MATHONSI
JA: On
6 April 2022, after hearing a contested urgent application for an
interdict made by the first respondent, the High Court (“the court
a
quo”)
granted a final order in the following terms:
“Accordingly,
it is ordered as follows:
(a)
Pending the finalisation of the applicant's claim under case number
HC5227/21 the first respondent is hereby interdicted from dealing in
any manner with the immovable property known as number 2 Glynde
Avenue, Mabelreign, Harare, held under Deed of Transfer number
2120/2017 registered in the name of the first respondent that may
cause encumbrances or dispose by selling it to any third party.
(b)
The first respondent be and is hereby ordered and directed not to
alienate or remove any such improvement made on the property
specified in para (a) until the matter under case number HC5227/21 is
finalised.
(c)
The second respondent, pending the finalisation of the applicant's
claim under case number HC5227/21, be and is hereby ordered and
directed to place a caveat on the property specified in para (a).
(c)
There shall be no order as to costs.”
This
appeal is against the whole judgment of the court a
quo.
THE
FACTS
The
appellant, a female adult, and the first respondent, a male adult,
entered into an unregistered customary union in August 2015 and were
delighted to commence living together as husband and wife about
October 2015.
During
the subsistence of their customary union, they acquired both movable
and immovable property including house number 2 Glynde Avenue,
Mabelreign Harare which is solely registered in the name of the
appellant.
The
mortgage finance sourced to acquire the house was secured in the
appellant's name and in her account.
The
first respondent however alleges, with significant assertiveness,
that he also directly contributed to the acquisition of the property
and the repayment of the loan. He further asserts that he added
improvements to the house which enhanced its value.
The
customary union broke down in February 2021.
As
a result, the first respondent sued a summons against the appellant
in the court a
quo
under case number HC5227/21 seeking an order for the division of the
parties property acquired during the subsistence of the customary
union.
In
his declaration, the first respondent pleaded in part thus:
“3.
The plaintiff and the defendant entered into an unregistered
customary union on or around the first of August 2015, with the
traditional rites having been done they began to reside together as
husband and wife from November 2015. In
terms of the tacit universal
partnership;
(a)
Each party worked independently and contributed individually to the
acquisition of the property, both movable and immovable for the joint
ownership of the union.
(b)------------
(c)------------
4.
Pursuant
to the establishment of a tacit universal
partnership
by the parties, the parties acquired both
movable
and immovable property
as shall appear in Annexure A attached.
5------------------
6------------------
7------------------
8.
Pursuant to the universal tacit partnership the plaintiff went on to
further contribute by way of making improvements to the property
being complete renovation of the kitchen, painting the interior and
exterior of the main house, gate, garage and external rooms,
re-wiring of the whole house electrical system, plumbing of the
kitchen, bathroom, servant's quarters, storage/laundry room,
installation of solar geyser, water tank and pump, installation of
the security system and planting of lawn around the yard,
installation of a back-up power solution on the main gate, which
renovations cost a total of USD16,000.00… thereby increasing the
market value of the said property as well as making it habitable for
the parties.” (The underlining is for my emphasis)
The
appellant entered appearance to defend the claim and filed a plea.
As
the matter was pending before the court a
quo
the parties engaged each other through correspondence as they
bickered over the distribution of the immovable property, among other
issues.
It
was during the course of their engagement that the appellant admitted
part of the averments made by the first respondent.
By
letter dated 10 December 2021 to the first respondent's legal
practitioners, the appellant's legal practitioner stated:
“RE:
ANDREW ZIGORA v SAMANTHA NHENDE CASE NO. HC5227/21
Reference
is made to the above and to your letter dated 26th
November 2021, which we received on 30th
of November 2021, the contents of which have been noted-----.
Further,
our client disputes yours claim for improvements amounting to
US$16,000.00.
We
are advised that your client only contributed to the painting of the
house and some kitchen renovations of which our client is prepared to
offer US$2,500. Our client further advises that she believes that the
other improvements including solar system, alarm system, electric
gate motor, and water tank are fixtures and fittings which can be
removed and the plaintiff can collect same----“ (The
underlining is for emphasis).
