ZHOU J: The biblical aphorism: “Whatever a man sows,
that he will also reap” has lost its meaning in our society. This matter
presents a sordid picture of a culture of wanting to reap where persons did not
sow. The matter was instituted as an urgent chamber application on 18 September
2012. Through the urgent application the applicants seek an order interdicting
the respondents from claiming or demanding payment of rentals from them until
the dispute relating to the directorship and shareholding of the first
respondent is resolved. The applicants also want an order that they
deposit their monthly rentals due to the first respondent into the trust
account of Muvirimi Nyamwanza & Partners who represented them at the
hearing. Finally, the applicants ask that proceedings instituted against them
by the first respondent in the Magistrates Court at Harare for their eviction
and rent be stayed pending determination of the matter. The proceedings in the
Magistrates' Court were instituted by Bherebhende Law Chambers legal
practitioners on behalf of the first respondent, and on instructions from the
fourth respondent.
The facts which underlie the dispute may be summarised as
follows:
All the applicants are tenants who occupy premises at Stand
184 Mutare Road, Msasa, Harare. The premises are owned by the first respondent.
There are other properties which are owned by a company known as Beverley
Properties (Pvt) Ltd which is a sister company to the first respondent. But
those are not the subject of the instant application and are mentioned for
because they are referred to in many of the documents produced by the parties.
For some time before the dispute arose the applicants were paying rent to
estate agents appointed by the first respondent, Robert Root & Co (Pvt)
Ltd. From September 2011 the applicants were instructed to pay the rent to
Honey & Blanckenberg legal practitioners who they were advised represented
the first respondent. Problems started when the applicants were presented with
a letter dated 30 September 2011 which was purportedly written on behalf of the
fifth respondent, the National Indigenisation and Economic Empowerment
Board. The letter is addressed “To Whom it May Concern”. It states
that the first respondent and its sister companies named in the letter have
“been indigenised in favour of Gedion Hwemende, an indigenous person as defined
by s 2 of the Indigenisation and Economic Empowerment Act”. The letter
further states:
“Mr Hwemende, who previously held 40% shares in the
above mentioned companies, now holds 100% shares. As majority (sic)
shareholder of the company we expect that all concerned will enable Mr Hwemende
to take effective control of the company and all its assets.”
Brandishing the letter referred to above, the fourth
respondent demanded that the applicants pay rent for their occupation of Stand
184 to him. He asserted that he was the only shareholder of the first
respondent. In response, Honey & Blanckenberg wrote to the applicants a
letter dated 1 November 2011. The letter states the following:
“There has been no change in ownership of the properties situate
on Robert Mugabe Road which are owned by Beverley East Properties (Pvt) Limited
and Karoi Properties (Pvt) Ltd. Robert Root Property Consultants of 65
Central Avenue who were managing the properties decided to withdraw from
management of the properties while the present difficulties with the properties
were being resolved. There has been to our knowledge no change in the
share ownership of the Companies who are the registered owners of the
properties and all tenants have leases with the companies in terms of which
they are required to pay their rentals and their share of operating costs to
the offices of Robert Root. This has now for the present been changed and
tenants must pay their rentals and costs to this office as we have for years
(represented) and still represent the companies from which you lease the
properties you occupy. Should you make payment to any other party you will be
in breach of your leases and will be evicted from the properties. Payment of
your rent and charges to any third party does not constitute payment of your
rent. The attached letter of 6th October 2011 from Robert Root
addressed to the writer does not constitute a change in ownership of the
companies or the obligation to pay rentals to the companies which monies must
be used to pay for the rates and charges to the parties that provide services
to the companies and to maintain the properties where the obligation is not on
the tenant in terms of the leases. If you are concerned about this, you should
consult your legal practitioners or your advisors or the writer.”
In December 2011 the applicants were served with two
letters written by Bherebhende Law Chambers. Both letters are dated 21 December
2011. The first letter is addressed to Kenneth Regan of Honey &
Blanckenberg and makes reference to the collection of rentals from properties
owned by Karoi Properties and Beverley East Properties. It reads as follows in
the relevant parts:
“We advise that as of 30 September 2011 our client Gedion
Hwemende is now the 100% shareholder in the two companies as will more fully
appear from annexure A hereto. We have been advised that you have been
collecting rentals from the tenants occupying the factories and houses owned by
these companies. We advise that you have no right whatsoever to claim rentals
from the tenants of the two companies and should you continue to do so we will
press criminal charges against yourself and against the person on whose behalf
you are claiming. We hope you will be guided accordingly.”
The second letter was addressed to the “tenants of Karoi
Properties at 184 Mutare Road”. Although it is written by Bherebhende Law
Chambers, it is stated to be “from: OUR CLIENT GEDION Hwemende.” The
letter states the following:
“We advise that Gedion Hwemende, our client, is now the
owner and 100% shareholder of Karoi Properties, your landlord as will more
fully appear from annexure A hereto. We advise therefore that all the rentals
should be paid to Gedion Hwemende and not to any other person. Until you have
been advised otherwise in writing payments should be made at:
Bherebhende Law Chambers Legal Practitioners
124 Samora Machel Avenue West
(Opposite Harare Exhibition Park) Harare
And receipts will be issued. The payments should be made
monthly in advance before every month end. The failure to pay rent on time or
the payment of rent to any other person or authority who is not the landlord
but who claims to be such shall result in legal proceedings being instituted
for your eviction without further notice to yourself. We hope you will be
guided accordingly.”
