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AS SHE IS Zimbabwe T/a Makonde Christian Hospital V Emeldah Mutyambizi AND Mhangura Copper MINE
HCC 34/25HCC 34/252025
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### Preamble 1 HCC 34/25 HCC 207/22 --------- AS SHE IS ZIMBABWE t/a MAKONDE CHRISTIAN HOSPITAL Versus EMELDAH MUTYAMBIZI and MHANGURA COPPER MINE HIGH COURT OF ZIMBABWE BACHI MZAWAZI J Chinhoyi, 13 & 28 February, 25 March, 25 May, to 17June 2025 Civil trial V. Mukuku, for the Plaintiff M. Muvundusi, for the first defendant BACHI MZAWAZI J: Brief Background [1] The plaintiff instituted this civil action for the eviction of the first defendant from property house number,16 fifth Street Mhangura coupled with a claim of holding over damages in the sum of USD100.00 from the 1st of May 2020 to the date of eviction. [2] In her plea the first defendant claims that the property in question, should have been made part of her retrenchment package and she should have been offered the right of first refusal before the property was purportedly sold to the plaintiff by the second defendant. In addition, she challenges the existence of a fulfilled agreement of sale between the plaintiff and the second defendant, citing lack of full payment of the purchase price and the transfer of title to the plaintiff. [3] It suffices to note that, the second defendant did not file any opposing papers. From the evidence on record, it is not clear whether the entity is still in existence or not since its operations have been defuncted for several decades to date. What is evident is that there is no successor in title mentioned or cited. [4] Nonetheless, the brief history is that, Mhangura Copper Mines went bust sometime in the period from 1999 to 2000. This move necessitated the disposal of some of its assets which included several houses it had constructed for the use of its employees, as well as, the laying off of most if not all of its employees in various departments. [5] It is not in dispute from the facts and evidence adduced in this trial that the employees in different work stations occupied the second defendant, the employer’s houses through a lease entered between the two parties. Their stay was based on the tenure of the employment relationship. [6] What is also evident is that some of those properties leased to the employees were then sold to the employees themselves on agreed terms and also to other individuals outside the scope of the employment contract. [7] It is also common cause that the first defendant was employed by the second defendant as a nurse for a considerable period of time dating from 3 September 1975 to the 31st of December 2000, when the second defendant closed operations. During the tenure of her employment contract, she leased several properties culminating with house number,16 fifth Street Mhangura from her then employer. This house was much bigger and in a more affluent part of the mining compound. [8] Another, known fact is that, the plaintiff a consortium of medical practitioners purchased the hospital where the first defendant and other hospital employees were then absorbed and employed on new contracts. It also purchased some of the houses where some employees of the second defendant, not necessarily the hospital staff only but from other departments were leasing and sitting tenants. [9] Apparent from the record and evidence led is that in the same year 2000, the first defendant applied for and entered into a contract of employment with the plaintiff. Undeniably, by virtue of that new contract of employment her services with the second defendant had been terminated. [10] A lease agreement was tendered by the plaintiff as evidence before this court showing that the plaintiff and the first defendant then entered into a fresh lease contract over the same property in which the first defendant was a sitting tenant. The lease agreement clearly pronounced the plaintiff as the new owner of the premises. It stipulated the rental to be paid amongst other pertinent standard terms. [11] In terms of the signed lease agreement the defendant’s right of occupation of the property was linked to her contract of employment. It would also cease upon the termination of their employment relationship. [12] The first defendant’s term of office ended on retirement on the 28th of December 2019 signalling the termination of the lease of agreement and right of occupation. However, the defendant from that time to date has refused to vacate the property raising a claim of right amidst several other defences already alluded to above. [13] Notably, this matter has taken a very long time to finalise. The summons was issued in 2022. Somehow the matter was abandoned after several efforts at settlement had been made in some Pre-trial conferences. It was then brought to life through a case management order in the year 2025. The trial itself suffered several false starts and hiccups mid -way due to the plaintiff’s counsel’s personal unforeseen family mishaps. The defendant’s defence counsel also delayed in securing some of her witnesses and took longer in leading evidence from her five witnesses. Issues [14] That being the case, the issues agreed to and jointly referred to trial where couched in verbatim as follows: 1. Whether or not the 1st Defendant is entitled to the immovable property namely, House number 16, Fifth Street, Mhangura as part of her retrenchment package or by right of first refusal or both? 2. If the answer is to the affirmative, whether or not it invalidates the agreement of sale between Plaintiff and 2nd Defendant over the same property? Whether or not the