MAKARAU JP: In March 2009,
the applicant approached this court on a certificate of urgency and
obtained a provisional order calling upon the respondents to show
cause why they should not be ordered to release certain items of
household goods and effects whose details were listed in an annexure
to the application. As interim relief the second respondent was
ordered not to sell or dispose of any of the property on the
schedule. The second respondent was also restrained from releasing
any of the property to anyone other than the applicant.
On 14 January 2010, the matter was set down before me for the
confirmation or discharge of the provisional order, the first
respondent having filed a notice of opposition and opposing affidavit
in the matter.
When the matter was called up it
emerged that the first respondent had filed its heads of argument out
of time and were barred. Mr
Mavhunga applied for
condonation which I declined on the turn and indicated that my
reasons would follow. I mow set them out.
The applicant filed his heads in the matter on 8 September 2009.
These were served upon the first respondent's legal practitioners
on 11 September 2009. In terms of the rules, the first respondent had
ten days within which to file and serve its own heads in the matter.
The first respondent did not file its heads until 8 January 2010
presumably in response to the notice setting the matter down which
was served on the parties in December 2009.
To explain the delay in the
filing of the heads, Mr
Mavhunga filed an
application and supplemented his written submissions by oral
argument. In the main he submitted that he was failing to get
instructions from the first respondent and had formed the impression
that the first respondent had lost interest in the matter.
The factors generally, taken into account by the court, when
considering an application for condonation, are well established.
Importantly, but not exclusively, the court takes into account such
factors as;
(i) the length of the delay;
(ii) the explanation for the
delay;
(iii) the merits of the
application; and
(iv) any prejudice to the
interests of justice generally.
The delay in filing heads of argument in this matter was in my view
inordinate. The first respondent had to file his heads at the latest
on 25 September 2009. Instead, its heads were only filed in January
2010, a few days before the set down date. The first respondent had
delayed by a period in excess of three months.
Further, I was not impressed by the reasons proffered for the delay.
Where litigants, being aware that they have a matter before the
courts, are disinclined to proceed with the prosecution or defense of
the matter, they should not expect the courts to aid them in their
apathetic attitude towards litigation.
It further appeared to me that the first respondent was not bona fide
in filing the application for condonation.
Having failed to communicate with its legal practitioners for more
than three months, it could not expect the court to grant it the
indulgence sought for the mere asking without explaining why it had
not broken down its communications with its legal practitioners.
It is trite in my view that the explanation for the delay sought is
that of the party to the litigation and not necessarily of its legal
practitioner unless the delay is largely imputable to the legal
practitioner in which event a supporting affidavit from the legal
practitioner has to be filed.
The issue that has exercised my mind in this application is whether
the applicant is entitled to the order that he seeks on the facts
that he alleges.
In his provisional order, the applicant seeks an order compelling the
respondents to release to him certain items of his household goods
and effects that are in the possession of the second respondent.
In his founding affidavit, the applicant alleges that he was in
occupation of certain property leased by the first respondent. A rent
dispute arose between the parties leading to the applicant
approaching the Rent Board after the first respondent had locked the
applicant out of the leased property. When the first respondent
requested the applicant to show in some tangible way how he would be
able to pay whatever rental was found to be fair in respect of the
property, he pointed out that he had valuable movables that could be
sold to meet his obligations. The first respondent demanded that the
movables be valued and this was done. Later, the applicant learnt
that the first respondent intended to have his property sold.
He approached the second respondent who was in possession of the
property and advised it not to sell the property as such had been
removed without his permission and he had not consented to the sale.
In obtaining an order restraining the second respondent from selling
the property, the applicant averred that he was in peaceful and
undisturbed possession of the property before he was locked out of
the rented property and before the respondents removed his movables
from the property.
From the concluding paragraph of
his founding affidavit, and from the submissions made orally by Mr
Tsivama on behalf of the applicant, it is clear that the applicant
approached the court for restoration of his possession under the
mandament van spolie.
It is trite that for one to succeed in a spoliation, one must prove
that they were in peaceful and undisturbed possession of the property
and were illicitly despoiled of such possession.
In my view, the applicant drafted his affidavits so vaguely that I
cannot discern at what stage he alleges he was in peaceful and
undisturbed possession of the property for the purposes of the
application he has brought.
From his own affidavit, it would appear that after being initially
locked out, which clearly was an act of spoliation, he was restored
in possession of the rented premises after the Rent Board intervened.
After the intervention of the Rent Board, it is not clear how the
applicant “lost” or parted with possession of his movables. The
affidavit does not say.
In my view, the absence of an averment in the founding affidavit to
the effect that the applicant was unlawfully made to part with
possession is fatal to his application even in the absence of
opposition from the respondents who are now barred.
I am aware that the applicant
obtained a provisional order from this court, granting him interim
protection pending the issuance of an order restoring possession of
the property to him. It is trite that the judge who granted the
provisional order was satisfied that a prima
facie case had been
made out for the interim protection that the applicant was seeking.
It is further trite that at this stage, for me to grant the final
relief that the applicant prays for, I must be satisfied that he has
established his case on a balance of probabilities.
I am not so satisfied.
(i) Firstly, I am not satisfied
that the applicant has established the second element for a
spoliation order. He has not shown in his founding affidavit, in
which all the necessary averments have to be made, that he was
illicitly deprived of possession. He makes an attempt to do so in the
answering affidavit after the first respondent had taken specifically
alleged that the applicant consented to the removal of the property
to the auctioneers.
It is trite that in the circumstances, I cannot pay regard to the
averments in the answering affidavit as laying out the applicant's
cause of action.
(ii) Secondly, the applicant
proceeded by way of application to seek to recover his property in
the face of a number of disputes of facts.
He was aware of the stance that the respondents were taking in the
matter and proceeded notwithstanding. After obtaining the interim
protection restraining the disposal of the property, in my view, he
should have mounted a proper action, seeking as an owner to recover
his property from the respondents.
On the basis of the foregoing, I am constrained to find that
notwithstanding the barring of the respondents, the applicant is not
entitled to the order that he seeks.
In view of the fact that both parties have been partly successful, I
do not believe that it is in the interests of justice that I burden
any of the parties with an order of costs.
In the result, I make the following order:
1. The application is dismissed.
2. Each party shall bear its own
costs.
Sawyer & Mkushi, applicant's legal practitioners
Mavhunga & Sigauke, first respondent's legal
practitioners
