Baraide Investments (Private) Limited v Mashamhanda (815 of 2022) [2022] ZWHHC 815 (14 July 2022)

1 HH 815-22 HC 3124/22 BARIADE INVESTMENTS (PRIVATE) LIMITED versus TENDAI MASHAMHANDA HIGH COURT OF ZIMBABWE DEME J HARARE, 14 July, 2022 Opposed Application Adv M Tshuma, for the applicant. Prof L Madhuku, for the respondent. DEME J: On 14 July 2022, I delivered an ex tempore judgment to the effect that the present application be removed from the roll in order to pave way for the finalisation of the constitutional matter filed before the Constitutional Court under CCZ12/22. The applicant subsequently requested the reasons for the judgment. Consequently, this judgment seeks to advance the reasons therefor. By way of background, the applicant approached this court seeking the relief for an order for ejectment of the respondent. More precisely, the applicant’s relief is expressed in the following way: “1. The respondent and all his subtenants, assignees, invitees and all persons claiming occupation through the respondent be and are hereby ordered to vacate the applicant’s property being the remainder of subdivision C of Lots 190, 191, 193, 194 and 195 Highlands Estate of Welmoed also known as 41 Ridgeway North, Harare, immediately upon service of this order on the respondent. 2. In the event of the respondent failing to vacate as provided for in para 1 above the Sheriff or his lawful Deputy be and is hereby authorised and empowered to evict the respondent and all persons claiming occupation through them (sic) from the applicant’s premises, being the remainder of subdivision C of Lots 190, 191, 193, 194 and 195 Highlands Estate of Welmoed also known as 41 Ridgeway North, Harare. 3. The respondent shall pay costs of suit on a scale as between legal practitioner and client. 4. This order shall remain operational notwithstanding any appeal that may be filed by the respondent.” HH 815-22 HC 3124/22 The applicant is a company duly incorporated in terms of the laws of Zimbabwe while the respondent is a male adult of full legal capacity. According to the applicant, it bought the property being the remainder of subdivision C of Lots 190, 191, 193, 194 and 195 Highlands Estate of Welmoed also known as 41 Ridgeway North, Harare (hereinafter called “the property”) by way of judicial auction some time in 2017. The property was transferred into the applicant’s name on 5 May 2022. The respondent also claimed to have purchased the property from Mr Puwai Chiutsi. At one time, the parties to the present application were involved in the dispute of ownership for the property which went as far as the Supreme Court. The Supreme Court resolved the ownership dispute in favour of the applicant. In the case of Bariadie Investments (Private) Limited v Puwai Chiutsi and Ors1, the Supreme Court remarked as follows: “[55] The first respondent fraudulently sold property that had already been sold to the appellant through a confirmed Sheriff’s sale by public auction. He proceeded to perjure himself and thereby facilitated transfer of the property into the second respondent’s name. The confirmation by the Sheriff of the sale by auction remains extant despite the incompetent default order granted in HH 477/21. The second respondent’s bona fides in acquiring title to the disputed property was effectively discredited. In all respects, the title deed number registered in the name of the second respondent, having been irregularly acquired, is null and void. The default judgment by CHITAPI J has failed to withstand review scrutiny as outlined and must be set aside. Consequently, MATHONSI J’s judgment in HH 604/18 remains extant.” In the above case of Bariadie Investments (Private) Limited (supra), the respondent in this matter was cited as the second respondent in that matter. After the Supreme Court judgment, the applicant transferred the ownership of the property into its name on 5 May 2022. Meanwhile, after the Supreme Court’s decision, the respondent approached the Constitutional Court seeking to have direct access to the Constitutional Court under CCZ12/22. The basis for seeking access to the Constitutional Court is to challenge the constitutionality of the Supreme Court’s decision which resolved the dispute of ownership in 1 SC24/22. HH 815-22 HC 3124/22 favour of the applicant. The respondent claimed to be an innocent purchaser who was a victim of circumstances. The respondent claimed that after purchasing the property, he went on to occupy the property in dispute. He further claimed that he effected some improvements on the property. According to the respondent, the estimated value of the property is US$1 500 000. On the date of hearing of this matter, the respondent counsel sought the removal of the present application from the roll in order to allow the finalisation of the constitutional case filed by the respondent. The basis of the request for the removal was that the court ought to wait for the outcome of the Constitutional Court case. Prof Madhuku, on behalf of the respondent, submitted that the court can stay the proceedings where there is a possibility that its decision may be in conflict with the decision of the Constitutional Court. The application for removal of the matter from the roll was strongly opposed by the applicant who insisted that the Constitutional Court’s matter has no bearing to the present application. Adv Tshuma further submitted that the referral of the matter to the Constitutional Court does not suspend the decision of the Supreme Court which resolved the ownership dispute. He referred the court to Section 6 of the Constitutional Court Act [Chapter 7:21] which provides as follows: “6 Appeals from the Supreme Court An appeal from the Supreme Court to the Court shall not suspend the decision being appealed against unless the Court orders otherwise.” Prof Madhuku did not dispute the effect of the appeal from the Supreme Court to the Constitutional Court. Upon being asked by the court whether the matter may not be stayed on the basis of lis pendens, Adv Tshuma argued that the cause of action for the two cases is different and hence lis pendens does not apply. The issues that consequentially emanate from the submission are as follows: (a) Whether or not the requirements of lis pendens are satisfied by the present facts. (b) If the requirements for lis pendens are satisfied, what is the appropriate course of action that can be taken by the court? HH 815-22 HC 3124/22 The jurisprudential undertone of our jurisdiction has