ZHOU J: This is an application for summary judgment
against the three respondents who are the defendants in Case No. HC 8904/10
(hereinafter referred to as “the main matter” or “the action”). The applicant
is the plaintiff in the main matter, in which it instituted proceedings for the
ejectment of the respondents from the assistant manager's house at Good Hope
Farm. The facts which underlie the dispute between the parties are as
follows:
The now deceased Ernest Manota who died on 9 September 2010
was a former employee of the applicant. During his employment he had been
allocated for occupation a residential house which is referred to in the papers
as an “assistant manager's house”, which is located on Good Hope Farm.
After the death of Ernest Manota the respondents remained in occupation of the
house. The second respondent is his widow while the first and third
respondents are his sons. There are also other children of the deceased
who remain in occupation together with the three respondents cited in the
instant application. The respondents were given notice to vacate the
house on 8 October 2010, but have remained in occupation to date. Faced
with the respondents' continued occupation of the house, the applicant
instituted an action for their eviction under Case No. HC 8904/10. The
respondents entered appearance to defend the action, prompting the applicant to
make the instant application for summary judgment.
Summary judgment is allowed where the applicant has a clear
and unassailable case and ought not be subjected to the expense and delay of
going to trial. It is a drastic remedy. The remedy is intended to
“prevent sham defences from defeating the rights of parties by delay, and at
the same time causing great loss to plaintiffs who were endeavouring to enforce
their rights”. Joob Joob Investments v Stocks Mavundla Zek 2009
(5) SA 1 at 11G; See also Beresford Land Plan (Pvt) Ltd vUrquhart
1975 (1) ZLR 260 at 272B; Pitchford Investments (Pvt) Ltd vMuzari
2005 (1) ZLR 1(H) at 3D-H; Majoni v Minister of Local
Government and National Housing 2001 (1) ZLR 143(S) at 144A-C. In
order to successfully oppose an application for summary judgment a defendant
must show a good bona fide defence to the plaintiff's claim. In
other words, defendant must raise an issue which if proved at trial would
entitle him or her to succeed. See Niri vColeman & Ors
2002 (2) ZLR 580(H) at 584E-585B. The defendant is not
expected to establish his or her defence on the probabilities, but must set
forth the grounds of defence with sufficient detail to enable the court to
conclude that he has a bona fide defence and that the opposition has
not been filed solely for the purposes of delay. See Mbayiwa vEastern
Highlands Motel (Pvt) Ltd SC 139-86 at p. 4-5; Stationery Box
(Pvt) Ltd v Natcon (Pvt) Ltd 2010 (1) ZLR 227(H) at 231F, 233B.
The respondents have raised two points in limine,
namely:
(a)
that the deponent to the applicant's
affidavit, Peter Bruce Arnott, has no locus standi to represent the
applicant in the absence of a resolution of the applicant's board of
directors; and
(b)
that the applicant is not the owner of the
land on which the house is located, and therefore has no locus standi
to seek the eviction of the respondents from the house. On the merits, the
respondents rely on the same ground that the applicant lost ownership of Good
Hope Farm when it was gazetted in 2005.
