Civil
Appeal
MUZENDA
J:
This
is an appeal brought by the appellant against the whole of the
judgement issued by the Provincial Magistrate sitting at Mutare on
the 3rd
of January 2020.
Appellants
spelt out the grounds of appeal as follows:
“1.
The Honourable court below erred and grossly misdirected itself in
law in ordering appellants eviction from her home without considering
all the relevant circumstances as contemplated in section 74 of the
Constitution of Zimbabwe Amendment (No.20 Act, 2013).
2.
The court below erred and grossly misdirected itself in granting
summary judgement over an illiquid claim for holding over damages.
3.
The court a quo grossly erred and misdirected itself in law in
ordering appellant to pay holding over damage in a non landlord
tenant dispute.
4.
The Honourable inferior court grossly erred and misdirected itself in
fact and law in ordering appellants to pay holding over damages with
effect from 1 July 2019 in the sum of ZW$10,000.00 per month when
appellant had alleged facts which if pleaded and accepted at the
trial, were sufficient to establish a defence.”
The
appellant sought a relief to have the application for summary
judgement to be dismissed with costs. And that the appeal be upheld
with costs on attorney client scale.
The
two respondents who are husband and wife purchased certain piece of
land situated in the District of Umtali called Stand 86 Murambi
Gardens of Umtali Township lands measuring 3450 square metres for
RTGS$450,000.00 through a Deputy Sheriff's public auction.
The
property was previously owned by the now appellant.
The
two were confirmed purchasers of the property on 5 March 2019, they
are now title holders under Deed of Transfer No.3520/19.
The
respondents then issued summons against the appellant in the
magistrate court seeking her eviction from the property at the same
time claiming holding over damages in the sum of $10,000.00 per month
from 1 July 2019 until her vacation and costs of suit.
Appellant
entered appearance to defend. The respondents filed an application
for summary judgement and on 3 January 2020 the court a
quo
granted the application.
On
6 January 2020 the appellant filed the present.
The
respondents proceeded to file a further application before the trial
court a quo for leave to vacate pending appeal and they obtained that
order on 17 February 2020.
On
19 February 2020 appellant voluntarily vacated the property and the
respondents are now in possession of the property.
On
the date of hearing of this appeal the legal practitioners of the
parties indicated that there was need for oral arguments the matter
had to be decided on the basis of the papers filed of record.
However
what was not clear to this court was whether the appellant was still
pursuing the appeal given the fact that she had voluntarily moved out
of the property and outcome of the matter would become purely
academic.
This
is now our ruling on the appeal.
WHETHER
THE COURT A QUO ERRED AND GROSSLY MISDIRECTED ITSELF IN LAW IN
ORDERING APPELLANTS'S EVICTION
The
appellant submitted that the court
a
quo
misdirected itself in law when it ordered her eviction from the
property without considering all relevant circumstances as espoused
in section 74 of the Constitution of Zimbabwe which speaks against
the eviction of a person from her home, or have the home demolished
without an order of the court made.
Appellant
added that the duty of the court is to consider all relevant factors
and then arrive at a just and equitable conclusion as to whether a
person should be evicted, the terms of such ejectment and other
related factors.
According
to the appellant ownership and legal right should not be the
determining factors, the paramount factor for the judicial officer
would be to protect the right of the people to shelter.
Appellant
went on to compare legislation in South Africa.
And urged this court to rely on such legislation to protect the
appellant.
Appellant
went on to cite the cases of Michel
and Others v Malula and Others
and Port
Elizabeth Municipality v Various Occupiers
to advance her argument that courts should go beyond the aspects of
ownership and legal right and ensure that a person is granted a
constitutional guarantee of shelter and accommodation as a
fundamental right.
By
evicting appellant the court
a
quo
exposed appellant and her family to harsh weather, and her property
to destruction and theft.
On
the other hand the respondents contends that the appellant's
referral to section 74 of the Constitution is misplaced. In section
74 of the Constitution the lawmakers sought to prevent arbitrary
evictions.
As
a contrary to the appellant's argument, the eviction of the
appellant was sought through the courts hence in this case and
circumstance there is no basis to talk about arbitrary eviction.
