The urgent chamber application pitted the applicant on the
one hand, and the first and second respondents on the other.
The first respondent (hereafter referred to as “Recskill”) was a company. It was the
registered owner of the property situate 73 Orange Grove Drive, Highlands,
Harare, the subject-matter of the dispute (hereafter referred to ...
The urgent chamber application pitted the applicant on the
one hand, and the first and second respondents on the other.
The first respondent (hereafter referred to as “Recskill”) was a company. It was the
registered owner of the property situate 73 Orange Grove Drive, Highlands,
Harare, the subject-matter of the dispute (hereafter referred to as “the property”). The second respondent
(hereafter referred to as “Prime
Ventures”) was also a company. Its principal shareholder, principal officer
and principal representative was one Godwills Masimirembwa, whom the applicant
referred to as G.M. I shall also refer to him as G.M. But to the applicant,
there was no distinction between Prime Ventures and Godwills Masimirembwa (G.M.)
They were both one and the same person.
In legal parlance, she was saying Prime Ventures was
Godwills Masimirembwa's alter ego.
Counsel for the applicant, with much passion, urged me to lift Prime Venture's corporate
veil and see for myself what evil Godwills Masimirembwa was perpetrating
against the applicant. From the papers, it required little persuasion. So I
did. I did not like what I 'saw'.
Here is it.
The applicant and Godwills Masimirembwa had been husband
and wife under an unregistered customary union. They had had three children
together. They were all minors. The eldest was twelve years old, the second
born ten, and the last seven. The customary union had been dissolved. Upon its
dissolution, and in terms of an agreement penned by him or his legal
practitioners, Godwills Masimirembwa, a lawyer by profession, had expressly and
unequivocally undertaken that:
“The [applicant] and the minor children shall continue
residing at 73 Orange Grove Drive, Highlands, Harare until such time as [Godwills
Masimirembwa] procures and purchases an alternative but similar property for
them given that No.73 Orange Grove is not owned by [Godwills Masimirembwa].”
That was on 15 March 2013. But that is not what I saw - and
did not like.
When I pierced the corporate veil and peered into Prime
Ventures, what I saw, and did not like, was the fact that, contrary to his
undertaking, Godwills Masimirembwa was not only contesting, vigorously, the
applicant's application in the Magistrates Court to have the undertaking
registered as an order of court, but also that he was literally abandoning the
applicant and the children, leaving them at the mercy of Recskill and the
Sheriff for Zimbabwe, the third respondent herein (hereafter referred to as “the Sheriff”).
On 30 December 2014, the Sheriff had served on the property
a writ of ejectment. The subject of the writ was Prime Ventures, represented by
Godwills Masimirembwa “…, and all
persons claiming rights and occupation through him…,.” But neither Prime Ventures
nor Godwills Masimirembwa “lived” at the property. It was the applicant and the
minor children that did. The Sheriff would come back to evict, on 6 December
2014 (that obviously was a patent error. He must have meant 6 January 2015).
The background to that writ was somewhat convoluted. It was
this.
In May 2011, Godwills Masimirembwa, fronting Prime
Ventures, had signed an agreement to buy all the shares in Recskill for US$550,000=.
The amount would be paid between June 2011 and August 2011 in three tranches of
US$183,333= each. It seems Godwills Masimirembwa did make some payments. But
there was considerable dispute between the parties as to just how much he had
paid. The applicant said by August 2011, Godwills Masimirembwa had paid
virtually the full purchase price, except for a paltry US$13,333=. Therefore,
according to her, Godwills Masimirembwa had, in reality, become the owner of
the property.
On the other hand, G.M. and Recskill maintained he had only
paid US$110,000=….,.
On the basis that Godwills Masimirembwa, or Prime Ventures,
had breached the sale agreement, Recskill had taken out a summons in November
2014 under HC10241/14. It had been served on the property. Naturally, the
applicant had picked it. She guessed or suspected Godwills Masimirembwa would
do nothing about it. Indeed, it transpired that he had gone on to consent to
judgment. Armed with Godwills Masimirembwa's consent, Recskill had filed a
chamber application, under HC10698/14, for a judgment by consent. It had been
granted on 11 December 2014.
