke District of Mashonaland East Province in terms of the offer letter issued to her by the first respondent on the 2nd of June 2002.

(b) The purported consolidation of Subdivisions 2 and 9 of Denby Farm in Seke District of Mashonaland East Province by the first respondent's officials is null and void.

Furthermore, it be and is hereby ordered that:

(c) The second respondent shall give vacant occupation of Subdivision 2 of Denby Farm in Seke District of Mashonaland East Province to the applicant, failing which the Deputy Sheriff is hereby authorised and directed to evict the second respondent and give possession of the farm to the applicant.

(d) The second respondent shall pay the costs of this application.

SC15-17 : LIFORT TORO vs VODGE INVESTMENTS (PVT) LTD and MANYAME RURAL DISTRICT COUNCIL and MINISTER OF LANDS AND RURAL RESETLEMENT
Ruled By: ZIYAMBI JA, BHUNU JA and UCHENA JA

On 7 November 2016, we, after reading documents filed of record and hearing counsel's submissions, upheld the appellant's appeal and granted the following order:

“1. The appeal be and is hereby allowed with costs.

2. The judgment of the court a quo is set aside and substituted with the following:

“The application is dismissed with costs.”

We indicated that detailed reasons for granting that order would follow. These are they.

The appellant (Lifort Toro) is a beneficiary of the Land Reform Programme. He was allocated an A2 Farm Subdivision 1 of Beatrice Central.

The first respondent, Vodage Investments (Pvt) Ltd, is a company registered in terms of the laws of Zimbabwe. Despite several suspicious details in the agreement on which it relies, it claims to be a holder of a lease to buy agreement entered into between it and Manyame Rural District Council (the second respondent), in respect of the same piece of land allocated to the appellant.

The third respondent is the Minister of Lands and Rural Resettlement. He allocated the land in dispute to the appellant.

The land in dispute was, by Proclamation 3 of 2012, S.I. 115 of 2012 incorporated into Beatrice Urban area which is administered by the second respondent.

By letter dated 10 June 2013, the third respondent handed over the land in dispute to the Minister of Local Government, Rural and Urban Development.

It is now urban land which cannot be allocated for agricultural purposes.

It is common cause, that, the third respondent conceded that he no longer has authority over the disputed land. It is obvious that the appellant will, eventually, have to leave that piece of land. The third respondent has, in view of the changed circumstances, offered him another piece of land.

The first respondent issued summons in the Magistrate's Court for the eviction of the appellant. The appellant entered appearance to defend. The first respondent applied for summary judgment which the appellant opposed.

The appellant's opposition was premised on the first respondent's lack of locus standi to evict him.

He argued, that, the first respondent, being a lessee who had not taken occupation, had no locus standi to evict him.

In determining the application for summary judgement, the magistrate, at pp4 to 5 of his judgment, said:

“Based on that authority, I agree that the applicant does not have the locus standi to evict the second respondent but that it is the acquiring authority who (sic) does. I therefore feel that the application for summary judgment should not be granted, as applicant does not have the locus standi to institute these proceedings.”…,.

After the tag of incapacity to institute eviction proceedings had been placed on it, the first respondent made a subsequent application to the High Court for the eviction of the appellant.

The appellant opposed the application on the basis, that, the dispute between them was res judicata, that, there were material disputes of fact which could not be resolved through the application procedure, and, that the applicant did not have locus standi to institute eviction proceedings against him.

The High Court held, that, the issue of the appellant's eviction by the first respondent was not res judicata, and that, the first respondent had locus standi to evict the appellant.

It granted the first respondent's application for eviction without determining whether or not there were material disputes of fact which could not be resolved through the application procedure.

The appellant appealed against that decision to this court. He, in his grounds of appeal, submitted that the court a quo erred in the following respects:

1. In holding, that, the issue of his eviction by the first respondent was not res judicata.

2. In holding, that, the first respondent had locus standi to evict him.

3. By not determining the issue of there being material disputes of fact which cannot be resolved through the application procedure.

I deal with each ground in turn.

1. RES JUDICATA

Counsel for the appellant submitted, that, the Magistrate's decision, that the first respondent did not have locus standi to evict the appellant, extinguished the first respondent's claim to evict the appellant. She relied on the cases of Nyaguwa v Gwinyayi 1981 ZLR 25 and Chimponda & Anor v Muvami 2007 ZLR (2) 326.

Counsel for the first respondent supported the court a quo's decision, that, the Magistrate's decision was “founded purely on adjectival law, regulating the manner in which the court is to be approached for the determination of the merits of the matter.”

I do not agree.

The tag of incompetence placed on the first respondent by the Magistrate is definitive and final until set aside by a competent court. The High Court had no authority to set it aside as it was not sitting as a Review or an Appellate Court.

In Nyaguwa v Gwinyayi 1981 ZLR 25 PITMAN J…, said:

“I was of the opinion, that, in this country, each court is a creature of statute, and its powers are created and defined by statute. The function of every Civil Court is to recognize what it believes to be the rights of the parties before it. Once a Civil Court has given such recognition, that recognition must be accepted by each of the other courts, whatever its relative position in the hierarchy of courts may be, unless authority to overrule such recognition has been conferred upon it by statute. If one court were to claim that it has some inherent power to overrule another court, instead of a power specifically created by statute, in effect it will be claiming the power to nullify the body of statute law which specifically relates to the establishment and powers of each of the civil courts in the country. As no power to over-rule the decisions of magistrate's courts has been vested in the General Division of the High Court, I considered that this court could not grant the order sought by the petitioner.”

The High Court, sitting as a court of first instance, does not have authority to disregard or overrule extant decisions of the Magistrates Court.

The court a quo should therefore have declined to determine the already determined issue of the first respondent's locus standi to evict the appellant while the decision of the magistrate remained extant.

The court a quo failed to appreciate, that, the first respondent's application was aimed at seeking a re-determination of the first respondent's locus standi to evict the appellant or the avoidance of the magistrate's determination of that issue.

The failure to appreciate the nature of the application led to its failure to realize, that, it had no authority to overrule the magistrate's definitive finding that the first respondent had no locus standi to evict the appellant.

