City of Bulawayo v Montaque Peter Stols & Maxwell Sibanda

### Preamble
1
HB 265/22
1. CITY OF BULAWAYO HC 860/17
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1.	CITY OF BULAWAYO 					HC 860/17

Versus

MONTAQUE PETER STOLS

And

MAXWELL SIBANDA

2.	CITY OF BULAWAYO 					HC 861/17

Versus

WALLACE TIMCOE

And

MICHAEL TIMCOE

And

CECIL TIMKOE

And

KENNETH LUCKY JACKSON

And

MAXWELL SIBANDA

3.	BULAWAYO CITY COUNCIL 				HC 862/17

Versus

LOUISE MILLER

And

MAXWELL SIBANDA

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 20 OCTOBER 2022 & 27 OCTOBER 2022

Chamber application

M. Mpofu, for the applicant

Ms. V. Nyika, for the respondent

DUBE-BANDA J:

These are three chamber applications which were consolidated in terms of rule 34 of the High Court Rules, 2021. The applicant seeks confirmation of provisional orders granted on the 3rd April 2022. The applications were filed in terms of section 5 of the Title Registration and derelict Lands Act [Chapter 20:20].

In case number HC 860/17 the applicant seeks a confirmation of the provisional order in the following terms:

That stand number Lot 74 North Trenance, (74 Primula Road), Bulawayo be and is hereby declared executable and be sold by the City of Bulawayo by public auction and the proceeds thereof used to pay whatever amount is owed to the City of Bulawayo in terms of rates and any costs incurred as a result of this application. The balance of the proceeds, if any, should be paid to the Guardian Fund.

That the costs of suit be payable by respondent.

In the case number HC 861/17 the applicant seeks a confirmation of the provisional order in the following terms:

That stand No. R/E of S/D 3B Trenance, (Sturton Dr West), Trenance, Bulawayo be and is hereby declared executable and be sold by the City of Bulawayo by public auction and the proceeds thereof used to pay whatever amount is owed to the City of Bulawayo in terms of rates and any costs incurred as a result of this application. The balance of the proceeds, if any, should be paid to the Guardian Fund.

That the costs of suit be payable by respondent.

In the case number HC 862/17 the applicant seeks a confirmation of the provisional order in the following terms:

That stand number stand (sic) R/E Lot 100 North Trenance, (Marigold Road), Bulawayo be and is hereby declared executable and be sold by the City of Bulawayo by public auction and the proceeds thereof used to pay whatever amount is owed to the City of Bulawayo in terms of rates and any costs incurred as a result of this application. The balance of the proceeds, if any, should be paid to the Guardian Fund.

That the costs of suit be payable by respondent.

These applications will be better understood against the background that follows.  The property in HC 860/17 is registered in the name of Montaque Stols, the one in HC 861/17 is registered in the names of Wallace Timcoe, Michael Timcoe, Cecil Timcoe and Kenneth Lucky Jackson, and the one in case number HC 861/17 is registered in the name of Louise Miller. The applicant contends that it is owed rates in respect of the three properties and such rates have been due and payable for more than five years. The applicant proceeded in terms of section 5 of the Title Registration and Derelict Lands Act [Chapter 20:20] and obtained provisional orders. The provisional orders were published in the Sunday News newspaper and none of the registered owners filed a notice of opposition. The three applications are opposed by Mr Maxwell Sibanda (respondent).

In support of the applications it is averred that the applicant is owed rates by the registered owners of the properties and the rates have remained unpaid for more than 5 years. In case number HC 860/17 it is averred that as at 31st December 2015 rates in the amount of US$1 348,68 remained outstanding. In case number HC 861/17 it is averred that as at 31st December 2015 rates amounting to the sum of US$698.98 remained outstanding and in case number HC 862/17 it is averred that as at 31st December 2015 rates in the sum of US$1 132.62 remained outstanding.

The applicant avers further that the whereabouts of the registered property owners are unknown. It avers further that even after flighting advertisements in the print media the owners did not respond. The properties were visited and it became clear that no one was occupying or utilising them.  The applicant formed an opinion that the properties were abandoned, deserted and left derelict. It is against this background that the applicant filed these applications and obtained the provisional orders it seeks to be confirmed in these proceedings.

