This
is an urgent chamber application for an interim relief order
interdicting the first respondent from transferring a certain piece
of land situate in the District of Salisbury called an undivided 5%
share No.19 in the Remainder of Stand 1652 Salisbury Township held
under Deed of Transfer number 11009/2005 to the fifth respondent
pending the hearing and determination of an application to set aside
the sale of property described herein sold by public auction.
During
the hearing of the matter the first respondent was not represented.
The fourth and the fifth respondents' representatives who were
present elected not to say anything. The second respondent filed his
report couched in the following words -
“SHERIFF'S
REPORT
I
have gone through the applicant's founding affidavit and have been
sighted as the 2nd
Respondent in my official capacity although on the applicants (sic)
founding affidavit the Sheriff has been sighted as the 4th
Respondent in his official capacity.
The
Sheriff will abide by the decision of this Honourable Court.
…,.(signed)…,.
M
Madega
Sheriff
/rg”
Counsel
for the third respondent raised a number of points in
limine.
The pertinent ones being -
(a)
That the matter is not urgent;
(b)
That the relief claimed by the applicant is for stay of execution
that has already been completed;
(c)
That the interim relief and final relief sought are the same; and
(d)
That the urgent application was not served on us personally but on
Scanlen and Holderness who were acting on behalf of us in the action
proceedings, therefore, the service was defective.
After
hearing submissions by parties on the points in limine,
I indicated that, in my view, the matter was urgent and I was going
to dismiss the points in limine.
I invited the parties to address me on the merits. I indicated that
my reason for dismissing the points in limine
will be apparent in my judgement. These are they.
The
applicant purchased the property in question from the fourth
respondent by way of private treaty on the 11th
of November 2013 and paid the
full purchase price. The applicant and the fourth respondent signed a
Memorandum of Agreement of Sale to that effect which is attached as
annexure F. The applicant took vacant possession of the said property
soon after the sale and leased out the property to a tenant. The
applicant then sought the transfer of the property to itself sometime
in April 2014. There was a delay in processing the transfer because
of the office of the Zimbabwe Revenue Authority (ZIMRA)'s queries
concerning the payment of capital gains tax.
Meanwhile,
and unbeknown to the applicant, the fourth respondent owed the third
respondent money. The third respondent sued the fourth respondent and
obtained judgment in its favour. The third respondent then obtained a
writ of execution against movables and immovable property on the 10th
of July 2014. The applicant's piece of property, which was still in
the names of the fourth respondent, was attached and subsequently
sold to the fifth respondent at a public auction. The applicant only
became aware of the proceedings involving the third and the fourth
respondents by way of a written communication from the chairperson of
the block of apartments that house the property in question on the
morning of the 16th
January 2015.
Upon
learning that the property in question had been auctioned, the
applicant immediately approached its legal practitioners who then
filed this urgent chamber application on the 19th
of January 2015.
Let
me hasten to mention that the applicant was not cited as a party in
the court processes.
Had
it not been for the chairperson of the block of apartments who knew
the owner of the property in question, the applicant might not have
known of the sale of its property until ownership was passed on to
the fifth respondent.
Counsel
for the third respondent's contention was that this matter is not
urgent because the relief sought by the applicant cannot be granted
as the applicant has not shown that they have a clear right against
the third respondent, but the fourth respondent which right can be
adequately remedied by an award for damages in the matter that will
have been filed against the fourth respondent. He further submitted
that the urgency in this matter is self-created….,.
What
this court has to decide, taking into account all the issues raised
as points in limine,
is whether or not this matter is urgent.
What
constitutes urgency has been clearly stated by CHATIKOBO J in the
case of Kuvarega
v Registrar General & Anor
1998 (1) ZLR 188…, where the learned judge said -
“What
constitutes urgency is not only the imminent arrival of the day of
reckoning; a matter is urgent, if, at the time the need to act
arrives, the matter cannot wait. Urgency which stems from a
deliberate or careless abstention from action until the deadline
draws near is not the type of urgency contemplated by the rules. It
necessarily follows that the certificate of urgency or the supporting
affidavit must always contain an explanation of the non-timeous
action if there has been a delay.”
In
casu,
the applicant became aware of the proceedings on the 16th
of
January 2015. The applicant did not sit on its laurels. It quickly
filed this application to protect its rights on the 19th
of January 2015. A delay of three (3) days cannot be said, by any
imagination, to be inordinate. In my view, the applicant acted when
the need to act arose. The need to act only arose on the 16th
of
January 2015 when they became aware of the sale of their property.
It
has not been shown that the urgency in this case was self-created
since the applicant was not a party to the proceedings involving the
third and the fourth respondents.
In
any case, I do not believe that the applicant does not have real
rights worthy of
protecting. The applicant's rights over the property in question
are enforceable against all the respondents cited in these
proceedings. The rights are derived from the contract of sale that
exists between the applicant and the fourth respondent. Moreover,
this is an application for a temporary interdict. What the applicant
needs to prove is a prima
facie
right, that is, a right which though prima facie established, is open
to some doubt. Setlogelo
v Setlogelo
1914 AD 221…,.
For
the above reasons I am satisfied that this matter qualifies to be
heard on an urgent basis despite the other factors raised on behalf
of the third respondent. The points in limine
are therefore dismissed.
I
will now deal with the merits.
