MATHONSI J: The 4 Applicants were tenants at a
block of flats known as Bertha Court situated at the corner of Herbert Chitepo
Street and Connaught Avenue in Bulawayo which property is owned by the second
Respondent. They respectively occupied
Flat numbers 1, 22, 14 and 3 at Bertha Court.
When their lease agreements expired they continued in occupation as
statutory tenants by virtue of the provisions of the Rent Regulating Statutory
Instrument 32/2007.
When a rent dispute arose, it was
referred to the Western Region Rent Board which determined the rent the
Applicants were required to pay. The
applicants do not have a problem with the rent fixed at US$70-00 per
month. It is the recurrent expenses of
US$73-63 per month relating to rates, electricity for common lighting,
caretaker's wages and insurance, which they have disputed arguing that while
the Rent Board is entitled in terms of section 19(a) of the rent regulations to
take into account recurrent expenses in arriving at a fair rent it has no power
to make a stand alone order for recurrent expenses. There is nothing on the papers to suggest
that the Rent board made such an order and in the papers filed in the
magistrate's court, second Respondent alleged that these were agreed between
the parties.
The four applicants, acting in
unison, refused to pay the recurrent expenses alleging that no such agreement
existed. The second Respondent alleged
that the tenants also failed to pay rent and fell into arrears.
It
then approached the Rent Board for eviction certificates to be issued against
each one of them which was done in May 2010.
Subsequent
to that, the second Respondent instituted eviction proceeding in the
magistrates' court against each of the applicants alleging non payment of rent
and recurrent expenses. In respect of
the first, second and fourth applicants the eviction proceedings have not been
finalised with the matters still pending before that court. The third applicant's matter was determined
by the magistrates' court which granted summary judgment against him. He was subsequently evicted from Flat 14 Bertha
Court Bulawayo on 25 November 2010.
It
should be stated that after the eviction order was granted by the magistrates'
court against third applicant he noted an appeal to this court against that
order under case number HCA 130/10 on 1st September 2010. That appeal is still pending and is yet to be
set down for argument. It should also be
stated that according to the applicants, the rent board did not issue an order
for recurrent expenses. This is
contained in paragraph 6 of the First Applicant's founding affidavit.
It however issued eviction
certificates in May 2010 presumably on the basis of non-payment of rent.
The applicants did not do anything to challenge
the eviction certificate and eviction proceedings were commenced at the
magistrates' court. Much later, while
the proceedings against first, second and fourth applicants were still pending
in the magistrates court (they are still so pending), and an appeal had been
noted to this court in respect of fourth applicant, (it is still pending), all the applicants
filed this application on 18 October 2010 seeking an order declaring that;
(a) the order for payment of recurrent
expenses made by the first respondent is invalid and that it be set aside.
(b) the certificates of eviction issued by
the first Respondent are invalid as they were issued in breach of the Rent
Regulations.
(c) any judgment made by the magistrates'
court based on the eviction certificates is invalid and that it be set aside.
The
application is strongly opposed by the second Respondent but the first
Respondent has not filed any opposition.
Instead she deposed to an affidavit on 25 March 2011 which the
applicants' counsel filed on 1 April 2011 without leave of the court, long
after an answering affidavit had been filed, it having been filed on 16
November 2010.
The
second Respondent objected to the admission of that affidavit on the basis that
it had been filed without leave of the court. Mr Mazibuko for the applicants made an
application from the bar for the admission of the first Respondent's affidavit
pointing out that when other papers were filed it was not available. He relied on the provisions of Order 32 Rule
239(b) of the High Court Rules, 1971 which provides:
“At
the hearing of an application the court may allow oral evidence.”
Clearly
that rule has nothing to do with the admission of additional affidavits in
violation of Order 32 Rule 235. That
rule provides:
“after an answering affidavit has been filed no
further affidavits may be filed without the leave of the court or a judge.”
In
this case the applicants did not seek leave to file the affidavit of Mrs
Phathekile Msipa. They merely filed it. I agree with Mr Dube-Banda that the leave envisaged by rule 235, is not one
sought from the bar after the affidavit had already been filed of record,
especially regard being had to the fact that it was filed on 1 April 2011 well
before the matter had been set down for hearing. The applicants had ample time to seek leave
for the admission of that affidavit.
They did not.
As
if that was not enough, on 21 April, 2011the second Respondent's legal
practitioners addressed a letter to the Applicants' legal practitioners
registering their objection to the inclusion of that affidavit before leave had
been sought and obtained. At that stage,
the applicants still had ample time to regularise the filing. They chose not to.