In the case of Chimponda & Anor v Muvami 2007 ZLR (2) 326 MAKARAU JP…, said:

“The requirements for the plea of res judicata are settled. Our law recognizes, that, once a dispute between the same parties has been exhausted by a competent court, it cannot be brought up for adjudication again as there is need for finality in litigation. To allow litigants to plough over the same ground hoping for a different result will have the effect of introducing uncertainty into court decisions and will bring the administration of justice into disrepute.

For the plea to be upheld, the matter must have been finally and definitively dealt with in the prior proceedings.

In other words, the judgment raised in the plea as having determined the matter must have put to rest the dispute between the parties, by making a finding in law and/or in fact against one of the parties on the substantive issues before the court or on the competence of the parties to bring or to defend the proceedings. The cause of action as between the parties must have been extinguished by the judgment.

A judgment founded purely in adjectival law, regulating the manner in which the court is to be approached for the determination of the merits of the matter, does not, in my view, constitute a final and definitive judgment in the matter. It appears to me that such a judgment is merely a simple interlocutory judgment directing the parties on how to approach the court if they wish to have their dispute resolved.”…,.

A determination by the magistrate on the competence of the first respondent to institute eviction proceedings against the appellant is not a finding in adjectival law regulating the manner in which the court is to be approached for the determination of the merits of the matter. It is a final and definitive determination barring the first respondent from instituting proceedings on the same cause of action against the appellant. Such a finding finally and definitively determines the capacity of a litigant to institute or defend the same cause of action before the courts.

The court a quo failed to distinguish between the magistrate's dismissal of the application for summary judgment, which could be interlocutory, from the reason for the dismissal, which is definitive and finally closes the door to the first respondent due to legal incompetence to litigate over the appellant's eviction.

The magistrate's judgment remains extant.

The first respondent could not, therefore, be entertained by any court on this issue, except on appeal or review, against the magistrate's decision that it had no locus standi to evict the appellant.

2. Whether the first respondent has locus standi to evict the appellant

The issue of locus standi was improperly before the court a quo because it was res judicata. It had been finally and definitively determined by the Magistrate's Court, and remains so determined until that decision is upset by a properly constituted Review or Appellate Court.

The court a quo should not have made a determination on that issue.

This Court, sitting as an Appellate Court over the High Court's decision, cannot pronounce itself over a matter which is not properly before it and over which there is an extant judgment which has not been appealed against.

The court a quo therefore erred when it determined an issue which was res judicata.

SC48-23 : WONDER DUBE vs KEITH MATSEKA
Ruled By: BHUNU JA

This is an opposed chamber application for reinstatement of an appeal under case number SC166/22. The application is brought consequent to the applicant's failure to file his heads of argument within the prescribed time limits.THE LAWThe legal requirements for the application to succeed are well known. In Apostolic Faith Mission ...

THE LAW

The legal requirements for the application to succeed are well known. In Apostolic Faith Mission & Two Ors v Murefu SC28–03, the court held that the applicant must satisfy the court that:

(a) He has a reasonable explanation for the delay.

(b) He has reasonable prospects of success on appeal.

A Judge sitting in chambers is duty bound to interrogate the application and be satisfied, that, one or other of the essential requirements stipulated by law have been met before the application can succeed.

I now proceed to determine whether the two requirements for the application to succeed have been met....,.

WHETHER THE APPLICANT HAS REASONABLE PROSPECTS OF SUCCESS ON APPEAL

In disposing of the above issue, it is necessary to give a brief resume of the facts so as to gain an insight into the applicant's prospects of success on appeal.

The brief facts, as outlined in the court a quo's judgment, are, by and large common cause.

The respondent issued summons in the Magistrates Court for the eviction of the applicant and all those claiming occupation through him from Stand Number 1, Village 5, Central Estates, Mvuma. The respondent's case was that he had been allocated the Stand in 2000 and was later granted an offer letter on 20 February 2004.

He claimed that the applicant unlawfully occupied part of his Stand in 2002.

The applicant opposed the claim on the basis, that, he was not occupying any portion of Stand Number 1, but, was actually occupying Stand Number 2 of which he is the owner. The respondent could not, therefore, evict him from his own Stand.

Upon consideration of the evidence before him, the magistrate made a factual finding, that, Stand number 1 was allocated to the respondent whereas Stand number 2 was allocated to the applicant. The applicant had, however, encroached onto the respondent's land thereby triggering the dispute. On the basis of such finding, he granted the respondent's claim and ordered the applicant's eviction from the disputed piece of land adjudged to be part of Stand number 1.

The magistrate's judgment was premised on a map adduced in evidence and an inspection in loco the court carried out.

Upon consideration of the totality of the evidence before him, the magistrate concluded, that, the applicant was occupying Stand Number 1, not Stand Number 2 that was allocated to him. He found, that, the applicant was occupying a piece of land that is between waterways when Stand Number 2 is beyond the second water-way.

The court observed, that, the District Administrator, who had testified in favour of the applicant, was not a credible witness.

Aggrieved, the applicant appealed to the High Court (the court a quo) without success.

On appeal, he challenged the authenticity of the map produced by the respondent in evidence. He contended, that, the provisions of the Land Survey Act [Chapter 20:12] should have been followed. He stated, that, the undisputed facts are that the land in question was surveyed and beacons installed; the beacons should, therefore, have been located to resolve the dispute. He argued, that, the beacons had to be located by a land surveyor.

He further challenged the jurisdiction of the presiding magistrate to hear and determine the matter on the basis, that, the dispute ought to have been resolved by the Land Commission since it involved the extent of boundaries. He further challenged the Magistrates Court jurisdiction on the basis, that, the amount involved exceeded the Magistrates Court jurisdiction.

In the court a quo, he accordingly sought an order setting aside the judgment of the Magistrates Court and that the matter be referred for a fresh trial in the Magistrates Court.

His quest, in this respect, found no favour with the court a quo.

On the other hand, counsel for the respondent countered, that, the applicant had failed to place before the court a quo evidence tending to show, on a balance of probabilities, that, the right of occupation in issue exceeded $2,000 so as to oust the trial magistrate's jurisdiction. He further submitted, that, both the trial magistrate and the court a quo had the necessary jurisdiction to hear and determine the matter. It was contended on his behalf, that, both courts properly assessed the evidence before them and came up with the correct decision.