The applicants' dilemma continued to unfold. By
memorandum dated 9 February 2012 addressed by Honey & Blanckenberg to the
“Tenants 194, 184, 186, 188 Mutare Road” the following was communicated:
“It has been established from the Indigenisation Board set
up by the Ministry of Indigenisation that none of the abovementioned properties
owned by Beverley East Properties and Karoi Properties have in any way been
indigenised. Accordingly Hwemende and any of the other parties connected to him
should not come onto the properties and should not interfere with the tenants
in any way. Any leases which they have purported to give to tenants are
invalid. Many of the tenants particularly 184 and 186 and on the other
properties have not been paying rent to the companies which they are required
by law to do … Any tenants who has (sic) not paid his/their rent and
operating charges for whatever reason since October 2011 are required to
immediately move off the properties and where appropriate return the keys of
the properties to the writer at this office failing which action will be taken
against them. The properties must be left in good order and all debris
must be removed from the premises. There are other tenants readily and willing
to move on to the properties.”
On 27 July 2012 Bherebhende Law Chambers wrote to the
applicants referring to their letter of 21 December 2011 and demanding payment
of rent to them within five days of the date of the letter. They threatened “to
seek a rent attachment order (sic) pending your eviction from the
premises”. True to that threat, proceedings were instituted against the
applicants for recovery of rent and eviction from the premises in August 2012.
The proceedings were by way of summons issued out of the Magistrates Court at
Harare under case number 14405/12. Those proceedings triggered the urgent
application in casu.
The application was set down for hearing on 20 September
2012. At that hearing only Mrs Chiguvare, MrBherebhende, and
MrMlotshwa appeared representing their respective clients stated
above. The respondents had not filed opposing affidavits then. After I had
dismissed the objection in limine taken on behalf of the first and
fourth respondents by Mr Bherebhende that the matter was not urgent,
the parties proceeded to make submissions on the merits. During the course of
making his submissions Mr Bherebhende requested that the matter be
postponed to 24 September 2012 to give the first and fourth respondent an
opportunity to file opposing affidavits. I allowed the postponement, as
the first and fourth respondents had made an undertaking that pending
finalisation of the matter no further action would be taken which would affect
the applicants' interests to which the application related. I directed
the applicants to serve the chamber application upon Honey & Blanckenberg
legal practitioners who were brought into the dispute by reason of having
demanded payment of rentals from the applicants as shown above.
MrMlotshwa was excused from attending the resumed
hearing following a concession by the other counsel that the fifth respondent
should not have been cited in the first instance, as the document which was
attributed to it was forged and had not emanated from its office. He, however,
urged the court to award the fifth respondent the costs it incurred when it was
cited in the proceedings. I will revert to this aspect of the fifth
respondent's costs later in this judgment.
On 24 September 2012 only Mrs Chiguvare and MrBherebhende
appeared. Opposing papers had been filed on behalf of the first and
fourth respondents on 21 September 2012. During argument it became clear that
the matter could easily be resolved if the directors of the first respondent
resolved the question of who should receive the rentals from the applicants on
behalf of the first respondent. The handing down of the judgment was
accordingly postponed at the request of the parties who indicated that the
matter could be resolved out of court. The postponement was again on the
undertakings given on behalf of the first respondent that no action adverse to
the applicants would be taken and that the proceedings at the Magistrates'
Court would be held in abeyance. In the intervening period a third law firm, Tavenhave
& Machingauta legal practitioners, wrote to the applicants a letter dated
19 October 2012. In that letter they demanded that rentals owed to the first
respondent and Beverley Properties be paid through their office. The letter
stated that:
“… failure to comply with the same shall result in
eviction notices being preferred (sic) against you.”
I caused the parties to attend a meeting to determine the
fresh demand. At that meeting the parties agreed that the matter could be
resolved and asked for more time to resolve the issue. During that time
Atherstone & Cook advised of their instructions to represent the second
respondent. They filed an affidavit in which the second respondent states that
she does not oppose the granting of the relief being sought. The affidavit sets
out what the second respondent perceives to be the correct shareholding
structure of the first respondent. She challenges the agreement in terms of
which the fourth respondent claims to be a shareholder of the first respondent
which, according to her, is a forged document. It is not necessary for me to
determine the question of the shareholding of the first respondent for the
purposes of the instant application.
What is being sought by the applicants is essentially an
interim interdict that the first, second, third and fourth respondents should
not demand rentals from the applicants through different law firms as has been
happening until they have resolved the directorship of the first respondent.
