MANGOTA J: The abovementioned four matters were referred to
me for dealing at one and the same time. On going through the records which
relate to each of them, I remained alive to the fact that, whilst the
applicants are different and have, accordingly, filed their respective
applications with the court separately, everything else which relates to each
of the four cases is substantially one and the same thing.
I, for instant, noted that:
·
the applicants' causes of action are the same
·
the circumstances which gave rise to those causes of action are the same - and
·
the relief which each applicant is seeking is the same.
The above described
circumstances persuaded me to invoke the provisions of order 12
r 85 of the rules of this court which allows a court, faced
with a situation similar to the present one, to order a joinder of parties and
actions. The rule reads:
“… two or more persons may be joined together in one action
as the plaintiffs or defendants whether in convention or reconvention
where-
(a) if separate actions were brought by
or against each of them, as the case may be, some common question of law or
fact would arise in all the actions; and
(b) all rights to relief claimed in the action,
whether they are joint, several or alternative are in respect of or arise out
of the same transaction or series of transactions”.
The applicants filed separate applications
against the first and the second respondents.
The first respondent was cited in its capacity as the owner
of the property which is known as Metro Centre. The property is situated
opposite Eastgate complex between Robert Mugabe Road and Robson Manyika Avenue.
It stretches from Wayne Street to Fourth Street. The property, it was
submitted, is part of industrial plots 1 and 2 STL measuring 11,823 square
metres in extent. It comprises 1,106 square metre 4 storey office building,
3725 square meter warehouse building split into six lettable units among other
shops and warehouse buildings. The second respondent was cited in his official
capacity.
On 24 September, 2013 the second respondent, acting under the instructions of
the first respondent, served notices of eviction from the property to the
following four tenants of the first respondent:
(A)Amurak Investments (Pvt) Ltd
(B) Logmuc Electrical
(Pvt) Ltd
(C) Tifo Services (Pvt)
Ltd - and
(D)ETAA (Pvt) Ltd T/A Johnson's
Saddlery And Fine Leatherware (Pvt) Ltd
The first respondent had
successfully instituted legal proceedings against its
abovementioned four tenants some time last year and had,
pursuant to the court orders it obtained, sought to have all four of them
lawfully evicted from its property. The eviction of the four tenants was
scheduled for 27 September, 2013. The notices of removal which the second
respondent served on the tenants prompted the applicants to file with the court
the present application, on an urgent basis. They prayed the court to:
·
bar the first respondent from evicting them when it evicts its tenants from the
property - and
·
order the second respondent to stay execution of the writs of ejectment in
respect of their properties and/or the premises which they occupy on the
property of the first respondent.
The papers which are filed of
record show that none of the applicants was cited as a
defendant, or respondent, in the proceedings which the
first respondent instituted against its tenants some time last year. The court
orders which are a result of the mentioned proceedings make no reference at all
to any of the four applicants. The writs of ejectment which resulted from the
court orders made no reference to any of the applicants. Those writs were, to all
intents and purposes, directed at no one else but the first respondent's
tenants. The court was, therefore, left to wonder as to what caused the
applicants who were not, in any way, joined to the dispute which existed
between the first respondent and its four tenants to labour under the
apprehension that the eviction of the tenants would adversely affect the
applicants themselves.
It was the contention of the applicants that the writs of execution which the
first respondent had prepared instructed the second respondent to evict from
the premises the tenants and all those who occupied the property through
them. All the four of them stated that the words “all those who
occupied the premises through them” caused in them the apprehension that the
respondents, out of ignorance of the correct position of the matter, might be
tempted to work under the genuine, but mistaken, presumption that the
applicants were occupying the premises through the tenants whose eviction from
the property was/is imminent when they were, in fact, occupying the premises in
their own right. It is for the abovementioned reasons, if for no other, that
the applicants approached and requested the court to intervene and, in the
process, ensure that their continued presence on the property is not only
protected but is also allowed to remain intact until the first respondent;
through due process of law, has evicted them from its premises.