agreement of sale between the Plaintiff and 2nd Defendant was complied with in terms of payment of the purchase price? The Plaintiff’s Case [15] The plaintiff led evidence from a duly authorised representative of the hospital it represents. Tauzen Kadungure was one of those employees of the second respondent who took up employment with the plaintiff before the closure of the second defendant’s operations. He is currently employed as the hospital Administrator. He claimed to be privy to most of the employment relationships that took place in both his previous and new employer’s corporates during the relevant period in issue. [16] The witness chronicled the history leading to the sale and purchase of the hospital and the first defendant’s leased house amongst other properties. He explained the two contracts entered into between the plaintiff and the first respondent, one being the contract of employment and the other being the lease agreement. Both documents were produced before the court. The first defendant did not deny signing both contracts. [17] The proof of the original agreement of sale over the property in contention was produced with the attendant receipts showing proof of payment of the same. This witness attested that the property in issue, as well as, the rest of the properties they purchased were paid in full. [18] The witness did not deny that up to the time of the hearing, transfer of the property had not materialised. He however proffered that the processes for change of title were commenced and a reputable legal firm was seized with all the documents. The delay in his view was due to the several legal and labour retrenchment packages disputes involving the second defendant and his other employees. I found this witness to be unassuming and credible. [19] Plaintiff through its witness professed ignorance of any labour determination in favour of and according the first defendant any rights to the property they had purchased, let alone the right of first refusal. They argue that, the first defendant never brought that to their attention during the tenure of her employment contract with them. The issues only arose when the eviction proceedings had commenced by the issuance of summons. [20] They advert that, in any event, their contract with the first defendant has no bearing on those that had been in existence between the first and second defendant before they came into the picture. That being so, it is their argument that, if the first defendant has any claim at all it has nothing to do with them but the second defendant. [21] In his closing submissions Mr, Makuku, for the plaintiff submitted that by virtue of the lease agreement they generated and entered with the first defendant they have the right to evict her. Further, even though the process of change of title has not yet been finalised, it has been commenced and almost through. As such, they can still evict the first defendant based on the rights accrued when they concluded the agreement of sale and paid for the property in full. [22] It was further, argued on behalf of the plaintiff that the memorandum of agreement between some of the second defendant’s employees’ committees and his representatives did not bear the first defendant’s name and was not signed by the responsible authors. The Plaintiff’s case rested on the evidence of its single witness. First Defendant’s case [23] Ms Muvundusi, for the defendant led evidence from five witnesses including the defendant herself. The defendant after detailing her employment history with the second defendant claims that most of her peers at the mining compound, colleagues and hospital workmates were offered the right of first refusal as sitting tenants at the closure of the second defendant’s operations. [24] In her several amended pleas the first defendant claimed that the property was party of her retrenchment package from the second defendant. She alleged that through a labour dispute determination over the retrenchment and exit packages of the second defendant’s employees, all the sitting tenants were to be given the right of first refusal to purchase the properties they were occupying at the time. [25] It is her averment that the plaintiff cannot be dubbed an innocent purchaser when he bought the same property from the second defendant because he was aware that the Mhangura Copper Mine properties had been offered to its previous employers who were the sitting tenants. [26] In addition, she challenged that the Plaintiff had acquired title to the property therefore was not an owner and thus had no right to evict her. [27] Further, she denies owing any holding over damages as she was staying in her own property evidenced by the fact that though she had signed a lease agreement with the Plaintiff, she was never asked to pay rentals throughout the tenure of her stay. [28] She produced several minutes of meetings between the employees of the second defendant’s representatives, the Worker’s Union and the employer’s representatives detailing the agreed retrenchment packages. Her name appeared in one or two documents but not in most. On pages 105-109 there are minutes which did not incorporate the first defendant as one of the participants or an aggrieved party. There was nothing indicating how much was she supposed to be paid or her entitlement or what she eventually received as she failed to attach Annexure A to a letter on page 89 of the record, a schedule showing the quantification of what each employee was entitled to as a package. This Annexure would have shown whether she was owed or not and what amounts. [29] There were a lot of gaps in the first defendant’s