On the question of jurisdiction, the court a quo found, that, the issue of jurisdiction had never been raised before the trial magistrate. It thus held, that, it was improper for the applicant to raise the issue of jurisdiction for the first time on appeal.

The court, however, went on to hold that the Magistrates Court had jurisdiction to preside over the dispute as it was not being called upon to determine boundaries between the two pieces of land in dispute.

It further found, that, the issue of the map was not relevant for the resolution of the dispute. Consequently, the Land Survey Act was not relevant. The court a quo also found, that, the argument that the District Administrator was not aware of the inspection in loco was unmeritorious since the court does not need permission from anyone to carry out an inspection in loco.

The applicant was dissatisfied by the decision of the court a quo.

He noted an appeal to this Court. He however failed to file heads of argument timeously. As a result, the appeal was deemed abandoned and was accordingly dismissed.

The applicant therefore turned to this Court, in chambers, for the reinstatement of the appeal.

ANALYSIS AND DETERMINATION

Given the circumstances of this case, it is difficult to discern the basis on which the court a quo determined, that, the dispute did not concern the issue of boundaries considering that the cardinal issue for determination was whether or not the applicant had encroached onto the respondent's land.

In that light, it is difficult to say off hand the question of using the relevant maps and pegs, if any, was irrelevant.

The question as to whether the Land Survey Act [Chapter 20:12] is applicable to this case is a matter to be interrogated and determined by the Appellate Court.

Initially, I had misgivings about the veracity of the merits of the applicant's case.

After a further scrutiny of the matter, I am left with no doubt that there is an arguable case on appeal. On that score, I take the view, that, the applicant has an arguable case on appeal.

View Appeal
HH533-21 : PETROMOC EXOR (PVT) LD and KUDZANAI CHIMEDZA vs KUDZANAI CHIMEDZA and PETROMOC EXOR (PVT) LTD and OTHERS
Ruled By: MANGOTA J

I heard this application on 1 July 2021. I struck it off the roll with costs. On 1 July 2021, the applicant's legal practitioners wrote to the Registrar of this court. They requested written reasons for my decision.

These are they:

The applicant (Petromoc Exor (Pvt) Ltd) premised its application on a lease which it claimed it signed with the third respondent (Ministry of Lands, Agriculture, Water Climate and Rural Resettlement).

The lease, it alleged, was to endure from 17 July 2019 to 31 June 2024. It stated, that, it leased Duncombe Fuel Filling Station (“the property”) from the third respondent. The lease excluded the Bulk Fuel Reservoir, according to it. It moved me to:

(i) Declare it to be the lawful lessee and occupier of the property;

(ii) Interdict the first and second respondents (Kudzanai Chimedza and Cranrid Petroleum (Pvt) Ltd) from occupying the property; and

(iii) Evict the mentioned respondents from the property.

The first respondent opposed the application.

He placed reliance on his Annexure 'A' in terms of which the Provincial Lands Officer for Mashonaland Central Province recommended that he be allowed to rent the property.

He alleged, that, he concluded a lease of the property with Mazowe Rural District Council, which, according to him, derived its mandate to lease the property to him from the third respondent.

He challenged the authenticity of the lease Annexure 'B' which the applicant allegedly concluded with the third respondent on 17 July 2019.

He moved me to dismiss the application with costs.

The property which is the subject of this application is situated a Duncombe Farm which is in the district of Mazowe. The farm was acquired by Government on 18 January 2002. It was acquired in terms of Government Gazette Extraordinary Vol. LXXX No.5.

It follows from the stated fact, that, any person who occupies the whole, or any portion of the farm can only do so with the lawful authority of the Government of Zimbabwe. He should, in other words, be in possession of any of the documents which are mentioned in section 2 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] (“the Act”). These comprise:

(a) An offer letter; or

(b) A permit; and/or

(c) A land settlement lease.

The question which begs the answer is: which authority in Zimbabwe has the power to issue any of the abovementioned documents to natural persons or legal entities who or which intend to possess or occupy the whole, or a portion, of State land?

The interpretation section of the Gazetted Land (Consequential Provisions) Act provides a partial answer to the same.

It defines the phrase 'acquiring authority' to mean the Minister responsible for land or any other Minister to whom the President may, from time to time, assign the administration of the Gazetted Land (Consequential Provisions) Act. It defines the phrase 'offer letter' to refer to the offer letter which is issued by the acquiring authority to any person that offers to allocate to that person any gazetted land or a portion of gazetted land described in that letter.

A land settlement lease is provided for in the Agricultural Land Settlement Act [Chapter 20:01]. Section 8 of the same confers power on the Minister to issue leases to interested applicants. It reads:

“8. The Minister may, subject to this Act, issue leases to applicants in respect of holdings of land.”

It defines the word 'Minister' to mean the Minister of Lands and Water Resources or any other Minister to whom the President may, from time-to-time, assign the administration of the Agricultural Land Settlement Act.

It is clear from a reading of section 2 of the Gazetted Land (Consequential Provisions) Act as read with section 8 of the Agricultural Land Settlement Act, that, the power to issue offer letters and/or leases is confined to no one else but the Minister.

The legislature spoke clearly and loudly on this matter.

It did not allow the Minister, to whom it conferred the authority to issue offer letters or leases to applicants, to delegate his authority of issuing offer letters and/or leases to officials who work under his supervision in a Ministry in which he is the Minister.

Perhaps, the legislature intended to avoid such situations as the first respondent is portraying when it restricted the issuance of offer letters and land settlement leases to no one else but the Minister whom the President appoints for purposes of dealing with land matters.

Judicial notice is taken of the fact, that, land is a very emotive issue. It caused, and still causes, many people to perish in wars which have or are aimed at asserting their rights in this very valuable but also very finite God-given resource.

It occurs to me, that, when the legislature conferred the power to issue offer letters and land settlement leases to the Minister who is responsible for land, or to any other Minister whom the President appoints for the purposes of dealing with land matters, its clear intention was to ensure consistency as well as to avoid unnecessary wars, disputes, and/or litigation.