During the hearing of the matter, the court established that:
·
the four applicants occupy separate apartments at the first respondent's
property.
·
all four of them entered the apartments which they are in occupation of without
the knowledge, consent or authority of the first respondent;
·
Zimbabwe National Liberation War Veterans Association (Harare Province) offered
the apartments which each of the four applicants is occupying to the applicant.
·
none of the applicants is paying rent to the first respondent or to anyone
else;
·
none of them is occupying the apartment it is in occupation of through any of
the first respondent's tenants - and
·
each one of them is occupying the premises in its own right.
It was the contention of the
applicants that they have no problem with the first
respondent evicting from the premises its tenants. They
argued that the eviction in question should be limited to the tenants of the
first respondent and should not, therefore, be extended to them. They all
remained of the view that, where the first respondent decides to evict them
from the apartments which they are occupying, the first respondent should
institute legal proceedings which are aimed at their eviction.
The first respondent filed notices of opposition to each of the four
applications. In each notice which it filed, it raised preliminary matters as
well as those which substantively dealt with the applications themselves. It
also filed an urgent chamber counter-application to each of the four
applications. The second respondent did not appear either in person or through
anyone else.
It is pertinent that the court examines this matter in the order in which
papers were filed with it. The first set of papers which the court received are
the four applications. These are the foundation of the present proceedings. Two
questions stand out to be dispassionately considered and resolved in so far as
this matter is concerned. These questions are the ones which centre on whether,
or not:
·
the applications are urgent - and, if they are;
·
the applicants treated the applications with the urgency which they deserved.
It goes without saying that a
positive answer to each of the abovementioned two
questions will not unnaturally incline the court to look at
the applicants' case more with favour than otherwise. It also follows that a
negative answer to the one, or the other, or both of the above questions will
incline the court to look at the applications with disfavour. The
applicants attached to their respective founding affidavits Annexure D. The
annexure is the notice of removal which the second respondent served on the
applicants. The notice was served on each of the four applicants on 24
September, 2013. The notice aimed at advising the applicants of their imminent
eviction from the first respondent's property. The eviction was pencilled for
27 September, 2013. The notice reads, in part, as follows:
“…. it is in your interest to be present on the above date,
especially in the case of Eviction, to enable you to take possession of your
personal belongings. Should you fail to be present, we shall proceed to execute
the warrant in your absence ….”
The first respondent did not deny that the applicants were served with the
notices of removal by the second respondent. The court remains of the single
view that the second respondent served the applicants with the notices of
removal. The applicants would not have acted in the manner which they did if no
service of the notices had been made upon them. Their apprehension in this
mentioned regard was, therefore, real and not imaginary. They realised that
their eviction from the property of the first respondent was imminent. Their
conduct wherein they instituted legal proceedings against the respondents
cannot be said to have been unreasonable under the circumstances of this case.
That conduct must be viewed against the fact that the first
respondent:
Ø did not join the
applicants to the actions which it instituted against its tenants;
Ø assumed, without
ascertaining the correct position, that the applicants were occupying its
premises through its tenants which assumption was not correct; and
Ø did not institute legal
action aimed at evicting the applicants in their own right.
Whatever court process which was
purportedly served on the applicants following the
court orders which the first respondent obtained against
its tenants was, therefore, of no legal force or effect. It is when such
matters as have been mentioned in the four going paragraphs are taken account
of that, from a prima facie point of view, the court is inclined to go
along with the position that the applications are not only urgent but have also
been treated with the urgency that they deserve by the applicants.
The first respondent, it has already been stated, raised a number of
preliminary matters. Among those in limine matters were/are
the following:
(i)
the certificate of urgency which one Benjamin Machengete of Messers Nyamushaya,
Kasuso and Rubaya Legal Practitioners filed with the court does not meet the
requirements of r 244 of the rules of this court;
(ii)
deponent has no authority to institute legal proceedings on behalf of the
applicant;
(iii)
applicant has dirty hands;
(iv)
interim relief and final relief sought are effectively the same - and, in the
case of the third applicant;
(v)
deponent has not established the applicant's locus standi;
The court will proceed to
consider the abovementioned points in limine, each in turn.