As
stated by Smith J in PTA Bank v Elanne
(Pvt) Ltd and Others 2000(1) ZLR 156(H) at 158 C-D:
“To wait for more than 3 months after having a
matter set down and then to file an affidavit a day before the hearing, without
the courtesy of advising the other side of the intention to file the affidavit
and without application for leave, is not acceptable. For one thing, the other side has no
opportunity to respond to anything raised in the affidavit. In addition, the court is not furnished
with any basis for granting leave to file the supplementary affidavit. It is clear that the defendants are not
entitled, in terms of the High Court Rules, to file supplementary affidavits
whenever they feel so inclined – see r235 of the High Court Rules 1971. Accordingly, I ruled that the supplementary
affidavit was not properly before the court.
It was the reafter ignored.” (Emphasis added)
I
find myself in total agreement with the learned judge on that point. I am fortified in my position by the fact
that the supplementary affidavit sought to be introduced in this matter is
deposed to by the first Respondent who was served with the application and did
not file opposition. She is therefore
barred which bar has not been lifted. To
admit her affidavit would be to introduce her opposition via the back
door. That affidavit is accordingly
expunged from the record.
Mr Dube-Banda for the second Respondent
took some points in limine namely that;
(a) This is a review application disguised
as an application for a declaratory order, it does not comply with the rules
relating to review applications and was filed out of time.
(b) The issues raised in the application
are pending before the magistrates court in respect of first, second and fourth
Applicants and in the High Court in respect of third Applicant whose appeal is still
to be determined.
The
Rent Board is a statutory body with quasi judicial authority. It is empowered to make rent orders and to
issue eviction certificates. The
applicants seek to contest the recurrent expenses claimed by the second
Respondent and the eviction certificates.
The Applicants' claim that the order for recurrent expenses should be
declared invalid and set aside is not sustainable at all for the simple reason
that it has not been shown that the Rent Board ever made such an order.
It
is the first Applicant who stated categorically and under oath at paragraph 6
of her founding affidavit as follows;
“Some time in August 2009 having unsuccessfully
tried to get the tenants of Bertha Court to pay rates and so-called recurrent
expenses, the second respondent made an Application to the Western Region Rent
Board as chaired by the First Respondent for a Recurrent Expenses Order. I annex hereto marked 'B' a copy of a letter
sent to us from the first Respondent's offices contents of which are
self-explanatory. Other than
confirming the monthly rental of $70-00 per month, the rent board did not make
an Order with respect to the recurrent expenses and suggested that the parties
should discuss the matter between themselves.” (Emphasis added)
At
paragraph 11 of the same affidavit she speculates as follows:
“I also wish to point out that in terms of the
Rent Regulations the Rent Board has no power to make a separate order for
payment of the current (sic) expenses.
The First Respondent is only empowered to make a Rent Order or to vary
the same. In the circumstances if the
First Respondent did make an order for payment of the current (sic) expenses,
such order is, I submit, null and void as it would have been made contrary to
the provisions of the rent regulations.”
(Emphasis added.)
This, coupled with the fact that no
order for recurrent expenses has been produced clearly does not lay a
foundation for nullification. Applicants
want the nullification of something which does not exist. I am also mindful of the fact that in the
eviction proceedings instituted in the magistrates' court, the second
Respondent relied on an alleged agreement for recurrent expenses entered into
between the parties and not on an order for these made by the rent board.
That then leaves the challenge being
made against the certificates of eviction.
The Rent Board is statutorily empowered to issue such certificates. Having issued such certificates, aggrieved
parties have a remedy in terms of section 35 of the Rent Regulations to lodge
an appeal to the Administrative Court. In
the event that there are grounds for review, the aggrieved parties could
proceed by way of a review application to this court in terms of section 26 of
the High Court Act.
They chose neither of those two
options and waited until eviction proceedings had commenced in the magistrates'
court, only to make this application for a declaratory order presumably upon a
realisation that the time to seek a review had lapsed. There is merit in the point raised in limine
that his is a review application disguised as an application for a declaratory especially considering that the basis of
attacking the proceedings betrays grounds for review.
I have already made a pronouncement
on submissions made by Mr Mazibuko
that the eviction order made by the magistrates' court was a nullity. See Ndlovu
v PDS Investments (Pvt) Ltd and another HB 2/11at page 5 (as yet
unreported).
More importantly the inquiry into
the validity or otherwise of the certificates of eviction in respect of first,
second and fourth Applicants is pending in the magistrates' court. In respect of the third Applicant, the same
inquiry is pending on appeal to this court.
It is wholly inappropriate for the applicants to then bring this
application before exhausting what has already been commenced.
It smacks of forum- shopping which
is extremely unacceptable, if not an abuse of process. I therefore find no merit whatsoever in this
application which should not have been made in the first place. The second Respondent has been put out of
pocket unnecessary in having to defend this application and is therefore entitled to costs
on an attorney and client scale.
In the result the application is
dismissed with costs on an attorney and client scale.
Calderwood, Bryce Hendrie and partners, applicant's legal practitioners
Dube-Banda, Nzarayapenga
and Partners, 2nd respondent's legal
practitioners