Because the legislature spoke in a clear and unambiguous language, on the point which relates to the authority which has the power to issue offer letters and land settlement leases, its language cannot be misconstrued at all. It should, in other words, be taken as it appears in the statute books which I have already referred to.

It rides on the known and accepted principle which states, that, the mention in a statute of one thing excludes the other or other things.

Annexure “B” which the applicant attached to its application, shows, that, it applied to lease the property for fuel distribution. Reference is made in the mentioned regard to p42 of the record. The following officers, it is observed, supported the application:

(i) The district land officer;

(ii) The provincial estate management officer; and

(iii) The chief land officer.

The lease, Annexure 15, which the applicant attached to its founding papers, appears at pages 11 to 18 of the record. It states, at p11, that, the Minister of Lands, Agriculture, Water and Rural Resettlement entered into an agreement of lease with the applicant.

The lease, it is pertinent, constitutes the applicant's cause of action against the first and second respondents.

It was not, however, signed by the Minister as per the provision of the law. It was signed by the Under-Secretary for Rural State Land. He signed it for and/or on behalf of the Minister.

The long and short of the observed matter suggests, that, the Minister issued the lease to the applicant through the Under Secretary, presumably of the Ministry which the Minister supervises.

The question which begs answer is; does the Minister have the power, at law, to issue an offer letter or a land resettlement lease through an official who works in his Ministry? Does he, the question goes, have the power to delegate to the Under-Secretary his authority to issue the land resettlement lease to such persons as the applicant?

The answer is definitely in the negative.

The same question, viewed from a different perspective, is: does the Under Secretary have the power, at law, to sign the lease for and on behalf of the Minister?

The answer is that he does not have such power.

It is pertinent to note, that, when the legislature enacted the sections which confer power or authority on the Minister to issue offer letters and leases, it made a clear distinction between the Minister, on the one hand, and officers who work under his supervision, on the other. It also made a clear division of labour between them. It realized, that, the Minister, as a natural person, cannot work alone. It remained alive to the fact, that, officers who work under the supervision of the Minister come in handy to do the ground work for the Minister's attention.

The recommendations which the District Lands Officer, the Provincial Estate Management Officer, and the Chief Lands Officer, for instance, made, in regard to the application of the applicant, should have assisted the Minister in his decision to offer, or not to offer, the land settlement lease to the applicant.

The work of the officers, therefore, terminates at the recommendation stage.

It leaves the Minister to read their recommendation, as well as to place reliance upon it, and to issue the lease to the applicant.

The decision and action of issuing the lease rest with no one else but him.

The act of issuing offer letters and/or leases to prospective applicants for land excludes officers of the Ministry. The law does not confer any power on them to issue those documents.

It goes without saying, that, the lease which the Under-Secretary issued is not valid. It has no legal force or effect. It violates clear provisions of the law.

The Under Secretary cannot issue any lease to anyone, let alone to the applicant. He has neither the power nor the authority to do so. The Minister has neither the power nor the authority to allow the Under-Secretary to issue the lease to the applicant. He cannot delegate the responsibility which is reposed in him to the Under Secretary.

The mandate to issue the offer letter or the lease lies with no one else but the Minister.

Because the lease is the main reason for this application, its efficacy requires further scrutiny. That is pertinent, because, I must be satisfied, that, the applicant managed to prove its case on a balance of probabilities.

Further examination of the lease reveals a number of incongrous features.

The applicant, it is observed, is a legal entity. It, therefore, has no eyes to see or ears to hear, or mouth to speak; or hand to sign or write any documents(s) which relate(s) to any agreement(s) which it concludes with anyone person – natural or fictitious.

The parties to the lease appear at p11 of the record.

The applicant's name is shown as it appears on its certificate of incorporation. The natural person who negotiated the terms of the lease with the Under Secretary remains un-mentioned and therefore unknown.

The natural person who signed the lease for and on behalf of the applicant remains unknown. In fact, the signature which appears under the designation leasee does not show if the signatory signed on his own behalf or on behalf of the applicant.

The applicant, as a legal entity, could not have signed the lease at all.

Some natural person, who remains unknown, signed, - not for the applicant though. He does not indicate if he signed in his own right or in a representative capacity.

One is left to wonder if the applicant, which is a fictitious person, had the capacity to sign the lease.

It is for the mentioned reason, if for no other, that, the first respondent was quick to cast doubt on the authenticity of the lease which the applicant attached to its application.

The fact that the lease was not legible, from pp13 to 18, did not work in the applicant's favour at all.

As the dominus litis party, the applicant should have availed to me a lease whose contents were/are legible. It should not have attached a document the contents of which made no sense and expected me to make sense out of them. The lease was/is after all, the backbone of its case. It should, therefore, have allowed it to make sense to the decision-maker.

I mention, in passing, that, a matter which is not sustainable on a balance of probabilities, but, which is not so hopeless as to warrant an outright dismissal, is, more often than not, struck off the roll.

It is struck off the roll because it is fatally defective.

The fatal defects which are inherent in it leave the court with no choice but to treat it as such. In doing so, the court will be communicating three very important matters to the applicant for the latter's benefit. These are that:

(i) Its case contains fatal defects which must be cured by the applicant before it can be seriously considered; and/or

(ii) The case cannot, owing to other considerations, be dismissed right away; and/or

(iii) Where the fatal defects have been timeously corrected, the applicant can, within ninety-days, which are calculated from the date its application was struck off the roll, reinstate its application for consideration.

The case of the applicant contains fatal defects. It cannot, because of them, see the light of day. The defects leave me with no choice but to strike it off the roll with costs.

It is, therefore, so ordered.

SC63-23 : FUNGAI NHAU and JOSEPH MUSIKA HOUSING CO-OPERATIVE vs FAITH MINISTRIES CHURCH and MINISTER OF LOCAL GOVERNMENT PUBLIC WORKS AND NATIONAL HOUSING
Ruled By: MAVANGIRA JA, BHUNU JA and CHIWESHE JA

This is an appeal against the whole judgment of the High Court (the court a quo) which granted an eviction order to the respondent against the appellant and all those claiming occupation through him with costs.BACKGROUND FACTSThe first respondent is a church organization whereas the appellant is a member of ...