Counsel for the first respondent should be commended for
his sterling work in that he did not only raise these preliminary matters and
leave it to the court to figure out what he was driving home to but he also
supported his arguments on each matter with relevant case authorities. Such
arguments were, unfortunately for the applicants, wholly lacking from Mr Mutebere
who represented them in the applications. He was served with notices
of opposition in respect of each case and he, for reasons best known to himself,
remained apparently undisturbed by the progressive attitude which his learned
friend from the other side exhibited.
Be that as it may, however, the court proceeds to consider
the preliminary matters as follows:-
(i)
Ad Certificate of Urgency
Mr Benjamin Machengete prepared
the certificates of urgency in respect of each of the four applications. Though
the certificates are four in number, little effort is required to realise that
only one certificate was prepared and duplicated with minor variations which
suited the case of each applicant. The contents of the certificates show, in a
clear and unambiguous language, that they are on all fours with r 244 of the
rules of this court. The rule requires a legal practitioner who prepares a certificate
of urgency to give reasons for theurgency of the application. In each
case which is before the court, Mr Machengete gave the following
reasons which establish the urgency of the application:
*
that the applicant faces imminent eviction from the property it is occupying
when no due process of law has been instituted against it,
*
no law sanctioned the evictions,
*
the applicant cannot be evicted through any of the first respondent's tenants
as it occupies the premise in its own right - and
*
the unannounced evictions would cause irreparable harm to the applicants.
It must be accepted that the applicants are not occupying the premises of the
first respondent for the fun of it. They are conducting business or spiritual
activities on those premises. Their unsanctioned and abrupt removal from the
premises would cause them to suffer serious financial and/or other losses on an
unimagined scale. They, therefore, should properly and legally be evicted
to enable them not only to prepare their minds for a result which will come to
them when it does,but also to prepare the minds of those with whom they do
business or spiritual fellowship. Mr Machengete cannot, under the
circumstances, be said to have acted mechanically or not to have applied his
mind to the certificates of urgency which he prepared in respect of each case.
What he said tallies in a substantial way with what the applicants stated in
their applications. His work cannot be faulted and the court, therefore,
accepts the certificates which he prepared as having been in full compliance
with r 244 of the rules of this court.
(ii)
Ad Founding Affidavit
It is noted that each of the
applicants who instituted legal proceedings against
the respondents deposed to an affidavit which supported its
case. The first applicant -Sovereign Empowerment Centre Tutorial Trust – is a
trust which was established in terms of a Notarial Deed of Trust dated 27 May,
2013. The second applicant – Hachim Kitchens (Pvt) Ltd – is a company which is
incorporated according to the laws of Zimbabwe. The third applicant – Kingdom
Embassy Zimbabwe – is a Church or an universitas. The fourth applicant
– Stuartson Investments (Pvt) Ltd t/a Tokanga – is a company which is incorporated
in terms of the laws of Zimbabwe. The persons who deposited to the founding
affidavits in respect of each application did not say that they were doing so
for themselves. Each one of them stated that he was deposing to the affidavit
for, and on behalf of, the company or the organisation to which he belonged.
All of them stated that they had the authority of their company or their
organisation to depose to the affidavit upon which its case was anchored. The
first and third applicants produced such authority and their matter, therefore,
requires no further debate. The first respondent, however, raised the issue of
alleged lack of locus standi against the third applicant. The court
will examine that matter at a later stage. The fourth applicant's deponent produced
the authority during the time that it filed its answering affidavit. Its
case on that point is also settled. The second applicant's deponent
produced no authority which the law recognises for purposes of such proceedings
as the present ones. He produced a copy of a CR 14 form as his purported
authority to represent the company. The applicant was legally represented and
its legal practitioner knows as much as the court does that filing court
applications without the requisite authorities which the law requires in
matters of the present nature renders the application of his client not only
defective but also fatally so. The applicant's legal practitioner cannot,
by any stretch of imagination, persuade the court to accept, even for a moment,
that a CR 14 form which the second applicant's deponent produced constitutes
the authorisation which the law requires. The court has, therefore no
difficulty in accepting the first respondent's legal practitioner's submission
which was to the effect that the deponent did not have any authority to
institute legal proceedings on behalf of the applicant under the present
circumstances. The deponent did not attach to its affidavit a resolution
authorising it to represent its organisation.