The provisional orders were published in the Sunday News newspaper. Following the publication of the provisional orders the respondent filed notices of opposition in all the three applications. He avers that the stands have not been abandoned, deserted or left derelict. In case number HC 860/17 he avers that he purchased the stand in April 1994 at a purchase price of ZW$10 000 000.00 and the purchase price was paid in full upon the signing of the agreement. He attached a copy of an agreement of sale dated 7 March 2003. Again in case number HC 861/17 he avers that he purchased the stand in 1994 at a price of ZW$20 000.00 which amount was paid in full upon the signing of the agreement of sale. He attached a copy of the agreement of sale dated 10 April 1994. In case number HC 862/17 he avers that he purchased the property in April 1994 at a price of ZW$200 000 000.00, and the purchase price was paid upon the signing of the agreement. In case numbers HC 861/17 and HC 862/17 he attached a copy of a letter from Samp Mlaudzi & Partners Legal Practitioners dated 27 June 2017. In the letter the legal practitioners confirm that they prepared the agreements of sale and that the purchase prices were paid in full and collected by the sellers. The respondent avers further that the properties have not been abandoned, deserted and left derelict in that he has been paying the rates from the date of the agreements of sale.

The applicant in its answering affidavits in not so many words describe the respondent as a dishonest person and that his agreements of sale are a fake and a façade. It avers that he has made similar claims in various cases relating to abandoned stands. It is averred further that in all such cases the status of such stands is the same, the “owners” cannot be located in all of them, he mysteriously has agreements of sale but he “looses” contact with the sellers. It is said that the conclusion is that something is not right.

In respect of all the three properties the applicant avers that even if the respondent purchased the properties that does not negate the fact that the stands have been abandoned, deserted and left derelict.  The agreements of sale are attacked on the basis that they were not initialled on the first pages and that no proof of payments have been attached to show that the purchase prices were paid.  It is averred that the agreements are suspicious and that the letter from Samp Mlaudzi Legal Practitioners does not help since the lawyers did not bother to avail for scrutiny copies of receipts in respect of the purchases. It is contended that it is difficult to ascertain whether the respondent legitimately purchased the properties.

In case number HC 860/17 it is averred further that he claims to have purchased the property in 1994 but the copy of his agreement is significantly suspicious. The agreement of sale was signed in 2003 which is nine years after the alleged purchase. In case number HC 862/17 it is averred that he claims to have purchased the property in 1994 but the agreement of sale was signed in 2007, thirteen years after the alleged purchase. It is contended that the respondent’s version ought to be rejected.

At the commencement of the hearing of these matters I invited the parties to address the issue whether there are material disputes of facts that arise from the applications which could not be resolved on the papers. Mr Mpofu counsel for the applicant submitted that there are no material disputes of facts in these matters, and that the court can resolve the matters without referring them to trial and such will not cause prejudice to any of the parties. Counsel submitted that the court must find that the properties were abandoned, deserted and left derelict and reject the respondent’s version that he purchased the properties. Counsel submitted further that the court must find that the agreements are a fake and a product of a forgery. Counsel referred this court to the judgment in Sibanda v Hayler & Ors HB 105/16 where the same respondent attempted to have certain immovable property transferred into his name on the basis that he purchased it from the registered owners. The court rejected his claims finding that he wanted to steal from the dead and described his conduct as disgraceful and outrageous. Counsel submitted that as this court in Sibanda v Hayler & Ors (supra) was able to resolve the matter on the papers, so again it must be able to resolve these matters on the papers.

Ms Nyika counsel for the respondent submitted that the applications have material disputes of facts which cannot be resolved on the papers. Counsel submitted that the respondent attached copies of agreements and a letter from Samp Mlaudzi Legal Practitioners to show that he purchased and paid for the two properties. Counsel submitted further that this court cannot on the papers find that the agreements were forged. It was contended that respondent’s version cannot be rejected on the papers. Counsel submitted that the matters must be referred to trial.

