When
these matters first came before me, on 18 July 2013, Mr Mpofu, for
the respondents, sought a postponement to enable the respondents to
attend to a host of house-keeping issues which were then outstanding.
In particular, the respondents desired to submit bonds of security in
terms of Rule 66(1) of the High Court of Zimbabwe Rules, 1971 in
order to meet the summary judgment applications.
Although
the application was strongly opposed by Mr Mazonde, counsel for the
applicant, I granted the application as it was apparent that counsel
for the respondents was not ready to argue the matter and the issue
of security would have disposed of the applications. I postponed the
matter to 25 July 2013 for that purpose.
On
that date, Mr Mpofu then made another application for a postponement
this time to enable the respondents to prosecute a chamber
application for consolidation of these four (4) matters with yet
another related matter, HC673/09.
The
application had been brought to my attention, albeit without the
court record, and not by the Registrar of this court but by the
respondent's counsel instructing Mr Mpofu, late on 24 July 2013. I
must say that the application in question has nothing to do with
these matters which stand alone and could not detain me in dealing
with those matters that had already been placed before me.
Mr
Mpofu also sought to have the matter deferred to allow the
respondents to lodge an application for the upliftment of the bar
operating against the respondents by reasons of failure to file heads
of argument in all the four (4) matters. He submitted that the
application would be filed later that day.
It
became apparent that that the respondents were buying time as it
should have been apparent to them that there was a bar requiring
upliftment which should have been attended to. The applicant cannot
be prejudiced because of the dilatoriness of the respondents. I
refused to postpone the matters, and, in terms of Rule 238(2b),
proceeded to deal with the applications on the merits.
I
must point out, for completeness, that the respondents have failed to
find security to the satisfaction of the Registrar in terms Rule
66(1) as notified and Mr Mpofu conceded that fact. What they have
done is to file what they have titled “Bond(s) of security in terms
of Rule 66(1)(a)” signed by their legal practitioners.
In
terms of Rule 66(1), upon the hearing of a summary judgment
application under Rule 64, the defendant has two (2) options, namely,
(i)
To give security “to the satisfaction of the Registrar” to
satisfy any judgment which may be given against him in the action; or
(ii)
With the court's leave, by oral evidence, that he has a good prima
facie defence to the action.
Clearly,
therefore, the security bonds filed by the respondents did not
satisfy the requirements of Rule 66(1). This is simply because the
satisfaction of the Registrar was not secured. For that reason the
respondents could not be given leave to defend in terms of Rule 69. I
therefore proceeded on the merits of the matter to determine whether
the respondents have shown a good prima facie defence to the actions.
The
background is that the applicant is the owner of four (4) blocks of
flats situated on Stand 13301 Salisbury Township Harare known as
Monaco occupied by 18 residents, Cannes with 12 residents, St Maxime
with 8 residents and Juan Les Pins which has 10 residents. The
applicant instituted four (4) sets of summons action against the
occupants of the blocks of flats seeking their eviction, namely,
HC674/09 for Monaco, HC675/09 for Cannes, HC856/09 for St Maxime and
HC857/09 in respect of Juan Les Pins.
In
its identical declarations, the applicant averred that the occupants
had taken occupation originally by virtue of lease agreements which
expired before year 2000. Thereafter, it had granted the tenants an
option to purchase the units which they occupied which option they
had exercised, but failed to pay the purchase price in terms of the
option as a result of which their right to purchase lapsed. The
occupants having refused to vacate the flats, despite demand, the
applicant sought an order for their ejectment, holding over damages,
and costs of suit.
When
the occupants, who are the respondents in these matters entered
appearance and filed identical pleas to the claims, the applicant
filed these summary judgment applications in which it sought to defer
the claims for holding over damages electing to pursue only the
ejectment of the respondents.
By
order of this court, issued on 3 October 2012, per ZHOU J, in
HC8831/12, the four matters were consolidated to be determined at a
single hearing. It is on that basis that the matters were placed
before me and that only one judgment is being issued.
In
my view, these matters resolve themselves on the facts which are
common cause. Despite the respondents' bizarre averment in their
pleas that they paid $24 million (Zimbabwean currency),
as the purchase price for the blocks of flats, it is common cause now
that they did not pay a single penny towards the purchase price and
they have belatedly offered to pay the applicant a sum of $650,000 as
purchase price, which offer the applicant has rejected insisting that
the flats are no longer for sale.