BACKGROUND FACTS

The first respondent is a church organization whereas the appellant is a member of a housing co-operative known as Joseph Musika Housing Cooperative. Although the Housing Cooperative was a party to the proceedings in the court a quo, it has not appealed against the court's judgment against it.

The second respondent is a Government Minister and owner of the State land in dispute. The disputed piece of land is commonly known as Stand Number 16549 Hatcliff, Harare (the Stand).

On 25 April 2014, the first respondent successfully applied for a lease of the Stand from the second respondent for use as a church site. The second respondent granted the first respondent a lease agreement on 15 April 2019 in respect of Stand Number 16549 Hatcliffe, Harare. A copy of the lease agreement was adduced in evidence as Annexure C.

Notwithstanding the issuance of the lease agreement to the first respondent, the appellant took occupation of the same land under the auspices of his housing co-operative. He thereafter denied the first respondent access to the Stand.

The appellant claims lawful occupation of the Stand through his membership of the Housing Co-operative which made an application to the second respondent for land for residential Stands in collaboration with the appellant.

The Minister acknowledged the application for land by the co-operative.

On 14 September 2017, he wrote to the appellants requesting them to furnish a properly drawn diagram showing the existing development and pay the requisite fees.

There was no compliance with the Minister's request.

The Minister then turned to the respondent and accepted its application for a lease.

The appellant however argued, that, he had a legitimate expectation to be allocated the Stand following the Minister's acknowledgment of receipt of their application and his request for diagrams and payment of the necessary fees.

FINDINGS BY THE COURT A QUO

The court a quo found, that, the first respondent had a real and substantial interest in the matter as lease holder to the disputed property. It further found, that, there was no material dispute of fact hindering the court from determining the application on the papers before it.

It found no merit in the appellant's assertion, that, the first respondent's lease agreement was fraudulent. The learned judge a quo determined that, apart from a bald assertion, there was no evidence to support the applicant's averment that the lease agreement was fraudulent.

Placing reliance on the presumption of validity of Government documents, he held that the first respondent's lease agreement is authentic and valid.

The court a quo found no merit in the appellant's plea of legitimate expectation. It held, that, the appellant had only occupied the Stand in 2020 and not 2012 as he claims.

On the basis of such findings of fact and law, the court a quo upheld the first respondent's application for eviction and issued the following order:

“IT IS ORDERED THAT:

1. The first and second respondents, and all those claiming occupation through them, be and are hereby ordered to vacate Stand Number 16549 Hatcliff, Harare within seven (7) days from the date of this order.

2. Should the first and second respondents, and all those claiming occupation through them, fail to comply with paragraph 1 above, the Sheriff of the High Court be and is hereby ordered to evict them forthwith and demolish any structures erected at No.16549 Hatcliff, Harare.

3. The first respondent be and is hereby ordered to pay costs of suit on an ordinary scale.”

Aggrieved, the appellant appealed to this Court on the following three (3) grounds of appeal:

“1. The court a quo erred and misdirected itself in holding, that, the appellants took occupation of the land in question in 2020 instead of 2012 resulting in the court granting the order of eviction under the mistaken belief that the appellants took occupation of the land when the respondent had already been granted a lease by the second respondent.

2. The court a quo erred and misdirected itself in holding, that, no dispute of facts existed in the matter, when it was clear that the parties were not in agreement as to when the appellants took occupation of the land and which exact piece of land the appellants were in occupation of.

[3] The court a quo erred and misdirected itself in failing to uphold the appellant's argument that a legitimate expectation had been created, hence, the third respondent could not have proceeded to issue a lease to a third party in respect of the same piece of land, in clear breach of the legitimate expectation it had created.”

On the basis of the above grounds of appeal, the appellant prayed for the setting aside of the court a quo's judgment and its substitution with an order dismissing the applicant's application.

ANALYSIS AND DETERMINATION OF THE APPEAL

The grounds of appeal raise one issue for determination as to whether the court a quo correctly ordered the eviction of the appellant from the Stand.

The facts clearly establish, that, the appellant did not apply for land to the Minister in his own right. It is the co-operative which applied for land for distribution to its members.

There was therefore no contractual link between him and the Minister.

He looked forward to be allocated his portion of the land, not by the Minister but by the co-operative, by virtue of his membership of the association.

In the absence of a contractual relationship between the Minister and the appellant, no rights or obligations arose between them in relation to the co-operative's application for land.

In legal parlance, there was no privity of contract between them.

In the absence of a contractual relationship between the appellant and the Minister, the appellant could not hold the Minister to account for the lease agreement he concluded with the first respondent in respect of the Stand. No legitimate expectation could arise in the absence of any contractual relationship between them.

It is only the co-operative, which had applied for land to the Minister, which could raise the issue of legitimate expectation.

The co-operative swept the rug from underneath the appellant by failing to appeal against the judgment of the court a quo. This is because the appellant claims to occupy the disputed Stand through the cooperative. Its failure to appeal means, that, it has capitulated and that leaves the appellant with no leg to stand on as he was riding on the back of the co-operative in his claim for legitimate occupation of the Stand.

The learned judge a quo was undoubtedly correct in holding, that, the first respondent is the rightful lessee of the Stand by virtue of its valid lease agreement with the owner of the Stand.

The appellant's futile attempt to impugn the respondent's lease agreement, on the basis of fraud, was correctly dismissed.

Considering that the appellant had no lease agreement with the owner of the Stand or legitimate expectation to lawfully occupy the Stand, it was an exercise in futility to challenge a lawful contract, to which he is not a privy, on the basis of a mere application to occupy the same land.

To make matters worse, he admitted that he was in unlawful occupation of the land, but, sought to sugar the pill by saying that he was in the process of regularizing his unlawful occupation of the Stand.

The learned trial judge drives the point home when he says in conclusion:

“The issue of regularization, as per annexure A, B and C does not prove anything other than a process meant to acquire a Stand. There is nowhere in the record which shows the respondents (appellant) were ever given any right of occupation by the third respondent (the Minister). This Court wonders why the two respondents decided to oppose this application. They were supposed to pursue their application to the third respondent to its logical conclusion than interfering with the applicant's undisturbed, peaceful possession of the said property.”