According
to the first respondent, in February 2022, he got to know that the
appellant intended to sell the immovable property forming the subject
of the pending summons action.
His
concerns were registered in a letter addressed to the appellant's
legal practitioners which drew the attention of the appellant and her
legal practitioner to the fact that he had become aware that she was
sourcing agents and prospective buyers.
The
letter entreated the appellant to assure the first respondent that
the property was safe.
In
response, the appellant did not give any such assurances. In fact the
letter written in response thereto was vague and unhelpful.
PROCEEDINGS
BEFORE THE COURT A
QUO
In
the wake of those developments, the first respondent moved swiftly,
filing an urgent chamber application on 24 February 2022.
In
his founding affidavit, the first respondent attested to a reasonable
apprehension that the appellant would dispose of the house, given
that it is registered in her name only, in order to defeat his claim
for division of the universal partnership property. He implored the
court a
quo
to grant him protection from “the whims and decisions” of the
appellant.
To
the application, the first respondent attached a draft provisional
order the grant of which was motivated. It reads in relevant part:
“TERMS
OF FINAL ORDER SOUGHT
1.
Pending the finalisation of the applicant's claim under case number
HC5227/21 the first respondent is hereby interdicted from dealing in
any manner with the immovable property that may cause encumbrances
and/or dispose by selling it to any third party.
2.
The first respondent be and is hereby ordered and directed not to
alienate or remove any such improvements made on the immovable
property until the matter under case number HC5227/21 is finalised.
3.
First respondent shall pay costs of suit on an attorney-client scale
only if it (sic)
opposes this application.
INTERIM
RELIEF GRANTED
The
second respondent pending the finalisation of the applicant's claim
under case number HC5227/21 be and is hereby ordered and directed to
place a caveat on the immovable property, mainly stand number 2
Glynde Avenue Mabelreign, Harare held under deed of transfer number
2120/2017 registered in the name of Samantha Nhende the first
respondent herein.”
The
application was strenuously opposed by the appellant who raised quite
a substantial number of points in limine.
The
appellant protested that the matter was not urgent, that the first
respondent had not established a causa
having failed to plead the choice of law and finally that the relief
sought was incompetent.
On
the merits, the appellant argued that the first respondent had not
presented any evidence to show that she intended to dispose of the
house.
She
rounded off by submitting that she, as the registered owner of the
house, had exclusive rights over it unlike the first respondent who
could not possibly claim any share to it.
The
court a
quo
found that the application passed the test of urgency.
Regarding
the objection that the application did not disclose a cause of action
as it sought to import general law into a dispute governed by
customary law, the court a
quo
found that the issue was not before it. In the court a
quo's
view that was an issue to be resolved when determining the claim for
division of property in HC5227/21. The court a
quo
refused to be drawn to “pre-empt the dispute” in the main action.
The
objection relating to the competency of the relief sought was also
dismissed on the basis that the court had the discretion to grant an
order that was competent and established by the case before it.
On
the merits of the application, the court a
quo
found that indeed the first respondent was labouring under a
reasonable apprehension that the appellant may dispose of the house
before the finalisation of the main claim. It took the view that
those fears were bolstered by the unsatisfactory response to his
enquiries given by the appellant.
As
already stated, the court a
quo
granted final relief in favour of the first respondent. In doing so,
it reasoned:
“With
respect to the nature of the relief, there is no need of having terms
of final order since there is no need for the return day. The
provisional order has its final sunset clause being the finalisation
of the matter under case number HC5227/21. Once the dispute for the
division of the property has been finalised, the caveat will be no
longer necessary.”
It
is significant to note that the relief that the court a
quo
granted is what was set out both in the terms of the final order
sought and the interim relief of the draft provisional order.
PROCEEDINGS
BEFORE THIS COURT
The
appellant was discontented by the judgment of the court a
quo.
She noted an appeal to this Court on the following grounds:
“1.