A resolution by the Directors of a company is a sine
aquo non matter in all applications of the present nature. The
resolution constitutes proof of the fact that the deponent was clothed with the
authority to represent the company at the commencement of, or during,
litigation [seeChemist Siziba v Howkhope Investments (Private)
Limited and 2 Others HH108/2008, Mills Corpse (Pvt) Ltd v Mexico
Ko-opersie Bpk, 1957(2) SA 347].
It follows from the foregoing that the application is
fatally defective and cannot, accordingly, be allowed to stand.
The court observed that the deponent to the third
applicant's application produced a resolution which the church prepared
clothing him with the authority to depose to the affidavit for, and on behalf
of, the church. The deponent is a pastor in the church. The
resolution is dated 26 September 2013. It was signed by the church's
administrator one Bwititi.
In his argument on the point at hand, the legal
practitioner for the first respondent stated that the deponent has not
established the applicant's locus standi. He stated that the
mere allegation that an entity is a church does not grant it locus standi
in court. He made serious efforts to convince the court to subscribe to
the view that a church which intends to institute legal proceedings must make
averments which establish its locus standi. He, in short, insisted on
the point that the exact nature of the applicant must be established as
a pre-requisites for the applicant's having locus standi.
I must confess that the legal practitioner's argument left
me wondering as to what exactly he meant to convey. Because of the
confused state in which his argument on the matter was couched, I took the
trouble to read around the Latin phrase locus standi in an effort to
appreciate what he was driving home to.
·
Wikipedia, the free encyclopaediarefers to the phrase locus standi
to mean:
“--- the right to bring an
action, to be heard in court or to address the court on a matter before it ----
locus standi is the ability of a party to demonstrate to the court
sufficient connection to, or harm from, the law or action”.
·
Free Dictionary.comstates that :
“----- Locus standi is
the right of a party to appear and be heard before a court----.”
·
Wisegeek.comdiscusses the phrase and stresses that:
“..... locus standi
refers to the fact of whether or not someone has the right to be heard in
court..... As a general rule, a person has locus standi in a
given situation if it is possible to demonstrate that the issue at hand is
causing harm and that an action taken by the court could redress that harm...”
The above analysed matters place the case of the third applicant wholly and
adequately within the purview of a party which has locus standi in
court.
The third applicant is an universitas which perceived imminent harm
coming to it from the respondents. It remained of the view that the court
can redress that harm. It has every right not only to appear before, but
also to be heard by, the court. It has the right to bring its application
to court and its affidavit is, accordingly, properly before the court.
(iii) the third matter which the first respondent raised in limine
was, or is, that the applicants' hands are dirty and that, because of that
stated matter, the court should not hear them. It argued that a party which is
seeking to obtain relief from the court must not only have, but must also come
to it with, clean hands. The court is in full agreement with the
proposition that persons who seek to obtain relief from the courts must have
clean hands. No court will entertain a party's action when the party
comes to it with dirty hands. The court was referred to the case of Deputy
Sheriff, Harare vMahleza and Anor, 1997(2) ZLR425 HC on this
preliminary matter. The court read that case and observed that the facts
of the case in question are distinguishable from those of the present
applications. The respondent Mahleza, made up her mind to break
the law right from the beginning to the end. She made every effort to
avoid payment of sales tax by purchasing goods through her husband's transport
business. When judgement was obtained against her husband for the debts
which he owed to a bank and the Deputy Sheriff attached the goods which
belonged to her husband together with her own goods, she altered the
invoices which related to the goods which she had purchased. She made the
alterations of the invoices with a view to showing the court which was then
dealing with the case that she, and not her husband's business, had purchased
the goods. In making the alterations to the invoices as she did, her aim
and object were to mislead the court so that it takes a more favourable view of
her case than it would have done if the true and correct circumstances of the
case had been allowed to unfold themselves to the court. She was dishonest with
the court which she had, in that case, approached. Her hands were
dirty. She was also dishonest with the State to which she was duty bound
to pay sales tax. The present applicants did not, with respect, exhibit
any form of dishonesty to the court. They, if anything, remained candid
with the court both in their applications and in the statements which those who
appeared and spoke for them made during the hearing. The dirty hands
principle, in essence, is applicable to litigants who either defy a court order
or make an effort, as happened in the cited case, to mislead the court and come
to court to seek its protection when their hands are unclean. The
applicants stated that they did not resort to self-help when they took
occupation of the first respondent's apartments. They said the apartments in
question were dished out to them by the Zimbabwe Liberation War Veterans
Association [Harare Province]. The Association, according to them, formed
a Management Committee which administered the affairs of the occupants.