There is merit in the learned judge's sentiments.

A mere application for land does not strip the owner of the land of the rights of ownership of the land. Thus, a mere application, until such time it succeeds, is no bar to the land owner from leasing the land before the application has succeeded.

In the circumstances of this case, this was a matter eminently suited for disposal on the papers. The points in limine raised were red herrings meant to throw spanners into the works.

The first respondent clearly had an interest to protect its lease agreement and the rights flowing from the lease. The appellant, having admitted that there was no binding contract between him and the owner of the Stand, he raised no further argument that could have rendered the matter incapable of resolution on the papers.

In the result, I hold that there is absolutely no merit in this appeal. It is accordingly ordered, that, the appeal be and is hereby dismissed with costs.

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Vindicatory Action or Rei Vindicatio re: Possessory Rights

HH25-12 : TAFIREYI NYIKADZINO vs JOHN ASHER and MINISTER OF LANDS & LAND RESETTLEMENT and DEPUTY SHERIFF HARARE
Ruled By: BHUNU J

HH40-09 : DODHILL (PVT) LTD and SIMON KEEVIL vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and NYASHA CHIKAFU
Ruled By: BERE J

SC20-19 : GRACE SHURO vs MOLLY CHIURAISE and CITY OF MASVINGO
Ruled By: GARWE JA, HLATSHWAYO JA and BHUNU JA

HB02-12 : MUNICIPALITY OF VICTORIA FALLS vs LOIDA NYATHI and 11 OTHERS
Ruled By: NDOU J

HH173-17 : F. MUTATA and OTHERS vs THE MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND URBAN DEVELOPMENT
Ruled By: CHITAKUNYE J and NDEWERE J

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

SC40-15 : INDIUM INVESTMENTS (PVT) LTD vs KINGSHAVEN (PVT) LTD and DANIEL SHUMBA and LINDA SHUMBA
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GOWORA JA, HLATSHWAYO JA and MAVANGIRA AJA

HH90-10 : LOCAL AUTHORITIES PENSION FUND vs F & R TRAVEL TOURS AND CAR SALES (PVT) LTD and FREEJOY CHIGWIDA and RAPHAEL MAKWARA
Ruled By: MAKARAU JP

HH99-10 : CRAIG ROBINSON vs ROBERT ROOT PROPERTY CONSULTANTS and HAMMER AND TONGUES (PVT) LTD
Ruled By: MAKARAU JP

HH91-09 : SANANGURAI GWARADA vs KEVIN JOHNSON and MR WILLIAMSON and BERNARD CHOTO
Ruled By: GOWORA J

HMA18-19 : BRIAN GAVA vs CHAMISA MAWERE and CHAMPION CHAKANETSA (as Executor of Estate Late Claudio Chakanetsa) and MISHECK MIZEKE and MESSENGER OF COURT – GWERU and CITY OF GWERU and REGISTRAR OF DEEDS – BULAWAYO N.O.
Ruled By: MAFUSIRE J

HMA21-19 : MR MBOZVI vs CHENGETAI SIDHUNA
Ruled By: MAWADZE J and MAFUSIRE J

HH48-12 : ENOCK GOVHA vs ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDA REBECCA MINE and ANOR
Ruled By: MATHONSI J

HH103-12 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED T/A FREDA REBECCA MINE vs TATENDA TAKAVADA
Ruled By: MUTEMA J

HH271-13 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDDA REBECCA MINE vs NYASHA MUTENGWA
Ruled By: MAWADZE J

HMT09-20 : BENJAMIN SAMBARE vs SIMBARASHE SINANDAVA
Ruled By: MUZENDA J

HH196-17 : SHELTER KAMUPARIRO vs FORTUNE MUSENDO and MUNICIPALITY OF CHITUNGWIZA
Ruled By: MATANDA-MOYO J

HMT14-20 : APOSTOLIC EJUWELL JEKENISHENI CHURCH vs THE INTERNATIONAL APOSTOLIC EJUWELL JEKENISHENI CHURCH and OTHERS
Ruled By: MUZENDA J

SC39-22 : MASIMBA CHARITY HUNI FUELS (PVT) LTD vs NATHAN KADURIRA and MAKONI RURAL DISTRICT COUNCIL
Ruled By: GUVAVA JA, BHUNU JA and MUSAKWA JA

SC110-22 : CONSTRUCTION RESOURCES AFRICA (PVT) LTD vs CENTRAL AFRICAN BUILDING AND CONSTRUCTION COMPANY (PVT) LTD t/a CENTRAL AFRICAN BUILDING
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

HH329-13 : RICHARD JAMBO vs CHURCH OF THE PROVINCE OF CENTRAL AFRICA and ANGLICAN DIOCESE OF MASVINGO and DEPUTY SHERIFF CHIVHU N.O.
Ruled By: GUVAVA J

HH427-15 : THE PROSECUTOR GENERAL vs PHIBEON BUSANGABANYE and MAGISTRATE N. MUPEIWA N.O.
Ruled By: MATHONSI J

HH152-15 : THE NATIONAL PROSECUTING AUTHORITY (APPLYING WITHOUT NOTICE (EXPARTE)) vs X
Ruled By: MANGOTA J

SC24-18 : MEDLOG ZIMBABWE (PVT) LTD vs COST BENEFIT HOLDINGS (PVT) LTD
Ruled By: GARWE JA, GOWORA JA and GUVAVA JA

HH11-13 : FLORENCE SIGUDU vs MINISTER OF LANDS AND RURAL RESETTLEMENT N.O. and PHINEAS CHIHOTA
Ruled By: PATEL J

SC15-17 : LIFORT TORO vs VODGE INVESTMENTS (PVT) LTD and MANYAME RURAL DISTRICT COUNCIL and MINISTER OF LANDS AND RURAL RESETLEMENT
Ruled By: ZIYAMBI JA, BHUNU JA and UCHENA JA

