MWAYERA
J:
After
considering the papers filed of record inclusive of heads of argument
and hearing oral evidence from the applicant and the respondents'
counsels, I gave oral reasons for my disposition I indicated that
written reasons would be availed in due course on why I effectively
dismissed the application with costs on attorney client scale.
The
reasons for my disposition are captioned herein.
The
applicant sought a declaratory order in terms of section 14 of the
High Court Act. The applicant effectively sought the nullification of
the appointment of Joytindra Natverial Naik as an executor
testamentary of the Estate of Shushila Natverial Naik.
The
first, second and third respondent opposed the application and raised
the following points in
limine;
1.
Locus standi.
2.
Wrong procedure.
The
applicant was a tenant at the property falling under the deceased
estate as represented by the first respondent. The second and third
respondents are interested parties.
The
applicant in this case seeks to impugn the administration of the
estate of late Sushila Natverial Naik and appointment of its
executor.
The
question is in what capacity does the applicant who is neither a
relative or beneficiary of the estate seek a declaratory order
invalidating the appointment of an executor testamentary of the
estate in question.
Section
14 of the High Court Act under which the application has been brought
is instructive. It states;
“The
High Court may, in its discretion at the instance of any interested
person
enquire into and determine any existing, future or contigent right on
obligation, notwithstanding that such person cannot claim any relief
consequential upon such determination.”
It
is apparent there is a condition precedent to bringing an application
for a declaratory order. The applicant must be an interested person
having a substantial and direct interest in the matter and such
interest must relate to an existing future or contingent legal right.
(see Recoy
Investments (Pvt) Ltd
v Tarcon
2011
(2) ZLR 65 (H); Mpukuta
v Maker
Insurance Pool & Ors
2012 (1) ZLR 192 (H)).
The
legislature's intention was surely not to create an absurdity where
anyone in the abstract would seek a declaratur.
The
applicant, a subtenant to the premises appears to be bringing the
application in anticipation of eviction which he intends to oppose.
The intention to resist eviction in the premises does not constitute
a legal right to seek a declaratur in the manner sought by the
applicant. There is no evidence to show the alienated right on the
part of the application warrants the declaratory order sought. It is
apparent from the applicant's submission that the applicant has no
existing future or contingent right. The applicant is an illegal
subtenant who happens to be in occupation by virtue of unsanctioned
sub-tenancy in breach a lease agreement. The applicant has no rights
arising which ought to be protected by a declaratur.
It
is settled that a legal right, and not the factual basis upon which a
right may be founded, ought to be shown.
See
Movement
for Democratic Change
v President
of the Republic of Zimbabwe and Others
HC129/05; Electrical
Contractors Association (South Africa) and Another
v Building
Industries Federation
(2) SA 1980 S 16 wherein Nicholas
J emphasised that a person seeking a declaration of rights must set
forth his contention as to what the alleged right is.
In
RK
Footwear Manufacturers (Pvt) Ltd v
Boka
Book Sales (Pvt) Ltd
1986 (2) ZLR 209 Sandura
JP (as he then was) had occasion to identify two considerations that
a court had to take into consideration in determining whether or not
to issue a declaratory order;
(i)
He stated that the court had to consider whether the applicant was an
interested person in an existing future or contingent right or
obligation; and
(ii)
Secondly whether the case was a proper one for the court to exercise
its discretion.
In
RK
Footwear
case, the court was required to issue a declaratory order involving
the rights of a lessor to evict a tenant at a future date. The judge
came to the conclusion that the matter before him was not a proper
one for him to exercise his discretion as at the time of the hearing
of the matter, there was no good and sufficient cause for requiring
the order.
In
casu,
the applicant is seeking a declarator order in a matter where he has
no legal right to the estate. Further, the applicant is seeking the
court to assist him to continue occupying the premises in question
illegally given the sub tenancy was specifically prohibited by the
lease agreement between Gold-Pack Investments and Sushila Natverial.
The
applicant is clearly not an interested party in the administration of
Estate late Sushila Naik. There is no basis for the applicant
bringing the action before the court as he clearly has no locus
standi.
It
is evident that the applicant appears bent on abusing court process
to frustrate the administration of an Estate to which he is not an
interested party. My position is fortified by the fact that there is
an extant Magistrate Court order for eviction of Clintvest and all
those claiming occupation through it. These would include the
applicant an illegal subtenant.
In
the case of Newton
Elliot Dongo v
Bobnik
Investments (Pvt) Ltd and Messenger of Court
HH384-17 this court had occasion to deal with the issue of eviction
of the applicant as a subtenant from the same premises 107 Salisbury
Township also known as Number 12 Harare Street, Harare which
constitutes the deceased estate represented by the first respondent.
In that case Charewa
J ably dismissed the applicant's urgent application for stay of
execution on basis of lack of urgency and locus
standi.
She stated that the applicant was a subtenant to an in fact illegal
tenant thus there was no nexus with the first respondent. She in
conclusion, stated that since there was no nexus between Estate late
Sushila Naik and the applicant, there can be no direct and legal
interests in the administration of the Estate by the applicant.
At
the back drop to such a finding and clear explanation of lack of
locus
standi
it is clear the applicant is simply taking a gamble with the courts
in a matter where he has no legal interest entitling him to the
declaratory order sought.
The
court has to express its displeasure on conduct which borders an
abuse of court process, moreso in situation were the litigant ignores
clear directions from the court.
The
applicant having no locus
standi
improperly sought a declarator in a matter which he has no interest
existing or future or contingent right or obligation. The court will
express its displeasure on abuse of court process by awarding costs
on a higher scale. It appears the applicant in a lawless manner seems
to feel justified to occupy the deceased estate property simply
because the late is Indian and the executor appointed is Indian. Such
conduct is unacceptable in a progressive democratic society. The
requirements for a declaratur have not been met given the lack of
legal right on the part of the applicant.
The
application is accordingly dismissed with costs on an attorney client
scale.
G.N.
Mlotshwa and Company,
1st
& 2nd
respondent's legal practitioners
Gasa
Nyamadzawo & Associates,
3rd
respondent's legal practitioners
