Kwinjo and Others v RM- Africa Property Consultants (Pvt) Ltd Rawson Properties and Others (150 of 2024) [2024] ZWHHC 150 (16 April 2024)

1 HH 150 - 24 HCH 726/24 TAKUDZWA KWINJO and TAPIWA KEVIN MACHINGAUTA and ALBERT NYAMADZAWO and TAWANDA MUUNGANIRWA and IGNATIUS HAPARARE and KUMBIRAI MAFUSIRE and AGNESS MADZIVA and PATRICK MUGEDE and SAMBRY MBAMBAIRA and DAVID PINDUKAI and PECKSON KAZINGIZI versus RM – AFRICA PROPERTY CONSULTANTS (PVT) LTD RAWSON PROPERTIES and HAYES CONSTRUCTION (PVT) LTD and SHERIFF OF THE HIGH COURT OF ZIMBABWE HIGH COURT OF ZIMBABWE MUCHAWA J HARARE; 8 February 2024 &16 April 2024 Urgent Chamber Application Z Dumbura, Mr T Chakurira, for the applicants Ms S Evans, for first and second respondents No appearance for third respondents MUCHAWA J: This is an urgent application whose cover states that it is an application for spoliation. The terms of the provisional order sought however tell a different story. These are set out below; HH 150 - 24 HCH 726/24 “TERMS OF FINAL ORDER SOUGHT 1. The application be and is hereby granted. 2. The first, second and third respondent be and are hereby ordered not to evict the defendants (sic) without a court order. 3. The first and second respondent are ordered to pay costs on legal practitioner and client scale. That the eviction of the applicants by the respondents INTERIM RELIEF GRANTED Pending determination of this matter, the applicant is granted the following relief – 1. Pending the completion of the applicants’ Application for Rescission of Default Judgement under case number HCH 726/24 the first, second and third respondent are ordered not to evict or demolish the applicants houses and homes namely stand numbers 17952 and 17953 (changed from 17951 and 17952 from the old diagram), 17945, 17956, 17944, 17955 (changing from 17954 on the old plan), 17750, 17943, 17947, 17949, 17785, 17951 Lot 12 Tynwald. 2. The applicants’ legal practitioners are granted leave to serve the order on the respondents.” BACKGROUND The applicants allege that they are owners and occupants of the stands identified above. They claim to have bought such stands from one Martin Sibindi and Pilo Kauma or from people who had bought from these two. Martin Sibindi is alleged to have been the owner of the remainder of Lot 12 Tynwald, Harare and he worked with Pilo Kauma in disposing of these. After purchasing the stands, the applicants claim to have taken occupation and developed the stands into the homes which they currently occupy. Martin Sibindi who was slow in effecting developments to the stands was allegedly sued by other stand owners to have him stopped from dealing with this place and a new developer was put in place. This is how first and second respondents came into the picture. It turns out that the applicants were sidelined in this process and the developers were promised payment with land belonging to the applicants. They are still to establish the case number for that matter. Following the order in their favour, the other holders of title in the other stands are said to have proceeded to evict Martin Sibindi from plot 12 and then sued Pilo Kauma for eviction from the stands sold to the applicants under case number HCH 3424/20. The order was granted and the first and second respondents instructed the third respondent to evict them. Such eviction was set to happen on 6 February 2024. This is what spurred the applicants into action. In opposition to this application the first and second respondents have raised five points in limine as follows: (i) (ii) That the matter is not urgent That the certificate of urgency is defective HH 150 - 24 HCH 726/24 (iii) (iv) (v) That there is fatal misjoinder of Pilo Kauma That there is no proper application to respond to That there are no founding affidavits by the second to eleventh applicants. I heard the parties on these points and reserved my ruling. This is it. WHETHER THE MATTER IS URGENT Ms Evans submitted that the matter is not urgent. She referred to Annexure B to their notice of opposition which is alleged to be communication between first applicant and respondent’s representative. In that communication which occurred from 14 June 2021, the first applicant is said to have been in contact discussing the possibility of buying stands 17952 and 17953. It is said this was because he must have heard of the matter HC 3424/20 involving the respondents and Pilo Kauma who had sold to him. By initiating such communication, the first respondent is alleged to have known that the day of reckoning was coming but he did nothing to avert it. It is argued that the first applicant did not act when the need to act arose and this is therefore self-created urgency. I was referred to the case of Kurarega v Registrar General & Anor 1998 (1) ZLR 1888 and Tonderai Byron Rice v Soneni Ndlovu & Anor HB 116/22 for this. Furthermore, it is contended that the applicants were well aware of the action against Pilo Kauma but sat on their laurels and only approached the court more than two years later so the matter is not urgent. Mr Dumbura asked the court not to consider Annexure B relied on by the respondents as it has not been authenticated and in fact that communication is with one Ashdown Kwinjo