Urgent
Chamber Application
TAKUVA
J: Applicant
filed this application seeking the following provisional order:
“Pending
the determination of this matter on the return date the applicant is
hereby granted the following relief:
(1)
The warrant of eviction and notice of eviction issued under HC414/16
be and is hereby stayed pending the finalization of HC3737/12.
(2)
The 1st,
2nd
and 3rd
respondents be and are hereby interdicted from evicting the applicant
and all those claiming occupation through her from House No.11438
Nkulumane, Bulawayo pending the finalization of HC3737/12.
(3)
In the event that eviction has taken place, the 3rd
respondent be and is hereby ordered to restore the applicant to House
No. 11438 Nkulumane, Bulawayo.”
The
history of this case is long and unfortunate in certain respects.
The
late Abson Kasekani (Abson) died intestate on 25 July 2008 at Wedza
and his estate was registered with the Assistant Master of this court
on 15 February 2010. The second respondent was appointed the
executrix dative of that estate. It appears, Abson had another wife
who the second respondent is vigorously disowning. Abson and
applicant and their two children lived at House Number 11438
Nkulumane Bulawayo while second respondent lived in Wedza. Somehow,
second respondent sold the house to first respondent who under case
number HC178/10 applied for the eviction of applicant from that
house. Applicant opposed that case.
In
2012 under case number HC3737/12 applicant sought an order that the
finalization of the estate and the agreement of sale between first
and second respondents be declared null and void on grounds of gross
irregularity. The first respondent was served and filed a notice of
opposition and up until now, the matter has not been set down for
hearing.
Despite
knowledge that applicant was occupying the house not through the
second respondent but in her own right as Abson's widow, first
respondent issued summons under case number HC414/16 citing only
second and third respondents. For obvious reasons, the second
respondent did not oppose the matter and applicant obtained a default
judgment on 24 March 2016 per MAKONESE
J
in the following terms:
“(1)
The 1st
respondent and those claiming through her are hereby directed to
vacate and give vacant possession of House Number 11438 Nkulumane,
Bulawayo to the applicant immediately after granting of this order.
(2)
The Deputy Sheriff, Bulawayo be and is hereby authorized to forcibly
evict the first respondent and all persons claiming occupation
through her from House Number 11438 Nkulumane immediately after
granting of this order.
(3)
No order as to costs.”
The
first respondent in that matter is the second respondent in this
matter. After obtaining this order the first respondent in casu
caused the third respondent to issue a notice to vacate the house on
6th
June 2016 with the ejectment date being the 9th
day of June 2016. The notice was addressed to the second respondent
and “all those claiming occupation through him/her.” Applicant
was served with this warrant of eviction on 7 June 2016 prompting her
to file this matter on an urgent basis on 9 June 2016. The matter
was set down for hearing on 17 June 2016. Unfortunately, the
applicant had been evicted by the time the matter was heard.
The
basis of the application was that the applicant had been in
occupation of the premises since 1989 and that she had no alternative
remedy other than the order for stay of execution. It was also argued
that the first respondent acted mala
fide
when he obtained the order under HC414/16 in that he concealed
important information regarding the status of the applicant. Although
he had purportedly purchased the house from second respondent he
became aware of applicant's existence and her true status as early
as 2012 when she challenged the agreement of sale under HC3737/12.
Further, first respondent knew at that time that applicant was a
beneficiary in the estate and that there were allegations that second
respondent had fraudulently left her out and registered the estate
without her knowledge.
It
was also contended that the alleged agreement of sale between first
and second respondent was voidable if not void
ab initio
in that firstly it was entered into before the second respondent had
been issued with the requisite Letters of Administration by the
Assistant Master. Quite clearly, therefore, the second respondent
lacked legal capacity to sell the house. Secondly, the purported
agreement contravened the provisions of the Administration of Estates
Act [Chapter 6:01] in that the authority to sell the house in
question by private treaty in accordance with section 120 thereof was
only granted on 14 September 2009, two months after she had already
sold the house.
For
the above reasons it was contended for the applicant that since the
second respondent and herself were customarily married to Abson, she
had established a prima
facie
right in the property. As regards irreparable harm, it was submitted
that she will definitely become destitute together with her two young
children as she has no other accommodation. Also, it was argued that
the balance of convenience favours the granting of the interdict as
first respondent will not suffer any harm pending the finalization of
HC3737/12.
The
requisites of a temporary interdict are usually stated as;
(a)
a prima facie
right;
(b)
a well-grounded apprehension of irreparable harm if the interim
relief is not granted and the ultimate relief is eventually granted;
(c)
a balance of convenience in favour of the granting of the interim
relief; and
(d)
the absence of any other satisfactory remedy.
See
Steel
and Engineering Industries Federation and Other
v National
Union of Metal Workers of South Africa
(2) 1993 (4) SA 196 (T) at 199 G – 205J.
It
is trite law that the object of this remedy is the protection of an
alleged existing right. It is not a remedy for the past invasion of
rights. Its effect is to maintain a certain status
quo
by freezing the position until the court decides where the right
lies. Thereafter, it ceases to exist. see Airfield
Investments (Pvt) Ltd
v Minister
of Lands and Others
2004 (1) ZLR 511 (S) at 517 F-H.
The
legal position was also succinctly put by NDOU
J
in Setsail
Equipment (Pvt) Ltd versus
Javington
Investments (Pvt) Ltd and
Deputy
Sheriff for Bulawayo HB74/12,
as follows:
“The
major hurdle facing the applicant is that his urgent application was
filed after the Deputy Sheriff had acted pursuant to writs issued
under HC3351/11. The applicant seeks in essence the return of the
attached property and reversal of the writ of ejectment filed on
pages 12 and 13 of this application. It is trite law that 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 away from him by operation of law at the time he or she makes
an application for interim relief. An interdict is sought to protect
rights in property. An application for interim interdict for property
already taken away from the applicant may not be granted.”
In
the present case, the applicant was evicted on the day she filed her
urgent application. By the time the application was subsequently
heard applicant's rights had already been taken away from her by
operation of the law. Consequently, an interdict cannot be granted.
In
the circumstances, the application is dismissed with no order as to
costs.
Legal
Resources Foundation,
applicant's legal practitioners
Kossam
Ncube & Partners,
1st
respondent's legal practitioners
