KAMOCHA J: The
respondent in this matter is the widow of the late Brigadier General Paul
Armstrong Gunda – “Gunda” who passed away on 21 June 2007. At the time of his passing on Gunda was the
Commander of 1 Brigade in Bulawayo. By
virtue of being the Commander of 1 Brigade he and his family were entitled to
occupy a residential property known as number 14 Lawley Road, Suburbs,
Bulawayo. The house is listed at the
Army Headquarters as one of the army's “reserved houses”. This particular house is only reserved for
any senior army officer who is appointed Commander 1 Brigade and has been so
occupied for instance by such commanders as Brigadier General Mugova, Brigadier
General Sango and Brigadier General Zingoni before the late Brigadier General
Paul Armstrong Gunda took occupation of it from 2004 to 2007 when he passed on.
After her husband passed away on 21
June 2007, the respondent and her children had the right to remain in the house
for a period of one month in terms of the army regulations. Section 2 paragraph 01107 of Chapter 2 of the
Quartermaster General standing orders provides that:-
“When a member of the regular force who is in occupation of
government quarters dies, his/her dependents may be permitted to remain in
occupation of these premises for a period not exceeding one month after his/her
death, provided that the dependants will be responsible for both water and
electricity charges raised.”
The respondent's right to lawfully
occupy the house should have ended on 31 July 2007 according to the above
regulations. For some unexplained reasons
the applicant did not seek to evict the respondent at the expiration of the one
month. Instead the notice to vacate was
only issued after a period of 15 months.
The deponent to the applicant's affidavit took the stance that the
Ministry of Defence was under no obligation to explain the inordinate delay to
the respondent. That attitude is wrong
and unfortunate. It is the inordinate
delay to evict the respondent which led her to believe that what she may have
heard about government houses being offered to sitting tenants may have applied
to her late husband when he was still alive.
Hence her resistance to vacate the property when requested to do so
belatedly without any explanation proffered.
A notice to vacate was addressed to
her on 20 October 2008 from Army Headquarters and reads in part:-
“Mrs Rangarirai Gunda
Headquarters 1 Brigade Married
Quarters
House Number 14 Lawley Road
Suburbs
Bulawayo
20
October 2008
Dear Mrs Rangarirai Gunda
Notice to vacate government quarters at Headquarters 1
Brigade Married Quarters
Notice is hereby given in terms of paragraph 01107 of section
2 of Chapter 2 of the Quartermaster General Standing Orders for you to vacate
Married Quarters at number 14 Lawley Road.
…”
The respondent refused to vacate the
premises prompting the Zimbabwe National Army hereinafter referred to as “the
army” instituting proceedings in the Magistrates' Court, Bulawayo seeking her
eviction and all those claiming the right of occupation through her, from the
premises within 7 days of the order being granted.
The learned magistrate who presided
over the matter had this to say in his ruling:
“Ruling
This is an application for eviction, with the applicant, the
Zimbabwe National Army, seeking to evict the widow of the late Brigadier
General Paul Armstrong Gunda, Rangarirai Tatenda Gunda from house number 14
Lawley Avenue, Suburbs, Bulawayo.
However, during the trial the matter took a different
turn. Instead of the litigants arguing
over eviction they started arguing over the ownership of the property. As matters stand, it has to be determined who
the owner of that house is in order to deal with eviction. It has to be clear who should evict who.
Therefore, this court cannot deal with the determination of
the ownership of the property, namely 14 Lawley Avenue, Suburbs, Bulawayo. The litigants will have to approach the High
Court for that as this is a lower court which has no jurisdiction to decide
matter of ownership of that kind of property.
As such, this application is dismissed
for want of jurisdiction, with no order as to costs.”
What is clear from the above ruling
of the learned magistrate is that the issue of eviction was not finalized by
that court as the parties seemed to have abandoned it when the defendant argued
that that court lacked jurisdiction to handle a matter like that. According to the ruling it seems the argument
had shifted to the ownership of the property.
Having felt that that court lacked jurisdiction to deal with the matter
the learned magistrate advised the parties to approach this court for
redress. The court accordingly dismissed
the application for want of jurisdiction.
The issue of the eviction of the
respondent remained undetermined by the court.
In the result, the point in limine
raised by the defendant to the effect that the matter was res judicata is without foundation and must be rejected.