The application of the law to the facts

As a general rule in motion proceedings the courts are enjoined to take a robust and common sense approach to disputes of fact and to resolve the issues at hand despite the apparent conflict. The prime consideration is the possibility of deciding the matter on the papers without causing injustice to either party. The issue is to ascertain whether or not there is a real dispute of fact which could not be resolved without hearing evidence. In Supa Plant Investments (Pvt) Ltd v Chidavaenzi 2009 (2) ZLR 132(H) at 136 F-G, Makarau JP (as she then was) expressed the following sentiments:

It is my view that it is not the number of times a denial is made or the vehemence with which a denial is made that will create a conflict of fact such as was referred to by MCNALLY J (as he then was) in Masukusa v National Foods Ltd and Another 1983 (1) ZLR 232 (H) and in all the other cases that have followed. A material dispute of fact arises when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.

In the case of Eddies Pfugari (Pvt) Ltd v Knowe Residents Association & Anor SC 37/09, in assessing whether the court a quo erred in resolving the disputes raised on the papers without hearing evidence, the Supreme Court stated the following:

The position is now well established that: in motion proceedings a court should endeavour to resolve the dispute raised in affidavits without the hearing of evidence. It must take a robust and common sense approach and not an over fastidious one; always provided that it is convinced that there is no real possibility of any resolution doing an injustice to the other party concerned.

In Muzanenhamo v Officer in Charge CID Law and Order & Ors CCZ 3/13, PATEL JA (as he then was) stated as follows:

As a general rule in motion proceedings, the courts are enjoined to take a robust and common sense approach to disputes of fact and to resolve the issues at hand despite the apparent conflict. The prime consideration is the possibility of deciding the matter on the papers without causing injustice to either party.”

The jurisprudence is clear that for a dispute of fact to be material the opposing papers must show a bona fide and material dispute of fact incapable of resolution without viva voce evidence having been adduced. See: Dube v Murehwa SC 68/21.

These applications are anchored on  section 5 of the Derelict Lands Act [Chapter 20:20] which provides thus:

Whenever there remains due and unpaid for the space of 5 years, any rate or assessment payable to any Municipality or other public body upon any immovable property in Zimbabwe and such property is abandoned, deserted and left derelict, and the owner thereof cannot be found, it shall be lawful for the person of body claiming such rate or assessment to apply to the High Court, stating the amount claimed to be due and the grounds for applying for the relief under the Act.

The anchor to these applications is that the properties were abandoned, deserted and left derelict, and the owners cannot be found and that rates are due and payable. The respondent avers that the properties have not been abandoned, nor deserted nor have they been left derelict. He has attached agreements of sale and a letter from Samp Mlaudzi & Partners Legal Practitioners confirming that the law firm was responsible for preparing the agreement in respect of two of the properties and the owners received the purchase prices. The respondent avers that he is responsible for paying rates in respect of the properties, in case number HC 860/17 he attached a copy of the City of Bulawayo fiscal invoice addressed Mr MP Stols c/o M. Sibanda. In case number HC 861/17, he attached a Fiscal Tax Invoice issued in the name of Mr KL Jackson c/o M. Sibanda. In case number HC 862/17 he attached a City of Bulawayo Fiscal Tax Invoice issued to Mr L Miller c/o Mr. M Sibanda.

The applicant contends that these agreements are a façade and a fraud. The authenticity of the agreements of sale is assailed and attacked. The confirmatory letter from Samp Mlaudzi Legal Practitioners is assailed and attacked.  The Fiscal tax invoices are attacked on the basis that they were issued after the filing of these applications.  It was contended that no proof of payments have been provided and Samp Mlaudzi Legal Practitioners did not avail copies of receipts in respect of the payments. Again the respondent has not taken transfer for the two properties from 1994, and for the third property from 2003. No explanation has been given as to why he has not taken transfer of these properties. It is averred further that the respondent is an employee of the applicant and has access to records of abandoned properties, meaning that he is using his inside information to identify abandoned properties and then claim that he purchased them.

What has caused me most trouble is that the papers present two mutually destructive versions. For this court to resolve these matters on the papers it must accept one version and reject the other. It must make certain findings of fact i.e. whether the properties were abandoned, deserted and left derelict by the respondent who claims to have entered into sale agreements with the registered owners and paid the purchase prices; and whether the respondent’s version that he entered into agreements of sale with the owners is to be rejected and that the confirmatory letters from Samp Mlaudzi and Partners are part of a fraudulent scheme orchestrated by the respondent.  Conflicting affidavits are not a suitable means for determining and resolving such disputes of fact.