The requisites for such temporary relief are settled. They are:
(a) That the right which is the subject
matter of the main action and which he seeks to protect by means of interim
relief is clear or, if not clear, is prima facie established, though
open to some doubt;
(b) That, if the right is only prima facie established,
there is a well-grounded apprehension of irreparable harm to the applicant if
the interim relief is not granted and he ultimately succeeds in establishing
his right;
(c) That the balance of convenience
favours the granting of interim relief; and
(d) That the applicant has no other
satisfactory remedy.
See Nyika Investments (Pvt)Ltd vZimasco
Holdings (Pvt)Ltd & Ors 2001(1)ZLR 212 (H)at
213G-214B; Watson vGilson Enterprises & Ors 1997
(2) ZLR 318(H) at 331D-E; Econet (Pvt) Ltd vMinister
of Information, Post and Telecommunication 1997 (1) ZLR 342(H) at 345B.
Where a clear right is proved the applicant for a temporary
interdict need not show that he or she will suffer irreparable harm if the
interdict is not granted. The applicant merely has to show that an injury has
been committed or that there is a reasonable apprehension that an injury will
be committed. Nyika Investments (Pvt)Ltd vZimasco
Holdings (supra)at 214B-D.
In the instant case the applicants have a clear right to
occupy the premises which they lease from the first respondent. That right
entails the right to peaceful use and enjoyment of the leased property without
any disturbance from different agents or law firms purporting to act for the
same landlord. Injury has already been committed in the form of the
disturbances of or interference with the applicants' business operations and
the making of a claim for their eviction in the Magistrates' Court. I have no
difficulty in finding that the balance of convenience favours the granting of
the relief. The prejudice which the applicants would continue to suffer if the
interdict is not granted outweighs any inconvenience which may be experienced
by the first respondent if the interim relief is granted. I accept, too, that
the applicants have no alternative remedy which would afford them satisfactory
relief against the infraction of their rights by the first to fourth
respondents and their appointed agents. I am, therefore, satisfied that the
applicants are entitled to the relief being sought.
A notice of renunciation of agency was filed by the
applicants' legal practitioners before the judgment was given. That necessarily
affects the relief relating to where the rentals to be paid are to be kept
pending determination of the matter. In my view, a neutral person should
receive the rentals and hold them in trust for the first respondent pending
resolution of the disputes referred to above regarding its directorship. The
Registrar of the High Court would be the appropriate authority to receive the
money or to appoint a person to receive it.
The third respondent did not attend any hearing although he
was served with the applicant's papers. He has not, therefore, contested the
allegations made against him in the applicants' affidavits.
I need to consider the costs of the fifth respondent. It is
clear from the papers filed that the fourth respondent, Gedion Hwemende, is the
one who relied on the forged letter which he claimed had been written on behalf
of the fifth respondent. Based on that letter, he claimed to be the holder of
the entire shareholding in the first respondent, and went on to demand rentals
on that basis. The citation of the fifth respondent was, therefore, occasioned
by him. The conduct of the fourth respondent warrants that the fifth respondent
which was put out of pocket recovers its costs on an attorney-client scale. The
fourth respondent was aware that he could not just wake up to find himself as
the holder of all the shares in a company for free. He would know, too,
that the indigenisation legislation does not operate in the manner that he
sought to portray to justify his claim to a 100% shareholding in the first
respondent.
The question of the applicants' costs will be determined at
the stage of confirmation or discharge of the provisional order.
In the result, it is ordered as follows:
TERMS OF FINAL ORDER SOUGHT
That you show cause to this
Honourable Court why a final order should not be made in the following terms:
1. The first, second, third
and fourth respondents are interdicted from demanding rent from the applicants
other than in accordance with a valid resolution of the duly appointed
directors of the first respondent which resolution shall be furnished to the
applicants.
2. The first, third and
fourth respondents shall pay the costs of this application on an
attorney-client scale jointly and severally the one paying the others to be
absolved.
INTERIM RELIEF GRANTED
Pending determination of this matter, the applicants are
granted the following relief:
1. The applicants shall pay
the monthly rentals due to the first respondent to the Registrar of the High
Court or to a reputable estate agent appointed by the Registrar and the amounts
paid shall be held in trust for the first respondent until the issues of its
shareholding and directorship have been resolved.
2. The proceedings instituted
by the first respondent against the applicants in the Magistrates' Court in
case number MC 14405/12 be and are hereby stayed.
3. The third respondent and
all persons claiming occupation through him shall forthwith vacate the premises
he occupies on Stand 184 Mutare Road, Msasa, Harare, failing which the Deputy
Sheriff shall take all steps necessary to eject him from the premises.
4. The fourth respondent
shall pay the firth respondent's costs on an attorney-client scale.
SERVICE OF PROVISIONAL ORDER
The applicants' legal
practitioners are given leave to serve a copy of this provisional order upon
the first, second, third and fourth respondents.
Muvirimi Nyamwanza & Partners, legal
practitioners for the applicants
Bherebhende Law Chambers, legal practitioners for
1st & 4th respondents
Atherstone & Cook, legal practitioners for 2nd
respondent
G.N. Mlotshwa & Company, legal
practitioners for 5th respondent
