NDOU
J: The applicant was a tenant of the 3rd respondent in
occupation of immovable property known as sub-division B of Benga. In the
year 2000 the 3rd respondent, through one of its founder members,
the late Wilhelmina Cornelia Roets in her life time, gave the applicant a
verbal right of first refusal in the event that the immovable property known as
subdivision B of Benga is sold.
On or about 8 August 2008, 3rd respondent sold the immovable
property at issue to 1st and 2nd respondents, who are
husband and wife and were tenants occupying part of the property in
dispute. The applicant, on the one hand contends that the sale of the
immovable property at issue to the 1st and 2nd
respondents was in violation of the right of first refusal granted to
him. The 1st, 2nd and 3rd respondents,
on the other hand, contend that the applicant was afforded the opportunity to
exercise his right of first refusal but declined to do so.
One of the issues raised by the 1st to 3rd respondents is
whether or not the matter before the court is res judicata in the
sense that the issue of right of first refusal by the applicant and his right
of occupation has already been dealt with by another court i.e. Kadoma
Magistrates' Court. It is beyond dispute that on 14 August 2008, the
applicant approached Kadoma Magistrates' Court seeking an order to be given
three months notice to vacate the premises in dispute. The applicant
alleged in an affidavit that the 1st respondent was now his “new
landlord”. It was only after the Kadoma Magistrate ruled against him that
applicant approached this court on 23 September 2008. The Kadoma
Magistrates' Court judgment under case number 147/08 was not appealed by the
applicant as evinced by papers in this application. Further, when the
applicant approached this court he was at the same time defending an eviction
suit at Kadoma Magistrates Court under case number 167/2008 as shown by papers
filed in this application. His own opposing papers were signed on 22
September 2008 i.e a day before he filed this application. The incidents
complained of allegedly occurred on 8 August 2008. In this application
the applicant failed to disclose to the court that the issue of the right of
first refusal was a matter before the Kadoma Magistrates' Court under case
number 167/2008. From the papers before me it is clear that one of the
issues for determination under Kadoma Magistrates' Court case number 167/2008
is whether or not applicant had a right of first refusal to purchase the
disputed property and therefore that the sale to 1st and 2nd
respondents was null and void. This was made an issue by the applicant in
his papers in Kadoma Magistrates' Court. The judgment of that court is
confirmed by the applicant himself in his viva voce testimony in this
court. The applicant did not appeal the judgment and that judgment,
whether wrong or right remains in force. There exists a system of appeals
and reviews to set aside the decisions of the lower courts. As it is, the
lower court in case number 167/08 made a ruling rejecting the existence of the
right of first refusal and ordered the ejectment of the applicant. If the
applicant was not satisfied with the Magistrates' Court's rejection of his
right of first refusal he should have appealed the judgment and not instituted
an urgent application. The matter is res judicata.
Accordingly, the provisional order granted by this court on 23 September 2008
is discharged with costs on a legal practitioner and client scale.
Calderwood, Bryce Hendrie &
Partners, applicant's legal practitioners
Hwalima,
Moyo & Associates, 1st, 2nd
and 3rd respondents' legal practitioners
