MAWADZE J: This is an urgent chamber
application for a provisional order whose interim relief sought is couched as
follows:
“Interim
Relief Granted
That pending the return date
respondent be and are hereby ordered to restore vacant possession and
occupation of Flat 112 Dandaro Village, Borrowdale, Harare to the applicant
with immediate effect”.
The terms of the final order are
construed as follows:-
“1. That the first and second and third
respondents be and are hereby ordered not to resort to self help and in so
doing evict the applicant or lock her out or deny her access to Flat 112
Dandaro Village Borrowdale, Harare without an order of the court authorising
them to do so.
2. That the first and second respondents
jointly and severally with one paying the other to be absolved, pay costs of
suit on attorney client scale”.
Background Facts
It is
unfortunate and perhaps deliberate that applicant did not seek in her founding
affidavit to disclose all relevant
background information related to the history and facts of this matter. Mr Chinyama for the applicant profusely
apologised for the omission but was unable to give a plausible explanation for
that considering that he had handled divorce proceedings and three other urgent
applications in this court involving the applicant, her late husband and
virtually the same respondents. The need to state relevant and obvious
background facts of the matter in any proceedings moreso in an urgent chamber
application cannot be over emphasised.
The
brief facts of the matter which I discerned after a full hearing can be
summarised as follows:
Applicant
married one Baker Eddy Morten at Harare
on 16 February 2000 in terms of the Marriages Act [Cap 5:11]. Mr Baker Eddy Morten owned among other properties two
residential flats Numbers 112 and 243 at Dandaro Village,
Borrowdale Harare. Mr Baker Eddy Morten died in Florida USA on 9 August 2010
and his daughter the first respondent Marlene Denise Kemi Morten, a practising
lawyer in USA
was on 20 January 2011 appointed executrix testamentary of Baker Eddy Morten's
estate.
The
second respondent is the manager of the third respondent, an association of
home owners at Dandaro Village governed by the Dandaro Home Owners
Association constitution and also a notarial deed of servitude registered with
the Deeds office regulating the rights and affairs of the members of Dandaro Village.
In
August 2009 the late Baker Eddy Morten was in the USA receiving treatment after a
road traffic accident. Applicant had returned to Zimbabwe
from USA leaving Baker Eddy
Morten in USA after being
refused a residency permit by USA
authorities. Applicant on 12 November 2009 filed for divorce in this court but the
divorce proceedings were not brought to finality as Baker Eddy Morten died when
the divorce proceedings were at pre-trial conference stage. Apparently when the
late Baker Eddy Morten was in the USA
for treatment the applicant moved into flat No. 112 Dandaro Village Borrowdale,
Harare on 31
July 2010. This was after one M. Pisani occupying that flat had been removed by
the first respondent who had been given power by Baker Eddy Morten to
administer his affairs in Zimbabwe.
On 10 December 2010 (Baker Eddy
Morten had died on 9 August 2010) Dandaro Home Owners Association through the
second respondent wrote a letter to the applicant “ordering her” to vacate Flat
112 Dandaro Village forthwith. Two reasons were given in that letter. First,
that the applicant was under age to be resident as Dandaro Village
in terms of the third respondent's constitution. Second, that the applicant had
been over an extended period of time since taking occupation of Flat 112 proved
to be a nuisance to other residents and that the third respondent could no
longer tolerate her.
Applicant,
through her legal practitioners responded to this ultimatum to vacate Flat 112
by stating that the second and third respondents could not resort to self help
by seeking to unlawfully kick her out from flat 112 without a proper court
order. Applicant made it clear that she was staying put at flat 112 on the
basis of being surviving spouse for Baker Eddy Morten.
The
second and third respondents disregarded the applicant's protests and on 14
December 2010 the applicant through her legal practitioners wrote to first
respondent's legal practitioners raising the issue that the first respondent
acting in cahorts with the second and third respondents had evicted the
applicant on 13 December 2010 from flat 112 by locking her out without a valid
court order. Applicant approached Police at Borrowdale station for help as she
argued that the conduct of first, second and third respondents amounted to
spoliation. It would appear the applicant, with the help of the Police was able
to re-occupy Flat 112 Dandaro. However the applicant's joy was short-lived as
she was advised by the respondents to vacate Flat 112. This prompted the
applicant to file an urgent chamber application on 15 December 2010 case No. HC
9293/10 seeking an interdict against the first, second and third respondents on
the basis of her right as a surviving spouse to stay in flat 112 Dandaro and
not to be evicted without a valid court order.
