DUBE J: This is an application for an interdict to
stop the first respondent from selling and transferring stand No 47 Addington
Lane, Ballantyne Park, Harare.
The background facts to this matter are common cause. The applicant entered
into a lease agreement with Brian Stevenson, the first respondent's husband
from 1 April 2005 to 31 October 2006 and the lease was renewable on the same
terms. The applicant claims that he made certain repairs and improvements to
the property for which he is entitled to be reimbursed. The applicant seeks to
interdict the respondent from selling and transferring the house pending the
determination of the claim for improvements. The applicant claims that if the
first respondent who resides in Jamaica, sells the property and takes the funds
out of the jurisdiction of the court, it will be difficult for him to recover
the money he expended in effecting the improvements. The applicant has
instituted an application under HC 10286/12 for unjust enrichment where he is
claiming damages for improvements he made to the
property.
The first respondent is opposed to the application and
submitted that she cancelled the agreement of sale for non-payment of
rentals and the applicant had previously purported to pay the purchase price in
a manner that was legally unacceptable. The respondent contends that the
applicant is unlikely to be successful in the claim for improvements. The first
respondent denies that the applicant performed any repair or replacement work
other than that which he was obliged to perform free of charge in return for
being granted each lease, with the rentals pitched lower than would have been
the case. The respondent denies that the applicant performed any work on the
property after the cancellation of the lease. That the applicant lost his right
to transfer of the property into his name, is a mala fide possessor
and has not set out a basis for a claim for improvements.
The following are the requirements for a temporary interdict and were laid out
in Neptune (Pvt) Ltd vNeptune Enterprises HH
127/88 as follows;
(a) the
applicant must show a prima facie right though open to some doubt,
(b) that he has
suffered actual injury or has a reasonable apprehension of injury
(c) that there
is no other ordinary remedy by which he can be protected in the same way
as an interdict.
(d) The injury must
be irreparable.
(e) The
balance of convenience must favour the applicant.
The applicant claims that the first repairs were carried
out around October 2006 to make the property habitable. He later carried out
several repairs to maintain the condition of the property. These in summation
include painting the premises, constructing a septic tank, drilling a borehole,
house repairs and plumbing. In February 2007 the parties entered into a deed of
sale with the rights and obligations of the lease continuing until the purchase
price was paid in full. The first respondent cancelled the agreement in April
2007. Following the cancellation, the applicant filed a claim for transfer of
the property into his name and absolution from the instance was granted by the
High Court which decision was later confirmed by the Supreme Court on 14
February 2011. Summons for eviction of the applicant from the premises were
issued in June 2008 and the respondent obtained an order from the High Court
evicting the applicant. The applicant appealed and remains on the property.
The applicant has lost his claim to ownership of the
property and is a mala fide possessor. The law with respect to this
class of possessors was outlined in De Beers Consolidated Mines vThe
London & South African Exploration Co (supra) G at 372 as
follows;:
“A mala fide possessor who has affixed materials
to the land and, before demand made by the owner, has disannexed and removed
them, is not deemed to have parted with his ownership in the materials. After
demand, he no longer has the right to retain the land or remove the materials
from the land, nor is he entitled to compensation except for such expenditure
as he may have necessarily incurred for the protection or preservation of the
land. If, however, the rightful owner has stood by and allowed the erection to
proceed without any notice of his own claim he will not be permitted to avail
himself of his fraud, and the possessor, although he may not have
believed himself to be the owner, will have the same rights to retention and
compensation as the bona fide possessor.”
Once the applicant lost his claim for ownership he became a
mala fide possessor and he lost the right to compensation
other than improvements necessary to protect the property or
preserve it compensation.
The respondent claims that part of the applicant's claim
for improvements prescribed in November 2012. The cause of action regarding
some of the improvements and those effected before 2008 arose when absolution
from the instance was granted in 2008. In fact the applicant was well aware
after the cancellation of the contract of sale that he was losing the property
and he did not take any action then until September 2012 when he filed a claim
for improvements. The applicant had three years within which to bring his claim
for improvements made. By the time he filed the claim for improvements that
part of the claim had prescribed.