The
respondents submitted that on all fairness the appellant has no
defence to the application for a rei
vindicatio.
Appellant
cannot try to hide behind the veil of mercy and try to use the court
for an extension of stay in someone's property.
Once
it is accepted that the respondents are owners then appellant cannot
remain in property without the blessing of the owners. The duty of
the court in this case is to protect the owner rather than the
occupier or possessor.
In
any case, respondents concluded this court has no basis to interfere
with the judgement of the court a
quo
based purely on finding of facts unless it is satisfied that having
regard to the evidence placed before the trial court, the findings
complained of are so outrageous in their defiance of logic or
accepted moral standards that no sensible person who had applied his
mind to the question to be decided would have arrived at such a
conclusion
I
am unable to agree with the appellant submissions relating to section
74 of the Zimbabwean Constitution.
Appellant
used to own the subject house, the court is not privy to the events
that led to the sale of the house through public auction. What is
however uncontroverted is that the respondents were the highest
bidder set an auction and acquired that property legally.
They
therefore did not arbitrary remove the appellant but opted to go
through a legal process by issuing summons putting appellant on
alert. They did not have touts to forcefully eject the appellant.
Appellant
by citing section 74 of the Constitution of Zimbabwe try to argue
that section 74 is applicable.
A
close legal analysis of the case law cited by appellant from South
African jurisprudence unmistakably shows that these matters involved
illegal settlements by the respondents on municipal land which is
patently distinct for the facts of this matter conclude therefore
that section 74 of the Constitution is totally inapplicable to the
facts of this matter.
What
is apparent on the facts before us here is that the respondents as
owners of the newly acquired immovable property can evict anyone who
occupies their property without their consent and they used the court
to exercise their rights legally.
The
application for ejectment is premised on the rei
vindication
doctrine and the court a
quo
property interpreted the legal principles settled by these courts to
order appellant's eviction. There is no legal basis for this court
to interfere with that decision reached by the court a
quo.
In any case the appellant of her own volition saw the light and
swallowed the pride and moved out of the property.
Accordingly
this ground of appeal has no merit and it ought to be dismissed.
WHETHER
OR NOT THE COURT A
QUO
ERRED AND MISDIRECTED ITSELF IN GRANTING SUMMARY JUDGMENT OVER AN
ILLIQUID CLAIM OF HOLD OVER DAMGES?
The
appellant contended that the amount of holding over damages
constitute an illiquid claim if it is an illiquid claim then an
application for summary judgment would not be applicable. Appellant
went on further to submit that the holding over damages were not
based on a liquid document as there was no acknowledgement of debt,
nor a lease agreement nor any document to show that the amounts were
liquidated.
According
to appellant holding damages could only have been determined after
leading of oral evidence in a trial.
Appellant
further added that the court a
quo
erroneously concluded that the appellant had not challenged the
holding over damages.
To
the contrary the respondents submitted that holding over damages
cannot be confined to a landlord–tenant relationship but to
situations where the occupier holds on to the owner's property.
The
respondents claim was based on the value of the rental the property
would earn had it been on lease and such a value is easily
ascertainable.
In
any case respondents explained how they had come up with the amount
of holding over damages.
Respondents
went on to cite Hever
v Van Greuning
which is of the authority that an owner of immovable property who has
never been in physical occupation or possession of his property is
entitled to claim damages from a person who wrongfully and unlawfully
occupied that property.
Respondents
further cited the matter of Dube
v Sengwayo
which held that a claim for holding over damages in respect of
ejectment proceedings was a claim for a liquidated demand because the
damages were easily ascertainable.
The
argument by the respondents finds favour with this court.
The
analysis of the facts by the court
a
quo
is sound in as far as whether holding over damages were a liquid
claim. There is no legal basis to critique it nor to impugn it.
The
decision in Dube
v Sengwayo (supra)
has not been set aside and given the reasoning I that judgment I
agree too that a rental per month put up by an owner of property can
easily be determined or ascertained without difficulties and in this
case the respondents explicitly explained in their affidavits how the
damages were computed.