On
15 January 2011 HUNGWE J who dealt with the urgent chamber application HC
9293/10 dismissed with costs the application on the basis that applicant had
failed to establish a prima facie right
to reside at Dandaro Village taking into account the constitutional
restrictions imposed relating to age and absence of written permission by the
third respondent. HUNGWE J did find that the balance of convenience was in
favour of the refusal of the interim interdict. In short, therefore HUNGWE J in
HC 9293/10 declined to grant the applicant an interdict against first, second
and third respondents.
On
20 January 2011 the first respondent who was appointed executrix testamentary
was issued with letters of administration by the Master of the High Court DR
1718/10. On the same day, armed with the letters of administration the first
respondent, with the assistance and indulgence of the second and third
respondents now buoyed by this outcome of the case HC 9293/10 by HUNGWE J.
proceeded to eject the applicant from flat 112 Dandaro Village. This then
prompted the applicant on 24 January 2011 to again approach this court on an
urgent basis seeking the provisional order referred to supra, which is now the subject matter of this judgment.
The
basis of the applicant's case can be summed up as follows:-
1.
that
by evicting her from flat 112 respondents have committed an act of self help
which is unlawful and have therefore illegally removed the applicant and her
belongings from flat 112 in her absence and without her consent;
2.
that
by removing the applicant's property from flat 112 and kicking her out thus
barring her from entering the flat the first, second and third respondents committed
an act of spoliation which entitles applicant to the remedy of mandamentum van spolie.
3.
that
if the interim relief is not granted irreparable harm would be occasioned as
applicant's property is unsecured, applicant has no other place to stay and
that she has no other remedy.
The application is opposed.
At the commencement of the hearing
the first, second and third respondents raised
points in limine, which they submitted if properly considered dispose of
the matter without consideration of the merits of the case.
Mr
Diza and Advocate Lewis for the respondents basically
raised three issues as preliminary points which are:
(a)
that
the application is fatally defective as the applicant failed to cite the first
respondent in her official capacity/representative capacity and failed to
comply with the peremptory requirements of r 248 of the court.
(b)
the
principle of res judicata:- that the
same issues raised by the applicant in this urgent application were dealt with
and pronounced upon by HUNGWE J in HC 9293/10 hence this court cannot be asked
to revisit the same issues as it were .
(c)
that
the application is bad at law moreso in light of recent Supreme Court judgment Commercial Farmers Union & Ors v
Minister of Lands and Rural Resettlement and Ors SC 31/10 which clearly
stated that spoliation cannot confer jurisdiction where none exists and that
the common law remedy cannot override an Act of Parliament nor can a court protect
a party defying the law. The contention by the second and third respondents is
that the notarial deed of servitude registered in Deeds Office under MA
406/2004 under the Deeds Registry Act which is an Act of Parliament cannot be
rendered nugatory by the relief sought by the applicant.
Let me deal with the points in limine raised by the respondents
seriatim
(a)
Is the application fatally defective
The issues raised by the
respondents in this respect as already said are two fold.
I am however not persuaded by the
submission that the non citing of the first respondent in her capacity as
executrix testamentary of the estate is fatal to the application. The first
respondent concedes that she evicted the applicant from flat 112 on 20 January
2011. In my view the fact as to whether she did so in her personal or
representative capacity is neither here nor there and should not distract from
the conduct complained of which is not in issue. In my case, Mr Chinyama's contention that applicant was
unaware that first respondent had been issued with letters of administration
has not been controverted.