Section 5 of the Act can only be engaged if the owner of the property has not been paying rates for a period of 5 years and he could not be found.  Respondent contends that he purchased all the three properties. The lawyers at Samp Mlaudzi and Partners corroborate his version in respect of the two properties. Though not the registered owner he avers that he has been paying rates for the properties.

It remains the practice of this court to endeavour to resolve applications without calling evidence where to do so will not result in a miscarriage of justice. See: Supline Invstms (Pvt) Ltd v Forestry Co of Zimbabwe (supra). But the limits remain, and however robust a court may be inclined to be, a respondent's version can be rejected in motion proceedings only if it is "fictitious" or so far-fetched and clearly untenable that it can confidently be said, on the papers alone, that it is demonstrably and clearly unworthy of credence.  See:  Fakie NO v CCII Systems (Pty Ltd 2006 (4) SA 326 (SCA) at par 55-56; Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E-635C.

In my view the respondent’s version has not been shown to be clearly untenable and far-fetched that it can be summarily dismissed on the papers. The affidavits leave this court with no ready answer to the dispute between the parties in the absence of further evidence no matter how robust the court might to be. In my view both parties have demonstrated that their versions are not clearly untenable and far-fetched that they can be summarily dismissed on the papers. I take the view that there is a material, genuine and bona fide dispute of fact in these applications which amounts to a triable issue to be adjudicated by the trial court. This court will not be justified in rejecting either version merely on the papers.

Further it appears to me that the applicant is in essence relying on circumstantial evidence to show that the respondent is a fraudulent contriver, that his agreements of sale are a fraud, and that he is merely trying to take advantage of abandoned properties and claim to have purchased them.  As was said in Olivine Industries (Pvt) Ltd v Shonhiwa & Others SC 18/15 I accept that this being a civil case the inference sought to be drawn from circumstantial evidence, while it must be consistent with all proved facts, need not be the only reasonable inference. A litigant who relies on circumstantial evidence does not have to prove that the inference which he asks the court to draw is the only reasonable inference: he will discharge his burden of proof if he can convince the court that the inference he advocates is the most readily apparent and acceptable inference from a number of possible inferences.  See: Olivine Industries (Pvt) Ltd v Shonhiwa & Others (supra). However my view is that a litigant cannot easily convince the court on the papers, it must adduce viva voce evidence to discharge the burden on the basis of circumstantial evidence.  Conflicting affidavits are not a suitable means for determining that a litigant has proved its case based on circumstantial evidence.

It is trite that each case must be decided on its on facts. These matters are clearly distinguishable from Sibanda v Hayler & Ors (supra), where the court found that the applicant therein used a fake and forged power of attorney well knowing it to be bogus. In the Sibanda case this court was able to make factual findings on the papers before it, which is impossible in these applications. I take the view that deciding these applications on the papers will cause an injustice to either party.

It is for the aforementioned reasons that I am of the view that these matters cannot be resolved on the papers.

Ms. Nyika submitted that this matter be referred to trial. It is trite that where at the hearing of an application a material dispute of fact arises on the affidavits which cannot be decided on the papers the court has a discretion as to the future course of the proceedings. The court may dismiss the application with costs; or order that oral evidence be held; or order that the matter be referred to trial. In casu when these applications were filed it was not anticipated that the respondent will file opposing papers and challenge the applicant’s version. He is not a registered owner of any of the properties and hence he was not cited as a respondent in the applications. He filed his notices of opposition after seeing the provisional orders in the print media. Hence at the time of filing of these applications the applicant did not anticipate that such disputes will arise. It is for the aforementioned reasons that I am inclined to refer these matters for trial.

Regarding costs, I am of the view that the justice of the matters require that such be decided at the trial.

I therefore make an order in the following terms:-

These matters be and are hereby referred to trial.

For the purposes of trial, the applications and notice of oppositions filed of record herein shall respectively stand as the summons and notices of appearance to defend.

The plaintiff (the applicant herein) shall file his declarations within 10 days from the date of this order.

These matters shall thereafter proceed in accordance with the Rules of this Court.

The costs of this application shall be costs in the cause.

Coghlan & Welsh, applicant’s legal practitioners

Macharaga Law Chambers, respondent’s legal practitioners