SC48-23 : WONDER DUBE vs KEITH MATSEKA
Ruled By: BHUNU JA

View Appeal
HH533-21 : PETROMOC EXOR (PVT) LD and KUDZANAI CHIMEDZA vs KUDZANAI CHIMEDZA and PETROMOC EXOR (PVT) LTD and OTHERS
Ruled By: MANGOTA J

SC63-23 : FUNGAI NHAU and JOSEPH MUSIKA HOUSING CO-OPERATIVE vs FAITH MINISTRIES CHURCH and MINISTER OF LOCAL GOVERNMENT PUBLIC WORKS AND NATIONAL HOUSING
Ruled By: MAVANGIRA JA, BHUNU JA and CHIWESHE JA

Categories

Law Portal Zimbabwe

Vindicatory Action or Rei Vindicatio re: Possessory Rights

HH25-12 : TAFIREYI NYIKADZINO vs JOHN ASHER and MINISTER OF LANDS & LAND RESETTLEMENT and DEPUTY SHERIFF HARARE Ruled By: BHUNU J

HH40-09 : DODHILL (PVT) LTD and SIMON KEEVIL vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and NYASHA CHIKAFU Ruled By: BERE J

SC20-19 : GRACE SHURO vs MOLLY CHIURAISE and CITY OF MASVINGO Ruled By: GARWE JA, HLATSHWAYO JA and BHUNU JA

HB02-12 : MUNICIPALITY OF VICTORIA FALLS vs LOIDA NYATHI and 11 OTHERS Ruled By: NDOU J

HH173-17 : F. MUTATA and OTHERS vs THE MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND URBAN DEVELOPMENT Ruled By: CHITAKUNYE J and NDEWERE J

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

SC40-15 : INDIUM INVESTMENTS (PVT) LTD vs KINGSHAVEN (PVT) LTD and DANIEL SHUMBA and LINDA SHUMBA Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GOWORA JA, HLATSHWAYO JA and MAVANGIRA AJA

HH90-10 : LOCAL AUTHORITIES PENSION FUND vs F & R TRAVEL TOURS AND CAR SALES (PVT) LTD and FREEJOY CHIGWIDA and RAPHAEL MAKWARA Ruled By: MAKARAU JP

HH99-10 : CRAIG ROBINSON vs ROBERT ROOT PROPERTY CONSULTANTS and HAMMER AND TONGUES (PVT) LTD Ruled By: MAKARAU JP

HH91-09 : SANANGURAI GWARADA vs KEVIN JOHNSON and MR WILLIAMSON and BERNARD CHOTO Ruled By: GOWORA J

HMA18-19 : BRIAN GAVA vs CHAMISA MAWERE and CHAMPION CHAKANETSA (as Executor of Estate Late Claudio Chakanetsa) and MISHECK MIZEKE and MESSENGER OF COURT – GWERU and CITY OF GWERU and REGISTRAR OF DEEDS – BULAWAYO N.O. Ruled By: MAFUSIRE J

HMA21-19 : MR MBOZVI vs CHENGETAI SIDHUNA Ruled By: MAWADZE J and MAFUSIRE J

HH48-12 : ENOCK GOVHA vs ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDA REBECCA MINE and ANOR Ruled By: MATHONSI J

HH103-12 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED T/A FREDA REBECCA MINE vs TATENDA TAKAVADA Ruled By: MUTEMA J

HH271-13 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDDA REBECCA MINE vs NYASHA MUTENGWA Ruled By: MAWADZE J

HMT09-20 : BENJAMIN SAMBARE vs SIMBARASHE SINANDAVA Ruled By: MUZENDA J

HH196-17 : SHELTER KAMUPARIRO vs FORTUNE MUSENDO and MUNICIPALITY OF CHITUNGWIZA Ruled By: MATANDA-MOYO J

HMT14-20 : APOSTOLIC EJUWELL JEKENISHENI CHURCH vs THE INTERNATIONAL APOSTOLIC EJUWELL JEKENISHENI CHURCH and OTHERS Ruled By: MUZENDA J

SC39-22 : MASIMBA CHARITY HUNI FUELS (PVT) LTD vs NATHAN KADURIRA and MAKONI RURAL DISTRICT COUNCIL Ruled By: GUVAVA JA, BHUNU JA and MUSAKWA JA

SC110-22 : CONSTRUCTION RESOURCES AFRICA (PVT) LTD vs CENTRAL AFRICAN BUILDING AND CONSTRUCTION COMPANY (PVT) LTD t/a CENTRAL AFRICAN BUILDING Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

HH329-13 : RICHARD JAMBO vs CHURCH OF THE PROVINCE OF CENTRAL AFRICA and ANGLICAN DIOCESE OF MASVINGO and DEPUTY SHERIFF CHIVHU N.O. Ruled By: GUVAVA J

HH427-15 : THE PROSECUTOR GENERAL vs PHIBEON BUSANGABANYE and MAGISTRATE N. MUPEIWA N.O. Ruled By: MATHONSI J

HH152-15 : THE NATIONAL PROSECUTING AUTHORITY (APPLYING WITHOUT NOTICE (EXPARTE)) vs X Ruled By: MANGOTA J

SC24-18 : MEDLOG ZIMBABWE (PVT) LTD vs COST BENEFIT HOLDINGS (PVT) LTD Ruled By: GARWE JA, GOWORA JA and GUVAVA JA

HH11-13 : FLORENCE SIGUDU vs MINISTER OF LANDS AND RURAL RESETTLEMENT N.O. and PHINEAS CHIHOTA Ruled By: PATEL J

SC15-17 : LIFORT TORO vs VODGE INVESTMENTS (PVT) LTD and MANYAME RURAL DISTRICT COUNCIL and MINISTER OF LANDS AND RURAL RESETLEMENT Ruled By: ZIYAMBI JA, BHUNU JA and UCHENA JA

SC48-23 : WONDER DUBE vs KEITH MATSEKA Ruled By: BHUNU JA

View Appeal HH533-21 : PETROMOC EXOR (PVT) LD and KUDZANAI CHIMEDZA vs KUDZANAI CHIMEDZA and PETROMOC EXOR (PVT) LTD and OTHERS Ruled By: MANGOTA J