The court a
quo
grossly erred at law in and misdirected itself in fact in granting an
interdict (sic)
as regards appellant's immovable property in circumstances where
there was no evidence or at all that the appellant intended to
alienate the property.
2.
The court a
quo
erred at law in granting an interdict where the requirements of such
relief had not been met, particularly where a clear right had not
been established.
3.
The court a
quo
grossly misdirected itself and erred in failing to consider that the
issue of the choice of law was crucial in the determination of
whether or not there was a cause of action against the appellant.
4.
The court a
quo
grossly misdirected itself in fact in ordering appellant not to
remove improvements on the property where no evidence or indications
of the said improvements were made or proved by the respondent.
5.
The court a
quo
misdirected itself in fact and subsequently erred at law in granting
a final order in an urgent chamber application where an interim
relief had been sought thereby denying the appellant the opportunity
to make representations on the return date.”
At
the hearing of the appeal both counsel were in agreement that the
grounds of appeal raise only three issues for determination in this
appeal. These are:
1.
Whether the requirements of an interim interdict were satisfied.
2.
Whether the court a
quo
erred in refusing to determine the choice of law question; and
3.
Whether the court a
quo
was correct in granting a final order.
SUBMISSIONS
ON APPEAL
Mr.
Phiri,
who appeared for the appellant, adopted a three-pronged approach in
motivating the appeal:
(i)
Firstly, on the choice of law, he submitted that the first respondent
ought to have pleaded the application of general law for him to
sustain a valid cause of action. For that reason, so it was argued,
the court a
quo
fell into error by proceeding to determine the application despite
the first respondent's failure to plead a choice of law.
(ii)
On the evidence placed before the court a
quo,
Mr. Phiri
submitted
that it did not sustain the relief that was sought. In counsel's
view, the first respondent did not substantiate his suspicion that
the appellant intended to dispose of the house. In that regard, the
requirements for the grant of a final interdict were not satisfied
and as such the application should have been dismissed.
(iii)
Finally, Mr. Phiri
strongly
submitted that the court a
quo
misdirected itself in mero
motu
granting a final relief where the application had been one for
interim relief and a case was not made for the grant of a final one.
Mr. Phiri
insisted
that, by so doing, the court a
quo
also deprived the appellant the opportunity to contest the terms of
the final order sought on the return date.
Counsel
urged the court to intervene bearing in mind the irrational manner in
which the court a
quo
exercised its discretion to grant final relief.
Mr
Homera
for the first respondent defended the judgment of the court a
quo.
In
his view, the fact that there was a pending matter between the
parties, in which the first respondent lay a claim to the house,
which claim would be prejudiced if the status quo
ante
was not preserved, meant that a good case was made for the grant of
an interdict. The choice of law argument was not before the court a
quo
and could not detract from the need to grant an interdict.
Mr
Homera
took the view that the moment the appellant failed to give the first
respondent assurance that the house would not be disposed of, a basis
for the issuance of an interdict arose because there was a reasonable
apprehension of irreparable harm or prejudice.
Regarding
the appellant's complaint against the grant of a final order, Mr
Homera
submitted that there is room for the court a
quo
to grant it in the exercise of its discretion. This is so because
such final relief is granted in spoliation proceedings. As such
nothing could stop the court a
quo
from granting it in the present case.
Whether
the requirements of an interdict were satisfied
The
starting point is to make the observation that all that the first
respondent sought in his application was the interim relief of the
placement of a caveat on the title deed to the house in dispute.
I
am aware that in paras 19 and 20 of his founding affidavit the first
respondent made remarks in support of a final order for an interdict
to be granted against the appellant.
However
a close reading of those remarks clearly shows that he was motivating
what was sought as the terms of the final order which the court would
have only related to on the return date of the provisional order had
it been granted.
This
is in line with the civil practice and procedure for urgent
applications.
Earlier
in this judgment I reproduced the draft provisional order which the
first respondent sought. It bears testimony that the court a
quo
was requested to grant the interim relief of the placement of a
caveat, nothing more. It is a relief which may be termed an interim
interdict pendente
lite.