However, none of this was known to the applicant.
On 8 December 2014, through her lawyers, the applicant had
written to Recskill's lawyers informing them of her interest in the property in
terms of Godwills Masimirembwa's undertaking. She also advised of her intention
to be joined to the action. Therefore, she enquired whether Recskill would
oppose such an application.
There was no response to the applicant's letter.
On 19 December 2014, she had lodged her application for
joinder. But the next development was the Sheriff serving the writ of
ejectment. That was on 30 December 2014. Attached to that writ was the order of
this court for ejectment. The applicant said she only saw that order for the
first time on the day the writ was served. On 5 January 2015, she filed the
urgent chamber application.
In the urgent chamber application, the applicant's case, in
brief and in my own words as I understood it, was this.
Recskill was far from being innocent. Its summons against
Prime Ventures was a ruse. It was colluding with Godwills Masimirembwa to get
her and the children out of the property. The summons was based on falsehoods.
It said Godwills Masimirembwa had paid only US$110,000= of the purchase price.
That was a lie. Part of her evidence for saying that were two receipts or
acknowledgements of payments by Recskill's representative, one Elson Toendepi
(“Elson”). The one, signed by both Godwills
Masimirembwa and Elson Toendepi, on 1 July 2011, read:
“I, ELSON TOENDEPI…., received $70,000=…, as part payment
of the purchases price of shares in Recskill Investments which owns House No.
73 Orange Groove, Highlands, Harare. Another $60,000=…, payable on the
8/07/2011. The balance of $53,333= shall be spread over the remaining in two
instalments of 30/07/2011 and 30/08/2011.”
The other receipt, on 12 August 2011, read:
“I, ELSON TOENDEPI…, received $40,000= as part payment of
the share purchases price of shares in Recskill Investments which owns house.”
The applicant collated the payments acknowledged in the two
receipts and deduced that only US$13,333= had remained outstanding….,.
On the merits, Godwills Masimirembwa and Recskill said the
applicant was mistaken. The sums of $70,000=, $60,000= and $53,333= mentioned
in the first receipt added up to $183,333=. That amount related to the first
instalment. They said the reference in the first receipt to “[t]he balance of
$53,333=…,” was a reference to the balance on the first tranche, not of the
entire purchase price. They said Godwills Masimirembwa never got to pay
anything other than the $40,000= mentioned in the second receipt. Recskill
summons for eviction against Prime Ventures mentioned $110,000=. It was that
$70,000= of the first receipt and the $40,000= of the second. So there had been
no lie.
At the hearing, Recskill produced some documents. One of
them was titled Memorandum of Agreement of Refund. It was dated 23 December
2011. In it, Godwills Masimirembwa was admitting to have failed to pay for the
property and was agreeing to be refunded his $110,000=.
Godwills Masimirembwa substantively relied on the corporate
personality of Prime Ventures to deny the applicant the relief she sought. He
said her rights were personal against him. The agreement of sale of the
property had not been between himself in person, but between two companies. As
such, the applicant had no right to be involved, or to be interested in the
property.
When I enquired what Godwills Masimirembwa was doing to
fulfil his undertaking to the applicant and the children, seeing that their
eviction from the property was imminent, counsel for Prime Ventures or Godwills
Masimirembwa pointed to G.M.'s plea to the applicant's claim in the Magistrates
Court and expressly blamed her for the impending peril. In that plea, Godwills
Masimirembwa was vigorously opposing the applicant's efforts to have the
agreement registered as an order of court. Incidentally, her claim in that
court included custody, access, school fees, maintenance and other ancillaries.
On the promise to provide the applicant and the children with accommodation at
the property, or its equivalent, Godwills Masimirembwa's plea was that such
clause must be varied as he no longer had the capacity to do so. Instead, he
averred, the children had to be moved into cheaper Government schools, and the
applicant had to move to cheaper accommodation, i.e. of rentals of not more
than $800= per month. Incidentally, and by way of comparison, the rentals for
the property, according to some lease agreement produced by Recskill, were US$2,300=
per month. Counsel for Prime Ventures or Godwills Masimirembwa said all the
applicant needed do was to accept the $800= per month, move into alternative
accommodation and avert the eviction. But he could not say whether or not Godwills
Masimirembwa had already procured the alternative accommodation.
