Urgent
Chamber Application
NDEWERE
J: The background of the facts are that the applicant was a
tenant of the second respondent from 4 December, 2012 at Number 29
and Number 589 of Rusape, commonly referred to as No. 29 Herbert
Chitepo Street, Rusape. The lease agreement between the parties was
meant to expire on 30 September, 2017. However, on 10 April, 2014,
the second respondent cancelled the lease because of the applicant's
failure to pay rentals in terms of the lease agreement. The
applicant did not challenge the cancellation. He however, remained
in occupation of the premises despite the cancellation.
Following
the cancellation of the applicant's lease agreement, the second
respondent concluded a lease agreement with the first respondent on
14 April, 2014. It is common cause that the first respondent began
to claim the leased premises from the applicant in April, 2014. It
is common cause that in May, 2014, the first respondent took
occupation of most of the premises which the applicant was occupying,
save for one small office which the applicant was still occupying at
the time of filing the application. It is also common cause that the
arrival of the first respondent on the scene resulted in a continuing
dispute between the applicant and the first respondent. The
applicant and the first respondent have been accusing each other of
harassment and interference. The allegations of interference include
the collection of rentals from subtenants by the first respondent,
with the applicant being aggrieved thereby.
It
is common cause that as a result of this dispute on 30 June, 2014,
the applicant filed an application for an interdict with Rusape
Magistrate's Court, Case No. 743/2014 and that court said it had no
monetary jurisdiction over the matter. It referred the parties to
the High Court on 28 July, 2014.
The
first respondent filed its own application for a spoliation order
against the applicant at Rusape Magistrate's Court, Case No.
782/2014 on 10 July 2014. The court ruled that it had no monetary
jurisdiction and referred the parties to the High Court on 28 July,
2014.
On
29 July, 2014, the first respondent filed a case for the applicant's
eviction, Case No. HC 6394/14 which is still pending. On 19 August,
the first respondent filed an urgent application for an interdict
against the applicant, HC 7010/14. A judge ruled that the matter was
not urgent on 26 August, 2014.
On
29 August, 2014, the second respondent issued summons against the
applicant in Case No. 7654/14, seeking confirmation of the
cancellation of the lease agreement, eviction of the applicant and
payment of arrear rentals of US$36 000-00 and holding over damages
of US$2 000-00 per month from May 2014, to date of eviction. The
case is still pending. During the hearing, the applicant did not
dispute the claim of arrear rentals of US$36 000-00.
He actually consented to production of an acknowledgment of debt he
signed for the debt.
On
18 September, 2014, the first respondent filed an ordinary court
application for an interdict against the applicant and another, Case
No. HC 8241/14 which is still pending.
The
above is the litigation history between the parties since the
beginning of the dispute in April, 2014. The applicant and the
second respondent have each approached the court once previously,
while the first respondent has approached the courts on four
different occasions. Three of those cases are still pending namely,
the case for the applicant's eviction filed by the first
respondent, the case for the applicant's eviction, arrear rentals
and holding over damages filed by the second respondent and the case
for interdicting the applicant and another filed by the first
respondent.
On
24 October, 2014, the applicant approached this court on an urgent
basis for a provisional order barring the respondents from
interfering with its operations at Stand 29 and 589 of Rusape,
commonly known as Number 29 Herbert Chitepo Street, Rusape. The
relief applied for is for the entire premises, not just for the small
office which the applicant is still occupying.
Both
the first and the second respondent opposed the urgent chamber
application, arguing that the application was not urgent.
The
first respondent said the need to act arose in April, 2014, when it
claimed the property from the applicant. The second respondent says
it arose on 28 July, 2014 when the Magistrates Court declined
jurisdiction and referred the matter to the High Court. The
applicant says the need to act arose in mid-October, 2014.
In
my view, the need to act arose when the Rusape Magistrates Court
referred the parties to the High Court on 28 July, 2014. That is
when the applicant should have approached the court urgently, but he
did not approach the court then.
In
Kuvarega
v
Registrar General & Anor,
1998 (1) ZLR, 188, the court said:-
“….
a matter is urgent if at the time the need to act arises the matter
cannot wait.”
In
my view, the fact that the applicant could wait after being referred
to the High Court on 28 July, 2014, shows that the application is not
urgent. If it was urgent, it could not have waited. Even the
applicant himself did not treat the matter urgently. Not only did he
fail to act on 28 July, 2014, he also delayed in approaching the
court even in mid-October, when he says the need to act arose. Mid
October is 15 October, but he delayed by nine days and filed his
urgent application on 24 October, 2014. He never bothered to explain
the delay in filing the application contrary to the dicta in the
Kuvarega case about the need to explain any delays.
It
is clear that this application is about a continuing dispute between
the parties from April, 2014 and there is nothing new which warrants
urgent intervention by this court. That is why the applicant himself
did not approach the court in July, 2014.
The
applicant alleged that the first respondent had damaged and
demolished the property but no evidence was placed before the court
to substantiate that. In fact the police denied receiving any report
of criminal conduct from the applicant concerning malicious damage to
the property or violence. The court therefore has no basis to accept
the applicant's allegations as truthful.
Furthermore,
in August, 2014, the High Court ruled that the first respondent's
application on the same dispute was not urgent. The applicant should
not therefore have brought the same dispute between the parties to
the High Court on an urgent basis for the second time in the absence
of any new exceptional circumstances.
As
stated in Mushonga
& Ors v
Minister of Local Government, Public Works and
National
Housing,
HH 129/04, justice dictates that unless there are special or
exceptional circumstances, the courts must deal with cases on a first
come first served basis.
Accordingly,
my ruling is that the application is not urgent.
Having
ruled that the application is not urgent, I shall not proceed to deal
with the issues raised by the parties on the merits.
The
applicant shall pay the first and second respondent's costs on the
ordinary scale because I am not convinced that a punitive scale is
justified.
Tavenhave
& Machingauta,
Applicant's Legal Practitioners
Jakachira
& Co.,
1st
Respondent's Legal Practitioners
Mushangwe
& Co.,
2nd
Respondent's Legal Practitioners