The next point raised in limine was that the applicant had
allegedly adopted a wrong procedure by proceeding by way of court application
when he was aware that there were serious disputes of fact which could not be
resolved on the papers. The respondent
contended that her late husband was given an offer to purchase the property by
the army but that contention was vehemently disputed by the army. She further asserted that the applicant was
aware that in the magistrate's court witnesses, including herself and those
from the army were called to testify and disputes became clear. She concluded that the applicant was well
aware of the existence of the disputes of fact and should have proceeded by way
of action so that viva voce evidence
could be adduced to resolve the dispute.
On the other hand the applicant's
contention was that the respondent merely claimed that her late husband was
promised the house in question without laying any foundation for her
claim. She produced no evidence on the
papers showing that indeed such promise was made to her late husband.
There is merit in that
submission. The respondent does not
state who exactly in the army made that promise and when and where it was
made. She has stated that witnesses
testified in the magistrate's court but chose not to take the court in her
confidence by stating whether or not those witnesses confirmed her story that
her late husband had been promised the sale of the house. Her story remains a bald and unsubstantiated
assertion. There are no facts to support
her story. It is not enough to merely allege disputes of facts without
demonstrating to the court the disputed facts by, for instance, producing a
letter offering the property for sale to the late husband of the respondent or
by averments in her affidavit to the effect that at a meeting between her late
husband and a named officer or officers of the army held on such and such date,
at such and such place her late husband was offered the sale of the house. Her claim that there are serious disputes of
fact is without merit and must fail.
The respondent also sought to rely
on the fact that certain officers in similar ranks to her late husband in the
army were offered to buy government houses they were occupying as sitting
tenants. There was indeed such a
government policy. All government houses
approved for disposal had to be valued by a government valuer. Thereafter an offer letter would be issued to
the sitting tenant who would either accept or decline the offer. The policy was in place for ten years –
starting from about 1993 until the disposal of government houses was suspended
in 2003.
The house in question is a reserved
house which required the consent of the Ministry of Defence to its disposal
communicated to the Ministry of Local Government, Public Works and National
Housing.
The respondent's late husband
received no offer letter to buy that particular house. She did not claim that he had. In the absence of proof that her late husband
was actually offered to buy the house her claim remains a mere
speculation. The mere fact that other
officers were indeed offered to buy government houses as sitting tenants does
not necessarily mean that the offer was also extended to her late husband. The policy in the army was to retain reserved
houses in major towns and cities for use by it.
This particular house is reserved for any senior army officer who is
appointed Commander 1 Brigade.
The information about the disposal
of government houses is contained in documents filed of record produced through
the answering affidavit. If the
respondent had wished to rebut that information she would have sought leave of
this court to file further affidavits in rebuttal in terms of Rule 235 of the
rules of court. She did not do that.
The respondent sought to raise the
issue of non-joinder of the executor of her late husband. She contended that in the event the court
holds that the house be transferred into her late husband's inventory of assets
after it is purchased by her the need to join the executor would arise. This court has, however, found that she had
failed to demonstrate that her late husband had been given the option to
purchase the premises. The house remains
government property. This point in limine is also without foundation and
suffers the same fate like the others.
On the merits this court was called
upon to determine whether or not the respondent's husband was promised by the
applicant to purchase the house. The
issue was adequately covered supra
under the point in limine, whether or
not applicant had adopted the correct procedure. I held the view that in the absence of proof
to buy the premises her claim remains as speculation and wishful thinking.
The respondent properly conceded
that she was not the owner of the house and had no lease agreement entitling
her to stay at the house. She is not an
employee of the army. It is common
ground that her entitlement to stay at the house should have terminated at the
end of July 2007 at the latest. This
court holds that she had no entitlement to continue staying there
thereafter. She must vacate the
premises. In the result I would issue the
following order.
It is ordered that:-
- Respondent vacate the premises
at number 14 Lawley Road, Suburbs, Bulawayo within 10 days of this order;
- In the event that respondent
refuses to vacate the said premises within the period specified in (1)
above the Deputy Sheriff of this court is hereby empowered to evict her;
and
- Respondent shall bear the cost
of suit on a party and party scale.
Civil Division of the
Attorney-General's Office, applicant's legal practitioners
Chihambakwe, Mutizwa & Partners
respondent's legal practitioners