testimony. She did not deny or admit that she was given her terminal benefits. She did not state how much she received and how much was outstanding at the time of termination of her contract. She did not dispute that her contract with her first employer as well as her lease agreement were terminated before she entered into the new similar subsequent agreements with her new employer. [30] The first defendant failed to produce the labour determination directing the second defendant to give her the right of first refusal alongside other employees. Indeed, she produced contracts of other employees showing that they were offered the right of first refusal and exercised their option to purchase but she failed to produce anything showing that such an offer was made to her. This is because employment contracts are individual specific. Apart from mere say so, no retrenchment or arbitral award in respect to the first defendant was produced in court or shown to the plaintiff during the first defendant’s occupation in the property from 2001 to 2019. [31] What is even more exasperating is there is no evidence that was given explaining why only, she, the first defendant was left out in the offer for right of first refusal, what action she took for over plus or minus eighteen years to enforce that right, or why she never pursued the implementation or enforcement of the same. Under cross examination the first defendant admitted that her name did not appear in a package settlement matter involving Masango and twenty-nine others. Her explanation was that their cause was also hers and any relief they were supposed to get she was also entitled to the same though not a party to the proceedings. It is my considered view that the first defendant given the above gaps was not a very convincing witness. She concealed relevant information as it suited her and was not forthwith with the court. [32] All the first defendant sought to do was to lead evidence from the former employees of the second defendant to her detriment. What dawned form the evidence of all the witnesses she called is that the second defendant did make an invitation to its former employees and sitting tenants to come forward if they were interested in the purchase of the properties they were leasing. [33] This invitation although not clear from the record may have been the birth child of continuous settlement negotiations but nevertheless it is evident from the other witnesses’ evidence it was made. The form the invitation took shape and the manner it was made is not very clear from the evidence adduced. [34] According to the second witness, Mr Austin Tshabalala who was the employer’s representative in the worker’s council, minuting the minutes of the negotiations attested that the invitation was open to every person and was made to every individual worker in the compound. After the invitation interested individuals took steps or the initiative to visit the personnel office where they were given agreements to sign. [35] Mr Tshabalala even stated that there were two options. The first, was to ask those who were willing to purchase their houses to come forward and then to be given the right of first refusal offer to purchase the property or a straight upfront cash of USD5000.00 to enable the purchase of plots which were being sold in the proximity of the mining settlement. This witness played a major role in the negotiations and settlements of the employees’ pension and other benefits during that period. [36] He attested that most employees from the mining sector were given lump sum payments. In his words it was up to the respective employee to decide on whether to accept the offer to purchase the house and if interested the purchase price was deducted from the lump sum. He emphasised that the purchases were up to an individual. He mentioned that there was a relocation allowance of USD5000.00. He further asserted that anyone who ventured to accept the offer would then enter into an agreement and sign forms for acceptance of the offer then an agreement of purchase. He emphasised that those who wanted including himself bought and those who did not were offered USD5000,00 upfront. [37] The third witness was a police officer, she said the invitation to come and purchase was open to and made to everyone including teachers and police officers. It was not restricted to employees of the second defendant. When she had the rumour which was an open secret in the small community she had only stayed in her property for two months. She then visited the second defendant’s office and was informed that if she could afford to buy then she was allowed to do so in instalments resulting in her entering into the contract. She wondered why the first defendant was left out as everyone was invited to purchase if interested. [38] The last two witnesses Richard Jokonya and Sixpence who also took up employment with the plaintiff expressed disbelief as to why the first defendant did not take up the offer as it was made public knowledge. [39] Sixpence told the court that he opted for a property in which he was not even a sitting tenant. He also brought up several crucial points that firstly there was an invitation to all and sundry. Secondly, interested individuals would visit the second defendant’s office and accept the offer of the right of first refusal against their benefits. He alluded to the fact that the property you would select would commensurate with your benefits. As a result, after taking up the offer and signing up for it he ended with little or no benefits leading him to join the group which was claiming for more money and retrenchment