It
is common cause that the lease agreements under which the respondents
moved into the flats lapsed in year 2000 when they were given and
took an option to purchase the flats in question. They are therefore
occupying the flats not by virtue of any lease agreement but because
they lay a claim to the flats in terms of the purported sale
agreement allegedly entered into.
It
is also common cause that the respondents, through their Residents
Association,
approached this court seeking an order for specific performance in
HC4633/05. The application was dismissed by judgment of this court
delivered on 3 July 2007, per OMERJEE J, on the basis that the
respondents had breached the sale agreement by failing to make
payment of the purchase price within the time given, namely, 31 July
2000, and, as such, the applicant “was entitled to unilaterally
cancel the agreement or ignore it altogether.”
The
respondents appealed against the judgment of this court to the
Supreme Court which, on 22 October 2010, handed down judgment in St
Tropez Residents Association v National Social Security Authority &
Anor SC19-10 upholding the judgment of this court. The Supreme Court
ruled that the applicant had not waived its right to cancel the
agreement when the respondent failed to pay the purchase price by 31
July 2000 and that they were not entitled to specific performance.
With
the rights of the parties having been determined by the Supreme
Court, the applicant has brought these summary judgement applications
on the basis that the respondents have not a bona fide defence to the
claim for eviction.
Summary
judgment is available to a plaintiff whose belief it is that his
claim is unassailable and therefore should not be subjected to the
delays attendant to a trial. While it is an extraordinary remedy
which is very stringent in effect, as it closes the door to a
defendant to defend the claim, it is availed to a party whose claim
is so unanswerable that it should be saved the agony of a trial:
Ashanti Gold Field Zimbabwe t/a Rebecca Mine v Pfidze HH347-12…,.
In
order to defeat a summary judgment application a defendant must
disclose a defence and material facts upon which that defence is
based with sufficient clarity and completeness so as to persuade the
court that if proved at the trial such facts will constitute a
defence to the claim: Hales v Dollerick Investments (Pvt) Ltd 1998
(2) ZLR 235 (H)…,.; African Banking Corporation of Zimbabwe Ltd t/a
Banc ABC v PWC Motors (Pvt) Ltd & Ors HH123-13.
Not
every defence raised by a defendant will succeed in defeating a claim
for summary judgment. It must be a bona fide defence; a plausible
case. If it is averred in a manner which is needlessly bald, vague
and sketchy, it will constitute material to be considered by the
court in relation to the bona fides of that defence; Kingstons Ltd v
L.D. Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S)…,.; Breitenbach v Fiat
SA (Edms) Bpk 1976 (2) SA 226 (T)…,.
In
casu, the respondents have argued that summary judgment should not be
granted on the basis of Ad Lis Alibi Pendenis as an application was
made by the applicant for the striking out of their pleas as being
bad at law which application was argued before GOWORA J…, but
judgment has not been handed down.
In
my view, that argument cannot defeat a summary judgment application.
As
I have already stated, summary judgment is available to a litigant
whose claim is unanswerable and who should not be delayed by a trial
for that reason. The attack on the respondent's plea was in
pursuance of what the applicant perceived was an unassailable claim.
Why the judgment has not been handed down even as GOWORA J moved to
the Supreme Court almost two (2) years ago, is unknown. Since then,
the Supreme Court has determined the respective rights of the
parties, thereby entitling the applicant to make an approach to this
court for summary judgment. In my view, it matters not that an
interlocutory application had been made which would not have resolved
the matter to finality anywhere. Upholding the argument based on ad
lis alibi pendens in the circumstances of this matter would defeat
the very purpose of the relief of summary judgment premised as it is
on the time honoured principle that unscrupulous litigants bent on
delaying just claims should be suppressed at all costs.
The
respondents also submitted that they have made a counter claim in
which they seek an order directing the applicant to transfer the
flats to them on the basis that they purchased them for $24 million
(Zimbabwean currency), and, as such, they are entitled to take
transfer.
In
Greenland v Zichire HH93-13, I bemoaned the unacceptable and
detestful habit of litigants to trifle with courts of law which is
fast developing in this jurisdiction and is regrettable indeed. Just
how the respondents hope to sustain the counter-claim they have made
is an unfathomable mystery. These are the same respondents who are
offering to pay the applicant $650,000 as purchase price for the
flats because it is common cause that they did not pay anything
towards the purchase price. They then have the temerity, in the same
breath to submit a counterclaim alleging having paid $24 million as
purchase price. This trifling with the court must simply stop. It is
the kind of kindergarten behaviour which should find no place in our
courts and must be suppressed with an order for punitive costs as a
seal of the court's disapproval of such abuse of court process.
