Urgent
Application
MATHONSI
J:
In
HC1541/15, the applicant and his youngest brother Happyson Mudzvova,
have sued the two respondents seeking an order confirming the
existence of a verbal sale agreement allegedly concluded in 2004 in
terms of which Happyson purchased from their brother Robert, the
first respondent herein, Stand 2323 Chadcombe Township of Stand 1257
Chadcombe Harare.
They
also seek to interdict Robert from selling the said property and to
evict him from it and transfer of the property to Happyson.
In
their declaration they averred that when Robert fell on hard times in
2004 he had approached them with an offer to sell the property which
he holds by Deed of Transfer number 10676/2000 for a sum of
$120,000,000-00 Zimbabwean currency. The offer was duly accepted
resulting in Happyson raising $80,000,000-00 while the applicant
raised $40,000,000-00 to make the purchase price required by the
first respondent who was promptly paid.
As
the three are blood brothers, they did not bother to have the
property transferred to the purchaser and also allowed the first
respondent to continue residing at the property the only footnote
being that Happyson brought their mother from her rural home to come
and stay at the property as well. She still enjoys occupation up to
now.
What
has prompted this application is that the first respondent has
advertised the property for sale at an asking price of $70,000-00
without the knowledge, authority or consent of the real owner under
circumstances which suggest that he wants to swingle the owner of his
house.
A
number of interested people have been coming to view the house and
the applicant fears that the first respondent may dispose of the
property any time and effect its transfer to the purchaser to their
detriment.
He
has therefore, approached this court on a certificate of urgency
seeking the following relief:
“TERMS
OF THE FINAL ORDER SOUGHT
That
you show cause to this Honourable Court, why a final order should not
be made in the following terms:
(a)
That the 1st
respondent be and is hereby interdicted from selling certain piece of
property known as Stand 2323 Chadcombe Township of Stand 1257
Chadcombe pending finalisation of the applicant's action filed in
this court under Case Number HC1541/15.
(b)
Each party to bear its own costs.
INTERIM
RELIEF GRANTED
(a)
The second respondent registers a caveat on the following immovable
property, certain piece of land situate in the District of Salisbury
called Stand 2323 Chadcombe Township of Stand 1257 Chadcombe
measuring 422 square metres registered under Deed of Transfer
10676/2000 in favour of Robert Mudzvova pending the finalisation of
the applicant's action filed in this court under Case No
HC1541/2015.”
It
is surprising that the applicant only seeks the registration of a
caveat when clearly the case that he has made is for an interdict
against the first respondent preventing him from selling the property
until the respective rights of the parties have been determined. The
registration of a caveat will merely prevent the passing of transfer
to the purchaser but not the sale of the property. At the end of it
all, this court may find itself having to untangle conflicting claims
which may include that of an innocent third party.
This
court has a duty to regulate its process and will at all times move
in to protect that process so that it is not rendered useless by the
conduct of the parties before determination at the appropriate time.
Quite often in recent history, litigants appearing before this court
have shown a disdain to the process of the court and are invariably
found stampeding to defeat such process. Where one party has filed
court process seeking some form of relief it is only prudent that the
other party should respect that process and await finalisation of the
matter instead of acting in a way that negates the process.
Ms
Dzingirai
who appeared for the applicant submitted that the difficulty she has,
although conceding that the first prize was to interdict the sale,
was that she would be seeking an interim relief which is the same as
the final relief. She could not conjure a final relief different from
the interim relief.
I
am aware that authorities say that, namely that interim relief is
meant to be precisely that and legal practitioners should be careful
in framing the interim and final relief sought to avoid such
incongruities: Kuvarega
v
Registrar General &
Anor
1998 (1) 188 (H) A – B.
In
my view this does not mean that the legal practitioner must prejudice
the client, in this case the applicant, by requesting an order which
does not fully protect the interests of the applicant in order not to
appear seeking interim relief which is identical to the main relief
and the same as the substantive relief.
The
thrust of CHATIKOBO J's pronouncement in Kuvarega
(supra)
was that an applicant is not entitled to substantive relief before
proving his case as interim relief is granted on proof merely of a
prima
facie
case.
Whereas
in the present case, the applicant has established that he is
entitled to what his legal practitioner wanted to secure on the
return date of the provisional order, the court should not deprive
him of that relief because the legal practitioner has had drafting
challenges and failed to construct the draft order properly. It would
be irresponsible for the court to fold its arms and do nothing when
at the end of the day it will have to sit to determine a matter that
has been filed. If the conduct of a party would result in the
ultimate decision of the court being rendered academic, what is
referred in common parlance as a brutum
fulmen,
the court should be quick to prevent such eventuality.
It
was for that reason that I preferred to give reasons for the order to
be made.
The
first respondent was served with the notice of set down but chose not
to appear.
Until
such time that the respective rights of the parties have been
determined in HC1541/15 both the sale and transfer of the property
should be prevented.
Accordingly,
the provisional order is granted as amended.
Chivore
& Partners,
Applicant's Legal Practitioners