benefits. [40] In consonance, all the witnesses called by the defendant were equally shocked as to why the defendant did not benefit from a scheme apparently capitalised by most retrenched employees. They could not confirm or deny whether or not the first defendant ignored the invitation to offer, was offered and rejected or her reasons for not taking up the offer when most did. They could not attest whether or not the first defendant may have exercised the other attractive option of USD5000.00 cash up front. The Legal Frame work and analysis [41] What emerges from the above facts and evidence is that the first defendant ‘s main defence to the ejectment suit is that like most of her counter parts who used to work for the second defendant she was entitled to be given the first preference in purchasing the house where she had been a sitting tenant for a very long time, before that offer was given to the plaintiff. [42] In her amended plea, she alleges that she was never given a right of first refusal in the first place. In the same breath then she said a labour determination gave all the employees of the second defendant a right of first refusal including herself therefore because of that standing right of first refusal the plaintiff who was aware of its existence is not a bona fide purchaser. As such the sale must be nullified in her favour. This inevitably brings us to dissect what a right of first refusal is. What is a right of first refusal? [43] Simplified, a right of first refusal is a contractual right that gives the holder the first opportunity to buy a property or asset if the owner decides to sell it. Essentially, the owner must offer the property to the holder of such right on the same terms as a third-party offer before they can sell to anyone else. A peculiar feature of this transaction is that it is established through a legal agreement, often a lease or other contract. Further, whenever the property owner receives a legitimate offer from a third party, they must notify the party with the right of first refusal to match or exceed the offer before disposing of the property. [44] Legal authorities abound assert that for the right to exist it must be agreed to by the parties and it must be an integral term of the contract between the parties. In other jurisdictions it need not be reduced into writing if the original written agreement expires and the parties had continued on its terms after its expiration. Mokone v Tassos Properties CC and Another (2017) CC, [45] In our jurisdiction, it has to be in writing and if there is an offer there must be evidence of its acceptance. In Ashanti Goldfields Zimbabwe Limited v Clements Kovi SC7/09, the deduction of purchase price made on an employee’s payslip was ruled as evidence of acceptance of the offer. [46] The right of first refusal was defined in Eastview Gardens Residents Association v Zimbabwe Reinsurance Corporation (Ltd) & Ors 2002 (2) ZLR 543 (S) as: A right of first refusal or pre-emption is created when, in an agreement, one party (the grantor) undertakes that when he decides to sell his property, he will give the other party (the grantee) the opportunity of refusing or buying of the property at a price equal to that offered by another person. The grantor is then said to be under an obligation to do, at the time he sells the property, what he voluntarily bound himself to do, that is, offer the property to the grantee first at a price equal to that offered by a third party or which he is prepared to accept from any other would-be buyer. The grantee is said to have acquired the correlative right to have the property offered to him first so that he can match the price offered by the third party or refuse the offer. [47] It is apparent from the above that the right of first refusal is therefore created by contract and he who alleges its existence should prove so on a balance of probabilities. I will now in turn analyse the related issue against the underpinnings of the law. Patently, this issue is in two parts. The first part is whether or not the 1st defendant is entitled to the immovable property as part of her retrenchment package? Secondly, is whether or not the 1st defendant is entitled to the immovable property by right of first refusal? I will start with the second. Whether or not the 1st Defendant is entitled to the immovable property namely, House number 16, Fifth Street, Mhangura or by right of first refusal or both [48] A perusal of the exhibits filed of record, in particular the two leases over the property in contention reflects that there was no mention of a right of first refusal being extended to the first defendant, agreed to and embedded in their contracts. The validity of both leases was not effectively challenged as both were signed by the first defendant. The position of the law as pronounced by the Supreme court is very clear, the right of first refusal must be written and be a term of the contract of lease. [49] The dicta by MALABA JA as he then was, in the Eastview Gardens above is of guidance. In this case it was highlighted that, It is clear from all these decided cases that a right of pre-emption can only be created by contract or agreement between the grantor and the grantee. Where breach of the right is alleged as a cause of action and its existence is denied, the onus is on the plaintiff to show that there was an agreement between the parties in terms of which the defendant undertook to offer to him the property at a price equal to that offered by another. [50] Deductively, in the context of the lease agreement between the first defendant and her first employer which do not incorporate a right