Victoria Falls Municipality v Lot Syatimbulu

### Preamble
1
HB 52/20
HC 1375/19
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VICTORIA FALLS MUNICIPALITY

Versus

LOT SYATIMBULA

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 2 & 19 MARCH 2020

Opposed Application

T. Nkala for the applicant

Z. C. Ncube for the respondent

MAKONESE J:	The applicant is a local authority established in terms of the Urban Councils Act (Chapter 24:03).  The applicant is the registered owner of stand 484 Jakaranda Drive, Victoria Falls.  The stand is currently being occupied by the respondent.

On 11th June 2019 the applicant filed a court application for an order for rei vindicatio against the respondent.  The matter is opposed.  The terms of the order sought in the draft order are couched in the following terms:

“It is ordered that

The respondent and anyone claiming occupation through him is to vacate from 484 Jakaranda Drive, Victoria Falls, within 5 days of the order being granted.

Payment of holding over damages at RTGS$775,00 a month from November 2011 to date of vacating the premises.

Payment of the outstanding amount on the water bill dating from November 2017 to April 2019 amount of RTGS$1 135,85.

Payment of the outstanding amount for the rates dating from November 2017 to April 2019 amounting to RTGS$1 422,82.

Payment of the outstanding amount of the electricity bill dating from November 2017 to April 2019 amounting to RTGS$178,35.

Costs of suit on an attorney and client scale.”

Background

The background to this matter is that the respondent was employed by the applicant as its director of Housing and Community Services from 1st September 2010.  He was dismissed from employment on the 31st March 2017.  He occupied the house at stand 484 Jakaranda Drive, Victoria Falls by virtue of his employment contract.  The applicant contends that respondent lost his right to remain in occupation of the property after his dismissal.  This is an application for rei vindicatio seeking the eviction of the respondent from the property and all those seeking occupation through him.  The respondent argues that there is a compromise agreement between the parties entitling him to remain in occupation.  Further, the respondent avers that there is no application before the court in that the Town Clerk was not authorized to institute legal proceedings against the respondent by a proper resolution.  Before dealing with the merits, I must consider whether the respondent’s application for condonation for the late filing of heads of argument should be granted.

Whether the late filing of heads of argument should be condoned

At the commencement of the hearing, Mr Z. Ncube, appearing for the respondent indicated that the respondent was barred for failing to timeously file his heads of argument.  In his oral submissions, Mr Ncube averred that he had been instructed to represent the respondent towards the end of 2019.  At that time he was informed that the parties had entered into negotiations to have the matter settled out of court.  For some reason the discussions were not fruitful.  Applicant’s legal practitioner denied any knowledge of any discussions between the parties.  It is not denied that legal action for respondent’s eviction from the property was instituted in the Victoria Falls Magistrates’ Court on the 18th of August 2017.  The matter was removed from the Magistrates’ Court, ostensibly to allow the parties to resolve the matter out of court.  While the circumstances surrounding the withdrawal of the matter from the Magistrates’ Court  has not been agreed by the legal practitioners, this court must determine whether the application for condonation for the late filing of heads of argument has merit.  The respondent relied on the authority of the Supreme Court decision of Maheya v Independent African Church SC-58-07.  In that matter MALABA JA (as he then was) held at page 5 of the cyclostyled judgment as follows:

“…  In considering applications for condonation of non-compliance with its Rules, the court has a discretion which it has to exercise judiciously in the sense that it has to consider all the facts and apply established principles bearing in mind that it has to do justice.  Some of the  relevant factors that may be considered and weighed one against the other are:  The degree of non-compliance;  The explanation thereof;  The prospects of success on appeal;  The importance of the case;  The respondent’s interests in the finality of the  judgment;  The convenience to the court and the avoidance of unnecessary delays in the administration of justice.  Bishi  v Secretary for Education 1989 (2) ZLR 240 (H) at 242D-243C.”

