KAMOCHA J: After
hearing submissions from both legal practitioners I discharged the provisional
order with costs and indicated that written reasons would be made available in
due course. These are they.
On
6 December 2006 the applicant applied for and was granted a provisional order
which he sought to be confirmed in these proceedings. The terms of the final order that was being
sought were these.
“(1) That the 1st respondent be and
is hereby prohibited from issuing any further warrant of execution based on
case number 117/06.
(2)
That the warrant/writ of execution issued in case
number 117/06 or subsequent or related matters be and is hereby suspended
pending the finalization of this application.
(3)
That if 2nd respondent has already ejected
the applicant he be and is hereby ordered to reinstate him in house number 796
Dulivhadzimu Suburb in Beitbridge.
(4)
That 1st respondent pays the costs of this
application on a client/attorney scale.”
The applicant
claimed that he had been allocated house number 796 Dulivhadzimu suburb in
Beitbridge by the Beitbridge District Council in 1995. He had been on the housing waiting list. Council officials invited him to their
offices where he was told that the previous occupant of the said house had retired. He, however, had left arrear rentals which
had accrued on the property. Applicant
was allegedly advised that if he was interested in purchasing the house he
should clear the arrear rentals accumulated by the previous tenant. Applicant allegedly accepted the offer and
duly paid off the arrear rentals.
He
was then issued with a rent card and remained in occupation of the house from
1995 paying rentals to the Beitbridge District Rural Council without any
problem for a long time. For some
reasons best known to the applicant he took this to mean that he was purchasing
the house. His belief was clearly
erroneous. The fact that one has been a
tenant who dutifully pays his rentals does not automatically entitle one to
purchase the rented premises.
The
correct history of the house that is at the centre of his dispute is that it
belonged to the Department of Water which was inherited by ZINWA. The then Department of Water built a number
of houses for its employees in Beitbridge
Town. As time went by the Department of Water came
to some arrangement with the a Ministry of Health whereby some employees of the
Ministry of Health were allowed to occupy some of the houses built by the
Department of Water.
The
applicant who was then employed as a clerk in the Ministry of Health was one of
the beneficiaries of that arrangement.
The applicant became the tenant of the said house by virtue of his
employment with the Ministry of Health.
When his employment with the Ministry of Health terminated he was
consequently no longer entitled to occupy the said house. When asked to vacate the house he refused to
do so.
That
being the case ZINWA instituted eviction proceedings in the Beitbridge
Magistrates' Court against the applicant.
The applicant entered appearance to defend and engaged the services of a
legal practitioner.
The
matter was set down for a hearing but the applicant and his legal
representative failed to appear for the hearing. The court accordingly entered a default
judgment.
The
applicant filed an application for rescission which was dismissed. The reasons for the dismissal were that the
applicant had failed to comply with Order 30 Rule 2(a) and (b) of the
Magistrates' Court Rules in that the applicant did not state in his affidavit
the reasons for his failure to attend court on the appointed date and
time. He also did not state his defence
to the action. Further the applicant did
not pay into court as security for costs.
The
applicant then noted an appeal to the High Court against the dismissal of his
application for rescission. Thereafter
he applied for the stay of execution of judgment which was also dismissed. He finally applied for and was granted a
provisional order which is the subject of these proceedings. He now seeks to have the provisional order
confirmed.
Applicant
claims to have a defence to the respondent's claim. He reiterated that he was on the housing
waiting list and was finally allocated the house in 1995. He would therefore be prejudiced if the
provisional order was not confirmed as he had been in occupation of the house
since 1995.
The
applicant produced to no proof of being on the waiting list. Neither did he produce proof that he was
offered to purchase the house.
The
fact that applicant was given a rent card and has been paying rent religiously
is no proof that he was offered to purchase the house. More so when documents filed of record reveal
that the said house belongs to ZINWA which inherited it from its
predecessor i.e. Department of Water.
There
is also evidence that he was allocated the house by virtue of being a clerk in
the Ministry of Health. His entitlement
ceased when he terminated employment with that Ministry. A tenant is obliged to pay rent regardless of
how long he remains a tenant.
Further the fact remains
that he had not proffered any defence to the trial magistrate and did not give
any explanation for his default in his affidavit as required by the
Magistrates' Court Rules – Order 30 Rule (2)(a) and (b). He also did not provide security for costs.
The applicant has
no entitlement to the house. He has no
right over it as it belongs to ZINWA. In
the result the provisional order is discharged with costs.
Samp Mlaudzi &
Partners, applicant's legal practitioners
W Tshakalisa Legal
Practitioners, 1st respondent's legal practitioners
