This
was an application for review.
The
second respondent was a Provincial Magistrate. At all relevant times
she was stationed at Zaka, one of the districts in the Province of
Masvingo. It was the proceedings before her in the court below that
were brought on review.
On
25 August 2017 she granted a rule nisi
ex parte.
It was a provisional order of spoliation against the applicants
herein [respondents therein], in favour of the first respondent
herein [applicant therein] [hereafter referred to as “Mutema”].
The alleged spoliation was in respect of certain business premises
situate at Nyika Growth Point, Bikita, namely, Stands 745; 746; 747;
748 and 749 and certain items thereon. The businesses being run on
those premises comprised a butchery, a supermarket, a takeaway or
kiosk, and a warehouse.
Following
the order of spoliation, the applicants were evicted from the
premises. Occupation was granted to the respondents.
The
main protagonists have always been Mutema and the first applicant
herein [“Mutangiri”].
Mutangiri anticipated the return date of the rule nisi.
He filed a notice of opposition alleging that the ex
parte
rule nisi
had been procured on the basis of false information. He pressed for
the discharge of the rule and a penal order of costs. His grounds, in
my own paraphrase, and not necessarily in the order that they were
raised, were these:
(i)
Mutema and his people were not despoiled. It was him and his own
people who had, at all material times, since May 2016, been in
occupation of the premises and running the businesses thereon.
(ii)
The premises had previously belonged to a company called Mutema
Brothers [Private] Limited in which Mutema had been a major
shareholder. The company had gone bankrupt and had been placed under
liquidation. The liquidator, who had assumed legal ownership and
physical control of the premises, and in terms of a written agreement
of sale dated 18 May 2016, which Mutema had signed as the first
witness, had sold the premises to Mutangiri for $100,000=. It was
following that agreement, and in terms of a clause therein that
allowed him to take immediate occupation of the property, that
Mutangiri and his people had started running those businesses from
those premises.
(iii)
Neither Mutema nor any of his people had been in occupation.
Mutangiri had no lease or any agreement of any kind with Mutema that
would have allowed Mutema and his people to be on the premises.
(iv)
Mutema was guilty of forum shopping. The premises were in Bikita.
There was a Magistrate Court at Bikita. But he had gone all the way
to Zaka and obtained, ex
parte,
a rule nisi
on the basis of which he had assumed occupation of the premises.
Mutema
filed an answering affidavit.
He
maintained that he had been in occupation of the premises on the
permission of the liquidator. As proof, he attached several documents
in the form of shop licences; Zimbabwe Revenue Authority
[ZIMRA]-linked fiscal invoices; and an affidavit by the liquidator.
The liquidator confirmed Mutema's occupation of the premises by his
permission. He denied any right of occupation as might have been
bestowed by himself on Mutangiri.
Mutema
also refuted the allegations of forum shopping. He argued that any
Provincial Magistrate's Court is reposed with territorial
jurisdiction in the entire province in which it may be situated
notwithstanding that it may be located in a particular district. He
said he had been forced by circumstances to seek the order of
spoliation from the Magistrate Court at Zaka because at the crucial
moment the magistrate ordinarily stationed at Bikita had not been
available.
On
the return date, argument by counsel focused mainly on factual
disputes centred on whether or not Mutema had proved spoliation.
Judgment
was reserved. But before it was delivered, and through an advocate,
one Mr T Mpofu, Mutangiri filed some supplementary heads of argument.
In them, it was first argued that a litigant had a right to bring up
any point of law at any time before judgment is passed. The heads
then went on to challenge the monetary jurisdiction of the second
respondent. It was argued that before the rule nisi
was granted, and certainly before it could be confirmed or
discharged, it had been incumbent upon the second respondent to carry
out an enquiry, in terms of section 12 of the Magistrates' Court
Act [Chapter
7:10],
to ascertain whether or not she had the requisite jurisdiction. It
was argued that she did not. The value of Mutema's occupation was
way above the monetary limit of jurisdiction of a Magistrate's
Court, which, for this type of dispute, is ten thousand dollars
[$10,000=].
Advocate
Mpofu's heads of argument also made the point that the order of
spoliation had improperly been granted on the basis of a mere prima
facie
case. It was said the evidence of this was the rule nisi
itself. The law supposes that an order of spoliation is a final order
which should be granted only on the basis of a clear right proved on
a balance of probabilities. It was argued that in
casu,
neither Mutema's occupation of the premises, nor his right thereto,
had been proved at all.
