Blessed Ncube v Similo Magumura and 2 Others

### Preamble
1
HB 150/21
HC 1081/21
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BLESSED NCUBE

Versus

SIMILO MAGUMURA

And

THE OCCUPIER 79 WOODLANDALE, UMGUZA

And

MR. U.P. MPOFU N.O.

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 4 AUGUST 2021 & 11 AUGUST 2021

Urgent application

Ms. S. Sauramba, for the applicant

1st and 3rd respondents in person

DUBE-BANDA J: 	This is an urgent application. This application was lodged in this court on 24th July 2021. It was placed before me and I directed that it be served on the respondents together with a notice of set down for 30th July 2021. The application is opposed by the 1st respondent. 3rd respondent appeared in person, not to oppose the application, but to explain reasons behind certain decisions that he made which have a bearing on this matter. Applicant seeks an order couched in the following terms:

Terms of the final relief sought

That you show cause to this Honourable Court why a final order should not be made in the following terms:

It be and hereby ordered that applicant is the lawful occupier of number 79 Woodlandale, Umguza in terms of the Certificate of Occupancy granted to her by Umguza Rural District Council.

1st and 2nd respondents shall vacate number 79 Woodlandale, Umguza forthwith failing which the Sheriff of Zimbabwe is authorised to evict them from the said address.

3rd respondent be and hereby barred from alienating or allocating number 79 Woodlandale, Umguza to any third party.

Costs of suit to be paid by the 1st, 2nd and 3rd respondents.

Interim relief sought

Pending the finalisation of this matter, applicant is granted the following relief-

1st and 2nd respondent be and are hereby barred from commencing or continuing with developments as the case may be on number 79 Woodlandale, Umguza on the strength of the purported allocation by the 3rd respondent.

Service of provisional order

Service of this provisional order and application together with all the supporting documents shall be effected by the applicant or applicant’s legal practitioners.

Factual background

This application will be better understood against the background that follows. The applicant was allocated stand 79 Woodlandale, Umguza (stand). She was issued with a certificate of occupation in respect of the stand. The facts show that she abandoned the stand for a period approximating two years. While applicant was away, 3rd respondent, the village headman allocated the same stand to 1st respondent. In January 2021, applicant went to the stand and found that 1st respondent had put a perimeter fence around the stand, she removed it. The facts show that 1st respondent has also built a structure at the stand. Applicant and the 1st respondent have been to the police, to the criminal courts, before the Magistrates Court for a peace order, and now before this court. The dispute turns on who has the right to occupy the stand. It is against this background that applicant has launched this application seeking the relief mentioned above.

The law and the facts

At the commencement of the hearing I raised a query with Ms Sauramba, applicant’s counsel whether it was competent to cite party to litigation as merely the Occupier. The 2nd respondent is cited as The 2nd Occupier 79 Woodlandale, Umguza. Counsel submitted that the name of the person in occupation of the property is unknown to the applicant. I take the view that a party to litigation must be identifiable. If the respondent is a natural person, must be cited in his or her surname and first names. To merely cite an Occupier, without providing the surname and the first names, is incompetent. An occupier refers to no one in particular. If an order is granted against an Occupier, such an order would be vague and embarrassing and may be used against any one in future who might occupy the same property. It can be invoked against anyone without any limitation, as long as that person is in occupation of the property. Such cannot be competent. It is for these reasons that I ruled that there is no 2nd respondent before court.

I also raised a query with Ms Sauramba, counsel for the applicant whether this matter was urgent. Rule 60(15) of the High Court Rules, 2021, provides that in determining the fate of a chamber application, a judge may raise such queries as she or he may consider pertinent to the disposal of the application. Counsel’s submissions on urgency were an elaboration of the contents of the certificate of urgency.

The entitlement of litigants to approach a court on an urgent basis is now trite.  This court enjoys a discretion in urgent applications to authorise a departure from the ordinary procedures that are prescribed by its rules. It is usually hesitant to dispense with its ordinary procedures, and when it does, the matter must be so urgent that ordinary procedures would not suffice. See: Kuvarega v Registrar General and Another1998 (1) ZLR 188; Triple C Pigs and Another v Commissioner-General 2007ZLR (1) 27. New Nation Movement NPC and Others v President of the Republic of South Africa and Others [2019] ZACC 27. In the ordinary run of things, court cases must be heard strictly on a first come first serve basis. It is only in exceptional circumstances that a party should be allowed to jump the queue on the roll and have its matter heard on an urgent basis. The onus of showing that the matter is indeed urgent rests with the applicant. An urgent application amounts to an extraordinary remedy where a party seeks to gain an advantage over other litigants by jumping the queue and have its matter given preference over other pending matters. This indulgence can only be granted by a judge after considering all the relevant factors and concluding that the matter is urgent and cannot wait. See: Kuvarega v Registrar General and Another 1998 (1) ZLR 188; Triple C Pigs and Another v Commissioner-General 2007ZLR (1) 27.

The leading case within this jurisdiction in relation to urgency is Kuvarega v Registrar General & Anor (supra), a judgment by CHATIKOBO J. The learned judge had the following to state at p 193F-G.

What constitutes urgency is not only the imminent arrival of the day of reckoning, a matter is urgent if, at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated rules. It necessarily follows that the certificate of urgency or supporting affidavit must always contain an explanation of the non-timeous action if there has been any delay.