That committee, they said, advised them that it would engage the owners of the
building with a view to having their occupation of the apartments
regularised. The applicants, therefore, did not know that
their occupation of the premises was not sanctioned by law. Their minds
were, to the extent of the matter, clear, clean and untainted in any way. The
argument which the first respondent's legal practitioner raised on this preliminary
matter does not, accordingly, hold any water.
(iv) The fourth matter which the first respondent raised in limine is
that which centres on the reliefs which the applicants are seeking. The
first respondent's legal practitioner submitted that the interim relief and the
final relief being sought by the applicants are, in effect, the same. He
argued that this was improper. He drew the court's attention to the case
of Kuvarega v Registrar- General and Anor, 1998 (1) ZLR
188(HC) which he said supported his argument in this mentioned regard. This
matter cannot be resolved effectively unless the contentious orders are
scrutinised.
In all the four applications which are before the court, the interim relief
being sought reads:
“ Pending determination of this matter, the applicant is granted the following
relief:
1. That the second
respondent be and is hereby ordered to stay execution of a writ of ejectment
under case no. HC-/12.”
The final order being sought reads:
“That you show cause to this Honourable Court why a
final draft should not be made in the following terms:-
1. That the first
respondent be barred from evicting the applicant on the basis of an order
granted under case no. HC-/12
2. Costs of suit.”
A casual reading of the matter which pertains to this
preliminary issue would give the impression that the reliefs which the
applicants are seeking are identical. A closer examination of the same,
however, shows that the two orders which are being prayed for are separate and
distinct from each other. The final order, in the court's view, aims at interdicting
the first respondent from using the orders which it obtained against its
tenants to evict the applicants. The interdict is premised on the argument
that the applicants were, and are, not party to the proceedings which the first
respondent instituted with a view to evicting the four tenants from its
property. The interim relief, on the other hand, is an instruction to
the second respondent to stay execution of the writ of ejectment pending the
outcome of the matter on the return day. In as much as the first respondent instructed,
through a court order which it had obtained, the second respondent to attach
and remove from its property the applicants' possessions, the applicants are,
in the same vein, praying the court to grant an order to them on the basis of
which they would be able to instruct the second respondent to stay
execution of the writ pending the outcome of the matter on the return day. The
applicants' draft orders are in order and the first respondent's argument on
this preliminary matter cannot, accordingly, be allowed to stand.
In a paper which is titled Urgent Chamber Application, the
applicants' stated in paragraph 4 as follows:
“....if the respondent wishes to evict the applicant same
must institute legal process and do so lawfully”.
It is in response to this statement that the first
respondent filed with the court a chamber urgent counter- application.
It prayed the court to order that:
“1.
the respondents'(applicants in the main
applications) occupation of the premises be and is hereby declared
unlawful;
2.
in consequence of the order made in paragraph 1 above the respondents and all
the persons currently occupying the premises through them be and are hereby
ordered to vacate the premises and surrender vacant possession of the same to
the applicant within forty eight (48) hours of this order being made failing
which the second respondent shall be, and is hereby, directed to eject them
from the premises without further notice,
3.
in the event that this application
is opposed the respondents shall pay the applicant's costs on a legal
practitioner and client scale.”