and not Takudzwa Kwinjo. On the contrary, he argued that the Annexure reinforces the fact that the respondents were aware of the existence of the applicants in the area but they elected not to join them in the proceedings for evicting Pilo Kauma. It was also said that the communication does not show who Ashdown Kwinjo was communicating with. In support of the application being urgent, Mr Dumbura pointed to the application for rescission of judgment pending before the curt and that the constitution stops any arbitrary eviction from one’s home. He emphasized that from the pictures tendered by the respondents, they were aware that there were people developing stands and they should therefore have served them. HH 150 - 24 HCH 726/24 The attempt to rely on WhatsApp communication as Annexure B was alleged to be meritless as the Rules of Court make clear that for a party to be presumed to be aware of any process, the Sheriff must have served them. A perusal of Annexure B relied on by the respondents shows that all the criticisms raised by the applicants are merited. The name Kwinju Ashdown appears. The first applicant’s names are Takudzwa Kwinjo. It is unclear how the court can be asked to attribute this communication to the first applicant. It is unclear who that person is allegedly communicating with. This Annexure is not authenticated too. It is therefore of no value to me. In the seminal case of Kurarega v Registrar General & Anor 1998 (1) ZLR 188 the learned judge said the following about urgency: is “What constitutes urgency is not only the imminent arrival of the day or reckoning. A matter also urgent if at the time the need to act arises, the matter cannot wait, urgency which stems from deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules.” In Documents Support Centre P/L v Mapuvire 2006 (2) ZLR 240 @ 244 C – D MAKARAU JP (as she then was) put it thus: “---urgent applicants are those where if the court fails to act, the application may well be within their rights to dismissively suggest to the court that it should not bother to act subsequently as the position would have become irreversible and irreversibly so to the prejudice of the applicant.” In this case the applicants have placed before the court evidence that they are in a precarious position as eviction and demolition of their structures is looming. They were not part of case HCH 3424/20 which resulted in the eviction order against Pilo Kauma. They were not cited at all nor does the order show that it is evicting Pilo Kauma and all those claiming occupation through him. On 1 February 2024 they learnt with shock that the first and second respondents had instructed the third respondent to evict them and demolish their homes. They have attached the order against Pilo Kauma in HCH 3424/20. Further, they have also attached Annexure C1 – 12 which emanates from the third respondent and advises them that they are going to be evicted on 6 February 2024. This application was filed on 3 February 2024. It cannot be said that the applicants deliberately or carelessly abstained from acting when the need to act arose. They acted promptly. What is looming is eviction of the applicants and demolition of the houses they occupy and claim a right to. HH 150 - 24 HCH 726/24 If the court does not intervene, then the applicants may very well say that the situation would have become irreversible and there would be no need to act. In the circumstances, I believe this is the kind of case where a party’s plea to jump the queue should be allowed. This matter is therefore urgent. WHETHER THE CERTIFICATE OF URGENCY IS DEFECTIVE Ms Evans submitted that the certificate of urgency is defective as it did not address crucial questions of urgency. It is impugned for being generalized and failing to state clearly when the need to act arose. The legal practitioner in question is said to have failed to apply his mind to the issue. In support of these averments reference is made to the cases of Chidawu & Ors v Shah & 4 Ors SC 12/13 and General Transport and Engineering (Pvt) Ltd & Ors v Zimbank Corp (Pvt) Ltd 1998 (2) ZLR 301. It was prayed that the mater not being urgent, it be struck off the roll of urgent matters. Mr Dumbura referred the court to paragraph 8 of the certificate or urgency to say that the certifying legal practitioner correctly formed an opinion that the matter was urgent. Furthermore, paragraphs 23 and 24 of the founding affidavit are pointed to as adequately addressing the question of urgency. In the case of Chidawu & 3 Ors v Shah & 4 Ors supra it was held that in certifying a matter as urgent, a legal practitioner is required to apply his or her mind to the circumstances of the case and reach an independent judgment as to the urgency of the matter. This position was initially laid out in General Transport and Engineering (Pvt) Ltd & Ors v Zimbank Corp (Pvt) Ltd supra. Therein it was stated that a certifying legal practitioner should not abuse his role but apply his own mind and judgment to the circumstances and reach a personal view that he can honestly pass to a judge. It appears to me that the certifying legal practitioner did peruse the documents placed before him including the agreements of sale, the