The
respondents have also sought to argue that the Supreme Court did not
determine the rights of the parties and that they are still in with a
chance to take another crack at goal as it were.
I
do not agree.
What
the Supreme Court did was to settle the dispute once and for all. It
made it clear that the respondents have no right over the properties
arising out of their option to purchase because they did not effect
payment of the purchase price by 31 July 2000. What this means is
that the respondents are left with nothing. They do not have a sale
agreement to enforce. They do not have a lease agreement in terms of
which they can remain in occupation. They can only remain in
occupation by the grace of the applicant, which grace the applicant
has withheld and is, instead, seeking their ejectment.
I
am satisfied that the applicant's claim for ejectment is
unassailable.
The
applicant has applied that the issue of arrear rentals and holding
over damages be referred to trial in terms of Rule 73 of the High
Court of Zimbabwe Rules, 1971.
I
am of the view that it is appropriate to refer those issues to trial
and enter summary judgment on ejectment only.
The
applicant sought an order for costs de boniis propriis against the
legal practice of Venturas & Samukange as they should have known
that the respondents do not have a defence but proceeded, that
notwithstanding, to file what the applicant has called “a bogus
defence.”
I
have not acceded to that application because it would appear that
Venturas & Samukange underwent a damascane experience after
filing opposition to the applications. They renounced agency and
virtually “absconded” leaving the respondents to their devices.
I
agree however that this is an appropriate case for costs to be
awarded on a punitive scale as I have already stated.
In
the result, I make the following order, that;
1.
In Case No HC674/09 summary judgment be and is hereby entered for the
applicant against the respondents for eviction only.
2.
Within 48 hours of the date of this order the respondents and all
those claiming occupation through them, shall vacate such of the
flats or apartments or rooms or premises at Monaco, St Tropez
Apartments Block, Samora Machel Avenue East, Eastlea Harare failing
which the Sheriff
for Zimbabwe or his lawful deputy duly assisted by the Zimbabwe
Republic Police, if need be, is directed, authorised and empowered to
evict the respondents and all those claiming occupation through them
from the premises aforesaid, and, as specified below, give vacant
possession to the applicant.
2.1
N. Svova 1st
respondent 7 Monaco.
2.2
E. Madzima & G.Madzima 2nd
respondents 7A Monaco.
2.3
M. Makoni 3rd
respondent 3 Monaco.
2.4
C. Chidziva 4th
respondent 8A Monaco.
2.5
M. Manyika 5th
respondent 9 Monaco.
2.6
N.S. Barnabas 6th
respondent 9A Monaco.
2.7
S. Maredza & P Maredza 7th
respondent 10 Monaco.
2.8
L. Ushumba 8th
respondent 10A Monaco.
2.9
C.R. Muzenda 9th
respondent 11 Monaco.
2.10
F. Mlotswa 10th
respondent 11A Monaco.
2.11
N. Karimahanga & R Karimahanga 11th
respondent 14 Monaco.
2.12
P. Chabuka 12th
respondent 14A Monaco.
2.13
L. Marumbwa 13th
respondent 15 Monaco.
2.14
P. C Hama 14th
respondent 15A Monaco.
2.15
B & E Mpofu 15th
respondent 12 Monaco.
2.16
T. Mguni 16th
respondent 12A Monaco.
2.17
C. Deka 17th
respondent 13 Monaco.
2.18
C. Chivaura 18th
respondent 13A Monaco.
3.
The applicant's claim for holding over damages be and is hereby
referred to trial in terms of Order 10 Rule 73 of the rules of this
Honourable Court.
4.
The respondents shall pay the costs of this application on the scale
of legal practitioner and client jointly and severally the one paying
the others to be absolved.
5.
In Case No HC675/09 summary judgment be and is hereby entered for the
applicant against the respondents for eviction only.
5.1
Within forty eight [48] hours of the date of this order the
respondents, and all those claiming occupation through them, shall
vacate such of the flats or apartments or rooms or premises at
Cannes, St Tropez Apartments Block, Samora Machel Avenue East,
Eastlea, Harare failing which the Sheriff for Zimbabwe, or his lawful
deputy duly assisted by the Zimbabwe Republic Police, if need be,
shall be entitled, directed, authorised and empowered to evict the
respondents, and all those claiming occupation through them, from the
premises aforesaid, and, as specified below, give vacant possession
of the same to the plaintiff:
5.