To the extent that it filed the present application praying
the court for the above mentioned relief, the applicant's mind is ad idem
with the thinking of the respondents on this matter. It instituted due process
of law aimed at evicting the respondents from its property lawfully. Due
process, as is known, can commence by way of action or application. The
applicant chose the second option to realise its desired end-in-view.
Two matters will assist the court in determining the
merits, or otherwise, of the application. The matters in question are:
(a) the manner
in which the four respondents gained access into, and occupied, the premises of
the applicant as measured against.
(b) the action, or
reaction, of the applicant to the conduct of the respondents.
The context of the whole case, as stated by the applicant,
was that it purchased the property which is the subject of these proceedings in
1992. Its aim and object were to develop on the property a major retail
and parking complex.
The applicant stated that the deteriorating economic environment
of the late nineties coupled with the hyper-inflationary economic situation
which preceded the multi-currency regime of 2009 caused it to shelve the
redevelopment of the property. It gave a graphic description of the
condition of the property at the time of purchase and subsequent thereto as
follows:
“the property's buildings were old and in a bad state at
the time of purchase. These continued to deteriorate to a point where
they were no longer meeting the minimum safety and health standards. The
buildings on the property had become dilapidated. The sewerage system had
collapsed, the sewage no longer drained and would overflow into the open space,
the roof and gutters were leaking, the brick walls had weathered, the
electrical reticulation systems were old and are now in a dangerous
state”
The description of the condition of the property as given
by the applicant tallies in a material way with the contents of the papers
which the four respondents attached to their applications. The respondents attached
to their respective applications annexure E. The annexure is a resolution
which the Zimbabwe National Liberation War Veterans Association made when it
allocated the apartments on the property to the respondents. The
resolution was passed by the Association on 8 October, 2012. It, in part,
reads:
RESOLUTION PASSED ON UTILISATION
OF UNOCCUPIED BUILDINGS AT IT AND METRO CENTRES:
“The executive have resolved that it is necessary to occupy
the offices at the abovementioned centres by indigenous business people,
individuals and trusts benefiting widows and other disadvantaged groups.
This came as result of unoccupied premises being used by
street kids, vagrants and criminals as their safe haven. The City of
Harare have established its concern about health hazards being posed by the
place hence their desire to close. Looting on things which vagrants can lay
their hands on was also a major concern which prompted this office to take this
route of occupation after a through vetting on potential occupants.
The committee should, therefore, restore sanity throughout
the place in compliance to the city by laws.
A recommendation was also made to the effect of engaging
the owners for regularising the occupation.
E. CHITERA
Chairman
0772 804 225”
The respondents also attached to their applications
annexure F. It is dated 13 October, 2012. The annexure talks about
the birth of what the respondents referred to as the Metro and IT Centre
Management Committee which the Association of the War Veterans formed and mandated
with the responsibility of managing the property and restoring sanity on the
same. Part of Annexure F reads:
“RESOLUTION FOR TO FULLY UTILISE DISUSED OFFICES AT METRO
AND IT CENTRE BY EMPOWERMENT OF INDIGENOUS GROUPS
After having seen that the entire premises in question are
in a sorry state tendered from the previous tenants and street kids. If
one or two become occupied to keep the place in one piece, a lot of significant
work can be done to bring sanity.
Electricity need to be restored and fittings redone, doors
to be replaced, water to be restored, sewer rectified, drainages to be cleared,
toilets to revamped, refuse collection thrice weekly painting and general
sprucing up.........
Mr Rusere
Secretary”
The above constitutes the manner in which the respondents
gained entry into, and occupied, the applicant's property. The applicant did
not deny that the property was in the condition which the Association of the
War Veterans' resolution of 9 October, 2012 stated it to have been. It, if
anything, confirmed that to have been the state in which it was, or is.