Faced
with a one-sided argument on jurisdiction, the second respondent
directed Mutema to also file supplementary heads of argument to deal
with the point. He did. He maintained that the second respondent had
jurisdiction on account of the fact that the value of his occupation
of the premises, which he had sought to be restored into, had to be
measured on the basis of the average amount of profit that he
generated from the business on a monthly basis. He said it amounted
to seven thousand dollars [$7,000=] per month.
In
her final judgment, the second respondent dismissed Mutangiri's
challenge on jurisdiction. She held that in matters of this nature
'value' is placed on the subject matter, not on the value of the
property per
se.
She said the subject matter was the occupation of the premises and
Mutema's point of sale machines. She rejected the notion that
'value' could relate to the market value of the premises, or the
value of the business, or the value of the stock. Finding that Mutema
had indeed been despoiled, she confirmed the rule
nisi.
In
this review application, the parties more or less replayed the same
arguments as in the court below. I summarize the issues as they were
presented as follows:
(i)
Whether or not the second respondent had the monetary jurisdiction to
deal with the dispute.
(ii)
Whether it was competent for the second respondent to grant, ex
parte,
an order of spoliation on the basis of a mere prima
facie
right, as opposed to a clear right proved on a balance of
probabilities.
(iii)
Whether there had been a material misjoinder of an essential party to
the dispute, namely, Mutema Brothers [Private] Limited, as the
original owner of the properties.
(iv)
Whether the second respondent had been faced with a dispute of fact
so material as to disable her from resolving the matter on the
papers.
(v)
Whether Mutema had in fact been despoiled.
Both
parties agreed that the issue of jurisdiction went to the root of the
matter. Only after I found that the second respondent had
jurisdiction would I proceed to consider the rest of the other
issues. Therefore, here is my judgment on the issue of jurisdiction.
Two
aspects of the order of spoliation by the second respondent read as
follows:
“(a)
Pending the return date of the Rule Nisi, the Respondents be
and are hereby ordered to unlock the butchery, bakery, takeaway and
supermarket located on Stands 745, 746, 747, 748 and 749 Nyika Growth
Point, Bikita and immediately return the keys for same to the
Applicant
upon service of this order, failing which the Messenger of Court be
and is hereby authorized to so act….,.
(b)
Pending the return date of the Rule Nisi, the Respondents are to
restore Applicant's point of sale machines and remove their point
of sale machine(s) from the butchery, bakery, takeaway and
supermarket operating from Stands 745, 746,747, 748 and 749 Nyika
Growth Point, Bikita, failing which the Messenger of Court be and is
hereby authorized to so act.”
What
do the words underlined above mean? What exactly did the second
respondent order to be done?
Plainly,
the words meant Mutangiri was to
restore
to Mutema possession
of the premises and of the goods in the shops
thereon, and, of course, the point of sale machines. Although she did
not use the word “deliver”, nonetheless that was what she
effectively ordered. She ordered that Mutangiri, failing him, the
Messenger of Court, was to 'deliver'
those premises and those goods back to Mutema.
How?
By unlocking the premises.
And
do what else? Immediately return the keys for the premises to Mutema.
That
was classically clavium
traditio,
a form of symbolical delivery where, for example, delivery of goods
in a warehouse or storeroom, or a car, is achieved by the handing
over of the key to the warehouse, or of the car, to enable someone to
take possession and control: see SILBERBERG and SCHOEMAN'S The
Law of Property,
5th
ed….,.; JTR GIBSON South
African Mercantile and Company Law,
8th
ed….,.; and G BRADFIELD & K LEHMANN Principles
of the Law of Sale & Lease,
3rd
ed….,.
The
second respondent's order did not only end with delivery
to Mutema. It went on to order the eviction
of Mutangiri and his people. Paragraph [d] read:
“The
Messenger of Court, Bikita or Zaka be and is hereby directed,
authorized and empowered to unlock the butchery, bakery, takeaway and
supermarket on Stands 745, 746, 747, 748 and 749 Nyika Growth Point,
Bikita and
evict the Respondents
and restore possession of same to Applicant.”
So,
if the order of the second respondent was directing Mutangiri to
'deliver'
the premises and the businesses back to Mutema, and the Messenger of
Court to 'evict'
Mutangiri if he did not vacate by himself, what was the value of
occupation to Mutema? If Mutangiri did not comply, what was Mutema
losing? How would this loss be assessed objectively?
Mutema
claimed that the value of the spoliation upon him and his people
amounted to the value of his profit per month. He put this profit at
seven thousand [$7,000=] per month. The only time he dealt with the
question of the second respondent's monetary jurisdiction was
paragraph 9 of his founding affidavit to the ex
parte
application. He said:
“Jurisdiction
9.