2 R. Makasi First Respondent 1 Cannes.
5.3
S. Hlatshwayo Second Respondent 1A Cannes.
5.4
S. Sibanda Third Respondent 2 Cannes.
5.5
R. Mashave Fourth Respondent 2A Cannes.
5.6
B. Duri Fifth Respondent 3 Cannes.
5.7
W. Zhakata Sixth Respondent 3A Cannes.
5.8
E. Makunda Seventh Respondent 4 Cannes.
5.9
W. Grabowski Eighth Respondent 4A Cannes.
5.10
D. Mudambanuki & S. Mudambanuki Ninth Respondents 5 Cannes.
5.11
L. Cheuka Tenth Respondent 5A Cannes.
5.12
N. Chikwinya Eleventh Respondent 6 Cannes.
5.13
J. Magarangoma Twelfth Respondent 6A Cannes.
6.
The applicant's claim for holding over damages be and is hereby
referred to trial in terms of Order 10 Rule 73 of the Rules of this
Honourable court.
7.
The respondents shall pay the costs of this application on the scale
of legal practitioner and client jointly and severally, the one
paying the others to be absolved.
8.
In Case No. HC856/09 summary judgment be and is hereby entered for
the applicant against the respondents for eviction only.
8.1
Within forty eight [48] hours of the date of this order the
respondents, and all those claiming occupation through them, shall
vacate such of the flats or apartments or rooms or premises at St
Maxime, St Tropez Apartments Block, Samora Machel Avenue East,
Eastlea, Harare failing which the Sheriff for Zimbabwe, or his lawful
deputy duly assisted by the Zimbabwe Republic Police if need be,
shall be entitled, directed, authorized and empowered to evict the
respondents, and all those claiming occupation through them, from the
premises aforesaid, and, as specified below, give vacant possession
of the same to the plaintiff:
8.2.P.
Mudyiwa & T. Mudyiwa First Respondent 22 St Maxime.
8.3
I. Zenda Second Respondent 22A St Maxime.
8.4
S. Nyathi Third Respondent 23 St Maxime.
8.5
N.N. Matunhire Fourth Respondent 23A St Maxime.
8.6
T. Mangwande Fifth Respondent 24 St Maxime.
8.7
M. Mkwakwami Sixth Respondent 24A St Maxime.
8.8
C. Manyida Seventh Respondent 25 St Maxime.
8.9
F. Jangara Eighth Respondent 25A St Maxime.
9.
The applicant's claim for holding over damages be and is hereby
referred to trial in terms of Order 10 Rule 73 of the Rules of this
Honourable Court.
10.
The respondents shall pay the costs of this application on the scale
of legal practitioner and client jointly and severally, the one
paying the others to be absolved.
11.
In Case No. HC857/09 summary judgment be and is hereby entered for
the applicant against the respondents for eviction only.
11.1
Within forty eight [48] hours of the date of this order the
respondents, and all those claiming occupation through them, shall
vacate such of the flats or apartments or rooms or premises at Juan
Les Pins, St Tropez Apartments Block, Samora Machel Avenue East,
Eastlea, Harare failing which the Sheriff for Zimbabwe, or his lawful
deputy, duly assisted by the Zimbabwe Republic Police if need be,
shall be entitled, directed, authorized and empowered to evict the
respondents, and all those claiming occupation through them, from the
premises aforesaid, and, as specified below, give vacant possession
of the same to the plaintiff:
11.2
W. Magobogobo First Respondent 26 Juan Les Pins.
11.3
P. Mazarire Second Respondent 26A Juan Les Pins.
11.4
E. Maposa Third Respondent 27 Juan Les Pins.
11.5
E. Musonza Fourth Respondent 27A Juan Les Pins.
11.6
R. Katsika Fifth Respondent 28 Juan Les Pins.
11.7
J. Ngulube Sixth Respondent 28A Juan Les Pins.
11.8
E. Musimwa Eighth Respondent 29A Juan Les Pins.
11.9
K. Sibanda Ninth Respondent 30 Juan Les Pins.
11.10
Chipoyera Tenth Respondent 30A Juan Les Pins.
12.
The applicant's claim for holding over damages be and is hereby
referred to trial in terms of Order 10 Rule 73 of the Rules of this
Honourable court.
13.
Respondents shall pay the costs of this application on the scale of
legal practitioner and client jointly and severally the one paying
the others to be absolved.
