KAMOCHA J: The
applicant was seeking to interdict the respondents from executing a default
judgment granted against him by this court on 1 June 2009. The court order was in the following terms:-
“It is ordered that:-
(1)
defendant and all
those claiming through him vacate garage number G6 Montrose Mansions
immediately after this judgment;
(2)
failing which the
Deputy Sheriff is authorized and ordered to remove, by force if necessary, the
defendant and all those claiming through him from garage number G6 Montrose
Mansions; and
(3)
defendant to pay
costs at the attorney-client sale (sic)”
The applicant received the default judgment the following day
i.e. 2 June 2009 and filed an application for rescission that same day.
Three days later he, on a
certificate of urgency, filed this application seeking to interdict the
respondents from evicting him from the garage being number 6 Napier Flats,
Bulawayo. In the event that he would
have been already evicted, he sought to be re-instated into the premises
forthwith.
The final order sought to
permanently interdict the respondents from evicting him from the said garage
pending the finalization of case number HC 848/09.
Due to some technical reasons the
matter ceased being regarded urgent and the parties seemed to have agreed that
it did not deserve to jump the queue.
Hence its enrolment on the opposed court applications roll.
There can be no doubt that the
applicant timeously filed his two applications.
The sticking point, however, is whether or not he has met the
requirements for the interdict that he seeks.
Has he got a prima facie or a clear right over the property that is at the
centre of this dispute? His story was
that some time in 2004, he purchased flat number 7 Napier Flats, Bulawayo from
one Nkosana Ncube through a registered estate agent known as Bulawayo Real
Estate. When he bought the flat, it came
together with garage number 6 which was under the same Napier Flats.
Before he bought the flat, Nkosana
Ncube who at that stage was living in South Africa had allegedly allowed his
garage under the flat to be used by one Sebby Nyoni. Sebby Nyoni was renting flat 8 Montrose
Flats, Fife Street and 12th Avenue, Bulawayo from Leslie Khumalo the
first respondent. Just because Nkosana
Ncube allowed Sebby Nyoni to use the garage the first respondent and Sebby
Nyoni assumed that the garage was being rented to them.
Trouble, allegedly, started when the
applicant began to park his vehicle in the garage as he then believed to be the
owner. The first respondent allegedly
started to harass him claiming that he owned the garage but never produced any
proof.
The above allegations by the
applicant do not stand up to scrutiny.
According to the agreement of sale between Nkosana Ncube and applicant
which he signed on 11 March 2004 he allegedly purchased the following:-
“Certain
piece of land situate in the district of Bulawayo an undivided 4.23% share
being share No. 17 also known as stand 13921 Bulawayo Township measuring 2082
square metres together with all permanent improvements thereon comprising a 2
bedrooms, a kitchen, lounge, toilet and balcony.”
The agreement of sale between
Nkosana Ncube and the applicant does not include the sale of the garage
designated as G6 on the plan which was part of share number 14.
According to the deed of transfer
signed and sealed at Bulawayo on 19 January 2009, Nkosana Ncube transferred to
Vision Sithole – the applicant an undivided 4.23% share being share number 17,
in a piece of land situate in the district of Bulawayo being stand 13921
Bulawayo Township measuring 2082 square metres.
The piece of land had been held under deed of transfer number 2497/03
dated 28 October 2003 made in favour of Nkosana Ncube. It was held subject inter alia to the provisions of Notorial Deed M.A. 519/89 relating
to an undivided share in it with the exclusive right of occupation.
According to notorial deed M.A.
519/89 registered at the Deeds Registry in Bulawayo on 13 March 1989 Nkosana
Ncube owned an undivided 4.23% share being share number 17 which comprised one
bed-roomed flat situate above a section of the garages designated as flat 17 on
the plan and known as flat 7 Napier House.
Leslie Khumalo on the other hand
owned an undivided 6.17% share being share number 14 comprising of a two
bed-roomed flat with private balcony on the first floor designated as flat 14
and a garage designated as G6 on the plan and known as flat 8 Montrose
Mansions.
It is clear from all official
documents in the deeds registry that the garage has always belonged to Leslie
Khumalo. Nkosana Ncube never owned it.
His agreement of sale with the applicant does not include the sale of the said
garage. It is not true that the deed of
transfer shows that the flat and garage were transferred to the applicant as
they both formed part of 4.32% being share number 17 in stand 13921 Bulawayo
Township, Bulawayo. Share 17 does not
have a garage. It belongs to share 14.
The applicant changed his stance in
his answering affidavit and began to allege that Nkosana Ncube had purchased
the garage from Leslie Khumalo who flatly denied ever selling the garage to Nkosana Ncube. The agreement of sale between the applicant
and Nkosana Ncube belies the applicant's story that he bought the garage from
Nkosana Ncube. There is no mention of
the sale of the garage in the agreement.
It was an afterthought which must be rejected. Further, the applicant's suggestion that
Leslie Khumalo did not dispute the allegation that he had sold the garage to
Nkosana Ncube is clearly false because that had always been hotly disputed by
Leslie Khumalo.
Applicant was also being untruthful
when he stated in paragraph 4 of his founding affidavit that what was
surprising in this whole matter was that the 1st respondent had not
attached any proof that he owned the garage.
Nothing can be further from the truth because the deed of transfer filed
of record dated 14 April 1989 which was subject to Notorial Deed M.A. 519/89
shows that the garage is part of Leslie Khumalo's flat. Notorial deed M.A. 519/89 filed of record
also established that the garage is part of the flat owned by Leslie Khumalo. The applicant's allegation that Leslie
Khumalo never produced proof to show that he owned the flat is clearly false.
What is true is that there is no
evidence whatsoever to show that Leslie Khumalo sold the garage to Nkosana
Ncube. Nkosana Ncube had no right to
sell the garage to the applicant. He
therefore could not transfer a right which he did not have.
Consequently, the applicant has no
right whatsoever not even a prima facie right let alone a clear right over the
garage. He would suffer no harm when
evicted therefrom. After all he,
according to the first respondent's then tenant Mr Sebbie Nyoni, had requested
to use the garage for a short while as he was building in Kensington. When asked to stop using the garage after six
months he caused endless problems culminating in these proceedings.
The 1st respondent has
been put into unnecessary expenses trying to eject the applicant from the
garage to which he has no legal right whatsoever. He is entitled to recover his full costs.
In the light of the foregoing I
would dismiss the applicant with costs on an attorney and client scale.
Bulawayo Legal Projects Centre, 1st
respondent's legal practitioners
