Elphas Maphisa v John Pocock & Co. (Pvt) Ltd and The Honourable S.E. Matova

### Preamble
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HB 156/19
HCA 101/17
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ELPHAS MAPHISA

Versus

JOHN POCOCK & CO. (PVT) LTD

And

THE HONOURABLE S.E. MATOVA

IN THE HIGH COURT OF ZIMBABWE

MAKONESE & MABHIKWA JJ

BULAWAYO 7 & 17 OCTOBER 2019

Civil Appeal

Appellant in person

Ms M. Mazango for the 1st respondent

No appearance for 2nd respondent

MAKONESE J:	The appellant is a frequent visitor to this court.  In the past few years he has filed and defended various claims in this court and in the lower courts.

The appellant noted an appeal against the judgment of the Magistrates’ Court sitting at Bulawayo on 21st November 2017.

The factual background in this matter is this.  Sometime in October 2014 appellant handed over his house at 18 Pingstone Road, Kumalo, Bulawayo, to 1st respondent for management.  The parties entered into “management agreement” in terms of which 1st respondent agreed to secure a tenant to occupy appellant’s property and pay rentals for it.  Pursuant to the “mandate”, and on 10th February 2015, 1st respondent through its representative took the prospective tenant, one Smelly Dube to the property for viewing.  The appellant and Smelly Dube met and discussed the tenancy.  A draft lease agreement was drafted on 11th February 2015 and the parties had a meeting to discuss the contents of the lease agreement.  Appellant was present at the meeting.  It was resolved that a company known as River Valley Properties (Pvt) Ltd would represent the tenant.  Mr L. Sibanda was to sign the lease on behalf of the company as its director and on behalf of the other directors, Smelly Dube and Mncedisi Dube.  The lease was duly signed with Smelly Dube, Mncedisi Dube and River Valley Properties as co-tenants.  1st respondent’s representative signed the lease agreement on behalf of the appellant who was handed the signed lease agreement and proof of payment amounting to US$5000 being February 2015 rental and security deposit.  The tenant moved into the leased premises on 13th February 2015.  Appellant   remained in occupation of the leased  property.  The tenant did not have full use and enjoyment of the leased premises.  Appellant only left for South Africa on 22nd February 2015.  The 1st respondents were frustrated by the appellant’s conduct and were not comfortable co-habiting with a landlord.  The 1st respondent contended that appellant had misrepresented that there were no outstanding rates in respect of the property.  Further, the appellant deliberately failed to disclose that there was a lady occupying the servants quarters, who was paying rentals directly to the appellant.  On 10th March 2015 appellant hired out the premises as a wedding venue and pocketed the payment. He was clearly conducting private business on the leased premises.  By reason of appellant’s conduct,   1st respondent refused to pay the March 2015 rentals.  Appellant ultimately cancelled the lease agreement.  On 21st July 2015 the appellant approached the Magistrates’ Court claiming payment of  the sum of US$10 000 being damages or loses allegedly sustained by 1st respondent’s negligence in the execution of its duties as an estate agent.  1st respondent defended the appellant’s claims and trial commenced on 25th April 2017.  Appellant’s claims were dismissed with costs by the court a quo.

The appellant was unhappy with the outcome in the Magistrates’ Court hence this appeal.  His grounds of appeal are set out as follows:

“1.	The honourable magistrate grossly misdirected himself by finding that the appellant had signed the lease agreement.  This was not true from the signature page of the lease agreement which is clear that Mr J. Dandara and John Pocock and Company (Pvt) Ltd signed the lease agreement.

2.	The honourable magistrate grossly misdirected himself by finding that 1st respondent was not negligent due to lack of specific verification instructions from the appellant to check at Deeds office.  This was not true since the 1st respondent was a mature professional estate agent who needed no such instruction from the appellant who had entered into a principal and agent agreement for its professional services.

3.	The honourable magistrate grossly misdirected himself by finding that the conduct of 1st respondent in verifying information about the tenant including the letter of guarantee could not be said to have fallen below an average prudent estate agent.  This was not true.  The Residential Tenancy Application/Credit Control Form for the tenant was signed but not filled in by the 1st respondent’s three directors nor were  any other verified documents attached.

4.	The honourable magistrate grossly misdirected himself of the law by refusal of the court to admit in evidence a letter dated 20th March 2015 from the 1st respondent admitting that the lease was not  terminable within the first twenty four months by either side.

