MTSHIYA J: On 23 March 2010 the applicant filed an
urgent application in this court for a provisional order meant to entitle it to
the following relief:
“Terms
of Final Order Sought
That you show cause to this
Honourable Court why a final order should not be made in the following terms:-
1.
The
first respondent be and is hereby ordered to give the premises know as Stand
24A Chadcombe, Harare
to the applicant, unless and until the Supreme Court orders otherwise.
2.
The
first respondent be and is hereby ordered to pay costs of suit on a Legal
Practitioner and Client scale.
Interim Relief Granted
Pending the confirmation or
discharge of this Provisional Order the applicant is granted the following
interim relief:-
1.
The
second respondent and all those acting for him or claiming occupation or use
through him be and are hereby interdicted from plying their business from
premises known as Stand 24A Chadcombe, Harare”.
The urgent application was placed
before PATEL J, and on 29 March 2010 the parties consented to the following
order:-
“It is ordered by consent that:-
1.
The
matter shall proceed as an ordinary application in terms of the Rules subject
to the following:-
2.
Rockmount
Trading (Private) Limited be and is hereby substituted as the second respondent
in this matter.
3.
The
applicant shall file its answering affidavit by the 6th day of April
2010.
4.
The
second respondent shall file any further notice of opposition by the 6th
day of April 2010.
5.
The
applicant shall file Heads of Argument by the 8th day of April 2010.
6.
The
respondents shall file Heads of Argument by the 12th day of April
2010.
7.
The
applicant shall index and paginate the record by the 13th day of
April 2010.
8.
Thereafter
the Registrar is directed to forthwith set the matter down on the opposed roll.
9.
The
costs of the present application shall be costs in the cause”.
This application has now been placed
before me in terms of the above order.
The
parties have since complied with the
consent order.
With the urgent application having
been turned into an ordinary application, it means the interim relief
originally sought now falls away and the application is now based on the final
order, namely an order 'giving the premises to the applicant unless and until
the Supreme Court orders otherwise; and an order for the respondents to pay
costs of suit on a Legal Practitioner and Client Scale'
For
the relief sought to be properly appreciated, it will be necessary to give a
brief background information to this application.
On
30 January 2007 the applicant and the first respondent entered into a lease
agreement in respect of the first respondents' premises namely Stand 24A
Chadcombe, Harare
(the premises). The lease agreement expires on 14 April 2012 and is, subject to
agreement, renewable for three further periods of 5 years each.
On
3 June 2009 the first respondent alleged that the applicant had failed to pay
rent since January 2009 and was therefore in breach of clause 5 of the lease
agreement. On 30 July 2009 the first respondent then obtained an order from the
Provincial Magistrates Court, Harare
for the eviction of the applicant. The applicant appealed to this court against
its eviction. On 9 March, 2010 this court set aside the eviction order of the
lower court.
On 10 March 2010 the respondent filed
an appeal in the Supreme Court against the order of this court, which order set
aside the lower court's decision. However, when this court set aside the
decision of the lower court, the applicant had already been evicted from the
premises. On 24 August 2009 this court had already dismissed the applicant's
application for stay of execution. Thus the appeal now pending in the Supreme
Court was filed after the eviction of the applicant from the premises and hence
the request in this application for the court to order that the premises “be
given to the applicant unless and until the Supreme Court orders otherwise”
The
first respondent alleges that after successfully evicting the applicant from
the premises it entered into a new lease agreement with the second respondent
who then took occupation of the premises in December 2009. The applicant, however, disputes the details
surrounding the new arrangements, particularly the date of occupation.
This
application, as already stated, is for this court to order the first respondent
“to give the premises” to the applicant unless and until the Supreme Court
orders otherwise.
A
perusal of all the papers before me and an analysis of the submissions from all
parties, leads me to the conclusion that this matter cannot be resolved on the
basis of papers filed of record without the need for viva voce evidence. I find myself unable to deny the second
respondent's submission that there are triable issues in this matter and
therefore the dispute cannot be resolved through the route of an application.
The
second respondents correctly lists the material disputes of facts as:
“> the date on which the second respondent
took occupation of the premises in
dispute;
> the bona fides of the second respondent;
> the extent of repairs and renovations
made by the second respondent;
> the
equipment left by the applicant at the premises in dispute; and
the ownership of the said equipment”
Whereas the second respondent avers
that it took occupation of the premises in December 2009 on the basis of a
lease agreement signed on 15 November 2009, the applicant states that the
second respondent only began operations at the premises after being served with
this application on 24 March 2010.
Furthermore whilst the second respondent argues that the applicant knew,
as from 4 February 2010, of all developments at the premises, the applicant on
its part states that the second respondent took occupation of the premises
being fully aware that the High Court had already set aside the eviction order of
the lower court. The first respondent also states that it informed the
applicant of the new lease arrangements with the second respondent and hence
the correspondence between the parties' legal practitioners regarding the
property of the applicant. All in all, the applicant denies that the second
respondent was an innocent actor in the developments that led to it taking
occupation of the premises.
Given the above disputes of facts, I
do not think that this court is in position to take a robust view in resolving
the dispute. The material disputes of fact cited above, cannot, in my view, be
resolved through an application. There would, therefore, be need for viva voce evidence in order for the
dispute to be resolved. This finding means that the matter ought to have been
brought by way of action rather than application.
This application was filed on 23
March 2010 as an urgent application. The papers before me show that as at that
date the applicant was already aware of both respondents' positions regarding
the facts in dispute. This is confirmed in the correspondence exchanged between
the parties' legal practitioners. Issues relating to ownership of property and
removal of property were discussed in the correspondence. It therefore has to
be ascertained through viva voce
evidence whether or not the first respondent and the applicant were indeed
together preparing for the second
respondent's quiet possession of the premises.
As already indicated I believe that in casu the applicant was aware that
serious disputes of fact would arise or had already arisen. He should therefore
have avoided the application route. In Masukusa
v National Foods Ltd & Anor ZLR 1983(1) 232 McNALLY J, as he then was,
said:
“Where the facts are in dispute, the
court has a discretion as to whether to dismiss the application or allow the
matter to go to evidence. The first course is appropriate where an applicant
should, when launching his application, have realized that a serious dispute of
fact was inevitable”.
(See
also Tamarillo (Pty) Ltd v BN Aitken
(Pty) Ltd (1) SA 398 (AD) and Adbro
Investments Company Limited v Minister of the Interior 1956(3) SA 350 (AD).
My
finding in casu therefore is that the
potential disputes were not only foreseen but were already known by the time this
application was launched. I would accordingly, in the use of my discretion,
dismiss this application. I believe the finding that a wrong procedure has been
used can, in certain circumstances, be so fatal as to mean that a matter is not
properly before the court. Accordingly in such a case the court is disabled
from proceeding to consider the merits of the case. That can only be done after
a resolution of the disputes of facts. There is therefore merit in the
submission that this matter should have been brought by way of action.
On the issue of costs, I believe
that a genuine legal dispute exists between the parties and to that extent I am
not persuaded to award punitive costs. However, in a genuine bid to quickly
resolve the dispute fatal procedural errors were made. Although the errors
should not have been made, I do not believe that punitive costs are warranted.
The
application is dismissed with costs.
Honey & Blanckenberg, applicant's legal practitioners
Byron Venturas &
Samkange, first respondent's
legal practitioners
Chihambakwe,
Mutizwa & Partners,
second respondent's legal practitioners
