S v Ncube (CRB K 199 of 2004) [2004] ZWBHC 110 (2 September 2004)

Judgment No. HB 104/2004 Case No. HC 578/03 LAIZAH MAHLANGU Versus MR C NDLOVU And MRS Z NDLOVU And MRS NCUBE And STERLING PROPERTIES P/L And MRS WILLIAMS And MESSENGER OF COURT IN THE HIGH COURT OF ZIMBABWE NDOU J BULAWAYO 9 AUGUST 2003 AND 2 SEPTEMBER 2004 G Ncube for applicant N T Mashayamombe for the respondents NDOU J: The applicant seeks the confirmation of a provisional order in the following terms- “(a) The 5th respondent be and is hereby ordered to stay the eviction of the applicant from house umber 5 Donovan Road, Northend, Bulawayo. (b) The right of first refusal vis-à-vis the applicant be and is hereby declared not to have been properly exercised. HB 104/04 (c) The sale agreement between 1st and 2nd respondents and Mr L L Davids be and is hereby cancelled. (d) The house number 5 Donovan Road, Northend, Bulawayo be offered to the applicant for sale in the sum of $2 500 000,00. (e) Cost of suit against the respondents only if the [sic] oppose the granting of this order.” Mr L L Davids was in relationship with the applicant from 1995, which the applicant avers culminated in customary union. Mr Davids was the owner of the disputed property known as 5 Donovan Road, Northend, Bulawayo. Prior his departure to the United Kingdom, Mr Davids approached the fourth respondent with a mandate to dispose of the said property for the best possible price. It is common cause that the property was to be sold subject to the applicant having been given the right for the first refusal. It is beyond dispute that various offers were made for the property and on each occasion the applicant was offered her right but was unable to meet the price offered by a third party. The property was subsequently sold to the first and second respondents who are duly represented by virtue of a power of attorney by the third respondent. The property was registered in the joint names of the first and second respondents on 8 August 2002 under deed of title 2536/02. On assuming title the first and second respondents notified the applicant to vacate the premises and subsequently issued summons in the Bulawayo Magistrates’ Court for the eviction of the applicant under case number 14552/02. They obtained judgment entitling them to evict the applicant. This judgment still stands to date. Through the Messenger of Court, the first and second respondents made several futile attempts to evict the applicant. These attempts foiled by the applicant on through the intervention HB 104/04 of the Affirmation Action Group, Bulawayo. The above mentioned order of the Magistrates’ Court was in favour of the first and second respondents ordering the eviction of the applicant from the disputed property. The applicant unsuccessfully applied for the rescission of the said judgment. She, however, did not appeal against that judgment. Instead she brought this application in this court raising essentially the same issues and facts that were decided upon by the Magistrates’ Court. As alluded to, the order of the Magistrates’ Court has not been challenged or assailed by the applicant either by way of appeal or review processings. As things stand the order of the Magistrates’ Court and the agreement between Mr Davids and first and second respondents still stands. It is an accepted principle of law that, in general, all orders of court, whether correctly or incorrectly granted, have to be obeyed until they are properly set aside – Culverwll v Beira 1992(4) SA 490 (W) and Macheka v Moyo HB-78-03. The first and second respondents are, therefore, entitled to obtain satisfaction from the order in their favour – Van Dyke v Du Toit en’n Andere 1993(2) SA 781 (O). This is so unless the court exercises its discretion judicially and suspends execution – Super Sales & Upholsters (Pty) Ltd v Lawton 1974(3) SA 264 (R) and E O du Toit (Pty) Ltd v Windhoek Municipality 1976(3) SA 818 (SWA). In casu, if the applicant is not satisfied by the decision of the Magistrates’ Court the cause open to her is appeal properly. This cannot be done through the backdoor under the guise of a court application. In any event there is a patent dispute of fact on whether the first and second respondents were bona fide purchasers and whether the applicant was given an opportunity to exercise her right of first refusal. It is doubtful whether these can be resolved by the adoption of a robust approach. These HB 104/04 disputed of facts cannot be resolved on affidavit and I have to exercise my discretion as to the future course of these proceedings and I may dismiss the application with costs, refer for oral evidence or refer the matter to trial – Lalla v Spafford NO & Ors 1974 (1) SA 191 (R); Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949(3) SA 1155(T); Adbro Investment Co. Ltd v Minister of Interior 1956(3) SA 345(A). I agree with the respondent’s legal practitioner that these disputes of fact cannot be resolved on the papers. The applicant has enjoyed legal representation throughout, something that the majority of litigants can only dream of. The respondents’ legal practitioner has indicated the material disputes of facts but for some reason unknown to me, the application procedure was persisted with. It is clear that the applicant should have realised when launching the application that a serious dispute of fact was bound to develop. When one considers what I have already highlighted on the failure by the applicant to appeal against the decision of the Magistrates’ Court, one is left with no option but adopt the drastic option of dismissal of the application with costs – Seloadi & Ors v Sun International (Boputhatswana) Ltd 1993(2) SA 174(B) at 191H-192D and Conrodie v Kleingeld 1950(2) SA 594(O). I accordingly discharge the provisional order with costs. Majoko & Majoko applicant’s legal practitioners Ben Baron & Partners, respondents’ legal practitioners