IBI Property and Infrastructure (Pvt) Ltd and Jockstar Investments (Pvt) Ltd v Graniteside Electrical Hardware

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                                                                                     HC 71/21




IBI PROPERTY AND INFRASTRUCTURE (PVT) LTD
and
JOCKSTAR INVESTMENTS (PVT) LTD
versus
GRANITESIDE ELECTRICAL HARDWARE


HIGH COURT OF ZIMBABWE
CHIRAWU-MUGOMBA J
HARARE, 3 February 2021


URGENT CHAMBER APPLICATION


       CHIRAWU-MUGOMBA J: This matter was placed before me as an urgent chamber
application during the lockdown period. I directed that the respondent files its notice of
opposition and opposing affidavit and that all parties file heads of argument to enable me to
make a determination on the papers.
        The background to the application from the applicants’ perspective is summarised as
follows. The 1st applicant is the registered owner of subdivision of Lot 4, Zizalisari of
Bannockburn Township, held under deed of transfer 5126/2009 (the property). The 2 nd
applicant is a subsidiary of the 1st applicant and has been tasked with the development,
servicing and selling of residential stands in the subdivision. The applicants seek an order
restraining the respondent from effecting any developments on stand 2828 at the said
property. The stand is one of six in which the 2 nd applicant entered into an agreement of sale
with the respondent. The applicants purportedly cancelled the agreements of sale in respect of
the stands. In June 2020 under case number HC 2099/20, the respondent approached this
court challenging the cancellation of the agreements. The matter is still pending. The
respondent filed an urgent application in HC 7488/20 and a provisional order was granted by
consent. The matter is still also outstanding. The applicants have discovered that the
respondent is in the process of erecting a permanent structure on stand 2828 which is still
subject of a dispute that the court has still not resolved. This was discovered by the security
guard of the applicants on the 25th of January 2021. The 1st applicant was alerted to this
development on the 26th of January 2021. The structure is illegal as no plans have been
approved. The respondent not being the owner should not take up occupation nor effect any
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improvements of any kind on the stand. Should the respondent continue to do so, it may end
up being expensive to remove the structure. There is no other satisfactory remedy and the
balance of convenience favours the applicants.
       The applicants therefore seek the following interim relief:
   1. Respondent be and is hereby ordered to refrain from taking possession of stand 2828
       of Zizalisari Lot 4 of Bannockburn Township (also known as Mt Pleasant Heights
       Phase 2)
   2. The respondent and all those acting for and on their behalf are ordered to refraining
       (sic) from carrying out, commencing to carry out, or continuing to carry out any
       construction activities on stand 2828 of Zizalisari Lot 4 of Bannockburn Township.
       The final relief sought is couched as follows:
   1. The respondent’s actions in taking occupation and erecting a structure on stand 2828
       of Zizalisari Lot 4 of Bannockburn Township be and are hereby declared to be
       unlawful.
   2. The respondent shall pay the costs of the application on a legal practitioner ad client
       scale.
       The application is strenuously opposed by the respondent. Its opposition can be
summarised as follows. The matter is not urgent due to a deliberate withholding of material
facts by the applicants. The 2 nd applicant issued summons in case number HC 5861/19
against the respondent seeking cancellation of the agreement of sale in respect of stand 2828
and also an order for ejectment. The action was withdrawn by the 2 nd applicant after the
respondent had filed its notice of entry of appearance to defend. The applicants have been
aware that the respondent has been in occupation for a long time as stated in HC 5861/19.
They cannot therefore purport to come to court on an urgent basis seeking what essentially is
eviction. The pending matters deal with the purported cancellation of the agreements of sale
and transfer of ownership and not occupation. The matter cannot be urgent given the material
withholding of facts. The fact that there is what is referred to as an illegal structure confirms
that the respondent is in occupation.
       The structure on the stand is a temporary one, because the wooden one was affected
by the rains thus necessitating the construction of another temporary structure. It is meant to
accommodate the respondent’s caretaker who also looks after the other five stands. Such a
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structure does not require approval of the local authority. The caretaker confirmed in a
supporting affidavit that he has been staying at the stand with his family since January 2018.
       In defiance of the order in HC 7488/20 that prohibits the applicants from transferring
the stand to any other person than the respondent or its nominee, the applicants have
instructed an estate agent to advertise the stand as being for sale and prospective purchasers
have been making a bee-line to view the stand. The applicants have therefore come to court
with dirty hands. They have also failed to disclose to the court that they once sold the stand
to some other person. This illegal sale is confirmed by annexure D to the applicants’
founding affidavit. The operative part of the letter from the 1 st applicant addressed to the
respondent reads, ‘On our part, we have relocated the purchaser to another plot’.
          It is my considered view that this application is not urgent. As rightly highlighted
by the respondent in its opposing affidavit and heads of argument, the applicants have not
been candid with the court. An applicant in an urgent matter expects the court to drop every
other matter and to attend to its application on the basis that it is urgent. As has been said, the
matter cannot wait to join the orderly queue of other matters. It is imperative therefore that all
material facts be placed before the court even those that may seem adverse to the applicant.
In casu, the applicants never disclosed the existence of a prior action against the respondent
for cancellation of the agreement of sale and eviction in HC 5861/19. That would have
alerted the court without even having reference to the opposing affidavit that the order sought
by the applicants in the interim relating to the respondent taking occupation is a fallacy. How
then can an entity in the person of the respondent be prohibited from taking occupation when
it was already in occupation? The applicant did not highlight the fact that the said stand as
per annexure D had been ‘sold’ to another person. Instead the applicants sought to use the
letter to emphasise another point. The applicants never even attached a copy of the order in
HC 7488/20 nor even to summarise the order granted by consent. Instead the applicants chose
to incorporate by reference the record in that matter yet it was very easy to just have attached
the actual order. The applicants in my view were playing hide and seek with the courts. The
applicants withheld information that the stand in dispute has been put up for sale through an
estate agent. Given the history of the applicants in having previously disposed of the stand to
a third party as per annexure D, it cannot be ignored that the real reason for seeking the
provisional order is to pave way for an illegal sale in defiance of a court order.
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        As has been stated in a plethora of cases also made reference to by the respondent in
its heads of argument, once there is material non-disclosure a matter ceases to be urgent – see
Graspeak Investment (Pvt) Ltd v Delta Operations (Pvt) Ltd and anor 2001 (2) ZLR 551(H);
NSSA v Capital Bank Corporation Ltd and ors HH-6-19; Mukuvisi Tashinga Co-operative v
Masukuma and ors, HH-478-15 and The Executive Assistance Training Centre (Pvt) Ltd v
ZESA Pension Fund and ors, HB1/06.
        The applicants have clearly come to court on a wing and a prayer hoping to obtain a
provisional order and yet failing to take the court into their confidence. Accordingly, an order
of costs will be made against them.
DISPOSITION

   It is ordered that:

   1. The application is not urgent and is accordingly struck off the roll of urgent matters.
   2. The applicants shall pay the costs.




Jiti Law Chambers, applicants’ legal practitioners
Machinga Mutandwa, respondent’s legal practitioners