5.	The honourable magistrate grossly misdirected himself on the law in that based on his findings the lease agreement was legal and enforceable.  This is not true.  The lease agreement is in fact null and void as it was signed by an existent director of non-existent company.  (emphasis  added)

6.	The honourable magistrate grossly misdirected himself of the fact that the negligent actions of 1st respondent did not cause the appellant to suffer consequential damages …”

Before dealing with the appeal itself it seems to me that a tendency is now creeping in where judicial officers are being cited in legal proceedings for no good cause.  In this matter no relief is being sought against the magistrate in the court a quo.  There are no allegations of bias or misconduct or any irregularity in the proceedings made against the judicial officer.  Litigants must avoid citing judicial officers in their personal capacities unless there some form of relief is being sought against them.  In this matter the appellant’s notice of appeal and grounds of appeal does not raise any issues relating to conduct of the proceedings.  In other words, no irregularity is being alleged against the 2nd respondent.  There was absolutely no basis therefore, for citing the trial magistrate in his official or personal capacity.  The appellant, who conducted his appeal in person, conceded this point.

Appellant’s grounds of appeal in this matter were not properly formulated.  In fact these grounds are simply rumbling statements that attack the factual findings of the court a quo.  The entire appeal is not directed at the substantive conclusions on which the court a quo dismissed the claim.  The appellant, in fact tried to argue his matter afresh on appeal.   He  insisted on filing a statement headed “summary of submissions,” which he claimed was a summary of his heads of argument and supplementary heads of argument.  Being a self actor, the court allowed the appellant to file these “summary submissions”.

In Kingstons Ltd v L D Iness (Pvt) Ltd 2006 (1) ZLR 451 (S) at page 459E, ZIYAMBI JA had this to say:

“…  It is trite that an appeal can only be noted against the substantive order made by a court and not against the reasons for making or the process by which it arrives at, the order in question.  See Chidyausiku v Nyakbambo 1987 (2) ZLR 119 (S) at page 124 AC – E where GUVAVA JA (as she then was), quoted with approval the following passage from the judgment of CENTLIVRES JA in Western Johannesburg Rent (Board & Anor v Ursula Mansions (Pty) Ltd 1948 (3) SA 353 (A) at page 353.

“It is clear that an appeal can be noted not against the reasons for judgment but against the substantive order made by a court.  For instance, it is open to a respondent on appeal to contend that the order appealed against should be supported on grounds which were rejected by the trial judge. …”

In this appeal, the appellant does not challenge the ratio decidendi of the judgment of the court a quo.  In dismissing the appellant’s claims, the court did not make a substantive conclusion that the appellant signed or did not sign the lease agreement.  Rather, the court made a substantive conclusion that 1st respondent did not conduct itself negligently in the course of the negotiations and preparation of the lease agreement between appellant and the tenants.  It was the finding of the court a quo that there was no justification for the damages claimed by the appellant.  In any event, the decision of the court a quo did not turn on whether the lease agreement was signed by the appellant or 1st respondent’s representative.  That was not the issue for determination in the court a quo.

The appellant alleges that the lease agreement was null and void as it was signed by a non-existent company.  The appellant was blowing hot and cold on this issue.  On the one hand he argued that the lease agreement was void and unenforceable because the signatory was non-existent.  On the other hand, appellant sought damages arising out of an invalid agreement.  That does not make logical sense.   The decision to dismiss the appellant’s claims did not turn on whether the lease agreement was valid or not.  Again, the ground of appeal directed at the validity of the lease does not deal with the substantive conclusion on which the claims were dismissed.  It is my view that the grounds of appeal are fatally defective.  The appeal is not properly before the court.  In the absence of any grounds of appeal challenging the findings made in dismissing the claims, there is no need to even deal with the substance of the appeal.  The defect in the grounds of appeal is incurable.  See; Macfoy v United Africa Company Ltd [1961] 3 All ER II69, where the principle was laid as follows “ If an act is void, then in law it is a nullity. It is not only bad, but incurably bad…” The magistrate dismissed the appellant’s claims after determining that the pleaded cause of action had not been proven.  This appeal is meant to harass the 1st respondent.  The appeal is devoid of merit.

Ms Mazango, appearing for the 1st respondent argued that this appeal ought to be dismissed with costs on a punitive scale.  She contended that the appellant was unnecessarily litigating and that 1st respondent had been put out of pocket.  It is settled   that costs are awarded at the discretion of the court.  Where a party is unduly intransigent and is mala fide in his approach, the court will award punitive costs.  I would give the benefit of the doubt to the appellant and conclude that his motivation was merely to extract a result in his favour out of a hopeless case. The claims before the court a quo had no sound legal basis.  This appeal has no merit.  I do not consider that a sufficient basis has been set out for an order for costs on an attorney and client scale.

In the result, and accordingly, the appeal is hereby dismissed with costs.

Mabhikwa J ……………………….. I agree

R. Ndlovu & Company, 1st respondent’s legal practitioners