MUSAKWA
JA: This
is an appeal against the whole judgment of the High Court wherein the
court a
quo
dismissed the appellant's appeal with costs.
BACKGROUND
FACTS
The
background to this matter is that sometime in 2006, the first
respondent purchased five commercial stands in Nyazura from the
second respondent and paid for them in full.
Upon
commencement of development on the allocated stands, one Mr Mukada
indicated
to the first respondent that he had been allocated a portion of the
same stands, thereby essentially constituting a double sale.
Upon
enquiry, the second respondent admitted that it had erroneously made
a double sale.
In
a bid to cure the error, the second respondent allocated new stands
to the first respondent in 2014.
Just
as the first respondent was about to commence development, the second
respondent persuaded him to allow Total Zimbabwe to take over the
stands with the promise that he would be allocated replacement stands
next to Total Zimbabwe.
As
a result, the first respondent averred that he was allocated five
commercial stands (numbers 1497, 1498, 1499, 1500 and 1501 of Nyazura
Township, hereinafter called the stands) by the second respondent
sometime in 2014 which are the subject matter of this appeal.
The
allocation was done through a letter written to him by the second
respondent advising him that he had been allocated the five stands as
replacement for the 2006 allocation.
Once
the first respondent made plans to develop the stands, he contacted
the employees of the second respondent who assured him that he was
the sole owner of the stands.
However
on 9 January 2020, the second respondent's legal practitioners
wrote to the first respondent demanding proof of confirmation of
ownership.
Having
been instructed about the letter, the first respondent's legal
practitioners contacted the second respondent's legal practitioners
for a round table conference. At the round table conference, it was
highlighted to the first respondent that the second respondent had
done a double allocation of the stands.
On
21 January 2020, the first respondent became aware of a third party
(the appellant) who had already initiated developments on the stands.
Upon
enquiry at the second respondent's offices, it was indicated that
the second respondent had leased the stands to the appellant for a
truck hire business until 2024.
PROCEEDINGS
BEFORE THE MAGISTRATES COURT
It
is against this background that the first respondent filed an
application for an interdict in the Magistrates Court.
The
first respondent first filed an ex
parte
application in which the appellant was interdicted from occupying or
effecting any development or construction on the stands. The
application was made on the grounds that the appellant was infringing
on the first respondent's right to occupation of the stands. He
also sought that the appellant and all those claiming occupation
through it be ordered to vacate the aforementioned stands.
In
seeking confirmation of the provisional order the first respondent
contended that there were no material disputes. He submitted that the
real dispute of fact was whether a holder of rights to unsurveyed
land cannot protect such rights through an interdict. He also
contended that since he was allocated the stands ahead of the
appellant, he was entitled to an interdict.
In
opposing the confirmation of the provisional order, the appellant
averred that it had a valid lease agreement with the second
respondent. The appellant further contended that it had already
commenced developing the stands and that the developments could not
be interfered with since they were bona
fide
in terms of the lease. The appellant also argued that the first
respondent was not entitled to an interdict since he had not tendered
adequate proof of ownership. It further stated that the first
respondent, by not approaching the second respondent for redress, had
not exhausted all domestic remedies available to him.
The
Magistrates Court held that the second respondent received the
purchase price from the first respondent. It further held that after
receiving the purchase price, the second respondent proceeded to
allocate the stands in question to the appellant on a lease basis. It
found that notwithstanding the absence of title deeds there was proof
that the first respondent paid the purchase price thus establishing a
clear right over the land. It further found that the first respondent
could not have sought redress from the second respondent as the
second respondent had interfered with the first respondent's right
over the land in favour of the appellant.
In
the result, the Magistrates Court was of the view that the
requirements for an interdict had been satisfied and thus the
application was granted.
The
effect of the order was to prohibit the appellant, its agents,
employees, contractors and all those claiming through it from
occupying or making any developments on the stands. It also ordered
the appellant to remove its equipment and materials and to restore
vacant possession to the first respondent.
