Siesta Mews Unit Homeowners Association v Thula Family Trust and Sheriff of the High Court Bulawayo

### Preamble
1
HB 184.19
HC 93/18 & 94/18
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SIESTA MEWS UNIT HOMEOWNERS ASSOCIATION

Versus

THULA FAMILY TRUST

AND

SHERIFF OF THE HIGH COURT BULAWAYO

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 10 OCTOBER & 5 DECEMBER 2019

Civil Trial

S Mbondia, for the Plaintiff

D Moyo, for the 1st Defendant

MOYO J:	In this matter plaintiff issued summons claiming:-

Payment of the sum of USD 11 316-00.

Interest at the rate of 15% per annum from the due date to date of payment.

Costs of suit.

This claim was further amplified through an application that was consolidated with this action wherein plaintiff claimed:-

1)	An order authorising the ejectment of the 1st  defendant from the portion of the property owned by it being Unit 7 Siesta Mews, Hillside Bulawayo and

2)	An order authorizing 2nd Defendant to cause the sale of 1st Defendant property’s share in the immovable property forming the subject matter of the dispute.

3.	Costs of suit.

In order to prove its claims plaintiff called one Gavin Stephens who took the court through a detailed account of how the property was acquired and the legal documents pertaining thereto.  He also took the court through the problems and challenges they have had with 1st defendant and how this has affected the interests of other property owners particularly, 1st defendant failing to honour its obligations in terms of the rules governing the complex, 1st defendant’s failure to complete the structure it owns within a reasonable period, failure by 1st defendant to honour financial obligations due from it regarding costs related to commonly used areas, or benefits like security, garden etc.  Gavin Stephens tendered the Notarial Deed which formulates the basis of the existence of the sectional title rights that 1st defendant owns.  Clause 6 of the Notarial Deed regulates the rights and obligations of all the occupants.  The Notarial Deed was lodged with the Deeds registry and registered as MA 129/07.

1st defendant has failed to pay its obligations in terms of levies owed and 1st defendant’s representative signed an acknowledgment of debt in this regard.  The complex also has a Constitution wherein the authority to impose levies derives from.  Gavin Stephens  further told the court that liability to pay levies derives from the ownership by the defendant of a share in terms of the occupation agreement.  The levies charged are meant to meet the commitments of the plaintiff association.  This derives from a resolution that was passed by the plaintiff association’s members.  He related to the minutes of the meeting held by the association which were tendered into the court record as appearing at page 43 – 72.  They were marked Exhibit 6.  Gavin Stephens alleged that 1st defendant had not paid its dues since 2009.  A statement of account was prepared and he tendered it as being at pages 39 – 42 of the court record.  It was marked Exhibit 4.  Gavin Stephens also told the court that 1st defendant has not paid anything at all and that the 15% interest rate derives from clause 28 of the plaintiff association’s Constitution.

He further told the court that clause 36 of the Constitution gives plaintiff the right to eject 1st defendant and sell the property to recover what is due.  1st defendant was notified of the plaintiff association’s intentions in that regard through written communication and was given an opportunity to make representations but still did nothing.  He said 1st defendant owns number 7 Siesta Mews and it has not been developed.  He said the unit is an eyesore and is inhabited by pests.  He told the court that the unit diminishes the overall value of other properties.  He said the unit also disturbed electricity wiring in the complex.  He also told the court that 1st defendant has been duly notified of the meetings that it has failed to attend.  Asked under cross-examination that the defendant paid a developer to construct unit 7 so that it could enter into a complete unit, Gavin Stephens said yes but that was between the 1st defendant and the developer.  He stated that even if the property was bought by 1st defendant in 2004 and plaintiff was formed in 2007, 1st defendant was aware of plaintiff’s formation as she knew that sectional title would have a management association per the Notarial Deed.

1st defendant did not lead any evidence during the trial.  No witness was called to lead evidence on behalf of the 1st defendant, meaning therefore that the evidence given by Gavin Stephens on behalf of the plaintiff Association is the only evidence in the court record and is therefore uncontroverted and should be accepted as given.  Defendant did not lead any evidence to dispute or rebut the claims as made by the plaintiff Association and this court does not have any basis to disbelieve it or to refuse to accept it.  Plaintiff’s evidence is thus the only evidence that the court has and it accordingly has to find that plaintiff has proved its case on a balance of probabilities as no evidence has been adduced to the contrary.  It is for these reasons that this court will find that 1st defendant is liable to pay plaintiff the sums claimed.

As for the argument in relation to section 58 of the Constitution, it certainly follows that no evidence has been placed in the court record by the 1st defendant of its protestations and refusal or even challenge to being a member of plaintiff Association.  In fact 1st defendant has acquiesced its membership status and has even signed an acknowledgment of debt which in itself proves its understanding of its being part of the Association and its obligations.  In any event, by owning sectional title, which obviously has a Notarial Deed governing its ownership 1st defendant is expected to appreciate the effect of such ownership as well as its implications.

In relation to whether the amount claimed is in United States dollars, I did not hear plaintiff’s witness to emphasise that despite the fact that the summons were issued when the USD was the currency of the day, they seek the claim to be in foreign currency, I understand plaintiff’s claim to have been couched in the currency of the day, payable again in the currency of the day, as no evidence has been led to justify payment in foreign currency given that the currency regime has since changed.

I accordingly find for the plaintiff as follows:-

a)	That 1st defendant pays plaintiff the sum of $11 316-00 together with interest thereon. At the rate of 15% per annum from the date the sums became due to the date of payment in full.

b)	That the 1st defendant and all those who claim through it be and are hereby ejected forthwith from Unit 7 Siesta Mews, Hillside Bulawayo.

c)	That the Sheriff or his deputy be and is hereby authorized to put on sale the 1st defendant’s share in the immovable property known as Siesta Mews, specifically Unit 7 Siesta Mews.  This authority includes the power to sign any sale/transfer documents.

d)	That 1st defendant pays the costs of suit.

Webb, Low & Barry Inc. Ben Baron & Partners, applicant’s legal practitioners

Samp Mlaudzi & Partners, 1st defendant’s legal practitioners