Steenbok and Another v Zviitwa (813 of 2022) [2022] ZWHHC 813 (16 November 2022)

1 HH 813-22 CIV ‘A’ 196/22 SAUL COURTNEY STEENBOK and TAWANDA HAMUSI versus EDDIE ZVIITWA HIGH COURT OF ZIMBABWE TSANGA & MAXWELL JJ HARARE, 6 October & 16 November 2022 Civil Appeal J B Matandire, for appellants J Gusha, for respondent MAXWELL J On 6 October 2022, an appeal against the judgment of the Magistrates Court sitting at Harare, handed down on 22 June, 2022, under case number 1349/22 was upheld with costs. Reasons for the decision have been requested. These are they. Applicant, (respondent herein) applied for spoliation in the court below. He sought an order that he be authorized to repossess his vehicle, namely, a Toyota VX Registration number AFK 3098 from the respondents (appellants herein). He also sought costs of suit on a legal practitioner and client scale. Applicant alleged that he had been despoiled of his motor vehicle by the first respondent without his knowledge or consent and only discovered that the vehicle was in the possession of the second respondent who is not known to him. The application was opposed by the first respondent only who raised a point in limine that there was material non-disclosure of facts by the applicant. He submitted that he was given the motor vehicle by the applicant as a lien for securing a Toyota Prado VX which he had purchased from him and was to be imported from South Africa. He alleged that he paid a total USD40 000.00 and R21 000.00 as deposit. Applicant denied ever entering into an agreement of sale with the first respondent in respect of a motor vehicle or receiving any payment for it. First respondent also alleged that there were disputes of HH 813-22 CIV ‘A’ 196/22 facts but the lower court was of the view that the disputes of fact could be resolved on the papers before it. The points in limine were dismissed on the basis that there was no agreement of sale produced before the court. The lower court analysed the requirements for spoliation to be granted, namely, that the applicant was in peaceful and undisturbed possession of the motor vehicle, and, that he was deprived of that possession unlawfully. The lower court referred to the following cases, • Augustine Banga & Anor v Solomon Zawe & 2 Others SC 54/14 in which it was stated that the lawfulness of the possession challenged is not an issue in spoliation proceedings, • Kama Construction (Pvt) Ltd v Cold Comfort Cooperative and Others 1999 (2) ZLR 19 (SC) in which the requirements for a mandament van spolie were set out, that (1) the applicant was in peaceful and undisturbed possession of the thing, and (2) he was unlawfully deprived of such possession, and, • Botha and Anor v Barnett 1996 (2) ZLR 73 (S) in which “unlawful dispossession” was said to mean that the Respondent deprived the applicant of possession “forcibly and wrongfully against his consent.” The lower court also highlighted the defences to an application of this nature, which are, • a denial of the facta probanda, that restoration is impossible, • • that too much time had lapsed, and, a counter-spoliation. It concluded that there was no evidence to show that the applicant delivered the motor vehicle to the first respondent as alleged. It was satisfied that the applicant had managed to prove on a balance of probabilities that he was in peaceful and undisturbed possession and had been dispossessed of the motor vehicle unlawfully without his consent. It observed that the respondents had not raised any of the recognizable defences. It granted spoliation with costs on an ordinary scale. Appellants were aggrieved and noted an appeal on the following grounds. “1. The court a quo erred at law in assuming jurisdiction in respect of a matter in which the object in issue was a land cruiser VX 200 series worthy (sic) USD 54 000.00, which exceeds the monetary jurisdiction of the Magistrates Court by more than five times. HH 813-22 CIV ‘A’ 196/22 2. The court a quo erred and misdirected itself at law in granting a spoliation order in circumstances where there were material disputes of fact in relating to how the vehicle ended up being possessed by appellant. 3. The court a quo erred at law by granting a spoliation order in circumstances where the time that had lapsed with the vehicle in issue being in possession and control of the appellant, with respondent not doing anything to retrieve it from him was approximately a year, which shows that respondent consented to appellant’s possession.” Appellants prayed for the setting aside of the decision of the lower court and its substitution with an order dismissing the application for a spoliatory order with costs. Appellants filed their heads of argument on 3 August 2022 and served them on respondent’s Legal Practitioners on 12 August, 2022. In terms of Rule 95 (19), respondent was obliged to file his heads of argument within ten days of receiving appellants’ heads of argument. In the event that the appeal was set down for hearing less than fifteen days after the respondent received the appellants’ heads of argument, the respondent would have been obliged