MAKARAU
JA:
This
is an appeal against the judgment of the High Court dismissing with
costs, an application by the appellant seeking an order restraining
the transfer of or in the event that the property had already been
sold, an order reversing that sale and giving the appellant the right
to purchase certain immovable property commonly known as no 8 Price
Road, Emerald Hill, Harare.
The
facts.
The
facts giving rise to this appeal are largely common cause.
The
appellant was employed as a senior executive by JW Jaggers
Wholesalers (Private) Limited (“Jaggers Wholesalers”). In that
capacity, he was allocated a residence, belonging to the employer
situate at no 8 Price Road Emerald Hill Harare, (“the property”).
The terms and conditions of the allocation of the property to the
appellant, if any were specifically agreed upon, were not placed
before the court a
quo
and are not on record.
In
2011, Jaggers Wholesalers was placed under liquidation. The first
respondent was appointed liquidator.
In
2013, the property was put up for sale.
On
5 March 2013, an estate agent handling the sale of the property
addressed a letter to the appellant advising him of the intended sale
and offering him the property for the sum of US$140 000-00. The
appellant entered into some correspondence with the estate agent and
with the first respondent regarding the intended sale. In particular,
the appellant intended to negotiate a set off of the purchase price
against any benefits that were due to him. Notwithstanding such
engagement, the property was sold to the second respondent who in due
course took transfer of the property.
The
appeal
The
appellant approached the court a
quo
seeking an order in the terms set out above. He was unsuccessful.
Aggrieved by the dismissal of his application, he noted an appeal to
this Court, raising five grounds of appeal as follows:
“1.
The court erred in holding that there was no right of first refusal
in favour of appellant.
2.
The court erred in creating a distinction between a right of first
refusal and what it called the right of first offer.
3.
The court erred in holding that presentation of an alternative
competent mode of payment amounted to refusal of the offer.
4.
The court erred in not giving due attention to the malpractices that
went with the sale and the transfer as shown in the cases before the
court.
5.
The court erred in viewing reversal of the state of affairs as
impossibility.”
Interim
interdict.
It
is not in dispute that in the main, the appellant approached the
court a
quo
for an interim interdict, seeking to restrain the transfer of the
property in dispute, pending determination of his rights to the
property. Clearly, in seeking the interim protection as he did, the
appellant appreciated that the dispute relating to his rights in the
property would be determined at some future date and in proceedings
different from the application he had filed for an interim interdict.
In this regard he was correct, for an interim interdict merely
affords temporary protection pending the determination of the
disputed rights of the parties. The grant or refusal of a temporary
interdict is not intended to and does not in any way resolve the
dispute between the parties. More importantly, the procedure for
obtaining an interim interdict, including the averments that have to
be made and the evidential threshold that has to be passed in such
proceedings is different from the procedure and averments necessary
for settling the substantive dispute. The two reliefs cannot
therefore be co- joined and claimed in the same procedure.
It
was therefore incompetent for the appellant, in his draft order, to
seek an order reversing a sale to which he was not privy and for an
order granting him the right to purchase the immovable property.
The
court a
quo
correctly found that the appellant was not entitled to the interim
interdict that he was seeking. This is so because at the date of the
hearing of the application before the court a
quo,
the property in dispute had been transferred to the second
respondent. This led the court a
quo
to find that the application before it had been overtaken by events
and that the relief that the appellant had sought, based on the
averments made in his founding affidavit, could no longer be granted.
Whilst
it did not fully explain its decision, being content to make its
finding in one terse sentence, the finding by the court a
quo
in this regard is sound and is based on a legal principle that is
settled. An interim interdict is not a remedy for past invasions of
rights and will not be granted to a person whose rights in a thing
have already been taken from him by operation of law at the time he
or she makes approaches the court for interim relief. (See Mayor
Logistics (Private) Limited v ZIMRA
SC 7/14 and Airfield
Investments (Private Limited v Minister of Lands, Agriculture and
Rural Resettlement and Others
SC 36/04 and Stauffer
Chemicals v Monsato Company
1988 (1) SA 805).
The
legal position was put succinctly by MALABA DCJ (as he then was) in
the Airfield case as follows:
“The
threshold the appellant had to cross was the production of evidence
which established the existence in it of prima
facie
rights of ownership in the land at the time the application for
interim relief was made. An interim interdict is not a remedy for
past invasions of rights and will not be granted to a person whose
rights in a thing have already been taken from him by operation of
law at the time he or she makes an application for interim relief.”
The
learned judge proceeded to observe on the facts of the matter that
was before him as follows:
“The
appellant was not in a position to show the existence of prima
facie
rights of ownership in the land which the first respondent was about
to infringe because at the time it applied for the interim relief all
the rights of ownership it had in the land had been taken by means of
the order of acquisition and vested in the acquiring authority.
When the appellant lodged the application for the interim relief
before the court a quo the acquisition of the land by the State was a
fait
accompli,
all rights of ownership having been extinguished on its part. The
acquiring authority having done everything it was obliged by the law
to do to acquire the land for resettlement purposes, there was no
outstanding act against the performance of which the acquiring
authority could be temporarily interdicted.”
Similarly,
and applying the above observations to the facts of this appeal, when
the appellant's application was heard before the court a
quo,
the right of ownership in the property had been acquired by the
second respondent and this was a fait
accompli.