After the respondent had obtained judgment on absolution from the instance and
issued summons and obtained an order for eviction in 2008 under HC 3212/08 it
became evident that applicant was no longer going to buy the house and
that the respondents no longer wanted him on the premises. He continued to
carry out works on the property. These relate to provision of top soil, plants
and pots, tobacco manure, trampoline mat, replacement and repairs to geyser and
kitchen, plumping supplies and repairs, drilling and installing and supplying
accessories for a bore hall, repairs to roof leaks and ceiling, repainting the
premises,paint constructing a septic tank and soakaway and repairs to the alarm
system among other things. The applicant avers that these repairs were
necessary to maintain the condition of the property and keep the property in a
good state of repair and to make it more habitable. The applicant was required
in terms of the lease agreement to maintain the property in a habitable
condition and he did that. Clause 9 of the lease agreement provides that the
lessee shall make no internal or external alterations or additions to the
property whether structural or otherwise or interfere with the electrical
installation in the premises. He has done things he was not entitled to do. Any
alterations or additions were supposed to be carried out with the lessors'
permission and such permission was never given. A tenant is entitled to only
necessary and useful improvements. No such permission was given and hence the
improvements if any, were unauthorised and cannot be claimed. Any repairs and
maintenance, would be made at his own expense .The repairs cannot be said to
have been incurred for the protection and preservation of the property. There
is nothing to suggest that the premises were in a state of degradation or
derelict and therefore it is unlikely that the applicant will be able to show
the existence of necessary improvements that would entitle amala fide
possessor to compensation for works carried out. See Business Aviation
Corporation vRand Airport Holdings 2006 [6] SA 605 for that
principle.
The papers attached consist mainly of quotations and
delivery notes. Most of the invoices attached do not indicate what the
materials would be used for. For example the invoice for tobacco and topsoil.
It is not clear how these invoices arise. This is not proof of what work was
quoted or what work was done. The improvements claimed have not been
quantified. Most of these improvements were carried out in the Zimbabwe dollar
era and were not expressed in US dollars.No basis for unjust enrichment has
been laid. It does not appear that the applicant has shown that bit has
effected improvements for which he is entitled to compensation. I am not satisfied
that applicant has shown the existence of a prima facie right.
Having found that there has not been shown the existence of
a prima facie right, the issue of irreparable harm does not arise.
However, even assuming I am wrong in this view, the applicant's fears are
without foundation. The applicant fears that if the respondent sells the
property and takes the funds out of the jurisdiction of the court, it will be
difficult for him to recover the money he expended in effecting the improvements.
He has not shown that the applicant intends to dispose of the property for
purposes defeating satisfaction of his claim for improvements. The applicant
has an order for holding over damages of $55000-00. These have been calculated
up to November 2012 and currently stand at $101 000-00. The applicant has been
in the premises since then and continues to accrue further holding over
damages. What also ought to be considered is that part of the applicant's claim
has prescribed and it is unlikely that applicant's remaining claim for
improvements will exceed that of holding over damages. The respondent is
prepared to set off this amount against what he may be owing the applicant. In
the event that the applicant wins the application for improvements, he can still
enforce the judgement wherever the respondent may be. He is unlikely to suffer
any irreparable harm or prejudice.The applicant seeks a temporary interdict
which he equates to a caveat. The two remedies are different. This property is
not res litigosa after the applicant failed in his claim for transfer
of the property. The applicant could have opted for an ordinary caveat because
the applicant no longer has any right over the property. An order that the
money be held in trust until the finalisation of the application would have the
same effects as an interdict. The remedy sought is too drastic in the
circumstances of this case. There exists other remedies which can adequately
protect him in the same way as an interdict.
The balance of convenience favours both parties. The
respondent stands to be prejudiced if the relief sought is granted and the
application for unjust enrichment is dismissed. The respondent will not be able
to sell the property should she choose to do so. The applicant on the other
hand will be inconvenienced if the relief sought is refused and he ultimately
wins the claim for improvements. He will be required to pursue the respondent
who is based outside Zimbabwe. This will be costly for him.
Having considered these factors together, I am not
satisfied that the applicant has shown a good basis for an interdict.
In the result it is ordered as follows:-
1.
The application is dismissed.
2.
The applicant shall pay the costs of this application.
Musimwa & Associates, applicant's legal
practitioners
Wintertons,respondents'
legal practitioners