Recskill's position was that it was an innocent party. It
should not be prejudiced by squabbles between ex-spouses. It denied it was in
cahoots with Godwills Masimirembwa. The applicant had no right to cling to its
property.
However, despite the stiff opposition, I granted the
interim relief.
There was something about Recskill's case and documents
that did not quite add up. For example, it was said that the total sum of $183,333=
that the figures on the first receipt added up to, only related to the first
tranche. But Elson Toendepi was not saying that in that receipt. He was talking
of a balance of $53,333= to be spread over two instalments up to 30 August
2011. The Agreement of Sale said the entire purchase price would be paid by 31
August 2011. The receipt did not say the balance of $53,333= was for the first
instalment. According to the Agreement, the first tranche would be paid by June
2011. So, in my view, the $183,333= in the first receipt was more likely for
the last tranche than for the first.
That was not all.
Recskill's case was that after Prime Ventures had breached
the Agreement of Sale by failing to make any further payment, and that after
that agreement had been cancelled, Prime Ventures had been given a lease over
the property but that, again, it had breached that lease. According to the
second receipt, the $40,000= that was said to have brought up the total
payments to $110,000= had been paid on 12 August 2011. Yet, according to the Memorandum
of Refund, Godwills Masimirembwa was getting back his full $110,000= without
any deductions for the arrear rentals. That did not make any business sense.
That was not all.
In her letter to Recskill, on 8 December 2014, aforesaid, the
applicant expressly advised Recskill that Godwills Masimirembwa was not staying
at the property but that she and the children were. She advised that Godwills
Masimirembwa was unlikely to defend the claim but that she intended to be
joined to the suit and defend it. Most importantly, she sought an assurance
from Recskill that it would not “snatch a judgment” as she awaited joinder. The
letter was ignored. Counsel for Recskill did not say why there had been no
response. And sure enough Recskill had gone on to obtain a consent judgment.
There were other salient features that persuaded me that
the applicant had established a prima facie case for an interim stay of
execution pending the determination of her pending cases. For example, the
lease that was pleaded in the summons was not consonant with the lease the
applicant had stumbled upon and attached to her application.
The requisites for an interim interdict are;
(i) A prima facie right, even if it be open to some doubt;
(ii) A well-grounded apprehension of an irreparable harm if
the relief is not granted;
(iii) That the balance of convenience favours the granting
of the interim interdict; and
(iv) That there is no other satisfactory remedy.
See Setlogelo v Setlogelo 1914 AD 221…,.; Tribac (Pvt) Ltd
v Tobacco Marketing Board 1996 (1) ZLR 289 (SC)…,.; Hix Networking Technologies
v System Publishers (Pty) Ltd & Anor 1997
(1) SA 391…,.; Flame Lily Investment
Company (Pvt) Ltd v Zimbabwe Salvage (Pvt) Ltd and Anor 1980 ZLR 378; and Universal
Merchant Bank Zimbabwe Ltd v The Zimbabwe Independent & Anor 2000 (1) ZLR
234 (HC)…,.
I was satisfied that the applicant had met all the
requirements for an interdict.
She and her children had a right to stay on the property
until Godwills Masimirembwa had provided her with alternative accommodation of
similar value. Her fears that the Sheriff was coming back to evict her was
real. Actually, it was what all the respondents, Godwills Masimirembwa
included, desired. On the balance of convenience, they weighed heavily in her
favour. All I had to look at was her right vis-à-vis that of Recskill in
relation to the property. Even if she was wrong in her accusations of
collusion, which seemed unlikely from the evidence that she produced,
nonetheless she stood to be thrown in the streets with her children and her
property in this rainy season. On the other hand, all Recskill stood to lose
was simply more money in rentals. It had waited since 2011. It could wait some
more. At any rate, such loss did not seem beyond recovery. Lastly, for someone
who is about to be evicted from the house that has been her only home for all
the while, and who yearns for an opportunity to assert her right to that home,
it becomes pedantic to talk about an alternative remedy to an interdict.
For these reasons, I granted the interim relief.