The transfer to the second respondent had been done in terms of the
law at a time when there was no legal impediment to such a transfer.
It therefore passed good title to the second respondent which title
is defensible against the world at large. There was therefore no
outstanding juristic act whose performance could be temporarily
restrained to enable the appellant to enjoy whatever rights he
claimed to have against the first respondent. He could not seek to
enforce the right to buy a property that the first respondent had
lawfully disposed of.
The
finding by the court a
quo
that the appellant's application had been overtaken by events in my
view forms the ratio
decidendi
of its decision.
Before
that court, the appellant correctly accepted the correctness of the
finding by the court that it was no longer tenable for him to obtain
the interdict that he was seeking. He was well advised to do so. The
appellant then sought to amend his prayer to seek instead, an order
cancelling and reversing the transfer to the second respondent. Again
in fairly terse terms, the court a
quo
found that this was not tenable on the basis of the papers filed
before it. I shall return to this point.
To
conclude on the issue of interim interdict that the appellant
unsuccessfully sought before the court a
quo,
I make the point that in his notice of appeal to this Court, the
appellant did not seek to challenge the correctness of the finding by
the court a
quo
that the interim interdict he had sought could not be granted in the
circumstances of the matter. The correctness of that decision
remains unchallenged and must be upheld by dismissing this appeal.
Instead,
the appellant seeks to attack the findings by the court a
quo
that he had no right to purchase the property ahead of the second
respondent or any other purchaser, a finding based on obiter,
a point to which I now turn.
Obiter
dictum.
Accepting
as I do that the ratio
decidendi
of the decision of the court
a quo
was its finding that the appellant was not entitled to the interim
interdict, then, the other findings by the court were all obiter
dictum.
With respect, the court a
quo
ought not to have proceeded beyond its finding that the appellant was
not entitled to the interim interdict. Its foray into the other
issues not only creates the impression that these are now res
judicata
but it regrettably also misled the Appellant into filing an appeal
against findings made by way of obiter
remarks.
The
court a
quo
appears to have overlooked the prudence of always minimising the
basis of its decision to only those issues that are necessary to
resolve the dispute before the court.
It
is not clear from the record whether or not the court
a quo
granted the application by the appellant to amend his prayer from one
seeking an interim interdict to one seeking to reverse the transfer
of the property to the second respondent. The court a
quo
on page 2 of its judgment noted this was impossible as “all
evidence on paper deal with sale and not transfer.” This finding
is not followed by an order dismissing the application.
The
confusion on whether or not the court a
quo
granted the application to amend is created by the fact that
immediately after making the observation that it was impossible to
amend the appellant's draft order, the court proceeded to deal with
whether or not the appellant had made an offer for the property when
he was invited to do so by the estate agent selling the property.
This was an issue that could only have arisen for determination if
the draft order had been amended or more properly, it is an issue
that would arise in the determination of the substantive dispute
between the parties. The court a
quo
nevertheless proceeded to find against the appellant in this regard
giving rise to the perception that it had granted the application to
amend the draft order.
Apart
from dealing with the above issue which was not properly before it,
the court a
quo
also commented on an earlier application which the appellant had
brought on a certificate of urgency seeking to restrain the sale of
the property. That application had been dismissed on the basis that
the appellant had failed to prove that he had the right of first
refusal to the property. After referring to this unsuccessful
application, the court a
quo
proceeded to determine whether or not the appellant had the right of
first refusal to the property and found, like the earlier court had
found, that the appellant did not have such a right.
In
view of the fact that the earlier court had already determined that
issue, it was no longer open for the court a
quo
to revisit the same issue as it does not have review powers over a
court of equal jurisdiction. It is however this finding by the court
a quo
that the appellant has no right of first refusal to the property that
has given rise to this appeal.
I
have set out in detail the judgment of the court
a quo
to demonstrate how the finding under appeal is orbiter
and
does not form the ratio
of
the judgment.
Once
the court a
quo
had found that the application before it could not be granted as the
harm that the appellant sought to pre-empt had already occurred, and
the appellant had accepted that position by formally seeking to amend
his draft order during the hearing of the matter, the court
a quo
ought to have made an order denying the application to amend the
prayer with reasons. It ought not to have proceeded to deal with the
issues raised by the amended draft order as if these were properly
before it which only the court dealing with the substantive dispute
between the parties could have properly dealt with.
I
make these observations as they have a bearing on the question of
costs. They do not affect the outcome of the appeal.
The
appellant erred in noting an appeal against findings that were made
by way of orbiter
remarks. His error is however understandable in that he is a
self-actor who could not discern between the ratio
of the judgment and the other findings of the court
a quo by
way of obiter.
Disposition.
There
has been no appeal against the ratio
decidendi
of the judgment of the court a
quo.
Accordingly, the appeal cannot succeed. Regarding costs, in view of
the findings I have made above, it is appropriate that there be no
order as to costs.
In
the result, I make the following order:
The
appeal is hereby dismissed with no order as to costs.
GWAUNZA
DCJ: I
agree.
BHUNU
JA: I
agree.
C
Nhemwa & Associates,
1st
respondent's legal Practitioners;
T.
K Takaindisa,
2nd
respondent's legal practitioners.