Counsel
for the applicant outlined the requirements for an application for
any interdict as stated in the case of Setlogelo
v Setlogelo
1914 AD 221. The position of the law is that an applicant for a
temporary interdict will succeed if he/she is able to satisfy four
requirements. The requirements are -
(a)
A prima
facie
right, though open to doubt;
(b)
That there is a well-grounded apprehension of irreparable harm to the
applicant if the interim relief is not granted and he ultimately
succeeds in establishing the right;
(c)
The balance of convenience favours the granting of interim relief;
and
(d)
That the applicant has no other satisfactory remedy.
See
also Cool
v Minister of Justice
1955 (2) SA 682 (C)…,.
Counsel
for the third respondent,
in his argument, submitted that all the above four requirements have
to be satisfied. He thus opted to dwell on the issue of irreparable
harm. According to him, the applicant has a remedy in terms of the
contract hence there is no irreparable harm. He relied for his
arguments on clauses 9 and 10 of the contract between the applicant
and the fourth respondent. The clauses in question read as follows -
“9.
CANCELLATION
Notwithstanding
any extension of time or other concession given by the Seller to the
Purchaser, if the Purchaser fails to observe or perform any of the
Purchaser's obligations under this agreement and fails to rectify
any such breach within seven (7) days of dispatch of written notice
by the Seller, the Seller shall be entitled, without prejudice to the
Seller's rights, to:
(a)
Seek specific performance; or
(b)
Cancel the agreement and claim ejectment of the Purchaser from the
property; and/or
(c)
Claim damages.
10.1
In the event of the Seller breaching any of its obligations in terms
of this contract and fails to rectify any such breach within 7 days
of dispatch of a written notice by the Purchaser, the Purchaser shall
be entitled to:
(a)
Seek specific performance; or
(b)
Cancel the contract and claim the full purchase price together with
interest from the date of payment; and/or
(c)
Claim damages.”
In
response to counsel for the third respondent's submission, counsel
for the applicant argued that the applicant cannot invoke the
provisions in clause 9 and or 10 of the contract because the fourth
respondent has not breached any of the provisions of the contract of
sale. Besides, the fourth respondent is now bankrupt and has ceased
to operate, that is the reason why the fourth respondent's property
was attached. Further, he argued that there is going to be
irreparable harm because the fourth respondent's other two pieces
of property are now under judicial attachment. In his view, the
balance of convenience favours the applicant because the applicant
paid for the property in question whereas the fifth respondent has so
far paid nothing.
In
resolving this dispute, the court took into account the remarks of
HOLMES J…, who summed up the position in relation to granting of
interim interdicts in the case of Olympic
Passenger Service (Pvt) Ltd v Ramlagan
1957 (2) SA 382 (D)…, as follows -
“It
thus appears that where the applicant's right is clear, and the
other requisites are present, no difficulty presents itself about
granting an interdict. At the other end of the scale, where his
prospects of ultimate success are nil, obviously, the Court will
refuse an interdict. Between those two extremes fall the intermediate
cases in which, on the papers as a whole, the applicant's prospects
of ultimate success may range all the way from strong to weak. The
expression ' prima facie' established though open to some doubt
seems to me a brilliantly apt classification of these cases. In such
cases, upon proof of a well grounded apprehension of irreparable
harm, and there being no adequate ordinary remedy, the Court may
grant an interdict – it has a discretion, to be exercised
judiciously upon a consideration of all the facts. Usually, this will
resolve itself into a nice consideration of the prospects of success
and the balance of convenience; the stronger the prospects of
success, the less need for such balance to favour the applicant: the
weaker the prospects of success, the greater the need for the balance
of convenience to favour him. I need hardly add that by balance of
convenience is meant the prejudice to the applicant if the interdict
be refused, weighed against the prejudice to the respondent if it be
granted.”
In
casu,
the applicant's right is clear and all the other requisites are
present. The applicant purchased the property in question and paid
the purchase price in full. The applicant took vacant possession of
the property. What was only left was the transfer of title deeds to
the applicant. The property was therefore no longer the property of
the fourth respondent at the time it was attached in execution. Had
the applicant known of the attachment the applicant could have issued
interpleader summons or contest the sale and/or the subsequent
confirmation of the sale. Had the correct status of the property been
disclosed to the Sheriff of the High Court, the property could have
been excluded from the property that was attached.
At
the moment, the fifth respondent was confirmed the highest bidder at
the public auction. The fifth respondent has not paid a cent towards
the purchase price. The balance of convenience favours the applicant.
The Registrar of Deeds cannot, therefore, proceed to transfer any
title deeds of the property to the fifth respondent. The application
for an interdict will therefore succeed….,.
In
the result, the following interim relief is granted -
“INTERIM
RELIEF GRANTED
Pending
the outcome of the application to set aside the sale by auction, the
Applicant is granted the following relief:
1.
The First Respondent be and is hereby interdicted from transferring
certain piece of land situate in the District of Salisbury called an
undivided 5% share No.19 in the Remainder of Stand 1652 Salisbury
Township held under Deed of Transfer number 11009/2005 by the Second
Respondent from the Fourth Respondent to the Fifth Respondent;
2.
The Second Respondent be and is hereby interdicted from signing all
such documents of transfer as may be necessary to transfer certain
piece of land situate in the District of Salisbury called an
undivided 5% share No.19 in the Remainder of Stand 1652 Salisbury
Township held under Deed of Transfer number 11009/2005 by the Second
Respondent to any other party in pursuance to the writ of execution
issued in favour of the Third Respondent under case number
HC10443/13.
SERVICE
OF THE PROVISIONAL ORDER
That
the Applicant's legal practitioners are hereby given leave to serve
the Provisional Order on the Respondents.”