In assessing whether an application is urgent, the courts have in the past considered various factors, including, among others: the consequence of the relief not being granted; whether the relief would become irrelevant if it is not immediately granted; and whether the urgency was self-created. See: New Nation Movement NPC and Others v President of the Republic of South Africa and Others [2019] ZACC 27. Further to pass the urgency test, applicant must show that there is an imminent danger to existing rights and the possibility of irreparable harm. See: General Transport & Engineering (Pvt) Ltd & Ors v Zimbank 1998 (2) ZLR 301; Document support Centre (Pvt) Ltd v Mapuvire 2006 (1) ZLR 240 (H); Dextiprint Investments (Pvt) Ltd v Ace Property Investment company HH 120/2002; Madzivanzira & Ors v Dexprint Investments (Pvt) Ltd & Anor 2002 (2) ZLR 316 (H).

In oral submissions, Ms Sauramba argued that the trigger to this application is that while applicant is awaiting 3rd respondent, who is the village headman to resolve the land dispute, 1st respondent has made an application for a peace order at the Magistrate’s Court. It is the application for a peace order that has triggered this application, in that it is based on the facts that have long been resolved. It is contended that it is an application designed to frustrate applicant and push her out of the property lawfully allocated to her. It is argued that the peace order is grounded on baseless allegations. Her peace has not been disturbed. In answer to the peace order application, applicant has then approached this court for an interdict.

1st respondent, who was without legal representation averred that she stopped developing the property in May 2021. This was after applicant’s husband destroyed her perimeter fence. She averred that at this point in time there is no one who is in occupation of the property. 3rd respondent, the headman, said he is the one who allocated the 1st respondent the piece of land. This was so because applicant had gone away for two years without developing the property. He did this after consulting the lands committee. He advised applicant that he will allocate her another piece of land. Applicant insisted that she wanted the same piece of land. 3rd respondent averred that he wants to see development in the area of his jurisdiction.

The certificate of urgency, the founding affidavit and the oral evidence shows that at issue in this application is the occupation of stand number 79 Woodlandale, Umguza. The protagonists are applicant and the 1st respondent. This dispute has spilled over to the Magistrate’s Court. 1st respondent has filed an application for a peace order against applicant. The matter was set-down for the 29 July 2021, however in terms of Practice Directive 6 of 2021, the matter has been postponed to the 20 August 2021. In the affidavit  in support of the peace order, 1st respondent avers that she was allocated the stand, which was once allocated to the applicant. She has developed the stand, and built a room. She had put a barbed wire around the property. Applicant’s husband cut and destroyed the wire. Applicant has since put her own wire around the property.

Applicant in her certificate of urgency avers that 1st respondent, despite the issue of her fence being dealt with in court and despite compensation from applicant and her husband has applied for a peace order citing these previous events. It is contended that the peace order application is baseless and is calculated to harass the applicant and push her out of the land. Again it is argued that applicant is at a real risk of losing her land to the 1st and 2nd respondent if the court does not intervene. I hold the view that now that the litigants are entangled in a dispute before the Magistrate’s Court, that court must be given space to exercise its jurisdiction on the matter. Cut to the borne, what applicant is seeking from this court, is exactly what 1st respondent is seeking from the Magistrate’s Court. Notwithstanding the fact that in the Magistrates Court the application is called a peace order, and in this court it is called an application for an interdict, both seek orders, if granted will allow each one of them to take occupation of the stand. Bringing this matter to this court at this point in time, appears to me a case of attempting to play one court against the other. Such might result in conflicting decisions, one by this court and the other by the Magistrates Court on the same subject matter. Such is undesirable. Whether the application at the Magistrate’s Court is baseless and intended to harass the applicant, is not for this court to decide. It is an issue that will have to be decided by that court in the peace order application.

Again, this is a dispute about the occupation of the stand. 1st respondent submitted that she is not at the property. She is not constructing any structures at the property. While this dispute is raging, no one is at the property. She stopped developing the stand in May 2021. The perimeter fence around the stand is that of the applicant. This court cannot, in an urgent application filed on the 24 July 2021, start to interdict 1st respondent from doing something that she is not even doing. The dispute about the occupation wrangle in respect of the stand cannot be resolved in an urgent application.  Applicant neither faces imminent danger to her existing rights nor any possibility of irreparable harm.

Every litigant bringing their cases before these courts wishes to have their matters heard on an urgent basis, because the longer it takes to obtain relief, the more it seems that justice is being delayed and thus denied. This is not always possible. See: Triple C Pigs and Another v Commissioner-General 2007(1) 27. For a litigant to successfully motivate a court to hear its matter on an urgent basis, it must show that its matter is out of the ordinary. In casu, a similar dispute between the same litigants is pending before the Magistrates Court; again 1st respondent is not commencing or continuing with developments at the stand; and this is a dispute of occupation of the stand, and cannot be resolved through an urgent application. It is for these reasons that I take the view that this matter does not pass the test of urgency. There is no reason why this matter should be heard in the urgent roll and not in the ordinary roll. There is no emergency in this case. This matter is not urgent and it cannot be afforded a hearing in the roll of urgent matters. It falls to be struck off from the roll of urgent matters.

Disposition

In the result, I make the following order:  This application is not urgent and is struck off the roll of urgent matters in terms of rule 60(18) of the High Court Rules, 2021 with no order as to costs.

Sauramba S.P. Attorneys, applicant’s legal practitioners