The applicant purchased the property in 1992. It left it unattended up until
August 2009 when it, for the first time, decided to offer its tenants six
months' notice to vacate the premises and make way for the redevelopment of the
site. It, in earnest, started to make some serious decisions about the property
in, and around, March, 2010. Before then, it treated its property as a res
nullius to which other persons could help themselves without any pain of
the law visiting them. Under the above analysed set of matters, therefore, the
respondents could not, and cannot, see themselves as squatters or illegal
tenants who were, or are, on the property. They saw, and continue to see, themselves
as persons who were, and are, occupying a property which its owner abandoned.
After all, they did not resort to self-help when they took occupation of the
premises. The Association of the War Veterans which organised them under the
Indigenous Business Persons' banner remained accountable, so they believed, to
the owners of the property.
The reasons which the applicant gave for leaving the
property in a condition which attracted unauthorised persons to make use of it
are unacceptable. There was nothing which prevented the applicant from
employing and placing some guards at the property not only to guard against
unauthorised persons from entering and making use of the property but also to
protect it from any form of abuse. The applicant had the requisite financial
means to continue to announce its presence on the property, the deteriorating
economic situation which it referred to notwithstanding. The applicant required
very little money to pay a guard or some guards who would look after, and
protect, its property from vandalism or unauthorised use. The fact that
the Association could pass a resolution to allocate apartments in the property
to other persons, form a management committee which managed the premises and
dish out apartments in the property to the respondents and others without the
applicant raising any finger against such conduct confirms, in a clear and
unambiguous way, that the applicant had abandoned its property. The
abovementioned matters took place as late as October, 2012 – some ten years after
the property had been purchased. Takunda Emmanuel Gumbo who prepared the
applicant's certificate of urgency stated in para 2.5 of the certificate that
the fact that the respondents are squatters on the premises was previously unknown
to the applicant who only became aware of same through allegations to that
effect made by the respondents in the affidavits founding the main
applications. What this means, in effect, is that even as late as 29 September,
2013 – the date the main applications were filed with the court – the applicant
was not aware of the presence of the respondents on its property.
It is when such matters as these are taken account of that the court finds it
hard, if not impossible, to accept the applicant's contention that its
application is urgent. Urgency suggests two things which are:-
·
that the matter cannot wait - and
·
that the applicant treats it with the urgency which it deserves. GOWORA
J, as she then was, stated in Gwarada v Johnson & Ors
2009(2) ZLR 159, 160 (HR) that:
“…. the applicant must exhibit
urgency in the manner in which he has reacted to the event or the threat,
whatever it may be ….”.
The action, or reaction, of the applicant to the respondents' conduct showed
that the applicant allowed many things to wait. It did not treat its own side
of the case with the urgency which the matter deserved. It only acted, or
reacted, at the eleventh hour and when it was faced with the respondents'
applications.
The applicant's further reason for bringing the application on an urgent basis
was anchored on what it termed 'a clear case of commercial and moral urgency of
a continuing nature'. It stated that vacant possession of the premises should
have been given to the contractors on 23 September, 2013. The company which it
contracted to demolish the buildings on the property had the timeframe of 23
September - 23 November, 2013 to complete the demolition work, according to the
applicant. That company had, as at 23 September 2013, mobilised its resources
in terms of personnel which was to do the work and the equipment which it would
use in the demolition of buildings. The resources are on standby waiting to
commence work, it said. The applicant stated, further, that it is already
behind schedule in terms of the agreed timeframes which are in the contract
that it concluded with the demolition company. It said it stood to incur claims
by the demolition company for income lost while the equipment and the personnel
are waiting for the surrender of the premises.
In the court's view, the applicant has no one to blame but itself for the
situation in which it finds itself. It did not act as a diligent business
person who takes all necessary precautions to ensure that persons who occupy its
premises - legally or otherwise – have been cleared from, and made to vacate,
the same before the demolition company is engaged. It engaged the company and
mandated it to commence the work of demolishing the buildings which are at the
property on 23 September, 2013. But as late as 29 September, 2013 the applicant
was not aware of the presence of the respondents on its property. What it
stated on this point is self-inflicted injury which, through the exercise of
diligent care, the applicant could easily have avoided.