In considering the delay in this matter, it is noted that the applicant filed its heads of argument on 15th September 2019.  These heads of argument were served on respondent’s legal practitioners on the 19th of September 2019.  The respondent only filed its heads of argument on the 27th February 2020.  The explanation given for the delay is that respondent was still engaged in negotiations with the applicant.  I do not consider that inspite of the inordinate delay in filing the heads of argument,  the reason given for the delay is entirely unreasonable.  The applicant does not deny that the matter in the Victoria Falls Magistrates’ Court was withdrawn in order to find an amicable resolution of the matter.  What appears to have happened is that the parties failed to reach agreement and the negotiations broke down.  In the circumstances it would be unjust to visit the sins of the legal practitioner upon the respondent.  The case is of importance to both parties and it is in the interests of the affected parties that the matter be determined on the merits.  I would therefore, condone the late filing of the heads of argument.

Whether the Town Clerk was authorized to instate action on behalf of Council

The respondent contends that the applicant is a statutory and juristic entity.  Applicant can only be represented in proceedings in this court after a resolution of council authorizing   the  deponent to act on its behalf.  The respondent argues that without the requisite authority the purported founding affidavit is not properly before the court.  Put differently, there is no application before the court.  In Madzivire & 3 Ors v Zvarivadza & Anor 2008 (1) ZLR 574 (SC) CHEDA JA (as he then was) stated the legal position as follows:

“… a company being a separate legal position from its directors cannot be represented in a legal suit by a person who has not been authorized to do so .  This is a well established legal principle, which the court cannot ignore.  The fact the appellant is the managing director of the fourth applicant does not clothe him with authority to sue on behalf of the company in the absence of any resolution authorising him to do so. In Barstein v Tate 1985 (1) SA 768 (W), it was held that the general rule is that directors of a company can only act validly when assembled at a board meeting.”

In  response to the point in limine raised by the respondent, the applicant averred that the Town Clerk was under the employment of the applicant and as such was authorized to depose to the affidavit in terms of the Urban Councils Act (Chapter 29:15).  It is important to observe that the applicant did not make reference to a specific provision of the Urban Councils Act which empowers the deponent to depose to an affidavit without a proper resolution of council.    Instead,  the applicant attached council minutes purporting to grant the Town Clerk the authority to institute legal proceedings against the respondent.  An excerpt of the minutes is in the following terms:

“Disciplinary matter: Lot Syatambula vs Victoria Falls

The meeting was informed that following council confirmation that the Director of Housing and Community Services be dismissed from employment.  The Local Government Board has confirmed the dismissal.  The dismissal is with effect from the date of suspension as per the ruling of the Disciplinary Authority Mr J J Moyo.  Further to that, the Town Clerk should then write to the former Director of Housing notifying him of the position and that he should vacate the council premises within 30 days from the date of receipt of the dismissal letter.  The council assets had been surrendered already … “ (emphasis added)

It is my view that the purported resolution does not specifically authorize the deponent to institute eviction proceedings.  A clear reading of the purported resolution does not in any way authorize the Town Clerk to institute legal proceedings against the respondent.  The functions of the Town Clerk are provided for in terms of section 136 of the Urban Councils Act.  The section provides as follows:

“136	Functions of the Town Clerk

The Town Clerk shall be responsible for –

to proper administration of the council; and

managing the operations and property of the council; and

(c)	supervising  and controlling the activities of the employees of the council in the course of their employment.

For the purposes of subsection (1), the Town Clerk, in addition to any other duties that may be assigned to him by the council, the executive committee or the mayor as the case may be, shall –

direct, supervise, appoint, develop and report on the work and conduct of all council employees and to be appropriate measures to ensure efficiency and discipline among all council employees; and

where so authorized by the mayor or chairman, sign orders, notices, or any other document requiring authentication, or execution on behalf of the council, the executive committee, the mayor or the chairman, as the case may be, …”

I note that in the founding affidavit, the deponent avers as follows:

“I am the Town Clerk under the employ of Victoria Falls Municipality, cited herein as the applicant, a local authority established in terms of the Urban Councils Act (Chapter 24:03) and it is that capacity that I depose to this affidavit …”

It is clear that the deponent took the position that by virtue of his employment as Town Clerk, he was authorized to institute legal proceedings against the respondent.  This much is clear from the averments in the founding affidavit.  The duties of the Town Clerk are spelt out by statute. He cannot purport to act on behalf of council, without the requisite authority to do so.  It is trite that councils issue resolutions directing and authorizing certain acts to be done.  The resolution to commence legal proceedings against the respondent was not issued by council.  I would not however, conclude that the legal proceedings were ipso facto invalid.  It is my view that a wider interpretation of the council minutes reflects that council authorized that the respondent be evicted from the premises.  I would not therefore, uphold this point in limine.

