TAKUVA J: The applicants
approached this court on an urgent basis seeking the following
interim relief.
“Pending the confirmation or
discharge of this order that this order shall operate as a temporary
order having the effect of:
(a) Interdicting 3rd
respondent from evicting 1st
and 2nd
applicants from Shop Number 19 Haddon & Sly Building, pursuant to
a court order granted in favour of 1st
respondent against 2nd
respondent in the Magistrates' Court under case number 3532/16.
(b) Directing 3rd
respondent, if at the time that this order is granted or served,
execution of the said warrant has been made in anyway, to ensure that
the applicants are restored into the shop.”
The applicants' version is
fairly straight forward. It goes like this.
In 2014, they entered into an
oral lease agreement with Gilbert Nyamutsamba [Gilbert] representing
the 1st
respondent. The lease related to Shop Number 19 Haddon & Sly
Building, Bulawayo. They paid rentals to a company called Astrix
Giltex (Pvt) Ltd as shown by the receipts they attached as annexure
A.
Sometime in July 2015 the 2nd
respondent appeared on the scene claiming that she was the lawful
tenant at the premises they were leasing. Second respondent then
produced lease agreements which the two signed in the presence of
Gilbert who confirmed this new arrangement. As a result applicants
paid their rentals to the 2nd
respondent from August 2015 to December 2015 when 2nd
respondent vacated the premises.
Gilbert then approached
applicants with an offer to lease the property in their own right.
Applicants accepted the offer and an oral lease agreement was entered
into with effect from January 2016.
According to the applicants,
Gilbert indicated that he would not issue receipts for their rental
payments. They suspected Gilbert was avoiding paying tax. In March,
Gilbert attempted to evict them unlawfully from the shop. In May
2016, 1st
respondent caused summons for arrear rentals of US10,000,00 and
eviction to be issued against the 2nd
respondent who consented to judgment. Applicants were then served
with a warrant of eviction and execution which had been issued by the
Magistrates' Court. The warrant authorized the 3rd
respondent to evict the 2nd
respondent and all those claiming through her from Shop 19 Ground
Floor, Haddon & Sly Building, corner Fife Street and 8th
Avenue Bulawayo. Applicants were served with the warrant on 22 July
2016.
Dissatisfied, applicants filed
this application on the following grounds;
(a) that the order granted by the
Magistrates' Court does not apply to them as they did not occupy
the shop through 2nd
respondent.
(b) they do not owe Gilbert or
2nd
respondent arrear rentals.
(c) they are occupying the shop
lawfully and have a clear interest on the execution of the order.
(d) that they have simultaneously
filed an application under cover of case number HC1904/16 for a
declaratory order that the 3rd
respondent be permanently interdicted from evicting them from Shop
Number 19, Haddon & Sly Building, and also that the order
obtained by 1st
respondent in the said Magistrates' Court is not in respect of the
two of them.
Both 1st
and 2nd
respondents opposed the application. The 1st
respondent through its director, Gilbert filed an opposing affidavit
wherein he raised two points in
limine namely.
(a) that the applicants have
adopted a wrong procedure and are in the wrong court. Consequently,
the relief they seek is incompetent.
(b) the application cannot
succeed as there are effective satisfactory remedies available in the
Magistrates' Court Act [Chapter 7:10].
On the merits, it was contended
that applicants have no prima
facie right in that
they are not even statutory tenants because they are not paying rent
– see section 22(2) of the Commercial Rent Regulations SI 676/83.
Further, it was argued that as sub-tenants, the moment the tenant is
evicted, they are automatically evicted as their rights are
subservient to the tenant's rights. The sub-tenants' rights
cannot stand on their own – see Zuva
Petroleum Ltd v
Chireya
HH-166-16.
The 2nd
respondent also filed a notice of opposition and an opposing
affidavit.
In that affidavit she stated that
she is the lessee and applicants are her sub-tenants. First
respondent approved of this subletting. She was however surprised
when at times she discovered that applicants were paying rentals
directly to the 1st
respondent. She confronted both parties and decided to prepare lease
agreements for the 2 applicants. Both signed the respective leases in
August 2016 after she had renewed her lease with 1st
respondent in July 2016. She attached the three lease agreements as
annexures A, B and C.
She admitted that she consented
to the judgment in favour of 1st
respondent in the Magistrates' Court because she owed him the
amount claimed. This indebtedness to 1st
respondent is a result of applicants' defaults in their rental
payments. She explained that although she was 1st
respondent's tenant, she had not been in physical occupation of the
shop since January 2014 when she let the shop to the applicants.
Finally, she prayed for the dismissal of this application with costs
at attorney and client scale.
In my view the points in
limine are
inextricably interwoven with the merits. I therefore deal with them
at once.
