MWAYERA
J: The defendant entered an appearance
to defend and filed a special plea in bar/abatement in terms of Order 21 rule
137 of the High Court Rules. The special
plea was in relation to a claim by the plaintiff for eviction of the defendant
and all those who claim through her occupation of Stand No 11 355 Joseph Msika
Housing Cooperative Hatcliffe, Harare.
As
discerned from the plaintiff's declaration the basis of the claim is as follows;
that on or about November 2006, the plaintiff was allocated Stand No 11355,
Joseph Msika Housing Cooperative Ltd, as a member of Harare North Housing
Cooperatives Union Ltd.
That the plaintiff
paid for the land, road, sewer and water reticulation services in respect of
the allocated stand. The plaintiff after being authorised by the cooperative
proceeded to effect improvement on the property. Sometime in September 2012, the defendant
unlawfully and violently evicted the plaintiff together with his family and
took occupation of the property together with the improvements. That the stand is registered in the name of
the plaintiff in the City of Harare and Joseph Msika Housing Cooperative Ltd
records. That there being no contractual
relationship between the defendant and either the plaintiff or Joseph Msika
Housing Cooperative Ltd Harare North Housing Cooperative Union, the plaintiff therefore
seek an order divesting the defendant of possessing and use of the property and
vesting the same with the plaintiff.
The
defendant has despite demand by the plaintiff refused and or neglected to
vacate the property. Upon hearing the
opposed application the plaintiff sought for the upliftment of bar to file
heads of arguments which were not timeously filed. The defendant opposed the application. It emerged in that preliminary hearing that
the plaintiff inadvently omitted to file heads for the present case. It was agreed by both counsel for the
plaintiff and the respondent that but for the names of the parties the same
lawyers were engaged in two other similar cases on similar facts and that some
line of arguments were advanced as in heads of the present case. Counsel for the defendant was fully aware and
appreciative of the heads but objected in principle that the plaintiff was not
in compliance with rules of this court.
It
was apparent the mistake of not placing heads of arguments in all three
different files in which the same lawyers were appearing arguing along the same
line albeit for different clients was not farfetched. The era appeared genuine and the explanation
given cannot be described as not credible.
In fact counsel for the defendant although opposed the upliftment of bar
advanced no grounds of prejudice that would be occasioned. In fact he was fully aware of the nature of
heads and argument advanced and was further in a position to comment on them
and argue his case. It is with this
background and consideration of interest of administration of justice that we
acceded to the application. We are alive
to the very essential need for the rules of this court to be followed and
complied with. However, given the
central desire of administration of justice where there is a credible
explanation for none compliance and also where there is no prejudice to the
other party it is my considered view that none compliance which does not fall
in the ambit of wanton total disregard (for which there is no credible
explanation) should in exceptional circumstances in the interest of fully
ventilating a matter to achieve the interest of administration of justice, be
condoned. The circumstances of each case
of course have to come into play.
Having
made a finding that there is no prejudice which will be occasioned and that the
explanation given is not only credible but genuine, it was ruled that it is the
interest of justice that the bar be uplifted.
The matter then fell for ventilation as earlier outlined on plea in bar
or abetment against a claim brought against the defendants by the
plaintiff. The defendant filed the
special plea in terms of Order 21 rule 137 of the High Court on the basis that
the plaintiff does not have:-
1. locus
standi;
2. that the plaintiff has not exhausted
domestic remedies;
3. that
the order is difficult to comply with since the stand number cited does not
exist at law.
