Urgent Chamber Application
CHEDA
J: This is an urgent application
barring first and second respondents from selling or transferring
property. The relief sought is couched
as follows:-
“TERMS OF FINAL ORDER SOUGHT
That
First, Second, Third and Fourth Respondents show cause to this Honourable Court
why a final order should not be made in the following terms:-
(1) That the First
Respondent should honour her obligations under the swapping agreement and
transfer her right, title and interest to Stand Number 35 Plumer Road, North
End, Bulawayo to the Applicant within 10 days of service of the Final Order on
her failing which the Deputy Sheriff, Bulawayo be authorized to act in her
stead.
(2) That First, Second and
Third Respondents be and are hereby barred from selling and/or transferring in
any way the First Respondent's right, title and interest to Stand Number 35
Plumer Road, North End, Bulawayo to any third party other than the Applicant.
(3) That the First, Second
and Third Respondents pay the costs of this application on an Attorney-client
scale.
INTERIM RELIEF SOUGHT
That pending the determination of this Application by the Court:-
(a) The First, Second and
Third Respondents be and are hereby barred from selling and/or transferring in
any way the First Respondent's right, title and interest to Stand Number 35
Plumer Road, North End, Bulawayo to any party pending the determination of this
matter.
This application was filed on the 11
November 2002 and I granted the Provisional Order on the 12th
November 2002. Third Respondent filed a
notice of opposition on the 20th January 2003 according to applicant
on agreement to swap houses was entered into between himself and First
respondent sometime in 1994. The
original agreement was lost but, however, the parties entered into a second agreement
in 2001. First respondent in accordance
with the swapping arrangement took occupation of applicant's house in
Chitungwiza while he took occupation of her house in North End, Bulawayo.
What has prompted this application
is that first respondent threatened to dispose of the same house which is the
subject of the swap. It was applicant's
evidence that between the 5th and 6th November 2002 two
Estate Agents visited the North End house with a view of selling it for and on
behalf of first respondent.
Respondents
on the other hand argued that there was no such agreement and if there was the
parties were not in ad litem.
It is also their argument that there is a dispute of facts and accordingly
applicant should not have proceeded by way of application.
The
legal position is that in motion proceedings the court can only decide issues
on affidavit(s) only if there is no irreconcilable dispute of facts and can do
so without doing an injustice to the other party, see Lalla v Spafford, N.O and Others 1974(1) SA 191(R)
The said dispute of facts according
to respondent are:-
(1) first
respondent's inability to transact as a result of a strike in 1991.
(2) the authencity of an affidavit filed of
record as the signature is being queried; and
(3) the circumstances surrounding the
swapping of the properties in question.
There are in my view serious and
irreconcilable dispute of facts which can not be decided without the benefit of
oral evidence.
It is trite law that where a dispute
of facts arise the courts can do either of the following:-
(1) dismiss the application with costs, or
(2) order that oral evidence be heard; or
(3) order the
parties to go to trial,
In casu there is a need for
the trial court to have an opportunity of seeing and hearing the witnesses
before coming to a conclusion and hear oral evidence regarding the full facts
and the surrounding circumstances, see Peterson
v Cuthbert and Co. Ltd 1945 AD
420 at 428 and De Villers v Pyott 1947(1)
SA 381 at 387.
In my view, therefore, this matter
involves a mixture of both law and facts which facts are in dispute and is
therefore a proper case to be referred to trial. The
following order is therefore made:-
It is ordered
that:-
(1) The matter is
referred to trial and the notice of this application shall stand as summons in
the action.
(2) The pleadings should be filed so as to
clearly define the issues.
(3) Costs to be costs in the cause.
Sansole and Senda, applicant's legal practitioners
Shenje and Company, respondents's legal practitioners