to file his heads of argument as soon as possible and in any event not later than four days before the hearing of the appeal. Respondents filed his heads of argument on 4 October, 2022, two days before the hearing of the appeal. At the hearing of the appeal, Mr Busha made an oral application for condonation of late filing of heads of argument. He submitted that Mr Gurira who was handling the matter was ill. He further submitted that the delay was not willful and should therefore be condoned. Mr Matandire opposed the application indicating that the dies induciae for the respondent to file his heads of argument expired on 28 August 2022. He also indicated that the notice of set down was served on 31 August, 2022, and respondent did not seek condonation of late filing of the heads of argument. Neither did he file within four days of the date of hearing. He submitted that the heads of argument filed by the respondent are invalid as they were filed out of time. The application for condonation was not granted. A litigant who realizes that he has not complied with the requirements of a rule must, as soon as he becomes aware of the noncompliance, apply for condonation of the noncompliance with the rules within a reasonable time. The basic requirements to be satisfied for an application for condonation to succeed are well known as outlined in the case of Friendship v Cargo Carriers Ltd & Anor SC 1/13. They include the reasonableness of the explanation for the delay. An explanation given cursorily on the bar can hardly provide sufficient reason for the court to grant the indulgence sought. No facts were placed HH 813-22 CIV ‘A’ 196/22 before the court to enable it to reach a decision on the reasonableness or otherwise of the cause of non-compliance. The submission that counsel dealing with the matter was ill was bare and not sufficient. There was no indication of when the illness started. The non-compliance stretches from 26 August, 2022 and there was no explanation covering the period from then to when heads of argument were filed on 4 October, 2022. There was no explanation of why condonation was not sought after the notice of set down was received on 31 August, 2022. There was no explanation as to why the heads of argument were not filed at least within four days of the date of set down. It is trite that if a litigant does not seek condonation as soon as possible, he should give an explanation for the delay in seeking condonation. See Viking Woodwork v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (S). Condonation is not granted for the mere asking. The applicant must satisfy the court that there is good cause to excuse the non-compliance. No good cause was shown in this case. Respondents’ heads of argument were therefore improperly before the court and were not considered. The appeal proceeded as unopposed. On the first ground of appeal, appellants submitted that the lower court had no jurisdiction to deal with the matter. They referred to section 11 (1) (b) (i) of the Magistrates Court Act [Chapter 7:10] which states “11 Jurisdiction in civil cases (1) Every court shall have in all civil cases, whether determinable by the general law of Zimbabwe or by customary law, the following jurisdiction— (a) …… (b) with regard to causes of action— (i) …….. (ii) in actions in which is claimed the delivery or transfer of any property, movable or immovable, where the value of such property does not exceed such amount as may be prescribed in rules, whether in lieu of or in addition to any other claim, which shall include a claim for the cancellation of any agreement relating to such property; (iii)…..” Appellants submitted that in terms of the Magistrates Court (Civil Jurisdiction) (Monetary Limits) Rules, 2020, the monetary jurisdiction of actions in the above cited section is ZWL 3 000 000 00. They also submitted that the value of the motor vehicle in question exceeds that by far. Appellants’ view cannot be correct. An application for a mandament van spolie is not about the delivery or transfer of property. Delivery and transfer suggest situations in which title is passing. HH 813-22 CIV ‘A’ 196/22 The cases referred to by counsel for Appellants deal with issues of ownership of the property. In Mateure v Chidumwa HB 156/16, Appellant sought a declaratory order that he is the lawful owner of the property in contention. In Feremba v Matika HH 33/2007 the respondent had issued summons for the distribution of certain property. Dube v Maphepha Syndicate & Ors 2009 (1) ZLR 29 concerned an eviction from a mining claim. Appellants did not cite any case on spoliation to buttress their allegation that the value of property is material in spoliation proceedings. In casu, the ownership of the vehicle was not in issue before the court a quo. The lower court was dealing with an issue of possession and therefore had jurisdiction to deal with the matter. The first ground of appeal had no merit. In the second ground of appeal appellants allege that there were disputes of facts and the lower court ought to have dismissed the application for spoliation. They stated that