Urgent
Chamber Application
CHAREWA
J:
The
applicant filed an urgent chamber application for a provisional order
stay of eviction as interim relief and a final order that he should
remain in peaceful occupation of immovable property known being Stand
number 107 of Salisbury Township, also known as Number 102 Harare
Street, Harare.
I
heard the application on 10 February 2017 and dismissed it with
costs, giving reasons ex-tempore,
in the presence of the applicant, for lack of urgency and locus
standi
by the applicant.
On
22 May 2017, three and a half months later, the applicant wrote to
the Registrar requesting the reasons for my decision, which I render
hereunder.
The
Facts
Stand
107 of Salisbury Township belonged to the late Sushila Natverlal Naik
whose estate was duly registered on 9 May 2016 and administered under
the Master's supervision to its final conclusion. (Letters of
Administration issued to deceased's son Joytindra Natverlal Naik
dated 22 June 2016 refer). As part of the finalisation of the
administration of the estate, the property was disposed of to the
first defendant on 21 July 2016.
Upon
finalisation of the administration of the estate and the disposal of
the estate property, three months' notice was properly given to the
legal tenant, Goldpack Investments (Pvt) Ltd and all those claiming
occupation through it, to vacate the property in favour of the new
owner.
Upon
failure of the occupants to vacate, the matter went before the
Magistrates Court which granted an order of eviction on 3 February
2017.
Prior
to her death, the deceased had leased the property for five years
commencing 1 November 1999 to 31 October 2004, to Goldpack
Investments (Pvt) Ltd. The terms of the lease agreement did not allow
for subletting or cession without the deceased's consent.
Contrary
to the lease agreement and subsequent to the deceased's death,
Goldpack “ceded” its rights to a company called Clintvest
Investments (Pvt) Ltd. While the directors of the two companies were
the same, the companies were and are separate legal entities.
Clintvest
subsequently allegedly sublet to several flea market stall holders as
is apparent from Magistrates Court Case No. 41044/2016. Applicant's
name is not included as one of the stall holders in that matter
though he swore an affidavit on their behalf, the basis of which is
unclear. Nothing on the record or in previous litigation support that
applicant was also a stallholder and subtenant of Clintvest.
The
applicant instituted the present application on his own behalf as
appears from his founding and “supplementary founding affidavit”
(sic).
However, he purports to speak for other subtenants without laying the
basis for doing so.
When
the parties appeared before me on 9 February 2017, I noted challenges
with the draft order which the applicant sought; the interim order of
which was to the effect that pending the determination of the urgent
application before me, execution of any judgment of a Magistrate
Court seeking his eviction be stayed in circumstances where the
applicant had already been evicted.
Further
I could not grant any order pending the determination of the very
application before me.
In
addition the final order sought continued peaceful occupation pending
the determination of his application for a declaratory order that the
sale of the property was invalid, when applicant was no longer in
occupation.
I
also noted that the applicant had not properly laid the basis for
seeking that the matter be heard on an urgent basis or established
his locus
standi
to bring the application.
With
the consent of the first respondent, I therefore directed the
applicant to attend to his draft order to seek reinstatement of
occupation and stay of any further execution thereafter. In addition,
I granted the applicant the indulgence, if necessary, to file a
supplementary affidavit regarding;
(1)
this change in the draft order;
(2)
to traverse the issue of urgency, the requirements of which were
explained to him; and
(3)
to establish his locus
standi
after which the first respondent could file its opposing affidavit.
On
the next hearing date, on 10 February 2017, applicant submitted a
supplementary founding affidavit which was effectively a new
application for an interdict, bringing up new issues rather than
reinstatement of occupation and stay of further execution contrary to
the directions of the court.
Being
mindful of the fact that applicant was a self-actor, I however
allowed the parties to make submissions on urgency and locus.
Reasons
for judgment
At
the conclusion of the parties' submissions I dismissed the
application on the basis that firstly, it was not urgent, and
secondly and in any event, the applicant lacked the locus
standi
to bring this or any other application in the matter, and these were
my reasons:
Urgency
On
urgency, the applicant submitted that he was being evicted and had in
fact been evicted by someone with improper title. He averred that he
should not be evicted until the issue of propriety of the
administration of the estate of Late Sushila Naik was resolved.
In
his affidavit of urgency at page 17 of his application, applicant
averred that the matter was urgent because;
1.
He had “been served with a writ, default judgment and notice of
removal to take place on the 9th
of February 2017”…
2.
He “was not cited in the matter….threatening (his) rights in the
premises and ...was not given the opportunity in the Magistrates
Court to defend (his) rights”.
3.
Unless this court intervened, he stands “to suffer repairable
(sic)
harm and it is clear that the 1st
Respondent approached that
(sic)
Court with dirty hands by citing a party which is not in occupation
and has ceased to have an interest in the premises”.
4.
“…1st
Respondent has abused the lower court by seeking such an order
(presumably the order of eviction) when there is a case HC137/16
pending…”
5.
“The reasons why 1st
Respondent has acted in such a manner is that …..We both sale
(sic)
electrical goods and hardware and so he wants to kill competition.”
It
is apparent that applicant advanced no grounds at all why his
application should be treated as urgent.
