The applicant filed an urgent chamber application for a provisional order of stay of eviction as interim relief and a final order that he should remain in peaceful occupation of immovable property known being Stand number 107 of Salisbury Township, also known as Number 102 Harare Street, Harare.
I heard the application on 10 February 2017 and dismissed it with costs, giving reasons ex tempore, in the presence of the applicant, for lack of urgency and locus standi by the applicant.
On 22 May 2017, three and a half months later, the applicant wrote to the Registrar requesting the reasons for my decision, which I render hereunder.
The Facts
Stand 107 of Salisbury Township belonged to the late Sushila Natverlal Naik whose estate was duly registered on 9 May 2016 and administered under the Master's supervision to its final conclusion; (Letters of Administration issued to the deceased's son, Joytindra Natverlal Naik, dated 22 June 2016, refer). As part of the finalisation of the administration of the estate, the property was disposed of to the first defendant on 21 July 2016.
Upon finalisation of the administration of the estate, and the disposal of the estate property, three months' notice was properly given to the legal tenant, Goldpack Investments (Pvt) Ltd and all those claiming occupation through it, to vacate the property in favour of the new owner.
Upon failure of the occupants to vacate, the matter went before the Magistrates Court which granted an order of eviction on 3 February 2017.
Prior to her death, the deceased had leased the property for five years, commencing 1 November 1999 to 31 October 2004, to Goldpack Investments (Pvt) Ltd. The terms of the lease agreement did not allow for subletting or cession without the deceased's consent.
Contrary to the lease agreement, and subsequent to the deceased's death, Goldpack Investments (Pvt) Ltd “ceded” its rights to a company called Clintvest Investments (Pvt) Ltd. While the directors of the two companies were the same, the companies were, and are, separate legal entities.
Clintvest Investments (Pvt) Ltd subsequently allegedly sublet to several flea market stall-holders as is apparent from Magistrates Court Case No. 41044/2016. The applicant's name is not included as one of the stall holders in that matter though he swore an affidavit on their behalf - the basis of which is unclear. Nothing on the record, or in previous litigation, supports that the applicant was also a stallholder and subtenant of Clintvest Investments (Pvt) Ltd.
The applicant instituted the present application on his own behalf as appears from his founding and “supplementary founding affidavit” (sic). However, he purports to speak for other subtenants without laying the basis for doing so.
When the parties appeared before me, on 9 February 2017, I noted challenges with the draft order which the applicant sought; the interim order of which was to the effect that pending the determination of the urgent application before me, execution of any judgment of a Magistrate Court seeking his eviction be stayed in circumstances where the applicant had already been evicted.
Further, I could not grant any order pending the determination of the very application before me.
In addition, the final order sought continued peaceful occupation pending the determination of his application for a declaratory order that the sale of the property was invalid – when the applicant was no longer in occupation.
I also noted that the applicant had not properly laid the basis for seeking that the matter be heard on an urgent basis or established his locus standi to bring the application.
With the consent of the first respondent, I therefore directed the applicant to attend to his draft order to seek reinstatement of occupation and stay of any further execution thereafter.
In addition, I granted the applicant the indulgence, if necessary, to file a supplementary affidavit regarding;
(1) This change in the draft order.
(2) To traverse the issue of urgency, the requirements of which were explained to him; and
(3) To establish his locus standi after which the first respondent could file its opposing affidavit.
On the next hearing date, on 10 February 2017, the applicant submitted a supplementary founding affidavit which was effectively a new application for an interdict, bringing up new issues rather than reinstatement of occupation and stay of further execution contrary to the directions of the court.
Being mindful of the fact that the applicant was a self-actor, I however allowed the parties to make submissions on urgency and locus....,.
At the conclusion of the parties' submissions I dismissed the application on the basis that, firstly, it was not urgent, and, secondly, and in any event, the applicant lacked the locus standi to bring this or any other application in the matter - and these were my reasons:
Urgency
On urgency, the applicant submitted that he was being evicted, and had in fact been evicted, by someone with improper title. He averred that he should not be evicted until the issue of propriety of the administration of the estate of Late Sushila Naik was resolved.
In his affidavit of urgency…, the applicant averred that the matter was urgent because;
1. He had “been served with a writ, default judgment, and notice of removal to take place on the 9th of February 2017”…,.
2. He “was not cited in the matter…, threatening (his) rights in the premises and…, was not given the opportunity in the Magistrates Court to defend (his) rights.”
3. Unless this court intervened, he stands “to suffer repairable (sic) harm and it is clear that the 1st Respondent approached that (sic) Court with dirty hands by citing a party which is not in occupation and has ceased to have an interest in the premises.”
4. “…, 1st Respondent has abused the lower court by seeking such an order (presumably the order of eviction) when there is a case HC137/16 pending…,.”
5. “The reasons why 1st Respondent has acted in such a manner is that…, we both sale (sic) electrical goods and hardware and so he wants to kill competition.”
It is apparent that the applicant advanced no grounds at all why his application should be treated as urgent.
In fact, by his own admission, he knew by, at the very least, January 2017, that the first respondent had acquired title and intended to convert the property for its own use. And, as at that date, he had long been aware that in 2016, the first respondent had instituted eviction process against the legal tenant, Goldpack Investments (Pvt) Ltd and all those claiming occupation through it. If the applicant had any rights to protect, then, the need to act arose, at the latest, then.
As it turns out, and according to documents in the applicant's possession, and paragraph 5 of his supplementary founding affidavit, as at 25 August 2016, all subtenants at 102 Harare Street were given notice by Clintvest Investments (Pvt) Ltd that the property had been sold and that they had to vacate within three months. They sought an extension of the notice period to the end of December 2016, which was turned down by letter dated 16 November 2016.
At the earliest, therefore, the applicant was, as from 25 August 2016, always aware that the property had been sold as a consequence of the administration of the estate and he was required to vacate in favour of the new owner. The need to act arose then, should the applicant have had any remedy against the first respondent, and not as at the date of eviction by the Messenger of Court.
Instead of seeking to protect his alleged rights to occupation, what the applicant did, in fact, was to seek to impugn the administration of the estate of the late Sushila Natverlal Naik, in letters dated 21 and 29 December 2016. In response, the Master informed him, by letter dated 11 January 2017, to approach the courts for a review of the administration of the estate as it had been finalised.
Contrary to the advice from the Master, what the applicant did was to seek a declaratur, a month down the line. Thus, he himself did not treat his own cause as urgent.
Besides, execution of judgment being the natural consequence of an order of court, and the applicant having already been evicted, it is a principle of our jurisprudence that once the status quo ante has been lost, it can generally not be restored unless there is a palpable miscarriage of justice - which is not apparent in this case....,.
In any event, the fact that the Magistrates Court ordered eviction of Goldpack Investments (Pvt) Ltd and all those claiming occupation through it, equally applied to the applicant as he staked his claim on a cession of its rights by Goldpack Investments to Clintvest Investments. That order is still extant and has not been appealed. The applicant therefore remains evicted in terms thereof.
Clearly, this matter did not deserve to be treated as urgent as it fell far short of the requirements necessary to jump the queue and take precedence over other matters.
