BHUNU
J: The 130 applicants are tenants of the first respondent at its various flats
in Harare.
Following a legal battle the parties concluded a written deed of settlement on
4 May 2010 in the following terms:
“1.
That applicants shall pay to Messrs Manase and Manase all monies due as rentals
at the thresholds prevailing at the time such rentals became due as the case
may be, from the month of October 2009 to April 2010.
- That Applicants shall pay to Messrs Manase and Manase
all monies due as rentals for the month of May 2010 which amounts are
agreed as follows
(a) For a bed
sitter - US 150. 00
(b) For one bed
- roomed flat - US 200. 00.
(c) For a two
bed – roomed flat - US 250. 00
- That Mnondo Properties (Private) Limited shall write
to applicants directing them to pay all rentals due subsequent to the
above months, to Tungpal Investments (Private) Limited.
- That Tungpal Investments (Private) Limited shall invite applicants to enter into written
lease agreements with it in respect of the properties applicants inhabit.
- That applicants shall pay rentals in respect of
the month of May 2010 to 7 May 2010.
- The applicants shall pay all monies due as rentals
in terms of paragraph 1 hereto by 10 May 2010 at 16:00 hours latest.
- That in the event of any applicant failing to make
payment of monies in terms of paragraphs 5, and 6 above, such applicant
shall be evicted from leased premises in terms of the order of the
magistrates court dated 19 February 2010.
- That applicants shall withdraw all their applications pending in the
High Court, and that this deed of settlement shall govern the legal
relation s between the parties from the date of signature hereof.”
It is clear that in terms of clauses 5 and 6 of the deed of settlement
the applicants were obliged to pay rentals due and awing no later than 10 May
2010 failure of which the first respondent was entitled to evict in terms of
the court order obtained on 19 February 2010 without any further ado.
It is common cause that by 10 May 2010 no payments had been made in terms
of the deed of settlement. This appears to have been in consequence of a
dispute concerning the amounts due and awing. On 11 May 2010 respondent's then
lawyers Manase & Manase wrote to the applicant's lawyer accepting payment
in the amounts proposed by the applicants and considerately extending the due
date of payment by a day from 10 May to 11 May 2010. The letter reads:
“Dear Sir
COLLIN DUBE AND 129 OTHERS v TUNGPAL
INVESTIMENTS
Your letters of
6th 10th and 11th May refers. We write to
confirm that our files reflect a different position but nonetheless for the
sake of progress and finality in the matter we shall stick to the figures
reflected in your letter with reference to one and two bedroomed flats. However
we feel as per your earlier discussions with our Mr. Pasipanodya in the morning
that the bed-sitter rental should at least be raised to a nominal fee of USD60.
00
In the premises
kindly advise what time we should expect payment today.”
A
dispute has now arisen concerning whether or not the applicants have paid in
terms of the deed of settlement. The dispute can only be resolved by applicants
furnishing the respondents with proof of payment in the agreed amounts to
Manase & Manase on or before the agreed due date of 11 May 2010.
The
applicants have now produced 3 receipts showing block payments to Manase &
Manase as follows:
Receipt No.
Date Amount Paid
1. 3619 8/05/10 $10 250. 00
2. 3999 5/05/10 $5000. 00
3. 3622 12/05/10
$29 480. 00
What
is clear from the figures is that a total of $15250. 00 was paid in terms of
the deed of settlement whereas $29 480, 00 was paid when the applicants were
already in breach of the deed of settlement in that payment was made on 12 May
instead of 11 May 2010.
That
being the case, the respondent was within its rights in seeking a remedy in
terms of the deed of settlement. The undisputed facts of this case make it
clear that close to half the number of applicants made timeous payments in
terms of the deed of settlement whereas a similar number defaulted. I have said
it before and I will say it again that it is unfair and manifestly unjust that
the innocent should be punished together with the guilty
It
is also self evident that by making block payments the defaulters seek to hide
behind those who made timeous payments in terms of the deed of settlement. The
onus is however, on each applicant to produce proof of payment to the
satisfaction of the second respondent, that is to say, the messenger of Court
that he or she made timeous payment in terms of the deed of settlement
No
onus lies on the respondent to show or deduce from the bulk payments as to who
has paid or not paid in terms of the deed of settlement. This is because this
information is solely within the knowledge of the applicants. By making block
payments and adopting a common stance in this application the applicants risked
being held jointly and severally liable for any shortfalls or breaches which
are obvious in this application.
For
the foregoing reasons the application cannot succeed because no one is in
danger of being unlawfully evicted should he manage to produce the required
proof of payment. It is accordingly ordered that the
application be and is hereby dismissed with costs.
Kawonde and Company, applicants' legal practitioners
Manase and Manase, 1st respondent's legal practitioners