of first refusal term, her claim cannot succeed. Even if we stretch it to the second employer for completeness it still fails. However, her defence of right of first recusal as argued is not restricted to the leases. It has two more facets. [51] The first defendant claims that a labour arbitral award determined that the second defendant should give her as well as, other employees the right of first refusal as a sitting tenant. In self- contradiction she then said she was not given the right of first refusal when all her co-workers at the mine who were sitting tenants were offered the same. [52] To begin with, only reference was made to the arbitral award. It was never produced. Therefore, its contents were never scrutinised. If this document of fundamental value to the defendant’s case had been produced it would have been easier to believe the first defendant’s story. Neither of her five witnesses attested to its existence nor its contents. As a result, I can safely make the conclusion that there was no such directive or finding by an arbitrator. [53] In addition, from the evidence given by all defence witnesses who were credible, the second defendant, made an invitation to offer a right of first refusal to all of its workers across the board to visit its designated offers and accept the offer. Following that a binding contract was to be entered into reflecting the right of first refusal, the purchase price of the property and an individual employee benefits and setoff of the purchase price form the lumpsum benefits. [54] Even if it be concluded that an offer for the right of first refusal was made by the second defendant following internal settlement negotiations it was up to an individual employee as in accordance with their individual contracts to take up the offer to accept. All witnesses attested that, those who were willing grasped the opportunity resulting in the purchase of their respective properties. From the evidence on record some employees opted for the USD5000.00 cash up front and did not buy the properties they enjoyed as sitting tenants. This applied even to those who were not employees of the company as evidenced by witness number three, the police office. [55] The law on offers and acceptance is well established. In contract law, an offer and acceptance are fundamental components for creating a legally binding agreement. An offer is a clear proposal to enter into a contract, while acceptance is the unconditional agreement to the terms of that offer. For a contract to be valid, the offer must be communicated to the offeree, and the acceptance must be communicated back to the offeror, This has been amplified in Ashanti Goldfields Zimbabwe Ltd vs Clements Kovi SC13-09 and Calisto Chirenje vs Vendfin Investments (Private) Limited and Two others SC07-09. [56] The first defendant, was not clearly candid with the court. She was a Senior employee of high standing in such communities. Her subordinates capitalized on the opportunity. Why did she not, remains an unanswered question? Why she did not exercise the right of first refusal which was open to everyone else is still an unravelled mystery. [57] Having analysed all the facets of the right of first refusal as claimed by the first defendant on a balance of probabilities, I am not convinced that the first defendant is entitled to the said property by right of first refusal. [58] I now move to whether or not the 1st defendant is entitled to the immovable property as part of her retrenchment package? It suffices to note that the issue of the right of first refusal as well as the first defendant’s entitlement to a retrenchment package are for all intense and purposes claims against the second defendant and not the plaintiff. Only the second defendant is answerable. I don’t believe that is subject to this application hinging purely on the contractual relationships and obligations between the plaintiff and the first defendant. [59] It is clear on record that there are employment termination letters from the second defendant to the first defendant which facilitated her transition to her new employer. It is also evident that the lease agreement which gave her right of occupation of the property was also terminated giving way to and was replaced by that of the plaintiff. This was the time she could have raised her terminal benefits issue with the second defendant. In that regard, this issue is dismissed as having no bearing on the plaintiff’s case. I now focus on the second issue brought forward for trial. Whether or not the plaintiff purchased the property in the strict sense and whether or not he was an innocent purchaser? [60] I will proceed to paraphrase the above issue into two. The first is to determine from the evidence and the facts whether or not the plaintiff fully paid for the property in question The second is on the issue of a bona fide purchaser. It is evident that the he argument by Ms Muvundusi that the property was not paid in full was defeated by the evidence which was adduced by the plaintiff. The agreement of sale is proof that the sale did take place. The receipts supported the payment of the purchase price. All the elements of a valid contract of sale are present. On whether the sale should be invalidated on the basis that the plaintiff was not an innocent purchaser? [61] The law states that once it has been established that a third party in a sale where the sitting tenant has been offered the right of first refusal proceeds to purchase that same property with the knowledge that the grantee has not been given an option to exercise that right by the grantor, he inevitably becomes a mala fide