established the basic requirements for lis pendens. These include: (a) The matters under consideration must involve the same parties. (b) The things being contested in the two separate cases must be identical. (c) The two separate matters must involve the same cause of action. In the Case of Chigami 2 Syndicate and 2 Ors v Cleo Brand Investments (Pvt) Ltd2, the court made the following germane remarks: “Lis pendens refers to a special plea raised by the defendant that the matter is being determined by another court of competent jurisdiction on the same action and between the same parties. For a plea of lis pendens to succeed it must be demonstrated that the two matters are between the same parties or their successors in title concerning the same subject matter and founded upon the same cause of complaint (see Diocesan Trustees for Diocese of Harare v Church of the Province of Central Africa 2009(2) ZLR 57(H); Nestle (SA) Pvt Ltd v Mars incorporated (2001) 4 A SA 315 (SCA), Geldenhys v Kotz 1964(2) SA 167”. In casu, the Constitutional Court, to which the matter was referred, has got competent jurisdiction of disposing of the matter. The parties in the two matters under consideration are the same. The thing being contested is the same property. The cause of action is substantially similar. In all two matters, ownership is under consideration. In the case of Towers v Chitapa3, GILLESPIE J made a fundamental remark that when interpreting cause of action, the court must adopt an expansive approach in order to determine the real issues between the parties. Further, the learned author, Erasmus4, in relation to the requirements of lis pendens, postulated the following pertinent observations: “The requirement that the parties be the same does not entail that the same plaintiff should have sued the same defendant in both proceedings. The plaintiff in the first proceeding could, as a defendant in the second, raise the plea of his Lis pendens”. In my view, this present matter meets the test of lis pendens. Once the court is satisfied that the basic requirements of lis pendens have been fulfilled, it is now pertinent to 2 HMA14/20. 3 1996 (2) ZLR 261. 4 Superior court Practice, (2nd edition ) at D 1-280 HH 815-22 HC 3124/22 carefully assess the appropriate course of action which can be adopted by the court. Where the requirements of lis pendens to stay the proceedings. Staying of proceedings as a result of lis pendens cannot, as an entitlement, be claimed by the parties to the proceedings. The learned author, Erasmus propounded the following comments: "The court may stay an action on the ground that there is already an action pending between the same parties or their successors in title, based on the same cause of action, and in respect of the same subject matter. The defendant is not entitled as of right to a stay in such circumstances the court has a discretion whether to order a stay at not, and may decide to allow the action to proceed if it deems it just and equitable to do so or where the balance of convenience favours it. As the later proceedings are presumed to vexations, the party who instituted those proceedings bears the onus of establishing that they are not, in. This must be done by satisfying the court that despite all the elements of lis pendens being present, justice and equity and the balance of convenience are in favour of those proceedings being dealt with”. Further, Herbstein and van Winsen5, the learned authors, in relation to the defence of lis alibi pendens and the consequential discretion of the court emerging therefrom, remark as follows: “If an action is already pending between the parties and the plaintiff therein brings another action against the same defendant on the same cause of action and in respect of the same subject matter, whether in the same or a different court, it is open to such defendant to take the objection of lis pendens, i.e. another action respecting the identical subject matter has already been instituted, whereupon the court, in its discretion, may stay the second action pending the decision in the first action.” In casu, the dictates of justice and equity command that the present proceedings be stayed until the Constitutional Court case is finalised. Further, the scales for balance of convenience favours the staying of proceedings. Proceeding to determine this matter may run the risk of having a judgment that may end up being in conflict with the judgment of the Constitutional Court. This will force the parties to relitigate. A smaller wait in the form of removal of the matter from the roll would remedy this potential prejudice. I do not have any reason to believe that the respondent’s constitutional matter is frivolous and vexatious. ZISENGWE J, in the case of Chigami 2 Syndicate and 2 Ors (supra) the following significant comments: 5 The Civil Practice of the Superior Courts in South Africa 3rd ed at pp 269-270. HH 815-22 HC 3124/22 “The courts are loath to encourage the unnecessary duplication of cases for to do so amounts to encouraging a proliferation of cases across the country which cases emanate from the same cause of action between the same parties. It is untenable to support the proposition that where a party perceives a particular seat of the current seats of the High Court to be supposedly congested then he will be justified to take flight midstream to some perceived less congested seat. To accept that argument would by necessary implication mean a party would be justified (for instance) in mounting four simultaneous or successive applications and/or actions in each of the four geographical seats of the High Court and await which of them handles the same most expeditiously. If applicants’ position were pursued to its logical conclusion, what would stop the respondent, for instance, from rushing off to (say) Mutare to launch its own similar (albeit reverse) application there ostensibly premised on its perception that the wheels of justice turn faster there.” In the circumstances, the removal from the roll of the present matter is in the interest of justice. At the time of hearing this matter, the matter at the Constitutional Court was awaiting the decision which was reserved. Any prejudice contemplated by the applicant may be cured by a claim for holding over damages if the respondent loses the case which is pending at the Constitutional Court. Gill Godlonton and Gerrans, applicant’s legal practitioners. Samukange Hungwe Attorneys, respondent’s legal practitioners.