In L
F Boshoff Investments (Pty) Ltd
v Cape Town
Municipality 1969 (2)
SA 256 (C) at 267A-F, CORBETT
J (as he then was) said an applicant for an interim interdict must
show:
(a) that the right which is the
subject matter of the main action and which he seeks to protect by
means of interim relief is clear or if not clear, is prima
facie established
though open to some doubt;
(b) that, if the right is only
prima facie
established, there is a well grounded apprehension of irreparable
harm to the applicant if the interim relief is not granted and he
ultimately succeeded in establishing his right;
(c) that the balance of
convenience favours the granting of interim relief; and
(d) that the applicant has no
satisfactory remedy.”
See also Airfield
Investments (Pvt) Ltd
v Minister
of Lands & Ors
2004 (1) ZLR 511 (S).
C. B. Prest, The
Law and Practice of Interdicts
Juta 1993 at page 52 explains the significance of a prima
facie right in an
application for an interdict. He states;
“Interdicts are based upon
rights, rights which in terms of the substantive law are sufficient
to sustain a cause of action. Such right may arise out of contract,
or a delict; it may be founded in the common law or on some or other
statute; it may be a real right or a personal right. The applicant
for an interlocutory interdict must show a right which is being
infringed or which he apprehends will be infringed, and if he does
not do so, the application must fail.
An applicant must establish 'some
just right'. It must not be a mere moral right, it must be a strict
legal right.”
This therefore is the threshold
that must be crossed, and a failure so to do means that an applicant
cannot succeed in his claim. The onus of proving such a prima
facie right rests on
the applicant. It must be proved on a balance of probabilities. As
regards the meaning of the words “prima
facie case”, Prest
states on p 55 of the same work;
“If the correct meaning, it is
submitted is that an applicant is required to furnish proof which if
uncontradicted and believed at the trial, would establish his right.
The use of the phrase 'prima
facie established
though open to some doubt', however, indicates that more is
required than merely to look at the allegations of the applicant, but
something short of a weighing up of the probabilities of conflicting
versions is required. What
then is the approach of the court to be in the face of a dispute of
fact on the papers before the court? The proper manner of approach
is to take the facts set out by the applicant, together with any
facts set out by the respondent which the applicant cannot dispute,
and to consider whether, having regard to inherent probabilities, the
applicant should on those facts obtain final relief at the trial.
The facts set up in contradiction by the respondent should then be
considered. If serious
doubt is thrown on the case of the applicant,
he could not succeed in obtaining temporary relief, for his right,
prima facie
established, may only be open to 'some doubt'.” (my emphasis)
In order to determine whether the
applicant has made out a prima
facie case, the court
inquires into whether he has discharged the onus resting upon him by
the affidavits placed before the court.
In the present case, the
applicants are incapable of crossing the threshold of establishing a
prima facie
right for the following reasons;
(i) both applicants have failed
to prove, on a balance of probabilities, that they have an oral lease
agreement with the 1st
respondent. Their versions in the affidavits is not only improbable
but thoroughly incredible. It is highly improbable that Gilbert would
suddenly desire to avoid payment of tax by not issuing receipts to
the 2 applicants from January 2016 when all along he had been issuing
receipts to all his tenants including at one stage to the applicants.
Further, it certainly does not make sense that Gilbert would collect
rentals from applicants and then proceed to issue summons claiming
the same rentals he had already been paid.
(ii) Applicants dismally failed
to prove that they are statutory tenants in that they did not pay
rent to the landlord for the premises they have been occupying for
more than six months. The facts that both applicants have failed to
contradict are that both had a lease agreement with the 2nd
respondent. Since their rights are subservient to the 2nd
respondent's rights, they were extinguished when 2nd
respondent's rights were taken away by the magistrate. See Maposa
v Matabuka
HH-801-15.
The application should be
dismissed on this ground alone.
Assuming however that I am wrong,
there is another reason why this application has no merit.
Applicants have a satisfactory alternative remedy provided by statute
in section 39 of the Magistrates' Court Act [Chapter 7:10]. The
section provides a sufficient platform for litigants who feel that
they should have been part of a process to be heard. Section 39
states:
“39(1) In civil cases, the
court may –
(a) rescind or vary any judgment
which was granted by it in the absence of the party against whom it
was granted;
(b) rescind or vary any judgment
granted by it which was void ab
origine or was
obtained by fraud or by mistake common to the parties;
(c) correct patent errors in any
judgment in respect of which no appeal is pending.
(2) The powers given in
subsection (1) may only be exercised after notice by the applicant to
the other party and any exercise of such power shall be subject to
appeal.
(3) Where an application to
rescind, correct or vary a judgment has been made, the court may
direct either that the judgment shall be carried into execution or
that execution thereof shall be suspended pending the decision upon
the application and the direction shall be made upon such terms if
any, as the court may determine as to security for the due
performance of any judgment which may be given upon the application.”
The remedies provided herein
include rescission of judgment and stay of execution pending the
decision upon the application. These are the same remedies applicants
are seeking in this court. Put differently applicants seek a
rescission of the magistrate's order. Quite clearly, the applicants
have an alternative remedy.
For these reasons the application
is dismissed with costs.
Job Sibanda & Associates, applicant's legal
practitioners
Moyo & Nyoni, 1st respondent's legal
practitioners
Kossam Ncube & Partners, 2nd respondent's
legal practitioners