buyer. The sale will be reversed and the holder of the right of first refusal will be allowed to exercise the preferential right. See, Makoshori v Nyamushamba and Mhangura Copper Mines Limited SC 9/06. [62] I am inclined to believe the plaintiff’s position on a balance of probabilities and on the faith of the evidence led from the last two defence witnesses that he was an innocent purchaser as the first defendant for one reason or the other did not come forward to contest her right of first refusal if it indeed existed at the time. It is common cause that the plaintiff purchased not only the hospital, it also took over the contracts of most of the hospital employees and the purchase of several houses which were not taken up by those employees who preferred lumpsum payments and a bonus of USD5000,00 in cash. [63] There is no evidence illustrating that the plaintiff was not a bona fide purchaser having purchased the hospital, other houses of the second defendant and having taken over the contracts of the hospital. Ms Muvundusi placed reliance on the obiter dictum by SANDURA J, as he then was, in the case of Makoshori v Nyamushamba and Mhangura Copper Mines above. A distinction must be made that in that case the conclusion and ultimate decision was based on the actions by the employee of Mhangura Copper Mine which the court interpreted as an acceptance of the offer prior to the sale to Makoshori who was then described as not an innocent purchaser. [64] In this context, if we are to go by the reasoning that it was public knowledge in the mining settlement as portrayed in the obiter dicta of the Makoshori case above,that right of first refusal was made to the sitting tenants the first defendant should have been aware of that public fact and made steps to accept the offer. She did not. She settled to entering into a lease agreement over a property and not to exercise such a right if at it was still open to her. [65] Apparently, she opted not to exercise that right of first refusal by matching or out matching the price that had been offered to the plaintiff and to then have that deducted against her exit package. She sat on the right, if at all was still open for good nineteen years. Cognisance being made that the right of first refusal is not open forever. It has a life span. You make an offer that matches or out matches that of another party and then agree on payment terms. Whether or not the Plaintiff has locus standi to evict the 1st Defendant from house number 16, Fifth Street, Mhangura? [66] As amply captured and cited by Ms Muvundisi, and the authorities she cited, ownership to an immovable property is evidenced by a title deed or registration with the Deeds Registry or cession in the respective office. Again, the law of eviction clearly stipulates that it is an owner who has the locus standi to institute eviction proceedings against an unauthorised occupant of his property. See, Graham v Ridley 1931 TPD 476 and Chetty v Naidoo 1974 (3) SA. [67] However, the law does not oust the right of a lease holder to eject a lessee from the property he himself leased. The plaintiff entered into a valid lease with the first defendant. It is on the faith of this lease that the plaintiff obtains the right to evict the first defendant. See, Zuva Petroleum v S Chirenje HH166/16. Hillock and Another v Hilsage Investments) (Pvt)Ltd 1975(1) SA. [68] We are mindful of the fact that when the plaintiff signed the lease agreement with the first defendant, he had not concluded the agreement of sale with the second defendant. Notwithstanding that, a second lease of agreement was generated soon after the sale was finalised and replaced the interim one. The first defendant’s stay or right of occupation was thus premised on a valid lease agreement. As such guided by the already cited case law, the plaintiff can eject the first defendant. [69] Unfortunate as it may seem, given the age of the first defendant and the lengthy of the service she had given to the plaintiff and his predecessor it is difficult to then just evict her. Nonetheless her inaction is to blame. If she had any rights at all against her first employer, she did not exercise them for close to two decades. She conceded paying rentals to the plaintiff upon signing the new lease agreement and to staying on the property on the faith of the then new lease. This lease was terminated when she was retired as per its clause. [70] On the issue of holding over damages, evidence has been led to the effect that the first defendant paid rentals to the plaintiff for a few months but there after did not. This was on an understanding that she was an employee and in view of the ever -changing economic environment. It is only fair that the it will be in the interest of justice not award the order on holding over damages. In any event like all damage suits the monthly rental allegedly accrued have not been proved. [71] As regards costs, costs on the higher scale as claimed by the plaintiff are punitive and defeatist as extrapolated in Public Protector v South African Reserve Bank [2019] ZACC. There no basis for departing from the norm that costs follow the cause Accordingly, It is ordered that: The first defendant and all those who claim occupation through her be and are hereby evicted from property house number 16, Fifth Street, Mhangura. That the first defendant and all those who claim occupation through her vacate the property house number 16, Fifth Street, Mhangura within 90 days of this order. The costs follow the cause. Makuku Law Firm, the plaintiff’s Legal Practitioners Mercy Dunatuna Muvhundusi Attorneys, the 1st defendant’s Legal Practitioners