On the merits

Whether there was a compromise agreement between the parties permitting respondent to remain in occupation of the premises

The respondent made pointed averments in his notice of opposition to the effect that he was in occupation of the house not because of his employment contract but rather, that there was a compromise reached after his dismissal from employment.  In particular, the respondent averred that he reached an understanding with the applicant that until such time as the applicant had made consultations and reached consensus over the monies owed to the respondent he would remain in the house.  At the time of that arrangement the monies owed to the applicant were in the region of US$39 000.  In support of his assertions, the respondent produced correspondence from his legal practitioners addressed to applicant’s legal practitioners.  In its answering affidavit the applicant acknowledges the issue of the US$39 000.  The applicant does not deny the existence of the compromise agreement referred to, save to state that “the respondent is free to approach the courts to claim the same.”  In the absence of a clear denial of the agreement of compromise, it is to be concluded that the averments in the respondent’s opposing affidavits were admitted.  The principle was laid out in the case of Chihwayi Enterprises (Pvt) Ltd v Atish Investments (Pvt) Ltd 2007 (2) ZLR 89 (S), where SANDURA JA stated that:

“The simple rule of law is that what is not denied … must be taken to be admitted..”

See;   Fawcett Security Operations (Pvt) Ltd v Director of Customs & Excise & Ors 1993 (2) ZLR (2) (S). It would seem that some agreement must have been reached allowing the respondent to remain in occupation of the property pending resolution of outstanding issues between the parties.  It is accepted by the applicant that there was a court case filed in the Victoria Falls Magistrates’ Court which  was removed from the roll by the consent of the parties on 19th of April 2018.  This was done after the parties agreed to prepare and file a Deed of Settlement.  The Deed of Settlement was not concluded due to disagreements over the terms of settlement.  It is then that applicant filed those proceedings in this court for a rei vindicatio.  The respondent contends that there was a compromise agreement as reflected by the conduct of the parties.  The case of Georgius & Anor v Standard Chartered Bank Ltd 1998 (2) ZLR 488 (SC), was cited by the respondent in support of the assertion that there was a compromise agreement.  In that matter it was held that –

“a compromise, or transactio is the settlement by agreement of disputed obligations or a consent, the issue of which is uncertain.  The parties agree to regulate their intention in a particular way, each receding from his previous position and conceding something – either diminishing his claims or increasing his liability …”

In my view, the background of this matter clearly shows that after the respondent’s dismissal from employment there was an attempt to evict him from the property in question.  It is not in dispute that legal proceedings were instituted in the Magistrates’ Court.  It is admitted by the applicant that these proceedings were withdrawn to allow the parties to draw up a Deed of Settlement.  It is logical that a Deed of Settlement could only be drawn up after parties had agreed to settle the dispute out of court.  Respondent contends that, there was an agreement that he would not vacate the property pending settlement of outstanding issues.  Once it is accepted that there was discussion between the applicant and respondent regarding a settlement of the matter regarding his occupancy of the property, the court cannot simply ignore the fact that there was this compromise agreement between the parties.  The applicant should be bound by such compromise agreement and cannot unilaterally resile from such agreement.

The actio rei vindicatio is an action brought by an owner of property to recover it from any person who retains possession of it without his consent. It derives from the principle that an owner cannot be deprived of property without his consent. See; Tendai Savanhu v Hwange Colliery Company SC 8/2015  and Chetty v Naidoo 1974 (3) SA 13 (A). In this matter the respondent has argued the existence of a compromise agreement between the parties allowing him to remain in the property. The applicant does not deny that the proceedings in the Magistrates Court were withdrawn to allow the parties to enter into a Deed of Settlement. The respondent is clearly entitled to remain in the property by virtue of the compromise agreement.

In the result, I am not inclined to grant the relief sought on the basis of the actio rei vindicatio.

I would accordingly, dismiss the application with costs.

Dube, Nkala & Company, applicant’s legal practitioners

Ncube & Partners, respondent’s legal practitioners