order evicting Pilo Kauma which did not cite the applicants nor include the phrase that those being evicted included all those claiming eviction through Pilo Kauma. This is something that does not appear in the founding affidavit and it shows that the certifying legal practitioner applied his mind to the matter before him. He makes pertinent observations relating to urgency which include that the first and second respondents have no order against the applicants that allows their eviction. He notes too that such eviction without a court order and without the applicants having been heard would be unlawful and unconstitutional and against the rules of natural justice. HH 150 - 24 HCH 726/24 It is further stated that evicting and demolishing of the applicants’ houses will make the court application for rescission academic. A further effect pointed out is that as this is the rainy season the applicants’ property will be damaged and their children will be exposed to harsh conditions yet they never got any notice. I accordingly find that certificate of urgency is not defective. WHETHER THERE IS FATAL NON-JOINDER OF PILO KAUMA Ms Evans submitted that the applicants allegedly acquired personal rights from Pilo Kauma and there are no title deeds to prove ownership. The first, third, fourth and eleventh applicants who have not attached any agreements of sale to the application are said not to have produced any proof to support their rights to the stands claimed. It is claimed that in the circumstances, Pilo Kauma should have been part of the proceedings as anyone can produce an agreement of sale. Ms Evans said that the matter may not proceed until Pilo Kauma is joined to the proceedings. Mr Dumbura made reference to rule 32 (11) of the High Court Rules, 2021 which provides that a matter shall not be defeated by reason of non-joinder. It was conceded that there is indeed non joinder of Pilo Kauma as a result of the urgency of the matter as the notice of eviction was served on 1 February 2024 and the application was uploaded on 3 February 2024. Furthermore, it was argued that the application is hinged on s 74 of the Constitution and it does not matter whether Pilo Kauma is joined to the matter. It was also averred that there is no dispute regarding where the applicants got their personal rights from, therefore his joinder is not really necessary. Ms Evans pointed out that they are only hearing for the first time that this application is made in terms of s 74 of the Constitution as this is not in the founding affidavit. Rule 32 (11) provides that: “No cause or matter shall be defeated by reason of the misjoinder or non-joinder of any party and the court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.” Is the non-joinder of Pilo Kauma fatal to these proceedings. In Cilliers AC, Loots C and Nel HC Herbstein and van Winsen, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa (5th ed Juta + Co. Ltd, Cape Town, 2009) Vol 1 at p215, they explain non-joinder as follows: HH 150 - 24 HCH 726/24 “A third party who has, or may have a direct and substantial interest in any order the court might make in proceedings or if such an order cannot be sustained or carried into effect prejudicing that party, is a necessary party and should be joined in the proceedings, court is satisfied that such a person has waived the right to be joined _ _ _ in fact, person is a necessary party in the sense that the court will not deal with the issues joinder being effected and no question of discretion or convenience arises.” without unless the when such a without a The meaning of direct and substantial interest is explained at pages 217 to 218 as follows: “A “direct and substantial interest” has been held to be “an interest in the right which is the subject matter of the litigation and not merely a financial interest which is only an indirect interest in such litigation.” It is a ‘legal interest in the subject matter of the litigation, an indirect commercial interest only.’ The possibility of such an interest if sufficient, not necessary for the court to determine that it in fact exist. For joinder to be parties to be joined must have a direct and substantial interest not only in the subject the litigation but also in the outcome of it.” excluding and it is essential, the matter of What Ms Evans seems to be saying is that the applicants have not placed adequate evidence before the court to prove their case in the form of agreements of sale. She is not saying that Pilo Kauma is a necessary party in the sense that the court will not deal with the issues without a joinder being effected. He is not alleged to be one who has a direct and substantial interest in the order sought. It is not alleged that such an order cannot be sustained or carried into effect without prejudicing Pilo Kauma. In fact there is an extant order evicting Pilo Kauma from the property in question. The terms of the interim order sought require a stay of eviction and demolition of the applicants from the properties. Indeed, it would have been nice if Pilo Kauma was joined to the proceedings but his non-joinder cannot be said to be fatal. It appears from the notice of opposition that the respondents are aware of the role of