The
second aspect relates to no compliance with r 248(1) which provides:-
“Rule
248 applications involving deceased estates liquidators or trustees
(1) In the case of any application
in connection with __
(a)
the
estate of a deceased person.
or
(b)
…….
a copy of the
application shall be served on the Master not less than ten days
before the set down for his consideration, and for report by him if he
considers it necessary or the court requires such a report” (underline mine)
It
is clear that the requirements of r 248(1) are mandatory. It is also common
cause that Flat 112 now form part of the deceased estate of the late Baker Eddy
Morten. It is not in issue that the applicant has not cited the Master in this
application and has not complied with r 248(1).
In
my considered view r 248(1) deals with applications in connection with an
estate of a deceased person. In casu
the application is not in connection with the estate of the deceased but relates to the alleged unlawful conduct of
the respondents. The nature of the relief sought is not by any stretch of
imagination related to the deceased estate nor can it be argued that if granted
that would adversely affect the proper administration of the estate of the late
Baker Eddy Morten. In my considered view the non citation of the Master in this
application is not an issue at all. In view of the nature of the relief sought
citing the Master would serve no purpose. In fact I am satisfied after a
careful consideration of r 248(1) that it is inapplicable in the instant case
hence I find no merit in this argument.
(c)
Res judicata
As already explained
this relates to the judgment by HUNGWE J in HC 9293/10. HUNGWE J's judgment was
delivered on 20 January 2011 and this urgent chamber application was filed on
24 January 2011. However during the course of the hearing of this application
and on 1 February 2011 Mr Chinyama filed
an appeal with the Supreme Court against the judgment by HUNGWE J in HC 9293/10
appeal No. 23/11. The effect of such an appeal albeit noted during the hearing
of this matter and most probably for purposes of countering the point in limine (res judicata) raised by the respondents remains self evident in
that it suspends the operation of the judgment HC 9293/10.
My view is that even if
no such an appeal had been noted the plea of res
judicata would
not be available to the respondents. It is clear that HUNGWE J in HC
9293/10 states that the applicant had no
right to stay in Flat 112 Dandaro Village. To that extent the issue of whether
the applicant has a right to stay in that flat can be said to have been
adjudicated upon end settled. However the issue before HUNGWE J though
involving the same parties and the same flat related to an interdict which is
different from the relief being sought by the applicant in casu. For those reasons I find no merit on the issue relating to
the principle of res judicata raised
by the respondents.
(d)
Whether that application is bad at law
My view is that this
argument cannot be dealt with as a point in limine but rather relates to
the merits of the application I now proceed to deal with the merits of the
matter.
MERITS
From the background
facts of the matter I have outlined it is clear to my mind that relevant facts
to this application are largely common cause. These facts are:
(i) that applicant is the surviving spouse
of the late Baker Eddie Morten. When Baker Eddie Morten passed on 9 August 2010
the marriage between the parties had not been dissolved by any competent court.
(ii) that applicant had been residing in Flat
112 Dandaro Village from 31 July 2010 and was only “evicted” from the flat on
20 January 2011 after a period of 6 months.
(iii)
that
the applicant did not consent to vacate flat 112 Dandaro Village
but was locked out by the first, second and third respondents in her
absence.
(iv)
that
the first, second and third respondents did not seek and obtain an eviction
order from the court before ejecting the applicant from Flat 112 Dandaro Village.
It is incorrect to submit that
HUNGWE J in HC 9293/10 ordered the eviction of the
applicant. It follows therefore that
it would not be tenable to argue that the applicant was lawfully evicted in
accordance with an order by HUNGWE J in HC 9293/10. The fact of the matter is
that HUNGWE J in HC 9293/10 merely pronounced on the rights of the parties in
relation to Flat 112 Dandaro Village. HUNGWE J did not issue an order to evict
the applicant and no such order was sought before him but the relief sought was
an interdict.
The
fact of the matter is that the judgment by HUNGWE J in HC 9293/10 did not in my
view allow the respondents to evict the applicant without a valid court order
to that effect.
The
next issue to consider therefore is whether the respondents acted upon any
other lawful basis when they evicted the applicant on 20 January 2011.
Section
10 of the Deceased Family Maintenance Act [Cap
6:03] provides as follows:-
“10
Protection of deceased person's family and property.