PROCEEDINGS
BEFORE THE HIGH COURT
Dissatisfied
by the decision of the Magistrates Court, the appellant noted an
appeal with the court a
quo.
The grounds of appeal were as follows:
1.
The Magistrates Court erred in holding that there were no material
disputes of fact.
2.
The Magistrates Court erred in holding that the requirements for an
interdict had been met despite the evidence.
3.
The Magistrates Court erred in holding that the first respondent had
proved his rights to the property despite evidence to the contrary.
4.
The Magistrates Court erred in holding that there was a double sale
despite the fact that the stands constituted state land.
Before
the court a
quo,
the appellant contended that there was a material dispute of fact
regarding which stands were in contention. Hence there was need to
lead viva
voce
evidence. Thus the first respondent could not claim to have a clear
right in respect of land he did not own.
The
first respondent contended that there were no material disputes of
fact warranting the leading of viva
voce
evidence. Thus the first respondent argued that he had produced
evidence proving that he had been allocated the stands. He further
argued that the second respondent had not produced any evidence
pointing to the existence of different stands from those it had
allocated to the first respondent. Thus he argued that the
requirements for the granting of an interdict had been met.
The
court a
quo
found no basis for interfering with the findings of the Magistrates
Court.
It
noted that what is required when a final interdict is sought is that
the right must be established clearly on a balance of probabilities.
The court a
quo
held that the first respondent had established the requirements for
an interdict as he had a clear right. In the result, the appeal was
dismissed with costs.
PROCEEDINGS
BEFORE THIS COURT
Aggrieved
by the decision of the court a
quo,
the appellant noted the present appeal on the following grounds:
1.
The court a
quo
erred in law and misdirected itself in finding that the appellant's
first ground of appeal on material disputes of fact was meaningless
and invalid.
2.
The court a
quo
erred in law and misdirected itself in finding that there was no
misdirection in the magistrates court's ruling that the first
respondent was the owner of the land in question and had thus
established a clear right entitling him to the final interdict
granted in his favour.
3.
The court a
quo
erred in law and misdirected itself in finding that there was no
misdirection in the magistrates court's ruling that the first
respondent had established the second requirement for a final
interdict, namely 'the absence of an alternative remedy'.
4.
The court a
quo
erred in law and misdirected itself in not finding that the
magistrates court had wrongly granted a final interdict in favour of
the 1st respondent without an analysis of, an application of its mind
to, the third requirement for a final interdict, namely 'irreparable
harm actually committed or reasonably apprehended'.
5.
The court a
quo
erred in law and misdirected itself in not finding that the final
interdict granted by the magistrates court in favour of the first
respondent was an eviction order against the appellant in
circumstances where no eviction proceedings had been properly
instituted in that court.
SUBMISSIONS
BY COUNSEL
In
oral submissions,
counsel for the appellant focused on the second ground of appeal. In
urging the Court to find for the appellant,
Mr Madhuku
argued that the court a
quo
erred in upholding the Magistrates Court's ruling when the first
respondent had not established a clear right to the land.
He
submitted that with regards to land rights only a party with a real
right is entitled to an interdict against a third party.
Counsel
further argued that the court a
quo
had
misdirected itself in holding that the respondent had established the
requirements for an interdict, particularly a clear right and that
being the case such a finding could not stand.
Per
contra,
counsel for the first respondent argued that the first respondent had
established a clear right on a balance of probabilities which
entitled him to an interdict. The fact that the appellant had paid
the purchase price and was allocated the stands was not disputed
before the court a
quo.
In addition to that, the second respondent did not deny that the
stands had been sold to the first respondent. The acceptance of the
purchase price by the second respondent meant that its rights to the
land were now limited. Thus the second respondent could not lease the
stands to the appellant.
The
issue arising for determination in this appeal, in the Court's
view, is the following:
Whether
or not the court a quo erred in finding that the first respondent had
a clear right entitling him to a final interdict
THE
LAW
The
purpose of an interdict is to prohibit unlawful conduct, to compel
the doing of a particular act or to remedy the effects of unlawful
conduct. In this respect see Herbstein
and Van Winsen
in
The Civil Practice of the High Courts and the Supreme Court of Appeal
of South Africa 5th
Ed p1454.