The business operations I run at the aforesaid premises give me an
average profit of plus of [sic]
minus seven [7] thousand United States dollars per month, and,
therefore, this Honourable Court has the jurisdiction to entertain
this matter on the basis of the value derived from my occupation
being within the monetary jurisdiction of this Honourable Court.”
The
second respondent seemed to agree. In her ruling on the point she
said:
“In
their supplementary heads, the respondents also averred that this
court has no monetary jurisdiction to deal with this matter. In this
regard, it is trite to note that in applications of this nature value
is placed on the subject matter and not the value of the property per
se. In this case, the subject matter, as per the interim order, is
occupation of the premises situated on the 5 Stands mentioned earlier
as well as the return of the applicant's point of sale machines.
Value is not about the market value or the value of the business as
wrongly put by the respondents; neither is it value of stock as
wrongly put by the applicant. It is also trite that the issue of
stock was never prayed for by the applicant. That being the case then
this court has jurisdiction to deal with this matter.”
With
respect, I have not quite followed the reasoning by the second
respondent.
But,
regarding Mutema's paragraph 9, not only was there no evidence of
any sort on this seven thousand dollars value, but also there was no
basis laid down for this particular mode of computation. Both the
figure and the mode of computation seemed plucked straight from the
air. But that is not my major concern. The second respondent, with
all due deference to her, manifestly misdirected herself.
Here
is how.
By
section 12 of the Magistrates Court Act [Chapter 7:10], Magistrates'
Courts have the jurisdiction, among other things, to grant spoliation
orders. However, this power is made subject to the limits of
jurisdiction prescribed by the Act.
It
is section 11 of the Magistrates Court Act [Chapter 7:10] that
governs the civil jurisdiction of the Magistrate's Courts. In this
regard, subsection [1], paragraph [b],
sub-paras [ii] and [iii], and the proviso thereto, say:
“11
Jurisdiction in civil cases
[1]
Every court shall have, in all
civil cases,
whether determinable by the general law of Zimbabwe or by customary
law, the following jurisdiction -
[a]…,.;
[b]
With regard to causes of action -
[i]…,.;
[ii]
In actions in which is claimed the
delivery
or transfer of
any property,
movable or immovable, where
the value of such property does not exceed such amount as may be
prescribed in rules,
whether in lieu of or in addition to any other claim, which shall
include a claim for the cancellation of any agreement relating to
such property;
[iii]
In actions of
ejectment against the occupier
of any house, land or premises situate within the province:
Provided
that, where
the right of occupation of any such house, land or premises
is in dispute between the parties, such right does not exceed such
amount as may be prescribed in rules in clear value to the
occupier;”…,.
By
Statutory
Instrument 163 of 2012 [Magistrates Court [Civil Jurisdiction]
[Monetary Limits] Rules, 2012], the monetary civil jurisdiction of
the Magistrates Court was set at ten thousand dollars [$10,000=],
for, among others, actions
for delivery of movables or immovables and actions for ejectment.
Plainly,
the case before the second respondent was a tussle for possession,
not only of the premises, but also of the goods inside them. Both
parties claimed ownership of the goods. They went to great lengths to
prove it. Both claimed the right to, and of, possession of those
goods, and the right to trade in them. Both claimed they had been in
occupation and possession at all material times. Therefore, at the
outset, the law required the second respondent to enquire into the
aspect of her monetary jurisdiction.
She
did - but she used the wrong yardstick.
As
pointed out above, by section 11(1)(b)(i)
and (iii) of the Magistrates Court Act [Chapter 7:10], and the
proviso to sub-paragraph [iii], the second respondent was obliged to
assess the 'clear value' of Mutema's occupation and possession
of the premises; the stock-in-trade; the point of sale machines; the
equipment; and everything else that the parties tussled over. The
words 'delivery' and 'transfer' in sub-paragraph [ii]
evidently speak to possession and ownership respectively. Of course,
ownership was of no moment. The second respondent was right on this.
The remedy of spoliation seeks to protect the right of possession:
see SILBERBERG and SCHOEMAN'S The
Law of Property,
5th
ed…,.;
Kama
Construction [Pvt] Ltd v Cold Comfort Farm Co-operative & Ors
1999
[2] ZLR 19 [SC];
Botha
& Anor v Barrett
1996
[2] ZLR 73 [S]…,.;
Muller
v Muller
1915
TPD 29…,.;
Shoprite
Checkers Ltd v Pangbourne Properties Ltd
1994
[1] SA 616 [W];
and Grandwell
Holdings [Private] Limited v Minister of Mines and Mining Development
& Ors HH193-16.