The question of the authority of Peter Bruce Arnott to
represent the applicant or whether the applicant had authorised the proceedings
was not raised by the respondents in the main case. The special plea
taken by the respondents in Case No. HC 8904/10 was that the applicant “has no locus
standi in judicio to claim for the eviction of both (sic)defendants,
as the plaintiff is not the registered owner of the property in question by
reason of the property in question having been compulsorily acquired by the
Government in 2005”. The respondents cannot contest the filing of the
application for summary judgment on the ground that the application has not
been authorised by the applicant yet they have not objected to the summons on
the same ground. Summary judgment proceedings merely seek judgment in terms of
the summons. Although the proceedings are issued under a different case
number from the main action they do not represent a fresh claim. That is
the reason why the applicant is required to merely verify the claim as set out
in the summons and aver a belief that the respondents have no bona fide defence
to that claim. In deposing to an affidavit in an application in support
of summary judgment the deponent is merely acting as a witness who has
knowledge of the facts and can swear positively to the facts in the affidavit
in verifying the cause of action and alleging that the respondents have no bona
fide defence to the claim in terms of Order 10 Rule 64(2) of the Rules of
this Court. See Time Bank of Zimbabwe Ltd v Moyo 2002
(1) ZLR 121(H) at 125F-130A. The applicant is represented in these proceedings
by its legal practitioners and not by the deponent to the affidavit filed in
support of the application. This case is distinguishable from the case of
Madzivire & Ors v Zvarivadza & Ors 2006 (1) ZLR 514(S), where
a director of a company instituted proceedings in the name of a company against
fellow directors who questioned his authority to institute the proceedings on
behalf of the company. I am satisfied that the proceedings before this Court
have been instituted by the applicant and not by some unauthorised person on
its behalf. See Mall (Cape) (Pty) Ltd v Merion Ko-operasie Bpk 1957
(2) SA 347(C). The first objection in limine must therefore
fail.
The respondents' second ground of objection is that the
applicant is not the owner of the farm on which the house that they occupy is
located. The applicants have attached to the opposing affidavit a copy of
the Zimbabwean Government Gazette Extraordinary of 10th June,
2005 which contains a preliminary notice of intention to acquire the
Remaining Extent of Good Hope. The notice which was issued in terms of s
5 (1) of the Land Acquisition Act [Cap 20:10] states that the
Government intends to compulsorily acquire the land “for urban expansion”. The
respondents contend that by virtue of the publication of that notice the
applicant lost ownership of the land. No authority has been cited for
that submission. There is nothing to show that the land was acquired by
the Government as suggested by the respondents. The notice is only a notice of
intention to acquire the land. The respondents correctly accept that the land
is not agricultural land; neither is it being required for resettlement. Its
acquisition does not, therefore, fall within the ambit of s 16B(2) of the
Constitution of Zimbabwe. The respondents have not pointed to any other
provision in terms of which the applicant lost ownership of the property.
Thus the defence advanced is not valid at law.
The letter dated 2 November 2010 written by A. S. Tome,
Provincial Administrator for the Harare Metropolitan Province, does not create
rights for the respondents to remain in occupation of the house without the
consent of the applicant. It is clear that that letter was generated for
the purpose of resisting eviction. The letter does not deprive the
applicant of its ownership of Good Hope farm.
In my view the respondents have no bona fide defence
to the applicant's claim and entered appearance for the purposes of delaying
finalisation of the matter.
I have been invited to award costs against the respondents
on an attorney-client scale. The applicant has been unnecessarily put out
of pocket by the respondents' refusal to vacate the house on its farm. See Neil
vWaterberg Landbouwers Ko-operatieve Vereeniging 1946 AD 597 at
607; Mahembe vMatambo 2003 (1) ZLR 148(H) at 150A-E.
The opposition to the claim is not bona fide, as the respondents are
unilaterally seeking to change the basis upon which they occupied the house in
question. The respondents know that they occupied the house by virtue of
their relationship with the late Ernest Manota. They do not pay rent or
any expenses in respect of water or electricity or other services from which
they benefit by their occupation of the house. The opposition to the
claim is vexatious. The vexatiousness of the opposition justifies a
special order of costs. Mahembe vMatambo (supra)at
150D.
In the result, it is ordered as follows:
1. Summary judgment in Case
No. HC 8904/10 is granted in favour of the applicant and against the
respondents.
2. The respondents and all
persons claiming occupation through them shall vacate the assistant manager's
house at Good Hope Farm within seven days of service of this order, failing
which the Deputy Sheriff shall take all steps necessary to eject them and to
give vacant possession of the house to the applicant.
3. The respondents shall pay
the costs of suit on an attorney-client scale jointly and severally the one
paying the others to be absolved.
Wintertons, applicant's legal practitioners
C.Nhemwa & Associates,
respondents' legal practitioners
