Nyoni v Ngoma (HC 102 of 2003; HC 442 of 2003; XREF HC 442 of 2003) [2004] ZWBHC 109 (1 September 2004)

Judgment No. HB 109/2004 Case No. HC 2692/03 X-Ref HC 442/03, HC 102/03 SIMEON NYONI Versus ZELIPHA NGOMA IN THE HIGH COURT OF ZIMBABWE NDOU J BULAWAYO 11 DECEMBER 2003 & 2 SEPTEMBER 2004 S Mlaudzi for applicant C P Moyo for respondent Chamber Application NDOU J: After a chequered history of litigation over a number of years the applicant withdrew his claim against the disputed property, being stand 3205 Emakhandeni, Bulawayo The case between the parties has its origin in the Bulawayo Small Claims Court, SCC-507-00. In HC 2815/00, the applicant sought a review by this court of the decision of the Small Claims Court. In HC 3016-00 the applicant was granted a provisional order. In HC 2868/02 this order was dismissed for want of prosecution in terms of order 32 rule 236(3)(b) of the High Court Rules. In HC 102/03 the respondent applied for the dismissal of the application in HC 2815/00. In HC 442/03 the applicant sought rescission of the orders in HC 2868/02 and HC 102/03. In HC 442/03 the applicant sought the same remedy as in HC 442/303 but he also sought in addition, stay of execution of his eviction from the disputed property. The application in HC 442/03 was withdrawn with costs on 5 November 2003. Thereafter, the applicant, through his legal practitioners made an undefined offer to purchase the disputed property. The respondent gave the applicant the purchase price for the property. She also gave the applicant 1 December 2003 as the last date of acceptance of the purchase price. The applicant did not communicate with the HB 109/04 respondent about her offer. Instead, on 3 December 2003 he filed this application seeking a provisional order in the following terms- “Final order sought 1. That the execution/ejectment be and is hereby suspended until the respondent pay applicant the sum in excess of $101 570,06 being compensation for improvements on house number 3205 Emakhandeni. 2. That if respondent fails to compensate applicant for improvements execution/ejectment be and is hereby suspended until the claim for improvement is adjudicated upon. 3. That respondent pays the costs of this action. Interim Relief granted 1. That the respondent be restrained from evicting/ejecting applicant from house 3205 Emakhandeni unless he [sic] has paid him the sum in excess of $101 570,06 being compensation for improvement and the loan repayments, alternatively, until the claim for compensation is adjudicated upon.” The applicant, prior to the filing of this application did not demand payment of the sums stated in his above prayer. It is strange why he went on to file an application even before he claimed the said amount. By saying “the sum in excess of $101 570,06” the applicant is claiming an indeterminate amount. The applicant’s reasons for launching this matter is his fear that the respondent may relocate to Zambia before making good the said amount. He says that he has a lien over the property. Whilst not conceding that she is indebted to the applicant to the tune of $101 570,06 the HB 109/04 respondent has offered to pay him this amount to get rid of him. The property has been sold for $30 million and the amount claimed by the applicant is negligible. Does the applicant have lien as a weapon of defence against eviction by the respondent. I believe that the applicant has a salvage and improvement lien in mind. The basis of salvage and improvement liens is the owner’s enrichment. In casu, it is being averred that the value of the property has increased as a result of the applicant having expended money on it – Brooklyn House Furnishers (Pty) Ltd v Knoctze & Sons 1970(3) SA 264(A). This lien is recognised on the basis of unjustifiable enrichment of the owner at the expense of one who has incurred expenditure in preserving or usefully improving the property in question – Wynland Construction v Ashley-Smith en Andere 1985(3) SA 798 (A). The applicant, as a bona fide possessor, has a right to compensation, ius retentionis, pending compensation – Voet 6.1.36 and United Building Society vs Smookler’s Trustees and Golombick’s Trustees 1906 TS 623 at 632. However, the owner cannot be compelled to accept willy-nilly any improvement to his property. The possessor has an enrichment lien which entitled him to, remain in possession of the improved thing until he is compensated for his necessary or useful expenses – Fletcher and Fletcher v Bulawayo Waterworks Co Ltd 1915 AD 636. In light of the offer to pay the $101 570,06 by the respondent it is no longer necessary for me to determine whether the expenses incurred by the applicant were necessary expenses (impensae necessariae), useful expenses (impensae utiles) or luxury expenses (impensae voluptuariae). Because of this liberal attitude of the respondent I think it is necessary to grant a final order in the interest of justice. HB 109/04 1. It is ordered that the eviction or ejectment of the applicant from stand number 3205 Emakhandeni be and is hereby stayed pending the payment of the sum of $101 570,06 being compensation for improvements on the said property. 2. Each party to bear own costs. Samp Mlaudzi & Partners applicant’s legal practitioners Majoko & Majoko, respondent’s legal practitioners