MWAYERA J: The application was
placed before me through the urgent chamber book. The matter was set down
for hearing. During the hearing on 21 January 2014 the respondent filed
opposition papers. Both applicant and respondent counsels addressed
the court on urgency and merits.
The applicant sought to have the status
quo maintained arguing that the respondent had despoiled them by unlawfully
taking the law into their own hands. The applicant argued that the
respondent had locked gates to the premises from which applicant operates a
school. This was to the detriment of more than 100 students and parents
who paid fees for their children's education. The respondent on the other
hand raised two points in limine.
(1) That the applicant has not
complied with order 32 as they have not stated the application is urgent.
(2) That the applicant has no locus
standi to bring the matter since the applicants is run by the respondent.
I will deal with the first
point. It is clear from the certificate of urgency that the applicant is
decrying that they have been disturbed of their lawful possession and as such
cannot carry on with their activities at the school. This was further buttress
in the founding affidavit and in the oral submissions the respondent counsel
did not repute having locked out the applicant. From papers one is satisfied
that the matter is urgent and ought it be heard on urgent basis.
The second point in limine
that the applicant has no locus standi equally crumples when viewed with
the fact that the respondent is being run by the deponent to the founding
affidavit Wilbert Runyayaro Sayimani. This is moreso when viewed in
conjunction with respondent's submissions that he was running the school on
behalf of applicant. It is a fact that the school gates or premises were
locked up at the expense of the school operations and the responsible school
runner has approached the courts for redress. Having ruled out that the
points in limine raised do not hold water the next point is on whether
or not the application is urgent.
The legal position on what
constitutes urgency is settled in plethora cases suffices to mention Kuvarega
v Registrar General and Anor 1998 (1) ZLR 188. A matter is viewed as
urgent if its such that it cannot wait for the normal roll or queue of set down
process. This is in circumstances were the delay would render the relief
hallow in that delay would occasion irreparable harm. A perusal of the
applicant's papers filed of record in particular the certificate of urgency and
founding affidavit by Wilbert Runyayaro clearly shows a dire situation which
requires immediate intervention so as to restore the statusa quo.
The respondent has unlawfully locked the premises taking the matter into their
own hands to the detriment of school children and their parents.
Spoliation by nature is urgent and this application falls within those
parameters. The argument by the respondent that the lease agreement was
not properly obtained and that the deponent to the founding affidavit had some
misunderstanding with the respondent does not change the complexion of the
matter at all since it does not show that the unlawful locking of premises or
gates was self created or occurred way back and the applicant did not
act. The matter is clearly urgent.
From submission filed it is clear
that before the locking up of gates the applicant was in undisturbed possession
of the premises in question and that the applicant was a school for children
registered with it. The applicant might not be following Ministry of
Education and Harare City health by laws but that does not give the respondent
a right to unlawfully disposes the applicant under the guise of desire to
comply with Ministry of Education and City Health regulations in what appears
on the face of it to be rental and personality wrangle. The peaceful
undisturbed possession has to be restored and accordingly the interim relief as
prayed for is granted.
Muringi
Kamdefwere, applicant's legal practitioners
Nyawo Ruzive Legal Practice, respondent's legal practitioners