(1)
Notwithstanding
any law, including customary law, when any person dies, any surviving spouse or
child of such person shall, subject to section eleven have the following rights
–
(a)
the
right to occupy any immovable property which the deceased had the right to
occupy and which such surviving spouse or child was ordinarily occupying
immediately before the death of the deceased.
(b)
……..
(c)
…….
(d)
…….”.
In terms of s 10(2) non compliance
with the provisions of s 10(1) invites criminal
sanctions.
As
already stated applicant is Baker Eddy Morten's surviving spouse and Baker Eddy
Morten owned Flat 112 Dandaro Village Borrowdale, Harare. It is common cause applicant was
occupying Flat 112 Dandaro Village immediately before the death of the
deceased. Applicant therefore is protected in terms of s 10 of the Deceased
Person's Maintenance Family Act subject to s 11 of the same Act.
Section
11 of the Deceased Person's Family Maintenance Act states:
“11
Restrictions on exercise of the rights conferred by section ten.
The rights conferred by section ten
shall-
(a) not derogate from or prejudice in
any way the rights of the mortgagor or, landlord, creditor or any other
person whomsoever which existed prior to the date of the death of the deceased
person. (underline mine).
(b) terminate upon completion of the
administration of that portion of the deceased estate to which those rights
relates.
(c) be subject to the requirement that
the surviving spouse or child concerned shall occupy or use the property in
question without detriment, or neglect, reasonable wear and tear being
excepted”.
Advocate Lewis in argument submitted that the applicant's right to occupy
flat 112
Dandaro Village is subject to the exception in s
11(a). I associate myself with that view and I believe the effect of the
Dandaro constitution and the notarial deed of servitude on applicant's right to
occupy flat 112 Dandaro were issues ably dealt with by HUNGWE J in HC 9293/10.
The
graveman of the matter is whether the respondents acted within the confines of
the law when they ejected the applicant.
The
legal requirements for the relief sought by the applicant are well laid out in
the case of Chisveto v Minister of Local
Government and Town Planning 1984(1) ZLR 248 at 250 A to E;
“It is a well recognised principle
that in spoliation proceedings it need only be proved that the applicant was in
possession of something and that there was forcible or wrongful interference
with his possession of that thing …. that spoliatus
ante omnia restituendus est………….. Lawful possession does not enter into it.
The purpose of the mandament van spolie
is to preserve law and order and to discourage persons from taking the law into
their own hands. To give effect to these objectives, it is necessary for status quo ante to be restored until
such time as a competent court of law assesses the relative merits of claims of
each party. Thus it is my view that the lawfulness or otherwise of applicant's
possession of the property in question does not fall for consideration at all”.
I
am satisfied that the applicant has proved both factual possession and wrongful
dispossession in respect of flat 112 Dandaro
Village. Even if one was
to assume that the applicant's right to occupation of the flat 112 is as per
HUNGWE J's judgment (I share similar views) in HC 9293/10 I do not believe that
the respondents were entitled to eject her from the flat without following the
due process of the law. The provisions of the Dandaro constitution and the
notarial deed of servitude deal with the applicant's right to habitatio and
cannot be elevated to the status of a court order authorising the eviction of
the applicant. I associate myself with the incisive views expressed by the
Chief Justice CHIDYAUSIKU in the matter of Commercial
Farmers Union and Ors v Minister of Lands and Rural Resettlement and Ors SC
31/10 cyclostyled judgment at p 29:
“The holders of offer letters,
permits or land settlement leases (one may read to include Dandaro Constitution,
the notarial deed of servitude and letters of administration) are not entitled
as a matter of law to self help. They should seek to enforce their right of
occupation through the courts ……..”
I
am therefore satisfied that the applicant is entitled prima facie to the interim order she seeks.
Accordingly,
I make the following order:-
1.
That
pending the return date the respondents be and are hereby ordered to restore
vacant possession and occupation of flat 112 Dandaro Village, Borrowdale,
Harare to the applicant with immediate effect.
2.
This provisional order shall be served on all respondents in terms of
the rules of this Honourable Court.
Chinyama &
Partners,
applicant's legal practitioners
Musunga &
Associates, 1st
respondent's legal practitioners
Advocate
J.C. Lewis, Counsel for 2nd & 3rd
respondents