The other reason which the applicant advanced for bringing its application on
an urgent basis was its expressed fear. It said it feared that, since the
respondents are now aware that they will be evicted, the respondents may strip
the premises of fixtures in a manner which is prejudicial to its interests.
This is a very far-fetched argument to say the least. The court has already
been made aware of the deplorable state in which the property was when the
respondents took occupation of it. The respondents, in the court's view, are
the persons who repaired their respective apartments which vagrants and street
children had vandalised at the time that the applicant had abandoned its
property. When they, therefore, proceed to remove and take from the property
what belongs to them during the time of their lawful eviction from the same,
their conduct in the mentioned regard cannot in any way be constructed by the
applicant or anyone else for that matter to be working towards the prejudice of
the applicant. In any event, the applicant has already contracted a company
which will demolish the property's buildings as soon as vacant possession of
the same has been made by the respondents. The applicant did not ever state
that it will remove fixtures from the property's buildings before the
demolition work commences. The point which the applicant raised on this matter
is, accordingly, not a sustainable one.
The last, but not least, reason which the applicant
advanced for having the matter heard on an urgent basis centres on the
applicant's fear of incurring, or suffering, damages which are grounded in
delict. It stated that the continued occupation of the property by the
respondents places an obligation on it to involuntarily assume the risk, as owner
of the premises, of incurring damages in the event of any loss of life or
injuries to limps being suffered by the respondents. The applicant continues to
refer to the respondents as illegal occupants whom it wants to be evicted from
its property. The applicant knows as much as the court does that the
respondents' continued occupation of the property will be at their own risk.
Surely, the defence of volenti non fit injuria would avail itself to
the applicant where the respondents venture to sue it under such circumstances.
The applicant's argument in this mentioned regard, like in the other matters
which the court has already examined, does not hold any water.
The court noted and mentions, in passing, that the current application does not
have a provisional order which states:
·
the interim relief - and
·
the final order sought.
The applicant attached a draft,
and not a provisional, order. This matter alone takes
the application out of the purview of applications which
are brought to court on an urgent basis and places it into a completely
different area of procedural law. Indeed, the applicant argued in a strenuous
manner against the idea of having an interim relief which is identical to the
final relief being sought. Its legal practitioner went as far as citing case
authority in support of his client's case on the point. However, for some
unknown and unexplained reasons, the applicant, this time around, made up its
mind to fall deeply and squarely in the pit into which it wanted the
respondents, when it argued in limine, to remain dead and buried, so
to speak.
The court, further noted and mentions, in passing that the certificate of
urgency which relates to the chamber urgent counter-applications was not signed
by its author. One Takunda Emmanuel Gumbo prepared the certificate. His
law firm signed it. That certificate is, accordingly, defective at
law.
The court has considered all the circumstances of this case. It proceeded on
the basis that the parties to the applications were more, or less, the same;
the issues which fell for determination arose from the same set of facts and
the subject matter of the applications was the same. It is satisfied that, the
first, third and fourth applicants (first, third and fourth respondents in the
urgent chamber counter-application) managed to prove, on a balance of
probabilities, the urgency of their cases both substantively and on
technicalities. The second applicant was not able to measure up to the mark. It
fell on one point in limine namely the irregular and defective
authority which its deponent produced for him to depose to the affidavit for,
and on behalf of, his company. The first respondent who was the applicant in
the chamber urgent counter-application fell on all fours on substantive
matters.
In the result, it is ordered that:
1.
the first, third and fourth applicants' applications be, and are hereby
granted with costs.
2.
the applications of the second applicant in main case and the chamber urgent
counter-application be, and are hereby dismissed.
3.
In regard to para 2 above, each party bears its own costs
Govere Law Chambers,1st
2nd 3rd & 4th applicants' legal
practitioners
Wintertons,
respondent's legal practitioners