The
requirements for a final interdict are settled in this jurisdiction.
These are:
(a)
A clear right;
(b)
Irreparable harm actually committed or reasonably apprehended; and
(c)
The absence of an alternative remedy.
See
Econet
Wireless Holdings and Others v Minister of Finance and Others 2001
(1) ZLR 373 (S);
Setlogelo
v Setlogelo
1914
AD 221 at 227.
As
regards a clear right, again the authors Herbstein
and Van Winsen at
page 1459-60 define the meaning of clear right as it relates to
interdicts as:
“...the
word 'clear” relates to the degree of proof required to establish
the right and should strictly not be used to qualify 'right' at
all. ...a clear right must be established on a balance of
probabilities.”
From
the authorities, it is clear that where a final interdict is sought,
a clear right as opposed to a prima
facie
right must be established. Thus the word “clear” in the context
of right in an interdict does not qualify such right but rather
expresses the extent to which the right must be established by
evidence on a balance of probabilities.
Herbstein
and Van Winsen
also state that a right that is sought to be protected by an
interdict arises from substantive law. The right can derive from any
branch of substantive law to which one must have recourse in order to
resolve the dispute involved.
ANALYSIS
It
was the appellant's case that for the first respondent to be
entitled to a final interdict, he ought to have proved ownership of
the stands in question, failure of which the application for the
interdict ought to have been dismissed.
I
was not persuaded by Mr
Madhuku's
argument that the first respondent was required in terms of the law
to have real rights to the stands in order to establish a clear right
for purposes of an interdict.
This
is because the real dispute between the parties is not related to
ownership rights.
In
this respect account must be taken of the purpose of an interdict;
which among other things is to prohibit unlawful conduct.
It
is noted that the first respondent sought to prohibit the appellant
from occupying and developing the stands because he had purchased
them. The first respondent produced proof of the purchase and
allocation of the stands to him and neither the appellant nor the
second respondent were able to rebut that assertion. For purposes of
protecting his interest in the stands, the first respondent did not
need to prove ownership of real rights as argued by Mr Madhuku.
I
am inclined to agree with the first respondent's counsel.
From
the evidence placed before the Magistrates Court and the court a
quo
it is evident that the right of the first respondent is clear.
The
second respondent issued a letter to the first respondent allocating
to him the stands in question. In addition, the first respondent
offered the second respondent a purchase price which it accepted as
was proven by the receipt produced before the Magistrates Court.
Therefore,
on these facts the first respondent managed to establish the
existence of a clear right in respect of the stands.
On
this basis, I find no reason to attack the findings of the court a
quo.
The
second hurdle a party has to overcome in order to prove that their
particular case favours the granting of an interdict is that they
stand to suffer irreparable harm actually committed or reasonably
apprehended.
In
this case the appellant had occupied the stands and had commenced to
develop them. This means that the displacement of the first
respondent was complete. The harm complained of was to endure until
2024, which was the duration of the lease agreement between the
appellant and the second respondent.
Finally,
the party seeking an interdict has to prove the absence of an
alternative remedy.
The
assertion that the first respondent stood to suffer irreparable harm
and that there was no other remedy available to him was not
challenged before this Court, the court a
quo
and the Magistrates Court.
Thus
an inference is drawn to the effect that the first respondent managed
to prove that he stood to suffer irreparable harm had the interdict
not been granted and that he had no other remedy available to pursue.
DISPOSITION
In
the circumstances the court a
quo cannot be
faulted for finding against the appellant as it did. The appeal has
no merit. There is no reason to depart from the general principle
that costs follow the cause.
It
is accordingly ordered as follows:
The
appeal is dismissed with costs.
GUVAVA
JA: I agree
BHUNU
JA: I agree
Rubaya
and Chatambudza,
appellant's legal practitioners
Bere
Brothers,
1st
respondent's legal practitioners