Briefly its requirements are that:
(i)
The right which is the subject matter of the main action is clear or
prima facie established though open to some doubt;
(ii)
If the right is only prima
facie
established,
there is a well-grounded apprehension of irreparable harm to the
applicant if the interim relief is not granted and he or she
ultimately succeeds in establishing the right;
(iii)
The balance of convenience favours the granting of interim relief;
and
(iv)
The applicant has no other satisfactory remedy.
See
Airfield
Investments (Private) Limited v Minister of Lands & Ors 2004
(1) ZLR 511 (S) at 517 B-E.
From
the above requirements, there must be evidence establishing a prima
facie
right even though it may be open to some doubt.
The
evidence before the court a
quo
showed that the first respondent had made a claim for the sharing of
property including the house in dispute. I have cited verbatim the
pleadings he placed before the court. It shows that he specifically
pleaded the existence of a tacit universal partnership and his
contribution to it.
Prima
facie
therefore, the first respondent established a right, which may be
subject to some doubt. Should that right be proved in the main case,
there is a well-grounded apprehension of irreparable harm to him if
it is not protected. For that reason, the balance of convenience
favoured the grant of interim relief.
It
was not suggested that there was any other remedy available to the
first respondent other than that which was sought.
From
the foregoing, I conclude that the requirements for the grant of the
relief that was sought, with minor amendments, were satisfied.
It
is however not the relief that the court a
quo
granted. I shall return to that issue shortly.
Whether
the court a quo should have resolved the choice of law issue
Counsel
for the appellant dedicated a lot of time and energy arguing on
choice of law. In the process, he clouded his view of that which the
court a
quo
was required to determine.
The
application of Customary Law is regulated by section 3(1) of the
Customary Law and Local Courts Act [Chapter
7:05].
It provides:
“3.
Application of Customary Law
(1)
Subject to this Act and any other enactment, unless the justice of
the case otherwise requires -(a) customary law shall apply in any
civil case where -
(i)
the parties have expressly agreed that it should apply; or
(ii)
regard being had to the nature of the case and the surrounding
circumstances it appears that the parties have agreed it should
apply; or
(iii)
regard being had to the nature of the case and the surrounding
circumstances, it appears just and proper that it should apply;
(b)
the general law of Zimbabwe shall apply in all other cases.”
Where
any one of the factors set out in subsection (1)(a) of section 3 is
present, customary law applies.
It
is however settled that where customary law is incapable of providing
an avenue for the resolution of a dispute, rights or obligations,
general law will apply. See Chiwenga
v Mubaiwa
SC86/20 at p2.
I
discuss this aspect for purposes of completeness only because the
court a
quo
declined to be drawn to determine it.
The
question whether the court a
quo
failed
to relate to that issue or that the first respondent did not
establish a cause of action by not pleading it was of no moment at
all for two reasons:
(i)
Firstly, the first respondent pleaded a general law concept of a
tacit universal partnership which I have said was enough to establish
a prima
facie
right deserving protection by the court. (ii) Secondly, what was
before the court a
quo
was an application for an interdict pendente
lite,
that was the causa.
The
court a
quo
cannot be faulted for refusing to be drawn to the aspect of choice of
law because an interdict pendente
lite
is
incapable of resolution through customary law. The appellant is at
liberty to pursue that argument in the main action, if he is so
inclined.
There
is therefore no merit in the third ground of appeal.
Whether
the court a quo erred by granting a final order
The
High Court Rules, 2021 set out a procedure for the filing and
determination of urgent applications.
They
also provide a form for a provisional order which litigants
approaching the court under that procedure are required to adhere to
as well as to attach to the urgent chamber application.
In
terms of Rule 69(9):
“(9)
Where
in an application for a provision order
the Judge is satisfied that the papers establish a prima
facie
case he or she shall
grant a provisional order
either
in terms of the draft filed or as varied.”
(The underlining is for my emphasis)
There
is a reason why the Rule is couched that way.