The
net profit per month was just an arbitrary method of assessing value.
It has no legal basis. Asked by myself, at the hearing, to explain
the rationale of the use of profits for a period of a month, instead
of profits for any other period like a day; a week; six months or a
year; or even using the monthly rentals as a yardstick, counsel for
the respondent argued that one month was the period of notice Mutema
would be entitled to if the liquidator, at whose pleasure he occupied
the premises, required him to vacate. He said Mutema was not paying
rent but was merely paying licence fees and other taxes connected to
the business operations. However, counsel for the respondent conceded
that this arrangement was not mentioned anywhere in the papers or
raised in the arguments presented in the court below.
Counsel
for the applicants drew attention to certain documents submitted by
Mutema in the court below by which he meant to prove his exclusive
occupation of the premises. These included licence fees and levies
paid by himself to the local authorities. The fees or levies were for
three monthly periods at a time, such as July to September 2017 or
April to June 2016. Counsel for the applicants point was that the
value of Mutema's occupation, at the very least, and using his own
mode of computation, could not be less than the profits he expected
to realize
for those three monthly periods for which he had paid the licence
fees or levies.
This,
to me, made sense, but was obviously not the full argument.
I
consider that, in her enquiry, the second respondent ought to have
found that the value of Mutema's occupation, even going by his own
method of computation, far exceeded ten thousand dollars. For
example, at seven thousand dollars per month, the profit for any
three-month period would be twenty-one thousand [$21,000=] dollars.
But, more importantly, figures in the court below were bandied about
to show that the value of the stocks in the supermarket, warehouse,
and other premises over which the parties fought, far exceeded ten
thousand dollars. Certainly, if he made an average profit of seven
thousand dollars per month, then, by simple logic, the value of the
goods he was trading in would have been well in excess of this
amount.
I
consider that using the margin of profit as the yardstick to compute
Mutema's occupation was also illogical for another reason.
He
was not trading from the air. He was not trading thin air. He was
trading from the premises. He was trading in those very goods he had
allegedly been despoiled of. Thus, he could only make profits after
being in possession and control of the premises, and of the stocks,
and trading from the premise, and trading in the goods. If he had
been unlawfully dispossessed of the premises, and of the goods, as he
alleged, then he had nothing to sell, and nowhere to sell from, and
therefore nothing by which to generate any profit.
Admittedly,
the issue of 'value', in relation to Mutema's occupation of
only the premises [without the goods], was more problematic. That
value could not be the same amount as the market value of the
property, namely, one hundred thousand [$100,000=], which Mutangiri
said he was charged by the liquidator; or the over three hundred
thousand [$300,000=], which Mutema, in his suit against the
liquidator for allegedly undervaluing the premises, said was the
correct market value. To compound this particular problem, Mutema
said he was not paying any rentals for his occupation, but merely
licence fees and levies, to keep the businesses operational.
However,
and be that as it may, Mutema's occupation certainly had a
pecuniary value. He needed premises to store his stock in. He needed
premises to sell those stocks from. He would need to rent premises
from someone else if the disputed ones had not been available, or if
the liquidator had not given him occupation for free, as he said. The
second respondent did not make an enquiry in this regard. None of the
parties gave her any figures on this. Counsel for the respondent
argued that the onus had been on Mutangiri to place information
before the court on which his challenge on the second respondent's
lack of jurisdiction was based.
However,
the absence of an amount on the value of Mutema's occupation of the
premises should not have led to the second respondent assuming
jurisdiction. The cumulative value of Mutema's occupation, i.e. the
value of the stocks; the equipment; the profits; and occupation of
the premises, far exceeded ten thousand dollars.
That
should have been the end of the matter.
The
law says any judgment given in excess of the jurisdiction of a court
which is not one of inherent jurisdiction is a nullity, see Manning
v Manning
1986
[2] ZLR 1 [SC]
and Madzwawawa
v Vambe
HH65-12.
The second respondent had no jurisdiction to deal with the dispute in
this matter. Therefore, the entire proceedings were a complete
nullity.
My
findings above, and indeed as the parties acknowledged, make it
unnecessary to consider the rest of the other issues….,.
In
the final analysis, I make the following order:
1.
The
second respondent had no jurisdiction to deal with the dispute in
this matter. The proceedings in the court below are hereby quashed.
The putative rule nisi,
issued on 25 August 2017 in case no GL87/17, and subsequently
confirmed on 5 October 2017, is hereby set aside.