SC63-23 : FUNGAI NHAU and JOSEPH MUSIKA HOUSING CO-OPERATIVE vs FAITH MINISTRIES CHURCH and MINISTER OF LOCAL GOVERNMENT PUBLIC WORKS AND NATIONAL HOUSING Ruled By: MAVANGIRA JA, BHUNU JA and CHIWESHE JA

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Law Portal
Zimbabwe

HH25-12 : TAFIREYI NYIKADZINO vs JOHN ASHER and MINISTER OF LANDS & LAND RESETTLEMENT and DEPUTY SHERIFF HARARE
Ruled By: BHUNU J

HH40-09 : DODHILL (PVT) LTD and SIMON KEEVIL vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and NYASHA CHIKAFU
Ruled By: BERE J

SC20-19 : GRACE SHURO vs MOLLY CHIURAISE and CITY OF MASVINGO
Ruled By: GARWE JA, HLATSHWAYO JA and BHUNU JA

HB02-12 : MUNICIPALITY OF VICTORIA FALLS vs LOIDA NYATHI and 11 OTHERS
Ruled By: NDOU J

HH173-17 : F. MUTATA and OTHERS vs THE MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND URBAN DEVELOPMENT
Ruled By: CHITAKUNYE J and NDEWERE J

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

SC40-15 : INDIUM INVESTMENTS (PVT) LTD vs KINGSHAVEN (PVT) LTD and DANIEL SHUMBA and LINDA SHUMBA
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GOWORA JA, HLATSHWAYO JA and MAVANGIRA AJA

HH90-10 : LOCAL AUTHORITIES PENSION FUND vs F & R TRAVEL TOURS AND CAR SALES (PVT) LTD and FREEJOY CHIGWIDA and RAPHAEL MAKWARA
Ruled By: MAKARAU JP

HH99-10 : CRAIG ROBINSON vs ROBERT ROOT PROPERTY CONSULTANTS and HAMMER AND TONGUES (PVT) LTD
Ruled By: MAKARAU JP

HH91-09 : SANANGURAI GWARADA vs KEVIN JOHNSON and MR WILLIAMSON and BERNARD CHOTO
Ruled By: GOWORA J

HMA18-19 : BRIAN GAVA vs CHAMISA MAWERE and CHAMPION CHAKANETSA (as Executor of Estate Late Claudio Chakanetsa) and MISHECK MIZEKE and MESSENGER OF COURT – GWERU and CITY OF GWERU and REGISTRAR OF DEEDS – BULAWAYO N.O.
Ruled By: MAFUSIRE J

HMA21-19 : MR MBOZVI vs CHENGETAI SIDHUNA
Ruled By: MAWADZE J and MAFUSIRE J

HH48-12 : ENOCK GOVHA vs ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDA REBECCA MINE and ANOR
Ruled By: MATHONSI J

HH103-12 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED T/A FREDA REBECCA MINE vs TATENDA TAKAVADA
Ruled By: MUTEMA J

HH271-13 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDDA REBECCA MINE vs NYASHA MUTENGWA
Ruled By: MAWADZE J

HMT09-20 : BENJAMIN SAMBARE vs SIMBARASHE SINANDAVA
Ruled By: MUZENDA J

HH196-17 : SHELTER KAMUPARIRO vs FORTUNE MUSENDO and MUNICIPALITY OF CHITUNGWIZA
Ruled By: MATANDA-MOYO J

HMT14-20 : APOSTOLIC EJUWELL JEKENISHENI CHURCH vs THE INTERNATIONAL APOSTOLIC EJUWELL JEKENISHENI CHURCH and OTHERS
Ruled By: MUZENDA J

SC39-22 : MASIMBA CHARITY HUNI FUELS (PVT) LTD vs NATHAN KADURIRA and MAKONI RURAL DISTRICT COUNCIL
Ruled By: GUVAVA JA, BHUNU JA and MUSAKWA JA

SC110-22 : CONSTRUCTION RESOURCES AFRICA (PVT) LTD vs CENTRAL AFRICAN BUILDING AND CONSTRUCTION COMPANY (PVT) LTD t/a CENTRAL AFRICAN BUILDING
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

HH329-13 : RICHARD JAMBO vs CHURCH OF THE PROVINCE OF CENTRAL AFRICA and ANGLICAN DIOCESE OF MASVINGO and DEPUTY SHERIFF CHIVHU N.O.
Ruled By: GUVAVA J

HH427-15 : THE PROSECUTOR GENERAL vs PHIBEON BUSANGABANYE and MAGISTRATE N. MUPEIWA N.O.
Ruled By: MATHONSI J

HH152-15 : THE NATIONAL PROSECUTING AUTHORITY (APPLYING WITHOUT NOTICE (EXPARTE)) vs X
Ruled By: MANGOTA J

SC24-18 : MEDLOG ZIMBABWE (PVT) LTD vs COST BENEFIT HOLDINGS (PVT) LTD
Ruled By: GARWE JA, GOWORA JA and GUVAVA JA

HH11-13 : FLORENCE SIGUDU vs MINISTER OF LANDS AND RURAL RESETTLEMENT N.O. and PHINEAS CHIHOTA
Ruled By: PATEL J

SC15-17 : LIFORT TORO vs VODGE INVESTMENTS (PVT) LTD and MANYAME RURAL DISTRICT COUNCIL and MINISTER OF LANDS AND RURAL RESETLEMENT
Ruled By: ZIYAMBI JA, BHUNU JA and UCHENA JA

SC48-23 : WONDER DUBE vs KEITH MATSEKA
Ruled By: BHUNU JA

View Appeal
HH533-21 : PETROMOC EXOR (PVT) LD and KUDZANAI CHIMEDZA vs KUDZANAI CHIMEDZA and PETROMOC EXOR (PVT) LTD and OTHERS
Ruled By: MANGOTA J

SC63-23 : FUNGAI NHAU and JOSEPH MUSIKA HOUSING CO-OPERATIVE vs FAITH MINISTRIES CHURCH and MINISTER OF LOCAL GOVERNMENT PUBLIC WORKS AND NATIONAL HOUSING
Ruled By: MAVANGIRA JA, BHUNU JA and CHIWESHE JA