I
conclude that the holding over damages constitute a liquid claim and
dismiss that ground of appeal by the appellant.
Having
reached that decision relating to the second ground of appeal, the
same conclusion is applicable to the third ground of appeal which
pertains to the court ordering appellant to pay holding over damages
in a non-landlord/tenant dispute.
As
already concluded herein, a property owner who had not taken
occupation of the property can legally claim holding over damages as
long as the respondents had done in this case. Appellant's ground 3
of her appeal has no merit.
WHETHER
THE COURT A
QUO
GROSSLY ERRED AND MISDIRECTED ITSELF IN FACT AND LAW IN ORDERING
APPELLANT TO PAY HOLDING OVER DAMAGES WITH EFFECT FROM 1 JULY 2019?
The
appellant submitted that the court a
quo
erred and misdirected itself in ordering appellant to pay holding
over damages with effect from 1 July 2019 in the sum of $10,000-00
per month when the appellant had presented facts in her opposing
affidavit sufficient to establish a possible defence to the
respondents claim.
It
was argued further on behalf of the appellant that appellant had
pleaded facts to defeat respondents claim.
It
was not clear to the appellant whether she was properly served with a
notice to vacate the premise by 1 July 2019 and hence respondent's
claim for holding over damages could not have been unassailable,
appellant argued.
Appellant
added that the trial court ignored such a triable issue and ordered
payment without any justification to that effect.
Appellant
concluded that damages cannot be sustained by a summary judgment, the
court a
quo
had a duty to afford the appellant to prove that she cannot be
ordered to pay holding over damages of $10,000-00 per month from 1
July 2019.
In
response the respondents argued that the respondents established on a
balance of probabilities why appellant was obliged to pay $10,000-00
per month from 1 July 2019. Respondents admitted that in an
application for summary judgment appellant was required to raise a
plausible and bona
fide
defence to the respondent's claim. However, the appellant raised a
bare denial to the effect that the appellant did not have tenants to
the property.
She
did not raise the issue of notice in her papers.
She
did not challenge the amount of $10,000-00.
The
fundamental point was that appellant was enjoying the property of the
respondents without paying rentals.
The
court has already concluded and determined that the court a
quo
did not err in granting the application for summary judgment
pertaining to holding over damages. That aspect is now water under
the bridge.
Having
granted the judgment on holding over damages and the quantum of
$10,000-00 per month, the next issue for determination was the
commencement date for payment.
The
court a
quo
settled on 1 July 2019 as pleaded by the respondents in their papers.
The
respondents contended that from 1 July 2019 she had to pay rentals.
The
trial court accepted the respondents evidence on that aspect of
dates, we saw no misdirection on the part of the court a
quo.
The
court analysed all facts placed before it relating to the aspect of
dates and concluded that 1 July 2019 was the appropriate date.
We
have no legal basis whatsoever to interfere with that finding.
Once
a summary judgment was granted in respect of holding over damages,
the quantum and date of payment ought to be determined and the court
a
quo
did decide.
We
conclude that the judgment of the court a
quo
in its entirety should not be interfered with and the whole set of
grounds of appeal has no merit and ought to be dismissed.
Accordingly,
it is ordered as follows:
The
appeal is dismissed with costs.
MWAYERA
J agrees ___________
Tanaya
Law Firm,
appellant's legal practitioners
Henning
Lock,
respondents legal practitioners
1.
Prevention of illegal eviction and unlawful occupation of land Act 19
of 1998
2.
2010 (2) SA 257 (CC)
3.
2005 (1) SA 217 (CC)
4.
Shorai Mavis Nzara and 3 Othes v Cecilia Kashumba and 3 Others
SC18/18: Alspite Investments (Pvt) Limited v Westerhoff 2009 (2) ZLR
236: Vigilter Moyo v Edwin Sibanda and 2 Others HB81/17
5.
Nyahondo v Hokonya and Others 1997 (2) ZLR 457 (SC) at p460
6.
1979 (4) SA 952 at pages 954 E-F and cases cited therein
7.
HC 110/91