I
propose to deal with the issue of
locus standi first. It is trite locus standi exists when there is direct
and substantial interest in the right which is the subject matter of the
litigation and the outcome thereof. A
person who has locus standi has a
right to sue which is derived from the legal interest recognised by the
law. In the case of Stevenson v Minister of Local Government
and National Housing and Ors SC 38-02, the court in outlining locus standi in judio stated in many
cases the requisite interest or special reason entitling a party to bring legal
proceedings has been described as “a real and substantial interest” or as a
direct and substantial interest. Given
this legal position the plaintiff being a member of the Joseph Msika Housing
Cooperative Ltd, which cooperative allocated the stand to the plaintiff, the
plaintiff is clothed with locus standi. The plaintiff's interest in the circumstances
is real and substantial. The applicant
sought to rely on the argument that the land in question is alienated state
land yet the land was not only surveyed and marked on general plan DC 3843 but
also that there is correspondence from the Ministry of Local Government, Public
Works and Urban Development confirming allocation of stands including that of
the plaintiff to cooperatives. The
plaintiff having been allocated a stand by the Joseph Msika Cooperative which
she is a member and further that the plaintiff possessed the stand and constructed
a four bedroomed house to slab or foundation level proves her rights. The plaintiff has not only substantial
interest in the matter but has locus
standi in judicio in so much as to protect their interest in the
property. The case of Pedzisai v Chikonyora 1992 (2) ZLR 445 Gubbay CJ clearly outlined how an individual
upon being given occupation is added with locus
standi. The honourable judge
remarked “consequently upon being given occupation for lease being registered,
the lessee would be entitled to evict anyone who wrongfully assumes occupation
of the property for example a trespasser.”
In
casu, the plaintiff as a member of
the Joseph Msika Cooperative was allocated land and indeed made developments
thereon and thus clearly has locus
standi in judicio in so much as to protect the interest in the property.
The
second ground in the special plea that the plaintiff has not exhausted
domestic remedies has no merit.
It is common cause that the plaintiff and the defendant are members of
two distinct cooperatives Joseph Msika Housing Cooperative Ltd and Casa Nova
Housing Cooperative respectively. The
dispute is between the members of the cooperatives and not the
cooperatives. The dispute between the
parties is anchored on spoliation and recourse would be to seek redress by the
court and not referral of the matter to arbitration. Section 115 of the Cooperatives Societies Act
[Chapter 24:05] which Mr Goneso
sought to rely on relates to disputes between a society and its members or
between registered societies. The
scenario in casu is a dispute between
members of two distinct cooperatives and it does not fall for dispute
resolution as provided in the Cooperatives Societies Act [Chapter 24:05]. Equally s 116 of the Act has nothing to do
with the present matter on hand where the plaintiff's claim is anchored on
alleged unlawful conduct by the defendants necessitating a spoliation relief.
The
last issue that the order is difficult to comply with since the stand number
11355 cited does not exist at law is absurd to say the least. The stand is outlined in general plan number
DC 3843 and it is registered at the City of Harare. In an event the land in question ceased to be
unalienated state land the moment it was surveyed and reflected on a general
plan. Given such dimensions and
allocations confirmation and stand number with the local authority there is no
basis for arguing that the stand in dispute does not exist. It is apparent from the foregoing discussion
that all the three issues raised by the defendant in the special plea lack
merit. The lengthy and meandering plea
in bar by the defendant is not only controversial and argumentative but does
not conform with rule 137 1 (a) under which it has been occasioned. Rule 137 reads:-
“A party may take a plea in bar or
abatement where the matter is one of substance which does not involve going
into the merits of the case and which if allowed will dispose of the case.”
Clearly the wording of the rule
rings warning bells that controversial argumentative and disputed allegations
which cannot be resolved without resort to evidence should not be raised under
the umbrella of special plea.
The
plaintiff was allocated the stand in question as a member of a
cooperative. An existing stand was
allocated and the nature of relief sought requires redress by court. Clearly the defendant appears to have raised or
taken the special plea for dilatory purposes.
I conclude that there is no merit in the special plea filed by the
defendants.
In
the result the plea in bar is accordingly dismissed with costs.
Nyika
Kanengoni & Partners, Applicant's Legal Practitioners
Magodora and Partners,
Respondent's Legal Practitioners