Firstly,
in an urgent application, the applicant is usually granted interim
relief on the basis of a prima
facie
case as the applicant would not have proved his or her case. The
procedure allows a litigant which can show a prima
facie
right
to be accorded interim relief that usually protects the status quo
ante
until the return date of the provisional order. See Kuvarega
v Registrar General & Anor
1998 (1) ZLR 188.
After
the grant of interim relief in the form of a provisional order, the
matter does not end there. The procedure is that the respondent is
allowed to file a full dossier of opposition to the confirmation of
the provisional order, which confirmation takes the form of granting
the terms of the final order sought in the prescribed form of the
provisional order.
After
the provisional order is granted, the full procedure of a court
application, including the filing of a notice of opposition,
answering affidavit and heads of argument, kicks in.
It
is a procedure which allows the applicant to fully prove his or her
case and the respondent to disprove it without the pressure of
urgency.
On
the return date of the provisional order, a fully-fledged opposed
application is set down and heard on the opposed roll.
Following
that hearing the court may either confirm or discharge the
provisional order. It confirms it by granting the terms of the final
order sought.
Having
said that, I must reiterate what this Court stated in Nzara
& Ors v Kashumba N.O. & Ors
2018
(1) ZLR 194 (S) at 200G of the cyclostyled judgement, that the court
cannot grant an order that has not been sought by a party.
The
point is also made in Chiwenga,
supra,
that the purpose of provisional relief is to preserve the status quo
pending
the return day. At p13 of the cyclostyled judgment the court stated:
“The
purpose of a final order is different from that of a provisional
order in that a final order is conclusive and definitive of the
dispute. It finally settles the issues and has no return date. Once a
final order is given the court issuing the order becomes functus
officio
and
it cannot revisit the same issues at a later date.”
I
have had to give a detailed account of the procedure for provisional
relief because there appears to be a signal failure or lack of
appreciation at the moment at the High Court that when approached on
an urgent basis, except where spoliatory relief is sought in which
case the court grants final relief, the court is required to issue
interim or provisional relief in the form of a provisional order.
Given
that, by its very nature, an urgent application requires the
applicant to establish a prima
facie
case for the grant of interim relief, the jurisdiction of the court
to grant final relief is not triggered.
In
this case the court a
quo
completely ignored the draft provisional order that was presented to
it by the applicant and related to the matter as if it was an
ordinary application, where its jurisdiction to grant final relief
would have been triggered.
It
had not.
Doing
so was a misdirection which resulted in a gross irregularity.
What
is even more unfortunate is that the first respondent had made a case
for the interim relief that he sought.
The
fifth ground of appeal ought to succeed.
DISPOSITION
The
first respondent made a case for the placement of a caveat on the
title deed to the property in dispute as interim relief. The court a
quo
elected to grant the relief which it ought to have related to on the
return date and not on an urgent basis. As a result the court granted
relief which was not sought by the parties.
This
was a misdirection and ought to be interfered with.
Regarding
the question of costs, although the costs usually follow the result I
am of the firm view that there is no basis for the first respondent
to be mulcted with an award of costs for the sins of the court a
quo
where he had not invited the error the court committed.
In
the result, it be and is hereby ordered as follows:
1.
The appeal succeeds in part with each party to bear its own costs.
2.
The judgment of the court a
quo
is set aside and substituted with the following:
“1.
The application is granted in terms of the draft provisional order as
amended.
2.
The interim relief granted is amended to read:
'INTERIM
RELIEF GRANTED
Pending
the return date of this provisional order, the second respondent is
directed to place a caveat on the immovable property known as stand
number 2 Glynde Avenue, Mabelreign, Harare held under deed of
transfer number 2120/2017 registered in favour of the 1st
respondent.'”
BHUNU
JA: I
agree
CHATUKUTA
JA: I
agree
Muvingi
and Mugadza,
appellant's legal practitioners
Dube-Tachiona
and Tsvangirai,
1st
respondent's legal practitioners
