KAMOCHA J: After
hearing arguments from both legal practitioners I dismissed the application and
indicated that my reasons would follow in due course. These are they.
The applicant in this matter seeks
an order in the following terms:-
“It is hereby ordered that:-
1.
The
default judgment granted by this honourable court on the 13th of March
2008 be and is hereby rescinded;
2.
The
applicant be and is hereby given leave to file heads of argument within
fourteen days from date of this order; and
3.
Costs
be costs in the main cause.”
The default judgment of 13 March 2008 was granted pursuant to
a court order of 25 February 2008 which granted the present respondent leave to
set down her matter on the unopposed roll.
She then was granted the following order.
“It is ordered that:-
1.
the
applicant be and is hereby declared to be the legal owner of stand number 1346
Bulawayo Township also known as number 53, 15th Avenue, Bulawayo;
2.
the
respondent be and is hereby ordered to vacate the restaurant and flat she is
occupying at stand number 1346 Bulawayo Township, also known as number 53, 15th
Avenue, Bulawayo within 5 days of service of this order failing which the Deputy
Sheriff, Bulawayo be and is hereby ordered to evict the respondent and all
those claiming through her and give vacant possession to the applicant or her
agents; and
3.
the
respondent be and is hereby ordered to pay costs of suit on an attorney-client
scale for this application.”
When the applicant was about to execute the above default
judgment the respondent applied for and was granted a provisional order staying
the execution of the judgment on 17 April 2008 pending the determination of the
present application for rescission for judgment which had been filed the
previous day – 16 April 2008.
At the hearing it was agreed that both applications be dealt
with on the same day. It was further
agreed that the application for rescission of judgment be heard first as its
determination would affect both applications.
The relevant background information
in the matter is that during April 2005 Bickelia Majola entered into an
agreement of sale of the property at the centre of the dispute with its then
owners who were being represented by Ebrahim Hassen Esat. The property was transferred into Majola's
name on 5 December, 2007.
When Marble T. T. Moyo was made
aware of the sale of the property to Bickelia Majola she was not prepared to
accept that the property had indeed been sold to Majola. She claimed inter alia that the previous owners could not have sold the
property without offering it to her first.
She claimed to have the right of first refusal but produced no evidence
to that effect.
On 11 December 2006 she addressed a
letter to Majola's legal practitioners wherein she disputed that Majola was the
lawful owner of the property and would never recognize her as such. She said she would never pay rentals to her
but would continue to pay rentals to the Esats like she used to do for the past
25 years.
Further she said she would not vacate the premises because
she had been renting them for 25 years and employed a number of workers
there. Above all, she had made
significant improvements and had restaurant equipment therein. In conclusion she emphasized that she did not
know Majola and did not recognize her claim to the property.
Since she felt very strongly about the sale of the property
to Majola she instituted proceedings against the sellers and the purchaser
wanting to assert her rights. The matter
was, however, not persisted with as it was withdrawn on 23 October 2006.
I pause to observe that she must have realized that her case
was devoid of any merit. The fact that
Majola purchased the property and is its lawful owner admits of no doubt. The agreement of sale and title deeds were
filed of record.
Marble T. T. Moyo cannot be protected by the provisions of
the rent regulations as she vowed that she would never pay rentals to Majola
and true to her word she never did. She
cannot therefore be a statutory tenant.
The fact that she had been in occupation for more than 25 years does not
entitle her to do so free of charge.
Similarly her claim that she effected improvements to the
property is no defence to an eviction order.
If indeed any improvements were effected to the property she may
institute proceedings against whoever she believes is liable if so advised.
In the light of the foregoing it is quite clear that the
application for rescission is devoid of any merit and must fail.
I now turn to the question of costs. Marble T. T. Moyo conducted herself in a very
stubborn way deserving punitive costs.
She refused to accept the reality that the property had been purchased
by Majola. It was registered in her name
and yet Marble would not recognize her as the owner and refused to pay rentals
for the property. Majola has been put
into unnecessary expenses. Majola must
recover those expenses in full.
In the result I would issue the following order.
It is ordered that:-
1.
the
application for rescission of the default judgment be and is hereby dismissed
with costs on an attorney-client scale; and
2.
the
provisional order granted on 17 April 2008 be and is hereby dismissed with
costs on an attorney-client scale.
Masawi & Partners, applicant's legal practitioners
Messrs Cheda & Partners
respondents' legal practitioners
