NDOU J: The
applicant seeks a provisional order in the following terms:
“Terms of the final order sought:
That the provisional order granted by this honourable court
be confirmed in the following manner:
1.
The
respondents' act of denying applicant access to the premises being stand number
63067 Tshabalala Township being Gushiri Butchery Tshabalala be declared to be
an unlawful act of spoliation.
2.
The
respondents be ordered to pay costs of suit at an attorney-client scale jointly
and severally.
Interim relief sought
Pending the finalization of the matter, the applicant be
granted the following relief:
1.
The
respondents be and are hereby directed to restore stand number 63067 Tshabalala
Township being Gushiri Butchery Tshabalala to the applicant, Maxwell Hedious
Moyo's possession pending the finalization of this matter.
2.
Failure
to paragraph (1) above, the Deputy Sheriff be ordered to reinstate applicant to
the premises being Gushiri Butchery pending the finalization of this matter.
3.
The
respondents be and are hereby interdicted from interfering without a lawful
court order with applicant's occupation of the premises pending the
finalization of this matter.”
The respondents raised three points in limine. I propose to deal
with them in turn. The first point is
whether the applicant had locus standi
to institute this application? It is
common cause or at least beyond material dispute that the respondents had a
lease agreement with one Ngonidzashe Ndlovu.
It is the latter who entered into a lease agreement with owners of the
property in question i.e. the two respondents.
After entering into the lease agreement, the said Ngonidzashe Ndlovu
invited the applicant to run the butchery business as his partner. Sometime in November 2009 Ngonidzashe Ndlovu
decided to be a “dormant partner” leaving the applicant as an “active partner”
in their butchery business. From these
facts it is clear that the applicant had no agreement of lease with the
respondents. He was claiming through his
partner in the butchery business, Ngonidzashe Ndlovu. From my reading of the applicant's papers he
is relying on the protection given by the mandament
van spolie. The applicant must, in
the circumstances show that:
(a)
He
was in peaceful and undisturbed possession of the thing; and
(b)
He
was unlawfully deprived of such possession – Botha & Anor v Barret
1996 (2) ZLR 73 (S) at 79E-F and Kama
Construction (Pvt) Ltd v Cold Comfort
Farm Co-op & Ors 1999 (2) ZLR 19 (5) at 21E-G.
The only valid defences that may be raised are that:
(a)
The
applicant was not in peaceful and undisturbed possession of the thing in question
at the time of dispossession;
(b)
The
dispossession was not unlawful and therefore did not constitute spoliation;
(c)
Restoration
of possession is impossible;
(d)
The
respondent acted within the limits of counter-spoliation in regaining
possession of the article.
In casu, the parties to the lease, i.e.
respondents and Ngonidzashe Ndlovu had reason to discuss its terms on 30
November 2009. This was occasioned by
Ngonidzashe Ndlovu's failure to fulfill his obligations in terms of the lease,
i.e. he failed to pay rentals and operational costs. They reached an agreement captured in
annexure “A” which read:
“I
Mr N Ndlovu I.D. 08-751136-B 24 residing at house number 61460 Pelandaba do
hereby agree with my landlords names Utete and Mhlanga that I still
remain responsible for water and electricity outstanding bills at the shop up
to this date and should there be any queries of the shop condition I still
remain responsible under any circumstances this should be maintained. Failure to have this done in 14 (fourteen) days
of the signing of this agreement.
Proportional measures should be taken against me. This would have clearly indicated my
inability to operate within the premises.
Date
31-11-09 [sic]
Signed:
M Utete [1st respondent]
Signed:
M Mhlanga [2nd respondent]
Witness:
N Ndlovu [signed]”
(Emphasis
added)
All this signifies that the
applicant was not part to the lease agreement with the respondents. He had no contractual relationship with
respondents at all. His possession was incidental
to the actual possession by Ngonidzashe Ndlovu.
After failing to fulfill his
conditions as enshrined in annexure “A” supra,
Ngonidzashe Ndlovu, was lawfully dispossessed of stand number 63067 i.e. after
the 14 days. The lease was lawfully
terminated on 31 December 2009. On that
day, the locus standi of those
claiming possession through him ceased.
That included the applicant in
casu. On this basis, the applicant
has no legal standing to institute this application for spoliation almost two
months after the lease was lawfully terminated and the party to the lease,
Ngonidzashe Ndlovu did not challenge the termination. Without considering the other points in limine raised and the merits of the
case I dismiss the application with costs.
Cheda & Partners, applicant's legal practitioners
Coghlan & Welsh, respondents'
legal practitioners