respondent did not state the material time when he was dispossessed as alleged. Further that he did not state where and how he was dispossessed. First appellant had submitted before the lower court that he had been in possession of the vehicle for close to a year after consensual delivery of it as a lien. Indeed Respondent’s founding affidavit did not state where and how dispossession occurred. He simply stated that;- “5. The first respondent took my vehicle without my knowledge and consent. The first respondent had no legal right to do as he did and in fact upon establishing that he had taken possession of my vehicle where I had left it, I embarked on a search of his whereabouts……” In the opposing affidavit, first appellant had stated the following; - “13. This is so because the vehicle was peacefully and lawfully delivered to the first respondent by the applicant to be lawfully held as a lien and later for his ownership, ….. ……………. 13.5 That the applicant failed to deliver the Toyota Prado VX as agreed and he gave me his Toyota Landcruiser VX 200 as a lien and a security guaranteeing that he shall perform in accordance with our Toyota Prado VX sale and purchase agreement without fail. 13.6 That he later observed that he cannot perform his obligation as agreed he being in mora, which mora was to him incurable, and offered that I purchase the Toyota Landcruiser VX 200 already in my possession……..” HH 813-22 CIV ‘A’ 196/22 There were two competing versions of how the vehicle ended up in first appellant’s possession. The lower court said it took a robust approach and decided to resolve the dispute on the papers. It merely dealt with the issue of whether or not a written agreement of sale had been established. It did not deal with the issue of whether or not there was an oral agreement. It also did not deal with the issue of where and when the dispossession had taken place or how the vehicle ended up being in appellants possession. Two copies of proof of bank transfer payment on behalf of first appellant to respondent of R16 00.00 and R5000.00 on 21 and 26 July 2021 are on record. First appellant submitted that the payment was part of the deposit for the vehicle. Respondent acknowledged receiving the money but alleged that it was for a different purpose. Clearly there were disputes of facts. The second ground of appeal succeeded on that basis. In the third ground of appeal, appellants allege that spoliation ought to have been denied as the time that had lapsed with the vehicle in issue being in their possession and control, with respondent doing nothing to retrieve it, was approximately one year, which shows that respondent consented to first appellant’s possession of the vehicle. This ground was based on the fact that first appellant claimed to have been given the vehicle in July 2021 as a lien. In all his submissions in the lower court, respondent shied away from disclosing the date on which the alleged unlawful dispossession occurred. There is a letter from first appellant’s legal practitioners on page 34 dated 28 January, 2022, in which it is stated that respondent had delivered the vehicle to first appellant as surety and had subsequently offered to transfer it to him on payment of US$15 000.00. In the same letter a refund of US$40 000.00 and R21 000.00 was made failing which respondent was supposed to offer something of value. The response to that letter was written on 2 March 2022. Respondent did not respond to the issue of the refund claimed. He disputed entering into a surety agreement and confirms that the vehicle was no longer in his possession by demanding its immediate and unconditional possession. Without evidence to the contrary, the lower court ought to have made a finding that the vehicle got into first appellant’s possession in July 2021. The court application for spoliation was filed on 28 April 2021. The lower court seems not to have considered the extensive submissions in the appellants’ heads of argument on this issue. If it had, it would not have concluded that the respondent did not manage to raise the defences it had stated because the defence of lapse of time was being raised. HH 813-22 CIV ‘A’ 196/22 In addition, the issue of consent to deprivation was being raised. As stated in Botha & Anor v Barnett (supra) it was for respondent to show that he had not consented to being deprived of possession. Such consent may be implied from the conduct of the possessor both before and after the removal of the property. If the lower court had considered the time lapse from deprivation of possession to filing of the application for spoliation, it would have made a finding that respondent had consented to the deprivation. Even if July 2021 was not considered, the fact that from 28 January 2022, respondent no longer had possession but only approached the court in April 2022 militates against him. The third ground of appeal succeeded on that basis. For the above reasons the appeal was upheld with costs. TSANGA J…………………………….. Agrees Maja and Associates, appellants’ legal practitioners. Gurira & Associates, respondent’s legal practitioners.