In
fact, by his own admission, he knew by, at the very least, January
2017, that the first respondent had acquired title and intended to
convert the property for its own use. And as at that date, he had
long been aware that in 2016, first respondent had instituted
eviction process against the legal tenant, Goldpack, and all those
claiming occupation through it. If applicant had any rights to
protect, then the need to act arose, at the latest, then.
As
it turns out, and according to documents in applicant's possession
and paragraph 5 of his supplementary founding affidavit, as at 25
August 2016, all subtenants at 102 Harare Street were given notice by
Clintvest that the property had been sold and that they had to vacate
within three months. They sought an extension of the notice period to
the end of December 2016, which was turned down by letter dated 16
November 2016.
At
the earliest therefore, applicant was, as from 25 August 2016, always
aware that the property had been sold as a consequence of the
administration of the estate and he was required to vacate in favour
of the new owner. The need to act arose then, should applicant have
had any remedy against first respondent, and not as at the date of
eviction by the Messenger of Court.
Instead
of seeking to protect his alleged rights to occupation, what
applicant did in fact was to seek to impugn the administration of the
estate of Late Sushila Naik, in letters dated 21 & 29 December
2016. In response the Master informed him, by letter dated 11 January
2017, to approach the courts for a review of the administration of
the estate as it had been finalised. Contrary to the advice from the
Master, what the applicant did was to seek a declaratur,
a month down the line. Thus, he himself did not treat his own cause
as urgent.
Besides,
execution of judgment being the natural consequence of an order of
court, and the applicant having already been evicted, it is a
principle of our jurisprudence that once the status quo
ante has been lost, it can generally not be restored, unless there is
a palpable miscarriage of justice, which is not apparent in this
case.
Clearly,
this matter did not deserve to be treated as urgent as it fell far
short of the requirements necessary to jump the queue and take
precedence over other matters.
Locus
Standi
Even,
had urgency been proved, the applicant faced the further hurdle of
establishing his locus
standi
to bring this application.
At
the same time that the subtenants were denied an extension of the
notice period, they were informed that their landlord, Clintvest, was
in fact an illegal tenant, and they, as its subtenants, had no nexus
with first respondent. Applicant does not dispute that he was a
subtenant of Clintvest. In fact he asserts that he should have been
given notice by that company, which is indeed what happened in terms
of paragraph 5 of the supplementary founding affidavit aforesaid.
What
he may not have known was that Clintvest had no right to receive
cession from Goldpack, contrary to paragraphs 8.2 and 8.8 of
Goldpack's lease agreement with the late Sushila Naik. And if
Clintvest did not have any legal rights flowing from a valid cession,
then neither could it give any rights to him greater than its own
rights.
Ergo,
applicant's claim stands on nothing, a truism which the courts have
underscored time and again.
In
any event, the fact that the Magistrates Court ordered eviction of
Goldpack and all those claiming occupation through it, equally
applied to applicant as he staked his claim on a cession of its
rights by Goldpack to Clintvest. That order is still extant and has
not been appealed. Applicant therefore remains evicted in terms
thereof.
In
fact, the applicant stands on very tenuous ground.
His
tenancy even from Clintvest is in question; else he would have
produced his own copy of notice to vacate. He has produced no proof
of stock that he sells or intends to sell on the premises, nor has he
any lease or receipt that he was paying any rent to Clintvest. Case
number 41042/16 carries no reference to him whatsoever, nor does the
affidavit of Mr Morar, the representative of Clintvest. The
presumption is that applicant is a mere opportunist who cannot claim
any right of occupation let alone any locus
to assert any rights over the property at all.
Applicant
is relying to a large extent on the propriety of the administration
of the estate of Late Sushila Naik which he queries in HC137/16, by
refusing to vacate the premises, alleging that the 1st
respondent bought the property from a person not entitled to sell it
(See paragraph 6 of his founding affidavit) and that since he was in
actual occupation he ought to have been given right of first refusal.
Note
must be made that in terms of the Master's report, there was
nothing untoward in the administration of the estate. In any event,
only persons with an interest in the estate are entitled in terms of
the Administration of Estates Act, [Chapter
6:01]
to seek a review of such administration. Further, case law has laid
down the criteria for enabling a party to seek participation in on or
review of any matter.
Consequently,
the relief sought in HC137/16 is unlikely to have any reasonable
prospects of success as applicant prima
facie
does not appear to be an interested party in the due administration
of the estate of late Sushila Naik. Since there is no nexus between
Estate Late Sushila Naik and applicant, there can be no direct and
legal interest in the administration of her estate by applicant.
Following
on this, there cannot arise any right of first refusal in favour of
applicant, which right can only be created by agreement between the
two parties concerned.
In
the premises I dismissed the application with costs for lack of
urgency and locus
standi.
Gasa
Nyamadzawo & Associates,
1st
respondent's legal practitioners
1.
See
Bindura Nickel Corporation v Zimbabwe Revenue Authority HC03/08 where
it was held that for a party to sue, it must have a direct interest.
See also Zimbabwe Stock Exchange v Zimbabwe Revenue Authority SC
56/07 where the Supreme Court held that a party must justify
participation predicated on direct and legal interest.
2.
See Eastview Gardens v Zimbabwe Reinsurance Co SC 90/02.