Pilo Kauma in this matter. This is a matter which cannot be defeated by the non-joinder of Pilo Kauma. I therefore find no merit in this point in limine. WHETHER THERE IS A PROPER APPLICATION BEFORE THE COURT Ms Evans submitted that the applicants’ papers are all mixed up with the face of the application stating that it is an application for spoliation whilst the rest of the pages speak to an application for stay of execution. A further criticism is that in all the papers they have failed to satisfy either the requirements of an application for spoliation or that of stay of execution. It is prayed that this matter be dismissed therefore. Mr Dumbura referred the court to the case of Ahmed v Docking Station Safaris t/a CC Sales SC 70/18 to argue that what is important is what is contained in the founding affidavit. He conceded that there was indeed a patent error in the cover of the application. HH 150 - 24 HCH 726/24 This issue is easily disposed by reference to the case of Ahmed v Docking Station Safaries supra. It was held therein as follows: “In cases where the headings on the cover of an application tell one thing and the contents of the founding affidavits tell another, the nature of the application that is before the court is determined by the contents of the founding affidavit and not the headings on the cover of the application.” In the founding affidavit before me, in paragraphs 5 and 6, the first applicant states that this is an urgent chamber application for stay of eviction and or execution pending the application of rescission of default judgment which was made under case HCH 726/24. It is also said to be an application to stop the eviction of the applicants by the respondents from their homes without a court order nor affording the applicants an opportunity to be heard. The question of whether or not the requirements for a stay of execution have been met is to be determined when the merits of the case are dealt with. It is my finding therefore that there is a proper application for stay of execution despite what the cover page reflects. WHETHER THERE ARE PROPER AFFIDAVITS IN SUPPORT OF THE SECOND TO THE ELEVENTH APPLICANTS’ AFFIDAVITS Ms Evans submitted that the so-called founding affidavits attached by the second to the eleventh applicants do not relate to the personal facts of each applicant. All they are said to have said is a general statement that they allegedly purchased stands on different dates and their sellers were different. The blanket founding affidavit of the first applicant is said to be inadequate as this fails to establish each claim as the averments are just hearsay evidence. The first, third, fourth and eleventh applicants are alleged to have failed to attach any agreements of sale therefore failing to prove their allegations. It is prayed that the matter be dismissed on these grounds or that it be found that the second to eleventh applicants are not before the court. Mr Dumbura stated that this is a voluminous application and in paragraph 19 of the founding affidavit of the first applicant they refer to the application under case number 3424/20 which details how each applicant acquired and developed their stands. This is what paragraph 19 says: “We immediately instructed our legal practitioners to file a rescission of default judgment for case HCH 3424/20. Find the same attached as Annexure D. We are affected by the order and we seek to have it rescinded. For finer details, and the avoidance of repetition, on details and how each of us has developed our stands please refer to case HCH 3424/20 which is attached hereto.” HH 150 - 24 HCH 726/24 Each of the second to eleventh applicants have deposed to what they have called a founding affidavit and not supporting affidavit. The short averment is as follows: “1. I depose this affidavit in my personal capacity and as the 2 nd applicant in this matter. I do confirm that I have read the first applicant’s founding affidavit. I fully associate the averments contained therein. I adopt the averments as if they have been specifically made for me.” Rule 58 (4) of the High Court Rules, 2021 provides that an affidavit filed with a written application shall be made by the applicant or respondent as the case may be, or by a person who can swear to the facts contained therein. This is what puts a party before the court. The second to the eleventh applicants have placed affidavits before the court and joined issue with the first applicant. They are therefore properly before the court. The question of the adequacy of their affidavits in propping their claims is one to be decided when considering the merits of the case. I therefore find that there is no merit in this last point in limine. Costs follow the cause. Accordingly l order as follows: 1. The points in limine are dismissed for lack of merit. 2. The matter shall proceed to be heard on the merits. The Registrar is directed to set the matter down for hearing at the earliest possible date. 3. The first and second respondents are to pay costs on an ordinary scale. MUCHAWA J:……………………………….. Zimudzi & Associates, applicants’ legal practitioners Mabuye Zvarevashe – Evans Legal Practitioners, first and second respondent’s legal practitioners